Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 1 of 93 PageID #: 1316
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`Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 2 of 93 PageID #: 1317
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
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`CIVIL ACTION
`
`AFLUO, LLC,
` Plaintiff,
` vs.
`ADOBE SYSTEMS INC.; AKAMAI
`TECHNOLOGIES, INC.; AND
`LEVEL 3 COMMUNICATIONS,
`LLC,
`NO. 12-1459 (SLR)
` Defendants.
`
`
`
` - - -
`
` Wilmington, Delaware
` Tuesday, November 5, 2013
` 4:21 o'clock, p.m.
`
` - - -
`BEFORE: HONORABLE SUE L. ROBINSON, U.S.D.C.J.
` - - -
`APPEARANCES:
` FARNAN LLP
` BY: BRIAN E. FARNAN, ESQ.
`
`
` -and-
`
`
`::::::::::::
`
` Valerie J. Gunning
` Official Court Reporter
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`1 of 15 sheets
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`11/06/2013 11:50:40 AM
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`Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 3 of 93 PageID #: 1318
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`APPEARANCES (Continued):
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` SU SMAN GODFREY L.L.P.
`BY: BRIA N D. M ELTON, ESQ. and.
` AUDREY CALKINS, ESQ .
` (Houston, Texas)
`
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` Counsel for Plaintiff
` Afluo, LLC
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: M ARY B. GRAHAM, ESQ .
`
` -and-
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`CHOATE HALL & STEW ART LLP
`BY: CARLOS PEREZ-ALBUERNE, ESQ . and
` M ARGARET E. IV ES, ESQ .
` (Boston, M assachusetts)
`
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` Counsel for D efendant.
` Akam ai Tech nologies, Inc.
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`
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`POTTER, ANDERSON & CORROON LLP
` BY: DAVID E. M OORE, ESQ .
`
` -and-
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` PERKINS COIE, LLP
`BY: JAM ES F. VALENTINE, ESQ.
` (Palo Alto, California)
`
`
` Counsel for D efendants
` Adobe System s Inc. an d
` Level 3 Com m unications, LLC
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`
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`MS. G RAHAM: G ood afternoon, your Honor. M ary
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`G raham on behalf of defendant Akam ai, and w ith m e today from
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`Choate Hall are Carlos Perez and Margaret Ives.
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`THE COURT: Fine. Thank you very m uch.
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`MS. G RAHAM: Thank you.
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`THE COURT: W elcom e all.
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`You are here, so I assum e there are som e things
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`to discuss. Before w e do that, though, I know that you've
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`got som e pending m otions that I w ill get to, the oldest of
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`w h ich is a m otion for leave to file a second Am ended
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`Com plain t. And the opposition to that seem s to be --
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`M R . M ELTON: Your Honor, w e m ay have an
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`agreem ent that helps you out on this.
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`THE COURT: W ell, th at w ould be good, because I
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`w a s trying to figure out how m uch tim e I needed to spend on
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`that.
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`M R . M ELTON: Yes, your Honor. Brian M elton for
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`plaintiff, Afluo.
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`And I think w e 've got an agreem ent on the m otion
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`to am end, w hich is Docket 35. There's a m otion to dism iss,
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`Docket 54, and tw o m otions to strike, D ocket No. 61 and 62
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`is the w ay w e have them .
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`And I think w e 've resolved it, that the
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`defendants w ill w ithdraw their objection for -- to our
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`m otion to am end for our second Am ended Com plaint.
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` P R O C E E D I N G S
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` (Proceedings com m enced in the courtroom ,
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`beginning at 4:21 p.m .)
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` THE COURT: Good afternoon, everyone.
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`(Counsel respond, "Good afternoon, your Honor.")
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`THE COURT: I guess w e should start w ith som e
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`introductions. M r. Farnan?
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`M R . FARNAN: Good afternoon, your Honor.
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`THE COURT: Good afternoon.
