Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 714

MOTION to Compel PRODUCTION OF SOURCE CODE FROM EBAY INC. AND AMAZON.COM, INC. by Eolas Technologies Incorporated. (Attachments: # 1 Declaration of Joshua Budwin, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Text of Proposed Order)(McKool, Mike)

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EXHIBIT 18 Matt Rappaport From: Sent: To: Cc: Subject: Perito, Andrew [andrew.perito@weil.com] Monday, May 23, 2011 9:24 PM Matt Rappaport; Tom Fasone III Huang, Aaron; Eolas; EBay-Eolas; Mehta, Sonal RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Matt, As mentioned on Friday, I was in the midst of preparing a brief for filing, which unfortunately lasted until nearly midnight on Friday, so I hope you'll understand my not getting back to you on Friday afternoon. I am happy to discuss your request below to review certain eBay source code in native form and we have a proposal below that we hope will allow the parties to move forward cooperatively. However, I also want to respond to your comments below suggesting that eBay somehow concealed source code when it was produced to Eolas more than one year ago. As we have stressed repeatedly to Tom and Lindsay in recent weeks, we are happy to discuss discovery issues with you as they come up and work with you to resolve them, but do not believe letter-writing campaigns based in rhetoric or recrimination are productive. In this case, rather than raise this concern with us when eBay source code was first made available to Eolas last year, Eolas waited months before raising this concern in your March 30, 2011 letter and then commenced writing letter after letter accusing eBay of withholding code that had in fact been produced. In fact, eBay expressly pointed to the May 2010 code production in the parties' prior correspondence leading up to the December 9, 2010 email agreement between the parties. It wasn't until your colleague Tom called us recently to try to work through the issue that we were able to explain the disconnect between the parties and, in the spirit of cooperation, point you to the relevant code. Given that history, your suggestion that eBay has been withholding or concealing code is neither credible nor constructive. To further address Eolas's request below for additional native source code, by June 10, 2011 eBay offers to make available in native form on its source code review machine the code for eBay pages previously produced on May 4, 2010. Please let us know if you would like to discuss further tomorrow, as our calls on this matter have proven the most productive route to resolving the parties' apparent disputes. I will be in a deposition tomorrow that starts at 9 am but can talk tomorrow afternoon or evening if you would like. Best, Andrew Andrew Perito Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 andrew.perito@weil.com +1 650 802 3993 Direct +1 650 802 3100 Fax -----Original Message----From: Matt Rappaport [mailto:mrappaport@McKoolSmith.com] Sent: Friday, May 20, 2011 4:19 PM To: Matt Rappaport; Tom Fasone III; Perito, Andrew; Mehta, Sonal Cc: Huang, Aaron; Eolas; EBay-Eolas Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Andrew, As you were unable to attend today's meet and confer, this afternoon I separately called you to inquire as to whether eBay will be producing additional source code. You indicated 1 you would get right back to me on this issue. Please respond to indicate eBay's position. If you are unable to do so today, please do so no later than Monday. If eBay declines to produce additional source code please also provide the availability of lead/local counsel for what should be a very brief meet and confer, to occur next week. Regards, Matt -----Original Message----From: Matt Rappaport Sent: Friday, May 20, 2011 11:04 AM To: Tom Fasone III; Perito, Andrew; Mehta, Sonal Cc: Huang, Aaron; Eolas; EBay-Eolas Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Andrew, Now that the disconnect has been resolved, Eolas is disappointed that eBay has dodged Eolas' requests for source code production only to now point to its document production at bates ranges EBAY-E00003415 - EBAY-E00009081, as if this constituted sufficient source code production. This document production provides TIFF images and OCR'ed text files of page sources from eBay's websites. It is far from a sufficient source code production. Please add this item to today's meet and confer call, as Eolas still requires prompt production of eBay's source code for each of the accused websites as it is maintained in the ordinary course of business. To be clear, there are several reasons eBay's document production at bates ranges EBAYE00003415 - EBAY-E00009081 cannot constitute a sufficient production of source code. 1) The document production fails to provide the source code as it is maintained in the ordinary course of business. Ebay provided source code for neighborhoods.ebay.com as it is maintained in the ordinary course of business. Eolas expects this form of production for each of eBay's accused websites. Here, eBay has created documents for, apparently, the sole reason of providing them to Eolas. These documents differ from the source code Eolas seeks. This alone is sufficient to render the document production an insufficient substitute for source code production. 