California Association of Realtors, Inc. v PDFfiller, Inc. et al

Opposition re Cross MOTION to Compel Discovery Defendant And Counter Claim/Third-Party Plaintiff PDFfiller, Inc.'s Response In Opposition To Plaintiff And Counterclaim Defendant California Association Of Realtors, Inc.'s Cross Motion To Compel Discovery

D. Mass.April 20, 2018

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS CALIFORNIA ASSOCIATION OF REALTORS, INC., Plaintiff, v. PDFFILLER, INC., VADIM YASINOVSKY, and BORIS SHAKHNOVICH, Defendants. Civil Action No. 1:16-cv-11021-IT PDFFILLER, INC. Counterclaim/Third-Party Plaintiff, v. CALIFORNIA ASSOCIATION OF REALTORS, INC. Counterclaim-Defendant, and REAL ESTATE BUSINESS SERVICES, INC. and RE FORMSNET LLC d/b/a ZIPLOGIX, LLC, Third-Party Defendants. DEFENDANT AND COUNTERCLAIM/THIRD-PARTY PLAINTIFF PDFFILLER, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFF AND COUNTERCLAIM- DEFENDANT CALIFORNIA ASSOCIATION OF REALTORS, INC.’S CROSS-MOTION TO COMPEL DISCOVERY (ECF 283) Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 1 of 19 TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. ARGUMENT ......................................................................................................................2 A. PDFfiller Financial Documentation and Supplementation of Initial Disclosures ...............2 B. PDFfiller’s Investor Presentations And Documents..........................................................4 C. PDFfiller’s Takedown Notices And Responses ................................................................7 D. PDFfiller’s Database Schemas And Log Data ..................................................................8 E. CAR’s Request To Inspect And Test PDFfiller’s Platform ............................................. 12 III. CONCLUSION ................................................................................................................. 14 Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 2 of 19 - 1 - I. INTRODUCTION CAR’s Cross-Motion to Compel Discovery (ECF 283) is an unfounded and unsuccessful attempt by CAR to deflect attention from its improper discovery gamesmanship. As PDFfiller explained in its Motion to Compel Discovery on an Expedited Basis (ECF 274), CAR, after having obtained a months-long stay of antitrust discovery, is now engaged in delay tactics to run out the clock on the abbreviated three-month fact discovery period for PDFfiller’s antitrust counterclaim. CAR is also withholding crucial discovery that PDFfiller needs to defend against CAR’s meritless copyright and DMCA anti-circumvention claims. Instead of dealing with these issues head on, CAR has responded to PDFfiller’s Motion with a Cross-Motion replete with concerns that are stale or moot. Indeed, most of what CAR complains about in its Cross-Motion was already addressed and resolved at a lengthy, in-person meeting involving outside counsel, PDFfiller’s CEO, and the parties’ technical experts that took place on December 20, 2017 (“December Meeting”). (ECF 284 at 12 n.1.) At that meeting, and in follow-up correspondence, PDFfiller answered every question posed by CAR. CAR’s current demands are therefore moot. What is more, CAR’s attempt to condition its willingness to turn over discovery plainly relevant to its copyright and DMCA anti-circumvention claims on PDFfiller’s willingness to turn over information that PDFfiller either does not have, has already turned over, or is plainly irrelevant should be rejected. The discovery requests highlighted in PDFfiller’s Motion have been outstanding for ten months and CAR has failed to provide responsive information. The Court should deny CAR’s Cross-Motion and order CAR to produce the discovery PDFfiller seeks in its Motion on an expedited basis. Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 3 of 19 - 2 - II. ARGUMENT A. PDFfiller Financial Documentation and Supplementation of Initial Disclosures In its Cross-Motion, CAR demands that PDFfiller produce all of its federal and state tax returns and all of its financial statements. CAR’s demand is plainly overbroad and disproportional to the parties’ claims and defenses. See Watley v. Russell A. Farrow, Inc., 2010 U.S. Dist. LEXIS 96014, at *4 (E.D. Mich. Sept. 15, 2010) (denying motion to compel “all financial records” as overly broad). For example, PDFfiller’s tax returns are irrelevant to CAR’s intellectual property claims and to PDFfiller’s antitrust counterclaim. CAR has not articulated any particularized basis