Free Response in Opposition to Motion - District Court of Arizona - Arizona

EXHIBIT A
Case 2:04-cv—OO621-SBB Document 193-2 Filed O4/24/2006 Page1 0f4

MESCHKOW &fGiRESHAM,.»t.C. V _ » .
I ` ‘ - PATENT, TRADEMARK ANDCOPYRIGI-IT LAW _ . ‘ P . _
‘ V , - — ` _ Registered Patent Attorneys
· ‘ ` A ~ . " - . E - I _ JORDAN M.MEscHi · ‘ V ` ‘ ‘ » · LOWELL w. GRESHAM .
_ ` _ U . _ I ‘ . I ` Registered Patent Agent U
B .· I _ » I _ - CHARLENE IACOBSEN _
.- { - · V _ l' , . Technical Paralegal
. I · i A V R. ROGER BRETON ‘
` _ VIA FACSIMILE ONLY V ` ‘
- . 9September 2005 N ` · l ` l It ° _- if I. ‘
Charles Houston, Esq. I- = ‘ A _ V , _ _ f
- FENNEMORE CRAIG __ - _ . . - _ .
I 3003 North Central Avenue, Suite 2600 . V _ I .
Phoenix, Arizona 85012-2913 I I " _ ‘.i _ I ·
` A , ‘ Re: _ Cooganv. Avnet, et al. ` ` l - A
‘ l Dear Charles: U _ I. I- ' _ _ _- A E .
I I _ Thank you for your letter of 2 September 2005, delivered Tuesday. It ` l
P _ _ - attached two disks, one labeled Coogan Photos and the other labeled vallee_r. -
_ The first CD contained the T‘.tiff and‘*.jpeg` files, whichtwe could readily open. The iv i
V second disc contained files that in their nativeform on the discand these files
I had no file extensions. This means our MS Windows®-based systems could not ‘ ‘
· ` - P open these files from the CDbecause they could not determine what type of files R _
I I _ these were. And, with your letter stating "you will need a full version of Adobe or
4. 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 wastesending me the same discs again. _ - ‘ I
- ‘ l First, "Adobe®" is just ·a brand name for the manufacturer,_ which -makes A l ·
- .products such as Acrobat®, lIlustrato°r®, Photoshop®,_ Adobe Studio® and others. ‘ {
` There is no "fulIversion of Adobe" available because no such product named just P _ . ’
. Adobe®exists. V - V P _ _ _ 4
A N Ne$ _ Professional and Photoshop® CS2 installed (and both support .eps‘files), and I . S 2‘
V . still could not open the Hles from the vallee_r CD. Interestingly, however, after I ` gr
I `saved the files to a fixed-drive (which_was still not enough) and I then renamed A . j
the-Vtwofiles to vallee_r_1.eps and vallee_r_2.eps· they open automatically in · _ -
- · Adobe® Photoshop? CS2. More interestingly, our client, DanCoogan,‘ whose = ‘ _ [
. ‘ computer systems are MAC® based, _couId readily open·`filesV valIee_r_1 and · , » (V
· vallee_r_2·from the CD in Adobe® Photoshop® CS2 for the MAC®. _This telIs_ us . · ’
P - · the joriginal files were_created‘by‘an Avnetcomputer user .using_a MAC® _. E
_ ' . n A Case 2:04-cv—00621“eSRD' Document 193¢2 Filed O4/24/2006 Page 2 of4 T ` ` l _ if
`5727·NORTH SEVENTH STREET SUITE 409 PHOENIX, ARIZONA 8501+5818 I _ »—
` lFt(\f)\ 77A..F.0OF. FAV. lArv>\*>1Al&\rt·vn cuun . &lf®'>|'\1‘Y'|'\*'|'* ··— r—»-· ·. . V - » P

