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`Exhibit 2128
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`Exhibit 2 12 8
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page1 of 7
`
`333 Twin Dolphin Drive; Suite 400
`Redwood City, CA 94065-1434
`650.802.3601
`Fax 650.802.3650
`
`
`
`
`
`Gregory S. Bishop
`direct dial: 650.802.3601
`direct fax: 650.802-3650
`bishopg@pepperlaw.com
`
`
`
`Re:
`
`February 6, 2015
`The Honorable Magistrate Judge Laurel Beeler
`United States District Court
`Northern District of California
`San Francisco Courthouse
`450 Golden Gate Avenue
`San Francisco, California 94102
`
`CallWave Communications, LLC v. Wavemarket, Inc. d.b.a. Location Labs
`Case No. MC 14-80112-JSW-LB
`
`
`
`Dear Judge Beeler:
`
`This dispute arises from Callwave Communications, LLC’s (“Callwave”) Subpoena to Wavemarket,
`Inc., d/b/a Location Labs (“Location Labs”) (Ex. A). Location Labs possesses materials relevant to
`five related actions pending in the District Court of Delaware (12-cv-1701, 12-cv-1702, 12-cv-1703, 12-
`cv-1704, 12-cv-1788), which allege infringement of U.S. Pat. No. 6,771,970 (“’970 Patent”) based on
`software Location Labs provides. Location Labs objected and responded to the subpoena, following
`which the parties submitted a letter brief asking the Court to resolve certain issues. (D.I. 17). The
`parties submitted a second letter brief on August 12, 2014 (D.I. 32) and the Court issued its written
`order on August 29, 2014. (D.I. 35.) The parties submitted a third letter brief on December 15, 2014
`(D.I. 43) and the Court issued its order on December 23, 2014 (D.I. 47). The parties separately
`submitted a fourth letter brief on January 21, 2015 and January 22, 2015, respectively. (D.I. 52 and 54)
`and a hearing was held on January 29, 2015. (D.I. 58.) This is the parties’ fifth letter brief.
`Callwave respectfully asks the Court to resolve the following issue: Whether Location Labs should be
`ordered to produce the documents identified on the privilege log it produced on January 20, 2015.
`Callwave’s Position:
`On August 29, 2014, the Court ordered Location Labs to produce all communications with
`“any defendant or other third party relating to Location Labs’ indemnification of the defendants” and
`to “prepare a privilege log for any withheld documents at its own expense.” (D.I. 35 at 1-2.) Location
`Labs represented for several months that no such communications existed that had not yet been
`produced. (Ex. B at p. 4.) On December 15, 2014, when Callwave was preparing to ask the Court to
`enforce the August 29, 2014 Order in a joint discovery letter (D.I. 43), Location Labs finally admitted
`the communications existed. At that time, it affirmatively represented that it would comply with the
`Court’s Order within “the next couple of days.” (Ex. B at 1.) Nevertheless, Location Labs did not
`comply with the Order, and instead represented that “no one at Location Labs received a copy of
`them.” (Ex. B at 3.) When asked whether Location Labs was making a distinction between Location
`Labs and its counsel, Location Labs’ counsel refused to answer. (Ex. C at 1-2.) Location Labs’ counsel
`did, however, affirmatively represent that “none of those documents were authored by Location Labs”
`and that the “documents are from AT&T’s files, and not from Location Labs’ files.” (Ex. C at 3.)
`Location Labs refused to meet and confer with lead counsel as required by the Court’s Standing Order,
`and instead waited until Callwave had prepared yet another letter brief to enforce the August 29, 2014
`Order before finally providing a privilege log. (Ex. B at 1.) Contrary to its representations, the
`privilege log provided shows Mr. Maheshwari, Location Labs’ lead counsel, and his co-counsel, Mr.
`
`

`

`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page2 of 7
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`
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`February 6, 2015– Page 2
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`
`Magistrate Judge Laurel Beeler
`
`
`Hogge, were recipients of some of the communications that they previously represented did not exist
`and were not received by Location Labs. (Ex. D.) Also contrary to counsel’s representations, Location
`Lab’s counsel Imran Khaliq was either the author or recipient of each of the withheld communications.
