`
`555 California Street
`San Francisco, CA 94104
`United States
`
`+1 415 439 1400
`
`www.kirkland.com
`
`February 3, 2023
`
`Facsimile:
`+1 415 439 1500
`
`
`
`Laura Ashley Harris
`To Call Writer Directly:
`+1 415 439 1662
`lauraashley.harris@kirkland.com
`
`By E-mail
`
`Dear Andrew:
`
`Re: Gentex Corp. et al. v. Meta Platforms, Inc. et al., No. 22-cv-3892 (N.D. Cal.)
`
`This letter is written in response to your January 24, 2023 correspondence and regarding
`
`the parties’ discussion on the December 16, 2022 meet and confer. Gentex’s scorched earth
`approach to its discovery demands is actually impeding progress on discovery in this matter. We
`have repeatedly asked for some reasonable focus on Gentex’s requests, but you repeatedly refused
`to provide it. Gentex’s demands are not appropriate. As previously discussed, we will search for
`and produce responsive documents within reason, as set forth below.
`I.
`
`SUBSTANTIAL COMPLETION DEADLINE
`
`Meta agrees that the parties should agree to a substantial completion of production
`deadline. As such, assuming we can promptly resolve the open issues regarding ESI, Meta
`proposes substantial completion of party document production by March 16, which is two months
`before the current close of fact discovery.
`II.
`
`GENTEX’S DOCUMENT REQUESTS
`A.
`
`RFP No. 10
`
`No. 10: “All documents relating to any due diligence, valuation analysis, IP analysis, or other
`analysis you conducted or received in conjunction with your purchase of Oculus VR, Inc.”
`
`This request for “all documents” remains overly broad and Gentex has refused to agree to
`any reasonable limitations. That said, after a reasonable search, we have not located any patent
`analyses in connection with the purchase of Oculus VR, Inc. Additionally, we have already
`produced the only valuation analysis that we located, as well as documents sufficient to show the
`acquisition price. At this point, Meta believes it has produced all documentation proportional to
`the needs of this case. If further responsive and non-privileged materials are uncovered during ESI
`searching under the protocol being discussed, we intend to produce them.
`
`Austin Beijing Boston Brussels Chicago Dallas Hong Kong Houston London Los Angeles Munich New York Paris Salt Lake City Shanghai Washington, D.C.
`Exhibit 2003
`Page 1 of 4
`
`

`

`
`
`Andrew Borrasso
`February 3, 2023
`Page 2
`
`B.
`
`RFP No. 29
`
`No. 29: “All market studies, marketing presentations, and any other documents relating to demand
`for each Oculus Product.”
`
`This request for “All documents” in the listed categories remains overly broad and our
`objections stand. We understand that Plaintiffs are defining Oculus Products, for the purposes of
`this Request, as Oculus Rift, Oculus Rift S, Oculus Quest, Oculus Quest 2, Meta Quest 2, and
`Meta Quest Pro. Plaintiffs’ definition also includes all versions, models, and configurations of the
`listed products, including Enterprise versions, refurbished versions, and all various internal and
`external names used for these products, and excludes non-commercial, interim, or experimental
`hardware. Meta will respond to this Request with respect to Oculus Rift, Oculus Rift S, Oculus
`Quest, Oculus Quest 2, Meta Quest 2, and Meta Quest Pro, despite Gentex’s continually evolving
`definition of “Oculus Products.”
`
`Meta’s investigation to date has not uncovered any specific repositories for the categories
`of materials listed in this request. We have, however, located a set of market studies and intend to
`produce them. If further responsive and non-privileged materials are uncovered during ESI
`searching under the protocol being discussed, we intend to produce them.
`C.
`
`RFP No. 30
`
`No. 30: “All documents concerning the market for virtual reality products.”
`
`Meta continues to stand by its position that this Request is impermissibly broad. Plaintiffs’
`proposed “limitation” does not meaningfully narrow this request and still includes large categories
`of documents that have no relevance to this to this case. We have, however, located a set of market
`studies and intend to produce them. If further responsive and non-privileged materials are
`uncovered during ESI searching under the protocol being discussed, we intend to produce them.
`
`D.
`
`RFP No. 33
`
`No. 33: “Documents sufficient to show sales of Oculus products used in conjunction with the
`Accused Products (including but not limited to applications and accessories), including such
`product’s unit sales, revenues, gross profit, net profit, average unit sales price, list price, cost of
`goods sold (COGS), operating costs attributed to such product (i.e., other costs that are
`attributable to the product but not included in COGS, such as SG&A), and profitability.”
`
`Meta has consistently and repeatedly asked Gentex to (1) specify precisely which
`unaccused products you seek information on, and (2) provide a clear and reasonable basis for how
`
`Exhibit 2003
`Page 2 of 4
`
`

