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1 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 1 of 14 Steven L. Holley Andrew G. Dietderich Brian D. Glueckstein SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Telephone: ( Facsimile: ( Hearing Date: March 20, 2012 Objection Deadline: March 13, 2012 Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et al., 1 Debtors. Chapter 11 Case No (ALG Jointly Administered DEBTORS MOTION FOR AN ORDER PURSUANT TO BANKRUPTCY RULE 2004 DIRECTING THE EXAMINATION OF APPLE INC. Eastman Kodak Company ( Kodak, on behalf of itself and its affiliated debtors and debtors in possession in these chapter 11 cases (collectively, the Debtors, hereby submits this motion (the Motion pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure ( Bankruptcy Rules for entry of an order, substantially in the form attached hereto as Exhibit A (the Proposed Order, directing the examination (the Requested Examination of Apple Inc. ( Apple. In support of the Motion, the Debtors respectfully represent as follows: 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Eastman Kodak Company (7150; Creo Manufacturing America LLC (4412; Eastman Kodak International Capital Company, Inc. (2341; Far East Development Ltd. (2300; FPC Inc. (9183; Kodak (Near East, Inc. (7936; Kodak Americas, Ltd. (6256; Kodak Aviation Leasing LLC (5224; Kodak Imaging Network, Inc. (4107; Kodak Philippines, Ltd. (7862; Kodak Portuguesa Limited (9171; Kodak Realty, Inc. (2045; Laser-Pacific Media Corporation (4617; NPEC Inc. (5677; Pakon, Inc. (3462; and Qualex Inc. (6019. The location of the Debtors corporate headquarters is: 343 State Street, Rochester, NY

2 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 2 of 14 PRELIMINARY STATEMENT 1. The Debtors seek an examination of Apple pursuant to Bankruptcy Rule 2004 to investigate Apple s repeated assertions to this Court that Apple owns or has an ownership interest in U.S. Patent No. 6,292,218 (the 218 patent and other unspecified patents in Kodak s digital imaging portfolio. Monetization of the patents in the digital imaging portfolio is an essential component of the Debtors reorganization efforts. Apple s baseless assertions that it owns valuable property of the estate are potentially damaging to the Debtors efforts to sell its digital imaging portfolio through a court-supervised auction pursuant to section 363 of the Bankruptcy Code. Therefore, in order to remove the cloud that Apple has sought to place on the ownership of the 218 patent and other unidentified patents in Kodak s digital imaging portfolio, the Debtors need to investigate the basis of Apple s claims. 2. Apple appeared at the first day hearing of these chapter 11 cases after filing an objection to entry of an order approving the Debtors debtor-in-possession financing premised on Apple s conclusory assertion that it owns the 218 patent and unidentified other Kodak patents. (Apple Limited Objection ( Apple DIP Objection [Dkt. No. 40]. Apple s assertion that it owns the 218 patent was widely reported in the press, 2 which is undoubtedly what Apple intended. The question of whether the subject matter of the 218 patent is derived from disclosures Apple made to Kodak back in 1992 was explored in depth before the International Trade Commission ( ITC last year in a full evidentiary hearing. The ITC administrative law judge rejected Apple s contention that Kodak derived the subject matter of the 218 patent from any Apple disclosures. Despite that setback, Apple claimed in its DIP 2 See, e.g., Apple Says Kodak Loan Terms Should Shield Disputed Patents, Bloomberg (Jan. 19, 2012, Bankruptcy Filing Puts Legal Battles in Flux, Rochester Business Journal (Jan. 27, 2012,

3 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 3 of 14 Objection for the first time that it might also own other Kodak patents, although it failed to specify what patents those might be or the basis for such an ownership claim. These ownership claims which plainly are designed to interfere with the Debtors announced plans to sell the patents in the digital imaging portfolio cannot go uninvestigated or unchallenged. 3. The Requested Examination sought is appropriate notwithstanding the pending ITC proceeding and a related proceeding before the U.S. District Court for the Western District of New York (the W.D.N.Y. Action (which is stayed because Apple s ownership claims already raised twice before this Court lay claim to the Debtors property and raise issues under section 541 of the Bankruptcy Code. The Debtors are entitled to probe whether there is any substance to Apple s allegations. And having inserted itself voluntarily into these chapter 11 cases, Apple has no grounds to object that the Debtors are seeking to determine the basis for assertions Apple has made to the Court. 4. Many of Apple s most popular products include digital cameras that infringe on Kodak s patents. Kodak had been seeking a fair royalty from Apple as a result of Apple s patent infringement, but Apple unlike 37 other sophisticated companies has steadfastly refused to pay any royalties. This was an important factor in Kodak s decision to file its chapter 11 petition. The Debtors are now in the process of resuming their pre-petition efforts to sell the digital imaging portfolio. Therefore, whether as an infringer or a prospective purchaser of Kodak s patents, Apple has an economic interest in depressing the value of these patents and disrupting the sale process. The digital imaging portfolio is valuable property of the estate that has been valued at between $2.2 to $2.6 billion to a company interested in licensing the patents and a strategic bidder may place a higher value on the portfolio. Given the - 2 -

