Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 1 of 30 PageID #: 16062
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`ROBOCAST, INC.,
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`v.
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`NETFLIX, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff and
`Counterclaim
`Defendant,
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`Defendant and
`Counterclaim Plaintiff.
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`Civil Action No. 1:22-cv-00305-JLH-
`CJB
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`JURY TRIAL DEMANDED
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`LETTER TO THE HONORABLE UNITED STATES MAGISTRATE JUDGE
`CHRISTOPHER J. BURKE REGARDNG PONCE DEPOSITION
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`[PUBLIC VERSION]
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`

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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 2 of 30 PageID #: 16063
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`Dear Judge Burke:
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`Robocast writes in further support of its request to require Netflix to produce Ms. Helen
`Ponce for deposition remotely or in person. This dispute is simple. Netflix seeks to avoid producing
`for deposition an individual it identified as a person with knowledge of important facts who Netflix
`implicitly concedes will testify at trial. Netflix’s excuses for doing so are unavailing.
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`
`First, Netflix’s lengthy recitation of the procedural history of this case is beside the point.
`As Netflix concedes, Ms. Ponce’s deposition was noticed over two weeks prior to the May 13,
`2024, extended deadline for fact discovery. In fact, any logjam was a product of Netflix’s own
`unwillingness to appropriately coordinate discovery with Google/YouTube and its insistence on
`an unrealistic discovery deadline.
`
`
`Second, Robocast diligently sought to schedule Ms. Ponce’s deposition. Following the
`April 5, 2024 discovery conference, when it became clear that the Parties would need to schedule
`30 depositions in a little more than one month, Robocast repeatedly sought to confer with Netflix
`in order to come to agreement on a comprehensive schedule for all depositions. Netflix refused.
`Instead, Netflix insisted on scheduling its depositions first, including depositions of third-party
`patent prosecution attorneys during the week of April 15, 2024-April 19, 2024. Robocast largely
`acquiesced to this maneuvering to avoid disputes. It was only after those depositions were
`scheduled, however, that Netflix then sprung Ms. Ponce’s supposed single day of availability,
`despite Netflix’s knowledge that Robocast’s counsel was otherwise committed to attending the
`already scheduled depositions. Nevertheless, Robocast again attempted to accommodate Ms.
`Ponce’s supposedly limited availability by asking that Netflix either a) indicate whether she would
`be designated as a 30(b)(6) witness or b) indicate that it did not intend to call Ms. Ponce’s at trial.
`Netflix failed to respond to either offer in a timely manner. Instead, Netflix unilaterally decided
`that Ms. Ponce’s deposition had been “released” before the date had even arrived. Netflix’s
`defense of this conduct—that Robocast was not “diligent”—ignores that Robocast repeatedly
`sought a mutually workable deposition date or, failing that, some other compromise, and Netflix
`responded by unilaterally “releasing”1 the witness.
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`Netflix’s other defense—that another member of Robocast’s team should have taken Ms.
`Ponce’s deposition—ignores the obvious fact that not each member of Robocast’s small team (all
`of whom are responsible for other matters as well)—was equally qualified to conduct Ms. Ponce’s
`deposition. That several members of Robocast’s team deposed 30(b)(6) witnesses does not mean
`that each member was appropriate to depose this particular 30(b)(6) witness. Netflix’s argument
`also ignores the fact that Netflix unilaterally “released” the witness without making any attempt at
`good faith coordination.
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`Notably, Netflix failed to designate any witness on three crucial topics (Netflix’s corporate
`structure, Netflix’s financials, and the costs and profits associated with each Accused
`Functionality). Ms. Ponce was identified as a person with knowledge on revenues and costs related
`to Netflix’s products in Netflix’s Interrogatory Responses and would likely have been designated
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`1 It is unclear what “releasing” a witness means in this context, but Robocast understands that
`Netflix will not produce Ms. Ponce for deposition.
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`1
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 3 of 30 PageID #: 16064
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`on these topics. (Exhibit A at Interrogatory 5, 10.) Of course, if its “release” of Ms. Ponce was
`truly a scheduling issue, Netflix could have designated another witness on these topics to avoid
`the obvious prejudice to Robocast. Its refusal to make Ms. Ponce available for deposition has
`instead served to deprive Robocast of highly relevant information for its damages case while the
`case progresses into expert discovery.