`(Id.) Following this protracted gamesmanship, Location Labs deficient and conclusory privilege log is
`not adequate to protect the underlying documents from discovery.
`Location Labs’ privilege log is deficient because it fails to meet the requirements of the Court’s
`Standing Order. (Standing Order of United States Magistrate Judge Laurel Beeler (Effective October
`21, 2014) (“Standing Order”).) Compare Viteri-Butler v. Univ. of Cal., Civ. No. 12-02651 PJH (KAW),
`2013 U.S. Dist. LEXIS 142430, at *19-20 (N.D. Cal. Sept. 30, 2013) (requiring modifications to
`privilege log that did not comply with court’s Standing Order). That Standing Order requires that a
`privilege log identify both “the specific basis for the assertion that the document is privileged or
`protection (including a brief summary of any supporting facts)” and “the steps taken to ensure the
`confidentiality of the communication, including an affirmation that no unauthorized persons received
`the communication.” (Standing Order at 2.) With regard to the former requirement, the description
`for each document on the privilege log states only that they relate to “indemnification/defense and
`issues related thereto.” This boilerplate assertion fails to identify either a “specific basis” for the
`assertion of privilege or any “supporting facts.” With regard to the latter requirement, which requires
`“steps taken to ensure the confidentiality of the communication,” Location Labs’ privilege log is
`completely silent. After the extended delay in producing its privilege log and the gamesmanship
`described above, these failures are sufficient to require production of the underlying documents.
`More importantly, the descriptions of the documents do not provide an adequate basis for the
`documents to be withheld based on the common legal interest doctrine, a privilege that is asserted for
`all six entries on the privilege log.1 In certain circumstances, the common interest doctrine may be
`invoked to prevent the waiver of privilege with respect to otherwise privileged material. See MobileMedia
`Ideaas LLC v. Apple Inc., 890 F. Supp. 2d 508, 515 (D. Del. 2012.) But, material does not become
`privileged by virtue of being exchanged pursuant to a valid common legal interest. See id. The burden
`of establishing privilege lies with the party asserting it, and, in the case of a common interest, requires:
`(a) that the communications be made in the course of the joint defense effort, (b) that they were made
`to further that effort, and (c) the privilege has not been waived. See United States v. Bergonzi, 216 F.R.D.
`487, 495 (N. D. Cal. 2003). Location Labs does not meet its burden of establishing privilege from the
`minimal descriptions given. See Ex. D. (“indemnification/defense and issues related thereto”).
`Location Labs’ cannot reasonably shift that burden to Callwave, which it repeatedly tries to do, as
`Callwave does not have access to the documents.
`Location Labs’ fail to show an underlying privilege. It appears that Location Labs and AT&T were
`negotiating over the scope of indemnification and whether and to what extent Location Labs would
`undertake the defense. Location Labs, which bears the burden of proof, provides no evidence that the
`documents contain the “mental impressions, conclusions, opinions, or legal theories of a party’s
`attorney.” Moreover, Location Labs fails to show a common interest being discussed. The parties’
`interests in indemnification were divergent (AT&T seeking to minimize its exposure to the litigation
`and Location Labs seeking to minimize its indemnity obligations). Thus, the privilege log confirms that
`even if there were some underlying work product, it was waived when it was shared with a party with
`
`1 Location Labs alleges attorney-client privilege for one document, but the privilege log reveals that the
`communication is between AT&T’s counsel and Location Labs’ counsel. Ex. D, at No. 6. There is no attorney/client
`relationship between AT&T and Location Labs’ counsel, or vice-versa.
`
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page3 of 7
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`
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`February 6, 2015– Page 3
`
`
`Magistrate Judge Laurel Beeler
`
`
`whom the party did not share a common interest. At the very least, the claim of work-product privilege
`would not apply to substantial portions of the communications which are likely facts (not mental
`impressions) relevant to the important issue of privity as discussed below. Compare Lord Abbett Mun.
