SkyRiver Technology Solutions, LLC et al v. OCLC Online Computer Library Center, Inc.

Filing 17

Declaration of Bruce Crocco in Support of 16 MOTION to Transfer Case Defendant's Notice of Motion and Motion; Memorandum of Points and Authoriies in Support of Motion to Transfer Venue MOTION to Change Venue Declaration of Bruce Crocco in Support of Motion to Transfer Venue Pursuant to 28 U.S. C. Section 1404(A) filed byOCLC Online Computer Library Center, Inc.. (Related document(s) 16 ) (Wisoff, Carl) (Filed on 9/9/2010) [Transferred from California Northern on 11/12/2010.]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Douglas R. Young (Bar No. 073248) dyoung@fbm.com C. Brandon Wisoff (Bar No. 121930) bwisoff@fbm.com Farella Braun + Martel LLP 235 Montgomery St., 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 James A. Wilson (Pro hac vice) jawilson@vorys.com Vorys, Sater, Seymour & Pease LLP 52 E. Gay St. Columbus, OH 43215 Telephone: (614) 464-6400 Facsimile: (614) 464-6350 Attorneys for Defendant OCLC ONLINE COMPUTER LIBRARY CENTER, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SKYRIVER TECHNOLOGY SOLUTIONS, LLC, a California limited liability company, and INNOVATIVE INTERFACES, INC, a California corporation, , Plaintiffs, vs. OCLC ONLINE COMPUTER LIBRARY CENTER, Inc., an Ohio non-profit corporation,, Defendant. Case No. 3:10-cv-03305-JSW DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(A) Date: October 29, 2010 Time: 9:00 a.m. Judge: Judge: Jeffrey S. White Courtroom: 11, l9th Floor DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 I, Bruce Crocco, declare: I have personal knowledge of the following facts and could and would testify to them if called as witness in a court of law. 1. I make this Declaration based upon my personal knowledge, through review of records of OCLC Online Computer Library Center, Inc. (hereafter "Defendant" or "OCLC") and from information provided by other OCLC employees. 2. I am, and was at all times relevant herein, Vice President, Library Services for the Americas for OCLC Online Computer Library Center, Inc. ("OCLC"). In this position, I oversee sales and library services in the United States, Canada, Latin America, and the Caribbean, member services in the United States, and market analysis and sales programs. I work at OCLC headquarters in Dublin, Ohio. I have been an employee of OCLC since 2002. I report to Cathy De Rosa, Vice President OCLC for the Americas and Global Vice President of Marketing. 3. OCLC is an Ohio-based non-profit corporation originally named the Ohio College Library Center. OCLC was founded in 1967 when three Ohio university presidents, three Ohio university vice presidents, and four Ohio university library directors from the Ohio College Association met on the campus of The Ohio State University in Columbus, Ohio to sign its articles of incorporation to become a non-profit entity. Their goal, in the words of the first annual report of the Ohio College Library Center, was to establish a computer library network for "the fundamental public purpose of furthering ease of access to and use of the ever expanding body of worldwide scientific, literary and educational knowledge and information." 4. In 1970s dollars, it cost a library somewhere between $30-$60 to prepare each card catalog entry for a single title. OCLC significantly reduced that expense by offering customprinted card catalogs, ready for filing in individual libraries. DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -2- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 5. OCLC also pioneered the movement away from paper card catalogs to an online- based system through its WorldCat catalog, which has become the world's most comprehensive bibliographic database. Through WorldCat, member libraries are able to quickly update their catalog acquisitions, and that information is then uploaded to the WorldCat database, which enables member libraries across the world to view each others' holdings. 6. In 2005, WorldCat revealed a new technological platform that, in addition to bibliographic information, also contained information about the book jackets, articles, reviews, readers' advisories, graphics, sound, and motion, all of which make it more efficient for libraries to access information. 7. In addition to WorldCat, OCLC provides a variety of other programs designed to further member libraries access to information and reduce costs for libraries. OCLC supports a world-wide interlibrary lending ("ILL") service accessible to its members, which allows members to share their collections with other member libraries. Three years ago, OCLC introduced WorldCat Local, a service that interoperates with existing integrated library systems ("ILS"), including Innovative Interfaces Inc.'s Millenium and INNReach, to allow libraries to conduct searches in order to use existing bibliographic materials in cataloging their collections. OCLC also has recently announced the development of an innovative new Web-scale library management service ("WMS"), which has yet to be named and which is currently being made available to a limited number of early adopter libraries. OCLC's WMS solutions will enable member libraries to more efficiently and expediently manage their administrative functions, including metadata management, resource sharing, discovery services, acquisitions and circulation, which OCLC believes addresses the current needs of libraries better than the traditional ILS product developed a decade or more ago. DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -3- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 8. OCLC works with libraries to define opportunities, develop consensus and provide research, programs and prototypes that allow libraries, archives and museums to solve the challenges of information access and management. OCLC initiatives also include the publishing of in-depth studies and reports that allow libraries to understand issues and trends that affect librarianship. Over the past decade, OCLC has invested more than $130 million to develop new solutions for the changing needs of libraries pursuant to its status as an Ohio non-profit corporation. 