C.A. No. 1:22-cv-00304-JLH
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`JURY TRIAL DEMANDED
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`C.A. No. 1:22-cv-00305-JLH
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`JURY TRIAL DEMANDED
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`Defendants.
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`ROBOCAST, INC., a Delaware corporation
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`Plaintiff and Counterclaim Defendant,
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`v.
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`NETFLIX, INC., a Delaware limited liability
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`company
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 1 of 445 PageID #: 10541
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`ROBOCAST, INC., a Delaware corporation
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`Plaintiff,
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`YOUTUBE, LLC, a Delaware limited liability
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`company; and GOOGLE LLC, a Delaware
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`limited liability company,
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`Defendant and Counterclaim Plaintiff.
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`DECLARATION OF SAMUEL MOORE IN SUPPORT OF PLAINTIFF ROBOCAST’S
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`MOTION TO MODIFY JOINT SCHEDULING ORDER
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`I, Samuel Moore, declare as follows:
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`I am an attorney at the law firm of McKool Smith, P.C., and am currently in good
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`standing and licensed to practice in the State of Texas and admitted to this Court pro hac vice by
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`Order dated June 6, 2023.
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`3.
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`I am counsel of record for Plaintiff Robocast, Inc. (“Plaintiff”) in this action and
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`make this Declaration in support of Plaintiff’s Partially Unopposed Motion to Amend Scheduling
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`Order (the “Motion”). The facts set forth herein are true to my knowledge, and if called upon to
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`testify thereto, I could and would competently do so under oath.
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`[PUBLIC VERSION]
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`[PUBLIC VERSION]
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 2 of 445 PageID #: 10542
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`4.
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`On April 11, 2023, which was the Court’s deadline for production of core
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`technical documents, Defendant Netflix, Inc. (“Netflix”) produced a total of 12 documents.
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`art.
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`On July 7, 2023, Netflix produced 612 documents which related to asserted prior
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`On August 13, 2023, Netflix produced 48 documents consisting of public articles.
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`On August 22, 2023, Netflix produced 40 documents containing patent licenses.
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`On August 28, 2023, Netflix produced 3,295 documents consisting of public SEC
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`filings, and on September 24, 2023, Netflix produced an additional 23 such documents.
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`9.
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`licenses.
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`On September 28, 2023, Netflix produced 759 documents.
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`On October 22, 2023, Netflix produced 14 documents consisting of patent
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`On October 31, 2023, Netflix produced 2,765 documents.
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`On November 7, 2023, Netflix produced 25 documents.
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`On November 14, 2023, Netflix produced 908 documents.
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`On November 17, 2023, Netflix produced 1,613 documents.
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`On November 28, 2023, Netflix produced 944 documents.
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`On January 12, 2024, Netflix produced 657 documents.
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`Attached as Exhibit A is a chart listing the proposed extended deadlines which
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`reflects the agreement reached with Google.
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`Attached as Exhibit B is a true and correct copy of the transcript of the Court’s
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`discovery teleconference conducted on August 29, 2023.
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`Attached as Exhibit C is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Netflix dated January 15, 2024.
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 3 of 445 PageID #: 10543
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`Attached as Exhibit D is a true and correct copy of correspondence sent by
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`counsel for Google to counsel for Robocast dated March 8, 2024.
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`Attached as Exhibit E is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated January 31, 2024.
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`Attached as Exhibit F is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated December 5, 2023.
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`Attached as Exhibit G is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated January 12, 2024.
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`Attached as Exhibit H is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated January 16, 2024.
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`Attached as Exhibit I is a true and correct copy of correspondence sent by counsel
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`for Robocast to counsel for Google dated January 23, 2024.
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`Attached as Exhibit J is a true and correct copy of correspondence sent by counsel
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`for Robocast to counsel for Google dated January 24, 2024.
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`Attached as Exhibit K is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated January 26, 2024.
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`Attached as Exhibit L is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 2, 2024.
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`Attached as Exhibit M is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 5, 2024.
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`Attached as Exhibit N is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 7, 2024.
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 4 of 445 PageID #: 10544
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`Attached as Exhibit O is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 12, 2024.
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`Attached as Exhibit P is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 15, 2024.
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`Attached as Exhibit Q is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 21, 2024.
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`Attached as Exhibit R is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 23, 2024.
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`Attached as Exhibit S is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google and Netflix dated March 4, 2024.
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`Attached as Exhibit T is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 16, 2024.
