Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 968

MOTION to Compel LOG-IN INFORMATION FOR STAPLESLINK.COM AND EWAY.COM FROM STAPLES INC. by Eolas Technologies Incorporated. (Attachments: # 1 Attachment A, # 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 Text of Proposed Order)(McKool, Mike)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

Eolas Technologies Incorporated,
Plaintiff,
vs.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., Argosy Publishing, 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.,
Office Depot, Inc., Perot Systems Corp.,
Playboy Enterprises International, Inc.,
Rent-A-Center, Inc., Staples, Inc., Sun
Microsystems Inc., Texas Instruments Inc.,
Yahoo! Inc., and YouTube, LLC
Defendants.

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§ Civil Action No. 6:09-CV-00446-LED
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JURY TRIAL
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EOLAS’ MOTION TO COMPEL LOG-IN INFORMATION FOR
STAPLESLINK.COM AND EWAY.COM FROM STAPLES, INC.

Pursuant to Federal Rule of Civil Procedure 37 and Local Rule CV-7, Plaintiff Eolas
Technologies Incorporated (“Eolas”) files this Motion to Compel Log-in Information for
stapleslink.com and eway.com from Defendant Staples, Inc. (“Staples”).
I.

INTRODUCTION AND FACTUAL BACKGROUND
A.

stapleslink.com and eway.com.

stapleslink.com and eway.com are password-protected websites for Staples’ contract
customers. Thus, unlike staples.com—a website that can readily be used by anyone with access
to a computer or mobile device and an internet connection—only those who register and obtain
log-in information can access stapleslink.com and eway.com.1 Indeed, as part of the registration
process, a Staples representative must contact the customer before log-in information can be
obtained by the customer to access stapleslink.com and eway.com.2 Thus, Eolas has been and is
restricted from accessing such websites, lacking log-in information and lacking even the ability
to obtain log-in information as a contract customer would.
On June 7, 2011, after examining documents produced in discovery suggesting that
stapleslink.com and eway.com may practice the patented inventions, Eolas requested access to
those websites to make a determination regarding infringement.3 As has been the hallmark of
this litigation with Staples, Staples has delayed in responding to Eolas’ emails, delayed in
providing dates for Local Rule CV-7 meet and confers, and delayed in fulfilling promises made
in the meet and confers. After receiving no response to its June 7th email, Eolas followed up on
June 10th with another email.4 After receiving no response to its June 10th email, on June 16th,
1

Exhibit 1 (screenshots from stapleslink.com and eway.com made on September 6, 2011).

2

Id.

3

Exhibit 2 (e-mail from Mr. Fasone to Ms. Hutchins (June 7, 2011, 4:50 PM)).

4

Exhibit 3 (e-mail from Mr. Fasone to Ms. Hutchins (June 10, 2011)).
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Eolas requested times for a Local Rule CV-7 meet and confer should Staples refuse Eolas access
to the websites.5 After receiving no response to its June 16th email, Eolas sent another email on
June 22nd.6 That day, Staples responded—not with an agreement to allow Eolas access to the
websites—but with a statement that it would conduct a Local Rule CV-7 after the June 29th
discovery hearing in this case.7 Thereafter, on June 23rd, June 24th, and June 26th, Eolas sent
emails in an attempt to schedule the meet and confer.8 On the June 30th meet and confer, Staples
offered to stipulate that its password-protected websites do not make use of accused functionality
and features in this case. Eolas sent emails on July 5th and 8th to obtain the stipulation.9 On July
8th, Staples counsel explained that it had never promised a date of when it would provide a
stipulation, that the client was on vacation that week, and that it would promptly respond once
the client returned the following week.10 Not hearing back from Staples, Eolas sent another
email on July 14th, inquiring about the stipulation, and not receiving a response, on July 19th,
Eolas notified Staples that it intended to file a motion to compel.11 Staples responded that day,
offering to provide Eolas access to stapleslink.com and eway.com instead of the stipulation12—
the very same discovery Eolas had requested six weeks earlier. It was not until July 22nd—after
Eolas sent another email—that Staples informed Eolas as to the location and manner of the

5

Exhibit 4 (e-mail from Mr. Fasone to Ms. Hutchins (June 16, 2011)).

6

Exhibit 5 (e-mail from Mr. Fasone to Ms. Hutchins (June 22, 2011)).