_ Y ` Charles Houston, Esq. · E I g . = __ ` o ·
.` FENNEMORE CRAIG - I ` · » - . I ` .
, · 9 September 2005 . _ · ` " ·_ [ . _ .
» Page2·- ".-I ·_. 3
computer.' It also tells methat if you just told me they were .eps` files earlier, and I ` ,
I we agreed we-could rename them, we need not have waited] - _ _
I _ Next, ·the earliest dated file you provided, roy4ink.jpg, has a file creation _ 4 I
F . date of 6/27/2001_ on it, and this surely can be taken to be the actual creation . l
. date of the file on Avnet's servers or whatever computer this was stored upon l
. . _ (the File Properties say this,too). Please verify this now. We need to know this I _ I
_ e because even a quick cursory examination of this image shows it is not_the one I `
Avnet u_sed in the 2001 editions of Avnet_GIobaI Perspective magazine. The _
_ - latter issue we know based upon several reasons, and we may questionupon V .. `_ .
‘ those at deposition so we will not disclose these, here. Yet, it will/could have - ·
‘ serious implications on the veracity of your earlier discoveryanswers. ` e_ ·
- · Moreover, whiIe_I know.your 1 July 2005 letters states _"Avnet` has- r
A . - 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
‘ p 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 . ._ l
` .` the electronic documents in its possession that are relevant to this matter. We ` l
. ‘ _ . . surmise this based _on that 1) there must be computers within _Avnet thathave .
gone unchecked (like MAC-based ones), and 2) there are _fiIes within Avnet · `
p I. A concurrent or later than 6/27/2001 that Avnet usedllong before ‘ determined Avnet was using his images that ~October..T.he image. used to E `
· . 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 - f
' latter-is true. ` _‘ n p ‘ ° - A P · · . -
“ E Now, before I answer you regardingour expert witnesses(and I remind .
` y you we have engaged three, not two, butup 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 bygl was engaged as counsel by · .
. ‘ 0 John Trotto to represent him in copyright infringement matters much like this one,. _ . _‘
. P. .- but not quite itc 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
i ‘ with me by accepting this engagement as your witness. I also hope he has . .
_ · signed an Exhibit -B tothe protective order — if so, kindly provide me a copy, nowj
_ I Lastly, if you promiseto c_arefuIIy check with me on the availability _of 1 .
Q - I dates for deposing Mr. Weisgrau, and you can depose him via telephone, l_ will in _
V grant you the exact courtesy you requested. as well. This _.is because. Nlrs.
` ‘ . ° Weisgrau is expectedlto undergo her second mastectomy surgery, .shortly, and `
I I 0 . Case 2:04—cv—00621-SRB Document 193-2 Filed 04/24/2006 Page 3 of 4 .

Q · Charles Houston, Esq. I ` _r _ _A V _- it
I FENNEMORE CRAIG ` · · A — · l` l ‘ ·
A A 9 September 200_5 , _ _ -_ I ' A
. · Page 3 — ‘ i _ · - ·
— I she will need his care for weeks, now. Surely you can appreciate this.
` Meanwhile, _we are discussing the matter with Mr. Sedlik and our other experts, — ,
I _ and I will let you know soon about this. A . A · ) _
. Closing, however, we ask again for immediate access to at least some of
. Avnet computers with our third expert in order to examine where these files came ,
from (even if it means we need a CLAW Agreement), or _that you make certitied
image copies of the relevant computer drives for us to examine. Wej (meaning
‘ both you and I) have not beenprovided all available copies of the Coogan A
photographs of Roy Vallee that- Avnet has/had. It is just not possible. lf .
` necessary, I may have to take this up to Judge Bolton with a Motion to Compel. ‘
` ‘ Are you prepared to meet and confer on this? · _ ` A —
I ‘ . _ j A ` . ` 'SincereIy, A . . I ·
» I I w KOVlI8QG ESH , . . ax `. `
4 . /
V , I _ _ · dan M. M chkow
, ·.IMM/mj · _ . l l l. V ` . · A I ` .
. Copy: Dan Coogan, d.b.a. Coogan Photographic A . I `
· - - Applicable Experts · _ - I _` _
\ _. A I l Case 2:04-cv—OO621-SRB Document_19E$»2 Filed 014/24/2005 'Page 4 of4 . , A _

EXHIBIT A
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Case 2:04-cv-00621-SRB

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Case 2:04-cv-00621-SRB

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