`
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`Third, it is notable that Netflix still declines to explain Ms. Ponce’s supposed unavailability
`outside of April 17. While Netflix again repeats that Ms. Ponce was on “business travel,” it does
`not explain how this precluded her remote deposition, other than to insist that because “Netflix
`disclosed her limitations”—that is, offered one day of availability—Netflix was relieved of any
`obligation to otherwise comply with the deposition notice.
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`Fourth, that Netflix’s position is untenable is demonstrated by the fact that Netflix has also
`sought to depose a witness out of time —Robocast’s third-party accountant Ken Hicks. Netflix did
`not serve its subpoena on Mr. Hicks until April 29, over four weeks after Robocast noticed Ms.
`Ponce, after the April 11, 2024, original deadline for fact discovery, and just two weeks before the
`May 13 extended deadline for fact discovery. In doing so, Netflix insisted that a deposition taken
`outside of the fact discovery period was not “out of time” if noticed within the (extended) fact
`discovery period. (Exhibit B). Unlike Netflix, Mr. Hicks, who is also represented by Robocast’s
`undersigned counsel, nevertheless agreed to sit for deposition out of time. Netflix should not be
`heard to advocate for a double standard.
`
`
`Finally, the equities favor granting Robocast’s request. The discovery process is meant to
`encourage full disclosure, not gamesmanship and sandbagging. Netflix’s tactics are transparent
`and should not be rewarded.
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`Thus, Robocast asks the Court to order Netflix to produce Ms. Ponce for deposition in the
`month of May 2024.
`
`Sincerely,
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`/s/ Stephen B. Brauerman
`Stephen B. Brauerman
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`Cc:
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`Counsel of Record
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`2
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 4 of 30 PageID #: 16065
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on May 22, 2024, copies of the attached document
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`were served via electronic mail on all counsel of record.
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`/s/ Stephen B. Brauerman
`Stephen B. Brauerman
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 5 of 30 PageID #: 16066
`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 5 of 30 PagelD #: 16066
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`EXHIBIT A
`EXHIBIT A
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 6 of 30 PageID #: 16067
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-305-JLH
`
`HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY
`
`
`) ) ) ) ) ) ) ) )
`
`Plaintiff and
`Counterclaim Defendant,
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`ROBOCAST, INC.,
`
`
`
`
`v.
`
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`NETFLIX, INC.,
`
`
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`)
`)
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`NETFLIX, INC.’S FOURTH SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
`ROBOCAST, INC.’S FIRST SET OF INTERROGATORIES (NOS. 1-2, 4-11)
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`Defendant and Counterclaim Plaintiff Netflix, Inc. (“Netflix”), by and through its
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`Defendant and
`Counterclaim Plaintiff.
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`attorneys, and pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure and the Local
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`Rules of this Court, hereby provides these supplemental responses and objections to Plaintiff and
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`Counterclaim Defendant Robocast, Inc.’s (“Robocast”) First Set of Interrogatories (Nos. 1-2, 4-
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`11) as follows:
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`PRELIMINARY STATEMENT
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`1.
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`Netflix’s investigation and development of all facts and circumstances relating to
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`this action is ongoing. These responses and objections are made without prejudice to, and are not
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`a waiver of, Netflix’s right to rely on other facts or documents at trial.
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`2.
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`By making
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`the accompanying responses and objections
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`to Robocast’s
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`Interrogatories, Netflix does not waive, and hereby expressly reserves, its right to assert any and
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`all objections as to the admissibility of such responses into evidence in this action, or in any other
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`proceedings, on any and all grounds including, but not limited to, competency, relevancy,
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`materiality, and privilege. Further, Netflix makes the responses and objections herein without in
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`

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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 7 of 30 PageID #: 16068
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`witnesses after the close of fact discovery if compelled by the Court or in the related Robocast,
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`Inc. v. Youtube, LLC, C.A. No. 22-305 (D. Del.) action. Netflix also reserves the right to rely on
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`any deposition testimony that Robocast has produced from the prior litigations, the deposition
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`testimony from individuals that Robocast has yet to produce, but is compelled to produce, from
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`the prior litigations pursuant to the Court’s April 5, 2024 order (and earlier court orders), the
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`parties’ forthcoming expert reports, and testimony, and any forthcoming testimony from third
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`party witnesses. See, e.g., Apr. 5, 2024 Hr’g Tr. 14:19-28:17.