2) Furthermore, Eolas is unable to meaningfully review the document production as if it were source code because the documents have been created in a manner that removes information vital to Eolas' source code review. The TIFF images and OCR'ed text that eBay has produced, either intentionally or otherwise, do not provide the full path and filename for the code printouts they reference. This is evidenced by the ellipses in the footer/header of the path and filename on the produced documents. These ellipses, which appear in both the TIFF and OCR documents produced, remove information vital to Eolas' source code review. 3) Finally, Eolas is unable to meaningfully review the document production as if it were source code because they Eolas' source code review tools cannot function on TIFF images and OCR'ed text. Eolas' source code review tools are designed to read code as it is maintained in the ordinary course of business. Separately, Eolas is disappointed because eBay's newfound reliance on its document production at bates ranges EBAY-E00003415 - EBAY-E00009081 is at odds with its own designation of this document production. eBay's document production at bates ranges EBAY-E00003415 - EBAY-E00009081 occurred over one year ago, on May 4, 2010. The cover letter for that document production is attached. Instructively, the May 4 cover letter makes no mention of any source code included in eBay's production. By way of comparison, the cover letter from eBay's April 25, 2011 source code production is also attached. That cover letter makes specific mention of the production of source code accompanying the letter, and states that the source code produced bears the bates range of the form "EBAY-SC00000000." In addition, the cover letter for eBay's production 2 bearing bates range EBAY-E00009135 - EBAY -E00009269 identifies the accompanying production is to be treated as source code. No such indicia is present for eBay's document production at bates ranges EBAY-E00003415 - EBAY-E00009081. If, despite the above, eBay's position is that it always relied upon its document production at bates ranges EBAY-E00003415 - EBAY-E00009081 as source code, then eBay has concealed this from Eolas for over a year. As given above, Eolas had no reason to rely on Ebay's document production at EBAY-E00003415 - EBAY-E00009081 as if it were source code. (Indeed, for the reasons given above, this production is not a sufficient substitute for source code production). Time and again, Eolas sought the location of eBay's source code, asking for the proper directory structure to locate the code on eBay's source code computer. See my correspondence of May 3, 2011, recounting Eolas' inquiries over the past months. Please be prepared to prepared to discuss this matter on today's call, as Eolas still requires source code for each of the accused websites as it is maintained in the ordinary course of business. -----Original Message----From: Tom Fasone III Sent: Saturday, May 14, 2011 5:12 PM To: Perito, Andrew; Mehta, Sonal Cc: Huang, Aaron; Eolas; EBay-Eolas; Matt Rappaport Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Thank you for your email, Andrew. I will confer with our folks that are intimately involved in the source code review process on this case and let you know what I learn. Hopefully, this will resolve any outstanding source code production issues so that we don't have to burden the Court with motion practice. Have a nice weekend. Tom ________________________________________ From: Perito, Andrew [andrew.perito@weil.com] Sent: Saturday, May 14, 2011 12:32 PM To: Tom Fasone III; Mehta, Sonal Cc: Huang, Aaron; Eolas; EBay-Eolas Subject: RE: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Tom, Following up your email and our on Tuesday of this week, it appears that there continues to be a disconnect regarding the production of eBay's code, so I write to provide additional specificity to clarify certain issues in the hope of resolving the parties' apparent miscommunication. Obviously, it is not our duty to walk Eolas or your source code reviewers through the source code we provide, but we are providing additional detail at this point in the spirit of cooperation. The portions of eBay source code for the websites identified in Eolas' infringement contentions that we discussed on our Tuesday call can be found between EBAY-E00003415 EBAY-E00009081. These documents were previously produced to Eolas as single page tiff images on May 4, 2010. Accordingly, when one of your reviewers asked whether code for each of the accused websites has been produced, citing specifically the html code for the accused sites, I told the reviewer that such code had been produced and we invited him to have your team call us if you wanted to discuss further. In addition, the reviewers had access to the code made available on eBay's source code computer including, among other things, code for eBay's v4 Flash Infrastructure in the "Leg_v4darwin" folders that is used to generate the pages that incorporate Flash across eBay's sites. This code operates at a higher level than the May 4, 2010 production of code and thus was produced out of an abundance of caution. 