Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 1 of 27
[OlA'\PER April 25, 2011 VIA EMArL Ms. Laure-n J. Galgano Robins. t<ap/an. M el & Clre$i, LLP. 2BOO LaSalle Plaza BOO LaSalle Ave. Minneapoll$, MN 55402 tiLt. PIpe: lU' lliI8l 401 COng .s """""e, S 2SOD T/f.{8S 7Il7DH!7'i1!9 \'IWW.d P90t.<lO BRan K. EI1cksDI1
T F 512,nl,22e3 Re: C-. No, 2:09-CV-257-DF; TIVo Inc. Y. V...izon Communications Inc" S\lbp_na to Motorola ability, Inc. Dear Lauren: write in response to your letter of April 15t Document P,r.oductkm: Motorola has prodlJoed the S[)urce code for th.e al PdeI/lOllS. which Issulfident to show the functionalitY of those devices. Ac(l(llngty, Motorola C(lnsiders iI5 produclton of technical documents ,complete. Nevertheless, Motorola '11'1 look to( tt'le dODUrroents mentio in your lette'r and. S\lbtect to a d witllcJu\ wElilling tt'le qer'lefal and specific objections in Motorola's response 10 TlVo's subpoena, produce them as appropriate. It should Ile noted t !I1e Iltles of sellBral or these documents indicate U1ey probably are not relevanllo tt'le alP devices. e.g., documents regarding tile BCM7030 that IsflOt in any alP device. WLlh respect to documertts retated to OCT de ees, _ were dear prior to Iheir production that they canr'lot be fe.led upon 10 showthe functionality of alP deviceS. The.se OCT dowments were prodUced as II COUrle5y arld In respon&e to TlVo's $pecific request that Motorola produCe eny such documen s to aid ,o's revlew of the relevan alP source code, Now that the alP l>Ource code has been produced and reviewed by T.Vos expe $, if TIVo has no fLll1tler need Of Ihese DC documents, I shQutd rerum them to Motorola or destroy them pUf'$uant to Ihe protective order. Source Cod! Ptoduetlon: Months ago \WI discussed that there had been mUltiple versions 0 so1'lWare used on alP devices in the past. but !hat Motorola would prodl.Jce only the two vel$ioM of software cUTflmlly deployed on QIP prOducts, Wt1\le not d]spos lve of Ihls iSSLJe, Motorola underatanda that production was cons.istent wiltll.t1e productions of Ihe parties in lhe litigation. Aooordcngly, Mot[)rola co ide' its prodtJOllOI'I complete. If TlVo had wanted other versions of S[)urce code, have brought thl$ u;p in our prior discullIions. Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 2 of 27 Ms. l.auVll.n J. April 25, 2011
RegllFding Ihe ElGM3,250, we hllVe 'Gorllfirmed Ihllt Motorola does not have any sOlJl'Oecode for ElllY software f\,mningon toot et\ip. Regardi"Q Microsoft, we Illa\ieconliJmed that Motorola does not have a: y source code tor Ifle IC!'0601l ref,rrecl to 11'1 the d'OCUl'net1t cit i- your letter. 'Cuelll,jQI!l of SOlll'lOe COde iReYJllW n.aJly, il has been over one mo til since IIVOlast inspooled SOIlJOEl cede. Aceordll'lgly. we assume thMnvo's review of 'Motorola", 'source code Is complete, anel we plan tosllourtl thAt source COM and repurpoSll Ihe computer and pillllonl'l8l supportillg Ute review no laleHtlan 1st. - Bnan K, Efickson Sh'lOOrell'. DL:;(lIPpe p:rr LLP (US_).,....,._
- . , .... - Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 3 of 27 Ottley, Sandra K. From: Erickson, Brian [Brian.Erickson@dlapiper.com] Sent: Monday, April 25, 2011 4:40 PM To: Galgano, Lauren J. Cc: Zimmerman, Lila M.; Ottley, Sandra K. Subject: RE: TiVo's subpoena to Motorola, TiVo v. Verizon, Case No. 2:09-cv-257 (E.D. Tex.) Attachments: Tivo-MMI - 4-25-11 Erickson ltr to Galgano.pdf Page 1 of 2 4/28/2011 Dear Lauren,
Please see the attached.
