Re:Strikeforce Technologies, Inc. v. Duo Security, Inc., et al.,
No. 2:16-cv-03571-JMV-MF ( Lead Case)
Dear Judge Falk:
We represent the plaintiff, StrikeForce Technologies, Inc. (“StrikeFor ce”), in the above-captioned case. We write in response to defendants’ letter dated September 6, 2017. As previously stated, StrikeForce opposes any extension of the deadlines in this case. As the defendants correctly note, fact discovery closes on November 1, 2017. Up to this very day, however, defendants have done nothing, or next to nothing, to seek discovery from StrikeForce. For example, up until this past Tuesday (9/5), only Duo served discovery requests on StrikeForce. Defendant Centrify just served its first set of interrogatories on StrikeForce three days ago (9/5). To date, Centrify has not requested any documents from StrikeForce. And defendant TrustWave has yet to seek discovery from StrikeForce of any kind. Moreover, none of the defendants have served a deposition notice on StrikeForce, nor have they taken any third party depositions. Further, none of the defendants has requested an inspection of StrikeForce’s source code even though it has been available to them for more than a year. In short, defendants have failed to seek discovery up to this point and now ask the Court to bail them out by moving the deadlines. That is not fair and will only reward defendants for their dilatory tactics. The Court set these deadlines last November – ten months ago. StrikeForce has been operating under the same deadlines as defendants and is ready to proceed under the Court’s current schedule.Defendants try to blame StrikeForce for their lack of diligence by asserting that StrikeForce has not produced any of the limited discovery requested by defendants. That is not true. At the same time StrikeForce was negotiating ESI protocols with all three defendants (at the behest of the defendants) it also produced more than 96,000 pages of documents responsive to Duo’s discovery requests. Duo only first served search terms for both non-email and email ESI, pursuant to the agreed ESI protocol, on August 28; ten days ago. StrikeForce informed Duo that it is working on gathering and producing documents that hit on those search terms. Centrify and
Honorable Mark Falk, U.S.M.J.September 7, 2017 Page 2
Trustwave have not requested a single document from StrikeForce in this case. Contrary to the impression defendants attempt to create, StrikeForce has been cooperating with defendants throughout the case and it is unfair and incorrect to assert otherwise. As for the timing of the Markman hearing, as StrikeForce noted previously in the parties’ joint statement regarding the Markman schedule (D.I. 88), while it would have been ideal to know the Court’s claim constructions prior to when expert reports are due on November 1, if that is not the case, the parties will simply do what parties do in every other patent case – serve expert reports which take into account the competing constructions. The parties have had ample time to prepare for that scenario. Also, as defendants noted in their letter, the District of Massachusetts recently issued a claim construction memorandum and order in a sister case brought by StrikeForce against different defendants. There, the district judge agreed with StrikeForce’s construction of “host computer,” and also agreed with StrikeForce that the claim preambles are not limiting. The court adopted the Delaware court’s construction of access channel/authentication channel, although it disagreed with the Delaware court’s reasoning for doing so. StrikeForce notified defendants it is willing to adopt the Massachusetts memorandum and order in its entirety and asked defendants whether they will agree to the same. Thus far, only Duo has responded verbally that it does not agree to adopt the order. StrikeForce is waiting for a response from the other defendants, which it requested by today. In any event, StrikeForce will provide the Massachusetts memorandum opinion and order to the Court tomorrow. Defendants also assert that third-party document discovery has raised a standing issue that may require dismissal. As StrikeForce informed Duo yesterday, there is no merit to this argument and when defendants finally get around to taking depositions, that will be confirmed. In light of the above, StrikeForce does not believe the Court should be burdened with another call regarding the schedule. Instead, the parties should proceed under the current schedule. However, should the Court believe it would be helpful to have a telephone conference with the parties, StrikeForce is available whenever it is convenient for the Court.
Respectfully submitted,
JONATHAN M. KORN
No. 2:16-cv-03571-JMV-MF ( Lead Case)
Dear Judge Falk:
We represent the plaintiff, StrikeForce Technologies, Inc. (“StrikeFor ce”), in the above-captioned case. We write in response to defendants’ letter dated September 6, 2017. As previously stated, StrikeForce opposes any extension of the deadlines in this case. As the defendants correctly note, fact discovery closes on November 1, 2017. Up to this very day, however, defendants have done nothing, or next to nothing, to seek discovery from StrikeForce. For example, up until this past Tuesday (9/5), only Duo served discovery requests on StrikeForce. Defendant Centrify just served its first set of interrogatories on StrikeForce three days ago (9/5). To date, Centrify has not requested any documents from StrikeForce. And defendant TrustWave has yet to seek discovery from StrikeForce of any kind. Moreover, none of the defendants have served a deposition notice on StrikeForce, nor have they taken any third party depositions. Further, none of the defendants has requested an inspection of StrikeForce’s source code even though it has been available to them for more than a year. In short, defendants have failed to seek discovery up to this point and now ask the Court to bail them out by moving the deadlines. That is not fair and will only reward defendants for their dilatory tactics. The Court set these deadlines last November – ten months ago. StrikeForce has been operating under the same deadlines as defendants and is ready to proceed under the Court’s current schedule.Defendants try to blame StrikeForce for their lack of diligence by asserting that StrikeForce has not produced any of the limited discovery requested by defendants. That is not true. At the same time StrikeForce was negotiating ESI protocols with all three defendants (at the behest of the defendants) it also produced more than 96,000 pages of documents responsive to Duo’s discovery requests. Duo only first served search terms for both non-email and email ESI, pursuant to the agreed ESI protocol, on August 28; ten days ago. StrikeForce informed Duo that it is working on gathering and producing documents that hit on those search terms. Centrify and
Honorable Mark Falk, U.S.M.J.September 7, 2017 Page 2
Trustwave have not requested a single document from StrikeForce in this case. Contrary to the impression defendants attempt to create, StrikeForce has been cooperating with defendants throughout the case and it is unfair and incorrect to assert otherwise. As for the timing of the Markman hearing, as StrikeForce noted previously in the parties’ joint statement regarding the Markman schedule (D.I. 88), while it would have been ideal to know the Court’s claim constructions prior to when expert reports are due on November 1, if that is not the case, the parties will simply do what parties do in every other patent case – serve expert reports which take into account the competing constructions. The parties have had ample time to prepare for that scenario. Also, as defendants noted in their letter, the District of Massachusetts recently issued a claim construction memorandum and order in a sister case brought by StrikeForce against different defendants. There, the district judge agreed with StrikeForce’s construction of “host computer,” and also agreed with StrikeForce that the claim preambles are not limiting. The court adopted the Delaware court’s construction of access channel/authentication channel, although it disagreed with the Delaware court’s reasoning for doing so. StrikeForce notified defendants it is willing to adopt the Massachusetts memorandum and order in its entirety and asked defendants whether they will agree to the same. Thus far, only Duo has responded verbally that it does not agree to adopt the order. StrikeForce is waiting for a response from the other defendants, which it requested by today. In any event, StrikeForce will provide the Massachusetts memorandum opinion and order to the Court tomorrow. Defendants also assert that third-party document discovery has raised a standing issue that may require dismissal. As StrikeForce informed Duo yesterday, there is no merit to this argument and when defendants finally get around to taking depositions, that will be confirmed. In light of the above, StrikeForce does not believe the Court should be burdened with another call regarding the schedule. Instead, the parties should proceed under the current schedule. However, should the Court believe it would be helpful to have a telephone conference with the parties, StrikeForce is available whenever it is convenient for the Court.
Respectfully submitted,
JONATHAN M. KORN
