November 29, 2017
`
`Via Email
`
`Bradley Coburn
`Shelton Coburn LLP
`104 East Park Dr., Suite 317
`Nashville, TN 37027
`coburn@sheltoncoburn.com
`
`Christine Duh
`
`+1 650 858 6051 (t)
`+1 650 858 6100 (f)
`christine.duh@wilmerhale.com
`
`Re: Hewlett Packard Enterprise Company v. Springpath, Inc.,
`C.A. No. 4:15-cv-13345-TSH (D. Mass)
`
`Dear Bradley:
`
`I write in response to your letter dated November 14, 2017, which responded in part to my letter
`dated November 6, 2017.
`
`A.
`
`Springpath’s Discovery Responses
`
`With respect to the alleged issues raised in Section C of your November 14 letter,
`Springpath responds as follows:
`
`
`
`Interrogatory No. 9. Our investigation into this issue is ongoing; however, Springpath
`will supplement its response to this interrogatory with respect to the version of Data
`Platform that has been actually accused in this litigation (i.e., pre-version 2.5).
`
` RFP Nos. 1-4, 14-16, 22-26, 28, 36, 43, 45, 47, 59-81, 86, 89, and 90. It appears that
`Plaintiff takes issue with Springpath’s responses to the extent these responses include the
`following sentence: “Springpath is withholding and will not produce documents and
`things subject to these objections.” Springpath confirms that it is not withholding any
`specific responsive, non-privileged documents and is, instead, producing documents
`subject to its objections as indicated in the corresponding responses. For example, for
`RFP Nos. 1-4, Springpath is producing source code for the pre-version 2.5 and version
`2.5 of Springpath’s Data Platform product and corresponding technical documents,
`including documents sufficient to show the structure, operation, and function of Data
`Platform; design specifications; and user manuals and installation manuals for all Data
`Platform releases. As another example, for RFP 22, Springpath is producing documents
`relating to the Asserted Patent that it filed with the Patent Office.
`
` RFP Nos. 92, 93, 94, 96 and 97. To the extent there were any documents responsive to
`these requests, they would have been exchanged between counsel for Springpath and/or
`Cisco pursuant to the common interest privilege. To the extent that any responsive,
`
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`privileged documents were created before the filing of the Complaint, Springpath will
`provide a privilege log consistent with the schedule to be agreed upon by the parties.
`
` RFP Nos. 101, 102, and 103. As set forth in my email dated November 16, 2017, with
`respect to “RFPS Relating to Version 2.5 of Springpath’s Data Platform,” Springpath’s
`source code for version 2.5 is available for review at WilmerHale’s offices in Boston.
`We further direct you to the document bearing the bates-number SPR0011087.
`Springpath’s investigation is ongoing, and Springpath will supplement as able and
`appropriate.
`
` RFP No. 6. Springpath confirms that it has no responsive, non-privileged documents.
`
` RFP No. 7. Springpath will produce documents sufficient to identify each repository of
`electronically stored information from which Springpath produced responsive documents,
`to the extent they exist and can be located after a reasonable search.
`
` RFP Nos. 8, 9, 10, 87, and 88. Springpath does not believe that documents regarding its
`own and/or third-party indemnification agreements and obligations are relevant to the
`claims or defenses of this action. Notwithstanding that, Springpath is willing to meet and
`confer to discuss the purported relevance of these requests.
`
` RFP Nos. 11, 12, and 52. It is not clear what Plaintiff is seeking with these requests, and
`to the extent decipherable, the excessively broad scope of these requests is not
`proportional to the needs of the case. Springpath is willing to meet and confer to discuss
`the scope of these requests.
`
` RFP Nos. 13, 35, 37, 38, and 39. Springpath is producing Springpath’s marketing
`documents, including press releases, news articles and other media coverage, data sheets,
`white papers, validation papers, marketing presentations, and blog entries from
`Springpath’s website.
`
` RFP Nos. 18, 24, 25, 50, and 55. Since serving these discovery responses, Springpath
`has served its non-infringement and invalidity contentions and made the corresponding
`productions. In addition, Springpath is producing (a) technical documents, including
`source code for the pre-version 2.5 and version 2.5 of Springpath’s Data Platform product
`and corresponding technical documents, including documents sufficient to show the
`structure, operation, and function of Data Platform, design specifications, and user
`manuals and installation manuals for all Data Platform releases, (b) marketing
`documents, including press releases, news articles and other media coverage, data sheets,
`white papers, validation papers, marketing presentations, and blog entries from
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`Springpath’s website, and (c) documents showing Springpath’s revenues, costs, expenses,
`and profits. Springpath will serve its expert reports in accordance with the schedule as
`set by the Court.