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`Attached as Exhibit U is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 17, 2024.
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`Attached as Exhibit V is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 19, 2024.
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`Attached as Exhibit W is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 26, 2024.
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`Attached as Exhibit X is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated February 29, 2024.
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`Attached as Exhibit Y is a true and correct copy of correspondence sent by
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`counsel for Robocast to counsel for Google dated March 8, 2024.
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 5 of 445 PageID #: 10545
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`42.
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`I declare under penalty of perjury under the laws of the United States that the
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`foregoing is true and correct.
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`Dated: March 12, 2023
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`Respectfully submitted,
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`MCKOOL SMITH, P.C.
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`/s/ Samuel Moore______
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`Samuel Moore
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`300 Crescent Court, Suite 1500
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`Dallas, Texas 75201
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`(212) 978-4000
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`smoore@mckoolsmith.com
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 6 of 445 PageID #: 10546
`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 6 of 445 PagelD #: 10546
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`EXHIBIT A
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`EXHIBIT A
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`Event
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`Markman Hearing
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`Original Date
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`New Date
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`Jan 17, 2024
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`Atdiscretion of the Court
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`Final Infringement Contentions
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`February 26, 2024
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`February 26, 2024 (Netflix
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`June 10, 2024 (Google Case)
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`Deadline to Serve Written Discovery
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`March 12, 2024
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`May 13, 2024
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`Final Invalidity Contentions
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`March 12, 2024
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`March 12, 2024 (Netflix
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`June 27, 2024 (Google Case)
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 7 of 445 PageID #: 10547
`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 7 of 445 PagelD #: 10547
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`Answering Briefs for Case Dispositive
`Motions
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`October 3, 2024
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`January 17, 2025
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`or after May 26, 2025
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`ReplyBriefsforCaseDispositiveMotionsReplyBriefsforCaseDispositiveMotions[Cetober‘February14,2025forCase DispositiveMotions October31,202431,2024 [February14,202531, 2024 14,
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`Serve Responses to Motions in Limine
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`January 16, 2025
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`May1, 2025
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`Serve Replies to Motions in Limine
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`January 21, 2025
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`May6, 2025
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`Parties Submit Pretrial Order / Voir Dire,
`Preliminary Jury Instructions, Final Jury
`Instructions, and Special Verdict Forms
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`January 27, 2025
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`May 12, 2025
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`Pretrial Conference
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`January 31, 2025
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`At discretion of the Court on
`or after May 16, 2025
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`Trial Date
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`February 10, 2025
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`At discretion of the Court on
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 8 of 445 PageID #: 10548
`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 8 of 445 PagelD #: 10548
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`EXHIBIT B
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`EXHIBIT B
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 9 of 445 PageID #: 10549
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`1
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`IN THE UNITED STATES DISTRICT COURT
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`IN AND FOR THE DISTRICT OF DELAWARE
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`ROBOCAST,
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`vs.
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`NETFLIX,
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`--------------------Plaintiff, )
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`) Case No.
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`22- CV- 305- RGA-
`JLH
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`--------------------Defendant. )
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`_______________________________________________
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`))
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`ROBOCAST,
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`vs.
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`GOOGLE,
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`--------------------Plaintiff, )
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`) Case No.
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`22- CV- 354- RGA-
`JLH
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`--------------------Defendant. )
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`))
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`))
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`TRANSCRIPT OF DISCOVERY CONFERENCE
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`DISCOVERY CONFERENCE had before the
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`Honorable Jennifer L. Hall, U.S.M.J., via
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`teleconference on the 29th of August, 2023.
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 10 of 445 PageID #: 10550
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`APPEARANCES
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`BAYARD P.A.
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`BY: RONALD GOLDEN, ESQ.
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`-and-
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`MCKOOL SMITH
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`BY: CASEY SHOMAKER, ESQ.
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`WILLIAM ELLERMAN, ESQ.
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`SAMUEL MOORE, ESQ.
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`Counsel for Plaintiff
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`RICHARDS, LAYTON & FINGER, P.A.
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`BY: KELLY E. FARNAN, ESQ.
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`TYLER CRAGG, ESQ.
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`LATHAM & WATKINS LLP
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`BY: TARA ELLIOTT, ESQ.
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`RACHEL COHEN, ESQ.
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`KIMBERLY LI, ESQ.
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`Counsel for Netflix
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`RICHARDS, LAYTON & FINGER P.A.
