Overture Services, Inc. v. Google Inc.

Filing 188

Declaration of Christine P. Sun in Support of 183 Motion to Compel Production of Documents and Testimony Re Prosecution of '361 Patent [Supplemental Declaration] filed by Google Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 183 ) (Sun, Christine) (Filed on 7/7/2004)

Overture Services, Inc. v. Google Inc.

Doc. 188 Att. 5

Case 3:02-cv-01991-JSW

Document 188-6

Filed 07/07/2004

Page 1 of 7

~ "1

Jerry L. Marks (No. 135395) Michael L Cypers (No. 100641) Jeffrey A. Richmond (No. 155808) 3 HELLER EHRMAN WHITE & MCAULIFFE LLP 601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017-5758

Telephone: [phone] Facsimile: (213) 614- 1868 Attorneys for Defendants CREDIT SUISSE FIRST BOSTON, INC.
CREDIT SUISSE FIRST BOSTON (USA) INC.

and DONALDSON LUFKIN & JENRETTE SECURITIES CORP. and Defendant/Cross- Complainant SUISSE FIRST. BOSTON LLC 10 CREDIT

11 (additional parties and counsel on following pages
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES

15 Special Title (Rule 1550(b))

Coordinati on Proceeding

ASSIGNED FOR ALL PURPOSES TO THE HONORABLE VICTORIA CHANEY , DE:?ARTMENT 324 , CCW

OPPOSITION TO MOTIONS FOR STAY BY CROSS-DEFENDANTS
ANDREW S. F ASTOW AND

21
Heller 28 Ehrman
White &
McAuliffe LLP

MICHAEL J. KOPPER
JUDICIAL COUNCIL COORDINATION PROCEEDING
No. 4306

20 THE ENRON SECURITIES CASES
Included actions:

Opportunities Fund III 23 OCM roup, Inc. Citig

, LP. v.

25 Company, LLC v. Citigroup, Inc. 27 and related cross-actions.

Pacific Investment Management

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES No. BC 283342 SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE No. 02CCO0300
Date: Time:
June 21

2004

2:00 p.

OPPOSITION TO CROSS-DEFENDANTS' MOTIONS FOR STAY: JCCP 4306

Dockets.Justia.com

Case 3:02-cv-01991-JSW

Document 188-6

Filed 07/07/2004

Page 2 of 7

Richard W. Clary Julie A. North 2 CRA V A TH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York , NY 10019-7475
Tele~hone: (212) 474- 1000
FacsImile: [phone]

. Attorneys for Defendants (in both cases) CREDIT SUISSE FIRST BOSTON , INC. , CREDIT SUISSE FIRST BOSTON (USA) 7 INC. , and DONALDSON LUFKIN & JENRETTE SECURITIES CORP. , and DefendantlThird- Party Plaintiff CREDIT SUISSE FIRST BOSTON LLC

10 Paul S. Chan (No. 183406)
11 WOLPERT,
1875 Century Park East ,

Ronald J. Nessim(No. 94208) John K. Rubiner (No. 155208)

BIRD , MARELLA, BOXER &

APC

12 Los Angeles, CA 90067 Telephone: [phone] Facsimile: [phone] 14 Attorneys for DefendantsfThird- Party Plaintiffs 15 CITIGROUP, INC., CITICORP, CITIBANK, N.

23rd Floor

Brad S. Karp Michael E. Gertzman Jonathan Hurwitz PAUL , WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019- 6064 Telephone: [phone] FacsImile: (212) 757- 3990

(in both cases)

and CITIGROUP GLOBAL MARKETS INe.

, CITICORP NORTH AMERICA , INC.

1.6

20 22

(in both cases) 23 DEUTSCHE BANC ALEX. BROWN and DEUTSCHE BANC ALEX. BROWN INC. and . DefendantlThird- Party Plaintiff DEUTSCHE BANK SECURITIES INC.

