IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`
`
`Case No. 1:17-cv-01227-JD
`JURY TRIAL DEMANDED
`
`Plaintiffs,
`
`SRC LABS, LLC & SAINT REGIS
`MOHAWK TRIBE
`
`
`
`
`v.
`
`AMAZON WEB SERVICES, INC.,
`AMAZON.COM, INC., & VADATA,
`INC.
`
`
`
`Defendant.
`
`
`NOTICE OF SUBPOENA DUCES TECUM
`
`
`TO: Defendants Amazon Web Services, Inc., Amazon.com, Inc. and VADATA, Inc.,
`by and through their attorneys of record, Robert Angle and Laura Kuykendall,
`TROUTMAN SANDERS LLP, 1001 Haxall Point, Richmond, VA 23219; Mary Zinsner,
`TROUTMAN SANDERS, LLP, 1850 Towers Crescent Plaza, Suite 500, Tysons Corner,
`VA 22182, and J. David Hadden, Saina Shamilov, Todd Gegorian, Ravi Ranganath,
`and Dargaye Churnet, FENWICK & WEST LLP, 801 California Street, Mountain View,
`CA 94041
`
`
`
`PLEASE TAKE NOTICE that pursuant to Federal Rule of Civil Procedure 45,
`
`Plaintiffs SRC Labs, LLC and Saint Regis Mohawk Tribe (“Plaintiffs”) will serve the
`
`attached subpoena duces tecum on January 5, 2017, or as soon as possible thereafter, upon
`
`Xilinx, Inc.
`
`
`
`
`
`
`
`
`
`XILINX 1024
`
`1
`
`

`

`DATED: January 5, 2018
`
`
`
`
`
`Christopher L. Evans
`/s/
`L. Lee Byrd, Virginia Bar No. 28662
`lbyrd@sandsanderson.com
`Madelaine A. Kramer, Virginia Bar No. 82305
`mkramer@sandsanderson.com
`
`SANDS ANDERSON PC
`1497 Chain Bridge Road, Suite 202
`McLean, Virginia 22101
`Telephone: (703) 893-3600
`Facsimile: (703) 893-8484
`
`
`Michael W. Shore, Texas Bar No. 18294915*
`mshore@shorechan.com
`Alfonso Garcia Chan, Texas Bar No. 24012408*
`achan@shorechan.com
`Christopher L. Evans, Texas Bar No.24058901*
`cevans@shorechan.com
`Andrew M. Howard, Texas Bar No. 24059973*
`ahoward@shorechan.com
`
`SHORE CHAN DePUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`Telephone: 214-593-9110
`Facsimile: 214-593-9111
`* Admitted pro hac vice
`
`ATTORNEYS FOR PLAINTIFFS
`SRC LABS, LLC AND
`SAINT REGIS MOHAWK TRIBE
`
`
`2
`
`

`

`AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
` Eastern District of Virginia
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`
`Production: 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:
`
`Place:
`
`Date and Time:
`
`Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
`other property possessed or controlled 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.
`
`Place:
`
`Date and Time:
`
`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:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`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 trial, 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).
`
`3
`
`

`

`AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`
`on (date)
`
`.
`
`I served the subpoena by delivering a copy to the named person as follows:
`
`I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`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
`
`$
`
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`Additional information regarding attempted service, etc.:
`
`4
`
`

`

`AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
`
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`
`(c) Place of Compliance.
`
` (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
`
`(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.
`
`(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).
`
`5
`
`

