Case 6:22-cv-00031-ADA Document 124-4 Filed 07/10/23 Page 1 of 4
`
`Exhibit 3
`
`
`
`Exhibit 3
`
`
`
`Case 6:22-cv-00031-ADA Document 124-4 Filed 07/10/23 Page 2 of 4
`
`From:
`To:
`Cc:
`Subject:
`Date:
`Attachments:
`
`Brann, Elizabeth L.
`Bittner, Michael; Google-Flyp
`FLYP-Google
`RE: [Flyp/Google] Motion to Quash West Subpoena
`Monday, May 8, 2023 1:56:07 PM
`image001.png
`
`Michael,
`
`Google agrees to withdraw the subpoena to Mr. West without prejudice to re-serving it after Google pleads its inequitable conduct
`defense.
`
`Best regards,
`
`Liza
`
`
`
`
`
`Elizabeth Brann | Partner, Litigation Department
`Paul Hastings LLP | 4747 Executive Drive, Twelfth Floor, San Diego, CA 92121 | Direct:
`+1.858.458.3014 | Main: +1.858.458.3000 | Fax: +1.858.458.3005 |
`elizabethbrann@paulhastings.com | www.paulhastings.com
`
`
`
`From: Bittner, Michael <MBittner@winston.com>
`Sent: Thursday, May 4, 2023 1:11 PM
`To: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: [EXT] Re: [Flyp/Google] Motion to Quash West Subpoena
`
`Liza,
`
`Google has not pleaded inequitable conduct in its answer or affirmative defenses, which would be subject to a heightened
`standard under Rule 9b and challenge by Flyp under Rule 12. Including inequitable conduct allegations in the contentions
`does not escape these requirements and is not a sufficient pleading.
`
`Because the subpoena requests information regarding a defense that has not been pleaded, because it seeks privileged
`information, and because it otherwise seeks information equally accessible from a party (Flyp), it places an undue burden on
`Mr. West.
`
`Michael
`
`Michael A. Bittner
`Partner
`Winston & Strawn LLP
`M: +1 214-697-4396
`
`(Sent from my iPhone)
`
`
`From: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>
`Sent: Thursday, May 4, 2023 2:35:43 PM
`To: Bittner, Michael <MBittner@winston.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: RE: [Flyp/Google] Motion to Quash West Subpoena
`
`Hi Michael,
`
`We disagree that the subpoena calls solely for privileged information. For example, it would be perfectly appropriate to ask about Mr.
`West’s knowledge of the prior art. Moreover, we have described the basis for Google’s inequitable conduct defense in our invalidity
`contentions. With that in mind, please explain why the subpoena imposes an undue burden.
`
`
`
`Case 6:22-cv-00031-ADA Document 124-4 Filed 07/10/23 Page 3 of 4
`
`
`Best regards,
`
`Liza
`
`
`From: Bittner, Michael <MBittner@winston.com>
`Sent: Tuesday, May 2, 2023 4:11 PM
`To: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: [EXT] Re: [Flyp/Google] Motion to Quash West Subpoena
`
`That’s acceptable. Thank you.
`
`Michael A. Bittner
`Partner
`Winston & Strawn LLP
`M: +1 214-697-4396
`
`(Sent from my iPhone)
`
`
`From: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>
`Sent: Tuesday, May 2, 2023 6:10:19 PM
`To: Bittner, Michael <MBittner@winston.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: RE: [Flyp/Google] Motion to Quash West Subpoena
`
`Hi Michael,
`
`That should be fine. How about a one week extension?
`
`Liza
`
`
`
`
`Elizabeth Brann | Partner, Litigation Department
`Paul Hastings LLP | 4747 Executive Drive, Twelfth Floor, San Diego, CA 92121 | Direct:
`+1.858.458.3014 | Main: +1.858.458.3000 | Fax: +1.858.458.3005 |
`elizabethbrann@paulhastings.com | www.paulhastings.com
`
`
`
`From: Bittner, Michael <MBittner@winston.com>
`Sent: Tuesday, May 2, 2023 3:43 PM
`To: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: [EXT] Re: [Flyp/Google] Motion to Quash West Subpoena
`
`Liza,
`
`Tomorrow is the deadline for compliance and thus the deadline for our motion, can we agree to a short extension of these
`deadlines until you get back to us on Google’s position?
`
`Michael
`
`Michael A. Bittner
`Partner
`Winston & Strawn LLP
`M: +1 214-697-4396
`
`
`
`Case 6:22-cv-00031-ADA Document 124-4 Filed 07/10/23 Page 4 of 4
`
`(Sent from my iPhone)
`
`
`From: Brann, Elizabeth L. <elizabethbrann@paulhastings.com>
`Sent: Tuesday, May 2, 2023 5:41:39 PM
`To: Bittner, Michael <MBittner@winston.com>; Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: RE: [Flyp/Google] Motion to Quash West Subpoena
`
`Dear Michael,
`
`We are considering your e-mail but much of our team is at trial. We will respond with our position in due course.
`
`Liza
`
`
`
`
`Elizabeth Brann | Partner, Litigation Department
`Paul Hastings LLP | 4747 Executive Drive, Twelfth Floor, San Diego, CA 92121 | Direct:
`+1.858.458.3014 | Main: +1.858.458.3000 | Fax: +1.858.458.3005 |
`elizabethbrann@paulhastings.com | www.paulhastings.com
`
`
`
`From: Bittner, Michael <MBittner@winston.com>
`Sent: Tuesday, May 2, 2023 6:07 AM
`To: Google-Flyp <Google-Flyp@paulhastings.com>
`Cc: FLYP-Google <FLYP-Google@winston.com>
`Subject: [EXT] [Flyp/Google] Motion to Quash West Subpoena
`
`Counsel,
`
`Flyp and Mr. West intend to file a motion to quash the subpoena served on Mr. West as (1) calling for privileged information, and (2)
`as placing an undue burden on Mr. West by, among other things, seeking information related to a defense of inequitable conduct that
`Google has not pleaded.
`
`Please let us know today whether Google is opposed; or if unopposed, please confirm that Google withdraws the subpoena.
`
`
`Michael Bittner
`Partner
`Winston & Strawn LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`D: +1 214-453-6464
`F: +1 214-453-6400
`Bio | VCard | Email | winston.com
`Follow us on Twitter
`
`
`
`The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not
`intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be
`used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
`
`
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