declaration by peter routhier

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TiVo Inc., a Delaware corporation,

Plaintiff, vs.

Verizon Communications Inc., et al.

Defendants.

Miscellaneous Case No. ______________ Pending in the United States District Court for the Eastern District of Texas as Civil Action No. 2:09-cv-257-DF

Declaration of Peter M. Routhier

I, Peter M. Routhier, declare and state as follows:

1. I am an attorney licensed to practice in the State of Minnesota. I am a

member of the law firm Robins, Kaplan, Miller & Ciresi, L.L.P., attorneys of record for

TiVo Inc. in the above-named patent infringement action, and I am familiar with the

various files and records pertaining to this matter. I submit this Declaration in Support

of TiVo’s Motion to Compel the Production of Motorola Source Code.

2. TiVo’s patent action involves digital video recorders and associated

technology and patents, including Verizon’s FiOS digital video recorders. Motorola

manufactured and created part of these products, including some of the source code. As

a result, TiVo has subpoenaed Motorola and I have personal knowledge of the facts and

circumstances surrounding this subpoena and TiVo’s related communications with

Motorola. Attached as Exhibit A is a true and correct copy of part of the subpoena that

Case 2:11-mc-00201-LDD Document 1-1 Filed 07/22/11 of 5

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TiVo served on Motorola that is at issue in this motion, along with the corresponding

affidavit of service.

3. I also have personal knowledge of the facts and circumstances

surrounding TiVo’s communications with Verizon about Motorola’s source code.

Verizon has represented that it cannot produce the Motorola source code at issue in this

motion. It did so in the attached Exhibit B, which is a true and correct copy of a letter

from Kiran Raj to Loren Hansen, dated December 10, 2010. Verizon has more recently

indicated (in telephone calls) that it does not have in-depth knowledge about

Motorola’s source code.

4. Motorola initially made two versions of its source code available to TiVo

in March 2011. According to Motorola, these two versions together represent Motorola’s

most recently deployed source code for Verizon’s FiOS DVRs. Once TiVo had the

opportunity to review these versions of source code, Verizon’s related source code, and

documents produced by both Verizon and Motorola, it became apparent to TiVo that

there were many more versions of Motorola source code that would need to be

analyzed in this case. As such, on April 15, my colleague Lauren Galgano sent a letter to

Brian Erickson, counsel for Motorola, requesting all the versions of Motorola source

code. A true and correct copy of that letter is attached as Exhibit C.

5. Motorola replied to TiVo’s request in an April 25 letter from Brian

Erickson to Lauren Galgano. A true and correct copy of that letter is attached as Exhibit

D. In his reply Mr. Erickson indicated that, despite producing only two versions of the

Motorola source code, Motorola considered its production to be complete.


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6. In May TiVo issued a new subpoena to Motorola in order to eliminate all

doubt regarding the scope of TiVo’s requests. A true and correct copy of that subpoena

is the attached Exhibit A.

7. Attached as Exhibit E is a true and correct copy of a letter from myself to

Brian Erickson dated June 20, memorializing a telephone call we had that day. On June

20 Mr. Erickson told us that Motorola was not withholding any documents based on its

objections, that it was in the process of making its collection, and that it should be able

to make a complete production by the end of the following week: July 1. On that call

Mr. Erickson also promised to send us a list of the versions of software that Motorola

was collecting for production so that TiVo could understand how many versions there

were and what it could do to reduce the burden on Motorola. Motorola still has not sent

that list of software versions.

8. On July 5 TiVo received a package from Motorola that included a letter

and a disc containing Motorola’s document production. Attached as Exhibit F is a true

and correct copy of that letter, from Brian Erickson and addressed to Lauren Galgano,

dated July 1. This document production did not include any source code.

9. Before Motorola made this supplemental document production, and

throughout the month of June, I repeatedly contacted Mr. Erickson to request that

Motorola either comply with TiVo’s subpoena by producing all of its source code, or

that Motorola work with TiVo to find a way to reduce the need to produce all these

versions. Some of that correspondence is contained in Exhibit G, which is a true and

correct copy of an email chain between myself, Brian Erickson, and my colleague


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Michael Collyard, with the most recent email dated June 16, 2011. As that email chain

demonstrates, I made several calls and emails to Brian Erickson that were not returned.

We diligently attempted to work with Motorola throughout the month of June, and

made several requests that went unanswered.

10. After repeated attempts to contact Mr. Erickson he finally replied,

scheduling a meet and confer by telephone for 1:00 PM CST on June 16. On that date

and time myself and my colleagues Michael Collyard and Brock Specht called into the

conference line shortly before 1:00 PM CST. We waited about ten minutes but Brian

Erickson did not call in, so I sent Mr. Erickson a brief email asking if he still planned to

join us for our scheduled meet and confer. He did not reply. After waiting over twenty

minutes for Mr. Erickson to attend the scheduled meet and confer it became apparent

that he would not be attending and so we left the line. I then sent him a follow-up

email, indicating that we had waited for him and were still willing to meet and confer if

he would like to work with us. These communications are in the attached Exhibit G.

11. On July 5 my colleague Lauren Galgano replied by email to Mr. Erickson’s

letter dated July 1. She indicated our disagreement with Motorola’s contention that the

production of additional source code would be premature. We requested a full

production by the end of the week. A true and correct copy of this email is attached as

Exhibit H.

12. On July 7 (the end of the week) we still had not heard back from Motorola

and so I sent another email to Brian Erickson. A true and correct copy of that email is

attached as Exhibit I. I told Mr. Erickson that we were concerned that Motorola had not


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engaged with us and that, although we would like to work with Motorola, we would

have no choice but to file a motion to compel if they would not cooperate.

13. On July 11 (the beginning of the following week) Mr. Erickson replied to

me by email. A true and correct copy of his reply is attached as Exhibit J. In this reply

Mr. Erickson indicated that it was still Motorola’s position that the production of

additional source could would be “premature,” and that “there does not appear to be

any need in the short term” for its production.

14. Following that email my colleague Michael Collyard and myself made

several attempts to reach out to Mr. Erickson to resolve this dispute. I sent an email

requesting a telephone call on July 12. I sent a follow-up email on July 15. I indicated

our willingness to work with Motorola and our concerns that he would not get back to

us in a timely manner. I also noted that TiVo did not agree with Motorola’s contention

that a source code production would be premature. A true and correct copy of these

emails are attached as Exhibit K. On July 18 my colleague Michael Collyard also tried to

contact Mr. Erickson regarding these matters. He left Mr. Erickson a voicemail but I

understand that Mr. Erickson never replied.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: July 22, 2011.

By: /s/ Peter M. Routhier

Peter M. Routhier


declaration by peter routhier

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