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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICROSOFT CORP., Plaintiff,
V. ALCATEL BUSINESS SYSTEMS and

C.A. No. 07-090-SLR

GENESYS TELECOMMUNICATIONS LABORATORIES, INC.,
Defendants.

PLAINTIFF MICROSOFT CORPORATION'S MOTION TO FILE A SUR-REPLY IN SUPPORT OF ITS OPPOSITION TO DEFENDANT ALCATEL BUSINESS SYSTEMS'S MOTION TO DISQUALIFY FISH & RICHARDSON P.C., AND FOR OTHER SANCTIONS
Plaintiff Microsoft Corporation ("Microsoft") hereby moves pursuant to Local Rule 7.1.2(b) to file the sur-reply brief, accompanying this motion, in support of its Opposition to Defendant Alcatel Business Systems's ("ABS") Motion to Disqualify Fish & Richardson P.C. ("F & R") and For Other Sanctions.

Microsoft's sur-reply is being filed to clarify misstatements made by ABS and to respond to certain issues raised in ABS's reply brief, as well as point out that the U.S. International Trade Commission ("ITC") has denied ABS's motion for disqualification in the parallel ITC
investigation. DATED: October 5, 2007

Respectfully submitted,
MICROSOFT CORPORATION By its attorneys, Thomas L. Halkowski (#4099) Fish & Richardson P.C.

919 N. Market Street, Suite 1100 P.O. Box 1114
Wilmington, DE 19899-1114 Tel: (302) 652-5070 Fax: (302) 652-0607 E-Mail: halkowski(a,fr.com

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John E. Gartman

Fish & Richardson P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (85.8) 678-5070 Fax: (858) 678-5099 E-Mail: gartman(@fr.com
Ruffin B. Cordell Linda Liu Kordziel Indranil Mukerji Kori Anne Bagrowski Fish & Richardson P.C.

1425 K Street N.W., Suite 1100 Washington D.C. 20005
Tel: (202) 783-5070 Fax: (202) 783-2331 E-Mail: cordell()fr.com E-Mail: [email protected] E-Mail: mukerji(a,fr.com E-Mail: [email protected]

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RULE 7.1.1 CERTIFICATE
I hereby certify that Microsoft's counsel conferred with ABS's counsel, and that ABS does not oppose Microsoft's motion for leave to file a sur-reply.

Thomas L. Halkowski (#4099)

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CERTIFICATE OF SERVICE I hereby certify that on October 15, 2007 I electronically filed the attached PLAINTIFF MICROSOFT CORPORATION'S MOTION TO FILE A SUR-REPLY IN SUPPORT OF ITS OPPOSITION TO DEFENDANT ALCATEL BUSINESS SYSTEMS'S MOTION TO DISQUALIFY FISH & RICHARDSON P.C., AND FOR OTHER SANCTIONS - REDACTED, which will send notification of such filing(s) to the following: Jack B. Blumenfeld Maryellen Noreika MORRIS, NICHOLS, ARSHT & TUNNEL LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 [email protected] [email protected] I also certify that copies were caused to be served on October 15, 2007 upon the following in the manner indicated: BY ELECTRONIC MAIL Jack B. Blumenfeld Maryellen Noreika MORRIS, NICHOLS, ARSHT & TUNNEL LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 [email protected] [email protected] BY ELECTRONIC MAIL Steven C. Cherny LATHAM & WATKINS LLP 885 Third Avenue, Suite 1000 New York, NY 10022 [email protected] David A. Nelson LATHAM & WATKINS LLP Sears Tower, Suite 5800 Chicago, IL 60606 [email protected] /s/ Thomas L. Halkowski Thomas L. Halkowski [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
MICROSOFT CORP., Plaintiff, V.

C.A. No. 07-090-SLR
ALCATEL BUSINESS SYSTEMS and GENESYS TELECOMMUNICATIONS LABORATORIES, INC., Defendants.