`

`
`
`EXHIBIT A
`
`I. DEFINITIONS
`
`1. The term “Accused Products” refers to F1 Instances and all other similar uses of FPGAs
`
`by You.
`
`2. The term “Amazon” refers to Amazon Web Services, Inc., Amazon.Com, Inc., &
`
`VADATA, Inc., and their predecessor or successor corporations, companies, or other business
`
`entities, their representatives, agents, insurers, attorneys, employees, directors, officers,
`
`subsidiaries, affiliates, and all others over whom they have control.
`
`3. The terms “and” and “or” shall be interpreted to include every alternative, not either or
`
`a single alternative.
`
`4. The term “Concerning” refers to regarding, describing, evidencing, relating to, referring
`
`to, showing, analyzing, reflecting, connected with, commenting on, responding to, or
`
`constituting.
`
`5. The terms “Customer” or “Customers” refer to individuals and entities of any kind that
`
`have purchased, leased, licensed or otherwise acquired the Accused Products.
`
`6. The term “DirectStream” refers to DirectStream, LLC.
`
`7. The term “Hypothetical Negotiation” refers to a hypothetical license negotiation
`
`between the parties that took place just prior to when infringement first began. This
`
`Hypothetical Negotiation is a framework that may be used to determine a reasonable royalty.
`
`See, e.g., Riles v. Shell Expl. & Prod. Co., 298 F.3d 1302, 1311 (Fed. Cir. 2002) (“A “reasonable
`
`royalty” contemplates a hypothetical negotiation between the patentee and the infringer at a
`
`time before the infringement began.”).
`
`8. The term “Identify” means:
`
`(a) For persons: their name, address, phone number, email address, present
`
`
`
`1
`
`6
`
`

`

`
`
`EXHIBIT A
`
`employer (name, address, telephone number), their employer at the time
`
`relevant to the Interrogatory response and any other information sufficient to
`
`allow them to be identified and contacted for the purposes of issuing a
`
`subpoena or locating them for an interview;
`
`(b) For non-person entities: the name, address, telephone number, email address
`
`and the Identify of the person at the entity whom You believe would have
`
`the most knowledge of the topic of the Interrogatory (as an example, the
`
`purchasing decision maker for an entity buying an Accused Product);
`
`(c) For tangible things or evidence: a description of the tangible object, and if a
`
`document, the Identity of the author, date of creation for each version, the
`
`Identity of the persons who were the intended audience, the device for
`
`which it was designed to be incorporated (e.g. software) and its content. In
`
`lieu of the information above, You may produce a tangible thing or a copy
`
`of such document or written material with a reference to the Interrogatory to
`
`which it is responsive.
`
`(d) For databases or software: the vendor, name, server locations for databases,
`
`means of access, ability to add, delete or alter data, and the documents that
`
`serve to instruct users and administrators on the programming, use,
`
`modification, security measures and maintenance of the system.
`
`9. The term “License Agreement” means any agreement (past and present) that includes a
`
`license, covenant not to sue, or release for the infringement of any patent.
`
`10. The term “Material” means any medium that includes information presented in a
`
`written, graphical or other form/format that can be read, heard or interpreted by a human
`
`
`
`2
`
`7
`
`

`

`
`being, including but not limited to documents, schematics, blueprints, plans, patents, patent
`
`EXHIBIT A
`
`applications, patent file histories, voice recordings, emails, texts, letters, catalogs, brochures,
`
`instructions, diagrams, screenshots, internet content, papers, presentations (e.g. PowerPoint),
`
`spreadsheets, graphs, accounting entries, reports, photographs, video content, and images.
`
`When “Material” is requested, it means ALL non-duplicative, non-exact copy Material in
`
`Your possession, custody or under Your control.
`
`11. The term “F1 Instances” alone or as part of the definition of Accused Products refers to
`
`Amazon EC2 F1 Instances, which are described on Your website here:
`
`https://aws.amazon.com/ec2/instance-types/f1/.
`
`12. The term “Financial Information” includes sales revenue, average per unit price,
`
`profits, gross margins, net income, costs of goods sold, commissions, returns, royalties paid per
`
`unit, unit sales, EBITA, and any other financial metrics You use in the ordinary course of
`
`business broken down monthly, quarterly, and annually.
`
`13. The term “FPGA” refers to field programmable gate arrays.
`
`14. The term “Patents-in-Suit” refers to U.S. Patent 6,434,687 (the “’687 patent”), U.S.
`
`Patent 7,149,867 (the “’867 patent”), U.S. Patent 7,225,324 (the “’324 patent”), U.S. Patent
`
`7,620,800 (the “’800 patent”), and U.S. Patent 9,153,311 (the “’311 patent”).
`
`15. The term “SRC” refers to SRC Labs, LLC.
`
`16. The term “SRMT” refers to the Saint Regis Mohawk Tribe.
`
`17. The terms “You” or “Your” refers to the recipient of this subpoena and Your
`
`predecessor or successor corporations, companies, or other business entities, its representatives,
`
`agents, insurers, attorneys, employees, directors, officers, subsidiaries, affiliates, and all others
`
`over whom You have control.
`
`
`
`3
`
`8
`
`