for its supposed need for these tax returns. In a similar vein, CAR’s request for “all financial statements” is unbounded in time and scope would necessarily sweep in information that is irrelevant to this case. CAR has never expressed any willingness to limit its request to financial information that could reasonably be related to the parties’ claims. PDFfiller, on the other hand, is willing to meet and confer on the scope of both parties’ request for financial information. The Court should reject CAR’s harassing demand for unlimited tax and financial information and instead require the parties to meet in good faith to agree on the production of sets of financial information from all parties (including third-party defendants REBS and zipLogix) proportional to the claims and defenses in this case. Because CAR has failed to produce certain financial and market-share materials responsive to PDFfiller’s requests for antitrust information, CAR’s demand that PDFfiller further supplement its Initial Disclosures to identify with specificity its antitrust damages is illogical. 1 1 CAR claims that its initial disclosures are satisfactory because CAR has “disclosed a computation of statutory damages.” (ECF 284 at 3.) However, CAR conveniently neglects to mention that it also has requested an award of lost profits as an alternative to statutory damages. Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 4 of 19 - 3 - (See ECF 284 at 2-3, 11.) PDFfiller needs antitrust discovery first from CAR, and then it will be able to supplement further its Initial Disclosures. CAR cites no legal authority for the proposition that it can engage in self-help and withhold antitrust discovery because of purported deficiencies with PDFfiller’s Initial Disclosures. In fact, any purported deficiencies with PDFfiller’s Initial Disclosures have no bearing on CAR’s obligation to cooperate in discovery. See Parrish v. Premier Directional Drilling, L.P., No. SA-16-CA-00417-DAE, 2017 WL 5139260, at *2 (W.D. Tex. May 8, 2017) (“A party’s recourse when discovery is not produced is to file a motion to compel; a party cannot withhold discovery for any reason as doing so subverts the discovery process and undermines the Court's authority.”). Indeed, this Court has ruled in similar disputes that a party is not required to provide detailed damages calculations when such calculations depend upon information in the possession of another party. For example, in AVX Corp. v. Cabot Corp., 252 F.R.D. 70 (D. Mass. 2007), the Court held that AVX’s supplementation of damages calculations was not untimely when made two years after the initial request for that calculation because Cabot “had not provided all of the information necessary to perform the calculations.” Id. at 76. When that information was finally provided, AVX supplemented its damages calculation within several weeks. Here too, when CAR (finally) produces the antitrust discovery PDFfiller sought months ago, PDFfiller will further supplement its Initial Disclosures to provide additional specificity regarding the amount of damages it is owed because of CAR’s antitrust violations. If the Court finds supplementation of PDFfiller’s disclosures which include a claim for lost profits necessary at this stage of the litigation, then CAR should be required to supplement its disclosures as well. (See ECF 270 at ¶¶ 109 and 123.) Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 5 of 19 - 4 - B. PDFfiller’s Investor Presentations And Documents CAR seeks PDFfiller’s investor presentations but fails to provide any reasoned explanation as to why these presentations are even tangentially relevant to either party’s claims or defenses. CAR speculates that these documents will provide information on the “functionality of [PDFfiller’s] platform” (ECF 284 at 14), but offers nothing to support this statement. To the extent that PDFfiller investor presentations even contain any technical information, that information is cumulative and redundant of technical information PDFfiller has already produced to CAR. PDFfiller already produced documents regarding the technical underpinnings of its platform and then provided CAR the specific technical information it requested at the December Meeting and spent hours of time diligently answering each of CAR’s questions regarding the PDFfiller platform. PDFfiller’s investor presentations do not include any additional technical information that CAR does not already have. CAR’s claim that the investor presentations may