4 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 4 of 14 significance of this asset to the Debtors reorganization efforts, any effort by Apple to diminish the value of the digital imaging portfolio needs to be explored now. 5. Apple s claim that it owns the 218 patent and other unspecified Kodak patents has the potential to disrupt the sale of the digital imaging portfolio, thereby threatening the Debtors ability to successfully reorganize. The requested discovery is thus essential for the Debtors to assess the basis of Apple s ownership claims. JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to 28 U.S.C. 157 and This is a core proceeding pursuant to 28 U.S.C. 157(b(2(A, (O. Venue is proper in this Court pursuant to 28 U.S.C and The predicate for the requested relief is Bankruptcy Rule FACTUAL BACKGROUND 6. Kodak is a digital imaging and material sciences company with a long history of innovation and successful commercialization of proprietary technologies. Kodak has invested significantly in research and development for over a century, and continues to do so today. Kodak currently holds approximately 10,700 patents and other valuable intellectual property. Prior to filing its chapter 11 petition, Kodak generated substantial revenues through its successful patent licensing program. To illustrate this fact, since 2003, Kodak has received more than $3 billion in licensing revenues from its digital imaging portfolio, which includes the 218 patent. 7. On January 19, 2012 (the Petition Date, each of the Debtors filed a voluntary petition in this Court for relief under chapter 11 of the Bankruptcy Code. The Debtors continue to operate their businesses and manage their properties as debtors in possession - 3 -

5 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 5 of 14 pursuant to sections 1107(a and 1108 of the Bankruptcy Code. No request for the appointment of a trustee or examiner has been made in these chapter 11 cases. 8. Apple filed the DIP Objection on the Petition Date, asserting that Apple is the owner of the 218 patent (and potentially many other Kodak patents. (Apple DIP Objection at 6. In addition to asserting ownership claims over unidentified Kodak patents, the Apple DIP Objection asserts that Apple is entitled to restitution of all or a substantial portion of the licensing revenues that Kodak has obtained for the 218 patent and potentially other patents. (Id. 8. Apple further asserts that it is entitled to specific performance requiring Kodak to assign its right to at least the 218 patent to Apple, and to injunctive relief permanently enjoining Kodak from seeking to enforce the 218 patent or any other wrongfully-obtained intellectual property right against Apple in any forum. (Id. By claiming entitlement to such sweeping relief in connection with crucial property of the estate, Apple has made its claims central to these chapter 11 cases. 9. On January 20, 2012, the Court entered an interim order granting Kodak s motion to obtain post-petition financing [Dkt. No. 54]. A final order approving Kodak s postpetition financing was entered on February 16, 2012 [Dkt. No. 375]. The 218 patent and other patents in the digital imaging portfolio are pledged as collateral for the post-petition financing and are an important part of the consensual adequate protection agreement reached with Kodak s second lien noteholders. 10. On January 25, 2012, the United States Trustee for the Southern District of New York (the U.S. Trustee appointed an Official Committee of Unsecured Creditors (the Creditors Committee pursuant to section 1102 of the Bankruptcy Code

6 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 6 of Pursuant to the Debtor-In-Possession Credit Agreement ( DIP Agreement, Kodak must, on or before June 30, 2012, file a motion with the Court seeking approval of bidding procedures relating to the sale of all or substantially all of Kodak s digital imaging portfolio. (See DIP Agmt. 5.01(s. 12. On February 14, 2012, Apple filed a motion seeking relief from the automatic stay imposed by section 362 of the Bankruptcy Code to attempt to pursue beyond the reach of this Court its ownership claims to property of these estates (the Stay Relief Motion [Dkt. No. 344], and a second motion seeking relief from the automatic stay to commence new patent infringement litigation. The Debtors have opposed both motions. 13. Because Apple refused to license the 218 patent, Kodak requested that the ITC commence an investigation of Apple, and Kodak filed the W.D.N.Y. Action, a parallel patent infringement action against Apple. In the first proceeding, which is before the ITC, Kodak filed a complaint requesting an investigation of Apple, RIM Ltd. and RIM Corp. for violations of Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, which forbids importing patent-infringing products into the United States, including products infringing the 218 patent. See In re Certain Mobile Tels. & Wireless Comm cn Devices Featuring Digital Cameras, & Components Thereof, Inv. No. 337-TA-703 (USITC (the 703 Proceeding. Apple raised an ownership defense in the 703 Proceeding, challenging Kodak s ownership of the invention disclosed in the 218 patent. That defense was not successful. The administrative law judge found that Kodak did not derive the subject matter of the 218 patent from any disclosures made by Apple, and Apple did not appeal that finding to the full Commission. 14. In the parallel W.D.N.Y. Action, Kodak sued Apple for infringement of the 218 patent, as well as U.S. Patent No. 5,493,335. See Eastman Kodak Co. v. Apple Inc., No

