Case 1:16-cv-00116-RGA Document 189 Filed 09/07/17 Page 1 of 4 PageID #: 3316
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-116 (RGA)
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`Defendant.
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`SOUND VIEW INNOVATIONS, LLC,
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`FACEBOOK, INC.,
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`Plaintiff,
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`v.
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`LETTER TO THE HONORABLE RICHARD G. ANDREWS
`FROM KAREN JACOBS REGARDING DISCOVERY DISPUTE
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Karen Jacobs (#2881)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`kjacobs@mnat.com
`jying@mnat.com
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`Attorneys for Defendant Facebook, Inc.
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`OF COUNSEL:
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`Heidi L. Keefe
`Elizabeth L. Stameshkin
`Andrew C. Mace
`Sarah Whitney
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`(650) 843-5000
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`Phillip E. Morton
`Emily E. Terrell
`COOLEY LLP
`1299 Pennsylvania Avenue, NW, Suite 700
`Washington, DC 20004
`(202) 842-7800
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`Michael G. Rhodes
`COOLEY LLP
`101 California Street, 5th Floor
`San Francisco, CA 94111-5800
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`September 7, 2017
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`Case 1:16-cv-00116-RGA Document 189 Filed 09/07/17 Page 2 of 4 PageID #: 3317
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`Dear Judge Andrews:
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`Facebook submits this letter in connection with a discovery dispute concerning the two
`Rule 30(b)(6) depositions that the Court ordered at the August 25, 2017 discovery dispute
`conference. Facebook believes the Court’s order was very clearly laid out in the transcript,
`including in the Court’s answers to clarifying questions.
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`The Court permitted the deposition of the two 30(b)(6) technical witnesses mentioned
`during the hearing. One of those witnesses, mentioned by name, was Mr. Damien Sereni. On
`August 31st, Facebook confirmed that Mr. Sereni would be presented tomorrow morning, Friday,
`September 8th. Nearly a week later, for the first time late yesterday afternoon, Sound View told
`Facebook it was refusing to take Mr. Sereni’s deposition, and instead demanded that Facebook
`provide a different witness of Sound View’s choosing who has no knowledge of the subject
`matter that the Court ordered Facebook to provide. Moreover, Sound View seeks to ask the
`exact types of questions the Court refused to grant, comparing Facebook’s technology to the new
`prior art. The Court should reject Sound View’s belated attempt to reconsider the Court’s ruling.
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`The August 25, 2017 discovery dispute conference centered around two issues related to
`the Court’s construction of the “means at said server to compare said user input information” in
`claim 5 of the ’181 patent to include a “Login CGI”: (1) Sound View’s request to strike
`Facebook’s amended invalidity contentions addressing that specific construction and (2)
`Facebook’s request to strike Sound View’s structural equivalents theory for the “Login CGI” for
`the ‘181 patent.1
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`The Court had asked Sound View what discovery it might need if the Court allowed the
`invalidity contentions to be amended. Sound View answered that it needed technical witnesses,
`explaining that there were two 30(b)(6) witnesses “on it,” alluding to the witnesses Ms. Keefe
`had mentioned. (2017-08-25 Hearing Tr. at 14-15.) The Court noted that it was “frankly
`doubtful that you need to do any discovery at all,” but then ordered Facebook to provide four
`hours of deposition testimony “which can't be more than two hours for each of these 30(b)(6)
`witnesses to designate some topic relating to structural equivalence and to depose them.” (2017-
`08-25 Transcript at 18:9-15 (emphasis added.)) The Court’s comment about “these” witnesses
`referred to the only two witnesses discussed during the hearing, Mr. Dustin Ho (the “June 16th”
`witness) and Mr. Damien Sereni.2 (Id. at 9:22-10:5.) In response to a clarification request from
`Facebook, the Court said that the deposition will not “be asking Facebook to compare the way
`the system works to prior art . . . . it would be presumably more about how PHP works so that
`then the experts can, you know, opine something down the road.” (Id. at 19:9-14.) Sound View
`did not raise any issues about the scope of the Court’s relief or seek clarification about the
`subject matter of the 30(b)(6) testimony that was ordered.