ORDER This day of October, 2007, it is hereby ordered that Plaintiff's Motion for Leave to

file a Sur-Reply in Support of its Opposition to Defendant Alcatel Business Systems' Motion to Disqualify Fish & Richardson P.C., and For Other Sanctions is GRANTED.

The Honorable Sue L. Robinson

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICROSOFT CORP.,
Plaintiff, V. ALCATEL BUSINESS SYSTEMS and GENESYS TELECOMMUNICATIONS LABORATORIES, INC., Defendants.

C.A. No. 07-090-SLR

REDACTED

PLAINTIFF MICROSOFT CORPORATION'S SUR-REPLY BRIEF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT ALCATEL BUSINESS SYSTEMS'S MOTION TO DISQUALIFY FISH & RICHARDSON P.C., AND FOR OTHER SANCTIONS

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TABLE OF CONTENTS
Page

I. II.

THE ITC DENIED ABS'S MOTION FOR DISQUALIFICATION ................................1 ABS HAS NOT DEMONSTRATED THAT DISQUALIFICATION OR ANY OTHER SANCTIONS ARE WARRANTED ...................................................2 A. B. C. F&R Made No Misrepresentations ........................................................................2 Latham & Watkins Did Not Indicate That It Represented Alcatel USA or Mr. Lin .........................................................................................5 ABS Fails to Prove Any Prejudice .........................................................................7

III.

CONCLUSION ..................................................................................................................9

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Cases
Allergan Inc . v. Pharmacia Corp., 2002 WL 1268047 * 1 (D.Del. May 17, 2002) ................................................................... 8 Apple Corps Ltd. v. Int'l Collectors Soc'y, 15 F. Supp . 2d 456 (D.N.J.) ................................................................................................ 3 Certain Network Interface Cards and Access Points for Use in Direct Sequence Spread Spectrum Wireless Local Area Networks , Inv. No. 337-TA-455, Order No. 101, 2003 ITC LEXIS 146 (Feb. 27, 2003) ....................................................... 1 Gidatex v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999) ................................................................................... 3 Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) ............................................................................................................ 3
LaPoint v. Amerisourcebergen Corp.,

No. 327-N, 2006 Del. Ch. LEXIS 134 *10 (Del. Ch. July 18, 2006) ................................. 9
MMRIWallace Power and Indus., Inc. v. Thames Assoc.,

764 F.Supp. 712 (D.Conn. 1991) ........................................................................................ 8
Niesig v. Team I,

558 N.E.2d 1030 (N.Y. 1990) ............................................................................................. 3
Shelton v. American Motors Corp.,

805 F.2d 1323 (8 Cir. 1987) ............................................................................................. 8
Other Authorities Model Rules of Professional Conduct ........................................................................................ 2, 3

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

Pursuant to Local Rule 7.1.2(b), Plaintiff Microsoft Corporation ("Microsoft") respectfully submits this sur-reply brief in support of its Opposition to Defendant Alcatel Business Systems ("ABS")'s Motion To Disqualify Fish & Richardson P.C. ("F&R"), And For Other Sanctions. This sur-reply is being filed to clarify misstatements made by ABS and to respond to certain issues raised in ABS's reply brief, as well as point out that ABS's motion for disqualification in the parallel U.S. International Trade Commission ("ITC") investigation has been denied. For the reasons discussed here and in Microsoft's opposition, ABS's motion to disqualify is without merit and should be denied in its entirety.

1.

