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)

EXHIBIT 2

MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS

Josh Budwin
Direct Dial: [phone]
[e-mail]

300 West 6th Street
Suite 1700
Austin, Texas 78701

Telephone: [phone]
Telecopier: [phone]

September 3, 2010

VIA E-MAIL:
Joseph P. Reid
Fish & Richardson
12390 El Camino Real
San Diego, CA 92130
858.678.4705
[e-mail]
David J. Healey
Fish & Richardson PC
1221 McKinney Street, Suite 2888
Houston, TX 77010
713/654-5310 (Direct Dial)
[e-mail]
Douglas E. Lumish
Weil Gotshal & Manges
201 Redwood Shores Parkway
Redwood City, CA 94065
650/802-3028 (Direct Dial)
[e-mail]
David T. Pritikin
Sidley Austin - Chicago
Bank One Plaza
One South Dearborn Ave
Chicago, IL 60603
312/853-7359 (Direct Dial)
[e-mail]

Scott Wayne Breedlove
Vinson & Elkins
2001 Ross Avenue
3700 Trammel Crow Center
Dallas, TX 75201
214/220-7993 (Direct Dial)
[e-mail]
Thomas L. Duston
Marshall Gerstein & Borun
233 S. Wacker Drive
6300 Sears Tower
Chicago, IL 60606
312/474-6300 (Direct Dial)
[e-mail]
Edwin R. DeYoung
Locke Lord Bissell & Liddell LLP
2200 Ross Ave.
Suite 2200
Dallas, TX 75201
214/740-8500 (Direct Dial)
[e-mail]
Jeffrey K. Joyner
Greenberg Taurig, LLP
2450 Colorado Ave.
Suite 400E
Santa Monica, CA 90404
310/586-7700
[e-mail]

September 3, 2010
Page 2 of 7
Thomas M. Melsheimer
Fish & Richardson
1717 Main Street
Suite 5000
Dallas, TX 75201
214/292-4001 (Direct Dial)
[e-mail]

Barton E. Showalter
Baker & Botts
2001 Ross Ave.
Suite 600
Dallas, TX 75201
214/953-6509 (Direct Dial)
[e-mail]

Scott T. Weingaertner
King & Spalding, LLP
1185 Avenue of the Americas
New York, NY 10036
212/556-2227 (Direct Dial)
[e-mail]

Avelyn Marie Ross
Vinson & Elkins
2801 Via Fortuna
Suite 100
Austin, TX 78746
512/542-8411 (Direct Dial)
[e-mail]

Christopher M. Joe
Buether Joe & Carpenter
1700 Pacific, Suite 2390
Dallas, TX 75201
214/466-1272 (Direct Dial)
[e-mail]
Joel Mark Freed
McDermott Will & Emery
600 13th Street, NW, 12th Floor
Washington, DC 20005-3096
202/756-8080 (Direct Dial)
[e-mail]
Michael Simons
Akin Gump Strauss Hauer & Feld
300 W. 6th Street, Suite 2100
Austin, TX 78701
512/499-6253 (Direct Dial)
[e-mail]
Kenneth Jurek
McDermott Law Firm
227 West Monroe Street
Chicago, IL 60606
312/984-7767 (Direct Dial)
[e-mail]

Austin 62481v1

Michael Ernest Richardson
Beck Redden & Secrest
1221 McKinney
Suite 4500
Houston, TX 77010
713/951-6284 (Direct Dial)
[e-mail]
Eric Hugh Findlay
Findlay Craft
6760 Old Jacksonville Highway
Suite 101
Tyler, TX 75703
903/534-1100 (Main Number)
[e-mail]
Carl R. Roth
The Roth Law Firm
115 N. Wellington
Suite 200
P.O. Box 876
Marshall, TX 75671
903/935-1665 (Main Number)
[e-mail]

September 3, 2010
Page 3 of 7
Re:

Eolas Technologies Incorporated v. Adobe Systems, Inc., et. al; Civil Action No.
6:09-CV-00446-LED; United District Court of Texas; Eastern District