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`M R . FARNAN: Brian Farnan on behalf of the
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`plain tiff, an d w ith m e today is Brian M elton an d Audrey
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`Calkins from Susm an Godfrey in Houston, Texas.
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`THE COURT: All right. Thank you very m uch.
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`M R . FARNAN: Thank you.
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`THE COURT: M s. G raham ? M r. M oore?
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`M R . M OORE: G ood afternoon, your Honor.
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`THE COURT: Good afternoon.
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`som ething, that would be helpful, ju st so w e know ho w to
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`THE COURT: All right.
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`M R . M ELTON: And Afluo w ill w ithdraw its
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`objections to, is it Akam ai's m otion to am end its answ er and
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`asserted counterclaim on invalidity, so I believe it m oots
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`the four m otions that I listed off. That agreem ent -- w e'll
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`be filing som ething w ith the Court. This agreem ent w as
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`reached in the last 24 hou rs.
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`THE COURT: All right.
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`M R . PEREZ-ALBUERNE: Your Honor, I think that's
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`right. The m otion, it is a little bit different posture I
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`know that is really m aterial. The net of it is, all of the
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`pending m otions regarding the pleadings I think are all
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`resolved by the agreem ent. Actually, th e m otion to strike
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`our am ended counterclaim .
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`THE COURT: All right.
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`M R . PEREZ-ALBUERNE: And I think th e only other
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`pieces that I think w e w anted to get on the record w as just
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`a part of this. Th ere's an agreem ent that Afluo w ill
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`stipulate that its Amended Complaint, it has am ended to
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`seek, essentially add som e indirect infringem ent claim s.
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`THE COURT: All right.
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`M R . PEREZ-ALBUERNE: And they've agreed to
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`stipulate that those are being alleged only post filing.
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`THE COURT: All right. W ell, if you file
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`And Ms. Graham ?
`11/06/2013 11:50:40 AM
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`M R . M OORE: David Moore from Potter An derson on
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`behalf of Adobe and Level 3. W ith m e from Perkins Coie is
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`Jim V alentine.
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`THE COURT: Fin e. Thank you.
`
`

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`Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 4 of 93 PageID #: 1319
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`resolve them on the record.
`MR. MELTON: Yes, your Honor. We just didn't
`want the Court doing any work while we think we had an
`agreement and we'll file it.
`THE COURT: That's good. I appreciate that.
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`All right.
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`MR. MELTON: Your Honor, the first thing I
`believe we should discuss is the core document production in
`the case.
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`Under the Court's default standard order,
`Paragraph 4B, the core document production, and, in addition
`to that, we've served requests for production.
`To date, Akamai, defendant Akamai has produced
`ten documents totaling 274 pages in the case. Level 3 has
`produced nine documents totaling 109 pages in the case. And
`like I said, the Court's order is clear. Documents related
`to accused products, including, but not limited to,
`operation manuals, product literature, schematics and
`specification. And like I said, we've served requests for
`production. Those were objected to and responded to in
`September. And we've gotten ten documents from one
`defendant, nine from the other. Adobe has done a little bit
`better with 150 documents.
`But, you know, we think -- and I don't think
`they're claiming that they -- well, maybe they are. Maybe
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`products are what's accused.
`With respect to Level 3, they use Adobe
`products, so they have no independent source code. They
`don't have access to Adobe source code. They don't modify
`that source code. They're in this case because they use
`Adobe products.
`Now, what we did produce is some documents to
`substantiate those assertions, to show that there is no
`separate Level 3 accused product. In fact, when the core
`production deadline came, there had not even been a product
`that was listed that was a Level 3 product. So no
`production would have been required.
`But we did try and substantiate exactly what
`we're telling them. And we believe they do have enough.
`The issues are infringement in this case. But the evidence
`most relevant to that is the source code, which has been
`produced. And, again, we've also produced some of the
`technical documents on behalf of Adobe that demonstrate the
`operation of those products.