2Attorneys for Defendants 1
Facsimile: (212) 354- 8113

Michael Houske (No. 218830) 18 WHITE & CASE LLP 633 West Fifth Street , Suite 1900 19 Los Angeles , CA 90071 Telephone: [phone] Facsimile: (213) 687- 0758

17 Bryan A. M~an (No. 134357)

Lawrence Byrne Owen Pen Lance Croffoot- Suede Joseph B. Schmit WHITE & CASE LLP 1155 Avenue of the Americas New York, NY 10036 Telephone: [phone]

- Heller 28
Ehrman
White &
McAuliffe LLP

oPPOSmON TO CROSS-DEFENDANTS' MOTIONS TO QUASH: JCCP 4306

Case 3:02-cv-01991-JSW

Document 188-6

Filed 07/07/2004

Page 3 of 7

Chef A. Kronenberg (No. 222335) SIMPSON THACHER & BARTLETT LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067-4607
Tele~hone: [phone]
FacsImile: [phone]

Thomas C. Rice Bruce D. Angiolillo David J. won Jonathan K. Youngwood SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Tele~hone: (212) 455- 2000 Facsm1ile: (212) 455- 2502

7

Attorneys for DefendantslThird- Party Plaintiffs (in OCM case only) J.P. MORGAN CHASE & CO., J.P. MORGAN SECURITIES INC., and JPMORGAN

CHASE BANK

Philip E. Cook (No. 149067) Michael G. Morgan (No. 170611) 10 JONES DAY 555 West Fifth Street, Suite 4600 11 Los Angeles, CA 90013

David 1. Carden Robert C. Micheletto JONES DAY
New York, NY 10017 Tel~hone: [phone]
FacsImile: [phone]

222 East 41st Street

12 Facsmrile: [phone]
14

Tele?hone: [phone]

LEHMAN BROTHERS HOLDINGS INC. and LEHMAN BROTHERS INC.
Barry H. Berke

(in OCM case only)
Attorneys for DefendantslT.hird-Party Plaintiffs

16 Neal S. Robb (No. 107701) KEESAL , yOUNG & LOGAN, APC 17 400 Oceangate Post Office Box 1780 18 Long Beach, CA 90801 Tel~hone: [phone] 19 Facsnnile: [phone]

Stephen Sinaiko KRAMER LEVIN NAFTALIS & FRANKEL LLP 919 Third Avenue . New York, NY 10022 Telephone: [phone] FacsImile: (212) 715- 8000

21 (in both cases)

Attorneys for Defendantsffhird- Party Plaintiffs

THE BEAR STEARNS COMPANIES, INC. and BEAR , STEARNS & CO. INC.
Brendan P' . Cul1 en
No. 194057)

23 RobertA. Sacks (No. 150146)

24 1888 Century Park East
25

. SULLN AN & CROMWELL LLP

SULLN AN & CR MWELL LLP
1870 Embarcadero Road

Los Angeles, CA 90067 . Telephone: [phone] FacsImile: [phone]

Palo Alto, CA 94303
Telephone: [phone] Facsmrile: [phone]