7

Exhibit 6 (e-mail from Ms. Hutchins to Mr. Fasone (June 22, 2011)).

8

Exhibit 7 (e-mails from Mr. Fasone to Ms. Hutchins (June 23, 24, 26, 2011)).

9

Exhibit 8 (e-mails from Mr. Fasone (July 5, 8, 2011)).

10

Id. (e-mail from Mr. Matuschak (July 8, 2011)).

11

Exhibit 9 (e-mails from Mr. Fasone (July 14, 19, 2011)).

12

Exhibit 10 (letter from Mr. Matuschak to Mr. Budwin (July 19, 2011) (forwarded by Mr.
Williams to Mr. Fasone (July 19, 2011))).
2
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inspection of the websites.13 Rather than provide Eolas log-in information for the two passwordprotected websites, Staples required Eolas’ expert to review the websites on a computer in the
offices of its counsel in Boston.14 Thus, on July 27th and 28th, Eolas’ expert conducted an
inspection of stapleslink.com and eway.com in the Boston offices of its counsel. Eolas’ expert
was only allowed access to the websites on stripped-down computer systems provided by
Staples’ counsel. Accordingly, tools that were required to conduct a complete and thorough
inspection of the websites were missing from the computer systems.

Given the need to

expeditiously provide infringement contentions for those websites, however, Eolas’ expert
worked within those limitations.
During the first day of the inspection, Eolas’ expert printed materials from those websites
and requested that they be provided to Eolas by that Friday, July 29, 2011.

Despite the

Protective Order in this case, which provides for such productions within two business days,15
only after Eolas sent an email on August 5th (to which no response was received) and August 8th
regarding the production of those printouts did Staples produce such documents.16

Eolas’

experts then drafted infringement contentions for those two websites, which Eolas provided in an
August 16th email to Staples explaining Eolas’ intent to add those two websites as accused
products in this litigation and seeking a determination as to whether Staples would oppose its
motion for leave to amend its infringement contentions.17

Receiving no response, Eolas

13

Exhibit 11 (e-mail from Mr. Williams to Mr. Fasone (July 22, 2011)).

14

Id.
Dkt. 423, §13(b)(v) (Protective Order).

15
16

Exhibit 12 (e-mails from Ms. Curran (August 5, 8, 2011)) (e-mail from Mr. Hardt (August 8,
2011)).

17

Exhibit 13 (e-mail from Mr. Fasone (August 16, 2011)).
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followed up with an email on August 17th.18 On August 18th, Eolas sent another email, attaching
the infringement contentions for stapleslink.com and eway.com.19 Hearing nothing from Staples,
Eolas sent an email on August 20th, providing a list of issues to address during the parties’ Local
Rule CV-7 meet and confer—including Eolas’ motion for leave to supplement its infringement
contentions.20 During the August 22nd meet and confer, Staples indicated it would not oppose
Eolas’ motion if Eolas agreed to limit the damages discovery Eolas sought. That evening, Eolas
provided a list of proposed damages discovery.21 The following evening, following a request by
Eolas for a response to Eolas’ damages discovery list, Staples provided a counter-proposal, to
which Eolas agreed.22 Eolas motion for leave was filed on August 24th (Doc. No. 933), granted
on August 25th (Doc. No. 939), and Eolas served its infringement contentions on August 25th.
On August 26th, Staples inquired as to when Eolas would be serving its supplemental
expert reports addressing stapleslink.com and eway.com.23

Eolas responded on August

26th 24and twice on 30th 25 requesting access to the websites so that Eolas’ experts could complete
the supplementation to their expert reports. On September 2nd, Staples refused further access to
its websites.26 Staples’ counsel equated Eolas’ agreement to Staples’ revised list of damages
18

Id. (e-mail from Mr. Fasone (August 17, 2011)).

19

Exhibit 14 (e-mail from Mr. Fasone (August 18, 2011)).

20

Exhibit 15 (e-mail from Mr. Fasone (August 20, 2011)).

21

Exhibit 16 (e-mail from Mr. Fasone (August 22, 2011)); Exhibit 17 (list of proposed damages
discovery).

22

Exhibit 18 (e-mail from Mr. Matuschak (August 23, 2011)); Exhibit 19 (list of counterproposed damages discovery).
23

Exhibit 20 (e-mail from Mr. Williams (August 26, 2011 4:32 PM)).