`THE COURT: All right. Well --
`MR. VALENTINE: There was -- excuse me, your
`Honor. There was one more. It was a website. It was a
`Level 3 website called Level 3 Media Player and we did
`produce the HTML code for that, but the real products that
`are accused are Adobe, Adobe products.
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`they -- in e-mail, they're claiming that's it. That's all
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`they have responsive to this Court's standard core document
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`production order, nine documents and ten documents,
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`respectively.
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`It puts us in a bind. We're one month away from
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`the Court-ordered paper discovery deadline. And in response
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`to 44 requests for production and the Court's order, that's
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`all we have from two defendants. And now they've asked us
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`for, well, tell us exactly what you want and so we sent them
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`a list of examples of other documents we have seen in other
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`cases that we expect companies like this to have.
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`And we are, you know, a month out, away from the
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`end of document discovery, and we're supposed to start
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`depositions, and we don't have any yet, other than these, a
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`handful of pieces of paper.
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`THE COURT: All right.
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`MR. VALENTINE: Good afternoon, your Honor. Jim
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`Valentine on behalf of defendants Adobe and Level 3.
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`I think a key thing for the Court to know is
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`that the products accused in this case are Adobe products,
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`so Adobe's core technical production we believe is complete
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`and more than sufficient under the Court's order.
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`We've produced not only core technical
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`documents, we made available for inspection beginning in
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`June source code for over 27 products, and the Adobe
`3 of 15 sheets
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`THE COURT: All right. Yes, sir?
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`MR. PEREZ-ALBUERNE: I don't know if you'd like
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`to hear from all of us on this.
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`THE COURT: Well, I do. And we will have a
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`discussion, so let me get everyone's position first.
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`MR. PEREZ-ALBUERNE: Again, your Honor Carlos
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`Perez for Akamai.
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`Our position is very similar to Level 3's in the
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`sense that what this case is about, we think, is about
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`accusations that Adobe's products meet the claim
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`limitations. And, in fact, the claim limitations go to the
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`details of providing particular kind of media stream, and
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`those are functionalities which, as far as we can tell, and
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`as far as the infringement contentions we've been served
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`with indicate are within the Adobe products.
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`And so -- and, again, this is a case which is,
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`as your Honor knows, is bifurcated. So what's at issue in
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`this phase of the case is what the patent means, what the
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`claims mean, what the product does, what it is, and whether
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`the patent is valid.
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`And so with respect to what the accused product
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`does, that it is a thing that is claimed to meet the claim
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`limitations, I think counsel for Level 3 and Adobe put it
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`exactly right. There has been a very substantial core
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`production, including source code, which is sort of the --
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`it is the object being accused for all intents and purposes
`that has been produced to the other side.
`We have produced documents which evidence our
`use of the Adobe, which evidence how we use the Adobe
`products. That's the, the limited number of documents which
`opposing counsel referred to. And we produced those some
`time ago.
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`What we hadn't -- I don't want to leave the
`Court with the wrong impression, though, which is, we have
`not categorically refused to produce additional documents.
`We've never done that. What we've said is that we think
`we've produced the documents that are the core documents
`with respect to our accused activity. That is the use of
`the Adobe materials. And if they disagree with us, tell us
`where the holes are in that production. Tell us where they
`still have questions that are unanswered and we're happy to
`go back and look and see if we have documents that would
`fill those holes and produce them.
`And if we end up not having documents that
`produce those, that fill those holes, well, then, that's the
`state of affairs. And what those documents are, whether
`those documents are specifications or whether they're source
`code, we need to know what they're looking for.
`I submit to the Court in a case like this, it is
`very unlikely that from the Akamai position, source code
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`And to the extent that opposing counsel refers
`to some specific list of the kinds of documents they think
`we might have, that list was provided, you know, within the
`last week in the run-up to this hearing. And even that list
`is just a list of categories, not a list of subject matters
`that they think are missing from what we've produced.
