Case 1:22-cv-00305-RGA-JLH Document 137 Filed 11/29/23 Page 1 of 6 PageID #: 5723
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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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
`company
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`Defendant and Counterclaim Plaintiff.
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`C.A. No. 1:22-cv-00305-RGA-JLH
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`PLAINTIFF’S DISCOVERY DISPUTE LETTER
`
`Stephen B. Brauerman (#4952)
`Ronald P. Golden III (#6254)
`600 N. King Street, Suite 400
`Wilmington, DE 19801
`(302) 655-5000
`Fax: (302) 658-6395
`sbrauerman@bayardlaw.com
`rgolden@bayardlaw.com
`
`ATTORNEYS FOR PLAINTIFF
`ROBOCAST, INC.
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`Dated: November 22, 2023
`
`OF COUNSEL:
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`Steven Rizzi (pro hac vice)
`MCKOOL SMITH, P.C.
`395 9th Avenue, 50th Floor
`New York, NY 10001-8603
`(212) 402-9400
`srizzi@McKoolSmith.com
`
`Ramy E. Hanna (DE Bar Id #: 5494)
`MCKOOL SMITH, P.C.
`600 Travis St., Suite 7000
`Houston, TX 77002
`(713) 485-7312
`rhanna@McKoolSmith.com
`
`Ari Rafilson (pro hac vice)
`William D. Ellerman (pro hac vice)
`Casey L. Shomaker (pro hac vice)
`Samuel L. Moore (pro hac vice)
`MCKOOL SMITH, P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`(214) 978-4000
`arafilson@mckoolsmith.com
`wellerman@mckoolsmith.com
`cshomaker@mckoolsmith.com
`smoore@mckoolsmith.com
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`[PUBLIC VERSION]
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`Case 1:22-cv-00305-RGA-JLH Document 137 Filed 11/29/23 Page 2 of 6 PageID #: 5724
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`Marc N. Henschke (pro hac vice)
`Steven M. Coyle (pro hac vice)
`Andrew C. Ryan (pro hac vice)
`Nicholas A. Geiger (pro hac vice)
`Sara T. Colburn (pro hac vice)
`CANTOR COLBURN LLP
`20 Church Street, 22nd Floor
`Hartford, CT 06103
`Tel. (860) 286-2929
`mhenschke@cantorcolburn.com
`scoyle@cantorcolburn.com
`aryan@cantorcolburn.com
`ngeiger@cantorcolburn.com
`scolburn@cantorcolburn.com
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`Case 1:22-cv-00305-RGA-JLH Document 137 Filed 11/29/23 Page 3 of 6 PageID #: 5725
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`Dear Judge Hall:
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`Netflix’s letter demonstrates that its “disputes” are fictional and serve only to distract from
`Netflix’s own discovery deficiencies as articulated in D.I. 129. The facts demonstrate that both
`issues raised by Netflix are moot. The parties’ meet and confer of November 2, 2023, weeks before
`Netflix filed its motion, is particularly telling. At that time, Robocast confirmed to Netflix that its
`“hope and our goal [is] that [the post-2014 documents] will be produced by the substantial
`document production deadline.” Ex. 3 at 13. Yet, Netflix still insisted that this issue was “ripe …
`for the [C]ourt,” Ex. 3 at 14, because Robocast had not committed to a “date certain,” Ex. 3 at 14-
`17, despite confirmation that Robocast “just told you that we are endeavoring to produce the
`documents by the November 17th deadline. If that's not a date certain, then, honestly, I don't know
`what is…” Ex. 3 at 16. Undeterred, Netflix raised a dispute it knew was moot. As to its second
`dispute, Robocast also supplemented its response to Netflix’s interrogatory 15. Netflix’s motion
`should be denied on both counts.
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`Background: Prior to November 2023, Robocast, a company of limited resources and employees,
`had produced over a million documents. In contrast, Netflix, a goliath, had produced only 4,803
`documents, the vast majority of which were public, non-responsive documents (as discussed in
`Robocast’s opening letter brief, D.I. 129). Netflix’s letter would have the Court believe that
`Robocast has done nothing in discovery to date when the reality is that Robocast produced more
`than 99% of its documents well before the date for substantial completion of document
`production. Netflix, on the other hand: (i) produced the majority of its still-deficient production in
`November 2023 (more than 6 months after receipt of Robocast’s first requests for production); and
`(ii) has not responded to nearly all of Robocast’s written discovery. Setting aside Netflix’s rhetoric,
`Robocast addresses Netflix’s specific requests below.