24

Id. (e-mail from Ms. Curran (August 26, 2011 4:40 PM)).

25

Id. (e-mails from Ms. Curran (August 30, 2011)).

26

Exhibit 21 (e-mail from J. Hardt (September 2, 2011)).
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discovery to Eolas having forfeited any right to obtain further access to the accused websites in
order to complete the supplementations of its infringement and damages expert reports.27 Staples
then equated the information and detail required for infringement contentions with that which is
necessary to establish infringement in an expert report, stating that Eolas already had access to
the websites, printed more than 100 pages from them, amended its infringement contentions,
and, therefore, has “all of the information it claims to need to assert that these websites infringe
Eolas’ patents.”28

Staples contended that Eolas’ “request for further review seems plainly

designed merely to harass Staples, change the parties’ agreement, and not for any legitimate
purpose.”29 Thus, Staples refused Eolas’ request to access the accused websites.
When Eolas sought to schedule a meet and confer on the issue,30 Staples refused to
schedule a meet and confer until Eolas “fully respond[ed] to [Staples’] e-mail.”31 Staples stated
that it wanted “an explanation why your team now needs more review given its claims to already
have sufficient information to determine that these websites infringe and given the parties’
preexisting agreement.”32 Explaining that “[t]here was no such agreement that Eolas would not
need further access to the accused websites to draft expert reports for infringement and
damages”, and recognizing that further access to the websites on the stripped-down computer
systems that lacked necessary tools would be insufficient to complete its expert reports, Eolas
stated that it “merely seeks log-in codes for these publicly available websites that can easily be

27

Id..

28

Id.

29

Id.

30

Id. (e-mail from Ms. Curran (September 2, 2011 11:40 AM)).

31

Id. (e-mail from Mr. Hardt (September 2, 2011 12:46 PM)).

32

Id.
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sent in an email without delay.”33 Eolas explained that “[i]f Staples is refusing to provide such
log-in codes for the accused websites, please provide what times on Tuesday, September 6th
Staples’ local/lead counsel are available for an L.R. 7 meet and confer.”34
In an email sent by Staples’ counsel, Eolas caught a glimpse behind the curtain, and the
text of the email, while brief, speaks volumes:
We’re not sending them log in codes. I can do the call next Friday.35
That email further evidences the gamesmanship (as is shown in detail above by Staples’
continued delay tactics and unreasonable positions) and failure to even consider Eolas’ position
and rationale for seeking log-in information to access to the websites.
The parties conducted a Local Rule CV-7 meet and confer on September 8th. During the
meet and confer, counsel for Staples articulated no burden and cost associated with providing
Eolas log-in information for stapleslink.com and eway.com. Instead, counsel for Staples stated
that it could not provide log-in information to Eolas because of the inability to maintain the
confidentiality of Staples’ information, and it would be tantamount to placing Eolas in a roomful
of confidential Staples’ documents. Yet, all businesses that sign up for access to the websites
obtain unfettered access to the websites; the Protective Order in this case protects the
confidentiality of Staples’ information; and Eolas’ counsel agreed such log-in information would
be treated as highly confidential, and—despite the fact that any business that signs up for access
to the websites is able to view and print pages without restrictions—Eolas agreed to work with
Staples to create a confidentiality agreement specific to accessing those websites and printing
pages from those websites. During the meet and confer, Staples counsel continued to refuse
33

Id. (e-mail from Ms. Curran (September 2, 2011 2:34 PM)).

34

Id.

35

Id. (e-mail from Mr. Matuschak (September 2, 2011 2:00 PM)).
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Eolas’ request for log-in information; but, it asked that Eolas wait to file its motion to determine
whether its client would agree to provide the log-in information.
Later in the day on September 8th, Eolas received an email from Staples’ counsel asking
that Eolas continue to wait to file its motion to allow Staples’ counsel to determine its client’s
position on supplying log-in information for the websites so long as Eolas agrees to “treating any
printouts from the websites as highly confidential under the Protective Order.”36 In its email,
Staples’ counsel also stated “[i]n the meantime, one other possible compromise is that we
provide additional access under the same conditions on which we’ve previously provided access,
but in a city convenient to your counsel or experts.”37

