Another filing today.

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PLAINTIFF’S NOTICE OF STATUS OF MEET AND CONFER
REGARDING MARKMAN DISCOVERY ISSUES ORDERED
AT MAY 13, 2010 STATUS CONFERENCE

Plaintiff e.Digital Corporation (“e.Digital”) hereby notifies the Court of the status of the
meet and confer ordered by the Court at the May 13, 2010 Status Conference (Minute Order, D.I.
290) as follows:

1. On May 13, 2010, this Court held a Status Conference to receive, among other
things, an update as to the status of the exchange of discovery and disclosures related to the Markman process as set forth in the Scheduling Order for Markman Issues (D.I. 277).

2. During the Status Conference, counsel for e.Digital notified the Court that
e.Digital believed the Defendants’ production of documents (a) required by the Scheduling Order for Markman Issues (see §§ 6(f)(b)(i) and 6(f)(e)) and (b) in response to Plaintiff’s First Set of Requests for Production of Documents to Defendants, did not contain sufficient technical detail for e.Digital to form a belief as to whether Defendants infringe claims 4, 6 and 7 of U.S. Patent No. 5,742,737 (the “‘737 Patent”).

3. Specifically, e.Digital is seeking additional technical detail regarding: the
structure, operation and components of each of the current accused products made, used, offered for sale, licensed, or sold by each Defendant including, without limitation: (a) the manner in which recorded audio is processed and stored on the memory of the products and played back from memory; (b) the identity of the components involved in such storage on or playback from memory; (c) the manner in which the Secure Digital (and/or microSD) specifications have been implemented in the products; and (d) the manner in which the products implement wear leveling techniques for data stored on removable flash memory. These topics have been identified with various levels of detail in e.Digital’s document requests to Defendants and the deposition notices provided to certain Defendants and discussed at the May 13 Status Conference.

4. e.Digital has asserted claim 5 of the ‘737 Patent and, at least as early as the April
1, 2010 Status Conference, disclosed to the Defendants that it intends to assert additional claims of the ‘737 Patent including, among others, claim 4, if discovery regarding the structure, operation and components of the accused products provided a good faith basis to do so. (D.I. 259 at pp. 44-45). As counsel for e.Digital stated at the April 1 Status Conference, e.Digital needs additional discovery regarding what it believes to be proprietary aspects of the accused devices:

Your Honor, here is -- here is the issue. I presume the goal is to have a Markman
hearing on as many claims that are at issue as possible, as opposed to us learning
about something during general discovery that would lead to the need to assert
additional claims in the case and then go through the Markman process again
down the road. . . . And I will put my cards on the table. Claim 4 of the 737 patent
is a claim that we believe many of these defendants may well infringe . . . but we
can’t get to the bottom of that because of proprietary technical information that
we need to discover to fully understand how that -- how those products operate.
And so we’re in a dilemma. We can assert claim 4 now, and then we can learn
about that during discovery. We may find that, well, now that we get down into
the software and how things are actually -- how the audio is actually written to
this memory and flash, you’re right, you don’t infringe. Or we may find, yeah, we
think you do infringe, and so that’s just one issue that I’m putting on the table.

5. After the April 1, 2010 Status Conference, e.Digital confirmed its intent to assert
claims 4, 6 and 7, subject to confirming the structure, operation and components of the
Defendants’ accused products. (See, e.g., Plaintiff’s Initial Disclosures Pursuant To Fed. R. Civ. P. 26(A)(1) And Court’s Scheduling Order For Markman Issues (attached hereto as Exhibit A) at p. 8; Plaintiff’s Identification Of Claim Terms For Construction And Proposed Constructions Pursuant To Scheduling Order For Markman Issues (attached hereto as Exhibit B) at p. 2; and Joint Claim Construction Statement (D.I. 284) at p. 2).

6. Following the May 13 Status Conference and pursuant to the Court’s instructions,
counsel for e.Digital and the Defendants conducted a telephonic meet and confer on May 14 to discuss the scheduling of depositions or the use of other more efficient ways for Defendants to provide to e.Digital the technical information that it is seeking. Among the options discussed were 30(b)(6) depositions, additional document productions, and other informal disclosures of information. Counsel for e.Digital and counsel for the Nokia entities, Pentax entities, Canon entities, Kyocera entities, Samson, TEAC, HTC entities and Panasonic and Leica entities also met and conferred individually by telephone and/or email regarding alternate proposals.