`
`INTERROGATORY NO. 5:
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`On an annual and monthly basis, for each product that contains any of the Accused
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`Functionalities that is, in whole or in part, used, sold, or offered for sale, identify the following:
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`(a) the sales by units sold; (b) the gross sales in U.S. dollars; (c) the net sales in U.S. dollars (after
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`any discounts or allowances); (d) the cost of goods sold; (e) the gross profit margins; and (f) the
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`average per-unit sales price. Your answer should include a description of any other direct or
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`indirect costs (besides costs of goods sold) generally allocated to each sale on a gross and unit
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`basis (including a description of the method used to allocate such costs). Your answer should also
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`include an identification of the person(s) most knowledgeable about your answer and an
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`identification of documents that relate to or support your answer.
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`RESPONSE TO INTERROGATORY NO. 5 (Sept. 11, 2023):
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`Netflix incorporates its General Objections as though fully set forth herein. Netflix further
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`objects to this Interrogatory because it seeks information that is not relevant to the claim or defense
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`of any party and is not reasonably calculated to lead to the discovery of admissible evidence or
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`proportional to the needs of this case, because it is unbounded in time or geography, and because
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`it seeks information that is unrelated to any Patents-in-Suit. Netflix also objects to this
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`24
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 8 of 30 PageID #: 16069
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Interrogatory to the extent it is not limited in time or geography. In addition, Netflix objects to the
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`term “Accused Functionalities,” as vague and ambiguous, and improperly seeking information
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`outside the applicable damages period in this case or otherwise not relevant to the claims and issues
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`in this case. Netflix’s response below thus interprets “Accused Functionality” as used in this
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`Interrogatory as the autoplay functionality during Post-Play as employed on the Netflix Internet
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`Platform as it existed in the United States from March 7, 2016 until the alleged expiration of the
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`patents-in-suit (no later than August 2020). See Plaintiff Robocast Inc.’s Disclosure Pursuant To
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`Paragraph 4(a) of the Delaware Default Standard For Discovery at 1-2 (Mar. 3, 2023); Robocast
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`Inc.’s Paragraph 4(c) Disclosure of Initial Claim Charts (May 25, 2023); see also Aug. 29, 2023
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`Hr’g Tr. 55:7-25; id. at 56:25-57:12.
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`Subject to and without waiving these objections, Netflix submits the following response:
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`Netflix has identified Helen Ponce, Senior Director, Corporate Controller, as an individual
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`with knowledge of revenue and costs related to Netflix’s products. Netflix has and will continue
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`to produce nonprivileged, non-objectionable responsive information from which the requested
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`information can be readily obtained pursuant to Federal Rule 33(d). See, e.g., NFLX_0027767-
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`NFLX_0027781;
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`NFLX_0027999-NFLX_0028034;
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`NFLX_0028035-NFLX_0028073;
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`NFLX_0028074-NFLX_0028112;
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`NFLX_0028113-NFLX_0028185;
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`NFLX_0028186-
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`NFLX_0028224;
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`NFLX_0028225-NFLX_0028273;
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`NFLX_0028274-NFLX_0028444;
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`NFLX_0028445-NFLX_0028517;
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`NFLX_0028518-NFLX_0028593;
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`NFLX_0028594-
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`NFLX_0028627;
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`NFLX_0028628-NFLX_0028666;
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`NFLX_0028667-NFLX_0028706;
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`NFLX_0028707-NFLX_0028788;
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`NFLX_0028789-NFLX_0028799;
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`NFLX_0028800-
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`NFLX_0028834;
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`NFLX_0028835-NFLX_0028875;
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`NFLX_0028876-NFLX_0028917;
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`NFLX_0028918-NFLX_0028995;
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`NFLX_0028996-NFLX_0029029;
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`NFLX_0029030-
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`25
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`

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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 9 of 30 PageID #: 16070
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`NFLX_0029071-NFLX_0029110;
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`NFLX_0029111-NFLX_0029182;
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`NFLX_0029070;
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`NFLX_0027999-NFLX_0028034; NFLX_0028035-NFLX_0028073.
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`Netflix expressly reserves all rights to supplement, revise, and/or amend this response.
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`Netflix is continuing to investigate the subject matter of this Interrogatory and reserves all rights
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`to supplement this response if it discovers any responsive, relevant, non-privileged documents or
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`information.
