BlueRadios, Inc. v. Kopin Corporation, Inc

Second MOTION to Compel to Defendant Kopin Corporation, Inc.

D. Colo.February 25, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-02052-JLK BLUERADIOS, INC., a Colorado corporation, Plaintiff, v. KOPIN CORPORATION, INC., a Delaware corporation, Defendant. PLAINTIFF BLUERADIOS, INC.'S SECOND MOTION TO COMPEL TO DEFENDANT KOPIN CORPORATION, INC. Plaintiff BlueRadios, Inc. ("BlueRadios") seeks an order compelling Defendant Kopin Corporation, Inc. ("Kopin") to fully and completely supplement its Fed. R. Civ. P. 26(a)(1) Disclosures and Responses to BlueRadios' Interrogatories and Requests for Production and for other relief as set forth below (the "Motion"): I. D.C.COLO.LCIVR 7.1(A) CERTIFICATE OF CONFERRAL Pursuant to D.C.COLO.LCivR 7.1(a), counsel for BlueRadios have addressed the issues raised in this Motion with current (and, as noted below, with prior) counsel for Kopin on several occasions. On February 15, 2019, counsel for BlueRadios provided a draft of this Motion to counsel for Kopin. On February 19, 2019 counsel for Kopin requested a conference call on February 21 or 22 to discuss the Motion. Counsel for BlueRadios agreed to delay filing the Motion to accommodate counsel for Kopin's request. Counsel for BlueRadios initially Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 1 of 30 2 confirmed that a call late Thursday afternoon during the time block suggested by Kopin would work and requested a written document outlining any issues Kopin had. Kopin's counsel then communicated that late Thursday afternoon would not work. Thereafter, counsel for BlueRadios confirmed that a call could occur any time on Friday including during the block of time Kopin's counsel stated they would be available. On the afternoon of February 22, Kopin's counsel emailed the undersigned stating that he was out of the office and would not be available for a call. On Monday afternoon (February 25), counsel for Kopin and BlueRadios held a 45-minute conversation and discussed the relief requested in and the basis for this Motion. During the conversation, counsel for Kopin revealed that the computer used by Mr. Pombo while he was employed by Kopin had been located, was being reviewed, and a supplemental production may be forthcoming. Counsel also indicated that Mr. Jacobsen would be searching his personal email account and that a supplemental production may be forthcoming. Despite filing of this Motion, BlueRadios will continue to be available to work in good faith with Kopin's counsel to resolve the issues raised by this Motion. II. BACKGROUND AND INTRODUCTION At the request of BlueRadios, the Court has addressed Kopin's discovery deficiencies on several previous occasions, including at the September 15, 2017 Status Conference and the April 6, 2018 Hearing on BlueRadios' First Motion to Compel filed November 30, 2017 ("First Motion to Compel," ECF No. 58). The First Motion to Compel provides a recitation of the relevant law and rules of evidence, which BlueRadios applies to this Motion. The background and analysis set forth in the First Motion to Compel are equally applicable to this Motion. Accordingly, in the interest of judicial economy and efficiency, the First Motion to Compel is incorporated herein by this reference. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 2 of 30 3 From an overall perspective, BlueRadios asserts that BlueRadios and Kopin entered into a collaborative venture in 2007 known as Project Golden-i. Pursuant to the Agreement between Kopin and BlueRadios, executed in 2007, and the Amendment to that Agreement, executed in 2008, BlueRadios licensed its pre-existing intellectual property to Kopin to use in Project Golden-i, and BlueRadios and Kopin agreed that they would jointly own any intellectual property created thereafter as part of Project Golden-i. As alleged in this lawsuit, thereafter, Kopin took action to benefit Kopin at the expense and to the detriment of BlueRadios. By way of example, the Court recently, on joint motion of the parties, corrected the inventorship (and, hence, ownership) of two patents that Kopin obtained listing only employees of Kopin as inventors. (ECF No. 125.) At the outset of this lawsuit, Kopin took the position that BlueRadios was only involved in Generations 1 and 2 of Golden-i and, therefore, Kopin did not need to disclose anything about Golden-i products, Golden-i intellectual property or Kopin's monetization stemming from Golden-i intellectual property. (See, e.g., Declaration of David B. Seserman ("Seserman Decl."), ¶ 3, Ex. 1, 8:3-8.) BlueRadios brought Kopin's self-limiting scope of discovery to the attention of the Court, and during the Status Conference on September 15, 2017, the Court stated: ". . . the Golden Eye product and all of its progeny are discoverable." (Id., 10:9-11.) The Court later admonished counsel stating: "I'm not about to have a case where the scope of discovery is managed by a firm that isn't of record in the case and I'm certainly not about to tolerate a party litigant deciding what's relevant and what isn't." (Id., 12:20-24.) Later during the conference, Kopin's counsel asked: "On the future Golden Eye technology, the future generations, your comment was that to the extent that we have information on that in the request that we should provide it, correct?" (Id., 13:12-15.) The Court responded: "Yes, the future technology of Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 3 of 30 4 Golden Eye technology and things of which it's been used as a basis and the way it's been modified by your client to do something else, these new patents that are applying, those are discoverable. If that – if they can trace that to their original, dare I say in quotes, joint venture of both the plaintiff and the defendant in this case, and if it comes out of that and it's traceable, it's discoverable." (Id., 13:19-14:1.)1 Several weeks later, on November 30, 2017, to address Kopin's continued discovery deficiencies, BlueRadios filed the First Motion to Compel. (ECF No. 58.) On April 6, 2018, this Court held a hearing on the First Motion to Compel. (ECF No. 106.) Initially, the Court noted that "BlueRadios' motion to compel seeks production of information relating to all Golden-i progeny and all wireless head mounted displays, HMDs as they are called in the briefing." (Seserman Decl., ¶ 5, Ex. 3, 3:11-14.) At the conclusion of the hearing, the Court ruled from the bench and ordered and reiterated that Kopin could not limit its discovery responses to Generations 1 and 2 of Golden-i; rather, Kopin (and by extension the scope of discovery) needed to produce documents and data related to Golden-i and all its progeny: At the September 15, 2017 status conference I indicated that the Golden-i product and all of its progeny are discoverable. In its motion to compel, BlueRadios equates Golden-i progeny with all wireless HMDs. That is not an unreasonable position to take. This position rests on BlueRadios' assertion that Kopin had never offered wireless technologies before its collaboration with BlueRadios, meaning that any 1 In the Rule 30(b)(6) notice to Kopin, BlueRadios blended the definitions used by Kopin in various publications and defined the terms "Golden-i Technology" and "Golden-i Intellectual Property" as referring "to the technology and intellectual property developed for or incorporated into a wearable computing device with hand free, voice, and/or gesture activated command and control and related to, used in, disclosed, and/or developed by either party prior to or pursuant to the NDA, the Contract, the Contract Addendum, and any other technology used in HMD devices, including, but not limited to, products identified as 'Golden-i', including patent applications (whether abandoned or pending), issued patents and technology that has not been patented, and includes hardware, software, firmware and electronic design files." (Seserman Decl., ¶ 4, Ex. 2, p. 5, ¶ 9.) Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 4 of 30 5 subsequent Kopin wireless HMDs, whether developed directly with BlueRadios or not, necessarily incorporate technology that stems from the parties' original Golden-i collaboration. The nature of BlueRadios' claims against Kopin makes it relevant for BlueRadios to know all of the details of Kopin's subsequent wireless HMD ventures. Whether the HMDs are manufactured, produced, or sold by Kopin itself or in conjunction with a third party is an unimportant distinction. The only necessary inquiries ought to be, and they are, whether the product is or includes a wireless HMD and whether Kopin contributed technological know-how to the product's design and development. Any information that meets both of those criteria is relevant to the case for the purposes of discovery, and accordingly I grant BlueRadios' motion to compel production of information related to all Golden-i progeny. (Id., 13:20-14:17.) In sum, I grant BlueRadios' motion to compel and direct Kopin to produce information related to the Golden-i product and all of its progeny. Kopin shall make reasonable efforts to assist BlueRadios' counsel in navigating the existing production and produce any additional relevant materials related to its wireless HMDs which were not included in the existing production. (Id., 16:4-10.) Three days after the April 6, 2018 hearing, Joshua M. Dalton and Lawrence T. Stanley, Jr. of the firm Morgan, Lewis & Bockius LLP ("Morgan Lewis") entered their appearance on behalf of Kopin and became lead counsel (ECF Nos. 107 and 108, respectively), and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ("Ogletree"), which remains counsel of record for Kopin, ceased any active role in the litigation. Despite the Court's Order and the change of counsel, Kopin has continued to limit its disclosures and production, taking the position that the progeny of Golden-i does not contain Golden-i Project intellectual property. (See, e.g., Seserman Decl., ¶ 6, Ex. 4 , pp. 15-16 (Response to Interrog. No. 17).) Interestingly, in those responses, Kopin admits that its prior assertion that the jointly-developed intellectual property was only used in Generations 1 and 2 of Golden-i was inaccurate (in response to Interrogatory No. 1, Kopin admits "Defendant states that technology that was developed during the course of Kopin's limited Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 5 of 30 6 engagement with BlueRadios for a monocular wireless video display was incorporated into Golden-i Generations 1, 2, 3, 3.5, 3.8, and 4"). (Id., p. 5 (Response to Interrog. No. 1).) However, Kopin has continued to take a very restrictive view in discovery of what Golden-i intellectual property and Golden-i products are. For instance, Kopin asserts that a product Kopin calls Golden-i Infinity is not a Golden-i (id., p. 5 (Response to Interrog. No. 1); ¶ 7, Ex. 5, 80:6- 7, 135:8-25), and, yet, the product is branded and sold with the same registered trademark Golden-i logo on it. The situation is compounded by Kopin's extremely short document retention policy. According to Richard Sneider, one of Kopin's designated Fed. R. Civ. P. 30(b)(6) witnesses, Kopin has an unwritten document retention policy, described as more of a guideline by Mr. Sneider, in which documents and data could be destroyed after six months. (Seserman Decl., ¶ 7, Ex. 5, 25:2-26:6, 27:3-28:11.) Mr. Sneider, himself, does not comply with the document retention policy. (Id., ¶ 8, Ex. 6, 71:7-72:7.) Nor does he know if Simpletonian complied with Kopin's six-month document retention policy. (Id., 72:11-15.) Mr. Sneider does not know if Kopin emails are backed up. (Id., 42:22-25, 71:13-72:13, 72:11-15.) In order to address Kopin's contention that it is not monetizing Golden-i intellectual property and BlueRadios' inventive contributions are not incorporated into HMD products for which Kopin is compensated by third parties, BlueRadios needs to develop and present admissible and credible testimony explaining how the Golden-i Project intellectual property is being monetized by Kopin. Without full and complete disclosure of the ways in which Kopin is monetizing Golden-i Project intellectual property (e.g., licensing agreements, research and development agreements, equity transactions, sales of micro displays, royalty payments), and, perhaps, more importantly, the communications (the vast majority of which should be expected Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 6 of 30 7 to be in emails) regarding those contracts (e.g., letters of intent, projections, contract terms and communications about those terms) as well as the disclosure of the technical specifications and/or sample products of head mounted display products that Kopin is involved with, BlueRadios will be not only challenged, but according to potential expert witnesses, effectively precluded from being able to present credible evidence proving that certain products and uses read on Golden-i intellectual property and quantifying the damages BlueRadios is seeking. III. ANALYSIS A. Kopin Failed To Conduct An Adequate Search For Responsive Documents And Data As a starting point, since Morgan Lewis took over as counsel for Kopin, Kopin has produced over 150,000 documents. A significant portion of the documents produced since Morgan Lewis became counsel of record consists of a complete reproduction of the documents previously produced by Ogletree. While, at first blush, 150,000 appears to be a large number, the number of documents produced by Kopin needs to be considered in perspective. A significant portion of the documents are duplicative. Further, given the time span and the number of individuals and third-parties involved with the Golden-i project, 150,000 is a relatively small number and, as set forth below, is the result of a deficient search and production. Kopin conducts business internationally. Kopin's senior executives routinely travel for work and communicate via email. Contracts Kopin enters into are negotiated via email. (Seserman Decl., ¶ 8, Ex. 6, 67:4-13.) Jeff Jacobsen, the project lead for Golden-i, has lived on the West Coast during his entire tenure with Kopin. Since