Overture Services, Inc. v. Google Inc.

Filing 198

DECLARATION of Michael P. Wickey [in Support of Plaintiff Overture Services, Inc.'s Opposition to Defendant Google Inc.'s Motion to Compel Production of Documents and Testimony re Prosecution of the '361 Patent] filed by Overture Services, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K Part 1# 12 Exhibit K Part 2# 13 Exhibit K Part 3# 14 Exhibit K Part 4# 15 Exhibit K Part 5# 16 Exhibit K Part 6# 17 Exhibit K Part 7# 18 Exhibit K Part 8# 19 Exhibit L# 20 Exhibit M# 21 Exhibit N# 22 Exhibit O# 23 Exhibit P# 24 Exhibit Q# 25 Exhibit R# 26 Exhibit S# 27 Exhibit T# 28 Exhibit U# 29 Exhibit V)(Wickey, Michael) (Filed on 7/15/2004)

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Overture Services, Inc. v. Google Inc. Doc. 198 Case 3:02-cv-01991-JSW Document 198 Filed 07/15/2004 Page 1 of 5 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 ROBERT T. HASLAM (#71134) ROBERT D. FRAM (#126750) M. PATRICIA THAYER (#90818) S. ELIZABETH MITCHELL (#187053) ANDREW C. BYRNES (#191516) HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104-2878 Telephone: (415) 772-6000 Facsimile: (415) 772-6268 BRINKS HOFER GILSON & LIONE JACK C. BERENZWEIG WILLIAM H. FRANKEL JASON C. WHITE NBC Tower Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611 Telephone: (312) 321-4200 Facsimile: (312) 321-4299 Attorneys for Plaintiff and Counterdefendant, OVERTURE SERVICES, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION OVERTURE SERVICES, INC., Plaintiff and Counter defendant, v. GOOGLE INC., Defendant and Counterclaimant. E-Filing Case No.: 02-01991 JSW (EDL) DECLARATION OF MICHAEL P. WICKEY IN SUPPORT OF PLAINTIFF OVERTURE SERVICES, INC.'S OPPOSITION TO DEFENDANT GOOGLE INC.'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND TESTIM ONY RE PROSECUTION OF THE '361 PATENT Hearing Date: August 10, 2004 Hearing Time: 9:00 a.m. Hon. Elizabeth D. Laporte DECL. OF MICHAEL WICKEY IN SUPPORT OF OVERTURE'S OPPOSITION TO GOOGLE'S MOTION TO COMPEL PRODUCTION 02-01991 JSW (EDL) Dockets.Justia.com Case 3:02-cv-01991-JSW Document 198 Filed 07/15/2004 Page 2 of 5 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 I, Michael P. Wickey, declare: 1. I am an attorney licensed to practice in the State of California and an associate with the law firm of Heller Ehrman White & McAuliffe LLP, counsel to Plaintiff Overture Services, Inc. ("Overture") in this action. I make this declaration in support of Overture's Opposition to Google, Inc.'s ("Google") Motion to Compel Production of Documents and Testimony re Prosecution of the `361 Patent. Unless otherwise noted, the factual assertions herein are made on my personal knowledge and, if called upon to do so, I could and would testify competently thereto. 2. On July 18, 2003, Elaine K. Lee gave sworn deposition testimony in this case for 3 hours, 40 minutes; on July 23, 2003 and April 15, 2004, John G. Rauch gave sworn deposition testimony in this case for a combined 9 hours; and on April 15, 2004, James P. Naughton gave sworn deposition testimony in this case for nearly 7 hours. During these depositions, Overture's attorney witnesses were cautioned 70 times not to provide an answer that would reveal protected and/or privileged information. 3. Overture is engaged in ongoing litigation against FindWhat.com, Inc. ("FindWhat") involving claims of the `361 patent: Overture Services, Inc. v. FindWhat.com, Inc., CV 03-00685 CJC, Central District of California, Southern Division ("the Overture v. FindWhat matter"). Attached hereto as Exhibit A is a true and correct copy of a November 5, 2002 Confidentiality Agreement between Google and FindWhat, detailing their agreement to share information between the two cases, which Google produced in this matter at GOG 32284 32288. 4. On May 11, 2004, James P. Naughton gave sworn deposition testimony for eight hours in the Overture v. FindWhat matter; and on May 12, 2004, John G. Rauch gave sworn deposition testimony for 6 hours in Overture v. FindWhat matter. Transcripts for these depositions were produced to Google in this case, pursuant to Google's Request for Production No. 51, served on September 20, 2002 and reading: "REQUEST FOR PRODUCTION NO. 51: All documents relating to any disputes, including, without limitation, cease and desist matters, litigation, arbitration, or administrative procedures in 2 DECL. OF MICHAEL WICKEY IN SUPPORT OF OVERTURE'S OPPOSITION TO GOOGLE'S MOTION TO COMPEL PRODUCTION 02-01991 JSW (EDL) Case 3:02-cv-01991-JSW Document 198 Filed 07/15/2004 Page 3 of 5 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 which Overture was or is involved and that relate to Overture's Paid Listing System." 5. On May 28, 2004, Google provided Overture with a draft version of the current motion as an attachment to a mediation brief, and from that date until Google filed its current motion to compel on June 29, 2004, during which time the parties were engaged in settlement discussions, counsel for Google did not make any attempt to address the substance of its draft motion with counsel for Overture or to resolve the issues disputed without court action. 