As provided in detail above, the

“conditions on which [Staples] previously provided access” was clearly unacceptable; thus, in
response to the email from Staples’ counsel, Eolas’ counsel stated that “[a]ccess ‘under the same
conditions on which [Staples] previously provided access’ is an unacceptable alternative to login information for the reasons set forth in the meet and confer this afternoon.”38 With respect to
delaying the filing of its Motion to Compel, and in light of the delay that has plagued Eolas’
litigation with Staples, Eolas explained that it would wait until 12:00 CST the following day to
file and that it would not file its Motion to Compel contingent on Staples agreeing “to provide
log-in information for stapleslink.com and eway.com by 9 AM CST Monday, September 12 and
actually providing log-in information by 9 AM CST Monday, September 12. Such a contingency
is necessary, given how long it took Staples to provide access to its analytics systems, even after
it was ordered by the Court.”39 40 Staples’ counsel did not respond to Eolas’ statement regarding
36

Exhibit 21 (e-mail from Ms. Hutchins (September 8, 2011 4:37 PM)).

37

Id.

38

Id.

39

Id. (e-mail from Ms. Curran (September 8, 2011 5:52 PM)).
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the production of the log-in information by a date-certain. Instead, it focused on the rejection of
Staples’ “alternative compromise” and asked Eolas to articulate the reasons for finding Staples’
alternative compromise unacceptable.41 Eolas responded, stating that it was “unreasonable to
place any logistical burden on Eolas to inspect the accused products to prepare its case given that
many (hundreds? thousands?) of companies have the same access to the accused websites that
Eolas is seeking.”42 Eolas also explained that it was “wholly unreasonable to require Eolas to
travel to Boston to access these sites to generate the infringement contentions, particularly given
that Staples represented these sites did not use the accused features. We hope Staples will
consider reimbursing Eolas for this unnecessary expense.”43
The 12:00 PM CST deadline that Eolas provided to Staples’ counsel passed, necessitating
the filing of this Motion to Compel.

40

On June 30, 2011, this Court ordered Staples to provide Eolas access to its web analytics data.
Dkt. 743. Eolas contacted Staples, along with other Defendants on June 30, 2011 to discuss
modifications to discovery schedules, as well as to obtain prompt access to these web analytics
systems. Exhibit 22 (e-mail from Mr. Budwin to defense counsel (June 30, 2011)). Eolas
followed up on July 1st, seeking the identity of a witness and proposed dates for the web
analytics deposition. Id. (e-mail from Mr. Fasone (July 1, 2011)). For nearly a month, Eolas
received no response from Staples, despite four separate requests between July 1st and July 23rd,
that it provide a witness and access to Staples web metrics systems. Id. (e-mail from Mr. Fasone
(July 7, 2011)), (email from Mr. Fasone (July 12, 2011)), (e-mail from Mr. Fasone (July 21,
2011)), Exhibit 23 (e-mail from Mr. Fasone (July 23, 2011)). Without responding substantively
to Eolas’ requests, on July 26th, Staples agreed to participate in a Local Rule CV-7 meet and
confer, to take place on July 28th—four weeks after the Court ordered Staples to provide access.
Exhibit 24 (e-mail from Ms. Hutchins (July 26, 2011 9:44 AM)). On the day before the
scheduled meet and confer, Staples responded substantively, agreeing to provide Eolas access to
its web metrics data in the offices of its legal counsel in Boston, Massachusetts: “Staples is now
able to offer web analytics access on a secure computer in Wilmer’s Boston office. The review
can commence tomorrow morning at 9:00 am, or any day thereafter.” Exhibit 25 (e-mail from
Mr. Hardt (July 27, 2011 1:55 PM)).
41

Exhibit 21 (e-mail from Ms. Hutchins (September 8, 2011 5:09 PM)).

42

Id. (e-mail from J. Campbell (September 8, 2011 6:41 PM)).

43

Id.
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II.

ARGUMENT
Federal Rule of Civil Procedure 26(b)(1) allows Eolas to obtain “discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense” and provides that “[f]or
good cause, the court may order discovery of any matter relevant to the subject matter involved
in the action.” The Local Rules state that “relevant to the claim or defense” includes information
“that would not support the disclosing parties’ contentions[,]” “information that deserves to be
considered in the preparation, evaluation or trial of a claim or defense[,]” and “information that
reasonable and competent counsel would consider reasonably necessary to prepare, evaluate or
try a claim or defense.” L.R. CV-26(d). Relevant information need not be admissible at trial if
the discovery appears to be reasonably calculated to lead to the discovery of admissible
evidence. FED. R. CIV. P. 26(b). Eolas has the burden of proof regarding both infringement and
damages.
A.

