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 22

Page 1 of 3
Gretchen Curran
From:

Tom Fasone III

Sent:

Thursday, July 21, 2011 3:07 PM

To:

[e-mail]; [e-mail]

Cc:

Hardt, Jonathan; Matuschak, Mark; Eolas; Williams, Daniel V.; Steinberg, Don; John B. Campbell; Josh
Budwin; Matt Rappaport; Bob Kramer; Don Gaiser; Melanie Clemmons; Jodi Godfrey; Stefano Milito; Holly E.
Engelmann; Lindsay Martin; [e-mail]

Subject: RE: Eolas/Staples: Metrics/Web Analytics Discovery

Kate and Michael
It has been over three (3) weeks since Judge Davis ruled from the bench that Staples
must provide Eolas with access to its metrics/web analytics databases pursuant to
Eolas' motion to compel metrics related discovery. Yet, to date, Staples has failed to
propose a date and location for the court ordered inspection. As you know, Eolas must
coordinate the schedules of the individuals on its team that will attend the inspection
and, thus, Staples' failure to comply with the June 30 Order is also
hindering Eolas' efforts to do so.
Given the significance of this discovery to Eolas' claims for infringement and
damages against your client and the necessity of Eolas' experts having access to this
information so that they may prepare and serve their expert submissions within
the current schedule in this case, Eolas is not in a position to accomodate any further
delays by your client in this regard. Please know that should Staples not provide a
proposed date and location for the requested inspection of its metrics/web
analytics databases by the close of business (6 p.m. CT) tomorrow, Friday, July 22, that
Eolas will file a motion to enforce the Court's June 30 Order, seek attorneys' fees and
costs associated with having to file its motion, and will request that the Court consider
its request for relief on an expedited basis.
Regards,
Tom
-----Original Message----From: Tom Fasone III
Sent: Tuesday, July 12, 2011 7:48 PM
To: [e-mail]; [e-mail]
Cc: Hardt, Jonathan; Matuschak, Mark; Eolas; Williams, Daniel V.; Steinberg, Don; John
B. Campbell; Josh Budwin; Matt Rappaport; Bob Kramer; Don Gaiser; Melanie
Clemmons; Jodi Godfrey; Stefano Milito; Holly E. Engelmann; Lindsay Martin;
[e-mail]
Subject: RE: Eolas/Staples: Metrics/Web Analytics Discovery
Kate and Michael
Tomorrow will mark two (2) weeks since Staples advised Judge Davis in open court that
it would abide by his ruling on Eolas' Motion to Compel Metrics/Analytics Discovery, yet
Staples has failed to identify a witness and propose a date for the inspection of its
metrics/web analytics databases.

9/9/2011

Page 2 of 3

Given the rapidly approaching fact discovery and expert submission deadlines and the trial date in
this matter, Eolas asks that Staples comply with Judge Davis's ruling without further delay. Please
know that should Staples continue to delay in providing this crucial discovery, that Eolas will be forced
to file a motion to enforce Judge Davis's June 30 Order against Staples.
We look forward to your prompt attention to this matter.
Best,
Tom
________________________________________
From: Tom Fasone III
Sent: Thursday, July 07, 2011 1:40 PM
To: richard.ewenstein@wilmerhale; [e-mail]; [e-mail]
Cc: Hardt, Jonathan; Matuschak, Mark; Eolas; Williams, Daniel V.; Steinberg, Don; John B. Campbell;
Josh Budwin; Matt Rappaport; Bob Kramer; Don Gaiser; Melanie Clemmons; Jodi Godfrey; Stefano
Milito; Holly E. Engelmann; Lindsay Martin
Subject: RE: Eolas/Staples: Web Analytics/Metrics Deposition
Kate, Rich, and Michael
Please advise as to your efforts to identify and secure a witness pursuant to Judge Davis' June 29
Order.
Thanks.
Tom
-----Original Message----From: Tom Fasone III
Sent: Friday, July 01, 2011 6:59 AM
To: richard.ewenstein@wilmerhale; [e-mail]; [e-mail]
Cc: Hardt, Jonathan; Matuschak, Mark; Eolas; Williams, Daniel V.; Steinberg, Don; John B. Campbell;
Josh Budwin; Matt Rappaport; Bob Kramer
Subject: Eolas/Staples: Web Analytics/Metrics Deposition
Kate, Rich, and Mark
Further to Josh Budwin's email below and Judge Davis' ruling at the June 29 discovery hearing,
please provide the identity of a witness, a proposed date, and the location of Staples' deposition on
web analytics/metrics as soon as possible. Eolas would like to complete this deposition by no later
than July 15, 2011, given its impact on Eolas' ability to complete its expert submissions in this case.
Obviously, in light of Judge Davis' ruling, this witness should be intimately familiar with Staples' web
analytics abilities and any web analytics that it relies on that are provided by third parties (such as
Coremetrics and Omniture). A 30(b)(6) type witness with superficial knowledge of web
analytics/metrics (such as was the case with Adam Candela and Karyn King) will not be sufficient in
this regard.
We look forward to hearing from you.

9/9/2011

Page 3 of 3

Warm regards,
Tom
________________________________________
From: Josh Budwin
Sent: Thursday, June 30, 2011 6:38 PM
To: Eolas Defendants
Cc: Eolas
Subject: Eolas -- email correspondence to all counsel regarding scheduling issues
Counsel:
In light of the Court's Order that the parties meet and confer regarding the docket control order and
submit an agreed amended docket control order reflecting any deadlines that need to be modified in
light of its rulings of June 29, 2011 (dkt. 743), Eolas would like to schedule a call to discuss amending
the deadline for the submission of its damages expert reports. Eolas proposes resetting the deadline
for its damages expert reports to three weeks after the completion of the damages 30(b)(6)
depositions (i.e. the March 24th Notice) and the web analytics inspection of the defendants. Eolas
requests defendants collectively propose a time for a call to discuss amending the Docket Control
Order with respect to the due date of Eolas’ damages expert reports. We are generally available
tomorrow or Tuesday July 5th.
Furthermore, Eolas would like to work with defendants in promptly obtaining access to each
defendant’s web analytics system. Please provide the first availability for such access, specifying the
location of the same.
We look forward to hearing from defendants in regard to both of these items.
Thank you.
Josh Budwin
McKool Smith
Suite 1700
300 West 6th Street
Austin, TX 78701
Direct: 512.692.8727
Mobile: [phone]
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9/9/2011