Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 1 of 8 PageID #: 16204
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`
`
`
`
`
`Plaintiff,
`
`Civil Action No. 22-305-JLH-CJB
`
`
`
`
`
`Defendant.
`
`
`Robocast Inc.,
`
`
`vs.
`
`Netflix, Inc.,
`
`
`
`
`
`
`
`
`DECLARATION OF BRETT SMITH REGARDING ROBOCAST’S IN-CAMERA
`SUBMISSION OF LOGGED DOCUMENTS
`
`I, Brett Smith, do hereby declare as follows:
`
`1.
`
`I am an attorney licensed to practice law in New York and Senior Vice President
`
`for Legal and Intellectual Property at Robocast, Inc. I have personal knowledge of the matters
`
`contained herein and if called, could and would testify competently thereto.
`
`2.
`
`3.
`
`I am over 18 years of age and suffer no legal disabilities.
`
`This declaration is submitted in concert with Robocast’s in-camera submission of
`
`25 documents identified by Netflix from Robocast’s log of withheld documents in order to
`
`provide supporting context for Robocast withholding the documents. I understand from counsel
`
`that the Court has indicated that privileged documents, work product, and documents withheld
`
`for litigation funding that do not relate to the value of the IP in this case should not be produced.
`
`4.
`
`From March 2008 to 2010 I worked as Director of Business and Legal Affairs
`
`(this being a commonly understood media industry title for an attorney) for IMU.1 On or about
`
`2011 through on or about 2012, I worked as Special Counsel at Foley & Lardner LLP, working
`
`
`1 IMU (Interactive Media Universe) is a solely-owned LLC owned by Robocast founder Damon Torres which was
`formed solely to hold Mr. Torres’s shares and support Robocast operations. My title when I was hired was Director
`of Operations and Business Development, but this changed after a few months when it became clear I was performing
`mostly legal work for both IMU and Robocast.
`
`
`
`-1-
`
`[PUBLIC VERSION]
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`
`
`
`
`
`Plaintiff,
`
`Civil Action No. 22-305-JLH-CJB
`
`
`
`
`
`Defendant.
`
`
`Robocast Inc.,
`
`
`vs.
`
`Netflix, Inc.,
`
`
`
`
`
`
`
`
`DECLARATION OF BRETT SMITH REGARDING ROBOCAST’S IN-CAMERA
`SUBMISSION OF LOGGED DOCUMENTS
`
`I, Brett Smith, do hereby declare as follows:
`
`1.
`
`I am an attorney licensed to practice law in New York and Senior Vice President
`
`for Legal and Intellectual Property at Robocast, Inc. I have personal knowledge of the matters
`
`contained herein and if called, could and would testify competently thereto.
`
`2.
`
`3.
`
`I am over 18 years of age and suffer no legal disabilities.
`
`This declaration is submitted in concert with Robocast’s in-camera submission of
`
`25 documents identified by Netflix from Robocast’s log of withheld documents in order to
`
`provide supporting context for Robocast withholding the documents. I understand from counsel
`
`that the Court has indicated that privileged documents, work product, and documents withheld
`
`for litigation funding that do not relate to the value of the IP in this case should not be produced.
`
`4.
`
`From March 2008 to 2010 I worked as Director of Business and Legal Affairs
`
`(this being a commonly understood media industry title for an attorney) for IMU.1 On or about
`
`2011 through on or about 2012, I worked as Special Counsel at Foley & Lardner LLP, working
`
`
`1 IMU (Interactive Media Universe) is a solely-owned LLC owned by Robocast founder Damon Torres which was
`formed solely to hold Mr. Torres’s shares and support Robocast operations. My title when I was hired was Director
`of Operations and Business Development, but this changed after a few months when it became clear I was performing
`mostly legal work for both IMU and Robocast.
`
`
`
`-1-
`
`[PUBLIC VERSION]
`
`
`
`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 2 of 8 PageID #: 16205
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`on document review and other tasks
`
`
`
`. On or about February 2012 I returned to Robocast as Counsel. I served as Counsel for
`
`Robocast for about a year and was then promoted to Vice President, Business and Legal Affairs.
