`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`IMPLICIT , LLC,
`
`Plaintiff,
`
`V.
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`NETSCOUT SYSTEMS, INC.,
`
`Defendant.
`
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`)
`)
`)
`)
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`)
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`Civil Action No. 2:18-cv-00053-JRG
`LEAD CASE
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`2: 18-cv-0054-JRG
`MEMBER CASE
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`JURY TRIAL DEMANDED
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`NOTICE OF INTENT TO ISSUE SUBPOENA
`
`PLEASE
`
`TAKE
`
`NOTICE
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`that Defendan ts NetSco ut Systems ,
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`Inc . and
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`San dvine Corporation will
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`reque st non-par ty witness Larry Peterson
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`to produce
`
`at
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`Colville & Dippel LLC, 1309 East Broadway , Tucson , Arizona 85719, on March 1, 2019
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`at 9:00 a.m., all document s and things in its pos session, custody or control as specified in
`
`Exhibit A to the Subpoe na . The Subp oena
`
`to Lan y Peterson
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`is attached here to and
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`incorporated herein as Exhi bit 1.
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`Respectfully submi tted:
`
`(KS Bar 19895)
`(KS Bar 26185)
`
`Isl Mark C. Lang
`Eric A. Bure sh
`Mark e. Lang
`ERISE IP, P.A.
`7015 College Blvd. , Suite 700
`Overland Park , Kansas 66211
`Telephone :
`(913) 777-5600
`Facsim ile :
`(913) 777-5601
`eric. bure sh@eriseip .com
`mark.lang @eriseip .com
`
`(CO Bar 4466 0)
`
`Abran J. Kean
`ERISE IP, P.A.
`5600 Greenwood Plaza Blvd ., Suite 200
`Greenwood Village, CO 80111
`Telephone :
`(913) 777-5600
`abran.kean @eriseip .com
`
`Page 1 of 7
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`Implicit Exhibit 2090
`Sonos v. Implicit, IPR2018-0766, -0767
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`
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`Melissa Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, L.L.P.
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone:
`903-934-8450
`Facsimile:
`903-934-9257
`
`Counsel for Defendant NetScout Systems, Inc.
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`Page 2 of 7
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`Implicit Exhibit 2090
`Sonos v. Implicit, IPR2018-0766, -0767
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`
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`Exhibit 1
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`Exhibit 1
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`Page 3 of 7
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`Implicit Exhibit 2090
`Sonos v. Implicit, IPR2018-0766, -0767
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`Page 3 of 7
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`Implicit Exhibit 2090
`Sonos v. Implicit, IPR2018-0766, -0767
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`
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`AO 88B (Rev. 02/ 14) Subpoena to Produce Documents , Infonnation, or Object s or to Pennit Inspection of Premises in a Civil Action
`
`UNITED STATES DISTRI CT COURT
`for the
`Eastern Dist:Iict of Texas
`
`Implicit, LLC
`V.
`
`NetScout Systems, Inc.
`Sandvine Corporation
`Defendant
`
`)
`)
`)
`)
`)
`)
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`Civil Action No. 2:18-cv-00053-JRG
`LEAD CASE
`2:18-cv-00054-JRG
`MEMBER CASE
`
`SUBPOENA TO PROD UCE DOCUME NTS, INFOR"l\1ATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMI SES IN A CIVIL ACTION
`
`To: Larry Peterson
`
`(Name of person to whom this subpoena is directed)
`~ Produ ction: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
`documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
`material: See attached Exhibit A
`
`Place: Colville & Dippel LLC
`1309 E Broadway
`Tucson, Arizona 85719
`
`Date and Time:
`03/01/2019 9:00 a.m.
`
`□ Inspection of Premis es: YOU ARE COMMANDED to permit ent:Iy onto the designated premises, land, or
`other property possessed or conti·olled by you at the time, date, and location set forth below, so that the requesting party
`may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
`I D3'e and Time:
`
`I Place
`
`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: 02/25/2019
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`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Dep uty Clerk
`
`Attorney's signa ture
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`The name, address, e-mail address, and telephone number of the attorney representing (name of par ty)
`Defendants NetScout Systems, Inc. and Sandvine Corporation
`, who issues or requests this subpoena, are:
`
`Mark C. Lang, Erise IP, P.A., 7015 College Blvd., Suite 700, Overland Park, Kansas 66211 ; (913) 777-5600; mark.lang@e riseip.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 or the
`inspection of premises before t:Iial, a notice and a copy of the subpoena must be served on each party in this case before
`Implicit Exhibit 2090
`it is ser~igg
`!f-1Jr7ton to whom it is directed. Fed. R. Civ. P. 45(a)(4).
`Sonos v. Implicit, IPR2018-0766 , -0767
`
`
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`AO 888 (Rev. 02/ 14) Subpoena to Produce Documents , Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
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`Civil Action No. 2:18-cv-00053-J RG
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`PROOF OF SERVICE
`(Tll is secti on sllou ld not be fil ed witll the cour t un less required by F ed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`on (date)
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`D I se1ved the subpoena by delivering a copy to the named person as follows:
`
`D I returned the subpoena unexecuted because:
`
`on (date)
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`; or
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`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of
`
`$
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`My fees are $
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`for travel and $
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`for se1vices, for a total of$
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`0.00
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`I declare under penalty of pe1jmy that this info1mation is hue .
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`Date:
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`Server 's signature
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`Printed name and title
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`Server 's address
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`Additional info1mation regarding attempted se1vice, etc.:
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`Page 5 of 7
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`Implicit Exhibit 2090
`Implicit , IPR2018-0 --------
`Fll.'Set
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`
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`AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
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`(c) Place of Compliance.
`
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
`(A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
`(B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
`(i) is a party or a party’s officer; or
`(ii) is commanded to attend a trial and would not incur substantial
`expense.
`
`(2) For Other Discovery. A subpoena may command:
`(A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
`(B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
`(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
`(2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
`(ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
`(3) Quashing or Modifying a Subpoena.
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`(i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`(i) disclosing a trade secret or other confidential research,
`development, or commercial information; or
`
`(e) Duties in Responding to a Subpoena.
`
`(1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
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`Page 6 of 7
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`Implicit Exhibit 2090
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`EXHIBIT A
`To Subpoena Duces Tecum to Larry Peterson
`
`1) Communications between You and individuals at Becomm, including but not limited to
`Edward Balassanian, Garth Novack, Scott Bradley, David Wolf, and Scott Miller, between
`1996 and 2003.
`2) Source code for Scout and related operating systems or programs.
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`Page 7 of 7
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`Implicit Exhibit 2090
`Sonos v. Implicit, IPR2018-0766, -0767
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