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)

EXHIBIT 11

Holly E. Engelmann
From:

Sent:
To:

Cc:
Subject:

Williams, Daniel V. [[e-mail]

Friday, July 22, 2011 9:46 AM

Tom Fasone III

Hutchins, Kate; [e-mail]; John B. Campbell: Josh Budwin; Hardt,

Jonathan; Steinberg, Don; Ewenstein, Richard I; Eolas; Bob Kramer; Matt Rappaport; Kevin
Burgess: Matuschak, Mark
RE: EolaslStaples: Stipulation Regarding Business to Business Websites and Features

Torn,

Staples will provide a secure computer at WilmerHale's offices with access to StaplesLink.com and Eway.com.

There will be a printer available for any pages Eolas deems relevant and we will provide Eolas a Bates labeled

copy of the production. The secure computer can be ready for your review any time next week.

Regards,

Dan

-----Original Message----­
From: Tom Fasone III [mailto:[e-mail]]

Sent: Thursday, July 21, 2011 3:03 PM

To: Williams, Daniel V.

Cc: Hutchins, Kate; [e-mail]; John B. Campbell; Josh Budwin; Hardt, Jonathan; Steinberg,

Don; Ewenstein, Richard I; Eolas; Bob Kramer; Matt Rappaport; Kevin Burgess; Matuschak, Mark

Subject: RE: Eolas/Slaples: Stipulation Regarding Business to Business Websites and Features

Dan

We again attempted to reach you via telephone this afternoon to discuss

Eolas' longstanding request for access to Staples' business to business

websites and were directed to your voicemai1. Should you not be the

point of contact on this issue, then please direct us to that person so

that we may reach out to them. In any event, Eolas asks that Staples'

provide the information promised in your letter of July 19 to Josh

Budwin without further delay.

Thank you.

Regards,

Tom

-----Original Message----­

From: Torn Fasone III

Sent: Wednesday, July 20, 2011 4:21 PM

To: Williams, Daniel V.

Cc: Hutchins, Kate; [e-mail]; John B. Campbell; Josh

Budwin; Hardt, Jonathan; Steinberg, Don; Ewenstein, Richard I; Eolas;

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Bob Kramer; Matt Rappaport; Kevin Burgess; Matuschak, Mark
Subject: RE: Eolas/Staples: Stipulation Regarding Business to Business
Websites and Features

Dan
We just tried to reach you via telephone concerning this matter and were
directed to your voicemail. Please listen to your voicemail message and
provide a response to our inquiry.
Thank you.
Regards,
Tom
-----Original Message----­
From: Tom Fasone III
Sent: Tuesday, July 19,2011 9:09 PM
To: Williams, Daniel V.
Cc: Hutchins, Kate; [e-mail]; John B. Campbell; Josh
Budwin; Hardt, Jonathan; Steinberg, Don; Ewenstein, Richard I; Eolas;
Bob Kramer; Matt Rappaport: Kevin Burgess; Matuschak, Mark
Subject: RE: Eolas!Staples: Stipulation Regarding Business to Business
Websites and Features

Daniel
Thank you for your letter of today advising Eolas that Staples will
provide the required passcodes to Eolas so that it may assess the
business to business websites and their features.
Eolas is very disappointed by the manner in which Staples chose to
handle this issue, which as we previously advised, has substantially
delayed Eolas' efforts to pursue discovery of these potentially
infringing websites owned and operated by Staples, Inc. As you know,
Eolas began to seek access to these business to business websites since
at least as early as June 7,2011, but was met with resistance by
Staples which culminated in a LR Conference and a promise by Staples to
provide a stipulation stating that these websites do not make use of the
accused features/functionality at issue in this case. Yet, after the
passage of three weeks and numerous communications to Staples' counsel
since the LR 7 conference requesting the promised stipUlation, including
a request made earlier today indicating that Eolas was planning to raise
this matter with the Court in light of the rapidly approaching fact
discovery and expert deadlines in this case, Eolas receives a terse
letter from Staples' counsel indicating that it now agrees to provide
the required passwords to access the websites at issue. Given the
toregoing, Eolas asks that its request for access not be delayed any
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further and, thus, expects that Staples will provide the required
passwords expeditiously.
Please know that to the extent Eolas diseovers that the websites at
issue do in fact infringe the patent claims in this lawsuit, it will be
necessary for Eolas to supplement its expert submissions to address any
such infringing features and would ask that Staples agree that any such
supplementation may occur no less than three weeks atier Eolas has been
provided with the promised access.

Best,
Tom

From: Williams, Daniel Y. [[e-mail]]
Sent: Tuesday, July 19,20114:14 PM
To: Tom Fasone III; Matuschak, Mark
Cc: Hutchins, Kate; [e-mail]; John B. Campbell; Josh
Budwin; Hardt, Jonathan; Steinberg. Don; Ewenstein, Richard I; Eolas;
Bob Kramer; Matt Rappaport; Kevin Burgess
Subject: RE: Eolas/Staples: Stipulation Regarding Business to Business
Websites and Features
Tom,
Please see the attached letter.
Regards,
Dan
-----Original Message----­
From: Tom Fasone III [mailto:[e-mail]]
Sent: Tuesday, July 19,201) 3:30 P:Vj
To: Matuschak, Mark
Cc: Hutchins, Kate; [e-mail]; Williams, Daniel Y.; John
B. Campbell; Josh Budwin; Hardt, Jonathan; Steinberg. Don; Ewenstein,
Richard 1; Eolas; Bob Kramer; Matt Rappaport; Kevin Burgess
Subject: RE; Eolas/Staples: Stipulation Regarding Business to Business
Websites and Features