Regards, Brian
Fr om: Galgano, Lauren J. [ mailt o: LJGalgano@rkmc.com] Sent : Friday, April 15, 2011 4: 45 PM To: Erickson, Brian Cc: Zimmerman, Lila M.; Ot t ley, Sandra K. Subj ect : TiVo's subpoena t o Mot orola, TiVo v. Verizon, Case No. 2: 09-cv-257 ( E.D. Tex.)
Dear Brian,
Please see the attached correspondence regarding Motorola's document and source code production.
Best Regards,
Lauren
Lauren J. Galgano Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402
Information contained in this e-mail transmission may be privileged, confidential and covered by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521. If you are not the intended recipient, do not read, distribute, or reproduce this transmission. If you have received this e-mail transmission in error, please notify us immediately of the error by return email and please delete the message from your system. Pursuant to requirements related to practice before the U. S. Internal Revenue Service, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue Code or (ii) Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 4 of 27 promoting, marketing or recommending to another person any tax-related matter. Thank you in advance for your cooperation. Robins, Kaplan, Miller & Ciresi L.L.P. http://www.rkmc.com ____________________________________________________ Please consider the environment before printing this email.
The informat ion cont ained in t his email may be confident ial and/ or legally privileged. I t has been sent for t he sole use of t he int ended recipient ( s) . I f t he reader of t his message is not an int ended recipient , you are her eby not ified t hat any unaut horized review, use, disclosur e, disseminat ion, dist ribut ion, or copying of t his communicat ion, or any of it s cont ent s, is st rict ly prohibit ed. I f you have received t his communicat ion in error, please reply t o t he sender and dest roy all copies of t he message. To cont act us dir ect ly, send t o post mast er@dlapiper. com. Thank you. Page 2 of 2 4/28/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 5 of 27 EXHIBIT E Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 6 of 27 2800 LASALLE PLAZA 800 LASALLE AVENUE MINNEAPOLIS, MN 55402-2015 TEL: 612-349-8500 FAX: 612-339-4181 www.rkrnc.com ROBINS, KAPLAN, MILLER & CIRESI L L P ATTORNEYS AT LAW PETER M. ROUTHIER 612-349-8286 June 20, 2011 VIA EMAIL Brian Erickson DLA Piper LLP 401 Congres, Suite 2500 Austin, TX 78701 Re: TiVo Inc. V. Verizon et al. Dear Brian: This letter memorializes the meet and confer we had today. You told us that Motorola should be able to produce all the documents and source code we previously discussed by the end of next week: July 1. Meanwhile, you agreed to compile a final list of the versions of source code Motorola will be producing and to send that list to us tomorrow. You also agreed to seek permission from Broadcom for the production of its source code and to let us know when Broadcom had given its consent. Finally, you told us that you still did not know whether or how Motorola might seek additional protections beyond the existing protective order in this case. You also did not know what additional protections Motorola was considering. We told you that we don't want to be in a position where you are putting unreasonable restrictions on us as we get closer to Motorola's production and that we wanted to talk about any concerns Motorola has right away. You explained that if we didn't hear from you then Motorola would produce without any additional restrictions. Sincerely, ROBJ.I, KAPLAN, MILLER & CIRESI L.L.P. Peter M. Routhier ATL ANT A -BOSTONLOS ANGELES MINNEAPOLIS NAPLESNEW YORK
Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 7 of 27 EXHIBIT F Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 8 of 27 RECNkb)
DLA Piper LLP (US) 401 Congress Avenue, Suite 2500 Austin, Texas 78701-3799 www.dlapiper.com Brian K. Erickson brian.erickson@dlapiper.com T 512.457.7059 F 512.721.2263 R O B I N S , KAPLAN , M I LLE R & CIRESI L.L.R DATE 7-- / / B Y
