Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 1 of 17
`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 1 of 17
`
`EXHIBIT 9
`EXHIBIT 9
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 2 of 17
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`
`
`
`
`GOOGLE LLC,
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`Plaintiff,
`
`
`
`v.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`Civil Case No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`NOTICE OF SUBPOENA
`
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that Defendant Google LLC will serve the attached subpoenas.
`
`
`
`1
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 3 of 17
`
`Dated: April 14, 2022
`
`
`
`By: /s/ Michael C. Hendershot
` Michael C. Hendershot
`
`
`
`
`
`JONES DAY
`Tharan Gregory Lanier (Admitted pro hac vice)
`CA State Bar No. 138784
`E-mail: tglanier@jonesday.com
`Michael C. Hendershot (Admitted pro hac vice)
`CA State Bar No. 211830
`E-mail: mhendershot@jonesday.com
`Evan M. McLean (Admitted pro hac vice)
`CA State Bar No. 280660
`E-mail: emclean@jonesday.com
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Telephone: (650) 739-3939
`Facsimile:
`(650) 739-3900
`
`
`POTTER MINTON PC
`Michael E. Jones
`TX State Bar No. 10929400
`E-mail: mikejones@potterminton.com
`Patrick C. Clutter
`TX State Bar No. 24036374
`E-mail: patrickclutter@potterminton.com
`110 N. College Ave., Suite 500
`Tyler, TX 75702
`Telephone:
` (903) 597-8311
` (903) 593-0846
`Facsimile:
`
`Attorneys for Defendant
`
`
`
`
`2
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 4 of 17
`
`CERTIFICATE OF SERVICE
`
`I certify that on April 14, 2022, I served the foregoing by electronic mail on counsel of
`
`record.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Edwin O. Garcia
` Edwin Garcia
`
`
`
`
`3
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 5 of 17
`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 5 of 17
`
`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
`
`Western District of Texas
`
`)
`)
`
`) )
`
`)
`
`TOUCHSTREAM TECHNOLOGIES,INC.
`Plaintiff
`
`GOOGLE LLC
`
`Defendant
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISESIN A CIVIL ACTION
`
`To:
`
`J.M.Driver LLC (D/B/A Lynx Technology)
`c/o J.M. DriverIl, 13983 Arbolitos Drive, Poway, CA 92064
`(Nameofperson to whom this subpoena is directed)
`4 Production: YOU ARE COMMANDEDto produceat 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 Exhibit A
`
` Place: Jones Day Date and Time:
`
`1755 Embarcadero Road
`05/16/2022 by 5:00 pm PT, or other mutually
`Palo Alto, CA 94303
`agreeable date, time, location.
`
`O} Inspection ofPremises: YOU ARE COMMANDEDtopermitentry onto the designated premises, land, or
`other property possessed or controlled by youat 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 onit.
`
`
`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
`respondto this subpoena andthe potential consequencesof not doing so.
`
`Date.
`
`04/14/2022
`
`CLERK OF COURT
`
`Signature ofClerk or Deputy Clerk
`
`Attorney’s signature
`
`OR
`
`/s/ Evan M. McLean
`
`The name, address, e-mail address, and telephone numberof the attorney representing (nameofparty)
`Google LLC
`, whoissues or requests this subpoena,are:
`
`Evan M. McLean, Jones Day, 1755 Embarcadero Road, Palo Alto, CA 94303; emclean@jonesday.com
`
`Notice to the person whoissues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things or the
`inspection ofpremises 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 whomit is directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 6 of 17
`
`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.
`
`6:21-cv-569-ADA
`
`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)
`
`(cid:117) I served the subpoena by delivering a copy to the named person as follows:
`
`(cid:117) 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 $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 7 of 17
`
`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)
`(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.
`
`(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
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 8 of 17
`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 8 of 17
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`
`Western District of Texas
`
`Civil Action No.
`
`6:21-cv-569-ADA
`
`)
`)
`)
`
`) )
`
`)
`
`TOUCHSTREAM TECHNOLOGIES,INC.
`Plaintiff
`Vv.
`GOOGLE LLC
`
`Defendant
`
`SUBPOENATO TESTIFY AT A DEPOSITIONIN A CIVIL ACTION
`
`To:
`
`J.M.Driver LLC (D/B/A Lynx Technology)
`c/o John M. DriverII, 13983 Arbolitos Drive, Poway, CA 92064
`(Nameofperson to whom this subpoena is directed)
`af Testimony: YOU ARE COMMANDEDto appear atthe time, date, and place set forth belowtotestify 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 consentto testify on your behalf about the following matters, or
`those set forth in an attachment:
`See Exhibit A
`
`location.