7 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 7 of 14 6:10-cv MAT (W.D.N.Y.. Apple counterclaimed for a declaration that it is the owner of the 218 patent as a matter of California State law. (First Am. Answer, Affirmative Defenses & Countercls Pursuant to 28 U.S.C. 1659(a, the W.D.N.Y. Action is stayed pending a final determination in the 703 Proceeding before the ITC. Discovery has not commenced in the W.D.N.Y. Action. 15. A second ITC proceeding, where Apple was not a party, In re Certain Mobile Tels. & Wireless Comm cns Devices Featuring Digital Cameras, and Components Thereof, Inv. No. 337-TA-663 (USITC (the 663 Proceeding, also investigated infringement of Kodak s 218 patent Apple alleged in this Court for the first time its belief that it is the rightful owner of not only the 218 patent, but potentially other patents in Kodak s digital imaging portfolio. (See Apple DIP Objection 1. According to Apple, in early 2010, it launched an extensive internal investigation into Apple s prior relationship with Kodak relating to the development of digital camera technology. (Id. 5. Apple asserts that the investigation revealed that it is in fact the rightful owner of the 218 patent (and potentially many other Kodak patents. (Id. 6. Apple s DIP Objection fails to identify any other Kodak patents that Apple believes it may own. 17. On February 21, 2012, Apple requested (and the Debtors agreed to provide notice as an IP Notice Party for purposes of the Debtors de minimis sale procedures despite the fact that Apple is not a licensee of Kodak s intellectual property and Apple has not identified any of Kodak s intellectual property (other than the 218 patent that Apple claims to 3 In a third ITC proceeding, In re Certain Digital Imaging Devices and Related Software, Inv. No. 338-TA- 717 (USITC (the 717 Proceeding, Apple filed a complaint requesting an investigation of Kodak s alleged infringement of Apple s patents

8 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 8 of 14 own. This further demonstrates Apple s efforts to insert itself into these chapter 11 cases, emphasizing the need for the Requested Examination to explore Apple s ownership claims. RELIEF REQUESTED 18. Pursuant to Bankruptcy Rule 2004, the Debtors request the entry of an order, substantially in the form of the Proposed Order, authorizing and directing the production of documents by Apple in response to the document requests attached as Exhibit B. The Debtors also reserve the right to seek depositions in connection with these matters and serve supplemental and additional document requests that relate to the issues set forth herein. REQUESTED EXAMINATION 19. The Debtors need the Requested Examination to investigate Apple s claims that it owns the 218 patent, which is very valuable property of the estate. Kodak also needs to explore Apple s vague and unsupported claims that it owns other Kodak patents. 20. Given the importance of the digital imaging portfolio to the Debtors and their announced plan to sell that portfolio, Apple s allegations, if unrefuted, could have a serious adverse impact on the administration of the estate and formulation of a reorganization plan. To maximize value for all stakeholders through a section 363 sale, the Debtors must delve into Apple s ownership claims to put the Debtors in a position to seek adjudication of those ownership claims in this Court as promptly as possible. 21. The Requested Examination is also necessary for Kodak to assess Apple s assertion that it is entitled to restitution, assignment and permanent injunctive relief regarding the 218 patent. Given the licensing revenue Kodak obtained from licensing the digital imaging portfolio, this assertion pertains directly to Kodak s liabilities and financial condition and may severely affect the administration of the debtor s estate. FED. R. BANKR. P. 2004(b

9 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 9 of The Requested Examination will also ensure the integrity of a courtsupervised sale of Kodak s digital imaging portfolio. Apple, as a market leader in smart phones and tablets containing digital cameras, is a potential bidder for the digital imaging portfolio. The Requested Examination will permit the Debtors to explore whether Apple s ownership claims are a calculated effort by Apple to depress the value of the digital imaging portfolio, so that Apple can obtain rights to Kodak s patents on the cheap. 23. The discovery sought is tailored to address the allegations made in Apple s DIP Objection and the Stay Relief Motion. Accordingly, the Requested Examination will not be unduly burdensome and will not impose undue hardship on Apple, especially relative to the value of the property of the estate that is affected by Apple s ownership claims. Most of the requested materials were previously produced in the 703 Proceeding, 717 Proceeding and 663 Proceeding, and should be readily available to Apple. 24. To facilitate the necessary discovery, the Debtors request that the Court enter the Proposed Order granting the Motion and requiring Apple to produce documents responsive to the requests contained in the attached Exhibit B. The Debtors request that the Court order that such production be made (or at least substantially completed on or before the date that is fourteen days after entry of the Proposed Order, at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York BASIS FOR RELIEF 25. Bankruptcy Rule 2004(a provides that [o]n motion of any party in interest, the court may order the examination of any entity. FED. R. BANKR. P. 2004(a. An examination may relate to the property of a debtor. FED. R. BANKR. P. 2004(b. As the basic discovery device used in bankruptcy cases, Rule 2004 permits the examination of any party - 8 -

