Free Motion to Compel - District Court of Arizona - Arizona

EXHIBIT C
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EXHIBIT D-1
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MESCHKOW & GRESHAM

, P.L.C.
Registered Patent Attorneys

PATENT, TRADEMARK AND COPYRIGHT LAW JORDAN M. MESCHKOW LOWELL W. GRESHAM
--------------------Registered Patent Agent

CHARLENE JACOBSEN --------------------Technical Paralegal

R. ROGER BRETON

VIA FACSIMILE ONLY 9 September 2005 Charles Houston, Esq. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Re: Coogan v. Avnet, et al. Dear Charles: Thank you for your letter of 2 September 2005, delivered Tuesday. It attached two disks, one labeled Coogan Photos and the other labeled vallee_r. The first CD contained the *.tiff and *.jpeg files, which we could readily open. The second disc contained files that in their native form on the disc and these files had no file extensions. This means our MS Windows®-based systems could not open these files from the CD because they could not determine what type of files these were. And, with your letter stating "you will need a full version of Adobe or a graphics program that supports .eps" it also shows why we had to wait for a month or so for nothing, and for you to waste sending me the same discs again. First, "Adobe®" is just a brand name for the manufacturer, which makes products such as Acrobat®, Illustrator®, Photoshop®, Adobe Studio® and others. There is no "full version of Adobe" available because no such product named just Adobe® exists. Next, for the record, we have computers that have Adobe® Acrobat® 7.0 Professional and Photoshop® CS2 installed (and both support .eps files), and I still could not open the files from the vallee_r CD. Interestingly, however, after I saved the files to a fixed-drive (which was still not enough) and I then renamed the two files to vallee_r_1.eps and vallee_r_2.eps they open automatically in Adobe® Photoshop® CS2. More interestingly, our client, Dan Coogan, whose computer systems are MAC® based, could readily open files vallee_r_1 and vallee_r_2 from the CD in Adobe® Photoshop® CS2 for the MAC®. This tells us the original files were created by an Avnet computer user using a MAC®

Case 2:04-cv-00621-SRB STREET SUITE91-4 5727 NORTH SEVENTH Document 409
(602) 274-6996 FAX: (602) 274-6970

Filed ARIZONA 85014-5818 Page PHOENIX,09/27/2005 EMAIL: [email protected]

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Charles Houston, Esq. FENNEMORE CRAIG 9 September 2005 Page 2

computer. It also tells me that if you just told me they were .eps files earlier, and we agreed we could rename them, we need not have waited. Next, the earliest dated file you provided, roy4ink.jpg, has a file creation date of 6/27/2001 on it, and this surely can be taken to be the actual creation date of the file on Avnet's servers or whatever computer this was stored upon (the File Properties say this, too). Please verify this now. We need to know this because even a quick cursory examination of this image shows it is not the one Avnet used in the 2001 editions of Avnet Global Perspective magazine. The latter issue we know based upon several reasons, and we may question upon those at deposition so we will not disclose these, here. Yet, it will/could have serious implications on the veracity of your earlier discovery answers. Moreover, while I know your 1 July 2005 letters states "Avnet has produced all of the physical documents in its possession that are relevant to this matter" (and we are in disbelief of this at least over Annual Reports, photography contracts, and any background for those, based on your client's Record Retention Policy), I submit to you that Avnet certainly has NOT produced all of the electronic documents in its possession that are relevant to this matter. We surmise this based on that 1) there must be computers within Avnet that have gone unchecked (like MAC-based ones), and 2) there are files within Avnet concurrent or later than 6/27/2001 that Avnet used long before Mr. Coogan determined Avnet was using his images that October. The image used to produce the photographs used in the July/August 2001 and the September 2001 editions of Avnet Global Perspective magazine is different enough to know the latter is true. Now, before I answer you regarding our expert witnesses (and I remind you we have engaged three, not two, but up until now, we were foiled in being able to supply the third data) I must point out that the expert you have attempted to identify has a connection to me. Years gone by, I was engaged as counsel by John Trotto to represent him in copyright infringement matters much like this one, but not quite to the extent this matter has gone. If he is to be used, kindly remember we have the right to use his files, with letters we sent to third parties and responses back from them, and the outcomes, including, if any, any of his own comments, against him, for he will be waiving his attorney/client privilege with me by accepting this engagement as your witness. I also hope he has signed an Exhibit B to the protective order ­ if so, kindly provide me a copy, now. Lastly, if you promise to carefully check with me on the availability of dates for deposing Mr. Weisgrau, and you can depose him via telephone, I will grant you the exact courtesy you requested as well. This is because Mrs. Weisgrau is expected to undergo her second mastectomy surgery, shortly, and

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EXHIBIT D-2
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