its inception, Kopin has been headquartered in Boston. Consequently, a main method of communicating both internally and Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 7 of 30 8 externally at Kopin has been and continues to be email. Accordingly, there should be a large volume of emails produced by Kopin in this lawsuit, but that has not taken place. None of the four individual Kopin executives whose depositions were taken by BlueRadios (John Fan, the CEO; Richard Sneider, the CFO; Hong Choi, the CTO; and Jeff Jacobsen, the assistant to Mr. Fan and manager of the Golden-i project) were directly involved in the search for documents and data that were required by the Federal Rules of Civil Procedure to be produced or in the discovery production. Of note, Mr. Jacobsen and Mr. Sneider were also the Rule 30(b)(6) witness designees for Kopin.2 Kopin has admitted that its legal hold was limited to documents and data containing the term "BlueRadios." By extrapolation, Kopin has acknowledged that it limited its document and data search to requesting one of its two outside IT vendors (Simpletonian) to search for documents and data containing the term "BlueRadios" and reviewing an old laptop computer used by Mr. Jacobsen until 2011-2012. (Id., ¶ 8, Ex. 6, 20:3- 21:17; ¶ 7, Ex. 5, 38:7-15.) The computer Mr. Jacobsen has used since 2011-2012 was not reviewed. (Id., ¶ 9, Ex. 7, 157:16-24.) Surprisingly, Kopin apparently failed to even search its own file room. (Id., ¶ 8, Ex. 6, 64:9-65:5.) After his individual deposition, but before he testified as a Rule 30(b)(6) witness, Mr. Sneider directed Mr. Fan's secretary to search for certain contracts in the file room and to provide copies of those to Mr. Sneider. The documents that were copied were reviewed by Mr. Sneider and provided to Kopin's counsel. However, no supplemental production was made by Kopin. (Id., ¶ 7, Ex. 5, 41:20-44:20.) Kopin apparently 2 The two Rule 30(b)(6) witnesses designated by Kopin were Jeffrey Jacobsen, the senior advisor to Kopin's CEO and the Golden-i Project Head, and Richard Sneider, Kopin's CFO. Mr. Jacobsen acknowledged that other than meeting with Kopin's attorneys the day before the Rule 30(b)(6) deposition, he did nothing to prepare for his Rule 30(b)(6) deposition. (Id., ¶ 10, Ex. 8, 8:3-8.) Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 8 of 30 9 failed to search the physical computers used by its executives whose depositions were taken in this matter. (Id., 31:18-36:14.) Mr. Sneider was not, nor seemingly were any of the Kopin executives, involved in discovery and disclosure in this case. Mr. Sneider testified that his role was that he connected attorneys with Simpletonian. (Id., ¶ 8, Ex. 6, 19:8-13.) Mr. Sneider does not know what Simpletonian did to comply with litigation hold procedures, nor does he know what Simpletonian did to implement the litigation hold that Kopin first put in place in 2016. (Id., 20:3-21:17.) For example, Mr. Jacobsen lives on the West Coast and has consistently, over the years, used his personal email (luckyjranch@aol.com) for business purposes. (Id., ¶ 10, Ex. 8, 13:24- 14:17.) That account appears not to have been reviewed by Kopin as part of its discovery obligations. (Id., 14:18-15:1.) Similarly, as shown by emails sent to BlueRadios and produced by BlueRadios in this case, Mr. Fan has periodically used several personal emails addresses, including johnccfan@gmail.com and johnfan@gmail.com to conduct Kopin business. Yet Mr. Fan's personal email accounts appear not to have been searched by Kopin and its counsel in this case. Likewise, Mr. Sneider (who was also a Kopin Rule 30(b)(6) representative) acknowledged his business Outlook email account was never reviewed as part of the discovery in this case. (Id., ¶ 8, Ex. 6, 32:5-16.) Mr. Sneider testified that the emails on his computer were not searched. (Id., 67:20-22, 70:8-71:1.) Kopin's failure to adequately search for emails is evidenced by the paucity of emails produced. Kopin has produced very few internal emails among and between only employees of Kopin regarding Golden-i and BlueRadios, much less regarding the Golden-i project and companies other than BlueRadios. As early as 2008, there were emails regarding the "BlueRadios problem"; however, there are relatively few internal emails that discuss the issues. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 9 of 30 10 Kopin has produced only a small number of emails after 2010 and has produced almost no emails after 2012. This is likely due to not only searching limited storage devices, but also its failure to utilize and provide search protocols that produce all requested and relevant emails. In his deposition, Mr. Sneider confirmed that a litigation hold was not implemented by Kopin until late 2016, after this lawsuit was filed. (Id., ¶ 7, Ex. 5, 27:3-28:20.) Startlingly, the litigation hold was very narrow. Kopin instructed its employees to place a hold on documents associated only with the term "BlueRadios." (Id., 38:5-15.) Remarkably, no litigation hold was ever placed on documents related to the Golden-i project. (Id.) Kopin also has had an informal document retention policy calling for the destruction of documents and emails after only six months. (See, e.g., id., 27:3-28:11.) For example, Goertek has assisted Kopin to jointly develop and commercialize a range of technologies and wearable products (i.e., Golden-i Infinity and Solos) and has invested $24.6M for a 10.1% ownership in Kopin and yet not a single email was produced identifying what specific intellectual property was provided to Goertek in exchange for this offering. (Id., ¶ 11, Ex. 9.) The logical conclusion is Kopin did not produce or search emails regarding the Golden-i project unless the emails (a) contained the term BlueRadios and (b) were on the Kopin system as of the Fall of 2016. Spoliation will be addressed in a separate motion; however, the background is relevant to the deficiencies in Kopin's production addressed in this Motion. Furthermore, Hamilton Brook Smith & Reynolds, P.C. ("HBSR") was patent counsel for the Golden-i collaborative venture between Kopin and BlueRadios. (See ECF No. 38, Court's Order disqualifying HBSR, at 3-4.) In response to Interrogatory Nos. 9 and 21, for example, Kopin asserts, "[f]or patents related to this litigation [HBSR's] lawyers determined inventorship. Individuals involved in communicating with [HBSR] regarding patents include Jeff Jacobsen, Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 10 of 30 11 Chris Parkinson, and Stephen Pombo." (Seserman Decl., ¶ 6, Ex. 4, pp. 10 (Response to Interrog. No. 9); 17-18 (Response to Interrog. No. 21).) Logically, there should be numerous emails between Kopin employees Messrs. Jacobsen, Parkinson, and Pombo, and HBSR regarding these transactions and the Golden-i related patents in general. Very few have been produced. Kopin's employees (and, in particular, those employees who were involved in the facts and circumstances relevant to this lawsuit, including Mr. Sneider) use personal computers that are replaced periodically. (Id., ¶ 7, Ex. 5, 31:18-36:14.) Other than Mr. Jacobsen's old laptop computer that was used until 2011-2012, neither the individual computers being used currently, nor the old computers (that are still within the possession, custody and control of Kopin) were reviewed as part of Kopin's discovery obligations in this case. During his deposition, Mr. Sneider confirmed this fact when he testified that he did not check his work computer's contents as part of Kopin's discovery obligations. (Id., ¶ 8, Ex. 6, 27:10-12.) Furthermore, Mr. Sneider admitted during his deposition that he did not review the cloud storage account (i.e., Dropbox), which he uses for business. (Id., 27:18-28:19.) Mr. Sneider further admitted during his deposition that Kopin maintains a file room where physical files are located. Yet, apparently, other than the limited search before the Rule 30(b)(6) deposition, the documents in the file room were never reviewed as part of the discovery process and were, therefore, never disclosed. (Id., 64:9-65:5.) 