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`FRED COTTRELL, ESQ.
`BY:
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`GRIFFING SCHOENBAUM, ESQ.
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`-and-
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`WILSON SONSINI GOODRICH & ROSATI
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`BY:
`JORDAN JAFFE, ESQ.
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`Counsel for Google
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 11 of 445 PageID #: 10551
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`3
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`THE COURT: Good afternoon, everyone.
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`This is Jen Hall. We' re on the line today to
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`hear a number of discovery disputes. We have
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`Robocast versus Netflix. It's 22- 305. We also
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`have Robocast versus Google. It's 22- 354.
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`Let's put appearances on the record starting
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`with Robocast
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`MR. GOLDEN: Thank you, Your Honor.
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`Good afternoon. This is Ronald Golden from
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`Bayard PA on behalf of Robocast. I have with
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`me on the line from McK ool Smith Casey
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`Shomaker, William Ellerman, and Samuel Moore.
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`THE COURT: Great. Good afternoon to
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`all of you.
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`And how about Netflix?
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`MS. FARNAN: Yes, good afternoon,
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`Your Honor. This is Kelly Farnan from
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`Richards, Layton, and Finger on behalf of
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`Netflix. Tyler Cragg from my office is also on
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`Latham and Watkins Tara Elliott, Rachel Cohen,
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`from Netflix on the line, and Ms. Cohen will
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`address the disputes before the Court today.
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`THE COURT: All right. Very good.
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 12 of 445 PageID #: 10552
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`And how about in 22- 304, Google?
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`DFT TWO: Good afternoon, Your Honor.
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`Fred Cottrell from Richards Layton for YouTube
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`and Google in 22- 304. Also from my office,
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`Griffin Schoenbaum. And my co- counsel from
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`Wilson Sonsini, Jordan Jaffe, and Mr. Jaffe
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`will be speaking on behalf of the defendants.
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`THE COURT: Great. That's fine. We
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`have a court reporter on the line today.
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`I can tell you we' ve taken a look at the
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`letters, and as we did so, we were reminded
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`that we' ve already talked about some of these
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`issues once this summer. Doesn't seem like
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`we' ve made much progress since then, so let's
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`see what we can get done today.
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`Let's start with the defendants'
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`disputes. I' ve read the letters. Anything
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`that Netflix wants to add to its argument about
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`the interrogatories?
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`MS. COHEN: Hi, Your Honor. This is
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`Rachel Cohen on behalf of Latham and Watkins
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`for the defendant Netflix.
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`Just in terms of the first issue in
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`dispute for Defendant Netflix and Google, it
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`applies to them as well, in terms of the
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 13 of 445 PageID #: 10553
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`numerosity dispute, Defendants -- Robocast, the
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`plaintiff in this case, doesn't actually defend
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`its counting at all in its responsive letter.
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`The interrogatories at issue here were served
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`on March 1 st of this year. It's been six
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`months, and they have not responded to a single
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`substantive -- a single substantive response to
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`any of the served interrogatories. They do not
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`defend the numerosity issue.
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`And the served interrogatories are
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`consistent with the interrogatories that are
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`served in this court that are commonly before
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`the court, and to the extent -- I'm happy to
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`engage into why each one goes to the topical
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`issue and seeks the facts and circumstances
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`that go to the call of the question, if the
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`Court would like, but it is consistent with
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`practice that is consistent in this court, and
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`I think Robocast unfortunately invites the
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`court to start deviating from the practice, and
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`doing so would certainly increase the number of
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`discovery disputes in this jurisdiction.
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`THE COURT: Okay. And anything that
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`YouTube and Google want to add just about the
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`interrogatory number issue?
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 14 of 445 PageID #: 10554
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`MR. JAFFE: Thank you, Your Honor.
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`This is Jordan Jaffe on behalf of Google and
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`YouTube. I won't repeat what Ms. Cohen
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`mentioned, so I' ll be brief.
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`We agree, as to Google and YouTube, that
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`Robocast did not defend its counting in its
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`responsive brief, so in our view the easiest
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`way to resolve this dispute would be simply to
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`overrule the numerosity objections because none
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`of them have the discrete subparts, so we' re
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`substantially under the limit.
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`We think if you look at the Megatives
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`case -- hopefully I'm pronouncing that
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`correctly -- Judge Burke lays out an example
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`where Defendants in Interrogatory 2 describe
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`"the development efforts that relate to the
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`alleged technologies" and goes through and has
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`them talking about the first described in
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`writing, first manufactured. And as Judge
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`Burke explained in that case, those were each
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`subsumed within the larger interrogatory and
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`are not discrete subparts.