10 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 10 of 14 without the requirement of an adversary proceeding or contested matter. See In re French, 145 B.R. 991, 992 (Bankr. D. S.D The purpose of Rule 2004 is to permit a broad investigation to assure the proper administration of bankruptcy estates. In re Symington, 209 B.R. 678, (Bankr. D. Md (citations omitted. 26. Emphasizing Rule 2004 s broad purpose, courts routinely allow examination of third parties who have had dealings with the debtor. See, e.g., In re Recoton Corp., 307 B.R. 751, 755 (Bankr. S.D.N.Y (citing In re Ionosphere Clubs, Inc., 156 B.R. 414, 432 (S.D.N.Y ( any third party who can be shown to have a relationship with the debtor can be made subject to a Rule 2004 investigation. Here, there can be no doubt that Apple had dealings with Kodak as Apple explicitly states it had a prior relationship with Kodak relating to the development of digital camera technology. (Apple DIP Objection 5. Moreover, Apple has appeared in this Court and asserted an interest in the Debtors intellectual property, thereby subjecting itself to the Court s procedures. 27. Kodak has good cause for pursuing the Requested Examination. Good cause for a Rule 2004 examination is shown if denial of such request would cause the examiner undue hardship or injustice. In re Metiom, Inc., 318 B.R. 263, 268 (S.D.N.Y (quoting In re Dinubilo, 177 B.R. 932, 943 (E.D. Cal Here, the Requested Examination is necessary to permit Kodak to evaluate Apple s ownership claims to the 218 patent and other unidentified Kodak patents. Apple s attempts to interfere with the Debtors planned sale of the digital imaging portfolio threaten the Debtors reorganization efforts and the Court s orderly administration of these estates. In the first month alone, Apple has objected to the Debtors use of its property to secure post-petition financing, sought notice for any de minimis intellectual property sale despite not being a licensee and filed the Stay Relief Motion seeking to proceed - 9 -

11 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 11 of 14 with ownership litigation against Kodak outside of this Court. Apple s strategy of erecting every conceivable roadblock to the Debtors sale of the digital imaging portfolio is precisely the sort of conduct that Rule 2004 was designed to address. 28. The Requested Examination is appropriate notwithstanding the pending patent litigation between Kodak and Apple. [T]he court holds the ultimate discretion whether to permit the use of Rule 2004, and courts have for various reasons done so despite the existence of other pending litigation. In re Int l Fibercom, Inc., 283 B.R. 290, (Bankr. D. Ariz (citations omitted. Courts have, for example, allowed Rule 2004 discovery where it concerns matters in addition to or beyond the scope of the pending proceeding. See In re Recoton Corp., 307 B.R. at 756; see also In re Wash. Mut., Inc., 408 B.R. 45, (Bankr. D. Del. 2009; In re Cont l Capital Inv. Servs., Inc., No , 2009 WL , at *3 (Bankr. N.D. Ohio Mar. 6, 2009; In re Buick, 174 B.R. 299, 306 (Bankr. D. Colo ( [A] creditor may conduct Rule 2004 examinations regarding issues in addition to or beyond the scope of its pending adversary proceeding(s, or the trustee s pending adversary proceeding(s.. This is the first forum where Apple has asserted that it owns any Kodak patents other than the 218 patent, so Kodak s Requested Examination plainly falls beyond the scope of the pending litigation beyond Kodak and Apple. Moreover, Apple s claim that it owns the 218 patent implicates concerns at the very heart of these chapter 11 cases. 29. Apple s claim that it owns valuable property of the estate as defined by section 541 of the Bankruptcy Code is an issue that will have to be resolved by this Court. 4 The Requested Examination does not seek information related to the infringement allegations in the 4 Pursuant to Section 541(a(1 of the Bankruptcy Code, property of the estate is comprised of all of the debtor s tangible and intangible property, including, but not limited to, patents. See, e.g., In re Brown, BAP Nos. NC MaMeRy, 2006 WL , at *9 (B.A.P. 9th Cir. Sept. 28, 2006 (quoting H.R. Rep. No , , reprinted in 1978 U.S.C.C.A.N. 5963,

