Free Reply Brief - District Court of Delaware - Delaware

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) AMERICAN PATENT DEVELOPMENT) CORPORATION, LLC, ) ) Plaintiff, ) ) v. ) ) MOVIELINK, LLC, ) ) Defendant. ) )

Civil Action No. 07-605-JJF

PLAINTIFF'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY Plaintiff American Patent Development Corporation, LLC ("APDC"), by its counsel, files this reply brief in support of its Motion to Compel Discovery from defendant Movielink, LLC ("Movielink"). I. INTRODUCTION. Movielink asserts, in conclusory fashion, that APDC should not have filed this motion to compel because the parties should "work together to resolve this dispute concerning just four categories of documents." The fact is that APDC did work with Movielink to try to obtain the disputed discovery. Prior to filing this motion, however, Movielink had not produced any of the disputed discovery, and it would not agree to do so by a date certain. Moreover, it is difficult to understand the basis for Movielink's claim that APDC somehow violated Local Rule 7.1.1. As reflected in APDC's opening brief, APDC wrote to Movielink on numerous occasions, including on February 15 (Exhibit C); February 29 (Exhibit D); March 10 (Exhibit F); and March 11 (Exhibit G). APDC even informed

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 2 of 6

Movielink on February 29 that if Movielink had "not produced all previously requested documents or provided an agreeable date by which it will do so, APDC will seek appropriate relief from the Court." See Exhibit D. A. Movielink's "Small Size" and APDC's Alleged "Delay."

Movielink laments that it "was once a much larger company with significantly greater resources to search for and produce requested documents . . . ." as if this somehow justifies its failure to provide discovery. Movielink's Response, p. 2. Movielink, however, is not as small a company as it suggests. Movielink is a wholly-owned subsidiary of Blockbuster, Inc., a publicly-traded company. And, in any event, Movielink is much larger than APDC, which is owned by a small group of family members. Movielink also complains about APDC's alleged "delay" in filing this case. It is hard to understand what any such "delay" has to do with Movielink's discovery responses.1 B. The Court Should Order Movielink to Produce Documents Relating to the Nature of the Systems at Issue in this Case.

Requests Nos. 7 and 13 seek documents relating to the structure, architecture, operation and/or functionality of Movielink's systems (No. 7), and how Movielink transmits data from its head/end central facility to its users (No. 13). It is true that Movielink produced some information responsive to request Nos. 7 and 13 after APDC filed this motion.

1

If there has been any delay relating to this motion, it is Movielink's. Movielink should have filed its response brief on April 1, rather than on April 3, 2008. APDC had to file this reply one day after Movielink served its response brief.

2

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 3 of 6

The information sought in request Nos. 7 and 13 is clearly discoverable, and Movielink has not claimed to the contrary. The Court should order Movielink to produce the requested information except to the extent Movielink has already done so. Request No. 12 specifically seeks documents concerning protocols executed by Movielink's software relating to (a) accepting customer requests to rent or purchase video content; (b) processes for fulfilling such customer requests, including delivering video content to customers; or (c) authorizing or blocking a customer's viewing of video content. In its response, Movielink states that "Movielink does not have any proprietary protocol." See response, p. 4. Movielink also states its "primary" protocol is http, and that Fulfillment System uses the SOAP protocol. Movielink's response brief, therefore, does not directly address APDC's specific document request. To make matters even less clear, Movielink's affiant, Mr. Anderson, states that "other than the documents that I have already provided to counsel, I am not aware of any additional responsive documents for this request. . . ." See Anderson Declaration, ¶ 12 (attached to Movielink's response as Exhibit A). Movielink's responses, therefore, appear to be inconsistent. On the one hand, Movielink states in its response brief that it has no "proprietary" protocol. On the other hand, Mr. Anderson states that he has provided some documents to his (Movielink's) counsel. Yet no documents have been produced to APDC.

3

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 4 of 6

The Court should enter an Order compelling Movielink to produce the documents requested pursuant to request No. 12. C. The Court Should Order Movielink to Produce Pleadings from the USA Video Case.

As set forth in APDC's opening brief, at Movielink's request, APDC narrowed its original request for all pleadings in the USA Video case to 37 specific pleadings. None have been produced, at least to the extent these pleadings were filed under seal. Movielink states that it "does not object to the Order compelling production" of the 37 pleadings APDC requested from the USA Video case. If USA Video had any concerns regarding the production of these documents, it would have responded to APDC's letters. In addition, APDC provided USA Video with a copy of the present motion to compel. See Exhibit L attached hereto. USA Video had not responded in any way. The Court should enter such an Order compelling the production of information responsive to request No. 43. D. Movelink's Production in the USA Video Case.

Although APDC has requested Movielink to produce certain specific documents from the USA Video case, APDC has not requested Movielink to produce its entire production in the USA Video case. Indeed, if Movielink's strategy holds true, it would characterize a request for the entire USA Video production as "overbroad" and "burdensome." If portions of Movielink's production from the USA Video case are responsive to APDC's requests, those documents (and not the entire production) should be produced in this case. The Court should enter an Order accordingly.

4

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 5 of 6

II.

CONCLUSION. Plaintiff, American Patent Development Corporation, LLC, by counsel,

respectfully requests the Court to enter an Order compelling defendant to produce all documents and information in its possession, custody or control that are responsive to request Nos. 7, 12, 13, and 43. Dated: April 4, 2008 REED SMITH LLP

By: /s/ Thad J. Bracegirdle Thad J. Bracegirdle (Del. No. 3691) 1201 Market Street Suite 1500 Wilmington, Delaware 19801 (302) 778-7500 (Telephone) (302) 778-7575 (Fax) E-mail: [email protected] Mark W. Wasserman (admitted pro hac vice) Matthew R. Sheldon (admitted pro hac vice) Reed Smith LLP 3110 Fairview Park Drive Suite 1400 Falls Church, Virginia 22042 (703) 641-4200 (Telephone) (703) 641-4340 (Fax) E-mail: [email protected] [email protected] Counsel for Plaintiff, American Patent Development Corporation, LLC

5

Case 1:07-cv-00605-JJF

Document 34

Filed 04/04/2008

Page 6 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) ) )

AMERICAN PATENT DEVELOPMENT CORPORATION, LLC, Plaintiff, v. MOVIELINK, LLC, Defendant.

Civil Action No. 07-605-JJF

CERTIFICATE OF SERVICE I hereby certify that on April 4, 2008, I electronically filed the foregoing Plaintiff's Reply Brief in Support of Its Motion to Compel Discovery with the Clerk of Court using CM/ECF which will send notification of such filing to the following counsel of record: Jeffrey L. Moyer, Esq. Richards, Layton & Finger, P.A. One Rodney Square Wilmington, Delaware 19899 Scott W. Breedlove, Esq. Vinson & Elkins LLP Trammel Crow Center 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 REED SMITH LLP

By:

/s/ Thad J. Bracegirdle Thad J. Bracegirdle (Del. No. 3691) 1201 Market Street, Suite 1500 Wilmington, Delaware 19801 (302) 778-7500 E-mail: [email protected]

6

Case 1:07-cv-00605-JJF

Document 34-2

Filed 04/04/2008

Page 1 of 1