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`For all those reasons, we believe the
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`subpart issue for Google and YouTube that they
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`all are -- do not comprise discrete and
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 15 of 445 PageID #: 10555
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`separate subparts that are then subsumed within
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`the single one. That's part one.
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`And then part two, the numerosity
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`objection, I think that Ms. Cohen mentioned
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`we -- the better course for them would be to
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`answer at least the 25 interrogatories rather
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`than refuse to answer them all, and we' ve got
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`the caselaw in our brief, and I'm happy to
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`address it if the Court would like.
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`THE COURT: All right. Let's hear
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`from Robocast on this.
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`MS. SHOMAKER: Yes, Your Honor.
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`Casey Shomaker for Plaintiff Robocast.
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`Robocast believes in the letters that we
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`exchanged with Netflix over the past couple
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`months and in addition our briefing submitted
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`in front of this Court that we' ve cited the
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`caselaw that supports our position that these
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`'rogs comprise multiple subparts.
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`As noted in our briefing, we offered
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`compromise positions to both Google and Netflix
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`wherein Google and Netflix could withdraw the
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`objectionable interrogatories and thereby
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`Robocast would comply with the law back on
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`point in response to those interrogatories
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 16 of 445 PageID #: 10556
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`without waiving numerosity objections. This
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`was reiterated multiple times, and neither
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`party took us up on it, and so we were forced
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`to comply with the law and not waive our
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`objections, so that's truly why we haven't
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`responded to any of the interrogatories.
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`THE COURT: Are you wanting me to
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`find that these are more than 25 that you were
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`served? Because you didn't even argue how
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`that's the case.
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`MS. SHOMAKER: Yes, Your Honor. So
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`these are multiple -- both Google and Netflix
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`served multiple interrogatories, more than 25
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`interrogatories. With respect to Google,
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`Google served -- exceeded the 25- interrogatory
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`limit when they served Interrogatory Number 12,
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`and so the -- our responses to interrogatories
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`1 through 11 were pending when they served
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`their final interrogatory; therefore, there
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`were more than 25 pending interrogatories at
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`the time. And Netflix only served one set of
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`interrogatories, and each one in that entire
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`set included more than 25 interrogatories and,
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`in fact, 45 discrete subparts.
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`THE COURT: Okay. We' ve got a lot to
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 17 of 445 PageID #: 10557
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`get through today, so I' ll keep my ruling
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`brief.
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`I disagree with how Robocast has handled
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`this, both in terms of how it responded to the
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`parties and particularly with respect to its
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`position against Google, who even Robocast
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`agrees did not serve more than 25
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`interrogatories.
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`How long have these interrogatories been
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`pending?
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`MS. SHOMAKER: Six months for
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`Netflix. Nearly six months. September 1 st
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`will be six months, Your Honor.
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`THE COURT: Okay. And then just,
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`again, a third thing of the reasons I disagree
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`with how Robocast handled this was in its
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`briefing to this Court, there's no attempt made
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`to even provide the Court with how it counted
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`or why it's appropriate, basically putting the
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`burden on the Court to expend time and
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`resources.
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`So Robocast needs to respond to all of
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`the interrogatories within one week to both
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`parties. These have been pending a long time.
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`You should know what the answers are. I don't
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 18 of 445 PageID #: 10558
`10
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`think I have anything more to say on that.
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`Netflix has a couple other issues.
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`MS. COHEN: This is Rachel Cohen
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`again for Netflix. The second issue is
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`Robocast's deficient Rule 26(a) disclosures as
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`it relates to damages.
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`So as the plaintiff in this case,
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`Robocast has an obligation under Rule 26,
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`consistent with Judge Andrews' decisions in the
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`NexStep case as well as the Conflow case, to
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`identify -- it respectfully requires initial
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`computation and disclosure of the evidence that
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`Robocast will rely upon, to the full extent
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`that it can or should know of it.
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`We were happy to see that for the first
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`time after months of going round and round on
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`Court that it can't or won't pursue lost
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`profits in this case, and that's a start, but
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`it really doesn't solve the disclosure of what
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`they actually do intend to seek in terms of a
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`reasonable royalty.