`Income Fund, Inc. v. Asami, No. C-12-03694 DMR, 2013 U.S. Dist. LEXIS 147830, at *15 (N.D. Cal. Oct.
`11, 2013) citing U.S. Bank Nat'l Ass'n v. U.S. Timberlands Klamath Falls, L.L.C., C.A. No. 112-N, 2005 Del.
`Ch. LEXIS 95, at *9 (Del. Ch. June 9, 2005) (“The common interest doctrine does not apply to protect
`communications where those interests diverge.”)
`Moreover, consistent with the general work product doctrine, a party may discover such information by
`demonstrating a “substantial need for the materials to prepare its case and [that it] cannot, without
`undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3). Here, the
`indemnification communications likely contain information about the accused products, and which
`party supplies the infringing functionality, facts that Location Labs and Defendants have gone to great
`lengths to conceal. Also, Location Labs inserted itself into the underlying litigation by filing two inter
`partes review (“IPR”) petitions with the U.S. Patent and Trademark Office seeking to invalidate the
`claims of the ‘970 Patent. Location Labs’ first petition was largely rejected. Location Labs filed its
`second petition more than a year after Callwave’s complaint against defendants, which is improper
`under the Patent Statute if it is in privity with AT&T or the other defendants. 35 U.S.C. § 315(b).2 The
`indemnification communications are likely to lead to information about whether Location Labs is in
`privity with AT&T or the other defendants, which is highly relevant as it would end the second IPR
`proceeding. Callwave does not seek mental impressions or other work product of the attorneys, but
`facts showing that Location Labs and AT&T were acting in privity. Discussions about the scope of
`indemnification and their relative responsibilities, which are non-common interests, are likely to show
`those facts. In contrast with the American Eagle case relied on by Location Labs, it is not difficult to
`separate discussions negotiations between the parties that would show privity, and any mental
`impressions about the merits of the case. American Eagle Outfitters, Inc. v Payless Shoesource, Inc., CV 07-
`1675 (ERK)(VVP), 2009 U.S. Dist. LEXIS 105608, *9 (E.D.N.Y. Nov. 12, 2009.)
`Location Labs cannot credibly argue that the proper place to obtain the documents is in the IPR
`proceedings. Location Labs argued in the IPR proceedings, which only allows limited discovery,3 that
`Callwave should seek such privity documents from the District Court:
`Judge Perry: I understand that. But I recall fairly clearly that you argued to us in a very similar
`request during a conference call earlier --
`Mr. Cummings [Location Labs counsel]: Correct.
`Judge Perry: -- that the appropriate forum for the request made by Patent Owner was indeed the
`District Court.
`Mr. Cummings: Correct. And I think that’s still the case, and that, of course is one of the factors.
`(Ex. E. at 14:5-15.) Thus, Callwave’s substantial need for this discovery that it cannot discover
`otherwise, makes the privity information discoverable even if the documents contain work product
`(which has not been shown.)
`
`2 “An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the
`date on which the Petitioner [Location Labs], real party in interest, or privy of the petitioner [AT&T] is served with a
`complaint alleging infringement of the patent. 35 U.S.C. 315(b).
`3 Garmin International v. Cuozzo Speed Technologies LLC, IPR2012-00001, Paper No. 26 (March 5, 2013).
`
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page4 of 7
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`
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`February 6, 2015– Page 4
`
`
`Magistrate Judge Laurel Beeler
`
`
`Accordingly, Callwave respectfully asks that the Court to order Location Labs to produce the six
`documents logged in its January 20, 2015 privilege within three (3) business days.
`Location Labs’ Position: As an initial matter, Callwave requested an exception to the Protective
`Order, which states at Section 8F: "No party shall be required to identify on their respective privilege
`log any document of communication dated on or after the filing of this lawsuit, which absent this
`provision, the party would have been obligated to so identify on said privilege log." (D.I. 119 at p. 26).