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`Robocast’s Production of Post-2014 documents: This request, as Netflix knew when it filed its
`letter, is moot. In compliance with its obligations, and the Court’s order at the August 29, 2023
`hearing, Robocast represented that it would substantially complete its production of these
`documents by November 17, 2023. And Robocast did. Notwithstanding its objections, Robocast
`produced post-2014 responsive, pre-patent expiration, and non-privileged documents. Ex. 4 at 5.1
`Netflix was aware of this production over 7 hours before filing its letter. Ex. 2; see also D.I. 46.
`Robocast even told Netflix about the content of the production. On the November 17, 2023 meet
`and confer (after the production was made), Robocast explained that its production “contains
`documents that are responsive to Netflix’s first and second RFPs, and also is made in compliance
`with the [C]ourt’s order on the last teleconference that Robocast search for and produce post 2014
`documents.” Ex. 4 at 5. Having complied with its representation, Robocast asked Netflix to
`withdraw this topic from the list of issues for the upcoming teleconference with the Court. Ex. 4
`at 6. Netflix refused. Netflix also chose not to conduct even a preliminary review of Robocast’s
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`1 This production did not include e-mail type documents. Robocast has approached Netflix about
`a mutual production of such documents, but Netflix has refused to engage on the topic. Robocast
`reserves the right to approach the Court regarding email production should Netflix continue its
`refusal to engage or the parties reach an impasse on an appropriate scope, time, and manner of
`production of such documents.
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`1
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`Case 1:22-cv-00305-RGA-JLH Document 137 Filed 11/29/23 Page 4 of 6 PageID #: 5726
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`production to confirm Robocast’s representations, opting instead to hide its head in the sand about
`the mootness of its request.
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`There was no ambiguity concerning Robocast’s position. Robocast confirmed during the
`November 2 and November 17, 2023 meet and confers that it was not withholding documents
`based on their date. (Ex. 3 at 11-12, 23; Ex. 4 at 5-6). In fact, Robocast confirmed at least nine
`times on the November 17 meet and confer that it would fully comply with this Court’s Order
`regarding production of post-2014 documents. Ex. 4 at 5, 14-15, 20-21, 24-25. Robocast also
`confirmed that despite its objections to Netflix’s overbroad second set of RFPs and the fact that
`this Court’s order regarding production of post-2014 documents issued before Robocast’s
`responses to that set of RFPs was due, Robocast’s “production contains documents that are
`responsive to Netflix’s first and second RFPs.” Ex. 3 at 5. There is therefore no “lack of clarity”
`as to what Robocast produced and what it is withholding. D.I. 131 at 2.
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`Finally, it did not “take[] several months of correspondence, multiple meet and confers, and the
`instant motion for Robocast to make its production.”2 D.I. 131 at 1, n.1. Since litigation is currently
`a primary focus of Robocast, complying with the Court’s directive involved complex document
`collection and analysis. Robocast’s in-house and outside counsel began working shortly after this
`Court’s August 29, 2023, Oral Order to locate all documents in its possession that were created
`after 2014, and it kept Netflix well-apprised about its efforts. For example, on September 13,
`Robocast advised Netflix that it was working on its production of post-2014 documents. Ex. 5 at
`40-41. On October 11, Robocast reminded Netflix that post-2014 documents in Robocast’s
`possession contain many privileged materials, and that it was taking time for Robocast to “locate,
`screen, and produce responsive, non-privileged documents.” Id. at 29-30. On November 2,
`Robocast informed Netflix that it was fully complying with the Court’s directive, that it had been
`“for weeks searching for and collecting [post-2014] documents” (Ex. 3 at 6-7), that Robocast was
`“endeavoring, as fast as we can, to review and produce [post-2014] documents” (id. at 8), and that
`it was Robocast’s “hope and our goal that [the documents] will be produced by the substantial
`document production deadline.” Id. at 13. Robocast further stated that because of the amount of
`privileged information in the documents, “[t]he review and collection is taking a significant
`amount of time and effort.” Id. at 19.
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`Because Robocast has complied with its obligations, Netflix’s request should be denied as moot.