Counsel:
We are concerned about the state of the defendants’ source code production in this case.
As you are aware, the defendants were required to produce or make available for inspection
source code for the accused products by September 1, 2010. See dkt. 381.
We have endeavored to set forth herein what we presently believe the state of the source
code production is for each defendant. To the extent that our understanding is incorrect, please
provide us with prompt clarification.
Additionally, we request that each defendant provide us with an index listing the source
code that they have made (or will make) available for inspection. Eolas provided an index of this
nature in its source code production letter dated August 12, 2010. Receiving an index listing the
source code that each defendant has produced will allow us to ascertain, in advance of our inperson source code inspection, whether the code produced by each defendant is adequate.
Finally, even if the accused products for a given defendant comprise no more than
websites, source code may still need to be produced. It is not necessarily true that the source
code for websites is publically-available. For example, Eolas requires access to the source code
for past versions of the accused websites during the damages period which precedes Eolas’ filing
of this case. Please see my letter of July 28, 2010 regarding representative products — this may
help lessen the burden of producing past versions of the accused websites and/or updating your
code production as changes and updates are made to the accused websites. As another example,
for certain claims, our infringement contentions may reference activities which take place on the
server. This server-side code needs to be produced. Moreover, to the extent that the clientfacing website code has been compressed, obfuscated, had comments removed, etc., we still need
the original, non-altered form of the source code for the website to be produced. If you are
amenable to our proposal regarding representative products and/or you contend that the sum total
of the source code for your accused websites is publicly-available in its original non-obfuscated,
non-compressed, non-altered and with comments form, please provide us with written
confirmation of this on an accused website by accused website basis.
Adobe: In letter correspondence dated August 25, 2010 identified “code for major releases of
Flash Player 6 forward, Acrobat 6 forward, Director 10 forward (includes Shockwave), and code
for the Adobe websites identified in the contentions” as being available for inspection. Thank
you for this correspondence. On September 2, 2010, Eolas sent letter correspondence requesting
clarification of the code Adobe has made available, including an index listing the code made
available for inspection.
Amazon: Has produced no source code. Please provide a prompt identification of the source
code Amazon will make available for inspection. Please pay careful attention to the source code
for the accused Amazon web applications (e.g. search suggest, product previewer, related
product slider, etc.).

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September 3, 2010
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Apple: Correspondence dated August 25, 2010 stated “Apple’s source code will be available for
inspection in Sidley’s Palo Alto office starting 9/1.” Thank you for your correspondence. On
September 2, 2010, Eolas sent e-mail correspondence and requested that Apple provide an index
identifying the source code it has made available for inspection.
Blockbuster: Has produced no source code. Please provide a prompt identification of the source
code Blockbuster will make available for inspection.
CDW: Has produced no source code. Please provide a prompt identification of the source code
CDW will make available for inspection. Please pay careful attention to the source code for the
accused CDW web applications (e.g. AutoComplete, etc.).
CitiGroup: Has produced no source code. Please provide a prompt identification of the source
code Citi will make available for inspection. Please pay careful attention to the source code for
the accused Citi banking system.
eBay: Has produced no source code. Please provide a prompt identification of the source code
eBay will make available for inspection. Please pay careful attention to the source code for the
accused eBay web applications (e.g. AutoFill, etc.).
Frio-Lay/J.C. Penney/Rent-a-Center: Correspondence dated September 1, 2010 stated source
code was available for inspection in Greenberg’s Dallas office. Thank you for your
correspondence. Please provide us an index identifying the source code made available for
inspection for each of Frito-Lay, J.C. Penney and Rent-a-Center.
The Go Daddy Group: Has produced no source code. Please provide a prompt identification of
the source code GoDaddy will make available for inspection.
Google/YouTube: In letter correspondence dated September 2, 2010, Eolas requested that
Google provide an index “listing all of the source code you have produced to us to-date, labeled
as ‘open source’ and/or made available for inspection.” This same correspondence also
requested that Google produce source code for the accused web applications (e.g. Google Search
Suggest, Google Maps, Google Gmail, video.google.com, etc.) in their original non-obfuscated
and non-compressed form.
J.P.Morgan: In letter correspondence dated September 2, 2010, stated that “JP Morgan will
produce representative versions of the accused websites code in lieu of producing evidence of
each and every change to its websites over the applicable time frame.” Thank you for
correspondence. In email correspondence dated September 3, 2010, Eolas requested that
J.P.Morgan “provide us with an index listing the source code that JPMorgan is making available
for inspection.” We also reminded J.P.Morgan that Eolas’ infringement contentions extend to
“JPMorgan’s banking systems, in addition to its websites.”

