Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 732

RESPONSE in Opposition re 714 MOTION to Compel PRODUCTION OF SOURCE CODE FROM EBAY INC. AND AMAZON.COM, INC. [AMAZON.COM, INC.'S AND EBAY INC.'S OPPOSITION TO EOLAS'S MOTION TO COMPEL PRODUCTION OF SOURCE CODE] filed by Amazon.com Inc., Ebay Inc.. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Text of Proposed Order)(Perito, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Eolas Technologies Incorporated,
Plaintiff,
v.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., Blockbuster Inc., CDW Corp.,
Citigroup Inc., eBay Inc., Frito-Lay, Inc.,
The Go Daddy Group, Inc., Google Inc.,
J.C. Penney Company, Inc., JPMorgan
Chase & Co., New Frontier Media, Inc.,
Rent-A-Center, Inc. Staples, Inc., Sun
Microsystems Inc., Texas Instruments
Inc., Yahoo! Inc. and YouTube, LLC,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 6:09-CV-00446-LED
JURY TRIAL

DECLARATION OF ANDREW L. PERITO IN SUPPORT OF AMAZON.COM, INC.,
AND EBAY, INC.’S OPPOSITION TO EOLAS’S MOTION TO COMPEL
PRODUCTION OF SOURCE CODE
I, Andrew L. Perito, hereby declare:
1.

I am an attorney with the law firm of Weil, Gotshal & Manges LLP, counsel of

record for Amazon.com, Inc. (“Amazon”) and eBay, Inc. (“eBay”) (collectively, “Defendants”)
in the above-captioned matter. I submit this declaration based on personal knowledge following
a reasonable investigation. If called upon as a witness, I could competently testify to the truth of
each statement herein.
2.

Counsel for Defendants received Plaintiff Eolas Technologies, Inc.’s (“Eolas”)

Patent Rule 3-1 and 3-2 Disclosure of Asserted Claims and Preliminary Infringement
Contentions by letter dated March 5, 2010. The disclosure of Eolas’s infringement contentions
with respect to Amazon enclosed 6 exhibits comprising 977 total pages. The disclosure of

Eolas’s infringement contentions with respect to eBay enclosed 7 exhibits comprising 1,954 total
pages.
3.

On information and belief, on June 17, 2011, counsel for Defendants, including

Messrs. Edward R. Reines, of Weil, Gotshal & Manges LLP and lead counsel for Defendants,
Aaron Y. Huang, of Weil, Gotshal & Manges LLP and counsel for Defendants, and Joshua R.
Thane, of Haltom Doan and local counsel for Defendants, attended a telephonic meet-and-confer
pursuant to Local Rule 7-1 with counsel for Eolas, including Mr. Joshua W. Budwin, of McKool
Smith P.C. During that telephone conference, counsel for Defendants reiterated Defendants’
request for Eolas to specifically identify and clarify what code it believed missing and
Defendants’ offer to collect and make available that additional code. In particular, counsel for
Defendants offered by way of example to make available the template code for pages on which
contain the accused features appear, to the extent it had not already been provided.
4.

Attached hereto as Exhibit 1 is a true and correct copy of a letter from Lauren

Biyiasas, of Weil, Gotshal & Manges LLP, on behalf of Defendants, to Mr. Budwin, dated May
4, 2010, enclosing media containing documents bearing production numbers AMAZONE00002162-AMAZON-E00005300.
5.

Attached hereto as Exhibit 2 is a true and correct copy of a letter from Lauren

Biyiasas, of Weil, Gotshal & Manges LLP, on behalf of Defendants, to Mr. Budwin, dated May
4, 2010, enclosing media containing documents bearing production numbers EBAY-E00003415EBAY-E00009081.
6.

Attached hereto as Exhibit 3 is a true and correct copy of a document marked as

Exhibit 15 to the June 10, 2011 deposition of Ms. Xiaodi Zhang, presented by counsel for Eolas.

2

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed:

June 24, 2011

__/s/ Andrew L. Perito_______________
Andrew L. Perito
Attorney for Defendants Amazon.com, Inc.
and eBay Inc.

3