Free Declaration in Support - District Court of California - California

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F ENWICK & W EST LLP
ATTORNEYS AT LAW SAN FRANCISCO

LAURENCE F. PULGRAM (CSB NO. 115163) [email protected] JEDEDIAH WAKEFIELD (CSB NO. 178058) [email protected] ALBERT L. SIEBER (CSB NO. 233482) [email protected] LIWEN A. MAH (CSB NO. 239033) [email protected] FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 Attorneys for Named Defendants SUN MICROSYSTEMS, INC., MICHAEL MELNICK, JULIE DECECCO, MICHAEL P. ABRAMOVITZ, LISA K. RADY, and JONATHAN SCHWARTZ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. DONGXIAO YUE, Plaintiff,

Case No. C-07-05850-MJJ DECLARATION OF JEDEDIAH WAKEFIELD IN SUPPORT OF DEFENDANTS' MOTION FOR ATTORNEYS' FEES AND COSTS Date: Time: Dept: Judge: April 22, 2008 9:30 a.m. TBD TBD

STORAGE TECHNOLOGY CORPORATION, a Delaware corporation; SUN MICROSYSTEMS, INC., a Delaware corporation; MICHAEL MELNICK, an individual; JULIE DECECCO, an individual; MICHAEL P. ABRAMOVITZ, an individual; LISA K. RADY, an individual; JONATHAN SCHWARTZ, an individual; and DOES 1-1000, inclusive, Defendant.

I, Jedediah Wakefield, declare as follows: 1. I am an attorney admitted to practice before this Court, and I am a partner at the

law firm of Fenwick & West LLP ("Fenwick"), counsel for named Defendants Sun Microsystems, Inc., Storage Technology Corporation, Michael Melnick, Julie DeCecco, Michael
WAKEFIELD DECL. ISO MOTION FOR ATTORNEYS' FEES AND COSTS CASE NO. C-07-05850-MJJ

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P. Abramovitz, Lisa K. Rady, and Jonathan Schwartz. I have personal knowledge of the facts set forth in this declaration, and if called to testify I could and would testify competently to the same. 2. Attached hereto as Exhibit A is a true and correct copy of an e-mail exchange

between Plaintiff Dongxiao Yue ("Plaintiff") and my colleague, Laurence F. Pulgram. Among others, I was also included on both Plaintiff's original e-mail and Mr. Pulgram's response, as was Vonnah M. Brillet, counsel for Netbula, LLC in the related case of Netbula, LLC v. Storage Technology Corporation, Sun Microsystems, Inc., et al., Case Number C-06-07391-MJJ (N.D. Cal.) ("STK I"). This e-mail exchanged was also filed with the Court on December 5, 2007, as part of Exhibit B to the Declaration of Dongxiao Yue in Support of Plaintiff's Motion to Substitute Party as to the Copyright Claim in the STK I case. See STK I Docket No. 99. 3. Attached hereto as Exhibit B are true and correct copies of excerpts from the

October 23, 2007 deposition of Sun's Rule 30(b)(6) witness, Michael Abramovitz, in the STK I case, in which he testifies regarding the removal of the licensed Netbula software from StorageTek's products in late 2005. As indicated on Page 3 of the document, Plaintiff was present at this deposition. The transcript of Mr. Abramovitz's deposition was filed in its entirety as part of Plaintiff's declaration in support of Netbula's Opposition to Defendants' Motion for Summary Judgment in STK I. See Netbula-Sun Docket No. 107 Ex. 44. 4. Fenwick is a firm of over 250 attorneys which specializes in providing legal

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services for technology companies. The firm's Litigation Group has extensive experience and expertise in handling disputes for technology companies in the areas of copyrights, patents, trade secrets, trademarks, securities, antitrust, employment, tax, and complex commercial litigation. The hourly rates charged by Fenwick are set so as to be comparable to and competitive with rates generally charged by other full service San Francisco Bay Area law firms for attorneys of similar experience. 5. Defendants have incurred fees and costs well in excess of $92,000 in this case. Id.