`
`Date and Time:
`5/19/2022 at 9:00 am PT,or other mutually
`agreeable date.
`time.
`
`Place:
`
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 94303
`
`The deposition will be recorded by this method:
`
`O} 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:
`
`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
`respondto this subpoena andthe potential consequencesofnot doing so.
`
`Date:
`
`04/14/2022
`
`CLERK OF COURT
`
`Signature ofClerk or Deputy Clerk
`
`Attorney’s signature
`
`OR
`
`/s/ Evan M. McLean
`
`The name, address, e-mail address, and telephone numberof the attorney representing (nameofparty)
`Google LLC
`, whoissues or requests this subpoena, are:
`Evan M. McLean, Jones Day, 1755 Embarcadero Road,Palo Alto, CA 94303; emclean@jonesday.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 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).
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 9 of 17
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`6:21-cv-569-ADA
`
`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)
`
`(cid:117) I served the subpoena by delivering a copy to the named individual as follows:
`
`(cid:117) 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 $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 10 of 17
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(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.
`
`(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:
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 11 of 17
`
`EXHIBIT A
`
`DEFINITIONS
`
`1.
`
`The terms “Plaintiff” and “Touchstream” mean Touchstream Technologies, Inc.
`
`and includes any past and present parents, predecessors, successors, subsidiaries, affiliates,
`
`divisions, associated organizations (including “Shodogg”), joint ventures, and all present and
`
`former officers, directors, trustees, employees, staff members, agents, or other representatives,
`
`including counsel and patent agents, in any country.
`
`2.
`
`The
`
`terms “you,” “your,” and “TwonkyMedia”
`
` mean “TwonkyMedia”
`
`“PacketVideo Corp.,” “Lynx Technology,” and “J.M. Driver, LLC,” and includes any past and
`
`present parents, predecessors, successors, subsidiaries, affiliates, divisions, associated
`
`organizations, joint ventures, and all present and former officers, directors, trustees, employees,
`
`staff members, agents, or other representatives, including counsel and patent agents, in any
`
`country.
`
`3.
`
`4.
`
`5.
`
`6.
`
`The term “’251 patent” means U.S. Patent No. 8,356,251.
`
`The term “’528 patent” means U.S. Patent No. 8,782,528.
`
`The term “’289 patent” means U.S. Patent No. 8,904,289.
`
`The term “Patents-In-Suit” shall refer, collectively, to the ’251, ’528, and ’289
`
`patents. Requests referring to “each of the Patents-In-Suit” (or “each asserted claim in the Patents-
`
`In-Suit”) require responsive documents for each of ’251, ’528, and ’289 patents.
`
`7.
`
`The term “Related Litigation” refers to the consolidated action, Touchstream
`
`Technologies, Inc. v. Google LLC, No. 6:21-cv-00569 (W.D. Tex.), pending in the United States
`
`District Court for the Western District of Texas, and any other legal proceeding involving the
`
`Patents-In-Suit, any related patents, or any of Touchstream’s predecessors-in-interest.
`
`
`
`
`
`
`
`

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`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 12 of 17
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`8.
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`The term “Twonky System” means all versions of Twonky, PVConnect,
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`TwonkyManager, TwonkyMedia Server, Twonky Server (and similar or related products and
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`systems) with corresponding software and/or firmware developed before April 21, 2011 (the
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`priority date claimed on the face of the Patents-in-Suit) and before October 8, 2010 (the priority
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`date Touchstream alleges in its amended invalidity contentions).
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`9.
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`The term “document” has the broadest meaning accorded that term by Fed. R. Civ.
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`P. 34(a) and includes, but is not limited to, all of the items defined in Fed. R. Evid. 1001, and all
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`preliminary and final drafts of any such item.
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`10.
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`The term “all documents” means any and all documents that you can locate through
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`a diligent search of all locations likely to contain documents requested herein and through
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`reasonable inquiry of all persons likely to know of the existence of documents requested herein.
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`A draft or non-identical copy is a separate document within the meaning of this term. Any
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`comment or notation appearing on any document, and not a part of the original text, is to be
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`considered a separate “document.”
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`11.
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`The term “communication” shall refer to all written, oral, telephonic or other
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`inquiries, dialogues, discussions, conversations, interviews, correspondence, consultations,
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`negotiations, agreements, understandings, meetings, letters, notes, telegrams, advertisements,
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`press releases, computer mail, e-mail and all other documents evidencing any verbal or nonverbal
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`interaction between persons and/or entities.