THE ITC DENIED ABS'S MOTION FOR DISQUALIFICATION
ABS filed its motion for disqualification in both this case and the parallel ITC

investigation. As noted above, the Administrative Law Judge ("ALJ") presiding over the ITC investigation denied ABS's disqualification motion. Although the ALJ's decision is not binding on the Court, Microsoft takes issue with ABS's attempt to mischaracterize and bury that decision on the last page of its reply brief. First, ABS tries to distinguish the ALJ's decision by asserting that it was "based upon the ITC's own rules and standards, which are not at issue in the present motion." But, the legal standard applied by the ITC is not so different as ABS would have the Court believe. In addressing the motion to disqualify counsel, the ITC has recognized that, although regional circuit law normally applies in district court cases addressing such motions, Federal Circuit precedent controls in areas within its exclusive jurisdiction. [Malionek Decl. Ex. S (ITC Confidential Order Denying Motion To Disqualify at 10).] Moreover, in the absence of controlling precedent from the Federal Circuit, the ITC has looked to the ABA Model Rules for guidance in resolving motions to disqualify. Certain Network Interface Cards and Access Points for Use in Direct Sequence Spread Spectrum Wireless Local Area Networks, Inv. No. 337-TA455, Order No. 101, 2003 ITC LEXIS 146 (Feb. 27, 2003) (denying motion to disqualify counsel 1

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and noting that "[i]t has also been established in this investigation that the Commission has looked to the Model Rules of Professional Conduct ('Model Rules') for guidance in applying ethical standards in motions to disqualify counsel."). Second, ABS mistakenly states that the ITC "underscore[d] the appropriateness of discovery into this serious matter." In denying ABS's motion, the ALJ specifically found that "ABS has not provided any details regarding the information allegedly disclosed by Lin or how its disclosure could even potentially prejudice ABS." [Malionek Decl. Ex. S (ITC Confidential Order Denying Motion To Disqualify at 16).] ABS thus failed to meet its burden of showing prejudice. As a result, the ALJ stated that it "is making no determination on whether the alleged misconduct of F&R constitutes an ethical violation." [Id. at fn. 12 (emphasis in original).]

II.

ABS HAS NOT DEMONSTRATED THAT DISQUALIFICATION OR ANY OTHER SANCTIONS ARE WARRANTED
Despite the fact that the ITC has denied its disqualification motion, ABS continues to

press its motion here in the hopes of getting a different result and distracting Microsoft from the ITC trial starting on October 9, 2007. ABS's reply attempts to confuse the issues by pointing to irrelevant facts and mischaracterizing Microsoft's Opposition in arguing that Microsoft admits or does not contest certain facts. ABS's colorful rhetoric and misleading statements aside, ABS cannot change the fact that: (1) F&R made no misrepresentations to anyone, (2) Latham and Watkins ("Latham") did not indicate that it represented Alcatel USA or Mr. Lin; and (3) there is no prejudice to ABS because nothing Mr. Lin shared during the installation was confidential or privileged information nor is it being used by Microsoft in this case. A. F&R Made No Misrepresentations

The F&R attorneys did not make any misrepresentations to anyone, including the OXE system installation technicians Mr. McGirr and Mr. Lin. Mr. Lin's own sworn declaration supports this fact. [Lin Decl. IT 7, 37.] Mr. Lin acknowledges that installation and training

services are customarily provided with these types of products. [Lin Decl. 17.] Mr. Lin also admits that the discussions that took place with the F&R attorneys called for information that 2

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ABS typically provides to its customers, and he answered any questions accordingly. [Lin Decl.