3 Finally, as you note, for neighborhoods.eBay.com--from which accused code was already produced in the May 4, 2010 production--eBay has also made available on its source code computer additional exemplary code from this site. We hope that this further explanation will alleviate any confusion you may have regarding eBay's source code production, but of course we remain willing to continue to work with your team to resolve any issues that remain. Best, Andrew Andrew Perito Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 andrew.perito@weil.com +1 650 802 3993 Direct +1 650 802 3100 Fax -----Original Message----From: Tom Fasone III [mailto:tfasone@McKoolSmith.com] Sent: Thursday, May 12, 2011 4:43 AM To: Mehta, Sonal Cc: Huang, Aaron; Perito, Andrew; Eolas; EBay-Eolas Subject: Eolas/eBay: Source Code -- Request for LR-7 Meet and Confer Sonal, I write to follow up on our scope of eBay's source code this matter, I went back to as I indicated that I would meet and confer of Tuesday evening (May 10) concerning the production in this matter. In a good faith effort to resolve our team to "run the traps" on eBay's source code production, during our meet and confer on Tuesday evening. It is my understanding that our experts have performed a review of eBay's source code several times. As a result of this review, printouts bearing bates labels EBAY-SC00000001 to EBAY-SC00001217 are now in Eolas' possession. These pages are the printouts from the source code that eBay has made available to date. This is not additional code, it is simply the portions of the code that eBay has made available that Eolas chose to print. Eolas is not in receipt of any other source code that eBay claims to have produced (e.g., code that eBay made available only in printed form and provided to Eolas). If eBay believes that it sent such source code directly to Eolas in printed form, we have not yet received it and no effort to identify it has been made by eBay. Further, it is my understanding that Eolas addressed the deficiencies in eBay's source code on site with Andrew Perito of your firm. Eolas' technical consultants explained to Andrew that the only complete production for the accused websites was the production for the site neighborhoods.eBay.com. Eolas' technical consultants showed the directory structure for the other accused sites, comparing to to the directory structure of neighborhoods.eBay.com. This demonstrated the deficiencies in the other websites' source code production. Andrew offered no explanation as to why the source code was not there for sites other than neighborhoods.eBay.com site -- he simply stated that it was all there. Moreover, because of the deficiencies in eBay's production Eolas' technical consultants actually cut their review a day short and headed home early. The foregoing issues are detailed in numerous correspondence from Eolas to eBay, which are in your possession. Eolas has expended a substantial amount of time and effort to work with eBay to resolve the deficiencies in eBay's source code production; however, despite its efforts, it appears that eBay remains unwilling to cooperate by producing complete source code. Given that opening expert submissions are due May 25, Eolas is left with no choice but to seek the Court's intervention, on an expedited basis, in order to resolve this matter. 4 Please let us know when your local and lead counsel are available for an LR-7 meet and confer. We suggest addressing this topic during the same LR-7 meet and confer previously requested by Lindsay in her correspondence to you this week. We look forward to hearing from you soon. Thank you. Tom NOTICE OF CONFIDENTIALITY: The information contained in and transmitted with this e-mail is SUBJECT TO THE ATTORNEYCLIENT and ATTORNEY WORK PRODUCT PRIVILEGE and is CONFIDENTIAL. It is intended only for the individual or entity designated above. You are hereby notified that any dissemination, distribution, copying, use or reliance upon the information contained in and transmitted with this e-mail by or to anyone other than the addressee designated above by the sender is unauthorized and strictly prohibited. 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