This includes fees for time spent (1) reviewing and analyzing the original Complaint and First Amended Complaint filed in this action and assessing potential defenses, (2) participating in case management activities, including preparation of a case management statement, and attending the
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case management conference, (3) communications with clients, Mr. Yue, and opposing counsel; (4) assessing issues pertaining to service of process on the individual defendants under Colorado and California law, (5) reviewing and responding to Plaintiff's Motion for Entry of Default Judgment; (6) researching, analyzing and drafting Defendants' Motion to Dismiss; (7) reviewing Plaintiff's Opposition to Defendants' Motion to Dismiss and researching and preparing a Reply; (8) reviewing Plaintiff's Motion to Strike and researching and preparing a response; and (9) preparation of the instant motion. This sum does not include time spent preparing Defendants' Motion for Sanctions or their Reply in support of that motion. It also does not include fees that, while reasonably incurred in Sun's defense, were not necessary to comply with Court imposed deadlines, respond to the Complaint, and obtain the dismissal and judgment. 6. Attached hereto as Exhibit C is a spreadsheet containing detailed billing records

substantiating the above summary. The spreadsheet shows the attorney or paralegal performing the work, the time spent and applicable billing rate, the time billed and resulting fees charged. It also shows expenses incurred. These records have been redacted to exclude entries for which Defendants are not seeking fees or costs in this Motion. It has also been redacted to protect the confidential attorney-client communications. 7. I expect that Defendants will incur significant additional fees in reviewing

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Plaintiff's Opposition to this Motion, preparing a Reply, and preparing for and attending a hearing on this Motion. Defendants expect to submit a further declaration detailing these further fees and expenses. I declare under penalty of perjury that the foregoing is true and correct. Executed in San Francisco on March 18, 2008.

/s/ JEDEDIAH WAKEFIELD Jedediah Wakefield

25689/00405/LIT/1282093.1

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EXHIBIT A

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From: Sent: To: Cc:
Subject:

Laurence Pulgram Monday, October 29, 2007 4:35 PM '[email protected]' [email protected]; Jedediah Wakefield; Albert Sieber; Liwen Mah; [email protected]; [email protected] RE: Netbula's motion for substitution of party as to the copyright claim

Dear Mr. Yue, I am responding to you individually, and copying Netbula's counsel, because I understand that you are threatening to file a new action in your individual capacity, in which you are, and intend to remain, unrepresented by counsel. If I a m incorrect in these assumptions, I request that you and/or Ms. Brillet advise me. As promised, this is my response to your request for a stipulation that you be allowed to join as a party plaintiff in the Netbula v. StorageTek action. Sun's position is as follows . First, we do not believe that you are an appropriate plaintiff to enforce Netbula's copyrights. Our position in this regard will be fully spelled out in our filing on Tuesday opposing your request to be substituted as a plaintiff in the Sun action. (We have cited a couple of cases in the MAR filed on Friday, but that is just to advise the court of the issue, not to argue it in full). To the extent that you are not an appropriate plaintiff in the existing action by Netbula against Sun, you would be equally inappropriate in any new action that you may intend to file as Netbula's assignee. Second, in the event that the Court disagrees with Sun's position in this regard and concludes that you could be an appropriate plaintiff, in that situation it would be highly inappropriate for you to commence a separate lawsuit about the same subject. You have already attempted to substitute in the Sun action, and to intervene there. Commencing a separate lawsuit would unnecessarily proliferate litigation, at least if the claims that you wish to raise are of a subject matter and causes of action duplicative of the existing action. Sun cannot imagine just what claims it is that you wish to add, and therefore cannot tell you whether or not they must be joined in the present lawsuit (assuming that you are entitled individually to raise such claims at all, which we believe we are not). Therefore, please advise what those purportedly new claims would be, so I can respond to them. Indeed, it is customary, before requesting a party's consent to amendment of claims, to provide a copy of the proposed amendments. Third, before you commence any threatened new action, it is incumbent upon you to wait until Judge Jenkins has ruled on your pending requests for intervention and substitution. It is wholly inappropriate in such circumstances to commence yet another action after having presented the currently pending motions to Judge Jenkins. Further, any effort to seek a TRO or other preliminary relief in a second action would be entirely inappropriate, given not only the ruling on the TRO by Judge Zimmerman, but also the fact that you have personally already requested preliminary relief in your now pending motion to intervene in the existing Sun case. We therefore suggest that you consider the consequences very seriously before filing such inappropriate pleadings--and obtain the advice of qualified counsel before you do so. Magistrate Judge Chen's ruling should have demonstrated that filing unwarranted motions is a serious matter and has very real consequences.
I realize, of course, that I cannot keep you from filing with the Court whatever it is that you choose to file. It only costs a few hundred dollars to commence a lawsuit that could cost thousands to defend, and which Sun would seek to recover from you personally thereafter. I therefore reiterate the importance of your obtaining counsel as to all the consequences before you act.