9[ 27.]
Not once does Mr. Lin suggest that the F&R attorneys asked any questions that he would not have expected from a "legitimate" purchaser of an OXE system. All the declarations, including Mr. Lin's own declaration, indicate that the only discussions that took place focused on the setup/installation of the OXE system and how some of the basic applications operate, information that any customer of the OTUC software would seek. [Elluru Decl. 113; Pond Decl. 15; Lin. Decl. 1 27.] In addition, as Mr. Lin notes, the OXE installation experienced many problems and was not even complete before Mr. McGirr and Mr. Lin left F&R's offices on Friday, June 29. [Lin Decl. 125; Elluru Decl. 114; Pond Decl. 1 6.] A customer would certainly want to know how the system was supposed to work so that he or she could confirm that a completely functional and operational installation was provided as purchased. [Elluru Decl. 1 13.] These facts undermine ABS's arguments because the legal precedent states that these types of commercial transactions are entirely appropriate under the relevant ethical rules and even preferable to formal discovery. [Green Decl. ¶9[ 24-25 citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Apple Corps Ltd. v. Int'l Collectors Soc'y, 15 F. Supp. 2d 456 (D.N.J.); Gidatex v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119, 122 (S.D.N.Y. 1999); Niesig v. Team I, 558 N.E.2d 1030, 1034 (N.Y. 1990) (applying New York analogue to Rule 4.2); see also Annotated Model R. Profl Conduct at 589 ("The limited number of court and ethics opinions dealing with the subject [of testing and informal information-gathering] generally agree that Model rule 8.4(c) (or its Model Code counterpart) does not, standing alone, bar lawyers from participating in lawful undercover investigation into possible unlawful conduct."). In fact, these authorities recognize that informal information-gathering may be preferable to formal discovery mechanisms, in that it may be more efficient, less costly and more effective in obtaining truthful information. [Green Decl. 9[ 11.]

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER This is exactly what occurred here. Mr. Lin readily admits that he "worked with [the F&R attorneys] and answered their questions as if they worked for a company whose sole role was as a business customer of Alcatel." [Lin Decl. 114-5.] That is the precise point - F&R was a legitimate customer of the OXE system, and no discussions outside this customer - third party reseller relationship took place. Mr. Lin was aware both that the firm was a legitimate purchaser of the product and that Ms. Elluru was an attorney on the first day of the installation. Moreover, neither Mr. Lin nor Mr. McGirr state that an F&R attorney made any misrepresentations to them. That is because the F&R attorneys did not make any misrepresentations. [Elluru Decl. T 20; Pond Decl. 111.] Even assuming Mr. McGirr and Mr. Lin may have believed that this project may lead to a larger project, no one has stated that their misapprehension was induced by an F&R's attorney's statement. Though ABS's motion and reply imply that F&R was responsible for this misimpression, the declarations do not support this allegation. The declarations state merely what they claim to have been told by Alliance, without reference to any statements by F&R. [Amiss Decl. 12; Intel Decl. 9[ 9.] In contrast, the declarations of the F&R attorneys clearly state that they did not make any misrepresentations to anyone. [Elluru Decl. 9[ 20; Pond Decl. 9[ 11.] Although Mr. Lin made a return visit to complete the installation, it was precipitated by the improper, incorrect and incomplete installation of the system during his first visit. [Lin Decl. 125; Elluru Decl. T 14; Pond Decl. 9[ 6.] Because Mr. Lin handled the problem-plagued installation the first time, he was the one familiar with the specific problems and difficulties encountered during the initial installation. [Elluru Decl. 9[ 14.] Not wanting to face the

possibility that the entire installation would have to be restarted if someone else from Alliance returned to finish the installation, Mr. Elluru requested that Alliance send someone back to fix the remaining bugs in the system. [Elluru Decl. 9[ 14.] Alliance of course made the ultimate decision as to which one of its technicians it sent back. The decision to send Mr. Lin back, the technician who started the installation, was a business decision on the part of Alliance, especially since Mr. McGirr was not available.

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The discussions that took place between the F&R attorneys and Mr. Lin on his return trip were no different that the ones that took place on the initial visit. Mr. Lin does not contradict

this fact. He does not state that any of the F&R attorneys made comments or asked questions that were outside the scope of what a typical customer would say. It is also important to note that Mr. Lin admits that he spent 5- 6 hours that day in a conference room away from the installed system, the only place where any discussion of the OXE system took place. [Lin Decl. 9[ 30; Elluru Decl.1 15.] B. Latham & Watkins Did Not Indicate That It Represented Alcatel USA or Mr. Lin