`

`
`
`EXHIBIT A
`
`18. All undefined terms should be interpreted using common sense and the Federal Rules
`
`of Civil Procedure. This means that words should generally be understood to have their
`
`ordinary English language meaning as used in common vernacular. If certain terms have
`
`specific or specialized meaning in YOUR industry that make sense in the context of the
`
`request, then that specialized meaning should be applied. If the Federal Rules of Civil
`
`Procedure provide a specific definition for a term, i.e. “document,” then that definition is
`
`controlling.
`
`19. In addition, Local Rule 26(C) requires all objections to be served within 15 days after
`
`the service of these requests. It also requires all such objections to be specifically stated.
`
`Plaintiffs expect Defendants’ responses, objections, and production to these requests to fully
`
`comply with the requirements of the Local and Federal Rules.
`
`II.
`
`INSTRUCTIONS FOR RESPONDING
`
`1. YOU are requested to produce documents as the documents are kept in the usual and
`
`ordinary course of business or to segregate, organize, and label each category of documents
`
`pursuant to each request or identify the specific bates number on the documents that are
`
`responsive to each request.
`
`2. The date(s) of these requests should refer, unless otherwise indicated, to the period
`
`beginning on October 18, 2011.
`
`3. In accordance with the Federal Rules of Civil Procedure, these requests are continuing.
`
`In the event that YOU become aware of additional documents within the scope of these
`
`requests after your responses and initial production of documents, such additional responsive
`
`information shall be timely produced.
`
`
`
`
`
`
`
`
`
`4
`
`9
`
`

`

`
`
`EXHIBIT A
`
`III. DOCUMENTS TO BE PRODUCED
`
`1. Materials from Amazon Concerning F1 Instances or FPGAs.
`
`2. Materials You sent to Amazon concerning Your products.
`
`3. Materials Concerning the design of F1 Instances.
`
`4. Purchase orders from Amazon for FPGAs or products containing FPGAs.
`
`5. Materials Concerning Your efforts to get designed into Amazon’s F1 Instances,
`
`including requests for quote, sample requests, technical support, training, communications,
`
`design win confirmation, price negotiations, and agreements.
`
`6. Materials Concerning the operational savings to Amazon could achieve by utilizing
`
`Your products.
`
`7. All Agreements between You and Amazon.
`
`8. Materials Concerning the Xilinx SDAccel ™ Development Environment for cloud
`
`acceleration that is offered by Amazon Web Services.
`
`9. Materials Concerning preserving SDRAM information during FPGA reconfiguration
`
`from one application to another application in F1 Instances.
`
`10. Materials in Your possession concerning F1 Instances.
`
`11. Invoices You sent to Amazon for its purchase of FPGAs or products containing
`
`FPGAs.
`
`12. Materials showing the number of FPGAs or FPGA products You have sold to
`
`Amazon.
`
`13. Materials Concerning research, design, production, fabrication, manufacturing, testing,
`
`packaging, and assembly processes for the F1 Instance, including but not limited to forecasts,
`
`contracts, and estimated costs.
`
`
`
`5
`
`10
`
`

`

`
`
`EXHIBIT A
`
`14. Materials Concerning Your Machine Learning Amazon Machine Instance.
`
`15. Materials Concerning Your reconfigurable acceleration stack.
`
`16. Marketing materials You have provided to Microsoft, Amazon, Baidu, and Huawei
`
`Concerning FPGA acceleration.
`
`17. Materials provided, presented, read, or reviewed by Your Board of Directors
`
`Concerning Amazon.
`
`18. Materials provided, presented, read, or reviewed by Your CEO, CFO, or CTO
`
`Concerning Amazon.
`
`19. Financial Information Concerning Your sales to Amazon.
`
`20. Materials Concerning any requests fir indemnification by Amazon concerning this
`
`lawsuit.
`
`21. Materials Concerning DirectStream.
`
`22. Materials Concerning SRC.
`
`23. Materials Concerning the Patents-In-Suit.
`
`24. Materials Concerning forecasts of sales to Amazon.
`
`
`
`
`
`6
`
`11
`
`