FILED: NEW YORK COUNTY CLERK 01/05/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 144 RECEIVED NYSCEF: 01/05/2017 EXHIBIT 8

Transcription

1 FILED: NEW YORK COUNTY CLERK 01/05/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 144 RECEIVED NYSCEF: 01/05/2017 EXHIBIT 8

2 Hughes Hubbard & Reed LLP One Battery Park Plaza New York, New York Telephone: Fax: hugheshubbard.com November 3, 2016 BY William D. Dalsen, Esq. Proskauer Rose LLP One International Place Boston, MA Re: Evemeta, LLC v. Siemens Convergence Creators Corp., et al., Index No /2016 Dear Will: We write in response to your August 26, 2016 letter to Edward Altabet (former counsel to Evemeta) and further to former counsel s August 30, 2016 reply. In your August 26 letter, you stated that Synacor will provide discovery only on Evemeta s breach of contract claim and not on any of the claims that are the subject of Synacor s pending motion to dismiss. As you know, the Preliminary Conference Order in this case requires that discovery on all of Evemeta s claims proceed while Synacor s motion to dismiss is pending. There is no basis for Synacor to refuse to proceed with that discovery and decide instead that it will only produce documents related to Evemeta s breach of contract claim. Moreover, Evemeta s document requests relate to all of its claims, including breach of contract, and it would be impossible for Synacor or Evemeta to purport to parse out those requests by claim. Accordingly, please confirm by November 10 that Synacor will comply with the Preliminary Conference Order and move forward with discovery on all of Evemeta s claims. In that connection, the search terms and single custodian that Synacor proposed in its August 26 letter are plainly inadequate. 1 Synacor proposed only five narrow search terms. Remarkably, these searches do not include even the most basic terms related to Evemeta s claims, including its breach of contract claim, such as Services Agreement, Siemens, Evemeta, or any variation of those terms. Similarly, Synacor proposes only a single custodian Cindy Hirschberg for document collection and production purposes. Ms. Hirschberg was one of several Synacor employees who played key roles in negotiating and implementing the Master Services Agreement, communicating with Evemeta and Siemens about that agreement, 1 Even if it were appropriate to limit discovery to Evemeta s breach of contract claim which it is not the search terms and custodian that Synacor proposed fall far short of discharging Synacor s duty to undertake a reasonable search for documents responsive to Evemeta s requests. New York Washington, D.C. Los Angeles Miami Jersey City Kansas City Paris Tokyo

3 and ultimately engaging in conduct that breached that agreement. Incredibly, Synacor proposes excluding from its searches its CEO, Himesh Bhise, who was the principal point of contact with Evemeta with respect to the breach of contract. Synacor has no basis for excluding all of the relevant custodians from its searches and limiting its search to Ms. Hirschberg s documents. Evemeta s proposed list of search terms for Synacor s document searches and custodians for Synacor s document collection is enclosed with this letter. To the extent Synacor disagrees with any of the proposed search terms or custodians, please let us know no later than November 10. We are available to meet and confer in an attempt to resolve any disputes that may arise. Finally, as far as we are aware, Evemeta did not receive any response from Synacor to Evemeta s August 26, listing its proposed custodians and search terms for its own document collection and production. Accordingly, Evemeta considers its custodian and search term lists to be finalized pursuant to the Stipulation and Order for the Production of Electronic Discovery and will begin preparing for document production using those custodians and search terms. Sincerely, Fara Tabatabai 2

4 Synacor Search Terms 1. Evemeta 2. Eve/meta 3. Metacore 4. Meta /2 core 5. EM 6. Eve 7. Martha 8. MC 9. Tony /2 Rennert 10. Anthony /2 Rennert 11. TR Service! Agreement 14. MSA 15. Distribution Agreement 16. Siemen! 17. CVC 18. Beta 19. Commercial /2 phase 20. Commercial /2 start 21. CSD 22. Phase Phase Phase Phase End-to-end 27. End /2 end 28. Back-to-back 29. Back /2 back 30. Dynamic /2 ad! 31. Ad /2 insert! 32. DAIS 33. Encod! 34. Transcod! 35. Integrat! 36. call-off 37. Call /2 off 38. MLBam 39. OTT 40. Swipe 41. DRM 42. Digital rights management 43. Streaming /2 video 44. Streaming /25 (customer! or sale! or forecast! or revenue! or project!)

5 45. Business management system 46. BMS 47. MVPD 48. EPG 49. Receiver /2 client! 50. USP 51. Castlabs 52. Tier! /15 (forecast! or project! or revenue! or pric! or sale!) 53. AT&T /100 (stream! or OTT) 54. ATT /100 (stream! or OTT) 55. Verizon /100 (stream! or OTT) 56. Exclusiv! /2 list 57. Active /2 subscriber 58. Active /2 list 59. Active /2 user! 60. Unique /2 active 61. side letter 62. Continuation /2 payment 63. Continuation /2 fee 64. set-up fee 65. change of control 66. Felicio 67. Kleinhagauer 68. Weigelhofer 69. Kijftenbelt 70. Reinhard 71. Parkinson 72. Markus 73. Placho 74. Goetze 75. Guenther 76. Hirschi 77. Flesch 78. Heintze 79. Quan 80. Stefan 81. Jenzowsky 82. Albrecht 83. Greibech 84. Liddi 85. Sassa 86. Steve /2 Wong 87. Barbara /2 Greenberg 88. Patella 89. Bracamontes 90. 2

6 91. Comments: For all search terms, please treat as case insensitive.! = root expander * = wildcard 1. Himesh Bhise 2. Cindy Hirschberg 3. Aaron Hinklin 4. Greg Borowski 5. Michael Bishara 6. George Chamoun 7. Amanda Subramanian 8. Tom Peters 9. David Scribner 10. Chelsea Martinez 11. Amity Grant 12. Brad Rockmore 13. Lasse Saarinen 14. Phil Siebel 15. Steve Davi 16. Lars Nilsson 17. Kevin Ridgway 18. Paul George 19. Jha Paresh 20. Benjamin Bixby 21. Jeffrey Hobbs 22. Peter von Schlossberg Synacor Custodians 3