12 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 12 of 14 pending actions, but rather information bearing on Apple s assertions before this Court that it owns the 218 patent and other unspecified Kodak patents. The burden on Apple will be minimal because the materials sought are likely part of the extensive records developed in the 703 Proceeding, the 717 Proceeding and the 663 Proceeding. See In re Int l Fibercom, Inc., 283 B.R. at 292 (permitting Rule 2004 examination because the purpose of the pending litigation rule would not be served by precluding discovery here. 30. Bankruptcy courts universally recognize that the scope of Rule 2004 examinations is broad, unfettered and can legitimately be in the nature of a fishing expedition. In re Enron Corp., 281 B.R. 836, 840 (Bankr. S.D.N.Y. 2002; see also In re Bakalis, 199 B.R. 443, 447 (Bankr. E.D.N.Y. 1996; In re Countrywide Home Loans, Inc., 384 B.R. 373, 400 (Bankr. W.D. Pa. 2008; In re Valley Forge Plaza Assocs., 109 B.R. 669, 674 (Bankr. E.D. Pa (citations omitted. Here, the Debtors do not seek to engage in a fishing expedition. Instead, the Requested Examination is tailored to address the specific ownership claims Apple asserted in these chapter 11 proceedings. Apple s ownership claims which are baseless have the potential to prevent the Debtors and this Court from administering the Debtors property and to hinder the Debtors efforts to sell the digital imaging portfolio and move forward with their reorganization. The Debtors should thus be permitted to conduct the Requested Examination so that the Court is in a position to adjudicate disputes regarding ownership of valuable property of the estate. NOTICE 31. Notice of this Motion shall be provided by U.S. mail, overnight delivery, hand delivery, if requested or, with the exception of the Court and the U.S. Trustee, facsimile to: (a the Office of the United States Trustee for the Southern District of New York;

13 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 13 of 14 (b Milbank, Tweed, Hadley & McCloy LLP, proposed counsel to the Official Committee of Unsecured Creditors; (c counsel to any other statutory committee appointed in the Debtors chapter 11 cases; (d U.S. Bank, National Association, as indenture trustee; (e Wilmington Trust, National Association, as indenture trustee; (f the Securities and Exchange Commission; (g the Internal Revenue Service; (h Davis Polk & Wardwell LLP, counsel to Citicorp North America, Inc., as agent for the Debtors post-petition secured lenders; (i the Environmental Protection Agency; (j Akin Gump Strauss Hauer & Feld LLP, counsel to the Ad Hoc Committee of Second Lien Noteholders; and (k Kirkland & Ellis LLP, counsel to Apple Inc. The Debtors respectfully submit that further notice of this Motion is neither required nor necessary. The Debtors submit that, in light of the nature of the relief requested, no other or further notice need be given. NO PRIOR REQUEST 32. No prior motion for the relief requested herein has been made to this or any other Court

14 alg Doc 473 Filed 03/02/12 Entered 03/02/12 19:39:27 Main Document Pg 14 of 14 WHEREFORE, the Debtors respectfully request that the Court grant the relief requested herein and such other and further relief as it deems just and proper. Dated: March 2, 2012 New York, New York Respectfully submitted, /s/ Andrew G. Dietderich Steven L. Holley Andrew G. Dietderich Brian D. Glueckstein SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Tel: ( Fax: ( Pauline K. Morgan Joseph M. Barry YOUNG CONAWAY STARGATT & TAYLOR, LLP 1270 Avenue of the Americas Suite 2210 New York, New York Tel: ( Fax: ( Counsel to the Debtors and Debtors in Possession

15 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Notice Pg 1 of 3 Hearing Date: March 20, 2012 at 11:00 a.m. (Eastern Time Objection Deadline: March 13, 2012 at 4:00 p.m. (Eastern Time Steven L. Holley Andrew G. Dietderich Brian D. Glueckstein SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Telephone: ( Facsimile: ( Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et al., 1 Debtors. Chapter 11 Case No (ALG (Jointly Administered NOTICE OF DEBTORS MOTION FOR AN ORDER PURSUANT TO BANKRUPTCY RULE 2004 DIRECTING THE EXAMINATION OF APPLE INC. PLEASE TAKE NOTICE that a hearing on the Debtors Motion for an Order Pursuant to Bankruptcy Rule 2004 Directing The Examination of Apple Inc. (the Motion will be held before the Honorable Allan L. Gropper, United States Bankruptcy Judge, in Room 617 of the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court, One Bowling Green, New York, New York 10004, at a hearing to be held on March 20, 2012 at 11:00 a.m. (ET. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Eastman Kodak Company (7150; Creo Manufacturing America LLC (4412; Eastman Kodak International Capital Company, Inc. (2341; Far East Development Ltd. (2300; FPC Inc. (9183; Kodak (Near East, Inc. (7936; Kodak Americas, Ltd. (6256; Kodak Aviation Leasing LLC (5224; Kodak Imaging Network, Inc. (4107; Kodak Philippines, Ltd. (7862; Kodak Portuguesa Limited (9171; Kodak Realty, Inc. (2045; Laser-Pacific Media Corporation (4617; NPEC Inc. (5677; Pakon, Inc. (3462; and Qualex Inc. (6019. The location of the Debtors corporate headquarters is: 343 State Street, Rochester, NY