include “risk factors for [PDFfiller’s] business” fares no better. (Id.) PDFfiller investor presentations do not include “risk factors” that have any bearing on the issues in dispute in this litigation. Finally, CAR’s suggestion that PDFfiller investor presentations will reveal what PDFfiller considers “to be the relevant product market and its competitors in that market” also misses the mark. (Id.) PDFfiller investor presentations do not contain legal definitions of markets relevant to CAR’s anti-competitive behavior; those markets have instead been defined in detail in PDFfiller’s counterclaim. As set forth in PDFfiller’s Motion and herein, the parties who have information relevant to the California electronically fillable real estate forms (“EFRE”) and paperless transaction management software (“PTM”) markets, and to CAR’s exploitation of Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 6 of 19 - 5 - those markets through the tying of its EFRE to its zipForm software are CAR, REBS and zipLogix—not PDFffiller. Interestingly, even as CAR presses for irrelevant PDFfiller investor presentations, CAR contends in its Cross-Motion that it will withhold, as a bargaining tool, discovery relevant to (i) CAR strategy presentations, (ii) notifications generated by Google Alerts concerning CAR forms posted on the Internet, and (iii) CAR Google Analytics regarding the volume of users of its zipForm software. See ECF 284 at 10 (CAR indicating that it will produce information concerning the volume of zipForm use, costs, and revenues associated with CAR forms, and the interrelationship between CAR, REBS and zipLogix, only if PDFfiller agrees to produce irrelevant “strategy and investor presentations”). The Court should not countenance CAR’s refusal to produce responsive materials as leverage to obtain documents from PDFfiller that are not relevant to any party’s claims or defenses. Moreover, unlike CAR, PDFfiller has already produced Google Analytics information, including documents that reveal the number of URL requests made on a per-month basis for PDFfiller landing pages associated with CAR forms, and information regarding its Google AdWords accounts. CAR should likewise provide PDFfiller with CAR Google Analytics information so that PDFfiller can determine the number of users, forms, and other usage data related to CAR EFRE and zipForm, information that will be relevant to, among other things, CAR’s market share of the relevant California EFRE and PTM Software markets. (See ECF 284 at 9.) CAR’s attempt to withhold information concerning its strategy presentations is especially egregious because the information PDFfiller seeks and that CAR is withholding goes to the heart of PDFfiller’s antitrust counterclaim. Based upon the outdated CAR strategy presentation Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 7 of 19 - 6 - PDFfiller located online dated September 2012, CAR likely has in its possession recent, updated presentations 2 that contain (i) information on membership dues, (ii) records of REBS’ dividend payments to CAR, (iii) information on initial costs and ongoing operating costs of zipForm, and (iv) zipLogix/zipForm financial metrics—all of which are highly relevant to PDFfiller’s antitrust counterclaim. First, because CAR bundles access to zipForm and the associated cost into its membership fees, information in CAR presentations will go directly to the price at which zipForm has been offered over an extended period of time. Additionally, REBS’ dividend payments will provide information regarding CAR’s incentive to monopolize the PTM Software market. Similarly, information on CAR/REBS/zipLogix operating costs is related to the determination of barriers to entry of expansion in the PTM Software market. Lastly, zipLogix/zipForm financial metrics are clearly relevant to the calculation of PDFfiller’s lost profits. Because the presentations withheld by CAR also include business strategy plans, it is also likely that these presentations include discussions of CAR’s strategy with respect to monopolizing the market for PTM Software in California by tying zipForm to its EFRE products. PDFfiller is entitled to receive CAR’s strategy presentations as they are directly responsive to its antitrust claims. Given the relevance of the CAR strategy presentations and the CAR Google Analytics information and the abbreviated time allotted by the Court for antitrust discovery, the Court should order CAR to comply on an expedited basis with its antitrust discovery obligations. 