July 1, 2011 VIA OVERNIGHT MAIL Ms. Lauren J. Galgano Robins, Kaplan, Miller & Ciresi, L.L.P. 2800 LaSalle Plaza 800 LaSalle Ave. Minneapolis, MN 55402 (612) 349-8500 Re: Case No. 2:09-CV-257-DF; TiVo Inc. v. Verizon Communications Inc., Subpoena to Motorola Mobility, Inc. Dear Lauren: Enclosed is a CD containing Motorola Mobility Inc.'s document production, Bates N os. MMI0006584 through MMI0010020. With respect to source code, Motorola has identified 29 additional versions of software that may have been deployed by Verizon. Motorola is prepared to produce all 29 versions for TiVo's inspection on the source code review computer in our Boston office. However, we are informed that the parties in the litigation may agree to treat a small handful of software versions as representative. Thus, we believe it is premature to produce those 29 versions now. Please let us know if TiVo disagrees. As with the previous production, this production is made pursuant to the agreement by TiVo and Verizon, memorialized in your letter dated December 3, 2010, that disclosure of Motorola's confidential information will be limited to outside-counsels' eyes only. I.e., TiVo and Verizon agree that Motorola's confidential information will only be disclosed to those persons described in paragraphs 6(a) to 6(d) of the Joint Stipulation and Protective Order dated July 30, 2010 and will not be disclosed to those persons described in paragraphs 6(e) and/or 6(f) of that Order. If either party disputes that agreement, they should notify me immediately and return the documents so that Motorola may seek a further protective order from the Court. Further, as we have discussed, Motorola Mobility is going to seek additional protections for its confidential information from the parties and, if necessary, the Court, in light of TiVo's failure to properly protect Motorola Mobility's confidential information under the current protective order. Please let me know if you have any questions. Very truly yours, Brian K. Erickson DLA Piper LLP (US) Encl. WEST1223834751.1 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 9 of 27 EXHIBIT G Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 10 of 27 Routhier, Peter M. From: Routhier, Peter M. Sent: Thursday, June 16, 2011 1:41 PM To: 'Erickson, Brian' Cc: Collyard, Michael A. Subject: RE: TiVo v. Verizon-MMI subpoena Page 1 of 3 7/18/2011 Brian,
We waited over twenty minutes for you but you never called in to our scheduled meet and confer. I called and emailed you during the scheduled time but have received no response.
We really need to speak with Motorola's counsel today about these matters. We can make ourselves available for the rest of the day except for 3-4pm central. Please email us right away and let us know.
Sincerely,
Peter M. Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402 Direct: (612) 349-8268
Fr om: Rout hier, Pet er M. Sent : Thursday, June 16, 2011 1: 09 PM To: 'Erickson, Brian' Cc: Collyard, Michael A. Subj ect : RE: TiVo v. Verizon-MMI subpoena
Hi Brian,
Will you be joining us this afternoon?
Thanks,
Peter
Fr om: Rout hier, Pet er M. Sent : Wednesday, June 15, 2011 9: 13 AM To: 'Erickson, Brian' Cc: Collyard, Michael A. Subj ect : RE: TiVo v. Verizon-MMI subpoena
Brian,
Yes, 1pm Central on Thursday is fine. Let's use this call in information: 877-260-4544, participant code 6123490975. Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 11 of 27 Thanks, Peter
Fr om: Erickson, Brian [ mailt o: Brian.Erickson@dlapiper.com] Sent : Tuesday, June 14, 2011 6: 03 PM To: Rout hier, Pet er M. Cc: Collyard, Michael A. Subj ect : RE: TiVo v. Verizon-MMI subpoena
Peter, Does 1pm Central Thursday work for you? Brian
Fr om: Rout hier, Pet er M. [ mailt o: PMRout hier@rkmc.com] Sent : Tuesday, June 14, 2011 4: 11 PM To: Erickson, Brian Cc: Collyard, Michael A. Subj ect : RE: TiVo v. Verizon-MMI subpoena
Brian,
I sent you an email yesterday asking if you would be available to talk today about the outstanding issues on the Motorola subpoena. I followed up on that email with a voicemail this morning but you haven't responded. Motorola has had a couple of weeks now to look into these issues and many months to respond to TiVo's subpoena. As I've explained in my emails and messages, timing is extremely important right now. Can you please let me know if you can be available to meet and confer tomorrow morning on these outstanding issues. If you can't, please let me know if any time on Thursday works for you. Either way, please give me the courtesy of a response.
I would also like some clarification from Motorola now that you've had a chance to review the list of deployed versions provided by Verizon. I sent you a copy of that list yesterday. You'll notice that the versions of firmware that Motorola has produced to TiVoDel Mar 23.54A and 23.54Bare not on that list. You previously told us that those were the versions currently in use on Verizon's QIP products. Can you confirm whether the source code Motorola has made available to TiVo to date does in fact represent what is currently in use on Verizon's QIP products?
I don't mean to continue to bother you, but you surely understand the importance of these issues. I look forward to hearing from you.