`Location Labs has met that request, and all the communications on the log are dated after the filing of
`this lawsuit. (See Exhibit D.) Importantly, Magistrate Judge Beeler stated that the same rules from the
`Delaware Court should apply to Callwave and Locations Labs’ disputes before this Court; “it just
`doesn’t make sense otherwise”. (D.I. 37 at p. 34:7-35:1.) However, Callwave is now requesting much
`more than just additional entries on a privilege log. Callwave is seeking the production of documents
`exchanged between legal counsel after a binding indemnification agreement was reached. Callwave
`appears to be seeking production of these documents in an attempt to show privity between AT&T and
`Location Labs for the IPR and not for this lawsuit. Regardless, Callwave’s requests for production
`have insufficient support and should be denied.
`
`As correctly listed on the privilege log, these documents are entitled to privilege (common interest
`privilege, attorney-client privilege, and/or work product protection), which Callwave has not shown has
`been waived or can be properly overcome. Certain of the documents are subject to the attorney-client
`privilege because they involve matters confidentially disclosed between attorney and client. Callwave
`does not and cannot dispute this. All of the documents are subject to the work product doctrine
`because they involve matters discussed between counsel for defense in on-going litigation. The
`attorney-client privilege and work product protections continue to apply to these communications
`because they have not been waived. Callwave has not shown any waiver, nor can it. The fact that
`Location Labs’ counsel and AT&T’s counsel exchanged these communications does not result in
`waiver of the privileges which otherwise apply to them, since the common interest privilege is shared
`between AT&T and Location Labs by virtue of their common interest in a joint defense against the
`allegations by Callwave. Callwave asserts that no common interest privilege can apply here because
`AT&T and Location Labs allegedly had different interests in entering into an indemnification
`agreement. First, this assertion is made without any legal support. Second, Callwave cannot support
`this assertion, because the very nature of any indemnification agreement involves one party assuming
`the liability for another. Such an agreement necessarily requires that some balance regarding the
`assumption of liability be reached by the parties, but does not necessarily extinguish any common
`interest they might share. The common interest shared by AT&T and Location Labs as indemnitor and
`indemnitee that makes them subject to the common interest privilege is the defense against Callwave's
`patent infringement claims. Importantly, if Callwave's assertion were true, then no parties to an
`indemnification agreement could ever be subject to the common interest privilege -- a result that case
`law does not support. "The privilege does not require a complete unity of interests among the
`participants, and it may apply where the parties' interests are adverse in substantial respects." United
`States v. Bergonzi, 216 F.R.D. 487, 495 (N.D. Cal. 2003). (They share a common interest in reducing costs
`and any potential liability, for example).
`
`Here, the common interest privilege specifically applies to the communications regarding
`indemnification between AT&T and Location Labs. As the court in Nidec Corp. v. Victor Co. of Japan,
`249 F.R.D. 575 (N.D. Cal. 2007), noted, “[t]he protection of the privilege under the community of
`interest rationale … is not limited to joint litigation preparation efforts. It is applicable whenever
`
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page5 of 7
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`February 6, 2015– Page 5
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`
`Magistrate Judge Laurel Beeler
`
`
`parties with common interests join forces for the purpose of obtaining more effective legal assistance.”