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`1 The ‘181 patent is the subject of Facebook’s Motion to Modify the Court’s Claim Construction
`Order, which asks the Court to find the claim term indefinite. (D.I. 177). Should the Court grant
`that motion, these issues would be moot.
`2 Moreover, Sound View’s counsel also asked for Mr. Sereni, saying “there were two witnesses
`on it . . . so it’s the one that Ms. Keefe referred to earlier.” (Tr. 14:25-15:5.)
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`Case 1:16-cv-00116-RGA Document 189 Filed 09/07/17 Page 3 of 4 PageID #: 3318
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`As ordered by the Court, Facebook offered the two witnesses that were previously
`deposed on the Facebook functionality that Sound View alleges is structurally equivalent to the
`Login CGI: (1) Dustin Ho, Facebook’s witness on login functionality, on Wednesday, September
`13th and (2) Damien Sereni,3 Facebook’s witness on HHVM, the system that executes the PHP
`files that Sound View alleges are part of the “Login CGI” (see D.I. 171, at 2 n.2.), on Friday,
`September 8th. At approximately 4pm on September 6th, nearly a week after the depositions were
`offered and less than 48 hours before Mr. Sereni’s deposition, Sound View said it would not take
`the deposition of Mr. Sereni and wanted a different witness, Ross Breytberg. Sound View said
`that it wanted to depose Mr. Breytberg on “Facebook's use of the '181 patent and how that relates
`to, and is different from, what now is the '181 prior art,” exactly the testimony that the Court said
`was not within the scope of these additional depositions. Ex. 1 (2017-09-07, 12:54 am email
`from T. Packin to P. Morton).
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`Sound View’s demands should be rejected for at least three reasons. First, the witnesses
`offered were the ones the Court granted leave for Sound View to depose. Facebook designated
`Mr. Ho and Mr. Sereni because they are the most appropriate people to address the accused
`Facebook functionality. In any event, Sound View cannot dictate who Facebook offers as its
`corporate 30(b)(6) witness.
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`Second, Sound View’s demand for Mr. Breytberg to testify about “Facebook's use of the
`'181 patent and how that relates to, and is different from, what now is the '181 prior art” violates
`the Court’s instructions at the August 25 hearing. The Court specifically said the deposition will
`not “be asking Facebook to compare the way the system works to prior art.” (2017-08-24
`Hearing Tr. 19:9-10.)
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`Finally, Mr. Breytberg is not knowledgeable about the functionality on which the Court
`permitted the deposition.4 In fact, when asked questions about that topic, he made clear that he
`did not know about that subject matter. Ex. 2 (2017-07-07 R. Breytberg Tr.) at 236:4-237:5 (“Q.
`Do you know how Facebook's servers process the log-in request? A: I have not worked on that
`portion. Q. Dose [sic] Facebook use CGI scripts? A: I'm not familiar with CGI scripts.
`Q. Are you aware of the Proxygen and FastCGI modes of HHVM? A: I've heard of HHVM;
`I'm not sure what those modes are referring to. Q. And what is HHVM? A. So I believe that it
`stands for HipHop Virtual Machine, but I don't know the details of its implementation.”)
`(objections omitted). Mr. Breytberg thus cannot offer any testimony relevant to the structural
`equivalents issues as to which the Court limited the depositions.
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`3 Sound View may refer to Mr. Sereni as a witness on the ‘860 patent. Although his testimony
`may be relevant to their allegations for that patent, he is knowledgeable about the HHVM
`technology, which is part of Sound View’s “Login CGI” structural equivalents allegations.
`Facebook did not designate witnesses by “patent,” but by technology.
`4 Mr. Breytberg was offered to testify about to switch “Page Roles”, which is wholly unrelated to
`the functionality at issue in Sound View’s “Login CGI” structural equivalents allegations.    
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`Case 1:16-cv-00116-RGA Document 189 Filed 09/07/17 Page 4 of 4 PageID #: 3319
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`Respectfully,
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`/s/ Karen Jacobs
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`Karen Jacobs (#2881)
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`Cc:
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`Court Clerk (with Encls.)
`All counsel of Record (with Encls.)
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