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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

REMBRANDT TECHNOLOGIES, LP, Plaintiff, v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS; LLC; and COMCAST OF PLANO, LP, Defendants. DEFENDANT'S NOTICE OF SERVICE OF INITIAL DISCLOSURES Pursuant to Federal Rule of Civil Procedure 5, Defendant Comcast Corporation, served COMCAST CORPORATION'S INITIAL DISCLOSURES PURSUANT TO DOCKET CONTROL ORDER AND DISCOVERY ORDER to all counsel of record on June 1, 2006. Respectfully submitted, /s/ Jennifer Haltom Doan Texas Bar No. 08809050 John Peyton Perkins, III Texas Bar No. 24043457 HALTOM & DOAN, LLP 6500 N. Summerhill Road, Suite 1A P. O. Box 6227 Texarkana, TX 75505-6227 Telephone: 903-255-1000 Facsimile: 903-255-0800 E-mail: [email protected] Civil Action No. 2:05-cv-443-TJW (JURY)

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Brian L. Ferrall Leo L. Lam Eric H. MacMichael Steven K. Yoda Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111-1704 Telephone: 415-676-2235 Facsimile: 415-397-7188 ATTORNEYS FOR DEFENDANTS COMCAST CORPORATION, COMCAST CABLE COMMUNICATIONS, LLC AND COMCAST OF PLANO, LP CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to FED. R. CIV. P. 5(d) and Local Rule CV-5(e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by certified mail, return receipt requested, on this 8th day of June, 2006.

/s/ John Peyton Perkins, III

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

REMBRANDT TECHNOLOGIES, LP V. COMCAST CORPORATION, ET AL.

§ § § § §

CIVIL NO. 2:05-CV-443(TJW)

ORDER APPOINTING MEDIATOR IT IS ORDERED that Judge Robert Faulkner, JAMS, 8401 N. Central Expressway, Suite 610, Dallas, Texas 75225, telephone number 214/744-5267 and fax number 214/720-6010, is hereby appointed as mediator in the above referenced case. The Court designates plaintiff's counsel to be responsible for timely contacting the mediator and defendant's counsel to coordinate a date for the mediation. Mediation shall be completed by May 24, 2007. Mediation shall be governed by the Court-Annexed Mediation Plan, Appendix H to the Local Court Rules for the Eastern District of Texas. In particular, the Mediation Plan requires the presence at the mediation conference of all parties, corporate representatives, and any other required claims professionals (e.g., insurance adjusters, etc.) with full authority to negotiate a settlement. Exceptions to this requirement may be made only by the presiding judge in writing. SIGNED this 15th day of June, 2006.

__________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

REMBRANDT TECHNOLOGIES, LP V. COMCAST CORPORATION, ET AL.

§ § § § §

CIVIL NO. 2:05-CV-443(TJW)

AMENDED DISCOVERY ORDER After a review of the pleaded claims and defenses in this action, in furtherance of the management of the court's docket under Fed. R. Civ. P. 16, and after receiving the input of the parties to this action, it is ORDERED AS FOLLOWS: 1. Disclosures. Except as provided by paragraph 1(h), within thirty (30) days after the Scheduling Conference, each party shall disclose to every other party the following information: (a) (b) (c) the correct names of the parties to the lawsuit; the name, address, and telephone number of any potential parties; the legal theories and, in general, the factual bases of the disclosing party's claims or defenses (the disclosing party need not marshal all evidence that may be offered at trial); (d) the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified person's connection with the case, and a brief, fair summary of the substance of the information known by any such person; (e) any indemnity and insuring agreements under which any person or entity carrying on an insurance business may be liable to satisfy part or all of a judgment entered in this

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action or to indemnify or reimburse for payments made to satisfy the judgment; (f) (g) (h) any settlement agreements relevant to the subject matter of this action; any statement of any party to the litigation; for any testifying expert, by the date set by the court in the Docket Control Order, each party shall disclose to the other party or parties: a. b. c. the expert's name, address, and telephone number; the subject matter on which the expert will testify; if the witness is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the disclosing party regularly involve giving expert testimony: 1. all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and 2. the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local Rule CV-26. d. for all other experts, the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them or documents reflecting such information. 2. 3. Protective Orders. The Court has issued a protective order in this case. Additional Disclosures. In addition to the disclosures required in Paragraph 1 of this

Order, at the Scheduling Conference, the court shall amend this discovery order and require each party, without awaiting a discovery request, to provide, to the extent not already provided, to every other party the following:

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(a) (b)

the disclosures required by the Patent Rules for the Eastern District of Texas; By June 16, 2006, a copy of all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the case, except to the extent these disclosures are affected by the time limits set forth in the Patent Rules for the Eastern District of Texas. By written agreement of all parties, alternative forms of disclosure may be provided in lieu of paper copies. For example, the parties may agree to exchange images of documents electronically or by means of computer disk; or the parties may agree to review and copy disclosure materials at the offices of the attorneys representing the parties instead of requiring each side to furnish paper copies of the disclosure materials;

(c)

within forty-five (45) days after the Scheduling Conference, a complete computation of any category of damages claimed by any party to the action, making available for inspection and copying as under Rule 34, the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(d)

within forty-five (45) days after the Scheduling Conference, those documents and authorizations described in Local Rule CV-34; and

The court shall order these disclosures in the absence of a showing of good cause by any party objecting to such disclosures. 4. Discovery Limitations. Discovery is limited to the disclosures described in Paragraphs 1 and 3 together with 35 interrogatories, 60 requests for admissions (except that the parties may serve unlimited requests for admission for authentication purposes), the depositions of the parties, depositions on written questions of custodians of business records for third

