Contract analysis

From: Omar Siddiqui <osiddiqui@calderwoodharkness.com> To: Daniel Kowalski <dkowalski@brannickhowell.com> Cc: Alan Ngo <ango@calderwoodharkness.com> Date: Mon, 21 Nov 2022 04:37:00 -0000 Subject: Optiwave v. Lumos Photonics (Case No. 5:22-cv-03417-EJD) — Discovery Scheduling and ESI Protocols

I hope you had a good weekend. I am writing to coordinate on several outstanding discovery scheduling matters in *Optiwave Semiconductor Corp. v. Lumos Photonics, Inc.*, Case No. 5:22-cv-03417-EJD (N.D. Cal.). As you know, claim-construction-related discovery closed on October 31, 2022, and the parties are now transitioning into broader fact discovery. I wanted to address the following items so we can keep things mov

**1. Service of Optiwave's discovery Requests**

Please be advised that earlier today, Optiwave served the following discovery requests on Lumos via email to you and the BHS litigation support team, consistent with the parties' agreement on electronic service:

- **Plaintiff's First Set of Requests for Production of Documents** (Nos. 1–112) - **Plaintiff's First Set of Interrogatories**

Please confirm receipt at your convenience.

Separately, we acknowledge receipt of **Lumos's First Set of Requests for Production** (98 requests), which was served on our office on November 7, 2022. We are in the process of preparing Optiwave's responses and objections and will serve them within the time allowed.

As you will recall, the Stipulated Protective Order entered by Judge Torvelis in September 2022 governs confidentiality designations for produced materials. I would like to formalize the ESI protocol that the parties discussed informally at the Initial Case Management Conference in August. Our proposal is as follows:

- **Production Format:** Documents produced in TIFF-plus-load-file format, with extracted text (or OCR text where extracted text is unavailable) and standard metadata fields, including Bates number, custodian, date, author, and file type.

- **Native Files:** Spreadsheets, databases, and presentation files (e.g., .xlsx, .csv, .pptx) produced in native format with accompanying load files.

- **De-duplication:** Global de-duplication across custodians, with identification of all custodians associated with each unique document reflected in the metadata fields.

- **Search Methodology:** Optiwave has identified its key custodians and search terms internally. We suggest the parties exchange proposed custodian lists and search term lists at or before the meet-and-confer discussed below, so that any disputes can be identified and resolved early in the process.

I would appreciate your feedback on the above. If you have any counterproposals or additional items you would like addressed in the ESI protocol, please send them along and we can work through them on a call.

The claim-construction depositions of Optiwave's named inventors — Dr. Kevin Fong, Hideo Tanaka, and Dr. Amara Osei — were completed before the October 31 deadline. We should now turn to scheduling fact discovery depositions.

Optiwave anticipates noticing the depositions of the following Lumos witnesses:

- **Dr. Mei-Lin Chen** (Chief Technology Officer) — regarding the design and development of the LumosBridge 800G and LumosEdge 400ZR+ products.

- **Dr. Nikolai Petrov** (Vice President of Engineering, Photonics Division) — regarding the technical architecture of the accused products.

- **Lumos Rule 30(b)(6) corporate representative(s)** — on topics including accused product revenue, sales channels, and design decisions relating to the accused products.

Could you please identify Lumos's anticipated fact deponents from Optiwave's side so we can begin coordinating a mutually workable schedule? We suggest that fact depositions could begin in January or February 2023, subject to the Markman hearing currently scheduled for January 30, 2023. As I am sure is the case on your end as well, our team's availability will be constrained in the weeks immediately surrounding the h

We propose that the parties aim for initial rolling productions to begin by mid-December 2022. Both sides' formal responses and objections to the first sets of document requests will be due in approximately 30 days — i.e., late December 2022. To keep fact discovery on track, we suggest the parties agree to a rolling production schedule with substantial completion targeted for late January or early February 2023. Plea

I propose we schedule a meet-and-confer call during the first week of December to (a) finalize the ESI protocol, (b) discuss any objections to discovery requests that can be resolved informally, and (c) begin setting a fact deposition schedule. I have availability at the following times:

- Monday, December 5 — 10:00 a.m. to 12:00 p.m. PST - Tuesday, December 6 — 2:00 p.m. to 4:00 p.m. PST - Thursday, December 8 — 10:00 a.m. to 12:00 p.m. PST

Please let me know which of these works for you, or suggest alternatives if none do. I expect the call will take approximately 45 minutes to an hour.

Thank you for your attention to the above. Please do not hesitate to call or email if you have any questions or would like to discuss any of these items in the interim.

**Omar Siddiqui** Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Direct: (415) 793-2648 Email: osiddiqui@calderwoodharkness.com

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