16 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Notice Pg 2 of 3 PLEASE TAKE FURTHER NOTICE that responses or objections, if any, to the relief requested in the Motion must be filed electronically with the Court on the docket of In re Eastman Kodak Company, Case No (ALG, pursuant to the Court s General Order M-399 (available at by registered users of the Court s case filing system and by all other parties in interest on a 3.5 inch disc, preferably in portable document format, Microsoft Word or any other Windows-based word processing format and served by U.S. mail, overnight delivery, hand delivery or, with the exception of the Court and the United States Trustee, facsimile upon each of the following: (a the Chambers of the Honorable Allan L. Gropper, United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, NY 10004; (b the Debtors and their counsel; (c the Office of the United States Trustee for the Southern District of New York; (d Milbank, Tweed, Hadley & McCloy LLP, counsel to the Official Committee of Unsecured Creditors; (e U.S. Bank, National Association, as indenture trustee; (f Wilmington Trust, National Association, as indenture trustee; (g the Securities and Exchange Commission; (h the Internal Revenue Service; (i Davis Polk & Wardwell LLP, counsel to Citicorp North America, Inc., as agent for the Debtors postpetition secured lenders; (j the Environmental Protection Agency; (k Akin Gump Strauss Hauer & Feld LLP, counsel to the Ad Hoc Committee of Second Lien Noteholders; (l Kirkland & Ellis LLP, counsel to Apple Inc.; and (m all parties requesting notice in these chapter 11 cases pursuant to Bankruptcy Rule 2002, so as to be actually received no later than March 13, 2012 at 4:00 p.m. (ET. Only those responses that are timely filed, served and received will be considered at the hearing. Failure to file a timely objection may -2-

17 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Notice Pg 3 of 3 result in entry of a final order granting the Motion as requested by the Debtors. Dated: March 2, 2012 New York, New York /s/ Andrew D. Dietderich Steven L. Holley Andrew G. Dietderich Brian D. Glueckstein SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Telephone: ( Facsimile: ( and - Pauline K. Morgan Joseph M. Barry YOUNG CONAWAY STARGATT & TAYLOR, LLP 1270 Avenue of the Americas Suite 2210 New York, New York Telephone: ( Facsimile: ( Counsel to the Debtors and Debtors in Possession -3-

18 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit A - Proposed Order Pg 1 of 3 EXHIBIT A

19 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit A - Proposed Order Pg 2 of 3 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et al., 1 Debtors. Chapter 11 Case No (ALG (Jointly Administered [PROPOSED] ORDER AUTHORIZING AND DIRECTING THE EXAMINATION OF APPLE INC. Upon the motion (the Motion 2 of Eastman Kodak Company, on behalf of itself and its affiliated debtors and debtors in possession in these chapter 11 cases (collectively, the Debtors, for an order, pursuant to Federal Rule of Bankruptcy Procedure 2004, authorizing and directing the examination of Apple Inc.; it appearing that this Court has jurisdiction to consider the Motion pursuant to 28 U.S.C. 157 and 1334; it appearing that venue of these chapter 11 cases and the Motion in this district is proper pursuant to 28 U.S.C and 1409; it appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b; this Court having determined that the relief requested in the Motion is in the best interests of the Debtors, their estates, their creditors and other parties in interest; it appearing that proper and adequate notice of the Motion has been given and that, except as otherwise ordered herein, no other or further notice is necessary; after due deliberation thereon; and good and sufficient cause appearing therefor; 1 2 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Eastman Kodak Company (7150; Creo Manufacturing America LLC (4412; Eastman Kodak International Capital Company, Inc. (2341; Far East Development Ltd. (2300; FPC Inc. (9183; Kodak (Near East, Inc. (7936; Kodak Americas, Ltd. (6256; Kodak Aviation Leasing LLC (5224; Kodak Imaging Network, Inc. (4107; Kodak Philippines, Ltd. (7862; Kodak Portuguesa Limited (9171; Kodak Realty, Inc. (2045; Laser-Pacific Media Corporation (4617; NPEC Inc. (5677; Pakon, Inc. (3462; and Qualex Inc. (6019. The location of the Debtors corporate headquarters is: 343 State Street, Rochester, NY All capitalized terms not otherwise defined herein are to be given the meanings ascribed to them in the Motion.

20 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit A - Proposed Order Pg 3 of 3 IT IS HEREBY ORDERED THAT: 1. The Motion is GRANTED as set forth herein. 2. Debtors are permitted to serve document requests that are substantially in the formed attached as Exhibit B to the Motion. Apple Inc. shall respond to such document requests no later than fourteen (14 days after service. 3. The requirements set forth in Local Rule (b are satisfied. 4. This Court retains jurisdiction with respect to all matters arising from or related to the enforcement of this Order. Dated: March, 2012 New York, New York Allan L. Gropper United States Bankruptcy Judge -2-