Sincerely,
Peter M. Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402 Direct: (612) 349-8268
Page 2 of 3 7/18/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 12 of 27
Fr om: Rout hier, Pet er M. Sent : Thursday, June 09, 2011 4: 29 PM To: 'Erickson, Brian' Cc: Collyard, Michael A. Subj ect : RE: TiVo v. VerizonMMI subpoena
Brian,
We understand that you have been working with Verizon to identify the deployed versions of Motorola software that we talked about. As you probably know, Verizon is amending its response to an interrogatory on this and is going to send it to us tomorrow. They gave us permission to share this information with you so we'll do that right away when we get it.
We'd like to set up a time to talk with you on Monday so we can move the ball forward on Motorola's production. You should have all the information you need by that time. Please let us know if you can be available to talk at 9:30 AM CST or 3:30PM CST.
Sincerely,
Peter M. Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402 Direct: (612) 349-8268
Page 3 of 3 7/18/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 13 of 27 EXHIBIT H Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 14 of 27 Routhier, Peter M. From: Galgano, Lauren J. Sent: Tuesday, July 05, 2011 5:26 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Specht, Brock J.; Routhier, Peter M.; Felkins, Julie B.; Zimmerman, Lila M. Subject: TiVo v. Verizon - TiVo's Subpoena served on Motorola Page 1 of 1 7/21/2011 Dear Brian,
We received Motorola's production of additional documents today. We'll take a look at these documents and let you know if we see any issues that require follow up.
Regarding the source code versions, thank you for confirming that as many as 29 additional versions of potentially responsive code exist. I understand that you had agreed to provide my colleague Peter Routhier a list of these versions. Please do so right away.
In terms of the code production, we disagree that it is premature for Motorola to produce the additional versions of code now. We have been asking for this code for many months, and we cannot delay any longer.
You are correct that we have considered the possibility of designating representative software versions. We did so at your suggestion--in your letters of April 25 and May 6 youtold us that the code Motorola had already produced was sufficient to show the functionality of all of the accused QIP products, and on the June 16 meet and confer you reiterated this point and suggested a stipulation to that effect.We agree that a stipulation of this type could save a lot of work and expense for everyone involved. IfMotorolais willing to enter into a written agreement thattheDelMar 23.54A and 23.54B software versions are representative ofall of the deployed versions ofsoftware provided to Verizon for purposes of the current lawsuit betweenTiVo and Verizon, please let us know right away. We are available tomorrow morning if you would like to schedule a brief call to follow up on this.
In any event, we have been waiting for many months now to obtain the additional versions of source code, and we need either the code or a written agreement regarding representative versions by the end of this week.
Kind Regards,
Lauren
Lauren J. Galgano Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 800 LaSalle Avenue | 2800 LaSalle Plaza | Minneapolis,MN 55402 Direct: 612.349.8405 | Fax: 612.339.4181 LJGalgano@rkmc.com | www.rkmc.com
Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 15 of 27 EXHIBIT I Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 16 of 27 Routhier, Peter M. From: Routhier, Peter M. Sent: Thursday, July 07, 2011 8:40 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Galgano, Lauren J. Subject: RE: TiVo v. Verizon - TiVo's Subpoena served on Motorola Page 1 of 2 7/21/2011 Brian, We haven't heard back from you. We keep asking you to respond but you don't. We really want to work with you but we can't if you won't be responsive. Please let us know if you'd like to talk about a stipulation. If you're not willing to do so at this time then we need you to produce the source code for the deployed versions immediately. If we don't hear from you tomorrow like we requested, we'll have no choice but to file our motion. Sincerely,
Peter Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. Direct: (612) 349-8268
Fr om: Galgano, Lauren J. Sent : Tuesday, July 05, 2011 5: 26 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Specht , Brock J.; Rout hier, Pet er M.; Felkins, Julie B.; Zimmerman, Lila M. Subj ect : TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Dear Brian,
We received Motorola's production of additional documents today. We'll take a look at these documents and let you know if we see any issues that require follow up.
Regarding the source code versions, thank you for confirming that as many as 29 additional versions of potentially responsive code exist. I understand that you had agreed to provide my colleague Peter Routhier a list of these versions. Please do so right away.
In terms of the code production, we disagree that it is premature for Motorola to produce the additional versions of code now. We have been asking for this code for many months, and we cannot delay any longer.