As discussed in Microsoft's Opposition, Mr. Lin is not a represented party in this litigation nor is his employer, Alcatel USA, a represented party in this litigation. More importantly, even if Alcatel USA were a represented party in this litigation, Mr. Lin is not a protected employee under Rule 4.2. Although ABS would have this Court believe that Alcatel USA's relationship to ABS is crystal clear and that ABS conveyed this information to Microsoft, ABS's position is untenable and unsupported. Not only is ABS incorrect, but ABS misstates the timing of any alleged disclosure. Any alleged disclosure of Latham's representation of Alcatel USA took place well after the installation of the OXE system and Mr. Lin's interaction with the F&R attorneys. First, ABS argues that Microsoft knew or should have known that Latham was representing all of the Alcatel-Lucent entities. A review of the letter which was selectively quoted by ABS shows that Latham never stated that it represents "all of the Alcatel entities" or even Alcatel USA: As we have discussed this past week, Alcatel Lucent is not the proper party to the action Microsoft brought in the ITC and Delaware alleging infringement against the OmniPCX and OmniTouch Unified Communications Suite. Alcatel Lucent is a holding company that owns stock in various subsidiaries, but does not make any products, including those at issue in the recent actions filed by Microsoft. Instead, Alcatel Business Systems is the entity that makes the OmniPCX and OmniTouch Unified Communications Suite.

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To confirm the discussion we had earlier this week concerning the relationship between Alcatel Business Systems and Alcatel Lucent, Alcatel Business Systems is owned by Alcatel Participations. Alcatel Participations is owned by Compagnie Financiere Alcatel-Lucent, which is owned by Alcatel Lucent. So, you can see that Alcatel Lucent, the holding company you have named in both actions, is three steps from the company that makes and sells the accused products. We would not object to the substitution of Alcatel Business Systems as the named party in both the ITC and Delaware actions in place of Alcatel Lucent. We will not object to or resist any reasonable discovery based upon the corporate structure identified above. So, for example, if one of the companies in the chain is "in possession, custody or control" of relevant (non-privileged) documents sought by discovery requests to Alcatel Business Systems in the litigation, we will produced such documents in response to such requests. No subpoena will be required to these entities. [D.I. 44 Ex. 2 (Apr. 13, 2007 Ltr. from Mr. Nelson to Mr. Colaianni) at 1 (emphasis added).] When read in context, the letter clearly shows that the "companies in the chain" are the companies identified in the letter and do not include Alcatel USA. The letter also makes clear that "these entities" refers back to the companies identified in the letter, not Alcatel USA. Second, contrary to ABS's assertions, Microsoft's actions establish that it did not view Alcatel USA as a party and that it was not aware that Latham represented Alcatel USA. For example, Microsoft served a third-party subpoena on Alcatel USA to obtain discovery. [SurReply Ex. 1 (Microsoft subpoena to Alcatel USA).] Microsoft also directly asked Latham whether it would accept service on behalf of Alcatel USA: "we would like to take discovery from Alcatel USA .And will you require us to issue a subpoena to Alcatel USA, or will you accept service on its behalf?" [Sur-Reply Ex. 2-3 (7/25/07 email from J.Colaianni to Latham & Watkins and 7/26/07 letter from C.Naples to J.Colaianni).] If Microsoft had understood Latham to represent Alcatel USA, it certainly would not have asked such a question. Because Latham's reply email ignored this question, Microsoft was required to serve the third-party subpoena on Alcatel USA directly. Third, that ABS might produce documents or witnesses from other Alcatel-Lucent entities that were in its possession, custody or control without the need of a subpoena is a