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`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 5 (Dec. 1, 2023):
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`Subject to the foregoing specific objections and General Objections, Netflix supplements
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`its response as follows:
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`Pursuant to Rule 33(d), Netflix identifies the following documents:
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`E.g., NFLX_0029818; NFLX_0029819; NFLX_0029820; NFLX_0029821;
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`NFLX_0029822; NFLX_0029823; NFLX_0029824; NFLX_0032745; NFLX_0032746;
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`NFLX_0032747; NFLX_0032748; NFLX_0032749; NFLX_0032750; NFLX_0032751;
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`NFLX_0032752; NFLX_0032754; NFLX_0032756; NFLX_0032757; NFLX_0032758;
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`NFLX_0032759; NFLX_0032760; NFLX_0032761; NFLX_0032762; NFLX_0032765;
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`NFLX_0032766; NFLX_0032767; NFLX_0032768; NFLX_0032769; NFLX_0032770;
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`NFLX_0032775; NFLX_0032776; NFLX_0032778; NFLX_0032779; NFLX_0032780;
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`NFLX_0032782; NFLX_0032783; NFLX_0032784; NFLX_0046771-NFLX_0046830;
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`NFLX_0046845-NFLX_0046877;
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`NFLX_0046878-NFLX_0046911;
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`NFLX_0046912-
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`NFLX_0046947;
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`NFLX_0046948-NFLX_0046984;
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`NFLX_0046985-NFLX_0047064;
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`NFLX_0047065-NFLX_0047097;
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`NFLX_0047098-NFLX_0047136;
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`NFLX_0047137-
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`NFLX_0047175;
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`NFLX_0047176-NFLX_0047196;
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`NFLX_0047197-NFLX_0047270;
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`NFLX_0047271-NFLX_0047307;
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`NFLX_0047308-NFLX_0047348;
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`NFLX_0047349-
`
`26
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 10 of 30 PageID #: 16071
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`of Netflix’s and Robocast’s witnesses, any forthcoming testimony from Netflix or Robocast
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`witnesses after the close of fact discovery if compelled by the Court or in the related Robocast,
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`Inc. v. Youtube, LLC, C.A. No. 22-305 (D. Del.) action. Netflix also reserves the right to rely on
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`any deposition testimony that Robocast has produced from the prior litigations, the deposition
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`testimony from individuals that Robocast has yet to produce, but is compelled to produce, from
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`the prior litigations pursuant to the Court’s April 5, 2024 order (and earlier court orders related to
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`the same, the parties’ forthcoming expert reports and testimony, and any forthcoming testimony
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`from third party witnesses. See, e.g., Apr. 5, 2024 Hr’g Tr. 14:19-28:17
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`INTERROGATORY NO. 10:
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`Separately for each Patent-in-Suit, identify and describe any and all documents and/or other
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`information that You intend to or may use to support Your calculation of damages in this case
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`and/or that You intend to or may use to refute any calculation damages by Plaintiffs in this case.
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`Your answer should additionally include an identification of the three (3) person(s) most
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`knowledgeable of Your answer and an identification of any documents that relate to, support, or
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`refute Your answer.
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`RESPONSE TO INTERROGATORY NO. 10 (Sept. 11, 2023):
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`Netflix incorporates its General Objections as though fully set forth herein. Netflix objects
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`to this Interrogatory as overly broad, unduly burdensome, and not reasonably calculated to lead to
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`the discovery of admissible evidence, and not proportional to the needs of this case. Netflix also
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`objects to this Interrogatory to the extent it is not limited in time or geography. Netflix’s response
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`below thus interprets “Accused Functionality” as used in this Interrogatory as the autoplay
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`functionality during Post-Play as employed on the Netflix Internet Platform as it existed in the
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`United States from March 7, 2016 until the alleged expiration of the patents-in-suit (no later than
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`86
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 11 of 30 PageID #: 16072
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`August 2020). See Plaintiff Robocast Inc.’s Disclosure Pursuant To Paragraph 4(a) of the
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`Delaware Default Standard For Discovery at 1-2 (Mar. 3, 2023); Robocast Inc.’s Paragraph 4(c)
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`Disclosure of Initial Claim Charts (May 25, 2023); see also Aug. 29, 2023 Hr’g Tr. 55:7-25; id. at
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`56:25-57:12. Netflix further objects to this Interrogatory as impermissibly compound conjunctive,
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`and containing subparts. Netflix objects to this Interrogatory to the extent that it seeks expert
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`opinions prior to the deadline for service of expert reports (see D.I. 47). Netflix objects to this
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`Interrogatory because, as the party with the burden of proof to show entitlement to damages,
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`Robocast must first provide its damages contentions before Netflix is required to provide
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`responsive contentions. Robocast has not done so. Netflix further objects to this Interrogatory as
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`impermissibly compound conjunctive, and containing subparts.