`We're happy to engage in a process, and we think
`the right process is that it's a dialogue in the interim
`process to do that, but we need a partner to do that with
`and we have not had one.
`THE COURT: All right. Thank you.
`MR. MELTON: Your Honor, Brian Melton again.
`You know, this is -- what I've just heard is a
`shadowboxing. I'm to guess what they're looking at. The
`Court's order couldn't be clearer: Documents relating to
`the accused products, including, but not limited to, and it
`goes through a list.
`They're sitting on documents that meet this
`definition. I can hear it. They're not refusing to produce
`it. They have them. They have them. They know they have
`them. And Adobe's counsel is also representing Level 3?
`MR. VALENTINE: Yes, that' right.
`MR. MELTON: So when Adobe's counsel is up here
`saying, we've produced, he's talking about what Adobe did.
`He's not saying Level 3 produced source code. In fact,
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`production will be necessary. We think that, to the extent
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`they have any questions about our implementation of the
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`Adobe products, we will be able to produce documents which
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`describe that at the level of the patents that are
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`substantially higher than that, things like specifications.
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` But they have not even told us what the
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`questions are that are left. They have not given us any
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`indication that they looked at those documents and they
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`have any specific deficiency in what we've produced. All
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`we have heard from them essentially is, produce more
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`documents.
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`And so what we'd like to engage in, and what
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`we've tried to engage in repeatedly, is a step-by-step
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`process which gets them the documents they need to describe
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`our use of the, of the system at the level of the patents,
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`but does not place on us an undue burden of running around
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`and collecting every document that has to do with things
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`like bandwidth and streaming, which are some of their search
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`terms that have been proposed.
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`So as I'm characterizing it to the Court, the
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`state of affairs with us is we produced the set of documents
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`we think are core to the accusations as they apply to us,
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`and what we've been trying to solicit is exactly where they
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`think the deficiencies are so we can address them and we
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`have not gotten anywhere.
`11/06/2013 11:50:40 AM
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`Level 3 and Akamai are taking the position that they don't
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`need to unless they've changed it or they haven't.
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`Now, the statute is clear. Infringement is
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`making, using, selling or offering for sale. If they have
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`interfaces with the code that they've written, if they have
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`implementations that they've done, that is making and using
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`and that should have been produced a long time ago.
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`To say they don't have a partner in this is a
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`little disingenuous. What I heard was, we think we've
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`produced -- and I wrote it down -- enough, enough. They
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`didn't say, we've met the request for production and the
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`Court's rule. We think we produced enough, and we don't
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`believe that's the case.
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`They raised source code and I've addressed it.
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`I think to the extent they have interfaces and
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`implementation code, we're entitled -- we should --
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`THE COURT: I just had a scheduling conference
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`where the lawyer said he was "presumptively entitled."
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`THE COURT: At least you didn't say
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`"presumptively entitled." But, yes, that word does raise
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`the hackles on my neck.
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`MR. MELTON: I take that word back, your Honor.
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`they do have produced. Adobe has not objected to producing
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`the code, and so it's not that this case is not a source
`code case. It is Level 3 and Akamai don't want to produce
`what they do have.
`THE COURT: Well, I think I have told at least
`some of you that Judge Fallon and I are conducting an
`experiment to see whether our default standard actually
`works the way it is supposed to. And the core exchange of
`documents is supposed to be a starting point. It's supposed
`to help people focus the continuation of discovery. It's
`not supposed to be the end game. It never was supposed to
`be the end game. It's supposed to help focus the followup
`discovery so that we can meet the Federal Circuit's
`expectations of being case managers.
`So I'm not -- I can't know whether you and your
`clients have followed the spirit of this or whether you're
`doing what you want to do and finding a way to explain it.
`So the only thing I can say is, although it's late in the
`game, this is very late in the game, that I'm going to
`organize another conference, which is expensive, I
`understand that, and Judge Fallon and I will talk about
`which of us are going to conduct it, or maybe both of us
`will. I'm not sure.