1. Mygolden-i.com To promote Golden-i, Kopin established a website with the address of www.mygoldeni.com. (Id., ¶ 10, Ex. 8, 79:24-80:8.) This was a restricted access website that Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 11 of 30 12 was used by Kopin, developers and customers. The website included a forum, a chat room and product descriptions. No data from the website has been produced by Kopin. 2. Software Mr. Parkinson wrote software for the Golden-i project throughout his work on the Golden-i project (including his employment by Kopin, his employment by BlueRadios and his contract work for Kopin). Yet, no software has been produced by Kopin, and Mr. Sneider stated that he had no idea where this software would be kept by Kopin. (Id., ¶ 7, Ex. 5, 18:16-19:8.) B. Emails Related To Third Party Contracts Utilizing Golden-i Intellectual Property Are Scant Contracts between Kopin and third-parties such as Vuzix, Google, Motorola, Fujitsu, Verizon, Raytheon, Symbol Technologies, Goertek and RealWear are highly probative in this case. Kopin licenses intellectual property to third-parties (for example, Verizon, RealWear and Motorola), Kopin receives R&D money from third-parties (for example, Google and Raytheon) that pay money to Kopin for access to intellectual property, and Kopin engages in equity purchases and sales where equity is obtained or sold in exchange for access to intellectual property (for example, RealWear and Lenovo New Vision). This is contrasted by Kopin's discovery responses in which Kopin inaccurately identifies Motorola, Fujitsu and RealWear as the only companies that license Kopin intellectual property. (See, e.g., Seserman Decl., ¶ 6, Ex. 4, p. 7 (Response to Interrog. No. 3).) BlueRadios served Requests for Production that require Kopin to produce emails and documents related to these negotiations: All documents and things regarding Google, Vuzix, RealWear, Goertek, Scott Safety, Recon Instruments, Intel, Endopodium as identified in the Affidavit of Hong K. Choi, Ph.D. [Doc. No. 75-1], including written agreements, purchase orders, technical specifications, communications, and or invoices. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 12 of 30 13 (See Seserman Decl., ¶ 12, Ex. 10, p. 3 (Request for Production ("RFP") No. 31).) Mr. Sneider testified that he would expect that when a contract with a third-party, such as RealWear, is negotiated, there would be emails related to those negotiations. (Id., ¶ 8, Ex. 6, 67:4-13.) Mr. Sneider acknowledged that Kopin turned over the search for documents that should be reviewed, disclosed and maintained on the Kopin company server over to a third-party IT consulting company, Simpletonian. (Id., 20:3-21:17.). As the Rule 30(b)(6) deponent, however, Mr. Sneider was unable to identify what actions Simpletonian took, what the litigation hold consisted of, or whether Simpletonian reviewed any stand-alone computers used by Kopin. (Id., ¶ 7, Ex. 5, 27:3-28:11; 31:18-34:8.) Consequently, because Mr. Sneider (either in his individual deposition or in his portion of the Rule 30(b)(6) deposition) could not identify what specifically Simpletonian did to implement a litigation hold and search of documents and data responsive to discovery requests and disclosure obligations, the most efficient way to both determine what was done and to mitigate any damages for what was not done, is to permit BlueRadios to take a Rule 30(b)(6) deposition of Simpletonian regarding the litigation hold implemented by Kopin and the scope of the search for documents and data conducted by Kopin in this case. Yet, Kopin has produced almost no emails that were part of those contract negotiations where Kopin gave third-parties the right to use Golden-i intellectual property. For instance, there are no emails regarding the contract negations between Kopin and Google (of note, Google paid Kopin $5.6M to cancel a contract, yet not a single email relating to that payment has been produced), between Kopin and RealWear, between Kopin and Lenovo New Vision, between Kopin and Vuzix, between Kopin and Raytheon, Kopin and DRS Network & Imaging Systems, LLC and Kopin and Goertek. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 13 of 30 14 C. Communications And Documents Related To Military Applications Of Golden-i Have Never Been Produced BlueRadios has requested all documents and communications related to Golden-i products, development and technology, as well as materials related generically to wireless display products. (See, e.g., Seserman Decl., ¶ 13, Ex. 11, p. 2 (RFP No. 5 ("All documents relating to the development or manufacture of products that integrate or utilize the Golden-I technology . . . .)); p. 3 (RFP No. 7 ("All documents that show Your gross and net revenues . . . from products or technology that integrate or utilize the Golden-I Technology . . . .)); id., ¶ 12, Ex. 10, p. 2 (RFP No. 26 ("All documents reflecting any royalties and payments made or received in connection with Golden-I Technology.")); p. 3 (RFP No. 32 ("Kopin's sales and revenues forecasts for its components and/or products to be used in/with wireless display devices.")).) On July 30, 2018, Kopin's CEO, John Fan, had his deposition taken. Mr. Fan was asked "Is Kopin a holding company?" Mr. Fan responded "Not that I know of." (Id., ¶ 14, Ex. 12, 191:17-20.) The next day (July 31, 2018), Kopin's CFO, Richard Sneider, had his individual deposition taken. During that deposition, Mr. Sneider was asked "Is Kopin Corp a holding company?" to which he responded "I don't know what the definition of a holding company is." (Id., ¶ 8, Ex. 6, 56:1-3.) Several months later, Mr. Sneider testified as a Rule 30(b)(6) designee for Kopin where he stated "So Kopin Corporation in some respects is a holding company. And the work on Golden-i projects would have occurred under our subsidiary Kopin Display Corporation." (Id., ¶ 7, Ex. 5, 74:23-75:1.) A few questions later, he identified a company named Kopin Targeting Corporation as a subsidiary that the manufacturing operations and military pieces