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`The -- under the Court's the prior law
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`that I just cited to, they do have an
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 19 of 445 PageID #: 10559
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`obligation to explain what they can and do
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`know, and those include, Your Honor, among
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`other things, an explanation of how the
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`licenses directed to the patents- in- suit -- at
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`least one has been previously licensed -- how
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`do those three licenses play into their damages
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`theories in this case, their terms of the
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`license, the duration, the licensing package of
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`the patentee. That's Georgia Pacific factor
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`number four.
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`Georgia Pacific factor number five talks
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`about the relationship between the patentee and
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`accused infringer. Notwithstanding our efforts
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`for the last six months to get discovery from
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`Robocast, they refused to identify any of that
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`information, which was squarely in their
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`possession. They know if they have a competing
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`product or patent infringing product. They
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`know if the parties are competitors. That's
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`information that they possess and that, under
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`Rule 26, they have an obligation to disclose
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`and they' ve been withholding.
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`They also have attempted to shift the
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`burden to seek discovery from Netflix before it
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`can disclose information that's solely in its
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 20 of 445 PageID #: 10560
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`possession, and that's wrong based on the law
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`we obviously cite to in our papers.
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`THE COURT: All right. Let me hear
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`from Robocast.
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`So you agree, don't you, that you need to
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`update your Rule 26 disclosures immediately,
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`given the fact that you have now said that you
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`are not seeking lost profits, do you not?
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`MR. ELLERMAN: Your Honor, this is
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`Will Ellerman for Robocast. We have already
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`done that. We have already updated our Rule 26
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`disclosures to clarify we are not seeking lost
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`profits.
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`THE COURT: I don't have the current
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`version of the disclosures in front of me?
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`MR. ELLERMAN: No, Your Honor.
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`THE COURT: When were those updated?
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`MR. ELLERMAN: Sometime last week
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`before the briefing on this.
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`THE COURT: So how am I supposed to
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`determine whether or not your current
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`disclosures are good enough if I don't have
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`them?
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`MR. ELLERMAN: Well, Your Honor, I
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`believe Netflix included the -- at least one
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 21 of 445 PageID #: 10561
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`version of the disclosures in their letter
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`since this was their issue, and what we did was
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`delete the reference to lost profits. And so
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`our disclosures, as they stand today, seek
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`reasonable royalty damages. We have complied
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`with Rule 26 to the best of our ability in that
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`regard.
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`The NexStep case that Netflix cites, you
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`know, that case is, number one, distinguishable
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`because that struck a new damages theory that
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`was disclosed for the first time on the eve of
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`trial, and the case says that all a claimant
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`has to do, its only obligation, is to disclose
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`information about its damages to the best of
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`its ability. And Netflix has not given any
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`reason or any authority that would require
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`Robocast to give a damages calculation at a
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`time when Netflix has given us virtually no
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`financial discovery whatsoever.
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`And as we cited in our papers, Your
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`Honor, the advisory committee notes to this
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`rule cite a patent case as the example of when
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`a plaintiff is simply not able to provide a
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`complete damages disclosure at the outset of a
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`case because all relevant information is in the
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 22 of 445 PageID #: 10562
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`defendant's possession. And we may be getting
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`a little bit a head of ourselves into some of
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`the other issues here, but Netflix's production
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`to date is woefully inadequate.
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`THE COURT: I'm going to stop you
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`right there. I'm looking right now at Exhibit
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`G to Netflix's letter. And so what you' re
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`saying is you deleted out the paragraph on page
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`six that talks about lost profits, but you
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`still have in there the reasonable royalty
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`paragraph that says that the analysis you' re
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`going to use is the hypothetical negotiation
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`and that you' ve got licenses with Microsoft and
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`Apple and that you' re also going to look at
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`licenses produced by Netflix, and you' re going
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`to come up with a royalty rate. Is that
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`essentially what it says?
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`MR. ELLERMAN: That's correct, Your
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`Honor, and we' ve --
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`THE COURT: Okay. So under the
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`circumstances here, I'm going to hold that
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`that's good enough for now, given that you
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`dropped your lost profits. But again, the
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`issue as it was presented to me was that you
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`were seeking lost profits. You didn't drop
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`Case 1:22-cv-00305-JLH Document 214 Filed 03/20/24 Page 23 of 445 PageID #: 10563
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`that until after they raised it, and I would
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`have agreed with them that this wasn't enough,
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`that you were seeking it to sue lost profits,
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`and it shouldn't have taken a discovery motion
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`to ge