`Id. at 578. In this case, AT&T and Location Labs have done just that. The court in In re Regents of the
`Univ. of Cal., 101 F.3d 1386, 1391 (Fed. Cir. 1996), held that the common-interest doctrine applies to
`documents that “address either anticipated litigation or a joint effort to avoid litigation.”4 That court
`also noted that the common interest privilege may apply to a licensor and its licensee. Id. Here,
`Location Labs and AT&T, a licensee and licensor, had a common interest in defending against the
`claims of Callwave, extending to any indemnification provided, and it is precisely these matters of
`common interest that were discussed in the documents at issue. Courts in California and elsewhere
`have recognized that the common interest privilege applies to communications regarding indemnity
`obligations, even if there is not agreement between parties to the communications as to whether there
`is an obligation for indemnification. See, e.g., Gallagher v. Union Bank, D058896, D059838, 2012 WL
`2866689, at **10-11 (Cal App. 4 Dist. July 13, 2012) (recognizing that the common interest privilege
`applied between an indemnitor and indemnitee; affirming the grant of a motion to quash a subpoena
`seeking disclosure of communications between counsel regarding indemnity obligations); American Eagle
`Outfitters, Inc. v Payless Shoesource, Inc., 2009 U.S. Dist. LEXIS 105608, *8 (E.D.N.Y. Nov. 12, 2009)
`(denying a plaintiff's motion to compel correspondence between two parties having an indemnity
`dispute and finding that "the exchange of work product among attorneys with identical litigation
`perspectives should not render such tangible information vulnerable to pre-trial discovery"). Further,
`this Court has found that a defendant and a third party shared a common interest in formulating a legal
`strategy and denied plaintiff's motion to compel. Pecover v. Elec. Arts, Inc., 2011 U.S. Dist. LEXIS
`138926, *7 (N.D. Cal. Dec. 1, 2011). In this case, Callwave’s attempts to obtain privileged
`communications should be similarly denied because the documents at issue address AT&T and
`Location Labs’ common interest regarding the defense of Callwave’s anticipated litigation.
`
`Stated differently, the common interest privilege applies where: "(1) the communication is made by
`separate parties in the course of a matter of common interest; (2) the communication is designed to
`further that effort; and (3) the privilege has not been waived." Bergonzi, 216 F.R.D. at 495. In this case,
`the issue of common interest that applies to the indemnification documents has been identified through
`the privilege log description of "indemnification/defense and issues related thereto."5 Callwave
`acknowledges this when it states in the letter brief, "It appears that Location Labs and AT&T were
`negotiating over the scope of indemnification and whether and to what extent Location Labs would
`undertake the defense." Moreover, Callwave's acknowledgement also supports the second factor for
`application of the common interest privilege -- that the communication was "designed to further" the
`common interest involved with defense and indemnification. As noted above, Callwave has not shown
`that these communications, exchanged between attorneys for the entities having the common interest,
`were ever disclosed or treated so as to waive the privilege.
`
`Even if there is disagreement as to when the common interest between Location Labs and AT&T was
`formed, it is well settled that the common interest privilege protects against disclosure of information
`
`4 Note the case law conforms to the intent of FRCP 26(b)(3)(B) which states: “If the court orders discovery of those
`materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's
`attorney or other representative concerning the litigation.”
`5 Pursuant to FRCP 26(b)(5)(A)(ii), when a party claims privilege, the party must describe the nature of the documents,
`communications … not produced or disclosed—and do so in a manner that, without revealing information itself privileged
`or protected, will enable other parties to assess the claim. Here, Location Labs' privilege log does precisely that by providing
`a description of the documents that shows it is privileged in a manner that does not reveal the privileged information (i.e.
`indemnification/defense and issues related thereto”).
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page6 of 7
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`
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`February 6, 2015– Page 6
`
`
`Magistrate Judge Laurel Beeler
`
`
`even before that common interest was formed, since the information exchanged was shared for the
`purpose of advancing the defense and indemnification regarding this lawsuit. See, e.g., Ellis v. JP Morgan
`Chase & Co., Case No. 12–cv–03897–YGR (JCS), 2014 WL 1510884, at *7 (N.D. Cal. Apr. 1, 2014),
`("Documents created prior to formation of the common interest still may be protected by that interest;
`it is the purpose for which the documents were disclosed, and not whether they predated or post-dated
`the inception of the common interest, which determines whether the common interest doctrine
`applies.'"). Callwave's reasoning for seeking to overcome the work product privilege is equally faulty.
`Information subject to the work product privilege may be discovered by a party upon demonstration of
`a “substantial need for the materials to prepare its case and [that it] cannot, without undue hardship,
`obtain their substantial equivalent by other means.” F.R.C.P. 26(b)(3). Callwave cannot demonstrate
`this need, since it relies on speculation as to what the subject documents are "likely" to contain and
`wholly fails to acknowledge that numerous documents regarding the indemnification agreement
`between AT&T and Location Labs have already been produced to Callwave, including the
`indemnification agreements and all correspondence between Location Labs and the Defendants prior
`to the date Location Labs accepted the defense.