`But we're going to do in this case late in the
`game what we're starting to do in other cases early in the
`game, which is meet with the parties with that first
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`have to be within a week if we're getting close to time for
`depositions?
`MR. PEREZ-ALBUERNE: I'm sorry your Honor. I
`want to make sure I understand. So you're proposing the
`additional conference be held a week from today?
`THE COURT: Well, I don't know how expedited we
`need to make this. As I understood it, and my docket isn't
`so detailed that I know what -- that I have a document
`production end date on the docket, so I don't know whether
`we're pressed for time or whether we have the luxury of
`waiting.
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`MR. PEREZ-ALBUERNE: I think from our
`perspective, your Honor, we've all discussed before this
`that there is some agreement that we need at least some
`extension of time for the paper discovery deadline. Whether
`that's 30 days or more than 30 days is still up in the air.
`There's some kind of agreement, no matter what came out at
`the end of this hearing, we needed an additional amount of
`time.
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`So I don't think -- my own view, your Honor --
`obviously, if you want us here in a week, we'll be here in a
`week, but I don't think we're under that kind of pressure
`time-wise. Candidly, I'm here for the first time today.
` Now, in the course of argument, limitation on
`what they're looking from us about what interfaces with and
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`what implements. Even that hasn't been given to us before
`today. So there's some time to work on it.
`THE COURT: I certainly would hope that the
`prospect of coming back with your client representatives and
`actually lugging paper with you would create a motivation
`for the plaintiff to be as -- well, for you to engage in a
`genuine conversation without any side being unreasonable in
`that regard so that maybe you don't have to come back and go
`through the expense of meeting with me. But I'm happy to do
`it because it's always educational and I find that we
`usually -- the one time I've done this, it was very helpful
`in moving the case forward.
`MR. PEREZ-ALBUERNE: Your Honor, maybe I could
`be so bold as to propose a slight modification to that
`process.
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`exchange of core documents, meet with the parties and their
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`representatives to make sure that everyone is using a
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`good-faith effort to advance the litigation in a reasonable
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`fashion. And the only way I can do that is for you to
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`actually bring documents, bring your client representative,
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`and one of us will have a conversation with him to make sure
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`that you're being reasonable, you are more reasonable than
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`the other side.
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`So that's what we're going to do. It has got to
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`be soon. So -- and I, of course, didn't have my computer
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`on, so this will take a minute to get a calendar up.
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`And it's interesting that you say this is a
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`source code case. I just had a trial where the defendants
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`relied on source code and the plaintiffs were relying on the
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`specifications and the descriptive aspects of the product.
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`My concern is if maybe -- we'd ask if we're
`So there sometimes is a disconnect, and I'm not sure that
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`going to go ahead and do that, that's fine. But some point
`this is a source code case. I'm not confident you can just
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`relatively soon, if the plaintiffs could prepare for us
`rely on source code in cases like this. If you're holding
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`their articulation of what it is they think they need as
`the functionality of the product out a certain way to the
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`specifically as they think they can, and then that would be
`public, if it's inconsistent with the source code, that's
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`the standard, you know, that we can discuss when we all get
`something that I think I should take into account and maybe
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`back here with our documents. I think that's fair.
`a jury needs to take into account as well.
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`MR. MELTON: Your Honor, Brian Melton.
`So I guess I need to find out when we need to
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`I like your suggestion. I think we ought to
`have this meeting, assuming you all don't gather after this
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`and work things out to your mutual satisfaction. Does it
`have another conference before Thanksgiving. Just looking
`5 of 15 sheets
`Page 14 to 17 of 33
`11/06/2013 11:50:40 AM
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`

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`Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 7 of 93 PageID #: 1322
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`at the calendar --
`THE COURT: Well, but I have to say that if
`you -- at this point in the game, I would like to think,
`because discovery has been going on for how long? I mean,
`it has months.
`MR. MELTON: Months. Six, eight months.