21 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 1 of 10 EXHIBIT B

22 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 2 of 10 REQUEST FOR PRODUCTION OF DOCUMENTS DEFINITIONS The terms used herein, whether or not capitalized, shall have the meanings set forth below: 1. And, or, and and/or shall have the meaning ascribed to them in Rule 26.3 of the Local Rules of the United States District Court for the Southern District of New York, as provided for in Rule of the Local Bankruptcy Rules for the Southern District of New York. 2. All, any, and each shall have the meaning ascribed to them in Rule 26.3 of the Local Rules of the United States District Court for the Southern District of New York, as provided for in Rule of the Local Bankruptcy Rules for the Southern District of New York. 3. Apple DIP Objection means the Limited Objection of Apple Inc. to Debtors Motion for Entry of Interim and Final Orders (I Authorizing The Debtors (A To Obtain Postpetition Financing Pursuant to 11 U.S.C. 105, 361, 362, 364 (C(1, 364(C(2, 364(C(3, 364(D(1 and 364(E and (B To Utilize Cash Collateral Pursuant to 11 U.S.C. 363, (II Granting Adequate Protection To Prepetition Secured Parties Pursuant to 11 U.S.C. 361, 362, 363, 364, and (III Scheduling Final Hearing Pursuant to Bankruptcy Rules 4001(B and (C [Dkt. No. 40]. 4. Apple Inc. or Apple means Apple and any or all of its current or former officers, directors, employees, shareholders, agents, staff, attorneys, accountants, outside consultants, representatives, and other persons acting or purporting to act on Apple s behalf, any of its parent corporations, holding companies, subsidiaries, affiliates, divisions, departments,

23 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 3 of 10 predecessors and/or successors-in-interest. This term shall be construed to include all of Apple s domestic and foreign individuals and/or entities. 5. Communication shall have the meaning ascribed to it in Rule 26.3 of the Local Rules of the United States District Court for the Southern District of New York, as provided for in Rule of the Local Bankruptcy Rules for the Southern District of New York. 6. Concerning shall have the meaning ascribed to it in Rule 26.3 of the Local Rules of the United States District Court for the Southern District of New York, as provided for in Rule of the Local Bankruptcy Rules for the Southern District of New York. 7. Document shall have the meaning ascribed to it in Rule 26.3 of the Local Rules of the United States District Court for the Southern District of New York, as provided for in Rule of the Local Bankruptcy Rules for the Southern District of New York. 8. Including means including, but not limited to, the referenced subject Proceeding means In re Certain Mobile Tels. & Wireless Comm cn Devices Featuring Digital Cameras, & Components Thereof, Inv. No. 337-TA-703 (USITC Proceeding means In re Certain Digital Imaging Devices and Related Software, Inv. No. 338-TA-717 (USITC Proceeding means In re Certain Mobile Tels. & Wireless Comm cns Devices Featuring Digital Cameras, and Components Thereof, Inv. No. 337-TA-663 (USITC Patent means or refers to U.S. Patent No. 6,292,

24 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 4 of The full text of the definitions and rules of construction set forth in Rule 26.3(c and (d of the Local Rules of the United States District Court for the Southern District of New York is incorporated by reference into these discovery requests. 14. Any ambiguity in a discovery request shall be construed to bring within the scope of the discovery request all responses that otherwise could be construed to be outside of its scope. 15. Each request shall be construed conjunctively or disjunctively as necessary to make the request inclusive rather than exclusive. Any request propounded in the singular shall also be read as if propounded in the plural and vice versa. Any request propounded in the present tense shall also be read as if propounded in the past tense and vice versa. INSTRUCTIONS Each response must be made in accordance with the following instructions: 1. The responsive documents shall be produced in the manner prescribed by the Federal Rules of Civil Procedure, as made applicable herein by the Federal Rules of Bankruptcy Procedure, including producing the requested documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the requests, and identifying the name of the person from whose files the documents were produced. 2. Apple shall produce all non-identical copies of a document. Where any copy of any document whose production is sought herein, whether a draft or final version, is not identical to any copy thereof, by reason of alternations notes, comments, initials, underscoring, indicating of routing, or other material contained thereon or attached thereto, all such nonidentical copies are to be produced separately. -3-

25 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 5 of Each request herein extends to all documents and communications in Apple s possession, custody or control or anyone acting on Apple s behalf. A document is deemed to be in Apple s possession, custody, or control if it is in Apple s physical custody, or if it is in the physical custody of any other person and Apple: (1 Owns such document in whole or in part; (2 Has a right, by contract, statute or otherwise, to use, inspect, examine or copy such document on any terms; (3 Has an understanding, express or implied, that it may use, inspect, examine, or copy such document on any terms; or (4 As a practical matter, has been able to use, inspect, examine, or copy such document when it sought to do so. If any requested document was, but no longer is, in Apple s control, it shall state the disposition of each such document. 4. Any reference in these document requests to an individual or person includes any and all agents, advisors, employees, representatives, attorneys, successors-ininterest, and all other persons or entities acting in his, her, or its behalf or under his, her or its control. 5. If Apple intends to employ an electronic search to help locate responsive or potentially responsive documents, it shall promptly notify counsel for the Debtors and come to an agreement with counsel for the Debtors regarding the search terms and methodology. -4-

