Free Notice (Other) - District Court of Delaware - Delaware

Case 1:04-cv-01199-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

) ) ) Plaintiff and ) ) Counterclaim-Defendant, ) ) v. ) INTERNET SECURITY SYSTEMS, INC., ) ) a Delaware Corporation, INTERNET ) SECURITY SYSTEMS, INC., a Georgia ) Corporation, and SYMANTEC CORPORATION, a Delaware Corporation, ) ) ) Defendants and ) Counterclaim-Plaintiffs. SRI INTERNATIONAL, INC., a California Corporation,

C. A. No.: 04-1199 (SLR)

NOTICE OF SUBPOENA AND DEPOSITION OF GEORGE KESIDIS

TO:

Timothy Devlin Fish & Richardson P.C. 919 Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899

Howard G. Pollack Michael J. Curley Fish & Richardson P.C. 500 Arguello Street, Suite 500 Redwood City, CA 94063

PLEASE TAKE NOTICE that pursuant to Rule 45, Fed. R. Civ. P., Defendant and Counterclaim-Plaintiff Symantec Corporation ("Symantec"), by itsr counsel, has served or will serve the accompanying subpoena for documents and a deposition, by oral examination, of Geoge Kesidis. The deposition is to commence at 9:00 a.m. on May 25, 2006 and continue through May 26 and May 29 at the offices of

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Day Casebeer Madrid & Batchelder LLP, 20300 Stevens Creek Blvd, Suite 400, Cupertino, California, 95014 and the production of documents will take place on May 17, 2006 at 10:00 a.m., at Day Casebeer Madrid & Batchelder LLP, 20300 Stevens Creek Blvd., Suite 400, Cupertino, California 95014 or at such alternative dates, times, and places as may be mutually agreed upon by counsel for Symantec and George Kesidis. The deposition shall be recorded by stenographic and videographic means before a notary public or other officer authorized by law to administer oaths, and will continue from day to day until completed, weekends and holidays excepted, with adjournments as to time and place as may be necessary. Some or all of the deposition testimony may involve real-time computer connection between the deposition taker and court reporter using software such as "LiveNote." You are invited to attend.

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Dated: May 16, 2006

/s/ Richard K. Herrmann Richard K. Herrmann (#405) Morris James Hitchens & Williams LLP 222 Delaware Avenue, 10th Floor Wilmington, DE 19801 Tel: (302) 888-6800 Attorneys for Defendants and Counterclaim-Plaintiffs SYMANTEC CORPORATION

OF COUNSEL: Lloyd R. Day, Jr. Robert M. Galvin Paul S. Grewal Day Casebeer Madrid & Batchelder LLP 20300 Stevens Creek Blvd., Suite 400 Cupertino, CA 95014 Tel: (408) 873-0110

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Case 1:04-cv-01199-SLR A088'(Rev . 1/94) Subpoena in a Civil Case

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA SRI INTERNATIONAL, INC . Plaintiff and Counterclaim-Defendant,
V.

SUBPOENA IN A CIVIL CASE
C .A.:04-1199(SLR) District of Delaware

INTERNET SECURITY SYSTEMS, INC ., a Delaware Corporation, INTERNET SECURITY SYSTEMS, INC ., a Georgia Corporation, and SYMANTEC CORPORATION, a Delaware Corporation, Defendants and Counterclaim-Plaintiffs . TO : George Kesidis c/o Fish & Richardson 500 Arguello Street, Suite 500 Redwood City, CA 94063

[~ YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case .
PLACE OF TESTIMONY COURTROOM

DATE AND TIME

@ YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case . DATE AND TIME May 25, 2006, May 26, 2006 Day Casebeer Madrid & Batchelder LLP PLACE OF DEPOSITION & May 29, 2006 20300 Stevens Creek Blvd ., Suite 400 9 :00 a.m . each day Cupertino, California 95014 Q9 YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents and objects) :
PLACE

Day Casebeer Madrid & Batchelder LLP 20300 Stevens Creek Blvd., Suite 400 Cupertino, California 95014

DATE AND TIME

May 17, 2006 10 :00 a.m.

[]YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below .
PREMISES DATE AND TIME

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Any organization not a party to this suitDocument 237 for the taking of a deposition shall designate one or Case 1:04-cv-01199-SLR that is subpoenaed Filed 05/16/2006 Page 5 of 13 more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify .Federal Rules of Civil Procedure, 30(b)(6) .
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR D 40 ) DATE

J Attorney for Symantec Corporation
. imp's ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER

May 12, 2006 Paul S . Grewal Day Casebeer Madrid & Batchelder LLP 20300 Stevens Creek Boulevard Suite 400 Cupertino, CA 95014 Tel : (408) 873-0110



A 08 9' (Rev . 1/94)Case 1:04-cv-01199-SLR Subpoena in a Civil Case

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PROOF OF SERVICE
DATE PLACE

SERVED

SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct .

