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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LML PATENT CORP., Plaintiff, v. TELECHECK SERVICES, INC., ELECTRONIC CLEARING HOUSE, INC., XPRESSCHEX, INC., AND NOVA INFORMATION SYSTEMS, INC. Defendants. LML PATENT CORP.'S SECOND NOTICE OF DEPOSITION OF ELECTRONIC CLEARING HOUSE, INC. AND XPRESSCHEX, INC. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6) PLEASE TAKE NOTICE that in accordance with the provisions of Rules 26 and 30 of the Federal Rules of Civil Procedure, plaintiff LML Patent Corp. ("LML") hereby provides notice that commencing at 9:00 a.m. on July 13, 2005, at the law offices of Kirkland & Ellis LLP, 777 South Figueroa Street, Los Angeles, California 90017, or at such other time and place mutually agreed upon by counsel for the parties, it will take the deposition of Defendants Electronic Clearing House, Inc. and XpressChex, Inc. (collectively "ECHO") by oral examination of witness(es) designated by ECHO to testify on its behalf as the person(s) most competent to testify concerning the matters listed on attached Schedule A. Pursuant to Federal Rule of Civil Procedure 30(b)(6), the person(s) designated by ECHO should be prepared to testify as to such matters known or reasonably available to ECHO. ECHO's counsel is requested to provide to LML's counsel, seven (7) business days before the commencement of this deposition, a written designation of the names and positions of the officers, directors, managing agents or other persons who are most competent to ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 04-858 SLR

Case 1:04-cv-00858-SLR

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testify concerning the matters set forth in Schedule A, and for each person designated, the matters on which he or she will testify. 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 and videographic means.

Dated: May 31, 2005 /s/ Richard K. Herrmann Richard K. Herrmann #405 MORRIS JAMES HITCHENS & WILLIAMS LLP 222 Delaware Avenue, 10th Floor Wilmington, Delaware 19801 (302) 888-6800 [email protected] Russell E. Levine, P.C. Jamie H. McDole Edward K. Runyan KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000 Attorneys for LML Patent Corp.

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SCHEDULE A I. DEFINITIONS:

The following terms and phrases shall have the following definitions as used herein: A. As used herein, "LML" means LML Patent Corp., LML Payment Systems, Inc.,

LML Payment Systems Corp., and/or LML Corp., as well as any subsidiaries, parents, or affiliates thereof, and all directors, officers, agents, employees, attorneys and other persons acting on its or their behalf. B. As used herein, "ECHO" means Electronic Clearing House, Inc., Xpresschex,

Inc., and any subsidiaries, parents, or affiliates thereof, and all directors, officers, agents, employees, attorneys and other persons acting on its behalf. C. As used herein, the term "Opinion," "Opinion of Counsel," and/or "Advice of

Counsel" means any legal opinion, advice or conclusion, whether oral or written, communicated to ECHO, regarding LML's United States Patent Nos. 5,484,988 and/or 6,164,528. D. As used herein, the term "ECHO's Opinion Counsel" means any law firm and

their partners, associates, representatives, agents, employees, and other persons under their control, regardless of their affiliation or employment, who participated in drafting, rendering, or analyzing technology or data for ECHO's Opinions, including but not limited to the law firms Sidley Austin Brown & Wood LLP and Petty, Schroeder & Poplawski and the attorneys Denise L. McKenzie, Paul H. Meier, and Robert Schroeder.

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II.

TOPICS:

1.

The date ECHO first learned of United States Patent Nos. 5,484,988 and

6,164,528, and the date ECHO first decided to obtain an opinion of counsel with respect to United States Patent Nos. 5,484,988 and/or 6,164,528. 2. ECHO's decision to obtain an Opinion of Counsel with respect to United States

Patent Nos. 5,484,988 and/or 6,164,528. 3. All communications, whether internal or otherwise, regarding LML or United

States Patent Nos. 5,484,988 and/or 6,164,528. 4. All meetings with and communications between ECHO and Opinion Counsel

regarding LML or United States Patent Nos. 5,484,988 and/or 6,164,528 including all oral communication with as well as all documents provided to and/or received from Opinion Counsel. 5. The identity of all persons who reviewed and/or evaluated any Opinion of

Counsel received by ECHO. 6. The identity of all persons to whom any Opinion of Counsel was communicated

to in whole or in part. 7. Counsel. 8. All decisions, including technical and marketing decisions, ECHO made relating All factors that ECHO considered in reviewing and evaluating any Opinion of

to its Visa POS Check Services program, XpressConversion, and CHEXpedite Electronic Payment Solutions that were based in whole or in part on an Opinion of Counsel. 9. All reasons ECHO believes that its Opinions of Counsel provide a defense to

LML's claims of willful infringement. 10. ECHO's alleged reliance on any Opinion of Counsel. 4

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of May, 2005, I electronically filed the foregoing document, LML PATENT CORP.'S SECOND NOTICE OF DEPOSITION OF ELECTRONIC CLEARING HOUSE, INC. AND XPRESSCHEX, INC. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(6), with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Collins J. Seitz, Jr., Esq. Francis DiGiovanni, Esq. Connolly Bove Lodge & Hutz LLP 1007 North Orange Street 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 31st day of May, 2005, the foregoing document was served via email on the following non-registered participants: Robert Jacobs, Esq. Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Mark C. Scarsi, Esq. Vision L. Winter, Esq. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 William J. Marsden, Jr., Esq. Timothy Devlin, Esq. Fish & Richardson, P.C. 919 North Market Street, Suite 1100 Wilmington, DE 19801

/s/ Richard K. Herrmann Richard K. Herrmann (#405) MORRIS, JAMES, HITCHENS & WILLIAMS LLP 222 Delaware Avenue, 10th Floor Wilmington, Delaware 19801 (302) 888-6800 [email protected] Attorneys for Plaintiff LML PATENT CORP.