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parties, depositions of four (4) expert witnesses per side, and sixty (60) additional hours of third party and Rule 30(b)(1) depositions per side. "Side" means a party or a group of parties with a common interest. Any party may move to modify these limitations for good cause. 5. Privileged Information. There is no duty to disclose privileged documents or information. However, the parties are directed to meet and confer concerning privileged documents or information after the Scheduling Conference. Within sixty (60) days after the Scheduling Conference, the parties shall exchange privilege logs identifying the documents or information and the basis for any disputed claim of privilege in a manner that, without revealing information itself privileged or protected, with enable the other parties to assess the applicability of the privilege or protection. Any party may move the court for an order compelling the production of any documents or information identified on any other party's privilege log. If such a motion is made, the party asserting privilege shall respond to the motion within the time period provided by Local Rule CV-7. The party asserting privilege shall then file with the Court within thirty (30) days of the filing of the motion to compel any proof in the form of declarations or affidavits to support their assertions of privilege, along with the documents over which privilege is asserted for in camera inspection. If the parties have no disputes concerning privileged documents or information, then the parties shall inform the court of that fact within sixty (60) days after the Scheduling Conference. 6. Pre-trial disclosures. Each party shall provide to every other party regarding the evidence that the disclosing party may present at trial as follows: (a) The name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to present at trial and

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those whom the party may call if the need arises. (b) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. (c) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises. These disclosures shall be made at least 30 days before trial. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and file a list disclosing (1) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (B) and (2) any objections, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown. 7. Signature. The disclosures required by this order shall be made in writing and signed by the party or counsel and shall constitute a certification that, to the best of the signer's knowledge, information and belief, such disclosure is complete and correct as of the time it is made. If feasible, counsel shall meet to exchange disclosures required by this order; otherwise, such disclosures shall be served as provided by Fed. R. Civ. P. 5. The parties shall promptly file a notice with the court that the disclosures required under this order have taken place. 8. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information on the basis of which it knows that the information disclosed was either incomplete or

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incorrect when made, or is no longer complete or true. 9. Disputes. (a) Except in cases involving claims of privilege, any party entitled to receive disclosures may, after the deadline for making disclosures, serve upon a party required to make disclosures a written statement, in letter form or otherwise, of any reason why the party entitled to receive disclosures believes that the disclosures are insufficient. The written statement shall list, by category, the items the party entitled to receive disclosures contends should be produced. The parties shall promptly meet and confer. If the parties are unable to resolve their dispute, then the party required to make disclosures shall, within fourteen (14) days after service of the written statement upon it, serve upon the party entitled to receive disclosures a written statement, in letter form or otherwise, which identifies (1) the requested items that will be disclosed, if any, and (2) the reasons why any requested items will not be disclosed. The party entitled to receive disclosures may thereafter file a motion to compel. (b) Counsel are directed to contact the chambers of the undersigned for any "hot-line" disputes before contacting the Discovery Hotline provided by Local Rule CV-26(e). If the undersigned is not available, the parties shall proceed in accordance with Local Rule CV-26(e). 10. No Excuses. A party is not excused from the requirements of this Discovery Order because it has not fully completed its investigation of the case, or because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures. Absent court order to the contrary, a party is not excused from disclosure

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because there are pending motions to dismiss, to remand or to change venue. 11. Filings. Any filings in excess of twenty (20) pages, counsel is directed to provide a courtesy copy to chambers, simultaneously with the date of filing. 12. Modifications to Patent Rules. The attached Appendix C applies to this case and supplements the Patent Rules for the Eastern District of Texas. These modifications are not intended to apply to any other case except as may be expressly provided by order of this Court. SIGNED this 15th day of June, 2006.

__________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE

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APPENDIX C

ORDER RELATING TO PATENT CASES BEFORE JUDGE T. JOHN WARD

The Court issues certain modifications to the Eastern District Patent Rules.

The

modifications relate to three issues: (1) Notice Requirements, (2) Infringement and Invalidity Contentions for Software, and (3) Deadlines Related to Claim Construction. I. Notice Requirements The Court has seen a dramatic increase in the number of disputes related to parties serving "supplemental," "additional," or "revised" P.R. 3-1 or P.R. 3-3 disclosures. In the past, parties were not required to provide notice to the Court regarding compliance with P.R. 3-1 or P.R. 3-3. Thus, certain parties attempted to avoid the rule that Preliminary Contentions are final except as provided in P.R. 3-6 and P.R. 3-7. Accordingly, the Court modifies P.R. 3-1 and P.R. 3-3 in the following manner: P.R. 3-1(g): Any time a party claiming patent infringement serves Preliminary Infringement Contentions on an opposing party, the party claiming patent infringement shall also file with the Court a Notice of Compliance with P.R. 3-1. P.R. 3-3(e): Any time a party opposing patent infringement serves Preliminary Invalidity Contentions on an opposing party, the party opposing patent infringement shall also file with the Court a Notice of Compliance with P.R. 3-3. Under this Court's interpretation of the Patent Rules, leave of Court is required for serving "amended," "supplemental," or "revised" P.R. 3-1 or P.R. 3-3 disclosures. The Court will strike "amendments," "supplements," or "revisions" of P.R. 3-1 or P.R. 3-3 disclosures that do not comply with P.R. 3-6 or P.R. 3-7. II. Infringement and Invalidity Contentions for Software