Executed on
DATE

SIGNATURE OF SERVER

ADDRESS OF SERVER

Rule 45, Federal Rules of Civil Procedure, Parts C & D :
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS . (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena . The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee . (2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial . (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises . If objection is made, the party serving the subpoena shall not be entitled to inspect and copy materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued . If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production . Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded . (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance ; (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, expect that, subject to the provisions of clause (c)(3)(B)(iii)

of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden . (B) If a subpoena requires disclosure of a trade secret or other (i) confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the experts's study made not at the request of any party, or (iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect the person subject to or affected by the subpoena, quash or modify the subpoena, or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions . (d) DUTIES IN RESPONDING TO SUBPOENA .

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand . (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim .

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SCHEDULE A I. DEFINITIONS

These document requests are subject to, and incorporate, the following : 1. The term "SRI" means plaintiff and counterclaim-defendant SRI International, Inc .,

including its subsidiary companies, predecessors, successors, parents and affiliates as well as its current or former officers, directors, employees, attorneys, agents, consultants and representatives . 2. The term "ISS" means defendant and counterclaim-plaintiff Internet Security Systems,

Inc ., including its subsidiary companies, predecessors, successors, parents and affiliates as well as its current or former officers, directors, employees, attorneys, agents, consultants and representatives . 3. The term "Symantec" means defendant and counterclaim-plaintiff Symantec Corp .,

including its subsidiary companies, predecessors, successors, parents and affiliates as well as its current or former officers, directors, employees, attorneys, agents, consultants and representatives . 4. As used herein, "asserted patents" means any patent asserted in this lawsuit that SRI

accuses Symantec of infringing, including U . S . Patent No . 6,321,338, U . S . Patent No . 6,484,203, U .S . Patent No . 6,708,212, and U.S . Patent No . 6,711,615 . 5. The term "accused products" means any and all products accused by SRI of infringing

the asserted patents including ISS products such as RealSecure agents (Network, Guard, Server, and Desktop series) ; Proventia agents (A, G, M, Server, and Desktop series) ; SiteProtector ; the SiteProtector Security Fusion Module 2 .0 ; and the Proventia Network Anomaly Detection System ; and Symantec products such as ManHunt 3 .0; SNS 4 .0; the SNS 7100 Series

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Appliance ; the iForce series of products ; the SGS 1600, 5400, and 5600 series of appliances ; Incident Manager ; and Security Information Manager . 6. The term "this litigation" means C . A. No . 04-1199 (SLR) in the United States District

Court for the District of Delaware. 7. The term "document" shall have the broadest meaning provided by Fed . R . Civ . P. 26

and 34, all tangible things which come within the meaning of the terms "writings and recordings" used in Fed . R. Evid . 1001, and tangible items such as research and development samples, prototype devices and production samples . "Documents" may be stored in either hardcopy or electronic form . Electronic documents include electronic mail and computer code in any form . A draft, translation or non-identical copy (such as a copy containing comments or notations that are not part of the original text) is a separate document within the meaning of this term . 8. 9. The term "thing" means any tangible object other than a Document . The terms "communicate" or "communication" mean every manner or means of

disclosure, transfer, transmission or exchange of information whether person-to-person, in a group, by telephone, by electronic mail, by letter, by facsimile, telex or telecopy, or by any other process, electric, electronic or otherwise, and includes any document as defined herein including any medium which abstracts, digests, records, or transcribes any such communication, or any subsequent review or discussion of such communication . 10 . The term "person" means any natural person and any and all other business or legal entities, including, without limitation, corporations, companies, firms, partnerships, joint ventures, proprietorships, associations and governmental bodies or agencies, as well as divisions, departments or other units thereof .

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11 . The terms "concern" and "concerning" are used in their broadest sense and include all matter relating to, referring to, describing, discussing, depicting, identifying, evidencing or constituting the referenced subject . 12. The terms "and" and "or" shall be construed either disjunctively or conjunctively, and

the singular shall be deemed to include the plural and vice versa, as necessary to bring within the scope of the discovery request any information or documents which might otherwise be construed to be outside of its scope . 13 . As used herein, "all" means "any and all" ; "any" means "any and all ." 14 . The term "including" shall mean "including but not limited to ." 15 . The singular shall include the plural, and the plural shall include the singular .

II . 1.

INSTRUCTIONS The subpoena requires that George Kesidis (hereinafter "Dr . Kesidis") produce all

responsive documents in his possession, custody, or control, or in the possession, custody or control of his attorneys, agents, employees, representatives or any other affiliated entity or person, wherever such documents are located . 2. Documents should be produced in the same file or other organizational environment in

which they are maintained, as required by Fed . R. Civ . P. 34 . For example, a document that is part of a file, docket or other grouping should be physically produced together with all other documents from said file, docket or grouping responsive to said request, in the same order or manner of arrangement as the original . Additionally, a document should be produced stapled, clipped or otherwise bound or connected in the same manner as the original .

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3.