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`12.
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`The term “person” is defined as any natural person or any legal entity, including,
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`without limitation, any business or governmental entity or association.
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`13.
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`The terms “relate to,” “relates to,” “related to,” “relating to,” “referring to,”
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`“pertaining to,” “pertain to,” and “regarding” mean constitute, include, comprise, consist of, refer,
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`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 13 of 17
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`reflect, discuss, show, state, explain, contradict, provide context to, evidence, concern or be in any
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`way logically or factually connected with the matter discussed or identified.
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`14.
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`The terms “or” and “and” shall be read in the conjunctive and in the disjunctive
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`wherever they appear, and neither of these words shall be interpreted to limit the scope of these
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`requests.
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`15.
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`16.
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`The term “any” and “each” should be understood to include and encompass “all.”
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`All pronouns shall be construed to refer to the masculine, feminine, or neutral
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`gender, in singular or plural, as in each case makes the request more inclusive.
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`17.
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`The use of a verb in any tense shall be construed as including the use of the verb in
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`all other tenses.
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`18.
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`The singular form of any word shall be deemed to include the plural. The plural
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`form of any word shall be deemed to include the singular.
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`INSTRUCTIONS
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`1.
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`The subpoena served upon you commands you to produce all responsive documents
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`in your possession, custody or control, including your attorneys, agents, representatives, or
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`employees.
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`2.
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`Pursuant to Federal Rule of Civil Procedure 45(d)(1), you are to provide documents
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`responsive to this subpoena as they are kept in the ordinary course of business, or can organize
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`and label the documents to correspond with the categories set forth below.
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`3.
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`Electronic records and computerized information must be produced in an
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`intelligible format, together with a description of the system from which they were derived
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`sufficient to permit rendering the records and information intelligible.
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`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 14 of 17
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`4.
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`Selection of documents from the files and other sources and the numbering of such
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`documents shall be performed in such a manner as to ensure that the source of each document may
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`be determined, if necessary.
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`5.
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`File folders with tabs or labels or directories of files identifying documents called
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`for by these requests must be produced intact with such documents.
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`6.
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`7.
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`Documents attached to each other shall not be separated.
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`Should you seek to withhold any document based on some limitation of discovery
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`(including, but not limited to, a claim of privilege), supply a list of the documents for which
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`limitation of discovery is claimed, indicating:
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`a.
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`b.
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`The identity of each document’s author, writer, sender, or initiator;
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`The identity of each document’s recipient, addressee, or person for whom
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`it was intended;
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`c.
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`The date of creation or transmittal indicated on each document, or an
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`estimate of that date, indicated as such, if no date appears on the document;
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`d.
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`The general subject matter as described on each document, or, if no such
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`description appears, then some other description sufficient to identify the document; and
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`e.
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`The claimed grounds for limitation of discovery (e.g., “attorney-client
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`privilege”).
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`8.
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`If your response to a particular demand is a statement that you lack the ability to
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`comply with that demand, you must specify whether the inability to comply is because the
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`particular item or category never existed, has been destroyed, has been lost, misplaced, or stolen,
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`or has never been, or is no longer, in your possession, custody, or control, in which case the name
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`Case 6:21-cv-00569-ADA Document 149-9 Filed 01/12/23 Page 15 of 17
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`and address of any person or entity known or believed by you to have possession, custody, or
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`control of that document or category of document must be identified.
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`9.
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`To the extent permitted and authorized by law, these document requests shall be
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`deemed continuing and require supplemental responses and production if you obtain additional
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`documents between the time of initial production and the time of hearing or trial.
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`DOCUMENT REQUESTS
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`1.
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`Documents sufficient to show that the Twonky System was made, used, promoted,
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`disclosed, publicly available, offered for sale, or sold both before April 21, 2011 (the priority date
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`claimed on the face of the Patents-in-Suit), and before October 8, 2010 (the priority date
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`Touchstream alleges in its amended invalidity contentions), including, but not limited to, products,
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`devices, components, databases, guides, schematics, specifications, software, hardware, firmware,
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`applications, source code, prototypes, physical devices, test plans, test results, demonstrations,
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`videos, white papers, memoranda, theses, publications, presentations, meeting minutes, manuals,
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`business plans, and marketing plans.
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`2.
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`Documents and communications sufficient to show the operation, design, and
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`functionality of any version of the Twonky System software, hardware, firmware, applications,
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`source code, and prototypes that were promoted, disclosed, publicly tested, or publicly available
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`in the United States both before April 21, 2011 (the priority date claimed on the face of the Patents-
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`in-Sui