had been moved into. (Id., 75:14-76:15.) This revelation on December 20, 2018 Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 14 of 30 15 was the first time the fact that Kopin is a holding company and that the military piece is housed within a subsidiary named Kopin Targeting Corporation has been revealed. During discovery, BlueRadios learned that Kopin received and continues to receive significant revenue from military applications. Mr. Sneider testified that head-mounted wearable devices have both industrial and military applications for Kopin. (Id., 102:14-23.) Mr. Jacobsen admitted that Kopin has sold Golden-i products to the military. (Id., ¶ 10, Ex. 8, 86:21-87:4.) However, Kopin has produced hardly any documents – whether communications, specifications, sales, or otherwise – that relate to military applications or Kopin Targeting Corporation. Kopin has publicly stated from the onset that "Golden-i is a product platform which is targeted for industrial, military and "prosumer" markets. Golden-i is a combination of our display technologies with wireless and voice activated software technologies. (Id., ¶ 15, Ex. 13, p. 19.) In a recent presentation to investors, Mr. Sneider stated: So those kind of glimpses into the future. Where are we right now? Well, right now we're primarily being driven by our military application, so we are the sole provider of displays into F35 Strike Fighter. It's the most advanced military augmented reality system in the world. Essentially the plane has 16 cameras on it feeding information to the pilot he's seeing all of that on his visor with information being overlaid on top of it. That plane is scheduled to be in the air till 2070, supposed to be in production till 2035. So just over the first 10 years we think it's a $100 million revenue opportunity, but it is actually a very long annuity program for us. We are now a part of the U.S. Army's FWS program, which is Family of Weapon Sights. We have been awarded the FWS-I program and that is the rifle scope. So the soldier is wearing a display on his helmet, he also has one on his rifle scope, these two scopes are now talking to each other, so before, you have a rifle scope you see – a soldier would see the bad guy bring his rifle up by that time the bad guy is gone. He no longer has to bring his rifle up. He can use this almost in a periscope fashion where he can be seen through here and he can aim him from the gun. So we've been awarded this and we just started shipping into this program in Q4 of 2018. So this is new. It's been in development for the last couple of years, but now we've gone into production. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 15 of 30 16 (Emphasis added (Seserman Decl., ¶ 16, Ex. 14, p. 4).) Below is a picture of a soldier wearing a military Golden-i. D. Kopin Has Failed To Produce Technical Documentation Of Products That Integrate And Use Golden-i Intellectual Property BlueRadios has served Kopin with Requests for Production that encompass all technical documents related to every product or item that arguably integrates Golden-i technology. For example, RFP No. 5 requests: All documents relating to the development or manufacture of products that integrate or utilize the Golden-i technology or the BlueRadios Technology. (Seserman Decl., ¶ 13, Ex. 11, p. 2 (RFP No. 5).) Additionally, and as set forth above, RFP No. 31 requests all "documents and things . . . including technical specifications" that relate to identified third parties such as Google, Vuzix, RealWear, and others. (Id., ¶ 12, Ex. 10, p. 3 Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 16 of 30 17 (RFP No. 31)); see also the April 6, 2018 Hearing Transcript, where counsel for BlueRadios stated: "[W]e have pointed out recent statements that Kopin has made in 2018 referring to Golden-i as the foundation for all of today's products. In terms of – in reference to your admonition on Rule 1, I will say that we have offered many times to Kopin that if we could see product samples or technical specs so we could make that determination that what they are saying is way outside the scope of Golden-i, then we would be happy to do that and cut – and cut short this motion to compel, but that hasn't happened, and Kopin hasn't made any offers of that."). (Seserman Decl., ¶ 5, Ex. 3, 6:20-7:4.) Yet, Kopin has produced no real technical data, such as schematics, product specifications, bill of materials, software, firmware, Gerber files, developer kit code, etc., that BlueRadios alleges integrates or is built upon Golden-i technology. If it has, Kopin has done so in a manner that is unduly burdensome to locate and identify. E. Kopin's Responses To The Following Interrogatories And RFPs Are Deficient BlueRadios has brought claims of breach of contract, misappropriation of BlueRadios' confidential trade secret information, and other related claims that allege Kopin misappropriated BlueRadios' intellectual property and know-how and now offers wearable computing units with head mounted displays that include wireless communication protocols on its own and with other third parties. (See ECF No. 1, Compl. 13-20.). Accordingly, virtually all of BlueRadios' interrogatories and requests for production seek the production of information relating to jointly developed Golden-i technology and BlueRadios technology and is critical to BlueRadios' pending claims and damages. The following lists specific Interrogatories and RFPs, and Kopin's deficient Response to each. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 17 of 30 18 1. Kopin's Response to Interrogatory No. 3 is Deficient BlueRadios' Interrogatory No. 3 and Kopin's Response read: INTERROGATORY NO. 3: Identify all sale, license, assignment, transfer or other agreements between Kopin and any third party that relates to the Golden-i Technology. RESPONSE TO INTERROGATORY NO. 3: Defendant objects to this interrogatory as overly board and unduly burdensome to the extent that it seeks information about all "sale, license, assignment, transfer, or other agreements between Kopin and any third party that relates to" technology developed solely by Kopin for a monocular or binocular wireless video display. Subject to the foregoing general and specific objections, Defendant states that it licensed intellectual property related to its wireless headmounted devices to Motorola Solutions, Fujitsu, and Realwear, Inc. Defendant states further that those licenses have been produced in discovery. (Seserman Decl., ¶ 6, Ex. 4, p. 7 (Interrog. No. 3 and Response).) Kopin objects to BlueRadios' interrogatories and requests for production as "overly broad," and/or "unduly burdensome." Under Fed. R. Civ. P. 33(b)(3), "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Under Fed. R. Civ. P. 33(b)(4), "[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Kopin's objections violate the requirement under the Federal Rules of Civil Procedure to assert objections with specificity, and to identify whether any documents are being withheld on the basis of such objection. BlueRadios requests Kopin be