Case 1:22-cv-00305-RGA-JLH Document 152 Filed 12/21/23 Page 1 of 2 PageID #: 7832
`
`Kelly E. Farnan
`(302) 651-7705
`farnan@rlf.com
`
`December 21, 2023
`
`
`
`
`
`
`
`
`
`BY CM/ECF
`Honorable Jennifer L. Hall
`J. Caleb Boggs Federal Building
`844 N. King Street, Unit 17, Room 6312
`Wilmington, DE 19801-3555
`
`
`
`
`
`
`
`
`
`Re: Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA-JLH
`
`Dear Judge Hall:
`
`Robocast has filed objections to the very Order of this Court that Robocast complains that
`Netflix has not responded to quickly enough. D.I. 146. Notwithstanding that Your Honor’s Order
`is subject to briefing in progress before Judge Andrews, Netflix is nonetheless diligently working
`on Robocast’s requests from its December 7 letter. D.I. 148, Ex. 1 at 2 (K. Li 12/15/2023 Email).
`Contrary to Robocast’s mischaracterizations, Netflix has not given itself an extension of time (the
`Order was silent as to timing) nor has Netflix delayed in gathering the discovery Robocast seeks
`(such work commenced immediately upon receipt). Robocast’s requests necessarily requires input
`from Netflix employees. As was made clear in Netflix’s acknowledgment of Robocast’s
`December 7 letter, the holidays have inhibited Netflix’s collection effort and impacted the timing
`of its response. The necessary respondents and facilitators of information gathering at Netflix are
`on Winter holiday. Netflix endeavors to provide a response to Robocast’s letter as soon as those
`who are able to respond substantively regarding Robocast’s requests can do so. While Netflix
`cannot guarantee timing for Netflix employees who are currently unavailable and not in
`communication, Netflix expects to provide a status update by January 5, and produce responsive
`documents it is able to locate the following week.
`
`To be clear, Netflix did not take the position that it need not comply with the Order until
`Robocast’s Objections are resolved, as Netflix is undertaking investigations in response to
`Robocast’s requests.1 The plain language of Netflix’s correspondence dispels Robocast’s clear
`misinterpretation. Netflix’s intent was to emphasize that the changing and uncertain scope of
`requests and moving targets compound the burden on Netflix and its employees, and to explain
`that Robocast’s serial requests take time to investigate.
`
`
`1 Though a stay of a discovery order pending resolution of a party’s objections is a sensible way
`to proceed and has been adopted in similar circumstances on the request of the responding party.
`See, e.g., Ex. 1, Fraunhofer-Gesellschaft zur Forderung der Angewandten Forschung E.V. v.
`Sirius XM Radio Inc., No. 17-184-JFB, D.I. 586 (D. Del. Jul. 12, 2022). This practice highlights
`the absurdity of Robocast’s complaints and demand for compliance when Robocast is the one
`seeking to broaden the scope of Your Honor’s Order.
`
`
`
`

`

`Case 1:22-cv-00305-RGA-JLH Document 152 Filed 12/21/23 Page 2 of 2 PageID #: 7833
`
`The Honorable Judge Jennifer L. Hall
`Page 2
`
`
`Robocast has only itself to blame for any discontent it has with the timing of this process,
`which far predates Robocast’s filing of its December 7 letter. Robocast was given clear guidance
`by the Court during the August 29 teleconference as to what it needed to do to show good cause
`for the pre-2016 documents it now seeks. Ex. 2, Aug. 29, 2023 Hr’g Tr. 55:7-17. Netflix spent
`countless hours trying to work with Robocast to understand what it was seeking and why. D.I.
`133 at 2. Robocast nevertheless failed to streamline its blanket requests for pre-2016 documents
`and obstructed the parties’ ability to meaningfully resolve this dispute before the substantial
`completion deadline. The day before the November 29 teleconference, the Court expressly ordered
`that Robocast be prepared to “explain how [it] complied with the Court’s prior ruling on this issue,”
`including identifying specific requests for which Robocast sought discovery and explaining why
`Robocast needed documents predating 2016. See D.I. 135. But, during the hearing, Robocast still
`spoke in generalities instead of identifying specific requests or articulating good cause for seeking
`pre-2016 documents. D.I. 148, Ex. 2 at 18:1-5, 28:14-16. Indeed, the Court recognized that
`Robocast’s requests were lacking in specificity. Id. at 9:13-24 (“it seems like what might have
`been going on here is you were saying we want everything going back to 2012”), 19:10-12 (“[o]ne
`might also say that [Robocast] could have given [Netflix] some examples of the types of stuff you
`were looking for”). Even after the Court gave Robocast yet another opportunity to narrow its
`requests and make its showing of good cause, Robocast then delayed over a week after the Court’s
`November 29 oral Order before transmitting its requests to Netflix until December, and at a time
`of year that Robocast very well knows can be difficult to secure employee availability. See D.I.
`140. Robocast’s December 7 letter unilaterally demanded that Netflix provide substantive
`responses a mere week from its filing. Robocast’s claim that this arbitrary deadline it imposed
`was “ample time” is untenable in view of the months that Robocast took even to articulate its
`requests, and the still-amorphous scope of such requests. See D.I. 148 at 1.
`
`At bottom, even Netflix’s best efforts and intentions cannot satisfy Robocast’s arbitrary
`and unwarranted demands for a discovery response between Christmas and New Year’s after
`Robocast consistently delayed in narrowing its requests and showing good cause, as ordered by
`the Court. Indeed, this letter exchange is a waste of the Court’s and the parties’ resources at a time
`where the parties are briefing Robocast’s objections to Your Honor’s discovery Order, and
`otherwise submitting claim construction briefing. Any response compelled by an artificial and
`unreasonably timed deadline is limited by the information and documents Netflix is able to obtain
`from its available employees; rather, allowing Netflix employees to return after the holidays to
`assist in the preparation of an accurate and thoroughly investigated response benefits both parties.
`
`Respectfully,
`
`/s/ Kelly E. Farnan
`
`Kelly E. Farnan (#4395)
`
`cc: All Counsel of Record (CM/ECF)
`
`
`
`