`
`Initially, Callwave states, "Here, the indemnification communications likely contain information about
`the accused products, and which party supplies the infringing functionality." First, Callwave is merely
`guessing as to the contents of the documents. Second, even if the documents contain such
`information, that type of information has been the focus of discovery throughout the litigation, and
`Callwave cannot show that substantially equivalent information has not already been produced in
`discovery. Callwave next states: "The indemnification communications are likely to lead to
`information about whether Location Labs is in privity with AT&T or the other defendants."6 Again,
`Callwave is guessing as to the likely content of the documents. And, again, Callwave has not made any
`representation of whether it has obtained such information already, such as from the numerous
`documents regarding indemnification that have already been produced by Location Labs.
`
`Callwave also asserts, that "extended delay in producing its privilege log" and alleged "gamesmanship"
`by Location Labs are "sufficient to require production of the underlying documents." Callwave also
`argues that the privilege log was provided after "unreasonable and prejudicial delay." Callwave presents
`no support for these assertions. Further, there is no prejudice to Callwave, as the discovery cut-off in
`the underlying litigation has been extended to April 27, 2015 and there is a pending Renewed Motion to
`Stay ripe before the Delaware District Court. As such, none of Callwave’s unsupported arguments
`warrant disclosure of Location Labs’ privileged documents. For the reasons stated above, Callwave’s
`request to have Location Labs produce privileged documents should be denied. Location Labs has
`already exceeded the requirements of the Protective Order by listing post-complaint documents on its
`privilege log, each described as communications among counsel regarding “indemnification/defense
`and issues related thereto,” which are all subject to the work product doctrine and common interest
`privilege. Those privileges have not been waived. No argument by Callwave is sufficient to overcome
`the work product doctrine protecting against disclosure of Location Labs’ documents.
`
`
`
`6 Notably, Callwave seeks information regarding privity here, which is more appropriately sought in the IPRs
`before the USPTO. Callwave has made identical requests in the USPTO which were denied. Thus, this motion is
`just an attempt by Callwave to game the system with an end run in the hopes of improperly obtaining here what
`was already denied elsewhere.
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`Case4:14-mc-80112-JSW Document63 Filed02/06/15 Page7 of 7
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`
`Magistrate Judge Laurel Beeler
`
`
`
`
`
`February 6, 2015– Page 7
`
`Attestation Regarding Meet and Confer Requirement
`Callwave attests that pursuant to the Court’s standing order, on January 29, 2015, counsel for Callwave
`(Greg Bishop) met and conferred in person with counsel for Location Labs (Shailendra Maheshwari
`and Sarah Eskandari) attempted unsuccessfully to resolve this issue.
`
`
`
`
`
`Respectfully submitted,
`
`PEPPER HAMILTON LLP
`
`
`
`
`By: /s/ Gregory S. Bishop
`Gregory S. Bishop
`
` William D. Belanger
` Noah V. Malgeri
` Christopher M. Boundy
`
`Attorneys for Plaintiff
`CALLWAVE COMMUNICATIONS LLC
`
`
`
`DENTONS US LLP
`
`By: /s/ Shailendra K. Maheshwari
`
`Mark L. Hogge
`
`
`
`Shailendra K. Maheshwari
`Sarah S. Eskandari
`
`Attorneys for Third-Party
`WAVEMARKET, INC. D/B/A LOCATION LABS
`
`
`
`
`Filer’s Attestation
`Pursuant to Civil Local Rule 5-1(i)(3), Gregory S. Bishop, hereby attests that the above-named
`signatories concur in this filing.
`DATED: February 6, 2015
`
`/s/ Gregory S. Bishop
`Gregory S. Bishop
`
`
`
`
`
`
`
`#32316555 v1
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`Case4:14-mc-80112-JSW Document63-1 Filed02/06/15 Page1 of 18
`
`Exhibit A
`
`

`

`Case4:14-mc-80112-JSW Document63-1 Filed02/06/15 Page2 of 18
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
` District of Delaware
`
`Civil Action No.