required to either identify what documents it is withholding based on these objections and explain the basis for the objections or withdraw the objections. Furthermore, Kopin ostensibly invokes Rule 33(d) by generally referring to "licenses . . . produced in discovery." (Seserman Decl., ¶ 6, Ex. 4, p. 7 (Response to Interrog. No. 3).) To the Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 18 of 30 19 extent Kopin seeks to invoke Rule 33(d), Kopin has an obligation pursuant to Rule 33(d)(1) to answer the interrogatories in a manner "specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could." Kopin has failed to provide bates numbers of the relevant "licenses . . . produced in discovery." Thus, BlueRadios must sift through over 150,000 documents to attempt to find the relevant agreements and, even then, will be left guessing as to which of the agreements it is able to locate are or were effective, what the final terms of the agreements are, when the agreements were in effect, etc. Kopin's failure to provide a guide to the discovery responses is not within the spirit, if not the specific requirement, directed by this Court during the April 6, 2018 Hearing. Consequently, BlueRadios requests that Kopin be ordered to fully respond to Interrogatory No. 3 by providing relevant production numbers for the agreements with third-parties. 2. Kopin's Response to Interrogatory No. 17 is Deficient BlueRadios' Interrogatory No. 17 and Kopin's Response read: INTERROGATORY NO. 17: Identify by name and part number all products and/or components Kopin has currently or in the past provided, distributed, offered for sale, and/or sold that practice any claims of the Kopin-BlueRadios IP, and for each product and/or component identified, list the corresponding patent claims, patent application number(s) and/or issued patent numbers. RESPONSE TO INTERROGATORY NO. 17: Defendant objects to this Interrogatory because it is overly broad, unduly burdensome, and not proportional to the needs of this case because it does not have knowledge of all "components Kopin has currently or in the past provided, distributed, offered for sale, and/or sold" that may "practice any claims of the Kopin-BlueRadios IP" based on definitions provided by Plaintiff. Subject to the foregoing general and specific objections, Defendant states that it sold approximately 125 units of the Generation 3.5 Golden-i device and that it has not Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 19 of 30 20 sold any other products that practice claims contained in the patents defined as Kopin-BlueRadios IP by Plaintiff. (Seserman Decl., ¶ 6, Ex. 4, pp. 15-16 (Interrog. No. 17 and Response).) Again, Kopin's objections to BlueRadios' interrogatory as "overly broad," and/or "unduly burdensome" are improper. Accordingly, BlueRadios requests that Kopin be ordered to either identify what documents it is withholding based on these objections and explain the basis for the objections or withdraw the objections. Despite Interrogatory No. 17 requesting patent application numbers and/or issued patent numbers related to responsive devices, Kopin failed to provide any corresponding patent information for the identified Generation 3.5 Golden-i device. BlueRadios requests Kopin be required to do so. 3. Kopin's Response to Interrogatory No. 24 is Deficient BlueRadios' Interrogatory No. 24 and Kopin's Response read: INTERROGATORY NO. 24: Describe in detail what happened to the 10 printed circuit boards (PCBs) delivered to Kopin on or about March 26, 2009, including their location, whether the PCBs were used or served as a basis for any component for a wireless display device. RESPONSE TO INTERROGATORY NO. 24: Defendant objects to this Interrogatory as vague and ambiguous to the extent it fails to define "were used or served as a basis for any component for a wireless display device." Subject to the foregoing general and specific objections, Defendant states that, to the best of its knowledge, two of the 10 PCBs were returned to BlueRadios and that the other eight PCBs no longer exist, as received. Defendant states further that Kopin conducted testing on the remaining PCBs in and around the 2009-time period, and that it modified at least certain of those PCBs in an effort to render them functional. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 20 of 30 21 (Id., ¶ 6, Ex. 4, p. 19 (Interrog. No. 24 and Response).) Kopin admits it received all ten PCBs from BlueRadios; however, Kopin fails to account for the whereabouts for all ten PCBs. Kopin argues that two of the PCBs were returned to BlueRadios and the remaining eight "no longer exist, as received." (Id.) Mr. Jacobsen, however, testified at his deposition that the remaining eight PCBs "would have been put into storage or into a locker when we were all done [testing them]. There wasn't anything more we could do." (Seserman Decl., ¶ 9, Ex. 7, 121:21-122:4.) Mr. Jacobsen subsequently contradicted this testimony during his deposition under Rule 30(b)(6) when he testified that the eight PCBs "were shipped back to Kopin to Dave Costa in our engineering lab in Massachusetts." (Seserman Decl., ¶ 10, Ex. 8, 46:20-47:4.) In short, the current physical location of the ten PCBs that BlueRadios delivered to Kopin is of paramount importance to this litigation. Kopin has failed on several occasions to provide a cogent answer to this question. BlueRadios requests Kopin be required to do so now. 4. Kopin's Response to Interrogatory No. 27 is Deficient BlueRadios' Interrogatory No. 27 and Kopin's Response reads: INTERROGATORY NO. 27: Describe in detail Kopin's strategy with respect to its patent portfolio, including licensing strategies. RESPONSE TO INTERROGATORY NO. 27: Defendant objects to this Interrogatory on the grounds that it is overly broad and unduly burdensome and seeks information that is not proportional to the needs of the case and not likely to lead to the discovery of admissible evidence. Defendant also objects to this interrogatory to the extent it seeks privileged attorney-client communications and attorney work-product. Subject to the foregoing general and specific objections, Defendant states it has not formulated a clear strategy or set any specific goals to monetize its patent portfolio. Defendant has a licensing agreement with Motorola Solutions and paid money to subsidize product development. Defendant has a licensing agreement Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 21 of 30 22 with Fujitsu and provided mechanical, electrical, and audio technical support. Defendant has a licensing agreement with RealWear and provided mechanical design files and audio technical support. (See id., ¶ 6, Ex. 4, pp. 20-21 (Interrog. No. 27 and Response).) With respect to Kopin's Response to Interrogatory No. 27, Kopin again asserts the same "overly broad and unduly burdensome" general objection and asserts an attorney-client privilege and attorney work product immunity. (Id.) To the extent this claim of privilege is in any way related to its relationship with attorneys at HBSR in connection with Golden-i patent