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Additional modifications to the Patent Rules regarding P.R. 3-1 and P.R. 3-3 are being made to reduce discovery disputes and motion practice resulting from patents that contain software claim limitations. The Patent Rules require a party asserting claims of patent infringement to take a firm position in the litigation as it relates to infringement early on in the case. This and other courts in the Eastern District of Texas, however, recognize that software claim limitations present unique challenges for the parties because parties claiming patent infringement do not typically have access to an opposing party's source code before filing suit. At the same time, parties opposing a claim for patent infringement are hampered in their ability to prepare a defense absent specific infringement contentions from the party asserting claims of patent infringement. The lack of access to source code coupled with an opponent's right to prepare a defense has led to numerous discovery disputes. To alleviate these disputes and to provide clear direction to the parties as to their rights and responsibilities under the Patent Rules, the Court modifies the Patent Rules in a manner consistent with such cases as American Video Graphics, L.P. v. Electronic Arts, Inc., 359 F. Supp. 2d 558 (E.D. Tex. 2005). The Court's modifications to P.R. 3-1and P.R. 3-3 are set out below. P.R. 3-1 (h): If a party claiming patent infringement asserts that a claim element is a software limitation, the party need not comply with P.R. 3-1 for those claim elements until 30 days after source code for each Accused Instrumentality is produced by the opposing party. Thereafter, the party claiming patent infringement shall identify, on an element-by-element basis for each asserted claim, what source code of each Accused Instrumentality allegedly satisfies the software limitations of the asserted claim elements. P.R. 3-3(f): If a party claiming patent infringement exercises the provisions of P.R. 3-1(g), the party opposing a claim of patent infringement may serve, not later than 30 days after receipt of a P.R. 3-1(g) disclosure, supplemental "Preliminary Invalidity Contentions" that amend only those claim elements identified as software limitations by the party claiming patent infringement. Thus, if a party claiming patent infringement asserts that a claim element (or the entire claim)

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is software, that party need only identify the element as a software limitation in its initial compliance with P.R. 3-1, but does not need to identify where such limitation is met in the Accused Instrumentality. After receipt of the source code for an Accused Instrumentality, the party is permitted 30 days to supplement its P.R. 3-1 disclosure to identify, with specificity, the source code of the Accused Instrumentality that allegedly satisfies the software claim elements. P.R. 3-1(g) does not allow Plaintiff the opportunity to modify or amend any non-software claim contentions. Likewise, once a party opposing a claim of patent infringement is in receipt of a P.R. 3.1(g) disclosure, the party is allowed 30 days to modify its initial P.R. 3-3 disclosures, but only to the extent the modifications relate to the software claim elements identified by the party claiming patent infringement. P.R. 3-3(e) does not allow a party opposing a claim of infringement an opportunity to modify or amend any non-software contentions. III. Claim Construction Deadlines The final amendments to the Patent Rules relate to claim construction deadlines. In the Eastern District Patent Rules, claim construction deadlines are triggered by the filing of the parties' Infringement and Invalidity Contentions. The increase of patent cases before this Court has resulted in a large number of Claim Construction hearings and, as a result, strict application of the Patent Rules yields a P.R. 4-5 deadline approximately three months or more before Court could accommodate a Claim Construction Hearing. To facilitate the case, resolve discovery disputes, and have claim construction hearings a reasonable time after briefing is complete, the Court modifies the deadlines in P.R. 4-1 and P.R. 4-3 as set forth below: 4-1. Exchange of Proposed Terms and Claim Elements for Construction. (a) Not later than 140 days before the date set for the Claim Construction Hearing, each party shall simultaneously exchange a list of claim terms, phrases, or clauses

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which that party contends should be construed by the Court, and identify any claim element which that party contends should be governed by 35 U.S.C. § 112(6). 4-3. Joint Claim Construction and Prehearing Statement. Not later than 30 days after "Exchange of Preliminary Claim Constructions and Extrinsic Evidence" in compliance with P.R. 4.2, the parties shall complete and file a Joint Claim Construction and Prehearing Statement, which shall contain the following information: Thus, the Court's modifications will make the trigger of P.R. 4-1 through P.R. 4-5 the date of the Claim Construction Hearing. For clarification, the Court notes that the "140 days" set forth in P.R. 4-1 was not chosen to confuse the parties but was instead chosen so as to be evenly divisible by 7. Thus, whatever the date of the Claim Construction Hearing, the deadline for complying with P.R. 4-1 will always fall on a weekday. If that weekday is a Federal Holiday, the deadline for complying with P.R. 4-1 is extended to the first day that is not a Saturday, Sunday or other Federal Holiday.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION REMBRANDT TECHNOLOGIES, LP V. COMCAST CORPORATION, ET AL. § § § § §

CIVIL NO. 2:05-CV-443(TJW)

DOCKET CONTROL ORDER

In accordance with the case scheduling conference held herein on the 2nd day of May, 2006, it is hereby ORDERED that the following schedule of deadlines is in effect until further order of this court: August 6, 2007 Jury Selection - 9:00 a.m. in Marshall, Texas

July 26, 2007

Pretrial Conference - 9:30 a.m. in Marshall, Texas

July 20, 2007

Joint Pretrial Order, Joint Proposed Jury Instructions and Form of the Verdict.

July 23, 2007

Motions in Limine (due three days before final Pre-Trial Conference). Three (3) days prior to the pre-trial conference provided for herein, the parties shall furnish a copy of their respective Motions in Liming to the Court by facsimile transmission, 903/935-2295. The parties are directed to confer and advise the Court on or before 3:00 o'clock p.m. the day before the pre-trial conference which paragraphs are agreed to and those that need to be addressed at the pre-trial conference.

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July 6, 2007

Response to Dispositive Motions (including Daubert motions)1 Responses to dispositive motions filed prior to the dispositive motion deadline, including Daubert Motions, shall be due in accordance with Local Rule CV-7(e). Motions for Summary Judgment shall comply with Local Rule CV56.

June 22, 2007

For Filing Dispositive Motions and any other motions that may require a hearing (including Daubert motions)

May 24, 2007

Mediation to be completed

May 23, 2007

Defendant to Identify Trial Witnesses

May 9, 2007

Plaintiff to Identify Trial Witnesses

May 9, 2007

Discovery Deadline

(Three weeks after the final expert witness report is due.)

Expert Discovery Deadline

30 Days after claim construction ruling Designate Rebuttal Expert Witnesses other than claims construction Expert witness report due Refer to Discovery Order for required information.

