Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728and distraction on Defendants as Plaintiffs try to cram discovery into a truncatedschedule. As discussed below, Defendants are producing documents for all sevenareas identified in this Third Joint Stipulation. What Defendants have resisted isPlaintiffs’ scorched-earth insistence on collection, review, and delivery of virtuallythe entire recorded history of Defendants and their products. Plaintiffs have askedfor all documents “ related to, regarding or reflecting” virtually every department:marketing, advertising, sales, promotion, design, development, testing, financing,investment, or licensing. Plaintiffs demand everything from the lowest levelengineer’ s ruminations and e-mails, to drafts of materials that were never used orreviewed by a manager. These materials are not probative. This is just harassmentof Defendants, who are miniscule companies by comparison to Plaintiffs, and whoPlaintiffs know are already constrained by budget cuts and reductions in force. 2/Plaintiffs’ demand that Defendants reformulate their product to extract andproduce customer usage information that has never existed is stunning in itsaudacity. In May 2001, Defendants stopped collecting any data about consumerusage in response to resource constraints and consumer uproar about data collectionpractices by TiVo. See Attachment A, Declaration of Philippe Pignon 2, 7-8,and Exs. A – C. Although prior to that time Defendants had collected someanonymous information about use of prior PVRs, Defendants have never collectedany data about the ReplayTV 4000 (which was released six months after datacollection stopped). Moreover, even the data previously collected about usage ofprior PVRs did not include information about Commercial Advance or Send Show,nor information about the viewing or recording of particular shows – all of whichPlaintiffs demand here. Plaintiffs are not asking for existing data; rather in theguise of a discovery request, they demand that Defendants substantially reformulate2/Ironically, at the same time that Plaintiffs ask for every irrelevant e-mail and draft, theyhave refused to produce their top-level business and marketing plans, or to identify all witnessesat significant levels in their companies.5