Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01264-SLR Document 305 Filed 1 1/17/2005 Page 1 of 3
BOUCHARD MARGULES 5 FRIEDLANDER
A PROFESSIONAL CORPORATION
SUITE I4OO
222 DELAWARE AVENUE
W1LMrNGTc>r~2, DELAWARE I QSO!
575-5500
FAX (soar 57;-s-5501
ANDRE G. BOUCHARD JOANNE P. PINCKNEY
·.JoEL FRrEoLANoER °°U'“$EL
DAv·¤ J. MARGLM-ES November 17, 2005
Dominick T. GATTUSO
JAMES G. McM|LLAN, iu
Via Electronic Filing
The Honorable Sue L. Robinson
United States District Court
844 North King Street
Wilmington, DE 1980l
RE: BTG [nz‘ernati0nczl, Inc., et al. v. Anzazonconz, [nc., et al.,
D. Del., C.A. No. 04-1264-SLR
Dear Chief Judge Robinson,
On behalf of Defendants Amazorrcom, Inc., Amazon Services, Inc., and Overstockcorn,
Inc., we submit this letter in connection with the additional briefing you requested at the
November 2, 2005 discovery conference on several issues related to Plaintiffs‘ privilege log
assertions.
We apologize for adding further letters to Your Honor‘s docket, but we feel that we must
respond to BTG's assertion that we violated Your Honor's rules and that we have done so in the
past.
Defendants asked BTG to identify all alleged rules violations. BTG responded that we
improperly attached unreported cases and an evidentiary declaration to an e—mail submission re:
protection of source code, last winter. The local rules and Your Honor's practice require
submission of unreported cases, and cases in this district have rejected requests for source code
protection in the absence of an evidentiary affidavit. Thus, Defendants do not believe they have
committed any rules violations and obj ect to BTG‘s assertions to the contrary.
BTG also claims that Defendants went beyond the Court‘s instructions by submitting a
six—page brief to the Court on the privilege issues discussed in the November 2, 2005 conference.
This allegation is also unfounded. BTG submitted a three—page brief discussing privilege issues
for internal communications and communications with third—parties. Defendants dedicated the
same amount of briefing (three pages) to these subjects.
Defendants also dedicated three pages of its letter brief to the issue of the Waiver of
privilege resulting from documents being left in the possession and control a third party,
Alacritude, for over a year. The Court stated that if the record was sufficiently developed on this
topic, then the parties could discuss it in their letter briefs. As demonstrated in Defendants' letter
brief, the record has in fact been developed as several depositions have been taken addressing the

Case 1:04-cv-01264-SLR Document 305 Filed 11/17/2005 Page 2 of 3
The Honorable Sue L. Robinson
November 17, 2005
. Page 2
issue. Defendants accordingly submitted evidence and briefing; Plaintiffs chose not to do the
same.
We did not intend to violate Your Honor‘s rules, nor do we believe we have done so. On
the other hand, Defendants strongly believe that BTG is improperly asserting the attorney—client
privilege over many documents. As occurred last winter when BTG was taking an extreme
position that was exposed by our submission, we believe that once again BTG is fearful of the
merits and could benefit from a shift the focus from its privilege assertions to accusations of
briefing—rule violations.
Respectfully submitted,
/5/ Karen L. Pascale
Karen L. Pascale (#2903)
[l cc: All counsel

Case 1 :04-cv-01264-SLR Document 305 Filed 1 1/17/2005 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on November 17, 2005, I caused the foregoing Letter to the Honorable
Sue L. Robinson to be electronically filed with the Clerk of Court using CM/ECF, which will send
notification of such filing to the following:
Steven J. Balick, Esquire [sbalick@ashby-geddescom]
John G. Day, Esquire |jday@ashby-geddescorn]
Asnev & Geootas
222 Delaware Avenue, 17th Floor
Wilmington, DE 19801
Attorneys for PZaint@*, BTG International, Inc., Itubnautics Corporation, and Tucows [nc.
John W. Shaw, Esquire [[email protected]]
Youno CoNAwAv STARGATT & TAvtoR LLP
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, DE 19899-0391
Attorneys for Defendants Amazon.conz, [nc. and Amazon Services, [nc.
I further certify that on November 17, 2005, I caused a copy ofthe foregoing document to be
served by e-mail on the above-listed counsel, and that a copy was served on the following non-
registered participants by e—mail:
Niall A. MacLeod, Esquire [[email protected]]
Michael A. Collyard, Esquire [[email protected]]
Resins, KAi>tAN, Mitten & CtR12s1,LLP
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Attorneys for PZaint@, BTG International, [nc., [ijonautics Corporation, and Tucows [nc.
Kristin L. Cleveland, Esquire [[email protected]]
Ktatioutsr SPARKMAN LLP
One World Trade Center
121 S.W. Salmon Street, Suite 1600
Portland, OR 97204
Attorneys for Defendants Anzazonconz, [nc. and Amazon Services, [nc.
Boucr-ratio Mmioutes & FRIEDLANDER, P.A.
/s/ Karen L. Pascale
Dated: November 17, 2005
David J. Margules (#2254) [[email protected]]
Karen L. Pascale (#2903) [l 222 Delaware Avenue, Suite 1400
Wilmington, Delaware 19801
(302) 573-3500
Attorneys for Defendant Overstoc/cconz, Inc.