7. During the course of these discussions, certain Defendants took the position that
either:

(a) they did not have the technical information sought by e.Digital, but that such
information may be available from third parties;
(b) they believed that some of the technical information being sought could be
derived from their document production, and they were willing to make
available for depositions corporate representatives to identify responsive
information that they believe is provided in their documents or contained in
additional documents that they may produce, but that such depositions would
need to be taken in a foreign country, or
(c) they believed that the information being sought may be available, but would
take additional time to locate.

Other Defendants did not provide any indication as to whether the information being sought was available.

8. Because the time period for claim construction discovery ends on June 4 and
opening claim construction briefs are due on June 14, e.Digital suggested on May 18, 2010 an alternate approach that could minimize the discovery burden on the Defendants and facilitate the resolution of all claim construction issues at a single Markman hearing. According to e.Digital’s proposal, the parties would agree to construe the terms of claims 4, 6 and 7 of the ‘737 Patent as part of the currently scheduled Markman process and then, during phase 2 general discovery, e.Digital would seek to discover from the Defendants and third parties the technical information currently being sought, as necessary. And if e.Digital determined based on this fact discovery that any of claims 4, 6 and 7 should be part of this case against any or all Defendants, e.Digital
would notify such Defendants accordingly.

9. e.Digital’s proposal would allow the parties to address all claim construction
issues at one time, as opposed to deferring the construction of claims 4, 6 and 7 until after e.Digital received sufficient technical documentation from the Defendants or third parties.

10. On May 20, 2010, counsel for e.Digital and the Defendants held a second group
telephonic meet and confer to attempt to resolve these same issues. At that meet and confer, the Defendants requested and e.Digital agreed to provide to the Defendants a list of specific questions as to the technical detail being sought by e.Digital. That list of questions was provided on May 21, 2010 and is attached as Exhibit C. e.Digital believes that complete answers to this list of questions and or documents that disclose the information being sought would be sufficient for e.Digital to evaluate whether claims 4, 6, and 7 of the ‘737 Patent should be asserted in this case against any or all of the Defendants.

11. Later on May 21, 2010, the Defendants informed e.Digital that certain of the
Defendants believe that e.Digital has no basis for asserting claims 4, 6 and/or 7 of the ‘737 Patent and, therefore, asking the Court to construe those claims would be the equivalent of requesting an advisory opinion. On that basis, the Defendants could not accept e.Digital’s proposal to construe claims 4, 6 and/or 7, until such time as e.Digital confirmed it was asserting those claims based on its good faith belief that it was entitled to do so.

12. Later on May 21, counsel for e.Digital and the Defendants held a third group
telephonic meet and confer to attempt to resolve these same issues. During that telephone conference, several Defendants expressed their position that the list of questions provided by e.Digital sought information not called for by prior requests. Nevertheless, a majority of the Defendants agreed to provide to their clients the list of questions that had been provided by e.Digital earlier in the day, so that the clients could confirm whether or not additional responsive information or documents could be provided by way of a supplemental document production, depositions or both. Two Defendants confirmed that they do not have any additional information to provide. e.Digital is working with the remaining Defendants to confirm whether any additional information is available.

13. e.Digital also notified Defendants that it remains intent on asserting claims 4, 6
and 7 of the ‘737 Patent, if appropriate, based on discovery produced by the Defendants during the remainder of Phase 1 discovery or following additional discovery from the Defendants or third parties during Phase 2 discovery.

14. In conclusion, the meet and confer process regarding the Defendants’ disclosure
of technical information and/or documents is on-going. Accordingly, e.Digital reserves itsrights, as previously expressed in its Initial Disclosures (Ex. A), Identification Of Claim Terms For Construction And Proposed Constructions Pursuant To Scheduling Order For Markman Issues (Ex. B), and Joint Claim Construction Statement (D.I. 284), to assert claims 4, 6 and 7 of the ‘737 Patent following the discovery of technical documents and other information sufficient to show the detailed designs, architecture, components and operations of the accused products as they relate to these claims.

Dated: May 24, 2010 Respectfully submitted,

FAEGRE & BENSON LLP

DUANE MORRIS LLP