2 Mr. Singer noted in his deposition that these presentations are given at least once a year. (See Singer Depo. Tr. at 203:3-10) (Michaels Decl., Ex. C)) (ECF 276-3). Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 8 of 19 - 7 - C. PDFfiller’s Takedown Notices And Responses CAR seeks all Digital Millennium Copyright Act (“DMCA”) takedown notices ever sent to PDFfiller and each of PDFfiller’s responses to any such notice. CAR’s unlimited and sweeping request is not proportional to the claims and defenses in the case. The DMCA takedown notice that is clearly relevant to this matter is the letter CAR itself sent to PDFfiller. CAR obviously is in possession of that notice, and it also is in receipt of PDFfiller’s response thereto. CAR has not articulated why it needs every DMCA notice sent to PDFfiller by unrelated third-parties concerning alleged copyright issues unrelated to the intellectual property which is the subject of this case. Takedown notices unrelated to the copyrights pled in this case are not pertinent to CAR’s claims of copyright infringement with respect to CAR’s forms. Moreover, CAR’s broad, sweeping request for all DMCA notices PDFfiller has received, just like its incredibly broad requests for all PDFfiller tax returns and financial information and all PDFfiller investor presentations, stands in sharp contrast to the arbitrary and unfair boundaries CAR attempts to draw around the documents it will produce in response to PDFfiller’s discovery requests. Thus, for example, CAR suggests that it should be permitted to limit its production of information concerning the copyrightability of its forms to correspondence with the U.S. Copyright Office relating to the 64 forms referenced in the Complaint. Of course, information regarding the copyrightability of the CAR forms as a whole is relevant to determining whether the 64 forms at issue are the proper subject of copyright protection. If the content of CAR real estate forms is dictated by federal and state statutes or regulations and there are only a limited number of ways to convey that content, then the forms will lack the requisite originality needed to be copyrightable. See 4 NIMMER ON COPYRIGHT § 13.03 (2017) (When “the common idea is only capable of expression in [a] more or less stereotyped form . . . [no] Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 9 of 19 - 8 - actionable similarity” exists.). CAR should be required to produce the information it has concerning the copyrightability of its forms – an issue that goes squarely to CAR’s copyright claims and PDFfiller’s defenses to those claims. CAR’s broad-brush and unlimited demands for irrelevant information should be rejected. The Court should instead require CAR to produce information that clearly bears on key claims and defenses in this litigation. D. PDFfiller’s Database Schemas And Log Data CAR suggests that it needs schema for all PDFfiller databases regardless of whether the databases contain information relevant to this litigation. CAR seeks this information even though (a) PDFfiller explained to CAR at the technical meet-and-confer at the December Meeting that the database that could potentially include relevant information is PDFfiller’s landing page database; (b) PDFfiller already produced thousands of records from that database; and (c) after the December Meeting, PDFfiller, in response to CAR’s request, provided the schema for its landing page database. CAR, true to form, was unsatisfied with the vast troves of information PDFfiller voluntarily provided and now seeks irrelevant database schema. Tellingly, CAR had no answer when PDFfiller asked CAR what additional PDFfiller database information CAR needed. CAR’s inability to articulate what it needs, or why the information it seeks is relevant, is consistent with its pattern and practice of demanding ever-more documents while refusing to provide PDFfiller with keywords to search for the information CAR seeks or explanations as to why the information CAR wants is relevant to the claims and defenses in this case. In fact, at the parties’ December Meeting, CAR was unable to explain why it had refused to provide keywords. CAR also acknowledged that PDFfiller had been forthcoming given the limited direction in CAR’s discovery requests. To that end, PDFfiller has outlined in several previous Court filings, Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 10 of 19 - 9 - including its Motion for Protective Order and Reply in support thereof (ECF 202 & 229), the incredible amount of time and money it has spent to ensure that CAR received any possible information that could be relevant to the claims and defenses in this case. The simple point is that CAR’s overly broad request for all PDFfiller database schemas—regardless of the relevance of those databases to the claims at issue—is objectionable. Considering that PDFfiller maintains a technically complex system of multiple databases which have nothing to do with this case CAR’s demand is not only meritless, but also harassing. What is more, CAR’s proffered justification for its demand is its truly absurd claim that PDFfiller’s CEO “confirmed” that PDFfiller conducted inadequate searches for documents, “withheld” responsive data, and “admitted” that PDFfiller is still withholding additional responsive information. (See ECF 284 at 16.) CAR quite clearly cannot justify a demand for unspecified and irrelevant database schema with false contentions about non-existent statements from PDFfiller’s CEO. CAR’s new request for “user log data” should also be rejected. First, it is not even clear what CAR means by “similar log data for all landing page URLs associated with the C.A.R. forms.” (See ECF 284 at 17.) Second, this request is not tethered to any specific Request for Production previously made by CAR. Whatever this new overly broad, disproportionate, and irrelevant request seeks, it is the first time CAR has made it. Third, to the extent CAR is seeking copies of user log data in native form, it is seeking information that does not exist. As PDFfiller explained to CAR on multiple occasions, including at the December Meeting, PDFfiller does not maintain user identifiable data. Instead, PDFfiller maintains information about IP addresses that are used to access its website for security purposes. It is precisely because this information is de- identified and not associated with specific users that PDFfiller itself sought discovery from CAR Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 11 of 19 - 10 - regarding whether particular IP addresses that had been used for several years to access the PDFfiller website were associated with CAR. Although CAR confirmed that this was the case, it has refused to produce information relevant to its pre-Complaint access of the PDFfiller website. This information is clearly responsive to PDFfiller Request for Production No. 40 and is the subject of PDFfiller’s pending Motion to Compel. Additional information relevant to CAR’s access to the PDFfiller website includes the PowerPoint presentation 3 created by CAR’s Chief Technology Officer, Mr. Joshua Sharfman. Mr. Sharfman has admitted that the presentation concerns the factual investigation of PDFfiller’s platform and technology he undertook of his own accord. This presentation will show that CAR has known for years how PDFfiller’s system worked, withheld filing a lawsuit notwithstanding that knowledge, and is now making demands for irrelevant information although it already has all the information it needs, merely to exert pressure on PDFfiller and run-up costs. For this reason alone, CAR’s continued refusal to produce the Sharfman PowerPoint presentation is without merit. CAR has waived any claimed work-product protection following the extensive testimony by Mr. Sharfman at his deposition about the experiments discussed in the PowerPoint presentation. See Sharfman Depo. Tr. at 8:14-26:3; 27:25-28:22 (Michaels Decl., Ex. D (ECF 276-4); see also Whitman by Whitman v. United States, 108 F.R.D. 5, 7 (D.N.H. 1985) (“It is well accepted that an evidentiary privilege may be waived by the actions or inactions of the party claiming the protections[; a] privilege may be waived by allowing a deponent to . . . testify[ ] in an examination before trial as to matters covered by the attorney-client privilege or . . . orally 3 This presentation is also relevant to PDFfiller’s Request for Production No. 39: All documents concerning the date that You first learned of the alleged copyright infringement complained of in the Complaint. (Michaels Decl., Ex. A (ECF 276-1)). Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 12 of 19 - 11 - disclosing matters to that party at a pretrial conference.”). Courts in this Circuit have held that testimony at a deposition can waive a defendant’s qualified privilege. Id. (holding that defendant’s testimony at his deposition describing individuals present at a peer review hearing and an experts’ opinion on the procedure used during an operation waived privilege as to the peer review records because “[t]he information obtained from [the] deposition indicates that the peer review record may contain [relevant] information.”). Here, just as in Whitman, Mr. Sharfman testified in great detail regarding the experiments he conducted with respect to the PDFfiller website, and his PowerPoint presentation summarized his findings from those experiments. See Sharfman Depo. Tr. at 62:24 to 63:5 (Michaels Decl., Ex. D (ECF 276-4). Mr. Sharfman’s extensive testimony regarding the material in the PowerPoint presentation operated effectively as a waiver of any privilege CAR contends it could claim with respect to the presentation. The Court should also find that CAR waived any claim of work-product privilege with respect to Mr. Sharfman’s presentation because PDFfiller “has [a] substantial need of the materials in the preparation of [this] case and . . . is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See Fed. R. Civ. P. 26(b)(3); see also Upjohn Co. v. United States, 449 U.S. 383, 400-02 (1981) (acknowledging that the work product doctrine may be overcome with respect to materials that do not constitute “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation”). PDFfiller has a substantial need for the presentation because, among other things, CAR has refused to produce documents related to its DMCA anti-circumvention claim. Although CAR alleges that PDFfiller “bypassed” technological protection measures associated with CAR Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 13 of 19 - 12 - forms, it simply refuses to produce any information about those measures. Because Mr. Sharfman’s presentation summarizes his experiments regarding PDFfiller’s alleged “bypassing” of CAR’s technological protection measures, it necessarily contains information regarding PDFfiller’s alleged circumvention of these protection measures. And until CAR provides documents related to these technological protection measures, PDFfiller has no other means to obtain this information. Ultimately, “a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party.” In re Grand Jury, 219 F.3d 175, 182 (2d Cir. 2000) (emphasis in original). E. CAR’s Request To Inspect And Test PDFfiller’s Platform CAR’s request to inspect and test PDFfiller’s platform is CAR’s third attempt to get the Court’s blessing to engage in the most intrusive form of discovery possible. Just as it did twice before, the Court should reject CAR’s request to inspect PDFfiller’s platform. CAR’s demand for an inspection was misguided and inappropriate the first two times it was first raised. CAR’s demand for an inspection was nothing other than an attempt to drive-up PDFfiller’s costs and get a backdoor, judicially-sanctioned peek into PDFfiller’s platform, a software platform competitive with the zipForm software package that is majority-owned by CAR. Now, after a fulsome opportunity to cross-examine PDFfiller’s CEO and its technical expert about every aspect of PDFfiller’s platform at the December Meeting, CAR’s request can only be described as intentionally harassing. By CAR’s own admission, the December Meeting left CAR with no further questions about how the PDFfiller system worked. Further, after the December Meeting, PDFfiller gave CAR essentially everything it asked for in a follow-up email. Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 14 of 19 - 13 - CAR has never articulated why its needs or is entitled to inspect PDFfiller’s systems and servers for discovery purposes. PDFfiller has already answered questions about its systems and servers during Mr. Shakhnovich’s deposition and at the December Meeting. CAR’s demand for an inspection should be rejected for that reason alone. What is more, CAR’s assertion that giving it access to PDFfiller’s systems and servers “would not cause any business disruption” is farcical. As explained in PDFfiller’s Motion for Protective Order and Reply in support thereof (ECF 202 & 229), PDFfiller’s production system has hundreds of servers and handles hundreds of thousands of unique visitors per day. PDFfiller has extensive security measures that prevent access to the system. It would be extremely difficult if not impossible to “show” CAR the entirety of PDFfiller’s platform, “i.e., the collection of web servers, databases, data/file storage, and other technical resources used to run PDFfiller’s websites” (see ECF 284 at 17). Finally, CAR’s demand for technological information from PDFfiller is richly ironic. PDFfiller