The Parties Did Not Agree to “a Universe of Documents It Needed Related to
Those Amended Contentions” for stapleslink.com and eway.com.

Staples argues that it “explicitly agreed it would not object to Eolas amending its
infringement contentions if and only if Eolas would agree on a universe of documents it needed
related to those amended contentions.”44 Accordingly, Staples contends that Eolas’ request for
log-in information for stapleslink.com and eway.com is in breach of that agreement. Staples’
argument, however, is belied by the correspondence of the parties.
On August 22nd, Eolas sent an email “attach[ing] a list of the damages discovery Eolas
seeks for the B2B sites stapleslink.com and eway.com, which is being provided pursuant to
Staples’ request during today’s LR7 on Eolas’ MFL to add the B2B sites.”45 Staples responded

44

Id. (e-mail from Mr. Hardt (September 2, 2011 12:46 PM) (emphasis in original)).

45

Exhibit 16 (e-mail from Mr. Fasone (August 22, 2011)).
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on August 23rd, stating “[w]e thought the original draft of damages-type discovery for stapleslink and eway were too broad and essentially covered almost every conceivable document about
those products. In the spirit of cooperation, however, we’ve made some edits to your list and, if
those are acceptable to you, Staples will not oppose your motion to add accused features on
staples-link and eway.46 Moreover, the original and revised lists bear the following heading:
“STAPLESLINK.COM AND EWAY.COM DAMAGES DISCOVERY REQUEST”.47
The foregoing correspondence establishes that the parties had agreed to a universe of
documents that Staples was required to produce related to damages. Thus, the parties’ agreement
was not regarding “a universe of documents [Eolas] needed related to those amended
contentions”, and it certainly had no bearing on whether Eolas’ experts required additional
access to stapleslink.com and eway.com.
B.

The Level of Detail Required to Make Out a Prima Facie Case of
Infringement and Provide Proof of Such Infringement in an Expert Report
Exceeds What Is Required to Put a Defendant on Notice of a Patentee’s
Infringement Contentions.

According to Staples, “given that [Eolas’] expert already reviewed the sites, printed more
than 100 pages from them, and, thereafter Eolas amended its infringement contentions, it is
apparent that Eolas already has all of the information it claims to need to assert that these
websites infringe Eolas’ patents.”48 Thus, argues Staples, Eolas’ “request for further review
seems plainly designed merely to harass Staples, change the parties’ agreement, and not for any
legitimate purpose.”49 Such an argument—information that is sufficient to put a defendant on

46

Exhibit 18 (e-mail from Mr. Matuschak (August 23, 2011)).

47

Exhibit 17 (list of proposed damages discovery); Exhibit 19 (list of counter-proposed damages
discovery).

48

Exhibit 21 (email from Mr. Hardt (September 2, 2011 9:40 AM)).

49

Id.
10

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notice of a party’s infringement contentions provides the same level of detail required to make
out a prima facie case of infringement and provide proof of such infringement in an expert report
—finds no support in relevant case law, the Patent Rules, or the Federal Rules of Civil
Procedure.
Recently, in Fenner Invs., Ltd. v. Hewlett-Packard Co., No. 6:08-CV-273, 2010 U.S.
Dist. LEXIS 17536 (E.D. Tex. Feb. 26, 2010), the Court distinguished between the level of detail
required for infringement contentions and that for expert reports. The Court acknowledged the
need for the patentee to provide as much detail as possible in its contentions to put the defendant
on notice of the patentee’s theories of infringement. Id. at *7. But, as the Court held, “[t]he
scope of infringement contentions and expert reports are not, however, coextensive.
Infringement contentions need not disclose ‘specific evidence nor do they require a plaintiff to
prove its infringement case,’ whereas expert reports must include a complete statement of the
expert’s opinions, the basis and reasons for them, and any data or other information considered
when forming them.” Id. (quoting EON Corp. IP Holdings, LLC v. Sensus USA Inc., No. 6:09cv-116, 2010 U.S. Dist. LEXIS 4973, 2010 WL 346218, *2 (E.D. Tex. Jan. 21, 2010); citing
FED. R. CIV. P. 26(a)(2)(B).
In EON Corp. IP Holdings, LLC v. Sensus USA Inc., No. 6:09-cv-116, 2010 U.S. Dist.
LEXIS 4973 (E.D. Tex. Jan. 21, 2010), the Court acknowledged that “[p]roper infringement
contentions provide a defendant with notice of a plaintiff's infringement theories.” Id. at *8
(citing Linex Techs., Inc. v. Belkin Int’l, Inc., 628 F. Supp. 2d 703, 706 (E.D. Tex. 2008)
(“enough specificity is required to give an alleged infringer notice of the patentee’s claims”)).
However, “[t]he Rules do not require the disclosure of specific evidence nor do they require a
plaintiff to prove its infringement case.” Id. at *8-9 (citing Realtime Data, LLC v. Packeteer,