27 (in OCM case only)
- Heller 28
Ehrman
White &
McAuliffe UP

Attorneys for DefendantlThird-Party Plaintiff

UBS SECURITIES LLC

oPPOSmON TO CROSS. DEFENDANTS' MOTIONS TO QUASH: JCCP 4306

~~~

-,

~~

'-Filed 07/07/2004 Page 4 of 7

Case 3:02-cv-01991-JSW

Document 188-6

INTRODUCTION
Cross- Defendants Andrew S. Fastow and Michael
their obligations to respond to the cross-complaint
J.

Kopper ask this Court to stay
discovery. Kopper

and to respond to

requests that such stay remain in place until October

15

2004 and his request at least
Memorandum of

implicitly encompasses jurisdictional discovery.
Authorities filed by Crossat 1 , 8.
Defendant Michael J.

See

Points and

Kopper on April 23 , 2004 ("Kopper Br.
' and does not specify whether it

Fastow

s request is indefinite in duration

encompasses jurisdictional discovery.

See Memorandum of Points and Authorities filed by
on

9 Cross-Defendant Andrew S. Fastow

April 30

2004

Fastow Br.

) at 6.

Fastow s and Kopper s motions are based primarily on two California cases that
suggest stays' should be granted upon request by parties in criminal jeopardy,
such stays wil1 impose no prejudice on if and

only if

12 other parties or the judicial system. The cases 13 require a careful balancing of interests , and both make clear that any stay must be fashioned 14 so as to avoid any prejudice to other parties. Cross-Complainants ! do not oppose the 15 limited stays requested by Fastow and Kopper, provided that they are So fashioned. ' This 16 means that (1) neither Fastow nor Kopper should be excused from participating in discovery 17 directed to others; and (2) this Court should not proceed to determine its personal
18 jurisdiction over Fastow or Kopper without affording Cross-Complainants an opportunity to

19 take jurisdictional discovery from them: In addition , because Fastow and Kopper will need 20 to give evidence (or invoke the Fifth AmendtTIent) ~t some point in order for these cases to
be brought to trial , this Court should re-evaluate the propriety
of

any limited stays, at a

22 minimum, at each quarterly status conference called for in the Case Management Order.
Complainants in the OCM action are Citigroup, Inc. , Citicorp, Citibank 24 N. , Citicorp North America, Inc. , Citigroup Global Markets Inc. , Credit Suisse First Boston LLC, Deutsche Securities Inc. , J.P. Morgan . Chase & Co., JPMorgan Chase Bank, J.P. Morgan Secunties Inc. , Lehman Brothers Holdings Inc. , Lehman Brothers Inc.

1 Cross-

- Heller 28 Deutsche Bank Securities Inc. , Bear Steams Companies Inc. , and Bear, Stearns & Co. Inc.
Ehrman
White &

25 26 Bear Stearns Companies Inc. , Bear, Steams & Co. Inc. , and UBS Securities LLc. CrossComp Inc. 27 North lainants in the ,PIMCO action are Citigroup,Inc. ,, Citicorp, Citibank, N. , Citicorp America Citigroup Global Markets Credit Suisse First Boston LLC
, Inc.

OPPOSITION TO CROSS-DEFENDANTS' MOTIONS TO QUASH: JCCP

4306

"'Case 3:02-cv-01991-JSW Document 188-6 Filed 07/07/2004 Page 5 of 7

II.

Neither Fastow Nor Kopper Should Be Excused From
Discovery Directed To Others

Both F astow and Kopper represent to this Court that they seek

stays like those
District

previously ordered by Judge Melinda Harmon in the MDL proceeding in the U. S.

Court for the Southern District of Texas In re Enroll Corp. Securities
1446).

Litigation

(MDL

See Fastow Br. at 1; Kopper Br. at 2. Importantly, while the stays ordered by Judge

Harmon recognize Fastow s and Kopper s Fifth Amendment interests by shielding them
from having to respond

to discovery, they do not
directed to others.

excuse Fastow or Kopper from

participating in discovery

For obvious reasons of judicial economy and

10 efficiency, neither Fastow nor Kopper will be permitted, at some later stage in the litigation
to retake or reopen other witnesses ' depositions on the ground that they did not have an
opportunity to participate.

It is criticalto the efficient management of these cases - and of the MDL proceeding,

14 because depositions are being coordinated - that the same rule apply here.

Cross-

Complainants do not understand Fastow or Kopper to be asking this Court to excuse them

16 from participating in discovery.
Kopper are not excused