has produced tens of thousands of pages of documents about its platform. What is more, the basic technology, functionality, and features associated with the platform are public- facing and available through the PDFfiller website. CAR, by its own admission, has taken ample advantage of PDFfiller’s website and has subscribed to, and conducted experiments, with all features available through the website. PDFfiller has also provided CAR with deposition testimony, demonstrations, and question-and-answer sessions with its executives and experts regarding its technology. Yet, at this point, it is CAR—not PDFfiller—who is refusing to explain how its own technology works. Indeed, despite the fact that CAR has asserted a claim for a violation of the DMCA, it refuses to disclose and describe the technological protection measures (if any) that CAR Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 15 of 19 - 14 - purportedly uses to protect its EFRE forms. CAR uses circular reasoning to assert that “[w]e’re not alleging that they somehow broke the password, we’re alleging that they . . . bypassed [CAR’s] documents which are password protected.” (ECF 284 at 5.) According to 17 U.S.C. § 1201(a)(3)(A), however, “to ‘circumvent protection afforded by a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Because bypassing and breaking (i.e., impairing or deactivating) both constitute circumvention under the statute, CAR must explain the nature of the “passwords” at issue, including how they work and the related technology. PDFfiller is entitled to know this information. PDFfiller has already made available the relevant technical information about its platform through document productions, interrogatory responses, deposition testimony, demonstrations and extensive and intrusive question-and-answer sessions of its CEO and technical expert. CAR, on the other hand, has refused to produce even the most basic information about the technological safeguard that it alleges PDFfiller “bypassed.” The Court should deny CAR’s Cross-Motion and instead order CAR to produce on an expedited basis the technical information it has withheld from discovery. III. CONCLUSION For the foregoing reasons, PDFfiller respectfully requests that CAR’s Cross-Motion be denied, that PDFfiller’s Motion be granted, and that the Court direct CAR to produce documents related to (i) the security and protection measures implemented to prevent unauthorized access of the CAR forms (responsive to PDFfiller Request for Production Nos. 51, 53, 54), (ii) CAR’s access of the PDFfiller website (responsive to PDFfiller Request for Production Nos. 39, 40), Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 16 of 19 - 15 - (iii) CAR’s copyright enforcement efforts (responsive to PDFfiller Request for Production No. 42), (iv) CAR strategy PowerPoint Presentations (responsive to PDFfiller Request for Production Nos. 1-2, 11-14, 52, 55, 63-66, 80), (v) CAR’s use of Google Alerts and Analytics (responsive to PDFfiller Request for Production Nos. 56-59, 61-62,74), (vi) the copyrightability of the CAR forms (responsive to PDFfiller Request for Production No. 37) and (vii) produce documents and provide interrogatory responses relevant to PDFfiller’s antitrust counterclaim (responsive to PDFfiller Request for Production Nos. 50-52, 54-72, 75-78 and Interrogatory Nos. 4-5). Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 17 of 19 - 16 - Dated: April 20, 2018 Respectfully submitted, /s/ Michael G. Strapp Michael G. Strapp BBO # 653884 DLA Piper LLP (US) 33 Arch Street, 26th Floor Boston, MA 02110-1447 Telephone: 617.406.6031 Facsimile: 617.406.6100 michael.strapp@dlapiper.com Paolo Morante (admitted pro hac vice) paolo.morante@dlapiper.com Adam I. Steene (admitted pro hac vice) adam.steene@dlapiper.com DLA PIPER LLP (US) 1251 Avenue of the Americas, 27th Floor New York, NY 10020-1104 Telephone: 212.335.4500 John Nading (admitted pro hac vice) DLA PIPER LLP (US) 500 8th Street NW Washington, DC 20004 Telephone: (202) 799-4157 Facsimile: (202) 799-5157 john.nading@dlapiper.com Megan Michaels (admitted pro hac vice) DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105-2933 Telephone: (415) 836-2516 Facsimile: (415) 415-7320 megan.michaels@dlapiper.com ATTORNEYS FOR DEFENDANTS Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 18 of 19 CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on April 20, 2018 /s/ Michael G. Strapp Michael G. Strapp Case 1:16-cv-11021-IT Document 289 Filed 04/20/18 Page 19 of 19