Free Declaration - District Court of Delaware - Delaware

Case 1 :04-cv-00858-SLR Document 492 Filed 1 1/23/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LML PATENT CORP. )
)
Plaintiff] ) Civil Action N0.: 04-858-SLR
- vs. )
)
TELECHECK SERVICES, INC. )
ELECTRONIC CLEARING HOUSE, INC., )
XPRESSCHEX, INC., AND )
NOVA INFORMATION SYSTEMS, INC. )
)
Defendants. )
)
DECLARATION OF JAMIE H. MCDOLE IN SUPPORT OF
LML’S REPLY TO ITS MOTION FOR SUMMARY JUDGMENT NO. 2:
FOR A RULING THAT DEFENDANT ECHO INFRINGES
CLAIMS 1, 2, 4, 5, 6, 9, 10, 11 AND 16 OF THE ‘988 PATENT
Dated: November 23, 2005
- Richard K. Herrmann #405
Mary B. Matterer #2696
MORRIS JAMES HITCHENS &
WHJLIAMS LLP
222 Delaware Avenue, 10th Floor
A Wilmington, Delaware 19801
(302) 888-6800
rherrma1111@mo1·1·isja1nes.com
mmatterer@morrisj ames.com
Russell E. Levine, P.C.
Jamie H. McDole
Edward K. Runyan
KIRKLAND & ELLIS LLP
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000 ‘
Counsel for LML Patent Corp. ‘

__}
Case 1:04-cv-00858-SLR Document 492 Filed 11/23/2005 Page 2 of 4
DECLARATION OF JAMIE H. MCDOLE
_ I, Jamie H. McDole, declare as follows:
1. I am a partner of the law firm of Kirkland & Ellis LLP, and cormsel for plaintiff LML Patent
Corp. ("LML"). I am a member in good standing ofthe bar of the state of Illinois, and I am
admitted to practice pro hac vice in the United States District Court for the District of
Delaware for this case. The facts set forth below are known to me personally and I could
competently testify hereto if called as a witness in this action.
2. Pursuant to the Court's Scheduling Order, document production in the above captioned case
ended March 4, 2005. The Court extended this deadline until April 5, 2005 at Defendants’
request, but stated "if document production isn't completed by April 5th, we'll start taking
about sanctions." (Dkt# 89, March 22, 2005 Hearing Transcript at 8). Pursuant to the
Court's Scheduling Order, fact discovery in this case ended July 16, 2005.
3. In the above captioned case, the parties have produced numerous documents, mostly in
electronic form Each document produced by the parties in this case has a bates number
identifying which party produced the particular document. All documents produced by
Defendants Electronic Clearing House, Inc. and XpressChex, Inc. (collectively "ECHO")
contain the prefix ECHO. _ ·
4. Based on the descriptions provided in Winckler’s supporting declaration to ECHO’s l
motion, Exhibits 4, 5, 6, 7, 10 and 12 to his declaration appear to be reference manuals and
specifications related to the point of sale terminals and peripherals that work with ECHO’s
accused products. All six of these documents lack bates numbers and none were marked as a
deposition exhibit.
5. Documents produced in this litigation by ECHO are maintained by Kirkland & Ellis in an
electronic database that allows one to search the entire contents of ECHO’s documents. I
requested one of the legal assistants responsible for maintaining the ECHO database to
electronically search that database in an attempt to locate Exhibits 4, 5, 6, 7, 10 and 12 to the
Winckler declaration. The legal assistant spent several hours searching, trying various
combinations of key words that appeared on each document, but was unable to locate any
such documents in the database of ECHO’s production documents.
6. Also, based on the descriptions provided in Mr. Winckler’s declaration, Exhibits 8, 9, 11, 13 I
to his declaration appear to be excerpts of source code relating to the point of sale terminals
and related peripherals used by ECHO’s accused products. Exhibits 14-18 and 20-26 appear
to be excerpts of source code relating to ECHO’s NCN computer and/or ACH Engine.
7. In its document requests to ECHO, LML requested the production of all source code related
to ECHO’s accused products. ECHO refused to produce any of its source code in hard copy.
As such, none of Exhibits 8, 9, 11, 13-18 and 20-26 have previously been produced in hard
copy. _
8. On March 22, 2005, the Court ordered the parties to follow her default procedure for
production of source code. Despite this order, ECHO delayed making its source code

I Case 1:04-cv-00858-SLR Document 492 Filed 11/23/2005 Page 3 of 4
9. available for inspection. Not until June 28, 2005 did ECHO deposit its source code with Iron
Mountain in Malvem, Pennsylvania to be inspected by LML.
l0. Mr. Winkler’s deposition in this case occurred on May 24 and 25, 2005, months before
ECHO made any source code available to LML in this case. As such, LML could not
` examine Mr. Winkler regarding such source code at his deposition.
ll. On July 25, 2005, counsel for LML and LML’s expert, Gary Tinkel, reviewed the source
code deposited by ECHO but were not permitted to take away any hard copies of the code.
The source code reviewed by LML and its expert did not include source code rumring on the
point of sale terminals or any of its peripheral devices such as MICR readers or imagers.
12. The foreign checks used by Mr. Schutze in the tests described his supporting declaration to
ECHO’s motion were not produced to LML until September 23, 2005.
I declare under penalty of perjury rmder the laws ofthe United States that the foregoing is
true and correct and that this declaration was executed on this 23rd day of November, 2005 in
Chicago, Illinois.
`e H. McDole
- 2 ;

J Case 1:04-cv-00858-SLR Document 492 Filed 11/23/2005 Page 4 of 4
CERTIFICATE OF SERVICE *
I hereby certify that on the 23rd day of November, 2005, I electronically filed the
foregoing document, DECLARATION OF JAMIE H. MCDOLE IN SUPPORT OF LML’S
REPLY TO ITS MOTION FOR SUMMARY JUDGMENT NO. 2: FOR A RULING
THAT DEFENDANT ECHO INFRINGES CLAIMS 1, 2, 4, 5, 6, 9, 10, 11 AND 16 OF THE
‘988 PATENT, with the Clerk of the Court using CM/ECF which will send notification of such
filing to the following:
Collins J. Seitz, Jr., Esq. William J. Marsden, Jr., Esq.
Francis DiGiovanni, Esq. Timothy Devlin, Esq.
Connolly Bove Lodge & Hutz LLP Fish & Richardson, P.C.
· 1007 North Orange Street 919 North Market Street, Suite 1100
Wilmington, DE 19801 Wilmington, DE 19801
Richard D. Kirk, Esq. _
The Bayard Firm
222 Delaware Avenue, 9th Floor
Wilmington, DE 19801
Additionally, I hereby certify that on the 23rd day of November, 2005, the foregoing
document was served via email and federal express on the following non-registered participants:
Robert Jacobs, Esq. Mark C. Scarsi, Esq.
Mark B. Mizrahi, Esq. Vision L. Winter, Esq.
Belasco Jacobs & Townsley, LLP O’Melveny & Myers LLP
Howard Hughes Center 400 South Hope Street
6100 Center Drive, Suite 630 Los An eles, CA 90071
Los Angeles, CA 90045
` Richard K errmann (#405)
Mary B. atterer (#2696) ‘
MO S, JAMES, HITCHENS
& WILLIAMS LLP
222 Delaware Avenue, 10th Floor
Wihnington, Delaware 19801
(302) 888-6800
mmatterer@morrisj ames.com
Counselfor Plaintyj'LML PA TENT CORP. I