You are correct that we have considered the possibility of designating representative software versions. We did so at your suggestion--in your letters of April 25 and May 6 youtold us that the code Motorola had already produced was sufficient to show the functionality of all of the accused QIP products, and on the June 16 meet and confer you reiterated this point and suggested a stipulation to that effect.We agree that a stipulation Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 17 of 27 of this type could save a lot of work and expense for everyone involved. IfMotorolais willing to enter into a written agreement thattheDelMar 23.54A and 23.54B software versions are representative ofall of the deployed versions ofsoftware provided to Verizon for purposes of the current lawsuit betweenTiVo and Verizon, please let us know right away. We are available tomorrow morning if you would like to schedule a brief call to follow up on this.
In any event, we have been waiting for many months now to obtain the additional versions of source code, and we need either the code or a written agreement regarding representative versions by the end of this week.
Kind Regards,
Lauren
Lauren J. Galgano Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 800 LaSalle Avenue | 2800 LaSalle Plaza | Minneapolis,MN 55402 Direct: 612.349.8405 | Fax: 612.339.4181 LJGalgano@rkmc.com | www.rkmc.com
Page 2 of 2 7/21/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 18 of 27 EXHIBIT J Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 19 of 27 Routhier, Peter M. From: Erickson, Brian [Brian.Erickson@dlapiper.com] Sent: Monday, July 11, 2011 1:02 AM To: Routhier, Peter M. Cc: Collyard, Michael A.; Galgano, Lauren J. Subject: RE: TiVo v. Verizon - TiVo's Subpoena served on Motorola Page 1 of 3 7/21/2011 Peter,
My letters of April 25 and May 6 stated that the code already produced was, in fact, the source code for all of the Motorola software on all of the deployed DVRs. TiVo's more recent request for source code for historical releases of software that are not deployed on any DVR is a different issue. Motorola is not a party to the litigation between TiVo and Verizon and, therefore, lacks the ability to enter into any representative product agreement. Motorola has repeatedly requested that the parties enter into such an agreement between themselves for purposes of their litigation to reduce the burdens on each other, the Court, and third parties such as Motorola, but those efforts have so far proved fruitless.
Accordingly, please let me know whether the parties will agree on a subset of code and Motorola will produce that subset. Obviously, Motorola would not be pleased to produce all of its source code, only to learn that the parties then reach an agreement that some subset of code is representative. In case that occurs, Motorola reserves its right to seek compensation from TiVo for Motorola's expenses in needlessly retrieving, reviewing, and producing code, particularly archived code.
A review of the Court's scheduling order reveals that discovery will not close for several months after the claim construction order, which has not issued yet. Moreover, TiVo has failed to update its infringement contentions since Motorola's production of source code for all deployed DVRs in early March, implying that Motorola's code is not relevant to TiVo's infringement contentions. Accordingly, there does not appear to be any need in the short term for a premature production of additional source code.
Finally, I'm not sure what you mean by "our motion". If you would like to meet and confer regarding a motion, please let me know.
Regards, Brian
Fr om: Rout hier, Pet er M. [ mailt o: PMRout hier@rkmc.om] Sent : Thursday, July 07, 2011 8: 40 PM To: Erickson, Brian Cc: Collyard, Michael A.; Galgano, Lauren J. Subj ect : RE: TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Brian, We haven't heard back from you. We keep asking you to respond but you don't. We really want to work with you but we can't if you won't be responsive. Please let us know if you'd like to talk about a stipulation. If you're not willing to do so at this time then we need you to produce the source code for the deployed versions immediately. If we don't hear from you tomorrow like we requested, we'll have no choice but to file our motion. Sincerely, Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 20 of 27
Peter Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. Direct: (612) 349-8268
Fr om: Galgano, Lauren J. Sent : Tuesday, July 05, 2011 5: 26 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Specht , Brock J.; Rout hier, Pet er M.; Felkins, Julie B.; Zimmerman, Lila M. Subj ect : TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Dear Brian,
We received Motorola's production of additional documents today. We'll take a look at these documents and let you know if we see any issues that require follow up.
Regarding the source code versions, thank you for confirming that as many as 29 additional versions of potentially responsive code exist. I understand that you had agreed to provide my colleague Peter Routhier a list of these versions. Please do so right away.
In terms of the code production, we disagree that it is premature for Motorola to produce the additional versions of code now. We have been asking for this code for many months, and we cannot delay any longer.