Mark
Eolas is not onry perplexed but quite frustrated that it has yet to
receive Staples' proposed stipulation on its business to business
web sites and their features, which Staples' eounsel promised to provide
during the parties' LR 7 conference on June 30 -- which occurred just two
(2) days shy of three (3) weeks ago.
.
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As a participant in the LR 7 conference, you know tirst hand that Eolas
requested the conference so that it could tile a motion with the Court
in order to gain access to Staples' business to business websites to
assess the extent to which they may make use of the accused
features/functionality at issue in this litigation because Staples
otherwise refused to provide the requested access (which involves
nothing more than a password/user i.d.). Based on Staples' counsels'
oral representations that Staples' business to business websites do not
make use of any ofthe accused features/functionality and a promise to
provide a stipulation reflecting same during the LR 7 con terence, Eolas
agreed not to seek the Court's intervention to obtain discovery of these
websites. However, Staples' continued delay in providing the promised
stipulation -- for nearly three (3) weeks now -- has unreasonably
hindered Eolas' efforts to obtain discovery on these possibly infnnging
websites. With the fact discovery deadline looming (August 12), Eo\as
is not in a position to wait any longer.
Please provide the promised stipulation or provide the reason(s) why
Staples is unable to enter into the promised stipUlation and please do
so by no later than the close of business (6 PM CT) on Friday. July 22.

Please know that the LR 7 conference requirements on this issue were met
on June 30 and, thus, should we not hear from you by thc requested time,
Eolas will file with the Court a motion to compel access to Staples'
business to business websites and request expedited consideration of
same.
Best,
Tom

From: Tom Fasone III
Sent: Thursday, July 14, 2011 12:58 PM
To: Matuschak, Mark
Cc: Hutchins, Kate; [e-mail]; Williams, Daniel V.; John
B. Campbell; Josh Budwin; Hardt, Jonathan; Steinberg, Don; Ewenstein,
Richard I; Eolas; Bob Kramer; Matt Rappaport; Kevin Burgess
Subject: RE: Eolas/Staples: Stipulation Regarding Business to Business
Websites and Fcatmes
Mark
As the fact discovery deadline in this case is less than one month away,
please let us know fhe status of Staples' efforts to prepare the
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stipulation promised during the parties' June 30 LR7 meet and confer.
Thank you.
Tom
From: Matuschak, Mark [[e-mail]]
Sent: Friday, July 08, 20 II 10:43 AM
To: Tom Fasone III
Cc: Hutchins, Kate; [e-mail]; Williams, Daniel Y.; John
B. Campbell; Josh Budwin; Hardt, Jonathan; Steinberg, Don; Ewenstein,
Richard I; Eolas; Bob Kramer; Matt Rappaport
Subject: RE: Eolas/Staples: Stipulation Regarding Business to Business
Websites and Features
Hi Tom-

We didn't promise any specific date but said we hoped to have something
this week but given the holiday we weren't certain about that. As it
turns out, our client is on vacation this week, which I didn't know at
the time of the conference. We'll be back to you on this promptly once
he returns next week,
Regards,
Mark
-----Orif,>inaJ Mcssage----­
From: Tom Fasone III [mailto:[e-mail]]
Sent: Friday, July 08,2011 II :41 AM
To: Matuschak, Mark
Cc: Hutchins, Kate; MRichardson@brsfirm,com: Williams, Daniel y,; John
B. Campbell; Josh Budwin; Hardt, Jonathan; Steinberg, Don; Ewenstein,
Richard I; Eolas; Bob Kramer; \1att Rappaport
Subject: RE: Eolas!Staples: Stipulation Regarding Business to Business
Websites and Features

Mark
I understand from our team members who participated in the LR 7
conference on June 28, wherein Staples promised to provide a stipulation
on its business to business websites and their features, that you
indicated that Staples would provide the proposed stipulation at the
beginning of this week. Today is Friday and Eolas has yet to receive
the proposed stipulation from your client. Given the potential impact
that this stipulation may have on EoJas' prosecution of its case against
Staples within the current deadlines in this litigation, it is
imperative that Eolas receive the promised proposed stipulation without
further delay.
Please advise.
5

Tom
-----Original Message----­
From: Tom Fasone III
Sent: Tuesday, July 05,20 II 8:54 PM
To: Tom Fasone III
Cc: [e-mail]; [e-mail]; Matuschak,
Mark; John B. Campbell; Josh Budwin
Subject: Re: EolasiStaples: Stipulation Regarding Business to Business
Websites and Features
ERRATA: Tuesday's LR7 conference
Tom

On Jul 5, 2011, at 3:52 PM, "Tom Fasone Ill" <[e-mail]>
wrote:

>
> Kate, Mark, and Michael
>
> I write to follow up on the parties' LR7 conference last Thursday,

June 30.

>
> Eola~ would very much appreciate it if Staples could provide its

proposed stipulation for addressing the business to business websites
and their features by no later than the close of business on Thursday,
July 7. Given that fact discovery closes on August 12, Eolas needs
ample time in advance of the deadline to consider the proposed
stipulation to make sure that it adequately addresses its concerns.
>
> Thank you for your attention to this matter.
>

> Best,
>
> Tom

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