`

`
`
`Andrew Borrasso
`February 3, 2023
`Page 3
`
`such unaccused products relate to the specific infringement allegations in this case under Plaintiffs’
`damages theory. To date, Gentex has refused to provide this information or even categories of
`products for which you seek “certain financial information.” Without this information, Gentex’s
`request remains vague, unbounded, and disproportional to the needs of this case. Again, if Gentex
`will provide a list of the specific products for which you seek information, we are willing to
`consider this request.
`E.
`
`RFP No. 43
`
`No. 43: “All documents relating Meta’s pricing and sales practices relating to the Accused
`Products, including whether it chooses to price the products as loss leaders, such documents
`including but not limited to documents relating to any investigation by the Federal Trade
`Commission of Meta’s Virtual Reality division, Meta’s Reality Labs division, or Meta’s pricing
`and/or sales practices relating to the Accused Products.”
`
`On December 16, 2022, Meta requested information on the FTC investigation that you seek
`information on during the meet and confer. Over a month later, on January 24, 2023, you provided
`a link to a news article about an FTC investigation. We are looking into the investigation
`referenced in this article. But Meta at this point does not agree to produce “All
`documents…relating to any investigation by the Federal Trade Commission” merely to satisfy
`Gentex’s curiosity, particularly if other documents are sufficient to show “Meta’s pricing and sales
`practices relating to the Accused Products.” If you have authority for your assertion that
`documents relating to an FTC investigation are required to be produced in a separate patent
`infringement case, please provide it for us to consider.
`
`We explained in our December 16 meet and confer that we would be searching for
`marketing department repositories, quarterly business reports, and the like. It is unclear what
`further information Gentex is seeking from Meta regarding the search process as you have already
`outlined the process in your January 24 letter.
`F.
`
`RFP No. 44
`
`No. 44: “All documents relating or referring to any discussion of the Oculus Products at any
`meeting of your Board of Directors, including but not limited to meeting minutes or
`presentations.”
`
`You agreed during our meet and confer that this request is limited to formal Board meeting
`minutes and Board presentations. We are reviewing such Board of Directors documents for
`responsiveness and relevance as we stated we would during the December 16 meet and confer.
`Meta is confused what additional information you need in response to this request.
`
`Exhibit 2003
`Page 3 of 4
`
`

`

`
`
`Andrew Borrasso
`February 3, 2023
`Page 4
`
`Meta reiterates your agreement any production under this Request does not constitute a
`waiver of any Apex custodian objections.
`G.
`
`RFP Nos. 45-46
`
`No. 45: “Five samples of each Accused Product.”
`
`No. 46: “Three samples of each prior version of the Oculus Products before you began selling the
`Accused Products.”
`
`Meta understands that Gentex no longer has any unresolved issues with Meta’s response
`to RFP No. 45.
`
`With respect to RFP No. 46 and your request to “take the samples into its temporary
`possession in order to use them off premises (for example, with our experts, with witnesses at
`deposition, or at trial),” where reasonably possible Meta is willing to provide the samples at a
`deposition and/or at trial upon your request and with sufficient time to plan for this request (i.e., at
`least 10 business days’ notice). Regarding your request to take the samples off premises for
`experts; we do not see the need for this request and risk transporting the items to multiple locations
`throughout this litigation. Rather, where reasonably possible, we would make the headsets
`available at Kirkland’s San Francisco Office and your experts may review the samples under the
`same procedures that a source code expert would review Meta’s source code. That said, if after
`such inspection you believe there is a particular need for an off-premises inspection, we will
`consider it in context of the particular device and whether Gentex will bear the full risk and liability
`for any loss or damage while the device is off-premises.
`
`
`
`Sincerely,
`
`/s/ Laura Ashley Harris
`
`Laura Ashley Harris
`
`Exhibit 2003
`Page 4 of 4
`
`