1

The parties are directed to Local Rule CV-7(d), which provides in part that "[i]n the event a party fails to oppose a motion in the manner prescribed herein the court will assume that the party has no opposition." Local Rule CV-7(e) provides that a party opposing a motion has 12 days, in addition to any added time permitted under Fed. R. Civ. P. 6(e), in which to serve and file a response and any supporting documents, after which the court will consider the submitted motion for decision.

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15 Days after claim construction ruling Comply with P.R. 3-8.

15 Days after claim construction ruling Party with the burden of proof to designate Expert Witnesses other than claims construction Expert witness report due Refer to Discovery Order for required information.

February 8, 2007

Claim construction hearing 9:00 a.m., Marshall, Texas.

January 17, 2007

Comply with P.R. 4-5(c).

January 10, 2007

Comply with P.R. 4-5(b).

December 27, 2006

Comply with P.R. 4-5(a).

December 4, 2006

Discovery deadline­claims construction issues

November 27 2006

Respond to Amended Pleadings

November 9, 2006

Amend Pleadings (It is not necessary to file a Motion for Leave to Amend before the deadline to amend pleadings except to the extent the amendment seeks to add a new patent in suit. It is necessary to file a Motion for Leave to Amend after November 9, 2006).

November 9, 2006

Comply with P.R. 4-3.

October 10, 2006 July 7, 2006

Comply with P.R. 4-2. Privilege Logs to be exchanged by parties (or a letter to the Court stating that there are no disputes as to claims of privileged documents).

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September 20, 2006

Comply with P.R. 4-1.

June 16, 2006

Comply with P.R. 3-3.

June 1, 2006

Join Additional Parties

May 12, 2006

Comply with P.R. 3-1.

IT IS ORDERED that the Court will appoint a mediator in the above referenced case, as the parties have been unable to agree. IT IS FURTHER ORDERED that the Court will appoint a technical advisor in this case, as the parties have been unable to agree.

OTHER LIMITATIONS 1. All depositions to be read into evidence as part of the parties' case-in-chief shall be EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony; ONLY those portions which are relevant to the issues in controversy shall be read into evidence. The Court will refuse to entertain any motion to compel discovery filed after the date of this Order unless the movant advises the Court within the body of the motion that counsel for the parties have first conferred in a good faith attempt to resolve the matter. See Eastern District of Texas Local Rule CV-7(h). The following excuses will not warrant a continuance nor justify a failure to comply with the discovery deadline: (a) The fact that there are motions for summary judgment or motions to dismiss pending; The fact that one or more of the attorneys is set for trial in another court on the same day, unless the other setting was made prior to the date of this order or was made as a special provision for the parties in the other case;

2.

3.

(b)

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(c)

The failure to complete discovery prior to trial, unless the parties can demonstrate that it was impossible to complete discovery despite their good faith effort to do so.

SIGNED this 15th day of June, 2006.

__________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

REMBRANDT TECHNOLOGIES, LP, Plaintiff, v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS; LLC; and COMCAST OF PLANO, LP, Defendants. DEFENDANT'S NOTICE OF SERVICE OF PRELIMINARY INVALIDITY CONTENTIONS Pursuant to Federal Rule of Civil Procedure 5, Defendant Comcast Corporation, served COMCAST CORPORATION'S PRELIMINARY INVALIDITY CONTENTIONS to all counsel of record on June 16, 2006. Respectfully submitted, /s/ Jennifer Haltom Doan Texas Bar No. 08809050 John Peyton Perkins, III Texas Bar No. 24043457 HALTOM & DOAN, LLP 6500 N. Summerhill Road, Suite 1A P. O. Box 6227 Texarkana, TX 75505-6227 Telephone: 903-255-1000 Facsimile: 903-255-0800 E-mail: [email protected] Civil Action No. 2:05-cv-443-TJW (JURY)

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Brian L. Ferrall Leo L. Lam Eric H. MacMichael Steven K. Yoda Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111-1704 Telephone: 415-676-2235 Facsimile: 415-397-7188 ATTORNEYS FOR DEFENDANTS COMCAST CORPORATION, COMCAST CABLE COMMUNICATIONS, LLC AND COMCAST OF PLANO, LP CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to FED. R. CIV. P. 5(d) and Local Rule CV-5(e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by certified mail, return receipt requested, on this 19th day of June, 2006.

/s/ John Peyton Perkins, III

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION REMBRANDT TECHNOLOGIES, LP v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS, LLC; AND COMCAST OF PLANO, LP Jury Trial Demanded Civil Action No. 2:05-cv-00443-TJW

PLAINTIFF'S NOTICE OF DISCLOSURE UNDER SECTION 3(C) OF THE COURT'S AMENDED DISCOVERY ORDER Plaintiff Rembrandt Technologies, LP hereby notifies the Court that it has served its Disclosures pursuant to Section 3(c) of the Court's Amended Discovery Order on June 16, 2006. Respectfully submitted, PARKER & BUNT, P.C. /s/ Robert ChristopherBunt Robert Christopher Bunt State Bar No. 00787165 PARKER & BUNT, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Tel: 903/531-3535 Fax: 903/533-9687 E-mail: [email protected] Robert M. Parker State Bar No. 15498000 PARKER & BUNT, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Tel: 903-531-3535 Fax: 903-533-9687 E-mail: [email protected]

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Otis Carroll ­ Lead Attorney State Bar No. 03895700 IRELAND, CARROLL & KELLEY, P.C. 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Tel: (903) 561-1600 Fax: (903) 581-1071 E-mail: [email protected] OF COUNSEL: Frank E. Scherkenbach Lawrence K. Kolodney FISH & RICHARDSON, P.C. 225 Franklin Street Boston, Massachusetts 02110 Tel: (617) 542-5070 Fax: (617) 542-8906 Alan D. Albright State Bar No. 00973650 FISH & RICHARDSON, P.C. One Congress Plaza, 4th Floor 111 Congress Avenue Austin, Texas 78701 Tel: (512) 391-4930 Fax: (512) 391-6837 Timothy Devlin FISH & RICHARDSON, P.C. 919 Market Street, Suite 1100 P.O. Box 1114 Wilmington, Delaware 19899 Tel: (302) 652-5070 Fax: (302) 652-0607 Franklin Jones, Jr. State Bar No. 00000055 JONES & JONES, INC., P.C. 201 West Houston Street, Drawer 1249 Marshall, Texas 75671-1249 Tel: 903-938-4395 Fax: 903-938-3360 E-mail: [email protected]