Austin 62481v1

September 3, 2010
Page 5 of 7
New Frontier Media: In letter correspondence dated August 29, 2010 stated that “website source
code is available for inspection” in Austin, Texas. Thank you for your correspondence. Please
provide us an index identifying the source code made available for inspection.
Office Depot: Has produced no source code. Please provide a prompt identification of the
source code Office Depot will make available for inspection. Please pay careful attention to the
source code for the accused Office Depot web applications (e.g. search suggest, etc.).
Perot Systems: In letter correspondence dated September 1, 2010 stated that it “makes its source
code available for inspection” in Dallas, Texas. Thank you for your correspondence. Please
provide us an index identifying the source code made available for inspection.
Playboy Enterprises: In letter correspondence dated September 1, 2010 stated that “server-side
source code” is available for inspection in Austin, Texas and that “client-side code” is available
for access over the internet (with the Playboy-supplied password).
Thank you for
correspondence. Please provide us an index identifying the source code made available for
inspection.
Staples: Has produced no source code. Please provide a prompt identification of the source
code Staples will make available for inspection. Please pay careful attention to the source code
for the accused Staples web applications (e.g. search suggest, etc.).
Oracle America (f/k/a Sun Microsystems): In letter correspondence dated September 1, 2010
provided an index listing the source code made available for inspection. Thank you for your
correspondence. Does Oracle plan to make source code available for the accused websites? If
so, can you please provide us with an index of that code as well?
Texas Instruments: Has produced no source code. Please provide a prompt identification of the
source code Texas Instruments will make available for inspection.
Sincerely,

Josh Budwin
cc:

All other counsel of record

Defendant
Adobe Systems
Incorporated
Amazon.com Inc.

Austin 62481v1

Counsel
Joseph P. Reid

E-mail
[e-mail]

Jason W. Wolff
Matthew Powers
Jared B. Bobrow
Joseph H. Lee
Christian Hurt

[e-mail]
[e-mail]

September 3, 2010
Page 6 of 7
Defendant
Apple, Inc.

CDW Corporation

Citigroup Inc.

eBay Inc.

Frito-Lay, Inc. and
Rent-A-Center, Inc.

The Go Daddy Group,
Inc.

Google Inc. and
YouTube

J.C. Penney Company,
Inc.

Austin 62481v1

E-mail
[e-mail]

Chris Joe
Brian Carpenter
Eric W. Buether
Neil J. McNabnay

[e-mail]
[e-mail]
[e-mail]
[e-mail]

J. Nicholas Bunch
Proshanto Mukherji
Robert F. Perry
Mark H. Francis
Christopher C. Carnaval
Michael E. Jones
Allen F. Gardner
Brian Carpenter

[e-mail]
[e-mail]
[e-mail]

Eric W. Buether

Blockbuster Inc.

Counsel
Richard A. Cederoth
Shubham Mukherjee
Duy D. Nguyen
Teague I. Donahey
Theodore Whitley Chandler
Eric Albritton
Matthew Clay Harris
David Kent Wooten
Deron R. Dacus
Shannon Marie Dacus
Juliane Hartzell
Scott A. Sanderson
Anthony S. Gabrielson
Eric Hugh Findlay
Brian Craft
Roger Brian Cowie
Galyn Dwight Gafford
Michael Scott Fuller
Roy William Hardin
Jason E. Mueller
Eric L. Sophir
Alexas D. Skucas
Matthew Douglas Powers
Christian J. Hurt
Jared B. Bobrow
Joseph H. Lee
Jeffrey F. Yee

[e-mail]

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

[e-mail]
[e-mail]
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[e-mail]
[e-mail]
[e-mail]

[e-mail]

[e-mail]
[e-mail]
[e-mail]

September 3, 2010
Page 7 of 7
Defendant

New Frontier Media,
Inc.
Office Depot

Perot Systems Corp.

Playboy Enterprises
International
Staples, Inc.

Sun Microsystems, Inc.
Texas Instruments, Inc.
Yahoo! Inc.

Austin 62481v1

E-mail
[e-mail]

David Crump

J.P. Morgan Chase &
Co.

Counsel
Jeffrey Joyner
Jeffrey Yee
Debra Elaine Gunter

[e-mail]

Steve Shahida
Herbert A. Yarbrough, III
Anthony T. Pierce

[e-mail]
[e-mail]
[e-mail]

David M. Stein
Suzanne M. Wallman
Brett E. Bachtell
J. Thad Heartfield
Douglas Mark Kubehl
David O. Taylor
Vernon E. Evans
Roger J. Fulghum
Paula D. Heyman
Kevin J. Meek
Scott Partridge
Deron R. Dacus
Shannon Marie Dacus
Gentry C. McLean
David B. Weaver
John A. Fedock
Alexandra McTague
Donald R. Steinberg
Mark Matuschak
Daniel V. Williams
Kate Hutchins
Mark D. Fowler
Kathryn B. Riley
Amanda Aline Abraham
Brendan Clay Roth
Matthew Douglas Powers
Christian J. Hurt
Jared B. Bobrow
Joseph H. Lee
Deborah J. Race
Otis W. Carroll, Jr.

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

[e-mail]

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