`THE COURT: Okay. That -- and you're obviously
`very experienced counsel, and that if your experience is
`anything like mine, all of these software cases start
`running together. They have, more or less -- they have
`certain common characteristics.
`I certainly think that if I'm going to require
`the defendants to come back with client representatives and
`the documents or at least a sample of documents that they've
`produced, that at the very least, you can make an effort to
`articulate, not in legalese, but in real, in a real way, in
`a common sense way based on your experience and the
`documents you have received what your concerns are, and
`what you need to see to convince you that the defendants
`had, in fact, produced, maybe not millions of pages of
`documents.
`And trust me, the more information you have, the
`harder it is I have found for clients, for attorneys to
`actually litigate in front of a jury, because you can't
`focus. You never commit. You keep all your balls in the
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`And if that can save me from bringing a client from
`California here, I would like to know that.
`THE COURT: I don't know.
`MR. MELTON: I think the process applies to all
`three. We will comply with what the Court just said and it
`applies to Adobe.
`THE COURT: All right. So you've got to
`articulate your concerns and make -- all right. And so I
`don't know how long it will take you to do that, get that to
`the plaintiff. I mean, to the defendant.
`MR. MELTON: Seven days, your Honor, so next
`Tuesday, if not earlier.
`THE COURT: All right. So maybe what we should
`do is -- let me get a calendar up. So that would be
`November 12th.
`And how long will it take defendants' counsel to
`review and confer and respond?
`MR. VALENTINE: Since I've never heard any
`complaints about Adobe, it's a bit of a mystery. I can't
`really articulate -- a week to ten days. Level 3 is
`different because they just use Adobe. They don't, they
`don't modify it, so we've been over this several times with
`them. So I'm comfortable with a week with respect to Level
`3. Perhaps ten days for Adobe.
`THE COURT: Well, let's say Friday, the 22nd,
`
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`air to the point where the jury doesn't even know what you
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`are talking about. That has been my experience in the last
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`few or two, with talking to juries.
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`So I don't think you should just be looking for
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`more documents. I think you need to articulate as best you
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`can -- I'm happy to go through that exercise whether you
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`think you need to or not, what it is you think you would
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`need to see to convince you that you understand and have the
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`information you need about how the defendants are using the
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`Adobe products and how the Adobe products work in the first
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`instance. So you need to go through that exercise.
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`MR. MELTON: Yes, your Honor.
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`THE COURT: All right. And that will be part of
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`what I look at when we all meet again, which is whether, in
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`fact, the plaintiff is being reasonable, and then assuming
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`the plaintiff will give that kind of reasonable expectation,
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`then the kind of response that the defendants will have to
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`it. All right?
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`MR. PEREZ-ALBUERNE: Your Honor, may I request
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`one point of clarification?
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`THE COURT: Yes.
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`MR. PEREZ-ALBUERNE: Because I have two clients,
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`Adobe and Level 3, and I don't think there has been any
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`complaint, at least in the correspondence leading up to
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`this, with respect to Adobe's core technical production.
`11/06/2013 11:50:40 AM
`Page 18 to 21 of 33
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`THE COURT: And I will have plaintiff's counsel
`organize that telephone call.
`MR. MELTON: Yes, your Honor.
`THE COURT: And I will put this in a short order
`just so it's on the docket. It keeps everybody honest.
`All right. And in the meantime, Judge Fallon
`6 of 15 sheets
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`is when defendants need to respond to plaintiff's
`request. Now, at that point, unless you've worked it out,
`perhaps I need to schedule -- or wait a minute. Are we
`getting into...
`(Pause.)
`THE COURT: Then what I'd like to do is have a
`telephone conference to see whether, in fact, you all have
`managed to move the ball forward on your own or whether you
`still need some Court intervention.
`So can we schedule that -- unfortunately, I'm
`out of the office on that Friday, but can we schedule it
`the following Monday, which is a Thanksgiving week, but --
`MR. MELTON: That's fine with us, your Honor.