Sincerely, Laurence Pulgram

----- Original Message-----

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From: [email protected] [mailto:[email protected]] Sent: Friday, October 26, 2007 11:56 AM To: Laurence Pulgram CC: [email protected]; [email protected]; Jedediah Wakefield; Albert Sieber; Liwen Mah; [email protected]; [email protected] Subject: Netbula's motion for substitution of party as to the copyright claim Dear Mr. Pulgram, Mr. Wakefield, Mr. Mah and Mr. Sieber,
I a m writing to seek a stipulation regarding Netbula's substitution of party as to the copyright claim filed in the Nebula v. StorageTek case. As the copyright owner of the relevant software and related claims, I am about to assert additional claims against StorageTek. This can be done via an amended complaint in the C06-07391-MJJ case, or I can file a new separate infringement action and move to relate/consolidate the new action to the current action.

For judicial economy, I think it's far efficient for you to stipulate to the substitution of party by replacing Dongxiao Yue as the copyright plaintiff in the C06-07391-MJJ case. If you do not stipulate to the substitution, 1 will commence the new action next week. Kind regards, Don Yue

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EXHIBIT B

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MICHAEL ABRAMOVITZ

10/23/07
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NETBULA, LLC, a Delaware limited liability company, Plaintiff,

STORAGE TECHNOLOGY CORPORATION, a Delaware corporation; SUN MICROSYSTEMS, INC., a Delaware corporation; INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation; EMC CORPORATION, a Massachussetts corporation; VERITAS SOFTWARE CORPORATION, a Delaware corporation; DARDEN RESTAURANTS, INC., a Florida corporation; and DOES 1-100, inclusive, Defendants. AND RELATED COUNTER-CLAIMS.

30 (b)(6) DEPOSITION OF MICHAEL ABRAMOVITZ San Leandro, California Tuesday, October 23, 2007

Reported by: TRACY L. PERRY CSR No. 9577 JOB No. 75688

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MICHAEL ABRAMOVITZ

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NETBULA, LLC, a Delaware limited liability company, Plaintiff,

STORAGE TECHNOLOGY CORPORATION, a Delaware corporation; SUN MICROSYSTEMS, INC., a Delaware corporation; INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation; EMC CORPORATION, a Massachussetts corporation; VERITAS SOFTWARE CORPORATION, a Delaware corporation; DARDEN RESTAURANTS, INC., a Florida corporation; and DOES 1-100, inclusive, Defendants. AND RELATED COUNTER-CLAIMS.

30 (b)(6) Deposition of MICHAEL ABRAMOVITZ, taken on behalf of Plaintiff, at 2777 Alvarado Street, Suite E, San Leandro, California, beginning at 11:lO a.m. and ending at 12:40 p.m., on Tuesday, October 23, 2007, before TRACY L. PERRY, Certified Shorthand Reporter No. 9577.

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MICHAEL ABRAMOVITZ

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APPEARANCES:

.

FOR PLAINTIFF: LAW OFFICES OF VONNAH M. BRILLET BY: VONNAH M. BRILLET Attorney at Law 2777 Alvarado Street, Suite E San Leandro, California 94577 510-351-5345 [email protected] FOR DEFENDANTS STORAGE TECHNOLOGY CORPORATION, SUN MICROSYSTEMS, INC., EMC CORPORATION, VERITAS SOFTWARE CORPORATION, DARDEN RESTAURANTS, INC., AND THE WITNESS: FENWICK & WEST, LLP BY: LAURENCE PULGRAM Attorney at Law 555 California Street, 12th Floor San Francisco, California 94104 415-875-2300 [email protected] For IBM CORPORATION: QUINN, EMANUEL, URQUHART, OLIVER & HEDGES BY: STACY M. MONAHAN Attorney at Law 50 California Street, 22nd Floor San Francisco, California 94111 415-875-6314 [email protected]

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MICHAEL ABRAMOVITZ
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A

For the ISVs, we provide them with what we call The

the LibAttach integrators kit or integrators pack. terms seemed to be used interchangeably within the company.