However,

to avoid any possible confusion , Cross-

Complainants respectfully request that this Court specify in any stay order that Fastow and

fromparticipating
responding

in

discovery

directed to others

during such time

19

as they may be excused from

to some or aU discovery directed., to them.

20 III.

This Court Should Not Decide Motions To

Without Allowing Cross-Complainants To Take Jurisdictional Discovery
Along with his motion for stay, Fastow filed a motion to quash service of summons

Quash By Fastow

Or Kopper

22 on the cross-complaint for lack of personal
23 motion

jurisdiction. Kopper has not filed such a

24

, but the brief in support of his motion for stay suggests that he may intend to do so
See Kopper Br. at 1 n.

in the future.

26 motions to quash , Cross-Complainants are entitled to take jurisdictional discovery before 27 this Court decides
Heller 28 Ehrman
White &
McAuliffe LLP

For the reasons set forth in their accompanying brief opposing Cross-Defendants'

any such motions.

The Court indicated

at the

status conference

OPPOSITION TO CROSS-DEFENDANTS' MOTIONS TO QUASH:

JCCP

4306

~,

Case 3:02-cv-01991-JSW

Document 188-6

Filed 07/07/2004

Page 6 of 7

Fastow and Kopper are no longer in criminal jeopardy. If this remains the Court' s view, the

Court should carve out jurisdictional discovery from the requested
Eagleson , No. CIV. A. 95-7021 , 1996 WL 420829, *7

stays.

See Forbes v.

(B.D. Pa. July 23 ,

1996) (staying

action pending disposition of criminal indictment but excepting jurisdictional discovery).

Fastow and Kopper may argue that they cannot respond even to jurisdictional
discovery without touching on issues relevant to the criminal proceedings against them , and

might therefore be "forced" to invoke the Fifth'Amendment. So be it. A litigant's interest
in avoiding what Fastow and Kopper describe as a "Hobson s choice" between

self-

10 incrimination and the purely civil consequences that flow from "taking the Fifth" is not of
constitutional dimension.

See

United States v. Kordel , 397 U. S.
660, 666-67
(5th Cir. 1981);

1,

11 (1970);

SEC v.

12

First Fin. Group. Inc. , 659 F.2d
1368, 1375 (D.C.

SEC v. Dresser Indus.. 628

13 F.2d

Cir. 1980). The California cases on which Fastow and Kopper base
, 162 Cal. App. 3d 686 (l984) and

14 their stay motions
15

Pacers. Inc. y. Superior Court

Avant!

Corp. v. Superior Court. 79 Cal. App. 4th 876 (2000), expressly require a movant' s interest
aU interests of the Court.

16 to be balanced against all interests of other litigants and
162 Ca1. App. 3d at 690;

Pacers.

17 Avant!. 79 Cal. App. 4th at 510. It would be extremely prejudicial 18 for this Court to allow Fas~ow and/or: Kopper to use their Fifth Amendment rights as
19 swords,

filing motions to quash and at the same time barring Cross- Complainants from
In this situation

. 20 taking the jurisdictional discovery they need to defeat such motions.
balancing of interests requir~d by and

, the

21 Pacers Avant! will require Fastow (and Kopper, if 22 and when he files a motion to quash) to respond to jurisdictional discovery - by giving
23 evidence, by invoking the Fifth Amendment,

orby doing some of each , as they see fit.

24 IV.

CONCLUSION
For the foregoing reasons ,

if this Court determines that a balancing of all relevant

26 interests warrants an order staying Fastow s and/or Kopper s obligations to respond to the 27 cross-complaint and to discovery, such order should (1) specify that neither Fastow nor
~~~~n 28 Kopper is excused from participating in discovery directed to others; and (2) provide in
White &
McAuliffe LLP

oPPosmON TO CROSS-DEFENDANTS' MOTIONS TO QUASH: JCCP 4306

,"

Case 3:02-cv-01991-JSW

Document 188-6

Filed 07/07/2004

Page 7 of 7

2 Cross-Complainants have had an opportunity to take jurisdictional discovery from them.

DATED: May 21 , 2004

Respectfully submitted
HELLER EHRMAN WHITE & M CA ULIFFE LLP ,

:I~A~

FFREY A. RICHMOND

Attorneys for Defendant/Cross- Complainant CREDIT SUISSE FIRST BOSTON LLC
(By permission and on behalf of all CrossComplainants)

LA 294173 v2
5/21104 16

11 :46 AM (26962.0029)

- Heller 28
Ehrman
White &

McAuliffe LLP
opposmON TO CROSS-DEFENDANTS" MOTIONS TO QUASH: JCCP 4306