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`Subject to and without waiving these objections, Netflix submits the following response:
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`Robocast is “not seeking lost profits” in this action. See Aug. 29, 2023 Hr’g Tr. 12:10-13.
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`Accordingly, Robocast is not entitled to any lost profit damages. And despite repeated requests
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`that it do so, Robocast has yet to disclose even basic information regarding any specific reasonable
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`royalty theory of damages in this litigation, or even identified the date it contends the hypothetical
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`negotiation would have occurred, in either its responses to Netflix’s interrogatories or its Rule 26
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`disclosures. As a result, Netflix is unable to provide any responsive damages contentions at this
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`time. Netflix’s investigation is ongoing and it will disclose its contentions in accordance with the
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`Court’s procedural schedule and supplement its response to this Interrogatory as its investigation
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`and discovery proceeds, and after Robocast provides its contentions as to damages.
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`Nevertheless, and subject to expert discovery, Netflix identifies Robocast’s licenses of the
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`Patents-in-Suit to Microsoft Corporation, Apple Inc., and Vevo LLC, as potentially comparable
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`87
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 12 of 30 PageID #: 16073
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`See ROBOCAST000001-ROBOCAST000018;
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`
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`the
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`Patents-in-Suit.
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`licenses
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`to
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`ROBOCAST0000019-ROBOCAST000035; ROBOCAST001969-ROBOCAST001981.
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`Netflix identifies Helen Ponce as an individual having knowledge of Netflix’s revenue and
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`costs related to Netflix’s products.
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`Netflix expressly reserves all rights to supplement, revise, and/or amend this response.
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`Netflix is continuing to investigate the subject matter of this Interrogatory and reserves all rights
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`to supplement this response if it discovers any responsive, relevant, non-privileged documents or
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`information.
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`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 10 (May 13, 2024):
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`Netflix incorporates its previous specific objections and General Objections as though fully
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`set forth herein. Subject to the foregoing specific objections and General Objections, Netflix
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`supplements its response as follows:
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`Netflix has not infringed any valid and unenforceable asserted claim of the patents-in-suit
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`and thus no damages are warranted.
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`Despite repeated requests that it do so, Robocast has yet to disclose even basic information
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`regarding any specific reasonable royalty theory of damages in this litigation, including the
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`specific parties to the hypothetical negotiation, or even identified the date it contends the
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`hypothetical negotiation would have occurred, in either its responses to Netflix’s interrogatories
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`or its Rule 26 disclosures. Robocast has also refused to provide deposition testimony on the factual
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`bases for its claim of reasonable royalty damages. See D.I. 274. And, despite a Court order to do
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`so, Robocast has not produced documents bearing on the issue of damages, including expert
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`reports served in the prior Apple litigation. Though Robocast bears the burden on damages and
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`has to date failed to comply with its discovery obligations, Netflix nonetheless identifies below
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`88
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 13 of 30 PageID #: 16074
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`
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`OF COUNSEL:
`
`Tara D. Elliott (#4483)
`Rachel Weiner Cohen
`Ashley M. Fry
`Diane E. Ghrist
`Alessandra M. Schaszberger
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004-1304
`(202) 637-2200
`
`Kimberly Q. Li
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 880-4500
`
`Dated: May 13, 2024
`
`
`
`
`
`
`
`
`/s/ Sara M. Metzler
`Kelly E. Farnan (#4395)
`Sara M. Metzler (#6509)
`RICHARDS, LAYTON & FINGER P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`farnan@rlf.com
`metzler@rlf.com
`
`Attorneys for Defendant and Counterclaim
`Plaintiff Netflix, Inc.
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`
`
`99
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 14 of 30 PageID #: 16075
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`CERTIFICATE OF SERVICE
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` I certify that I caused copies of the foregoing document to be served on May 13, 2024,
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`upon the following in the manner indicated.