6. Attached hereto as Exhibit B is a true and correct copy of a July 1, 2004 letter from Andrew C. Byrnes, counsel for Overture, to Christine P. Sun, counsel for Google. 7. Attached hereto as Exhibit C is a true and correct copy of a letter sent by facsimile dated July 7, 2004 from Michael P. Wickey to Christine P. Sun. 8. Attached hereto as Exhibit D is a true and correct copy of a July 9, 2004 letter from Christine P. Sun to Michael P. Wickey. 9. Attached hereto as Exhibit E are true and correct excerpts from the deposition transcript of Jeffrey Brewer, dated November 12, 2003, taken in the Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 10. Attached hereto as Exhibit F are true and correct excerpts from the deposition transcript of Tod Kurt, dated April 27, 2004 taken in Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 11. Attached hereto as Exhibit G are true and correct excerpts from the deposition transcript of Steven Skovran, dated May 11, 2004, taken in Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 12. Attached hereto as Exhibit H are true and correct excerpts from the deposition transcript of Matthew J. Derer, dated April 22, 2004, taken in Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to 3 DECL. OF MICHAEL WICKEY IN SUPPORT OF OVERTURE'S OPPOSITION TO GOOGLE'S MOTION TO COMPEL PRODUCTION 02-01991 JSW (EDL) Case 3:02-cv-01991-JSW Document 198 Filed 07/15/2004 Page 4 of 5 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 Google's Request for Production No. 51. 13. Attached hereto as Exhibit I are true and correct excerpts from the deposition transcript of Preston Pfarner, dated April 28, 2004, taken in the Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 14. Attached hereto as Exhibit J are true and correct excerpts from the deposition transcript of James B. Gallinatti, dated June 9, 2004, taken in the Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 15. Attached hereto as Exhibit K are true and correct excerpts from the deposition transcript of James P. Naughton, dated April 15, 2004, taken in this matter. 16. Attached hereto as Exhibit L are true and correct excerpts from the deposition transcript of Elaine K. Lee, dated July 18, 2003, taken in this matter. 17. Attached hereto as Exhibit M are true and correct excerpts from the deposition transcript of John G. Rauch, dated April 15, 2004, taken in this matter. 18. Attached hereto as Exhibit N is a true and correct copy of the U.S. PTO Notice of Allowability for Application No. 09/322,677 dated March 23, 2001. 19. Attached hereto as Exhibit O are true and correct excerpts from the deposition transcript of Darren J. Davis, dated May 20 and 21, 2003, taken in this matter. 20. Attached hereto as Exhibit P is a true and correct copy of the U.S. PTO Information Disclosure Statement dated August 27, 1999 filed by Elaine K. Lee on behalf of the inventors of the `361 Patent. 21. Attached hereto as Exhibit Q is a true and correct copy of U. S. Patent No. 6,269,361 B1 issued on July 31, 2001. 22. I have reviewed the application for the `361 patent, all amendments submitted during its prosecution before the U.S. PTO, and the patent as issued. Based on that review, I have honestly and faithfully rendered the history of changes to the language of Claim 1 of the `361 patent and have attached that rendering hereto as Exhibit R. 4 DECL. OF MICHAEL WICKEY IN SUPPORT OF OVERTURE'S OPPOSITION TO GOOGLE'S MOTION TO COMPEL PRODUCTION 02-01991 JSW (EDL) Case 3:02-cv-01991-JSW Document 198 Filed 07/15/2004 Page 5 of 5 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 23. Attached hereto as Exhibit S is a true and correct copy of the U.S. PTO Office Action, dated November 22, 2000, regarding Patent Application No. 09/322,677. 24. Attached hereto as Exhibit T is a true and correct copy of a letter dated July 15, 2004 from Michael P. Wickey to Christine P. Sun. 25. Attached hereto as Exhibit U are true and correct excerpts from the deposition transcript of Tod Kurt, dated January 21, 2004 taken in the Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. 26. Attached hereto as Exhibit V are true and correct excerpts from the deposition transcript of Thomas Soulanille, dated January 22, 2004 taken in the Overture v. FindWhat matter. The transcript for this deposition was produced to Google in the current case, pursuant to Google's Request for Production No. 51. I declare under penalty of perjury pursuant to the laws of the United States that the foregoing is true and correct, and that this Declaration is executed this 15th day of July, 2004 in Menlo Park, California. _/s/__________________________________ Michael P. Wickey 5 DECL. OF MICHAEL WICKEY IN SUPPORT OF OVERTURE'S OPPOSITION TO GOOGLE'S MOTION TO COMPEL PRODUCTION 02-01991 JSW (EDL)

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