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S. Calvin Capshaw, III State Bar No. 03783900 BROWN MCCARROLL, L.L.P. 1127 Judson Road, Suite 220, P.O. Box 3999 Longview, Texas 75601-5157 Tel: 903-236-9800 Fax: 903-236-8787 E-mail: [email protected] Attorneys for Plaintiff REMBRANDT TECHNOLOGIES, LP.

CERTIFICATE OF SERVICE I hereby certify that the all counsel of record, who are deemed to have consented to electronic service are being served this 19th day of June, 2006, with a copy of this document via the Court's CM/ECF system per Local Rule CD-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. /s/ Robert Christopher Bunt Robert Christopher Bunt

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

REMBRANDT TECHNOLOGIES, LP Plaintiff, vs. COMCAST CORPORATION, COMCAST CABLE COMMUNICATIONS, LLC, and COMCAST OF PLANO, LP Defendants.

§ § § § § § § § § § § §

CIVIL ACTION NO. 2:05cv443

ORDER Before the Court is Defendants, Comcast Corporation, Comcast Cable Communications, LLC, and Comcast of Plano, LP's (collectively "Comcast" or "Defendants"), motion to transfer venue to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). (Doc. 10). For the following reasons, Defendants' motion is DENIED.1 Background Rembrandt Technologies, LP ("Rembrandt" or "Plaintiff") filed suit against Comcast for allegedly infringing four of its patents: U.S. Patent Nos. 4,937,819 ("the `819 patent"), 5,719,858 ("the `858 patent"), 5,852,631 ("the `631 patent"), 5,243,627 ("the `627 patent"). These patents "relate to the transmission or receipt of digital data," but more particularly, the `819 and `858 patents deal with digital voice transmission, the `631 patent deals with high speed internet

The Court elected to delay ruling on the motion to transfer until the Federal Circuit acted on a petition for writ of mandamus out of the Tyler Division of the Eastern District of Texas that presented similar facts. See Network-1 Security Solutions, Inc. v. D-Link Corporation et al., 6:05cv291; Order Denying Petition for W rit of Mandamus, June 2, 2006. As the Federal Circuit elected to deny the petition, this Court enters the following order.

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service, and the `627 patent deals with digital cable service. Defendant's Motion to Compel, p. 2-3. Plaintiff alleges that Defendants infringe their patents, "through the use of third-party devices, including cable modems and cable modem head-end systems." Plaintiff's Response, p. 3. Comcast Corporation is a Pennsylvania corporation, Comcast Cable is a Delaware corporation, and Comcast of Plano, LP is a limited partner in a Delaware limited partnership whose general partner is Comcast of Plano GP, LLP. All of these entities have their principal place of business in Philadelphia, Pennsylvania, in the Eastern District of Pennsylvania. Rembrant is also headquartered in the Eastern District of Pennsylvania in Bala Cynwyd, Pennsylvania. Defendants concede that venue is proper in the Eastern District of Texas under 28 U.S.C. § 1400, and Plaintiff does not argue that the Eastern District of Pennsylvania would be an improper venue. The issue is whether the convenience of the parties and the interests of justice favor transfer. Comcast argues that transfer to the Eastern District of Pennsylvania is

appropriate under 28 U.S.C. § 1404(a) for the following reasons: (1) Comcast's known potential engineering, marketing, and financial witnesses work in the Eastern District of Pennsylvania, (2) both parties' sources of proof are in the Eastern District of Pennsylvania, (3) the Eastern District of Pennsylvania district can exercise subpoena power over third-party witnesses, and (4) the Eastern District of Texas has no interest in adjudicating this dispute between various Eastern District of Pennsylvania parties. Legal Standard for Transfer of Venue Under 28 U.S.C. § 1404 28 U.S.C. § 1404(a) enables a district court to transfer any civil action to another district or division where it might have been brought for the convenience of parties and witnesses, in the 2

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interest of justice. The purpose of the statute is to protect litigants, witnesses, and the public against uncecessary inconvenience and expense, and to avoid wasted time, energy, and money. Houston Trial Reports, Inc. v. LRP Publications, Inc., 85 F. Supp.2d 663, 668 (E.D. Tex. 1999); see also Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). The court possesses broad discretion in deciding whether transfer of venue is proper. Balawajder v. Scott, 160 F.3d 1066 (5th Cir. 1998). In adjudicating motions to transfer, the court employs an "individualized, case-by-case consideration of convenience and fairness." Van Dusen, 376 U.S. at 622. Movant bears the burden of demonstrating that the forum sought is more convenient. Chretien v. Home Depot U.S.A., Inc., 169 F.Supp.2d 670, 672 (S.D. Tex. 2001) citing Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989). "Unless the balance of factors strongly favors the moving party, the Plaintiff's choice of forum generally should not be disturbed." Houston Trial Reports, 85 F.Supp.2d at 667-668 citing Henderson v. AT&T Corp., 918 F.Supp. 1059, 1065 (S.D. Tex. 1996). The first determination made under 1404(a) is whether the claim could have been filed in the forum to which transfer is sought. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). If so, the Court evaluates several private and public interest factors, none of which is given dispositive weight, to ascertain "the convenience of the parties and witnesses. Id. The private factors include: (1) the relative ease of access to sources of proof; (2) the availability of the compulsory process to secure witnesses' attendance; (3) the willing witnesses' cost of attendance; and (4) all other practical problems that make the case's trial easy, expeditious, and inexpensive. Id. Plaintiff's choice of forum is a factor to be considered with the private factors, but that choice is not conclusive or determinative. In re Horseshoe Entm't, 337 F.3d 429, 434 (5th Cir. 2003). 3