9. Dublin, Ohio. 10. Dublin is a suburb of Columbus, located approximately 15 miles from the Since it began in 1967, OCLC always has been headquartered in Columbus or courthouse for the Southern District of Ohio, Eastern Division, which is located in downtown Columbus. 11. Ohio. 12. OCLC does not own any real property in California. It has an office in San Mateo, Currently, the only facility OCLC owns in the United States is located in Dublin, California, which engages in research, software development, and customer support for products unrelated to the claims in this lawsuit. OCLC also has a small office with training staff located in Ontario, California. None of the employees located in San Mateo or Ontario offices have responsibilities related to the claims in this lawsuit or are likely to be witnesses concerning the allegations in this case. OCLC also has telecommuting agreements with several individuals and employs one member services consultant located in the Los Angeles-area, none of whom have any knowledge related to the claims in this lawsuit. The only OCLC employee located in California with knowledge related to the claims in this case is a library services consultant (i.e., salesperson) who resides in Las Flores, California. DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -4- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 13. OCLC's Executive Group, Product Management, Human Resources, Information Technology, Legal, Sales, Marketing, Business Development, Software Development, Database Management, Finance, Member Services, Order Entry, Customer Support, and Research and Development departments are all based in Dublin, Ohio. The policies generated by these departments are largely developed, maintained, implemented, and enforced by personnel located in and around Dublin. All but three of the individuals in charge of these departments live in Ohio. 14. 15. OCLC's relevant policies and practices were developed and implemented in Ohio. Documents (both electronic and hard copy) are, for the most part, stored at the OCLC's Dublin, Ohio headquarters or in nearby servers. Business records and transactional databases are all located at OCLC headquarters in Dublin or in nearby servers. 16. Many of OCLC's key employees who have knowledge or information that relates to the claims made in this case and to OCLC's defense are employed in Dublin, Ohio. These key employees include: Name and Location Bruce Crocco (myself) Dublin, Ohio Title Vice President, Library Services for the Americas Subject Matter of Testimony Sales and Marketing of OCLC products; pricing of products; customer interactions related to the sales of SkyRiver products, including interactions with Michigan State University and California State Long Beach; competition in products and services provided by OCLC DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -5- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Name and Location Catherine K. De Rosa Dublin, Ohio Title Vice President for the Americas and Global Vice President of Marketing Robert L. Jordan Dublin, Ohio President and Chief Executive Officer Karen Calhoun Dublin, Ohio Lorcan Dempsey Dublin, Ohio Vice President, WorldCat and Metadata Services Vice President, OCLC Research and Chief Strategist Vice President, Innovation Michael A. Teets Dublin, Ohio Andrew Pace Dublin, Ohio Executive Director, Networked Library Services Subject Matter of Testimony Sales and Marketing of OCLC products; pricing and customer usage of products; customer interactions related to the sales of SkyRiver products, including interactions with Michigan State University and California State Long Beach; competition in products and services provided by OCLC Strategy and direction of OCLC and its non-profit mission; strategic decisions related to the sales of SkyRiver products; competition in products and services provided by OCLC OCLC products and costs in batchloading and other services Strategy and direction of OCLC with respect to its mission; competition in products and services provided by OCLC; development of WorldCat and other products Strategy and direction of OCLC with respect to its mission; competition in products and services provided by OCLC; development of WorldCat and other products Strategy and direction of OCLC with respect to development of ILS product; status of customer usage of product; competition in ILS products In addition, while it is difficult to predict at this early stage what other individuals might become witnesses in this case, virtually all employees of OCLC who are likely to have knowledge concerning Innovative and/or SkyRiver, or their products, competition in cataloging, batchloading, maintenance of cataloging data, pricing (current and historical), interlibrary lending, WMS, OCLC's business practices or guidelines, and present and future products and services offered by OCLC, reside in or around, and work in, Dublin, Ohio. The only other individuals employed by OCLC who may have knowledge related in any way to this case are library services consultants (i.e., salespersons) who work out of home-offices around the country. All of the DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -6- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 library service consultants that OCLC is currently aware of who have knowledge related to the sale of SkyRiver products to former OCLC customers reside closer to Columbus, Ohio, than to San Francisco, except for the one library service consultant who lives in Las Flores, California (identified in paragraph 12). This individual was not a decision maker with respect to the pricing or products offered by OCLC. 17. Requiring the key employees listed above to travel from their homes and workplaces to San Francisco for this case, including for hearings or trial, would cause substantial disruption to their personal and professional lives. 