Law www-ia R s Mmn ¥nw1’am1¢2xs LLP \,'1>A 13:*ERy mi Csmpripcint Drive tiuitc l05 1x·iaa¤m¤»m,c·i·¤s4si May 305 20 I 3 _ Ts<<:u,?24.2i60 _ _ _ n i· ii¤u.i14.z1si DMD-Y &>€*‘él€ iaiinniwmii Fi.llCi:i`i1€I‘;€St.COI]1, Tm:. 10} Izmcvaxicsn Place, # A Santa Bmbmra, Caiifuitzxia 93108 . ci'0 ` Thcsmas N. Harding Sccd Macksili LLP 1333 Anzicsipa St., Suite 200 A Santa Barham, CA 93102 RR; Lumen View Techn0l0g_1¢LLiCv. I·YmITi:;eiB»;·st.c¤uz, Inn., S.D.N.Y. Dean: Mr. Seigicz ~ This firm raprcscxiis Lumen View Tcclmulmgy LLC {"Plai1itifi“‘) in connection with U.S. Paicni Number 3,069,073, cmitlcd "Sysicm and Mctimci ibr Facilitating Bilaicrai and Mulsiiaiewal Dccisimr Making" ("tlac '073 Patcmt'). We writu: tu you · ` as Diiccmr of Operations for FiudT`iicBeas1.c0m, Inc. ("C0rnp:my") rcgarding Coiiipaxijfs |,ll1iiC€I1Si3d use of subjcct matter ccvcxcd by thc claims cf thc 'U73 Patcm. i Based cu cur cxaniinaticn, Ccmpmifs Assistivlc lbaturc meats ODS cr rmiic claims i uf thc ‘073 Patent, as imma iiilly described in thc Ccmplaim attached harctc which already has bccn filed against Cunipauy in thc Uriivad States District Court for the Scimhcm District of New York (thc "Suit"), and that Company has dircnztcd this infringing activity to residents in the State mI`Ncw York. A service ccipy ui Lhe: Complaint is aiiaciicd. The Complaint has bcen iilcci and served mi thc (liimpamys New York mgiszlcrcd agent listed above. Picasc mite that a mspciusc tu the Cezimplainl ("Rcsp0:isc") must lic iilcd within twcniy»imc` (21) days Iicm thc date: cf scrvicc or sa dafauit judgment may bc cntcrcd against the Comgiaiiy. if (Icimpmy is iiitcrcsicd in avoiding thc- nccxci iiir Hling icsponsivc pleadings, YGU = must cumact ua (prim tc: thc due data of Cinmpanys Response) m discuss liizcusi; · * terms. To facilitate such discussicms. please be pmpared tc discuss the c:»;tcn1u1’thc Company's use ol` and revenues gonerated fiom the features described in tho Complaint. Vi/`hile it is Plaintiffs dcsira that the parties amicably resolve this matter, please be advised that Plaintiff is prepared tor ful1—sca1e litigation to enforce its rights. This ` includes all motion practice as well as protracted discovery. ` Should Company engage in early motion practice, however, we must advise that it will force us to reevaluate and likely increase Plaintiffs scttlcmcnt demand. Please be advised that for cach nondispositive motion filed by Company, Plaintiff will incorporate an escalator into its settlement demand to cover the costs of its opposition papers and argument. Preservation Request Plaase allow this correspondence to also serve as our request for preservation of evidence to include all documents, tangible things and elcctronically stored information ("ESI") potentially relevant to thc issues in this case. As used in this Preservation Notice, “you” and "your" rcfcrs to Company, and its predecessors, successors, parents, subsidiaries, divisions or affiliates, and their respective officers, directors, partners, agents, attorneys, employees or other persons occupying similar positions or performing similar functions. You should anticipate that much of the inibrmation subject to disclosure or responsive Lo discovery in this matter is stored on your computer systcms or other media and devices (including personal digital assistants, smait phones, BlackBerry, iPhone, voice messaging systcms, online repositories and call phones). ESI should be afforded thc broadest possible definition and includes (by way of example and not as an exclusive list) potentially relevant information electronically, magnetically or optically stored as: · Digital communications (o.g., email, voicemail, instant messaging); · Word processed documents (e.g., Word documents and drafts); · Spreadsheets and tables (e.g., Excel worksheets); • Accounting application data (c.g., Quickbooks, Peachtree data files); · Image and facsimile files (o.g.; PDF, TIFF, JPG, GIF images); · Sound recordings (ag., .WAV and .MP3 files); · Viclco and animation (e.g., .AVl and .MOV); • Databases (c.g., Access; Oracle, SQL, SAP); · Contact and relationship management data (e. g., Outlook, ACT); · Calendar and diary application dz1la(e.g., Outlook PST, Gmail, blogs); · Online access data (e.g., temporary internet iiles, history, cookies); • Network access and server activity logs; · Proj ect management application data; · Computer aided desi gn; and · Backup and archival tiles (e. g., ZIP and .Gl-IO) ESI resides not only in areas of electronic, magnetic or optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You are obliged to preserve potentially relevant evidence from both of these sources of ESI, even if you do not anticipate producing such ESI. The demand that you preserve both accessible and inaccessible ESI is reasonable and necessary. You will be asked in this litigation to identify all sources of ESI you _ decline to produce and demonstrate to the court why such sources are not reasonably accessible. For good cause shown, the court may order production ol` ESI even if it is not reasonably accessible. Accordingly, even ESI that you deem reasonably inaccessible must be preserved in the interim so as not to deprive Plaintiff of its right to secure this evidence or request that the court order it to be produced. Preservation Requires Immediate Intervention You must act immediately to preserve potentially relevant ESI including, without limitation, from six (6) years prior to the date of the filing of the Suit up to the present