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`Interrogatory No. 15: This interrogatory asks Robocast to identify all expenses and sources of
`income since the conception of the patents-in-suit. It therefore seeks discovery of the entire
`universe of Robocast’s finances from approximately 1996 to 2020. Ex. 3 at 65, 69. Given this
`extreme overbreadth, Robocast invited Netflix to meet and confer about its scope. Ex. 8 at 2. At
`the parties’ September 18 meet and confer, Robocast pointed out to Netflix that in its response to
`Robocast’s Rog No. 2, Netflix stated that it first offered the accused functionalities in August of
`2012 (a statement Netflix later explained is not true for a number of its platforms), and that
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`2 This issue was included in the joint motion for discovery conference only because Netflix refused
`to join the motion without it. Yet Netflix now acknowledges that this issue is not ripe. See D.I. at
`2 (Netflix’s request for “an opportunity to review Robocast’s November 17 production and provide
`the Court with a one-page reply to address Robocast’s most recent production”). Because there is
`simply no viable dispute here, the Court should deny Netflix’s request for additional briefing.
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`2
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`Case 1:22-cv-00305-RGA-JLH Document 137 Filed 11/29/23 Page 5 of 6 PageID #: 5727
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`discovery dating back to before that time was thus critically relevant to the hypothetical
`negotiation. Robocast further suggested that because its financial condition around that time would
`likewise be relevant to the hypothetical negotiation, the parties should mutually agree to produce
`responsive documents from 2011-2013 as a starting point to fulfilling their discovery obligations
`on this issue.3 Once the parties had reviewed that production, they could then evaluate the need for
`additional information. In response, Netflix’s counsel represented that they would confer with
`Netflix about producing responsive documents from that date range. Ex. 5 at 29-30, 34-35; Ex. 6
`at 7; Ex. 3 at 59. However, counsel never responded with Netflix’s position on that proposed
`compromise, despite Robocast’s repeated urging.
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`Having obtained no agreement from Netflix on the appropriate timeframe for discovery, Robocast
`nevertheless supplemented its response to Rog 15 in accordance with the staged process that it
`proposed.4 Specifically, on November 2, 2023, Robocast produced its tax returns from 2011
`through 2013, and it supplemented its response to Rog 15 to identify those documents pursuant to
`Rule 33(d). Ex. 8 at 2. Meanwhile, Netflix has yet to produce any meaningful discovery from prior
`to 2016 (which is a subject for the upcoming teleconference), but it has nevertheless continued to
`insist that Robocast produce approximately 20 years of additional financial information.5
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`Netflix also accuses Robocast’s counsel of having “no idea” whether Robocast had responsive
`financial documents within the date range of 2012 to 2020, which is yet another misrepresentation.
`The passage Netflix cites for this statement does not pertain to a discussion of Rog 15, but rather
`to Netflix’s second RFPs. Ex. 7 at 40-41. And what Robocast actually said was that in its upcoming
`production (which was made on November 17), Robocast would produce revenue documents, and
`that it was not Robocast’s “intent to withhold any non-privileged, non e-mail documents that
`appear to be responsive to Netflix’s requests,” but that Robocast needed to confirm that it had
`“captured revenue documents from the very broad time period of 2012 to 2020 solely because [the
`parties’] prior discussions had been limited to 2011 to 2013.” Id. at 40-41.
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`In any event, in light of Netflix’s waffling on a mutual agreement regarding the timeframe for
`discovery, and notwithstanding the improper breadth of the Rog at issue, Robocast decided to end
`any potential controversy from its end, and on November 21, 2023, it supplemented its response
`to Rog 15 to include responsive information of which Robocast is aware under Rule 33(d). Ex. 8
`at 2. Accordingly, Netflix’s second issue is also moot and should be denied.
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`3 This offer was without prejudice to Robocast’s ability to pursue the full scope of the discovery it
`is permitted under the rules.
`4 Netflix claims that Robocast took the position that “Netflix had agreed to narrow the date range
`to August 2011 through August 2013.” Not so. As the transcripts of the parties’ conferences
`indicate, Robocast proposed this mutual compromise position, but Netflix never agreed to it.
`Accordingly, Robocast decided to “abide by what we represented we would do,” and it produced
`financial information from 2011-2013. Ex. 3 at 59.
`5 At the parties’ November 2 conference, Robocast asked Netflix whether it was “committing to
`produce its own financial information from outside the damages period.” Ex. 3 at 66. In response,
`Netflix chastised Robocast for “chang[ing] the topic” and refused to answer. Id.
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`3
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`Respectfully submitted,
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`/s/ Stephen B. Brauerman
`Stephen B. Brauerman (No. 4952)
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`4
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