Free Notice to Take Deposition - District Court of Delaware - Delaware

Case 1:04-cv-00901-JJF

Document 202

Filed 02/01/2006

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ) ) ) ) Plaintiff/Counter-Defendant, ) ) Civil Action No. 04-901-JJF vs. ) ) ILLUMINA, INC., a Delaware Corporation, ) ) Defendant/Counter-Plaintiff. ) ) ) AFFYMETRIX, INC., a Delaware Corporation, ILLUMINA'S FIFTH NOTICE OF DEPOSITION PURSUANT TO FED. R. CIV. P. 30(b)(6) In accordance with the provisions of Rules 26 and 30 of the Federal Rules of Civil Procedure, Illumina, Inc. ("Illumina") hereby provides notice that commencing at 9:00 a.m. on February 17, 2006, at the offices of KIRKLAND & ELLIS LLP, 555 California Street, San Francisco, CA 94104-1501, or at such other time and place mutually agreed upon by counsel for the parties, it will take the deposition of Affymetrix, Inc. ("Affymetrix") by oral examination of witness(es) designated by Affymetrix to testify on its behalf as the person(s) most competent to testify concerning the matters listed on Attachment A hereto. Pursuant to Federal Rule of Civil Procedure 30(b)(6), the person(s) designated by Affymetrix should be prepared to testify as to such matters known or reasonably available to Affymetrix. Affymetrix is requested to provide Illumina's counsel, on or before February 10, 2006, a written designation of the names and positions of the officers, directors, managing agents or other persons who are most competent to testify concerning the areas of testimony set forth in Attachment A, and, for each person designated, the matters on which he or she will testify.

Case 1:04-cv-00901-JJF

Document 202

Filed 02/01/2006

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The depositions will be taken upon oral examination before an official authorized by law to administer oaths and will continue from day to day until completed. Pursuant to Rule 30(b)(2), testimony of the witness(es) will be recorded by both stenographic means and soundand-visual means. You are required to produce the witness(es) at the stated time and place, and are invited to attend to cross-examine. Dated: February 1, 2006

By:

/s/ Richard K. Herrmann Richard K. Herrmann #405 Mary B. Matterer #2626 MORRIS, JAMES, HITCHENS & WILLIAMS LLP PNC Bank Center, 10th Floor 222 Delaware Avenue Wilmington, DE 19801 (302) 888-6800 [email protected] [email protected]

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Robert G. Krupka, P.C. KIRKLAND & ELLIS LLP 777 South Figueroa Street Los Angeles, California 90017 (213) 680-8400 Mark A. Pals, P.C. Marcus E. Sernel KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 Counsel for Illumina, Inc.

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Case 1:04-cv-00901-JJF

Document 202

Filed 02/01/2006

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ATTACHMENT A DEFINITIONS Illumina hereby incorporates by reference the Definitions as set forth in Illumina's First Set of Requests for Production and Second Set of Requests for Production. AREAS OF TESTIMONY 1. Information contained in the financial and sales reports that have been, or will be, provided to Illumina regarding Affymetrix's systems, products and/or services, including but not limited to the reports produced as AVI_196153-196160, AVI_192641-192712, AVI_056491056943, AVI_137432, and AVI_137433. 2. Units sold and net sales revenue for Affymetrix's systems, products and/or services. 3. Calculation of costs of goods sold for Affymetrix's systems, products and/or services. 4. Costs associated with generation of revenues for Affymetrix's systems, products and/or services, including direct costs, division overhead, selling, general and administrative and any other relevant costs. 5. Information regarding payments received or made by Affymetrix, including royalties, licensing fees or other payments, for use of intellectual property, including but not limited to information contained within the report(s) produced at AVI_134569-134603. 6. Identification of factors that drive sales of the relevant products. 7. Identity, location and authenticity of documents and things relating to the topics set forth above.

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Case 1:04-cv-00901-JJF

Document 202

Filed 02/01/2006

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CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of February 2006, I caused to be electronically filed the foregoing document, ILLUMINA'S FIFTH NOTICE OF DEPOSITION PURSUANT TO FED. R. CIV. P. 30(b)(6), with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Jack B. Blumenfeld, Esq. MaryEllen Noreika, Esq. Morris Nichols Arsht & Tunnell 1201 N. Market Street Wilmington, DE 19899-1347 Additionally, I hereby certify that on the 1st day of February 2006, the foregoing document was served via email on the following non-registered participants: Daniel R. Reed, Esq. Affymetrix, Inc. 6550 Vallejo Street, Suite 100 Emeryville, CA 94608 (510) 428-8500 Fax: (510) 428-8583

/s/ Richard K. Herrmann_______ Richard K. Herrmann #405 Mary B. Matterer #2626 MORRIS, JAMES, HITCHENS & WILLIAMS LLP PNC Bank Center, 10th Floor 222 Delaware Avenue Wilmington, DE 19801 (302) 888-6800 [email protected] Counsel for Illumina, Inc.

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