11
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Inc., No. 6:08-cv-144, 2009 U.S. Dist. LEXIS 73217, at *5 (E.D. Tex. Aug. 18, 2009)
(“Infringement contentions are not intended to require a party to set forth a prima facie case of
infringement and evidence in support thereof”); Balsam Coffee Solutions Inc. v. Folgers Coffee
Co., No. 6:09-cv-089, 2009 U.S. Dist. LEXIS 114794, at *3 n.2 (E.D. Tex. Dec. 9, 2009) (“P.R.
3-1 does not require the disclosure of evidence and documents supporting infringement
contentions”).

It is within the expert report that the patentee supports its allegations of

infringement with evidence cited therein.
Eolas’ inspection of the stapleslink.com and eway.com websites during the two-day
period afforded Eolas’ experts was sufficient in order to set forth sufficient detail for its
infringement contentions. However, in order to put forth a prima facie case of infringement and
provide evidence in support thereof in the supplemental expert reports, Eolas’ experts necessarily
require additional access to stapleslink.com and eway.com. Any assertion by Staples’ counsel
that Eolas does not need log-in information to access stapleslink.com and eway.com because it
has “all of the information it claims to need to assert that these websites infringe Eolas’ patents”,
by virtue of the fact that it had enough information to draft its infringement contentions flies in
the face of relevant case law, the Patent Rules, and Federal Rules of Civil Procedure.
Moreover, Staples’ refusal to provide Eolas log-in information due to “confidentiality”
concerns does not comport with the fact that (i) businesses that sign up for access to
stapleslink.com and eway.com have unfettered access to those websites; (ii) the Protective Order
in this case protects Staples’ confidential information, and Eolas has indicated its willingness to
agree to additional provisions for access to and printing of pages from the websites; and (iii) the
fact that Staples has not articulated the burden or cost associated with providing Eolas such login information.

12
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III.

CONCLUSION
In light of the foregoing, Eolas respectfully requests that the Court grant its Motion to

Compel, requiring Staples to provide Eolas log-in information for stapleslink.com and eway.com
within 3 days of the Court’s Order.
DATED: September 9, 2011

Respectfully submitted,
McKOOL SMITH P.C.
By:

/s/ Mike McKool

Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
John B. Campbell
Texas State Bar No. 24036314
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Curran
Texas State Bar No. 24055979
gcurran @mckoolsmith.com
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]
ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES INC.

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CERTIFICATE OF CONFERENCE
The undersigned certifies that the parties have complied with Local Rule CV-7(h)’s meetand-confer requirement on September 8, 2011. During the meet and confer, counsel for Staples
articulated no burden and cost associated with providing Eolas log-in information for
stapleslink.com and eway.com. Instead, counsel for Staples stated that it could not provide login information to Eolas because of the inability to maintain the confidentiality of Staples’
information, and it would be tantamount to placing Eolas in a roomful of confidential Staples’
documents. Yet, all businesses that sign up for access to the websites obtain unfettered access to
the websites; the Protective Order in this case protects the confidentiality of Staples’
information; and Eolas’ counsel agreed such log-in information would be treated as highly
confidential and, despite the fact that any business that signs up for access to the websites is able
to view and print pages without restrictions, Eolas agreed to work with Staples to create a
confidentiality agreement specific to accessing those websites and printing pages from those
websites.

Staples continued to refuse Eolas’ request for log-in information.

Thus, the

discussions ended conclusively in an impasse, leaving an open issue for the Court to resolve.
/s/ Gretchen K. Curran
Gretchen K. Curran

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic services on September 9, 2011. Local Rule CV-5(a)(3)(A).

/s/ Gretchen K. Curran
Gretchen K. Curran
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