18. The job duties of many of the key employees listed above are essential to OCLC's day-to-day operations. The extended simultaneous or overlapping absences of these key employees from their offices to testify for this case would cause material harm to OCLC. 19. In addition to OCLC witnesses, OCLC anticipates eliciting testimony from the following third-party witnesses: Name and Location Approximate Distance to San Francisco (miles) 2,340 Approximate Travel Time to San Francisco 8-10 hours (flying) Approximate Distance to Columbus (miles) 260 Approximate Travel Time to Columbus 4 hours (driving) Clifford H. Haka, Director, Michigan State University Libraries 100 Library East Lansing, MI 48824 DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -7- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Name and Location Approximate Distance to San Francisco (miles) 2,340 Approximate Travel Time to San Francisco 8-10 hours (flying) Approximate Distance to Columbus (miles) 260 Approximate Travel Time to Columbus 4 hours (driving) Nancy W. Fleck Associate Director, MSU Libraries 100 Library East Lansing, MI 48824 Colleen Hyslop Senior Associate Director, MSU Libraries 100 Library East Lansing, MI 48824 Representatives of the State Library of Michigan 702 W. Kalamazoo St. Lansing, MI 48909-7507 Representatives of the Committee on Institutional Cooperation 1819 South Neil Street, Suite D Champaign, IL 61820-7271 Randy Dykhuis Midwest Collaborative for Library Services 1407 Rensen Street, Suite 1 Lansing, MI 48910-3657 Representatives of Capital Area District Library 401 S. Capitol Ave. P.O. Box 40719 Lansing, MI 489017919 2,340 8-10 hours (flying) 260 4 hours (driving) 2,335 8-10 hours (flying) 260 4 hours (driving) 2,130 6-10 hours (flying) 300 3 hours (flying) 2,335 8-10 hours (flying) 260 4 hours (driving) 2,335 8-10 hours (flying) 260 4 hours (driving) In addition, if this case were to proceed to trial, it is possible that other customers that have switched to SkyRiver to provide cataloging software might be called as witnesses. Currently, OCLC is aware of approximately sixteen libraries that have switched to SkyRiver, including those identified in the Complaint. The majority of these libraries are located in Michigan or the DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -8- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Northeastern United States. All of these libraries are closer to Columbus, Ohio than to San Francisco except for two, California State Long Beach and the Scottsdale Public Library. 20. I derived the approximate distances from the above-listed cities to San Francisco, California, and Columbus, Ohio, using Google Maps, last accessed September 8, 2010. I derived the approximate flight times from the above-listed cities to San Francisco, California and Columbus, Ohio via Orbitz.com, last accessed September 8, 2010. The approximate flight times do not account for travel to and from the airport and therefore do not reflect total travel time. 21. The following categories of documents relate to the claims in this case or to OCLC's defenses: (a) documents related to Michigan State University (and other libraries) and its relationship with OCLC, including historic subscriptions, agreements and pricing, and the development of a price quotation to Michigan State to register their collection holdings in WorldCat separately from a WorldCat Cataloging Subscription; (b) documents related to OCLC's batch-loading of records and the pricing for those services; (c) documents related to current and future pricing for subscription services by OCLC, including the WorldCat Network; (d) documents related to the development, amendment or enforcement of the WorldCat Rights and Responsibilities for the OCLC Cooperative and the Guidelines for the Use and Transfer of OCLC-Derived Records; the recruitment or solicitation of employees by OCLC or OCLC's vendors from for-profit competitors; (e) documents related OCLC's Web-scale management service; (f) documents related to OCLC's mergers with other entities; (g) documents related to guidelines/requirements for OCLC membership; (h) documents related to WorldCat Local, including WorldCat Local "quick start"; and (i) records related to OCLC's tax-exempt status. 22. Each of the documents listed in paragraph 21 are located at OCLC's Dublin, Ohio headquarters, or stored on servers in or nearby the Dublin-area. When accounting for DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW -9- 25955\2366496.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 electronically stored documents and e-mails, the documentary evidence here could reach hundreds of thousands of pages. 23. Ohio. 24. Transporting the documents listed in paragraph 21 from Dublin, Ohio to San The custodians for these documents work at OCLC's headquarters in Dublin, Francisco, California would impose a substantial burden on OCLC. 25. Testifying in San Francisco about these documents would disrupt the personal and professional lives of the respective custodians of the documents listed in paragraph 21. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 9, 2010 at Dublin, Ohio. /s/ Bruce Crocco Bruce Crocco DECLARATION OF BRUCE CROCCO IN SUPPORT OF MOTION TO TRANSFER Case No. 10-cv-03305-JSW - 10 - 25955\2366496.1