`
`I served as Vice President, Business and Legal Affairs until on or about June 2017, when I left to
`
`start a consulting business. In April 2019, I formed my law firm Brett Smith Law PLLC, through
`
`which in May 2019, I resumed legal work for Robocast. I returned full-time to Robocast in
`
`February 2022, as Senior Vice President for Legal and Intellectual Property where I am sole in-
`
`house legal counsel providing legal advice on all aspects of Robocast’s business, including but
`
`not limited to general corporate affairs, intellectual property management, and contract
`
`negotiation.
`
`5.
`
`Document 1, ROBO-REV0000005659, is a draft agreement related to equity
`
`investments, scanned with hand edits. The document date and authorship are not clear from the
`
`face of the document.
`
`
`
`
`
`. To the best of my knowledge this
`
`marked-up draft was not shared outside of Robocast and its agents.
`
`6.
`
`Concerning Document 2, ROBO-REV0000005728, is a document identifier that I
`
`understand from counsel inadvertently appears twice on Robocast’s privilege log with different
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`document dates and document descriptions.
`
`
`
`-2-
`
`
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`
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`
`
`
`
`. The second
`
`
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 3 of 8 PageID #: 16206
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`entry for ROBO-REV0000005728
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`
`
`
`
`
`
`
`
`, and is also being provided to the Court
`
`for in-camera review.
`
`7.
`
`I also understand from counsel that, despite assuring Robocast that it will select
`
`its final 25 documents from among those listed in Appendix 1 and Appendix 2 to their Reply
`
`letter at D.I. 294, that ROBO-REV0000005728 did not appear in either of Netflix’s Appendices.
`
`I understand from counsel that Netflix did not previously raise any issue with the inadvertent
`
`double entry for ROBO-REV0000005728 prior to its submission on August 19, 2024, and if it
`
`had, that counsel could have quickly corrected the issue without Court involvement.
`
`8.
`
`Document 3, ROBO-REV0000006850, was initially withheld as privileged. Upon
`
`further investigation in connection with the current dispute, counsel, Robocast employees, and I
`
`determined that the tracked changes initially thought to reflect communications with counsel did
`
`not in fact reflect communications with counsel. I understand from counsel that this document
`
`was produced to Netflix on August 14, 2024 along with a chart mapping ROBO-REV identifiers
`
`to production Bates numbers.
`
`9.
`
`Document 4, ROBO-REV0000006345,
`
`
`
`
`
`
`
`.
`
`
`
`-3-
`
`
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 4 of 8 PageID #: 16207
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`10.
`
`Document 5, ROBO-REV0000006361,
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`alternate draft of this ultimately unsent communication that omits discussion of
`
`has been produced.
`
`11.
`
`Concerning Document 6, ROBO-REV0000014246, I
`
`
`
` An
`
`
`
`While from the date of the documents it appears
`
`
`
`, I can confirm that this document was nonetheless prepared
`
`pursuant to my instructions
`
`
`
`
`
`
`
` To the best of my knowledge, this document was not shared beyond Robocast and its
`
`outside counsel.
`
`12.
`
`Document 7, ROBO-REV0000000951, and Document 25, ROBO-
`
`REV0000012661 are
`
`
`
`
`
`
`
`
`
`. To the best my
`
`knowledge this document was not shared outside of Robocast and its agents. While the document
`
`date listed on Robocast’s privilege log is after I departed Robocast, I understand that if a
`
`document was saved over with additional edits by other Robocast employees after I departed
`
`Robocast, that the document metadata would reflect the date last edited, and not the date created.
`
`I further understand that if the document was saved as a new version with additional revisions
`
`from other employees, it would also reflect a document date post-dating my June 2017 departure
`
`
`
`-4-
`
`
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 5 of 8 PageID #: 16208
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`from Robocast. In either case, the date on the document does not change the fact that the
`
`document contains legal advice from me in my role as Robocast’s in-house counsel.
`
`13.
`
`Document 8, ROBO-REV0000012333, and Document 9, ROBO-
`
`REV0000012334, are documents created within Robocast’s project management system
`
`Basecamp2
`
`
`
`
`
`. Jon Hertzig has served as a consultant to
`
`Robocast from 2016 to the present. Mr. Hertzig is a technical writer who generally assists
`
`Robocast with drafting communications and other writing needs.