Now, the integrators pack contains some live files and some header files that allow the integrators to then link into LibAttach and make use of LibAttach services.
Q

Did ISVs have the right to further distribute

the LibAttachprograms to their customers? A
Q
I don't know.

Did you have field test sites -- I'm sorry. Did StorageTek have field test sites?

A

I know some were talked about, but I don't know

if it ever happened.
Q

Okay.

Who were the StorageTek people

responsible for monitoring and accounting for LibAttach licenses? A
Q

I don't know. So that was not in your department? That was not in my department.

A

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MICHAEL ABRAMOVITZ

ukay.

So t h a t was b e f o r e i t r e p l a c e d t h e REELS

i n November o f
A

'05?
What d o e s t h a t h a v e t o do w i t h

I ' m sorry?

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MICHAEL ABRAMOVITZ

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Page 44

y

ukay.

When was the last time that StorageTek or

its resellers or ISVs sold a copy of the LibAttach 1.1 to

1.4?
MR. PULGRAM: THE WITNESS: BY MS. BRILLET:
Q

No foundation. I don1t know.

What's the functionality of the LibAttach

integrators kit? A That allows our partners, the ISVs, to

programmati.cally talk to our library control software via the ACSAPI.
Q

How does a customer use the LibAttach

integrators kit? A
Q

The customer does not. Oh, okay. What's the difference between the LibAttach and

the LibAttach integrators kit? A The integrators kit contains some header files

and some library files that when an ISV is writing their application, they need to import those files in order to

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1

have access to the ACSAPI and have access to LibAttachls services.
Q

2
3 4

How many version of the LibAttach integrators

kit are there? A The LibAttach integrators kit is versioned with

5

6
7
8

the same version numbers as the standard LibAttach.
Q

Okay.

Go to Exhibit 70.

Sorry.

I'm out of

order with the exhibit numbers. MR. PULGRAM: BY MS. BRILLET:
Q

9

Okay.

10
11

Do you recognize this document? Yes. What is it? This was the count of products that were sold -Okay.
-- using the REELS and LibAttach.

12

A
Q

13
14

A
Q

15
16

A
Q

17
18
19

The far left-hand column is titled "CEI."

What

does that mean? MR. PULGRAM: THE WITNESS: BY MS. BRILLET:
Q

No foundation.

2o

I don't know.

21
22

Okay.

You said that the LibAttach integrators

23
24

kit that goes along with the LibAttach program itself -does the LibAttach integrators kit version -- do they include the Netbula software files?
i

25

s i r r * 7 n

'

i

i

h

w

%

&

d ,

I

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A

They -Vague and ambiguous. They include the runtime files.

MR. PULGRAM: THE WITNESS: BY MS. BRILLET:
Q

Were Netbula header files included in the

LibAttach integrators kit? A
Q

No. Did the LibAttach integrators kit use the

Netbula RPC server functionality? A
Q

No. Model number 1191NL1, is that the model number

for the integrators kit? A
Q

Yes. Okay. Do you know which companies purchased the

LibAttach integrators kit? A
Q

Idon't. Were there trial versions of the LibAttach

integrators kit available? A
Q

No. Could you get the integrators kit without

getting just the straight LibAttach 1.1 to 1.4? MR. PULGRAM: THE WITNESS: BY MS. BRILLET:
Q

Objection; no foundation. I don't know.

Besides REELS, LibAttach, the LibAttach

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integrators kit, were there any StorageTek products that used the Netbula software? A
Q
5

No. Did StorageTek use Netbula software in any other

products, including unfinished ones?

A
Q

None that I'm aware of. Okay. When StorageTek stopped using the Netbula

software in the fourth quarter of '05, did StorageTek
9

keep cop -- backup copies for the software that was deleted? MR. PULGRAM: THE WITNESS: BY MS. BRILLET:
Q

Vague. I'm sorry. The question again.

Mrn-hmm.

When StorageTek stopped using the

Netbula software in the fourth quarter of 2005, did StorageTek keep any backup copies of the Netbula software? A Netbula.
Q

We kept the original CDs that we received from

Okay.

But no backups?

A
Q

No backups. Okay. Did StorageTek communicate to its

customers that it was replacing the Netbula software in its products? MR. PULGRAM: Vague and -- I'm sorry. No

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