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The public factors include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having local issues decided at home; (3) the forum's familiarity with the governing law; and (4) the avoidance of unnecessary conflict of law problems involving foreign law's application. Volkswagen AG, 371 F.3d at 203. Analysis Private Interests Defendants contend that the preferred forum for this case is the Eastern District of Pennsylvania because that is where the "center of gravity of the alleged infringing activity," is situated. Whistler Group v. PNI Corp., 2003 U.S. Dist. LEXIS 21968, *11 (N.D. Tex. 2003). However, the Court finds Whistler to be distinguishable for several reasons. In Whistler, the defendant in an ongoing patent suit in the Northern District of California sued the plaintiff in that litigation in the Northern District of Texas. To avoid duplicative litigation and wasted resources, the case was transferred from the Northern District of Texas to the Northern District of California where both lawsuits could be heard together. Id. at *18. Although the Court in Whistler considered the "center of gravity of the alleged infringing activity," it is clear that the Court opted for transfer primarily because the related case in California involved the same parties, similar patents, and overlapping witnesses and discovery. Id. at *16. Additionally, the concept of the "center of gravity" is already contemplated by other factors in the transfer analysis set out in Volkswagen (cite omitted). See also Zoltar Satellite Systems, Inc. V. LG Electronics Mobile Communications Co., 402 F.Supp.2d 731, 735 (E.D. Tex. 2005); Purdy v. Munden, 356 F.Supp.2d 658, 659 (E.D. Tex. 2005); Bolt v. Toyota Industries Corp., 351 F.Supp.2d 597, 598 (E.D. Tex. 2004).

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In the "center of gravity" analysis employed in Whistler "the location of a product's development, testing, research, and production," establish the "center of gravity of the alleged infringement." Whistler, 2003 U.S. Dist. LEXIS 21968, *11-12, see also Minka Lighting, Inc. v. Trans Globe Imports, Inc., 2003 U.S. Dist. Lexis 8862 (N.D. Tex. May 23, 2003). However, under the Volkswagen analysis, the Court considers "a product's development, testing, research, and production," when it weighs the relative ease of access to sources of proof.2 Volkswagen, 371 F.3d at 203. The Court also weighs the location of the alleged infringement when it considers the local forum's interest in deciding local issues as home. As the location of the alleged patent infringement already figures appreciably in these two factors, treating the "center of gravity" as an independent factor would, in effect, double count the weight allotted to the location of the alleged infringement. Therefore, the Court will not consider the "center of gravity" as an independent factor in this analysis. (i) Plaintiff's Choice of Forum Defendants argue that the Court should not defer to Plaintiff's choice of forum because this action has no connection to the Eastern District of Texas. However, a connection to the Eastern District of Texas does exist in this case because Plaintiff alleges that infringement occurred here. Accordingly, Plaintiff's choice of forum is a factor to be considered, and it weighs against transfer. In re Horseshoe Entm't, 337 F.3d at 434. (ii) Ease of access to sources of proof Rembrandt alleges that Comcast purchased devices from third parties and used them together in a way that practices its patents. Engineering documents may establish how the

In Whistler, the Court considered the sources of proof and "center of gravity" together in the same discussion, indicating that the factors are closely related. See Whistler at *11-12.

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devices were used, and Comcast contends that those, and most of the other relevant documents, are located in Philadelphia. Plaintiff counters that the alleged infringement occurred nationwide, and records of the infringing activity that occurred in the Eastern District of Texas will be located here. However, neither party seriously contends that the ease of access to documentary sources of proof weighs significantly for or against transfer. See Eliserio v. Floydada Housing Authority, 388 F.Supp.2d 774 (S.D. Tex. 2005) (location of documents is not given much weight unless there is a showing that the documents are so voluminous that transport is a major undertaking). Generally, engineering documents and most other documentary sources of proof may be transported relatively easily, and Comcast has made no showing that transporting documents in this case would be uncharacteristically burdensome. Accordingly, this factor is neutral. (iii) The availability of compulsory process to secure the attendance of witnesses The attorneys that prosecuted the `819 and `627 patents are outside the subpoena power of this Court, and within the subpoena power of the Eastern District of Pennsylvania.3 However, it is unclear what issues these attorneys would testify to at trial. Rembrandt points out that prosecuting attorneys normally testify in cases where inequitable conduct is at issue, but Comcast does not allege inequitable conduct in this case. While Comcast has identified two possible witnesses for whom compulsory process would be available in the transferee district, but not this district, the likelihood that the attorneys will testify at trial and substantive import of their testimony are largely unknown. Further, any Court within 100 miles of these witnesses may procure these witnesses' depositions, and the video recording of a deposition may be used

The firms that prosecuted the `631 and `858 patents are located in Atlanta, Georgia with an additional office in Huntsville, Alabama.