`
`VIA ELECTRONIC MAIL
`Stephen B. Brauerman
`Ronald P. Golden III
`Bayard, P.A.
`600 North King Street, Suite 400
`Wilmington, DE 19801
`
`VIA ELECTRONIC MAIL
`Casey L. Shomaker
`Samuel L. Moore
`Steven Udick
`Joseph Micheli
`McKool Smith, P.C.
`300 Crescent Court, Suite 1500
`Dallas, TX 75201
`
`VIA ELECTRONIC MAIL
`Ramy E. Hanna
`McKool Smith, P.C.
`600 Travis Street, Suite 700
`Houston, TX 77002
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`VIA ELECTRONIC MAIL
`Marc N. Henschke
`HenschkeLaw, PLLC
`77 Spring Road
`Concord, MA 01742
`
`
`VIA ELECTRONIC MAIL
`Steven Rizzi
`Mariel Talmage
`Grant Johnson
`McKool Smith, P.C.
`1301 6th Avenue, 32nd Floor
`New York, NY 10019
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`/s/ Sara M. Metzler
`Sara M. Metzler (#6509)
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`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 15 of 30 PageID #: 16076
`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 15 of 30 PagelD #: 16076
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`EXHIBIT B
`EXHIBIT B
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`

`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 16 of 30 PageID #: 16077
`
`From:
`To:
`
`Cc:
`
`Subject:
`Date:
`Attachments:
`
`Alessandra.Schaszberger@lw.com
`Mariel Talmage; Rachel.Cohen@lw.com; Steven Udick; Metzler@rlf.com; Steven Rizzi; Ramy Hanna; Grant
`Johnson; marc.henschke@henschkelaw.com; sbrauerman@bayardlaw.com; rgolden@bayardlaw.com;
`clacey@wsgr.com; jjaffe@wsgr.com
`netflixrobocast.lwteam@lw.com; Farnan@RLF.com; RobocastNetflixIPR; Cottrell@RLF.com; WSGR-
`RobocastvYouTube@wsgr.com
`RE: Activity in Case 1:22-cv-00305-JLH Robocast, Inc. v. Netflix, Inc. Notice (Other)
`Tuesday, May 21, 2024 12:05:29 PM
`image001.png
`image002.png
`image003.png
`image004.png
`
`Mariel,
`
`Contrary to your assertions, Netflix is not conducting Mr. Hicks’s deposition “out of time.” We were
`fully prepared to proceed with the deposition on the originally noticed date of May 13. At the
`request of Mr. Hicks, Netflix accommodated an alternative date. In fact, Mr. Hicks’s agreement to
`the rescheduled date of May 24 was not predicated on the condition that the deposition be
`conducted remotely. Further, in scheduling Mr. Hicks’s deposition, Netflix selected a location that is
`conveniently located just 5 miles from Mr. Hicks’s residence, in compliance with Rule 45. This rule
`mandates that reasonable steps be taken to avoid imposing undue burden on the person subject to
`the subpoena, and it does not consider the convenience of the party’s counsel in relation to the
`travel required for a third-party deposition.
`
`Additionally, if McKool Smith has concerns regarding the upcoming holiday weekend, it had the
`option to accept Netflix’s offer for a deposition on Thursday, May 23, as proposed in our May 17
`email. See 5/17/24 Email from R. Cohen to M. Talmage.
`
`If McKool Smith wishes to defend this deposition remotely, it can arrange a Zoom connection and
`bear the associated costs. Netflix will proceed with Mr. Hicks’s deposition at the Fort Myers
`Executive Center, located at 5237 Summerlin Commons, Fort Myers, FL 33907.