applications, this Court found during the April 2018 Hearing on BlueRadios' First Motion to Compel such a claim unavailing: I agree with BlueRadios and find that the attorney-client privilege does not protect from discovery by BlueRadios communications related to the parties' common interest, and that is the agreement which they reached and everything emanating from it, including but not limited to the Golden-i patent applications. (Seserman Decl., ¶ 5, Ex. 3, 17:24-18:4.) Accordingly, the objection is improper and BlueRadios requests that the Court require Kopin to fully and completely respond to Interrogatory No. 27. The response itself is deficient. For instance, Kopin states it provided mechanical design files and audio technical support, yet no documents or data showing such support was produced. (Id., ¶ 6, Ex. 4, p. 21 (Response to Interrog. No. 27).) Similarly, the response is limited to licenses and does not include the other ways (as identified in this motion) that Kopin monetizes the Golden-i Project intellectual property. (Id.) 5. Kopin's Response to RFP No. 17 is Deficient In RFP No. 17, BlueRadios requests production of "Representative samples of the products and/or components identified in response to Interrogatory 17." (Seserman Decl., ¶ 17, Ex. 15, p. 5 (RFP No. 17 and Response).) Kopin responded that it ". . . is not in possession of Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 22 of 30 23 any materials identified in response to Interrogatory 17 . . . ." In Kopin's Superseding Response to Interrogatory No. 17, however, Kopin stated that it has sold "approximately 125 units of the Generation 3.5 Golden-I device . . . ." (Seserman Decl., ¶ 6, Ex. 4, p. 15 (Interrog. No. 17 and Response).) Thus, Kopin admits it has sold products and/or components that practice the Kopin- BlueRadios IP, on one hand, but that Kopin is not in possession of any materials that relevant to Kopin-BlueRadios IP, on the other hand. Such a response is internally inconsistent. Kopin should be compelled to produce representative samples of the products and components relating to Golden-i and it progeny. 6. Kopin's Responses to RFP Nos. 5, 7, 9, 10, and 24 are Deficient Kopin has unilaterally and impermissibly limited its production of documents pertaining to the technical specifications of each generation of the Golden-i project. Kopin has apparently limited its document production to only Generations 1 through Generation 4 of Kopin's Golden-i project. For example, in RFP No. 5, BlueRadios requests production of "All documents relating to the development or manufacture of products that integrate or utilize the Golden-i Technology or the BlueRadios Technology." Kopin responded by referencing its responses to Interrogatories 1 and 2. (Id.) (Seserman Decl., ¶ 18, Ex. 16, p. 6 (RFP No. 5 and Response).) Kopin's Superseding Responses to Interrogatories 1 and 2 are replete with objections. Importantly, Kopin objected to the Interrogatories as "overly broad, unduly burdensome, and not proportional to the needs of the case insofar as it requests identification of all products, manufactured or not, that incorporate technology developed solely by Kopin for a monocular or binocular wireless video display." (Seserman Decl., ¶ 6, Ex. 4, pp. 5-6 (Interrogatories Nos. 1 and 2 and Response).) Kopin's substantive responses are limited to "Golden-i Generations 1, 2, 3, 3.5, 3.8, and 4." (Id.) Kopin has apparently determined, unilaterally, that certain generations of Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 23 of 30 24 Golden-i products are relevant to the present litigation and certain generations are not. Kopin's unilateral limitation is overly narrow and such an overly narrow limitation is contrary to the discovery demands propounded by BlueRadios on Kopin and the Court's instructions made clear during prior hearings, "At the September 15, 2017 status conference I indicated that the Golden-i product and all of its progeny are discoverable." (Id., ¶ 5, Ex. 3, 13:20-22.) Similarly, Kopin has unilaterally and impermissibly limited its production of documents pertaining to RFPs pertaining to all generations of products utilizing Golden-i Technology; i.e., past and projected "revenue derived from products or technology that integrate or utilize Golden- i Technology" (id., ¶ 18, Ex. 16, p. 7 (RFP No. 7 and Response and Supplemental Response)); "communications" (id., p. 8 (RFP No. 9 and Response and Supplemental Response)); "agreements" (id., p. 9 (RFP No. 10 and Response and Supplemental Response)); and "[m]arketing reports [and] forecasts," (id., ¶ 20, Ex. 18, p. 12 (RFP No. 24 and Response)). In response to these document requests, Kopin listed production Bates numbers; however, the documents identified only pertain to earlier generations of the Golden-i project and do not include more recent generations. Moreover, the number of documents identified are small in number and cannot represent all responsive documents to each document request. On the other hand, with respect to RFP No. 24, Kopin simply referred to its entire "fully searchable production." (Id.) Accordingly, BlueRadios requests that Kopin be compelled to produce documents responsive to RFP Nos. 5, 7, 9, 10, and 24 with respect to all progeny of Golden-i, and not the select few unilaterally chosen by Kopin. Furthermore, Kopin should be reminded of its obligation to "…make reasonable efforts to assist BlueRadios' counsel in navigating the existing production and produce any additional relevant materials related to its wireless HMDs which were not included in the existing production." (Id., ¶ 5, Ex. 3, 16:4-10.) Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 24 of 30 25 7. Kopin's Responses to RFP Nos. 13, 14 and 18 are Deficient BlueRadios has requested documents and communications pertaining to relevant patent applications filed by Kopin; particularly with respect to communications with HBSR pertaining to the identification of inventors to those patent applications. (Seserman Decl., ¶ 18, Ex. 16, pp. 11-12 (RFP Nos. 13 and 14 and Responses).) In response Kopin submitted improper boilerplate objections and pointed to a handful of documents produced by Kopin. (Id.) Such a response is insufficient. At a minimum, Kopin should have produced an appropriate log of any documents or data withheld and Kopin should have produced a relatively large volume of internal Kopin communications and emails between HBSR and Kopin. Furthermore, Kopin should have produced internal Kopin documentation pertaining to the selection of inventors and the amount of money paid by Kopin to HBSR to prosecute the relevant patent applications (e.g., billing records). Kopin failed to do so and should be compelled to do so. Furthermore, BlueRadios requested "communications between Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Hamilton, Brook, Smith & Reynolds, P.C." (Seserman Decl., ¶ 19, Ex. 17, p. 4 (RFP No. 18 and Response).) Despite the Court's finding that communications with HBSR are not protected by attorney-client privilege, Kopin proffered this objection, in addition to its boilerplate objections of "overly broad" and "not relevant to any party's claim or defense." (Id.) To the extent Kopin is withholding documents based on these improper objections, Kopin should have produced a privilege log. No privilege log has been provided. Accordingly, BlueRadios requests that Kopin be compelled to produce the documents now. (Seserman Decl., ¶ 5, Ex. 3, 17:24-18:4.) Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 25 of 30 26 IV. BLUERADIOS SHOULD BE AWARDED ITS COSTS AND ATTORNEYS' FEES FOR THIS DISCOVERY DISPUTE BlueRadios requests that, pursuant to Fed. R. Civ. P. 37(a)(5)(A) and this Court's admonishments on April 6, 2018, the Court require Kopin to pay the costs and reasonable attorneys' fees BlueRadios has incurred in this discovery dispute. V. REQUEST FOR RELIEF WHEREFORE, for the reasons stated above, BlueRadios requests that the Court Order that, within 30 days from the date of this Order that: 1. Kopin shall produce responsive documents and data located in the luckyjranch1@aol.com email account used Jeff Jacobsen for Kopin business subsequent to 2011 (as noted in the above Rule 7.1 Certification on February 25, 2019, Kopin's counsel indicated this would be produced); 2. Kopin shall produce responsive document and data located in any email accounts used by John Fan for business including johnccfan@gmail.com and johnfan@gmail.com; 3. Kopin shall produce all email communications in native format related to third- party contracts, and technical documents, including product schematics and product specifications; 4. Kopin shall produce documents and data related to military applications and use of Golden-i intellectual property including contracts with Kopin Targeting Corp., DRS Network & Imaging Systems, LLC and Raytheon; 5. Kopin shall supplement its responses to BlueRadios Interrogatories Numbers 3, 17, 18, 21, 22, and 27 (including responses to the requests for production of documents related to those interrogatories); Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 26 of 30 27 6. Kopin shall review the documents and data maintained in its file room for documents that should have been disclosed in this case; 7. Kopin shall review documents and data on computers that are in its possession, custody or control that were or are issued to John Fan, Richard Sneider, Hong Choi, Chris Parkinson, Jeff Jacobsen and Steve Pombo and supplement its disclosures and discovery responses; 8. Kopin shall provide full and complete documents and data to BlueRadios relating to the military use of HMDs that utilize Kopin intellectual property; 9. Kopin shall provide full and complete emails in native format regarding the contract negotiations between Kopin and third-parties related to Golden-i intellectual property and Kopin HMD, including all emails related to the cancellation of the contract with Google pursuant to which Kopin was paid approximately $5.6M; 10. Kopin shall produce copies of all contracts with third parties, including Endopodium, from 2009 to the present, that relate to Golden-i Project intellectual property or HMDs; 11. Kopin provide cost breakdown for its investment into the Solo and Golden-i Infinity product lines; 12. Kopin provide copies of board of director meetings minutes where the Golden-i Project was discussed or appeared as an agenda item, including any presentation materials related to Golden-i; 13. Kopin provide copies from 2006 to the present of minutes of Kopin meetings where HBSR participated covering Golden-i intellectual property or HMDs; Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 27 of 30 28 14. Kopin provide copies of billing invoices, to the extent not previously produced, received from HBSR related to work on the Golden-i Project or HMDs; 15. Kopin provide copies of technical specifications (design files, schematics, etc.) of all HMD products that may include Golden-i intellectual property; 16. Kopin shall produce copies of all documents relating to the www.mygoldeni.com website including electronic communications, documents, and software available on the website for download. BlueRadios further requests that the Court: 1. Grant BlueRadios leave to take a Rule 30(b)(6) deposition of Simpletonian; 2. Grant BlueRadios leave to issue subpoenas duces tecum seeking the production in native format of email correspondence (with attachments) with Kopin to the following third- parties: Motorola, Symbol Technologies, Fujitsu, Goertek, Lenovo New Vision, Vuzix, Endopodium, Raytheon, DRS Network & Imaging Systems, LLC, BAE Systems (both directly and through third-party QiOptiq), Google, Flextronics, Scott Safety; 3. Modify the Scheduling Order to permit the discovery ordered in this Motion to be completed and extend the deadline for the disclosure of expert witnesses to thirty (30) days following the completion of the discovery ordered in this Motion; 4. Order that Kopin shall bear all costs, including attorneys' fees, incurred complying with this Order and awards BlueRadios its costs and reasonable attorneys' fees incurred related to this discovery dispute; and 5. Award BlueRadios such other and further relief as the Court deems just and proper. A proposed Order is submitted herewith for the Court's convenience. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 28 of 30 29 DATED this 25th day of February, 2019. Respectfully submitted, By: s/ David B. Seserman David B. Seserman SESERMAN LAW LLC 3900 E. Mexico Ave., Suite 300 Denver, Colorado 80210 Telephone: 303.900.2406 Facsimile: 303.670.0990 dseserman@seserman.law Joseph E. Kovarik jkovarik@sheridanross.com Patricia Y. Ho pho@sheridanross.com John C. Heuton jheuton@sheridanross.com SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: litigation@sheridanross.com ATTORNEYS FOR PLAINTIFF BLUERADIOS, INC. Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 29 of 30 30 CERTIFICATE OF SERVICE I hereby certify that on February 25, 2019, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record in the above-referenced matter. Joshua M. Dalton Sarah K. Paige MORGAN, LEWIS & BOCKIUS LLP One Federal Street Boston, MA 02110 Email: josh.dalton@morganlewis.com sarah.paige@morganlewis.com David D. Powell, Jr. Stephen B. Rotter OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2000 South Colorado Boulevard Tower Three, Suite 900 Denver, CO 80222 Email: david.powell@ogletree.com stephen.rotter@ogletree.com Thomas D. Leland Maxwell N. Shaffer Elizabeth A. Austin HOLLAND & KNIGHT LLP 1801 California Street, Suite 5000 Denver, Colorado 80202 Phone: 303.974.6660 Fax: 303.974.6659 Email: thomas.leland@hklaw.com maxwell.shaffer@hklaw.com elizabeth.austin@hklaw.com Mark S. Peloquin PELOQUIN, PLLC 800 Fifth Ave., Suite 4100 Seattle, WA 98104 Email: mark@peloquinlaw.com s/ Lori R. Brown Lori R. Brown Paralegal to Todd P. Blakely/Robert R. Brunelli SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 Telephone: (303) 863-9700 Facsimile: (303) 863-0223 E-mail: lbrown@sheridanross.com litigation@sheridanross.com Case 1:16-cv-02052-JLK Document 147 Filed 02/25/19 USDC Colorado Page 30 of 30