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at trial. Thus, the Court finds this factor is neutral. (iv) Willing witnesses' cost of attendance Comcast argues that its witnesses and Rembrandt's witnesses are principally located in the Eastern District of Pennsylvania, which weighs in favor of transfer. However, to the extent those witnesses are employees of either party, their convenience is given less consideration because their testimony can be compelled. See TIG Ins. Co. v. NAFCO Ins. Co., 177 F.Supp.2d 561, 568 (N.D. Tex. 2001); SMI-Owen Steel Co., Inc., v. St. Paul Fire & Marine Ins. Co., 113 F.Supp.2d 1101 (S.D. Tex. 2000). The inventors live in Florida, but considering that traveling to Marshall from Florida is no more inconvenient than traveling to Philadelphia from Florida, this fact does not weigh for or against transfer. Although it may be true that many of the witnesses in this case reside in the Eastern District of Pennsylvania, those witnesses are party witnesses whose cost of attendance warrants less weight in the transfer analysis. Therefore, this factor is neutral. (v) Practical problems that make the case's trial easy, expeditious, and inexpensive Neither party devoted significant argument to this factor, and the Court finds that it is neutral. Public Interests (i) administrative difficulties flowing from court congestion Comcast argues that this factor is neutral because the average time to trial in the Eastern District of Pennsylvania is only two weeks longer than the average time to trial in the Eastern District of Texas. Rembrandt argues that transfer will delay the case by more than two weeks because the case will have to begin anew in the transferee district. Further, the Eastern District of Texas has a set of patent rules designed to ensure that patent cases progress as smoothly as 7

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possible. Rembrandt's arguments are well taken, and it appears that transfer could result in appreciable delay. Therefore, this factor weighs against transfer. (ii) the local interest in having local issues decided at home Rembrandt and Comcast are headquartered in the Eastern District of Pennsylvania and, Comcast argues, the citizens of that district have a strong interest in adjudicating this dispute between the locally based parties. By contrast, Defendants argue, the citizens of the Eastern District of Texas have no interest in adjudicating this dispute, and it would be unfair to burden them with jury duty. Although the parties are headquartered in the Eastern District of

Pennsylvania, the alleged infringement occurred nationwide, including in this district, and the citizens of the Eastern District of Texas have an interest in enforcing United States patent law. Source, Inc. v. Rewards Network, Inc., No. 2:04cv347, 2005 WL 2367562 at *3 (E.D. Tex. Sept. 27, 2005). Thus, the localized genesis of the dispute is somewhat offset by the national scope of the alleged infringement. Further, the patent venue statute allows actions to be brought in any venue where the Defendant resides or where the Defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. § 1400. The patent venue statute expresses no preference between the two alternatives, and under the statute, the Eastern District of Texas and the Eastern District of Pennsylvania are equally viable venues for this lawsuit. Opting in favor of the Eastern District of Pennsylvania over the Eastern District of Texas merely because Comcast is headquartered in the Eastern District of Pennsylvania would burden the choice provided for in the patent venue statute. Accordingly, this factor is neutral. (iii) the forum's familiarity with the governing law The Eastern District of Pennsylvania and the Eastern District of Texas are equally 8

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capable of hearing this case, therefore, this factor is neutral. (iv) the avoidance of unnecessary conflict of law problems involving foreign law's application This case is governed by federal patent law, therefore, this factor does not weigh in the Court's analysis. Conclusion Comcast failed to carry its burden and establish that transfer is appropriate in this case. Accordingly, Comcast's motion to transfer venue to the Eastern District of Pennsylvania (Doc. 10) is DENIED.

So ORDERED and SIGNED this 29th day of June, 2006.

___________________________________ JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION REMBRANDT TECHNOLOGIES, LP v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS, LLC; AND COMCAST OF PLANO, LP Civil Action No. 2:05-cv-00443-TJW

PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND MOTION FOR EXPEDITED BRIEFING SCHEDULE I. INTRODUCTION Rembrandt is the owner of four United States patents relating to various techniques used in electronic communication. These inventions were developed after years of research by Paradyne Corporation, a premier designer and manufacturer of communication products. In this action, Rembrandt asserts that Comcast infringes these patents through Comcast's provision of cable services and cable internet services. Central to Rembrandt's allegations of infringement is an understanding of how certain devices used in Comcast's cable internet and television networks operate internally. Yet, despite a court-ordered deadline of June 16, 2006 to complete production of documents, Comcast has not produced any source code, and failed to produce the vast majority of email and other relevant electronic messages. Instead, Comcast has repeatedly delayed producing this information. Further, in the last few days, Comcast has made the unbelievable assertion that it has absolutely no source code in its possession, notwithstanding the fact that it forced this Court to resolve a dispute regarding the number of locations in which source code would be housed. Despite knowing it had a clear duty to produce source code, as evidenced by the communications between the parties as early as January, 2006, Comcast has admitted that it neglected to determine whether such source code was under its control. Indeed, to Rembrandt's knowledge, Comcast has not yet begun to review its agreements with its suppliers relating to source code.

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Comcast also has failed to obtain what it asserts are required clearances for the production of documents it claims are subject to third party confidentiality obligations. As set forth below, Comcast's delays are extensive, inexcusable, and prejudicial. With the claim construction process beginning in under two months, Rembrandt's ability to review and digest any subsequently produced documents has already been irreparably compromised. To obviate any further prejudice, Comcast should be ordered to produce all remaining requested documents within its possession, custody, or control, within one week of the Court's order.1 Rembrandt also requests a shortened briefing period for resolution of this motion to facilitate resolution of this issue. II. FACTUAL BACKGROUND In this action, Rembrandt asserts that Comcast has infringed, and continues to infringe, Rembrandt's U.S. Patent Nos. 4,937,819, 5,243,627, 5,719,858, and 5,852,631. Rembrandt's patents relate to mechanisms to ensure fast and efficient communication between devices. Three of the asserted patents are infringed through Comcast's provision of cable internet services. The fourth patent is infringed by Comcast's reception of digital television signals, which Comcast retransmits over its cable lines to its subscribers. Even before the Court issued its proposed docket control order requiring the document production of parties to be complete by June 16, 2006 (see Docket No. 28 at ¶ 3(b)), Rembrandt placed Comcast on notice of the scope of document production and discovery that would be required in the case. Almost seven months ago, Rembrandt's counsel wrote to Comcast's counsel to identify categories of documents Rembrandt expected to be included in Comcast's document production. (See Ex. A at 1.) Included among these categories were "[a]ll software (including source code) relating to Comcast's broadband service offerings" (id.), "[a]ll software (including source code) relating to the use in any Comcast cable network of trellis encoding, Reed-Solomon encoding, interleaving algorithms, and documentation describing such software" (id. at 2), and documents evidencing the extent to which Comcast's network includes
1