26 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 6 of A request for any document herein shall be deemed to include a request for any and all transmittal sheets, cover letters, exhibits, enclosures, or attachments to such document, in addition to the document itself, in its full and unexpurgated form. 7. If any document is withheld under any claim of privilege or immunity, including without limitation, attorney-client privilege and attorney work product, Apple shall provide the following information with respect to such document: (1 The date of the document; (2 The title of the document; (3 The name of its author(s or preparer(s and an identification by employment and title of each such person; (4 The name of each person who was sent or furnished with, received, viewed or has custody of the document or a copy thereof together with an identification by employment and title of each such person; (5 The request to which the document relates; (6 The title and description of the document sufficient to identify it without revealing the information for which privilege is claimed; (7 The claim of privilege under which it is withheld; and (8 A description of the subject matter of the document in sufficient detail to support Apple s contention that the document is privileged. -5-

27 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 7 of If, after exercising due diligence to secure them, Apple cannot provide some or any of the requested documents, it shall so state and provide all documents to the extent possible, specifying the reason for its inability to produce the remainder of the documents, and stating whatever information or knowledge Apple has concerning each document not produced. 9. If any requested document or other document potentially relevant to this request is subject to destruction under any document retention or destruction program, the documents(s should be exempted from any scheduled destruction and should not be destroyed unless otherwise permitted by the Court. 10. If any document responsive to these requests is known to have existed and cannot now be located, or has been destroyed or discarded, Apple shall set forth a complete statement of the circumstances surrounding such loss or destruction, including: (1 A description of the document, including the date, a summary of its contents and the identity of its author and the person(s to whom it was sent or shown; (2 The last known custodian; (3 Whether the document is missing or lost or was destroyed or discarded; (4 The date of loss, destruction or discard; (5 The manner of destruction or discard; (6 The reason(s for destruction or discard; (7 The person(s authorizing or carrying out such destruction or discard; and (8 The efforts made to locate lost or misplaced documents. -6-

28 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 8 of If an objection is made to any request, Apple shall state its objection and the ground or grounds with particularity in its written response. If an objection is made only to part of a request, Apple shall identify that part in its written response and state its objection and the ground(s therefore. Notwithstanding any objection, whether made in whole or in part to a request, Apple shall nonetheless comply fully with the other parts of the request to which it is not objecting. 12. These document requests are continuing in nature. If, after producing the requested documents, Apple obtains or becomes aware of any further documents responsive to these requests, it is required to produce such additional documents. Supplemental responses should be served within five (5 days after such information or documents become known to Apple. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. A list of all patents issued or assigned to Kodak that Apple purports to own or in which Apple claims an ownership interest. 2. All Documents and Communications identifying any Kodak patent that Apple claims to own or in which Apple claims an ownership interest. 3. All Documents and Communications supporting or relating to any Apple claim of ownership or an ownership interest in any patent issued or assigned to Kodak, including but not limited to any such documents within Apple s custody or control relating to Flashpoint. 4. All Documents and Communications supporting or relating to Apple s claim that it is the rightful owner of the 218 Patent (and potentially many other Kodak patents, as alleged in the 6 of the Apple DIP Objection. 5. All Documents and Communications supporting or relating to Apple s assertion that it is entitled to restitution of all or a substantial portion of the licensing revenues -7-

29 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 9 of 10 that Kodak has obtained based on its improper claims to ownership of the 218 patent and potentially other patents sought based on Apple s innovations and technology, as alleged in 7 of the Apple DIP Objection. 6. All Documents and Communications relating to the ownership of the 218 Patent produced by Apple in the 703 Proceeding. 7. All Documents and Communications relating to the ownership of the 218 Patent obtained by Apple that were produced in the 663 Proceeding. 8. All Documents and Communications relating to the ownership of any patent in which Apple claimed any ownership interest in the 717 Proceeding. 9. All transcripts of testimony, including, but not limited to, deposition, hearing testimony, and all affidavits or declarations provided by Eric Anderson on behalf of Apple relating to ownership of the 218 Patent. 10. All agreements or understandings between Apple and Eric Anderson relating to his involvement in disputes between Apple and Kodak over the ownership or inventorship of the 218 Patent. 11. All Documents and Communications relating to the value of Kodak s digital imaging portfolio (as that term is used in the Apple DIP Objection. 12. All Documents and Communications relating to the motivation for or effect of Apple s assertion of claims in these chapter 11 cases that it has an ownership interest in patents issued or assigned to Kodak. -8-

30 alg Doc Filed 03/02/12 Entered 03/02/12 19:39:27 Exhibit B - Request for Production of Documents Pg 10 of 10 Dated: March, 2012 Steven L. Holley Andrew G. Dietderich Brian D. Glueckstein SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Tel: ( Fax: ( Pauline K. Morgan Joseph M. Barry YOUNG CONAWAY STARGATT & TAYLOR, LLP 1270 Avenue of the Americas Suite 2210 New York, New York Tel: ( Fax: ( Counsel to the Debtors and Debtors in Possession -9-