`
`12-cv-1701
`
`))))))
`
`Callwave Communications LLC
`Plaintiff
`v.
`AT&T Inc., AT&T Mobility, LLC, and Google, Inc.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`Wavemarket, Inc., d/b/a LocationLabs, 5980 Horton Street, Suite 675, Emeryville, CA 94608
`
`(Name of person to whom this subpoena is directed)
`✔
`(cid:117) Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`See Attachment B
`
`Place:
`
`Pepper Hamilton, LLP, 555 Twin Dolphin Drive
`Suite 310 Redwood City
`California, 94065
`
`Date and Time:
`
`03/07/2014 9:00 am
`
`The deposition will be recorded by this method:
`
`Steographer and videographer.
`
`✔
`(cid:117) Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`See Attachment A.
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`02/10/2014
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Benjamin Snitkoff
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`Callwave Communications LLC
`, who issues or requests this subpoena, are:
`Benjamin Snitkoff, 125 High Street, 19th Floor, High St. Tower, Boston, MA 02143
`617-204-5114 snitkoffb@pepperlaw.com
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 1:
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`Case4:14-mc-80112-JSW Document63-1 Filed02/06/15 Page3 of 18
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`ATTACHMENT A
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`DEFINITIONS
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`1.
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`The terms “Plaintiff” or “Callwave” refer to Callwave Communications, LLC,
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`including any of its past and present affiliates, operating divisions, parent corporations,
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`subsidiaries, directors, officers, agents, employees, representatives, and all Persons acting on its
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`behalf.
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`2.
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`The terms “Defendant” or “Defendants” mean Google, Inc., AT&T Mobility,
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`LLC, Sprint Nextel Corp., T-Mobile USA Inc., Verizon Communication, Inc. Cellco Partnership,
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`d.b.a. Verizon Wireless, Blackberry Corp., and Blackberry Ltd., on an individual basis, and
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`includes any and all affiliates, divisions, successors, predecessors, agents, employees,
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`representatives, directors, officers, trustees, and attorneys, or any other Person or entity acting on
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`behalf of the foregoing, directly or indirectly.
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`3.
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`The terms “You”, or “Your” mean WaveMarket, Inc. d/b/a LocationLabs, and
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`includes any and all affiliates, divisions, successors, predecessors, agents, employees,
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`representatives, directors, officers, trustees, and attorneys, or any other Person or entity acting on
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`behalf of the foregoing, directly or indirectly.
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`4.
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`5.
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`6.
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`The term “’970 Patent” refers to U.S. Patent No. 6,771,970.
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`The term “Patent-in-Suit” refers to the ’970 Patent.
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`The term “Prior Art” means all categories of prior art that may be applied under
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`35 U.S.C. §102 or §103.
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`7.
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`The term “Litigation” means, either individually or collectively. the cases filed in
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`the Federal District Court for the District of Delaware with the following docket numbers: 12-cv-
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`1701, 12-cv-1702, 12-cv-1703, 12-cv-1704, and 12-cv-1788.
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`8.
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`The term “Accused Product(s)” means Google’s location services, including but
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`not limited to Google Maps, Google Latitude, and Google Mobile Search, AT&T Family Map,
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`Sprint Family Locator, T-Mobile Family Where, T-Mobile MobiControl, Verizon Family
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`Location, BlackBerry Maps, and/or BlackBerry Protect, and any related or substantially similar
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`product or service made, used, offered for sale, sold and/or imported into the United States by a
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`Defendant.
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`9.
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`The term “Your Product(s)” means the WaveMarket Locator product, any private
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`label or branded versions of the Wave Market Locator, any component thereof, and any related
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`or substantially similar product or service made, used, offered for sale, sold and/or imported into
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`the United States.
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`10.
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`The term “Person” refers both to natural Persons and entities including individual
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`proprietorships, partnerships, corporations, associations, joint ventures and other organizations,
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`and the acts and knowledge of a Person include the acts and knowledge of that Person’s
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`directors, o