Rembrandt notes that there are a number of additional discovery-related disputes among the parties, and that efforts are underway to resolve these disputes without invoking the Court's 2

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components that comply with two relevant standards, the DOCSIS and ATSC standards (id. at 1 & 2.). With respect to source code, Rembrandt requested that Comcast seek relevant source code from third parties, to the extent the source code was within Comcast's control but not its immediate possession. (See id. at 2.) On January 26, 2006, not having received a response, Rembrandt again wrote to Comcast, reiterating its request that Comcast seek the production of source code from third parties. Noting that the case would likely generate substantial amounts of discovery, Rembrandt requested that Comcast agree to the early commencement of third party discovery in order to streamline and expedite the process. (See Ex. B.) Comcast replied on January 31, 2006, stating, "The early commencement of document discovery from Comcast, or from third parties who have conducted business with Comcast, does not seem justified." (Ex. C.) According to Comcast, early discovery was not justified because the deadlines set by the rules "appear to fairly balance the burdens on both the plaintiff and defendant." (Ex. C.) A. Comcast's Delay on Email and Third Party Documents

Despite Rembrandt's early notification of the extent of discovery that would be required, on April 28, 2006, counsel for Comcast wrote to counsel for Rembrandt, noting, "it will likely be impossible for us to review every Comcast email that might conceivably be responsive to Rembrandt's document requests. To avoid the extreme and undue burden of reviewing every email, we propose to use search terms to manage email discovery." (Ex. D.) Rembrandt agreed that, in lieu of manually reviewing email, Comcast could perform a keyword search, provided that Comcast would not further cull the results based on Comcast's perception of a document's relevance or irrelevance. This was over three months ago, three months after Rembrandt's initial communication regarding document product, and over a month before the deadline for production. On May 2, 2006, the Court held its scheduling conference in this case. During the conference, Comcast's attorney stated that, "if the scope of the case, after we see the assistance. However, the extreme lateness of Comcast's document production necessitated Rembrandt's motion to compel. 3

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infringement contentions, is particularly broad, broader than I understand it to be now, for example, . . . technically it will be difficult, if not impossible, for us to truly produce all relevant documents by June 16." (Ex. M at 10:5-10.) The Court asked, "are you saying that you believe, based upon your understanding of what the infringement position is, that you can make a good faith effort and will make--and will comply with the requirements of that paragraph on or about June 16th, but that if after seeing the infringement contentions, you may need additional time to produce other documents?" (Id. at 10:18-24.) Comcast's attorney responded, "I think based upon my understanding now, we can come--we can come very close. We may even be able to meet the June 16 deadline." (Id. at 10:25-11:3.) The scope of Rembrandt's infringement contentions, served ten days later, was entirely consistent with Rembrandt's January 29 letter. But Comcast did not meet that deadline, and, significantly, never requested an extension. Several weeks before the deadline to produce documents, counsel for Rembrandt provided a list of proposed email search terms. When Comcast failed to respond, Rembrandt counsel wrote an additional letter on May 25, 2006, seeking to ensure that relevant emails would be produced on time: On Tuesday, we provided a list of proposed search terms for Comcast's email system and users. We are awaiting your proposal regarding the population and databases on which the search terms should run. . . . . Given that under this proposal Comcast would not need to conduct any review of emails for relevance, we expect that such production will be made by Comcast's deadline for producing documents. We are prepared to discuss any remaining issues at your convenience, so that we can ensure timely production of Comcast's email documents. (Ex. E at 1.)2 Having received no response to the May 25, 2006 letter, Rembrandt again wrote on June 5, 2006, stating that Rembrandt "would appreciate hearing back from you as [to] whether Comcast will comply with the Court's Order and produce all documents on June 16th." (Ex. F.) Rembrandt received no response to the June 5, 2006 letter. On June 16, 2006, Comcast produced a set of documents. On June 26, 2006, Rembrandt wrote, asking whether Comcast's production included email documents. "Rembrandt provided a list of search terms weeks ago,

2

Unless otherwise indicated, all emphasis in this brief has been added. 4

1:07-cv-00398-GMS Case 2:05-cv-00443-TJW-CEDocument 187-11 Document 59-1

Filed 06/28/2007 08/01/2006

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and we understood that Comcast would provide a proposal regarding the universe for the search. We have not heard any word from Comcast to date." (Ex. G.) Rembrandt also asked "whether Comcast intends to produce any additional documents as part of a `rolling' production, or whether Comcast completed its production by the Court-ordered deadline." (Id.) Still, no response was forthcoming, and Rembrandt again wrote on July 3, 2006, reiterating these requests. (See Ex. H.) On July 5, 2006, counsel for Comcast finally responded to Rembrandt's repeated requests. Comcast noted that its document production included no results from any keyword search for email. It instead included "only those [e-mails] that were collected as part of the standard document collection process. It does not include e-mails collected electronically by search terms. We are in the process of gathering and sorting e-mails that are responsive to the search terms sent to us earlier by [Rembrandt's counsel]." (Ex. I.) The search terms had been provided on May 23, 2006, a month and a half earlier. (See Ex. E at 1.) In the same letter, Comcast also stated, "we realize that there are likely other relevant, responsive and non-privileged documents that may not have been included in the June production. As with the e-mails, we are in the process of seeking out and producing any such remaining documents." (Ex. I.) As noted above, this occurred almost six months after Rembrandt identified the documents it expected to receive and suggested an early exchange of discovery, and after Comcast responded that no such early discovery was justified, because the deadlines set by the rules "appear to fairly balance the burdens on both the plaintiff and defendant." (Ex. C.) On July 7, 2006, three weeks after the deadline for p