`
`Regards,
`Alessandra
`
`Alessandra My-Linh Schaszberger
`
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW | Suite 1000 | Washington, D.C. 20004-1304
`D: +1.202.350.5131
`
`From: Mariel Talmage <mtalmage@McKoolSmith.com>
`Sent: Tuesday, May 21, 2024 10:09 AM
`To: Schaszberger, Alessandra (DC) <Alessandra.Schaszberger@lw.com>; Cohen, Rachel Weiner (DC)
`<Rachel.Cohen@lw.com>; Steven Udick <sudick@McKoolSmith.com>; Metzler@rlf.com; Steven Rizzi
`<srizzi@McKoolSmith.com>; Ramy Hanna <rhanna@McKoolSmith.com>; Grant Johnson
`<gjohnson@McKoolSmith.com>; marc.henschke@henschkelaw.com; sbrauerman@bayardlaw.com;
`rgolden@bayardlaw.com; clacey@wsgr.com; jjaffe@wsgr.com
`Cc: #C-M NETFLIX - ROBOCAST - LW TEAM <netflixrobocast.lwteam@lw.com>; Farnan@RLF.com;
`
`

`

`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 17 of 30 PageID #: 16078
`
`RobocastNetflixIPR <RobocastNetflixIPR@mckoolsmith.com>; Cottrell@RLF.com; WSGR-
`RobocastvYouTube@wsgr.com
`Subject: RE: Activity in Case 1:22-cv-00305-JLH Robocast, Inc. v. Netflix, Inc. Notice (Other)
`
`Alessandra,
`
`We write in response to your email concerning the location of Mr. Hicks deposition. As an initial
`matter, Mr. Hicks is accommodating Netflix’s request for a deposition out of time, even though
`Netflix has failed to justify why it should be permitted to do so. Indeed, Netflix has long been aware
`of Mr. Hicks and his role as accountant for Robocast. The May 24 date, which is the Friday before a
`holiday weekend, was offered on the basis that the deposition would be remote. As Netflix is aware,
`a party serving a subpoena is required to take reasonable measures to decrease burden. F.R.C.P.
`45(a). It is unclear why Netflix insists on increasing the burden on the witness, as well as on counsel
`for all parties, none of whom seem to reside in Florida and would need to make travel arrangements
`ahead of a busy holiday weekend. We also note that Netflix and Google deposed Dr. Zellweger
`remotely, another third party with a discrete universe of information, without issue.
`
`Please confirm that Netflix will conduct Mr. Hicks’ deposition remotely and save all involved the
`expense and burden of traveling ahead of Memorial Day for a few hours of testimony. We would
`appreciate counsel for Google confirming as well.
`
`We are considering your request regarding the Basecamp folders and will follow up later today.
`
`Best,
`Mariel
`
`McKool Smith​​​​ | Mariel Talmage
`Associate | New York, NY | Tel: (212) 402-9442
`
`NOTICE OF CONFIDENTIALITY: The information contained in and transmitted with this e-mail is SUBJECT TO THE ATTORNEY-CLIENT and
`ATTORNEY WORK PRODUCT PRIVILEGE and is CONFIDENTIAL. It is intended only for the individual or entity designated above. You are
`hereby notified that any dissemination, distribution, copying, use or reliance upon the information contained in and transmitted with this
`e-mail by or to anyone other than the addressee designated above by the sender is unauthorized and strictly prohibited. If you have
`received this e-mail in error, please notify the sender by reply immediately. Any e-mail erroneously transmitted to you should be
`immediately destroyed.​
`
`From: Alessandra.Schaszberger@lw.com <Alessandra.Schaszberger@lw.com>
`Sent: Tuesday, May 21, 2024 9:04 AM
`To: Mariel Talmage <mtalmage@McKoolSmith.com>; Rachel.Cohen@lw.com; Steven Udick
`<sudick@McKoolSmith.com>; Metzler@rlf.com; Steven Rizzi <srizzi@McKoolSmith.com>; Ramy
`Hanna <rhanna@McKoolSmith.com>; Grant Johnson <gjohnson@McKoolSmith.com>;
`marc.henschke@henschkelaw.com; sbrauerman@bayardlaw.com; rgolden@bayardlaw.com;
`clacey@wsgr.com; jjaffe@wsgr.com
`Cc: netflixrobocast.lwteam@lw.com; Farnan@RLF.com; RobocastNetflixIPR
`<RobocastNetflixIPR@mckoolsmith.com>; Cottrell@RLF.com; WSGR-RobocastvYouTube@wsgr.com
`Subject: RE: Activity in Case 1:22-cv-00305-JLH Robocast, Inc. v. Netflix, Inc. Notice (Other)
`
`Mariel,
`
`

`

`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 18 of 30 PageID #: 16079
`
`
`As you are aware, Mr. Hicks had access to Basecamp folders. In an effort to minimize the time that
`the parties need to spend negotiating what can be shown to Mr. Hicks under the Protective Order at
`the deposition and prolonging the time Mr. Hicks will need to sit, please identify by EOD today, May
`21, all Basecamp folders for which Mr. Hicks had access.