`THE COURT: All right.
`MR. MELTON: So we've got folks from California,
`so it shouldn't be as bright and early as I might schedule
`this. How about 2:00 o'clock on that Monday?
`MR. VALENTINE: That's fine, your Honor. Thank
`
`you.
`
`

`
`Case 1:15-cv-00311-RGA Document 59-1 Filed 01/21/16 Page 8 of 93 PageID #: 1323
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`and I will talk to see if something is needed, whether it
`will be her or whether it will be I who will be handling any
`followup discovery in this regard.
`All right. Are there other discrete issues or
`is this the big one that needs to be resolved?
`MR. MELTON: Your Honor, that's the big one.
`There's an issue we have about in the new wave of document
`production protocol with search terms and number of
`custodians and how that all works out.
`Given what the Court has just ruled, my position
`probably is that that may work itself out in this and we
`could just raise it on the telephonic conference unless
`there's something that needs to be raised now.
`THE COURT: All right. I would think it would
`make more sense to wait and see.
`MR. VALENTINE: Your Honor, if we could, since
`we're all here today --
`THE COURT: Yes?
`MR. VALENTINE: -- I would like to at least
`preview the issue.
`THE COURT: All right.
`MR. VALENTINE: So maybe we could give it some
`
`thought.
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`THE COURT: All right.
`MR. MELTON: That's fine.
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`search terms to those custodians, and then as we learn
`more, have five more custodians with maybe some different
`terms.
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`MR. VALENTINE: Your Honor, the reason why -- I
`appreciate the Court's guidance today, is because we need to
`keep the ball rolling and get it rolling.
`There has been delay in this case. It is not by
`any stretch all engendered by defendants. For example, we
`made that source code available beginning in June. There
`was nobody at our office to inspect it until October. But
`the issue here is the parties have agreed -- and what we are
`talking about are custodial documents, so it's e-mail
`largely. And this, whether it's a source code case or not,
`it's a technical case.
`So it's going to be technical documents
`regarding how the products in their final form actually
`operate. It's not all the back and forth and design and
`what about this, you know, between the engineers by e-mail.
`So these documents are short of marginal value, but we're
`obligated to produce them, and we certainly will, but we
`want to do as expeditiously as possible.
`As my counsel has indicated for Akamai, you
`don't really reverse engineer the operation of a product by
`going through a bunch of engineered e-mails and
`understanding the evolution.
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`Your Honor, the way the Federal Circuit and the
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`rules, it's designed -- it used to be we would send out
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`requests for production. It was on the defendants to go
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`find all the custodians, search for relevant terms and
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`produce their documents.
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`What has happened now is, we limit the number of
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`custodians and then we limit the number of search terms per
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`custodian.
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`I've not had a defendant get kind of against me
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`further narrowing my discovery. What we propose in this
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`case is that we identify -- and not all the custodians right
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`now and then bulk search terms, the technical guy, the
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`marketing guy. You know, we are trying to identify
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`custodians and then have search terms that are applicable to
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`those custodians and search for those individuals.
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`What I believe the defendants want is me to
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`identify all the custodians and 12 search terms regardless
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`of what this guy's job is, or this girl's job is, and that's
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`it. It's a one time, no matter what.
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`One of the reasons I believe the postponement is
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`in order is with the limited document discovery we've
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`gotten, it's kind of unfair putting me in a position of
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`having to guess which custodians they want and which terms
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`apply to them. But that's the gist of what has come down,
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`is we would like to identify a specific set and limit our
`7 of 15 sheets
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`So that's what we're talking about. The parties
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`agreed to a document production protocol, and it says -- and
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`this is consistent with all the efforts to sort of
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`streamline the CSI discovery and I think it's a worthwhile
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`effort. And that's why we went to the trouble of
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`negotiating these terms at the outset.
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`It says that the total search terms will be
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`narrowly tailored and limited to 12 terms. So it's our view
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`that we read this, they've got 12