`
`To the best of my knowledge, these
`
`documents have not been shared outside of Robocast employees and agents.
`
`14.
`
`Document 10, ROBO-REV0000012338, is
`
`
`
`
`
`
`
`
`
`
`
`. Jon Hertzig, consultant to Robocast, provided drafting assistance.
`
`15.
`
`Document 11, ROBO-REV0000012339, is
`
`
`
`.
`
`
`2 Basecamp is a project management system that allows for communication and collaboration between team members.
`Robocast uses Basecamp for virtually all of its document drafting, organization, and collaboration and virtually all
`documents produced for the first time in the present litigation originated from Basecamp. Within Basecamp, Robocast
`has discrete projects or folders to organize different documents. Access can be granted to discrete projects or folders
`without granting access to the entirety of Robocast’s documents and communications. Basecamp documents withheld
`for privilege or work product were taken from projects/folders that were accessible only to Robocast and its agents.
`See https://basecamp.com/.
`
`
`
`-5-
`
`
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 6 of 8 PageID #: 16209
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`16.
`
`Document 12, ROBO-REV0000012478,
`
`
`
`
`
`
`
`To the best of my knowledge, this document was not shared outside of
`
`Robocast and its agents.
`
`17.
`
`Document 13, ROBO-REV0000012472, and Document 20, ROBO-
`
`REV0000012775, are draft confidential documents
`
`
`
` which, to the best of my knowledge,
`
`were never finalized or shared outside of Robocast and its agents.
`
`
`
`
`
`
`
`While the document date listed on Robocast’s privilege log is after I departed
`
`Robocast, I understand that if a document was saved over with additional edits by other Robocast
`
`employees after I departed Robocast, that the document metadata would reflect the date last
`
`edited, and not the date created. I further understand that if the document was saved as a new
`
`version with additional revisions from other employees, it would also reflect a document date
`
`post-dating my June 2017 departure from Robocast. In either case, the date on the document
`
`does not change the fact that the document contains legal advice from me in my role as
`
`Robocast’s in-house counsel.
`
`18.
`
`Document 14, ROBO-REV0000012748, is
`
`19.
`
`Document 15, ROBO-REV0000012888, is a Basecamp document
`
`
`
`.
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`-6-
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`
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 7 of 8 PageID #: 16210
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`. Jan Morgan was a consultant for Robocast at the time
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`. To the best of my knowledge this document was not shared
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`outside of Robocast and its agents.
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`20.
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`Document 16, ROBO-REV0000013329,
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` does not contain information related to the value of the patents-in-suit.
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`21.
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`Document 17, ROBO-REV0000013438,
`
`. There is no discussion of the
`
`value of the patents-in-suit.
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`22.
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`Document 18, ROBO-REV0000013698,
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`23.
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`Document 19, ROBO-REV0000013751,
`
`
`
`.
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`
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`
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`24.
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`Document 21, ROBO-REV0000013690, is a Basecamp landing page
`
`
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`.
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`landing pages do not retain date metadata and do not have a date on their face.
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`25.
`
`Document 22, ROBO-REV0000014016
`
`
`
`. These
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`
`
`
`
`e. To the best of my knowledge, this version was not shared outside
`
`of Robocast and its agents. I understand from counsel that
`
`
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`-7-
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`Case 1:22-cv-00305-JLH Document 336 Filed 08/27/24 Page 8 of 8 PageID #: 16211
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`were shared outside of Robocast, have been produced.
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`26.
`
`Document 23, ROBO-REV0000014776,
`
`, which
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`
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`drafting some communications. To the best of my knowledge, this document was not shared
`
`. Jon Hertzig, consultant to Robocast, assisted in
`
`outside of Robocast and its agents.
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`27.
`
`Document 24, ROBO-REV0000014780,
`
`
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`
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`Consultant Jon Hertzig assisted in drafting. To the best of my knowledge, this document was not
`
`shared outside of Robocast and its agents.
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`
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`I declare under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct.
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`
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`Dated: August 20, 2024.
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`
`
`/s/
`
`Brett Smith
`
`Senior Vice President for Legal and
`Intellectual Property, Robocast, Inc
`
`
`
`
`
`-8-
`
`
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