You are correct that we have considered the possibility of designating representative software versions. We did so at your suggestion--in your letters of April 25 and May 6 youtold us that the code Motorola had already produced was sufficient to show the functionality of all of the accused QIP products, and on the June 16 meet and confer you reiterated this point and suggested a stipulation to that effect.We agree that a stipulation of this type could save a lot of work and expense for everyone involved. IfMotorolais willing to enter into a written agreement thattheDelMar 23.54A and 23.54B software versions are representative ofall of the deployed versions ofsoftware provided to Verizon for purposes of the current lawsuit betweenTiVo and Verizon, please let us know right away. We are available tomorrow morning if you would like to schedule a brief call to follow up on this.
In any event, we have been waiting for many months now to obtain the additional versions of source code, and we need either the code or a written agreement regarding representative versions by the end of this week.
Kind Regards,
Lauren
Page 2 of 3 7/21/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 21 of 27 Lauren J. Galgano Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 800 LaSalle Avenue | 2800 LaSalle Plaza | Minneapolis,MN 55402 Direct: 612.349.8405 | Fax: 612.339.4181 LJGalgano@rkmc.com | www.rkmc.com
Information contained in this e-mail transmission may be privileged, confidential and covered by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521. If you are not the intended recipient, do not read, distribute, or reproduce this transmission. If you have received this e-mail transmission in error, please notify us immediately of the error by return email and please delete the message from your system. Pursuant to requirements related to practice before the U. S. Internal Revenue Service, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter. Thank you in advance for your cooperation. Robins, Kaplan, Miller & Ciresi L.L.P. http://www.rkmc.com ____________________________________________________ Please consider the environment before printing this email.
The informat ion cont ained in t his email may be confident ial and/ or legally privileged. I t has been sent for t he sole use of t he int ended recipient ( s) . I f t he reader of t his message is not an int ended recipient , you ar e her eby not ified t hat any unaut hor ized review, use, disclosure, disseminat ion, dist r ibut ion, or copying of t his communicat ion, or any of it s cont ent s, is st r ict ly prohibit ed. I f you have r eceived t his communicat ion in er r or, please reply t o t he sender and dest roy all copies of t he message. To cont act us direct ly, send t o post mast er@dlapiper. com. Thank you. Page 3 of 3 7/21/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 22 of 27 EXHIBIT K Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 23 of 27 Routhier, Peter M. From: Routhier, Peter M. Sent: Friday, July 15, 2011 7:01 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Galgano, Lauren J. Subject: TiVo v. Verizon - Motion to Compel Page 1 of 4 7/21/2011 Brian,
We want to be reasonable and work with you but you keep ignoring us. You won't even send us the list of the responsive software versions despite promising to do so last month. Is there some reason you won't do this?
Regarding your question from earlier: as you know, there is no agreement between the parties on a subset of code. We don't see how that prevents Motorola from working with TiVo to meet its production obligations. We would be happy to discuss ways to make this easier on Motorola, including finding a way to decrease the number of versions we need. But it's difficult to do this when you won't even respond to us or send us the list of software versions at issue.
Because we have been unable to make any progress with you, and because you have again become unresponsive to TiVo's requests to work cooperatively, we have no choice but to move to compel the production of all responsive versions of Motorola software. We plan to do so next week.
Contrary to your assertions, time is incredibly important here. Motorola was clearly obligated to produce this material months ago. If you are willing to produce all the responsive versions or to discuss ways to narrow the versions TiVo needs please let us know immediately as we are still willing to do. Otherwise we will have to file our motion.
Sincerely,
Peter Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. Direct: (612) 349-8268
Fr om: Rout hier, Pet er M. Sent : Tuesday, July 12, 2011 2: 10 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Galgano, Lauren J. Subj ect : RE: TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Brian,
Thanks for your email. Although we are not in agreement with everything you wrote, I think we could make progress and perhaps resolve these issues if we discussed on the phone. Can you be available for a call at 11:00 AM central tomorrow? If not, please propose a time that works for you.