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discovery logistics issue; it does not address at all whether those related entities may also be represented by the same counsel. Edwin Afshalimi, for example, was deposed only after ABS identified him as a corporate designee for ABS, not Alcatel USA, in response to Microsoft's 30(b)(6) notice.' Fourth, the fact that Microsoft defined "Alcatel-Lucent" in its discovery requests broadly enough to include all related corporations also is not indicative of the scope of Latham's representation. Microsoft served its first set of interrogatories on March 26, 2007, prior to the amendment of the Complaint to name ABS as the respondent-an amendment that was made at ABS' request. Finally, with respect to Mr. Lin as an individual, there was no basis for Microsoft and F&R to believe that he was represented by counsel for the reasons discussed above and in Microsoft's opposition. The reason his recent deposition notice was sent to counsel for ABS is because ABS had put Mr. Lin on ABS's trial witness list for the upcoming hearing. [Sur-Reply Ex. 6 (8/31/07 ABS's supplemental witness list).] After the ITC denied ABS's motion to disqualify, ABS took Mr. Lin off its trial witness list. C. ABS Fails to Prove Any Prejudice

As set forth in Microsoft's opposition and the ALJ's decision, there is simply no harm or prejudice to ABS. There is no dispute that the only information that Mr. Lin conveyed to the

' ABS identified Mr. Afshalimi in an interrogatory response as "knowledgeable about ... marketing, sales, offers for sale, distribution, inventorying, and importation of each ... Accused Product" and as a "person who provided ... information that was considered or used by Respondent in preparing each of their responses [Sur-Reply Exh. 4 (ABS interrogatory response no. 13 and 47 (4/23/07)).] These responses, however, did not indicate Mr. Afshalimi's position or organization. Indeed, it was not disclosed that he was an Alcatel USA employee until his deposition in August and even then his relation to Alcatel USA, ABS and Alcatel USA's relationship to ABS was not made clear. [Sur-Reply Exh. 5 (Afshalimi Deposition at 22:2023:21, 29:25-31:20).] And, this deposition took place well after the installation of the OXE system in June. 7

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F&R attorneys was the type of information that he would share in the normal course of communications with any other customer. [Lin Decl. 127; ] Moreover, no information disclosed by Mr. Lin is being relied upon by Microsoft or its technical expert. Microsoft's expert, Mr. Chang, inspected the system after Mr. Lin had departed. ABS complains that Microsoft has not freely produced the notes its attorneys took contemporaneously with the installation misses the mark. But, an attorney's mental impressions are one of the most protected forms of work product, and ABS is not entitled to it here. Even more importantly, ABS absolutely should not be allowed to invade attorney client privilege even further with its discovery demands and disrupt Microsoft's trial preparation.2 ABS can and has acquired from Mr. Lin the information that ABS desires to gather about what happened during the installation. Finally, ABS's reliance on MMR/Wallace Power and Indus., Inc. v. Thames Assoc., 764 F.Supp. 712 (D.Conn. 1991) is misplaced. That case involved acquiring confidential or privileged information about his adversary's "litigation strategy." Id. at 718. ABS fails, however, to note that the court stated that: If the disqualification motion is to be granted, the court believes that each of the following questions must first be answered affirmatively: Did [plaintiff's former employee] have confidential or privileged information pertaining to [plaintiffs] trial preparation and strategy? Assuming that [plaintiff's former employee] had such information, did he disclose to [defendant's counsel]? If such information was disclosed to [defendant's counsel], does his continued representation of [defendant] threaten to "taint" all further proceedings in this case? A negative response to any of these questions necessitates the denial of the disqualification motion. 2 See Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (81h Cir. 1987) (strictly limiting the circumstances under which opposing counsel may be deposed to a showing that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case) (emphasis added); Allergan Inc. v. Pharmacia Corp., 2002 WL 1268047 * 1 (D.Del. May 17, 2002) (following Shelton).

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Id. at 724.3 Here, there can be no dispute that Mr. Lin did not have confidential or privileged information pertaining to ABS's trial preparation and strategy nor did he disclose any such information to F&R. Mr. Lin was not even aware of the current litigation at the time of the installation. [Lin Decl. 32.]

III.