If a requested document was in Dr . Kesidis's possession, custody or control in the past

but is no longer in Dr . Kesidis's possession, custody or control, state what disposition was made of such document, the reasons for such disposition, the approximate date of such disposition, and identify any persons having any knowledge of or responsibility for such disposition . If Dr . Kesidis contends that any document requested to be produced is protected from

4.

discovery by the attorney-client privilege, work product immunity, or other ground of privilege or immunity, then Dr . Kesidis shall identify for each such document : (a) the date of the document ; (b) the name, affiliations, and title or position of the author(s) of the document; (c) the name, affiliations, and title or position of all persons designated as addressees or otherwise receiving or having seen copies of the document ; (d) the general subject matter of the document ; (e) the type of document (memorandum, letter, report, handwritten notes, etc .); (f) the specific grounds for withholding the document, including the specific facts upon which Dr . Kesidis will rely to establish the asserted attorney-client privilege, work product immunity, or other ground of privilege or immunity; and (g) any other information required by applicable rules or law . 5. If Dr . Kesidis contends that any of the following requests are objectionable in whole

or in part, Dr . Kesidis shall state with particularity each objection, the reasons for the objection and the categories of information to which the objections applies, and, as required by Fed . R. Civ. P . 34(b), Dr . Kesidis shall respond to the part of the request that is not objectionable .



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III . 1.

DOCUMENT REQUESTS All documents, communications, and things in Dr . Kesidis's possession that concern,

refer to, or relate to SRI's work in the intrusion detection, prevention or analysis field, "cyber security," the asserted patents, Symantec, ISS, the accused products, and/or this litigation . 2. To the extent not previously produced in this litigation by SRI, all documents SRI

and/or its attorneys have provided to Dr . Kesidis, with the exception of those documents that are not discoverable pursuant to the Expert Discovery Stipulation in this case . 3 . All documents Dr . Kesidis has provided to SRI and/or its attorneys, with the exception of those documents that are not discoverable pursuant to the Expert Discovery Stipulation in this case. 4. To the extent not previously produced in this litigation by SRI, all documents

considered in preparation of Dr . Kesidis's expert reports and declarations in this litigation . 5. Invoices or records that refer or relate to Dr . Kesidis's work for SRI and/or its

attorneys in this litigation, including but not limited to invoices submitted to SRI and documents that refer or relate to payments by SRI to Dr . Kesidis. 6. Invoices or records that relate to Dr . Kesidis's work on previous litigations .

7 . All letters of engagement between SRI and Dr . Kesidis . 8. To the extent not previously produced in this litigation by SRI, all documents,

communications, and things, including issued patents, patent applications, articles, presentations, letters to the editor, and books, authored or co-authored by Dr. Kesidis that relate to the subjects of patent validity ; patent infringement ; intrusion detection, prevention, or analysis, or "cyber security," and/or the subject matter of Dr . Kesidis's work in this litigation.

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9 . All documents, communications and things concerning research proposals, research grants, related contracts and government funding made by or including work to be performed by Dr. Kesidis that relate to intrusion detection, prevention, or analysis, "cyber security," and/or the subject matter of Dr . Kesidis's work in this litigation . 10 . The proceedings of all conferences, conventions, and/or meetings Dr . Kesidis has attended that relate to the asserted patents ; intrusion detection, prevention, or analysis, "cyber security," and/or the subject matter of Dr . Kesidis's work in this litigation. 11 . Any expert reports, declarations, deposition transcripts, and/or trial transcripts from any previous litigation(s) in which Dr . Kesidis has served as an expert or consultant . 12 . To the extent not previously produced in this litigation by SRI, all documents and

things cited or referred to in Dr . Kesidis's report of April 28, 2006, in particular the following references from Dr . Kesidis's curriculum vitae entitled : "Detection of malicious packet dropping using statistically regular traffic patterns in multihop wireless networks that are not bandwidth limited" ; "Avoiding malicious packet dropping in ad hoc networks using multipath routing" ; and "Large deviations of traffic in high-speed digital networks with a view towards network control ."

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CERTIFICATE OF SERVICE I hereby certify that on the 16th day of May, 2006, I electronically filed the foregoing document, NOTICE OF SUBPOENA AND DEPOSITION OF GEORGE KESIDIS, with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: John F. Horvath, Esq. Fish & Richardson, P.C. 919 North Market Street, Suite 1100 Wilmington, DE 19801 Richard L. Horwitz, Esq. David E. Moore, Esq. Potter Anderson & Corroon LLP Hercules Plaza 1313 North Market Street, 6th Floor Wilmington, DE 19801

Additionally, I hereby certify that on the 16th day of May, 2006, the foregoing document was served via email and via Federal Express on the following non-registered participants: Howard G. Pollack, Esq. Michael J. Curley, Esq. Fish & Richardson 500 Arguello Street, Suite 500 Redwood City, CA 94063 650.839.5070 Holmes Hawkins, III, Esq. King & Spalding 1180 Peachtree Street Atlanta, GA 30309-3521 404.572.4600 Theresa Moehlman, Esq. King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 212.556.2100

/s/ Richard K. Herrmann Richard K. Herrmann (#405) Mary B. Matterer (#2696) Morris, James, Hitchens & Williams LLP 222 Delaware Avenue, 10th Floor Wilmington, DE 19801 (302) 888-6800 [email protected] [email protected] Counsel for Defendant SYMANTEC CORPORATION

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