time, and ongoing, in any way relating to the products implicated by the 'O73 Patent. Adequate preservation of ESI requires more than simply retraining trom efforts to destroy or dispose ol` such evidence. You must also intervene to prevent loss due to routine operations and employ proper techniques and protocol suited to protection of ESI. You should be advised that sources of` ESI that are altered and erased may very well be detectable and subject you to sanctions. You should also be advised that sources ol` ESI are altered and erased by continued use of your computers and other devices. Consequently, alteration and erasure may result from your failure to act diligently and responsibly to prevent loss or corruption ol`ESI. Suspension of Routine Destruction i We request that you immediately initiate a litigation hold for potentially relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and audit compliance with this litigation hold. Yotu failure to do so is gross negligence. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate ` to cause the loss of potentially relevant ESI. Examples of such Features and operations incl ude: · Purgin g the contents of email repositories by age, capacity or other criteria; · Using data or media wiping, disposal, erasure or encryption utilities or devices; · Overwriting, erasing, destroying or discarding backup media; • Reassigning, re-imaging or disposing ofsystems, servers, devices or media; · Running antivirus or other programs affecting wholesale metadata alteration; • Releasing or purging online storage repositories; • Using metadata or stripper utilities; • Disabling server or IM logging; and · Executing drive or lile defragrnentation or compression programs. Obligation to Guard Against Deletion It should be anticipated that your employees, officers or others may seek to hide, destroy or alter ESI and you should act to prevent or guard against such actions. Especially where company machines have been used for Internet access or personal communications, it should be anticipated that users may seek to delete or destroy inlbnnation unrelated to the Suit that they regard as personal, confidential or embarrassing and, in doing so, may also delete or destroy potentially relevant ESI. This concern is not one unique to you or your employees or oiiicers. It is simply an event that occurs with such regularity in electronic discovery efforts that any custodian of ESI and their counsel are obliged to anticipate and guard against its occurrence. You should take affirmative steps to prevent anyone with access to your data, , systems and archives lirom seeking to modily, destroy or hide electronic evidence on network or local hard drives. With respect to local hard drives, a method ol` protecting existing data on local hard drives is through the creation and authentication of a lbrensieally qualified image of the sectors of the drive. With respect to speciiic ESI in relevant to the Suit, we understand that Your employees may have frequently used computers and smart phones. We also understand that employees regularly communicate via email. You should take affirmative steps to prevent anyone with access to these systems from seeking to _ modify, destroy, or delete any ESI contained on their laptops, PCs, or personal smart phones. l With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange) or networked storage (often called a user's network share), the complete contents of each user's network share and email accounts should also be preserved. To the extent that officers, board members or employees have sent or received _ potentially relevant emails or created potentially relevant documents away from the office, you must preserve the content of the systems, devices and media used for these ptuposes. Similarly, if employees, officers or hoard members used online or browser-based email accounts or services (such as Gmail) to send or receive potentially relevant messages and attachments, the contents of these account mailboxes should be preserved. Agents and Third Parties Your preservation obligation extends beyond ESI in your care, possession or custody and includes ESI in thc custody of others that is subject to your direction or control. Accordingly, you must notify any current or former agent, employee, custodian or contractor in possession ol` potentially relevant ESI to preserve such ESI to the full extent ol` your obligation. System Sequestration We suggest that with respect to certain individuals with significant knowledge of Coinpar1y’s products implicated by the 'O73 Patent, that you remove their ESI systems, media and devices from service to properly sequester and protect them. This may be the most appropriate and cost effective preservation step to enstue non- destruction of ESI. We are available to discuss reasonable preservation steps of ESI in your possession, custody or control. I-Iowever, you should not defer preservation steps pending such discussion because ESI may be lost or corrupted as a consequence of delay. Should your failure to preserve potentially relevant ESI result in the loss, corruption or inability to produce evidence in this matter, such failure may constitute spoliation nf cvidmxccc and we will nut hesitate to sack sanctions, court costs, or sm independent action for sipoliaztinm whim: appmprizihc. 'I`hamk you ibr your :»1tir:—11tim17 tcv this matic:. We 100k fbrward to hearing {3`OITI you ` a5 s00n, as pussiblc, I \·'m·v Lmlv Iuuraal ¤fAet0n Law Partmzrs z’\UZE1ChD1€11IS