Sincerely,
Peter
Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 24 of 27
Fr om: Erickson, Brian [ mailt o: Brian.Erickson@dlapiper.com] Sent : Monday, July 11, 2011 1: 02 AM To: Rout hier, Pet er M. Cc: Collyard, Michael A.; Galgano, Lauren J. Subj ect : RE: TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Peter,
My letters of April 25 and May 6 stated that the code already produced was, in fact, the source code for all of the Motorola software on all of the deployed DVRs. TiVo's more recent request for source code for historical releases of software that are not deployed on any DVR is a different issue. Motorola is not a party to the litigation between TiVo and Verizon and, therefore, lacks the ability to enter into any representative product agreement. Motorola has repeatedly requested that the parties enter into such an agreement between themselves for purposes of their litigation to reduce the burdens on each other, the Court, and third parties such as Motorola, but those efforts have so far proved fruitless.
Accordingly, please let me know whether the parties will agree on a subset of code and Motorola will produce that subset. Obviously, Motorola would not be pleased to produce all of its source code, only to learn that the parties then reach an agreement that some subset of code is representative. In case that occurs, Motorola reserves its right to seek compensation from TiVo for Motorola's expenses in needlessly retrieving, reviewing, and producing code, particularly archived code.
A review of the Court's scheduling order reveals that discovery will not close for several months after the claim construction order, which has not issued yet. Moreover, TiVo has failed to update its infringement contentions since Motorola's production of source code for all deployed DVRs in early March, implying that Motorola's code is not relevant to TiVo's infringement contentions. Accordingly, there does not appear to be any need in the short term for a premature production of additional source code.
Finally, I'm not sure what you mean by "our motion". If you would like to meet and confer regarding a motion, please let me know.
Regards, Brian
Fr om: Rout hier, Pet er M. [ mailt o: PMRout hier@rkmc.om] Sent : Thursday, July 07, 2011 8: 40 PM To: Erickson, Brian Cc: Collyard, Michael A.; Galgano, Lauren J. Subj ect : RE: TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Brian, We haven't heard back from you. We keep asking you to respond but you don't. We really want to work with you but we can't if you won't be responsive. Please let us know if you'd like to talk about a stipulation. If you're not willing to do so at this time then we need you to produce the source code for the deployed versions immediately. If we don't hear from you tomorrow like we requested, we'll have no choice but to file our motion. Sincerely, Page 2 of 4 7/21/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 25 of 27
Peter Routhier Attorney Robins, Kaplan, Miller & Ciresi L.L.P. Direct: (612) 349-8268
Fr om: Galgano, Lauren J. Sent : Tuesday, July 05, 2011 5: 26 PM To: 'Erickson, Brian' Cc: Collyard, Michael A.; Specht , Brock J.; Rout hier, Pet er M.; Felkins, Julie B.; Zimmerman, Lila M. Subj ect : TiVo v. Verizon - TiVo's Subpoena served on Mot orola
Dear Brian,
We received Motorola's production of additional documents today. We'll take a look at these documents and let you know if we see any issues that require follow up.
Regarding the source code versions, thank you for confirming that as many as 29 additional versions of potentially responsive code exist. I understand that you had agreed to provide my colleague Peter Routhier a list of these versions. Please do so right away.
In terms of the code production, we disagree that it is premature for Motorola to produce the additional versions of code now. We have been asking for this code for many months, and we cannot delay any longer.
You are correct that we have considered the possibility of designating representative software versions. We did so at your suggestion--in your letters of April 25 and May 6 youtold us that the code Motorola had already produced was sufficient to show the functionality of all of the accused QIP products, and on the June 16 meet and confer you reiterated this point and suggested a stipulation to that effect.We agree that a stipulation of this type could save a lot of work and expense for everyone involved. IfMotorolais willing to enter into a written agreement thattheDelMar 23.54A and 23.54B software versions are representative ofall of the deployed versions ofsoftware provided to Verizon for purposes of the current lawsuit betweenTiVo and Verizon, please let us know right away. We are available tomorrow morning if you would like to schedule a brief call to follow up on this.
In any event, we have been waiting for many months now to obtain the additional versions of source code, and we need either the code or a written agreement regarding representative versions by the end of this week.
Kind Regards, Page 3 of 4 7/21/2011 Case 2:11-mc-00201-LDD Document 1-3 Filed 07/22/11 Page 26 of 27
Lauren
Lauren J. Galgano Attorney Robins, Kaplan, Miller & Ciresi L.L.P. 800 LaSalle Avenue | 2800 LaSalle Plaza | Minneapolis,MN 55402 Direct: 612.349.8405 | Fax: 612.339.4181 LJGalgano@rkmc.com | www.rkmc.com
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