`
`Regards,
`Alessandra
`
`Alessandra My-Linh Schaszberger
`
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW | Suite 1000 | Washington, D.C. 20004-1304
`D: +1.202.350.5131
`
`From: Schaszberger, Alessandra (DC) <Alessandra.Schaszberger@lw.com>
`Sent: Monday, May 20, 2024 4:55 PM
`To: Mariel Talmage <mtalmage@McKoolSmith.com>; Cohen, Rachel Weiner (DC)
`<Rachel.Cohen@lw.com>; Steven Udick <sudick@McKoolSmith.com>; Metzler@rlf.com; Steven Rizzi
`<srizzi@McKoolSmith.com>; Ramy Hanna <rhanna@McKoolSmith.com>; Grant Johnson
`<gjohnson@McKoolSmith.com>; marc.henschke@henschkelaw.com; sbrauerman@bayardlaw.com;
`rgolden@bayardlaw.com; clacey@wsgr.com; jjaffe@wsgr.com
`Cc: #C-M NETFLIX - ROBOCAST - LW TEAM <netflixrobocast.lwteam@lw.com>; Farnan@RLF.com;
`RobocastNetflixIPR <RobocastNetflixIPR@mckoolsmith.com>; Cottrell@RLF.com; WSGR-
`RobocastvYouTube@wsgr.com
`Subject: RE: Activity in Case 1:22-cv-00305-JLH Robocast, Inc. v. Netflix, Inc. Notice (Other)
`
`Mariel,
`
`We will proceed with an in-person deposition of Mr. Hicks at Fort Myers Executive Center located at
`5237 Summerlin Commons, Fort Myers, FL 33907. The deposition will begin at 9 am ET on May 24.
`
`Regards,
`Alessandra
`
`Alessandra My-Linh Schaszberger
`
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW | Suite 1000 | Washington, D.C. 20004-1304
`D: +1.202.350.5131
`
`From: Mariel Talmage <mtalmage@McKoolSmith.com>
`Sent: Monday, May 20, 2024 10:01 AM
`To: Schaszberger, Alessandra (DC) <Alessandra.Schaszberger@lw.com>; Cohen, Rachel Weiner (DC)
`<Rachel.Cohen@lw.com>; Steven Udick <sudick@McKoolSmith.com>; Metzler@rlf.com; Steven Rizzi
`<srizzi@McKoolSmith.com>; Ramy Hanna <rhanna@McKoolSmith.com>; Grant Johnson
`<gjohnson@McKoolSmith.com>; marc.henschke@henschkelaw.com; sbrauerman@bayardlaw.com;
`
`

`

`Case 1:22-cv-00305-JLH Document 301 Filed 06/07/24 Page 19 of 30 PageID #: 16080
`
`rgolden@bayardlaw.com; clacey@wsgr.com; jjaffe@wsgr.com
`Cc: #C-M NETFLIX - ROBOCAST - LW TEAM <netflixrobocast.lwteam@lw.com>; Farnan@RLF.com;
`RobocastNetflixIPR <RobocastNetflixIPR@mckoolsmith.com>; Cottrell@RLF.com; WSGR-
`RobocastvYouTube@wsgr.com
`Subject: RE: Activity in Case 1:22-cv-00305-JLH Robocast, Inc. v. Netflix, Inc. Notice (Other)
`
`Alessandra,
`
`Mr. Hicks is located in Florida. He is available to sit for deposition remotely on May 24th.
`
`Mariel
`
`
`McKool Smith​​​​ | Mariel Talmage
`Associate | New York, NY | Tel: (212) 402-9442
`
`NOTICE OF CONFIDENTIALITY: The information contained in and transmitted with this e-mail is SUBJECT TO THE ATTORNEY-CLIENT and
`ATTORNEY WORK PRODUCT PRIVILEGE and is CONFIDENTIAL. It is intended only for the individual or entity designated above. You are
`hereby notified that any dissemination, distribution, copying, use or reliance upon the information contained in and transmitted with this
`e-mail by or to anyone other than the addressee designated above by the sender is unauthorized and strictly prohibited. If you have
`received this e-mail in error, please notify the sen