`
` RFP Nos. 20 and 21. All communications Springpath has had with third parties,
`including Cisco, relating to this litigation and the asserted patent would have been made
`pursuant to the common interest privilege. To the extent that any responsive, privileged
`documents were created before the filing of the Complaint, Springpath will provide a
`privilege log consistent with the schedule to be agreed upon by the parties.
`
` RFP Nos. 27 and 31. Springpath does not believe that its projected revenues are relevant
`to the claims or defenses of this action. However, Springpath is willing to meet and
`confer to discuss the relevance of these requests.
`
` RFP Nos. 30, 40, 44, 53, and 54. Springpath will conduct a reasonable search for, and
`produce, documents sufficient to show Springpath’s revenues, costs, expenses, and
`profits.
`
` RFP No. 34. Springpath will conduct a reasonable search for, and produce, industry
`studies and reports that provide United States market data for Springpath’s Data
`Platform, to the extent they exist, subject to any third-party confidentiality requirements.
`
` RFP Nos. 41 and 100. The valuation of Springpath and its technologies are not relevant
`to the claims or defenses of this action. Springpath is willing to meet and confer to
`discuss the relevance of this request.
`
` RFP Nos. 42 and 46. Based on its investigation to date, there are no non-privileged
`documents responsive to these requests.
`
` RFP Nos. 48, 49, 51, 86, 91, 95, 98, and 99. The relationships between Springpath and
`third parties (including Cisco), the business dealings between the entities, and
`communications arising from those dealings, are not relevant to the claims or defenses of
`this action. Springpath is willing to meet and confer to discuss the relevance of these
`requests.
`
` RFP Nos. 56 and 84. The identification of all documents reviewed or relied upon to
`respond to Plaintiffs’ discovery responses, motions, and complaint is protected from
`disclosure under the attorney client privilege and work product doctrine and overly broad
`so as not to be proportional to the needs of the case. Springpath has produced documents
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`as indicated in its discovery responses or as otherwise required by the Federal Rules of
`Civil Procedure and Local Rules of the Court.
`
` RFP Nos. 57 and 58. Claim construction briefing has been completed, and Springpath
`has produced documents responsive to these requests.
`
` RFP No. 82. Springpath has not yet identified all the documents it intends to offer as
`evidence in this litigation, but when Springpath identifies non-privileged documents it
`intends to rely on, it will produce such documents. In addition, Springpath will produce
`non-privileged documents it intends to offer as evidence in this litigation consistent with
`the Court’s scheduling order, including in its expert reports, exhibit list, and other pretrial
`filings.
`
` RFP No. 83. The request for all testimony, including trial testimony, deposition
`testimony, affidavits or declarations, by any person Springpath expects to call as a
`witness, including expert witnesses, is overbroad, not relevant to the claims or defenses
`of this action, and not proportional to the needs of this case. Springpath is willing to
`meet and confer regarding the scope of this request.
`
` RFP No. 85. Springpath refers HPE to the CV(s) of its expert witness(es), which
`Springpath has made or will be making available pursuant to Paragraph E, ¶ 13 of the
`Protective Order.
`
`As discussed, we are available to meet and confer on December 1 at 12:00 p.m. PT on
`any remaining issues identified above.
`
`B.
`
`Plaintiff’s Discovery Responses
`
`As detailed in my letter dated November 6, 2017, Plaintiff’s responses to Interrogatories
`Nos. 1, 2, 3, 7, and 8 are wholly deficient. Your November 14, 2017 letter fails to cure these
`deficiencies. First, with respect to Interrogatories Nos. 1, 3, 7, and 8, please provide a date
`certain by which Plaintiff will supplement its responses. Second, with respect to Interrogatory
`No. 2, Plaintiff asserts that it is not required to elect its theory of damages during the discovery
`process. This is incorrect.
`
`Interrogatory No. 2 seeks information regarding Plaintiff’s damages claims against
`Springpath. At a minimum, Plaintiff must supplement its interrogatory response to state whether
`it intends to seek lost profits, as well as provide specifics as to the factual bases for damages in
`this case. Springpath’s production of “damages-related documents” is irrelevant to Plaintiff’s
`
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`obligation to provide a substantive response to this interrogatory. Springpath intends to move to
`compel Plaintiff to answer this interrogatory if Plaintiff maintains its refusal to answer.
`
`Regarding HPE’s responses to Springpath’s RFPs, please confirm whether:
`
` HPE is withholding any specific responsive, non-privileged documents based on
`its objections to each of Springpath’s RFPs;
` HPE is claiming privilege over any responsive documents exchanged between
`SimpliVity and HPE; and
` HPE will be producing documents relating to the valuation of SimpliVity and its
`technologies in response to Springpath’s RFPs.
`
`Please be prepared to discuss the above-referenced issues during our upcoming meet and
`confer.
`
`Best regards,
`
`Christine Duh
`
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