CONCLUSION
ABS's motivation in filing this motion is perhaps best evidenced by the approximate two-

month delay between when ABS first learned of the Alcatel Demonstration System at F&R and the filing of its motion to disqualify counsel on the eve of the ITC trial. Experience and common sense suggest that a truly aggrieved party would take prompt action upon learning of what it perceives to be a violation of ethical rules. That did not happen here. Microsoft disclosed the Alcatel Demonstration System to ABS's counsel on July 11, 2007, two weeks after the installation. ABS then waited two months to file this motion, in an apparent effort to distract everyone from the substantive merits of the ITC trial and to unnecessarily multiply these proceedings.

gCo_rp., No. 327-N, 2006 Del. Ch. LEXIS 134 *10 3 In LaPoint v. Amerisourceber en (Del. Ch. July 18, 2006), cited by ABS at page 13, Chancery Court of Delaware determined that "[o]ne party's attorney may contact a former manager of an adverse party ex parte, even if the

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For the foregoing reasons as well as the reasons set forth in their Opposition, Microsoft and its attorneys, Fish & Richardson, respectfully request that this Court deny ABS's motion. Respectfully submitted, MICROSOFT CORPORATION By its attorneys, /s/ Thomas L. Halkowski Thomas L. Halkowski (#4099) Fish & Richardson P.C. 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 Tel: (302) 652-5070 Fax: (302) 652-0607 E-Mail: [email protected] John E. Gartman Fish & Richardson P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070 Fax: (858) 678-5099 E-Mail: [email protected] Ruffin B. Cordell Linda Liu Kordziel Indranil Mukerji Kori Anne Bagrowski Fish & Richardson P.C.

DATED: October 5, 2007

1425 K Street N.W., Suite 1100 Washington D.C. 20005
Tel: (202) 783-5070 Fax: (202) 783-2331 E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected] E-Mail: [email protected]

former employee was privy to extensive privileged communications, as long as the attorney is seeking only key non-privileged facts."

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UNITED STATES DISTRICT COURT OF THE DISTRICT OF DELAWARE

MICROSOFT CORP., Plaintiff, V. ALCATEL BUSINESS SYSTEMS and GENESYS TELECOMMUNICATIONS LABORATORIES, INC., Defendants.

C.A. No. 07-090-SLR

REDACTED

DECLARATION OF THOMAS L. HALKOWSKI

I, Thomas L. Halkowski, declare: 1. I am a Principal of Fish & Richardson P.C. ("F & R"), counsel of record in this

action for Plaintiff Microsoft Corporation ("Microsoft"). I am a member of the Bar of the State of Delaware and of this Court. I have personal knowledge of the matters stated in this declaration and would testify truthfully to them if called upon to do so. 2. A true and correct copy of the July 26, 2007, Plaintiff Microsoft Corporation's

("Microsoft") Application for a Subpoena Duces Tecum and Subpoena Ad Testificandum to Alcatel U.S.A. filed before the ITC, and service confirmation of the subpoena, is attached as Exhibit 1. 4. A true and correct copy of a July 25, 2007, Email from Joe Colaianni of F & R to

Sasha Mayergoyz of Latham and Watkins ("Latham") is attached as Exhibit 2. 5. A true and correct copy of a July 26, 2007, Letter from Clement Naples of

Latham to Joe Colaianni of F & R is attached as Exhibit 3. 6. A true and correct copy of the April 23, 2007, Q r-n

A I ,T E D

is attached as Exhibit 4.

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true and correct copy of the August 3, 2007, Deposition Transcript is attached as Exhibit 5. 9. A true and copy of the August 31, 2007, Defendant Alcatel Business Systems's

Supplemental Tentative List of Witnesses Pursuant to Order No. 6, filed in the ITC, is attached as Exhibit 6. 11. I declare under the penalty of perjury that the foregoing is true and correct.

Thomas L. Halkowski

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Exhibit 4

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REDACTED IN ITS ENTIRETY

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Exhibit 5

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REDACTED IN ITS ENTIRETY

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