Overture Services, Inc. v. Google Inc.

Filing 71

MOTION to Expedite Briefing and Hearing Schedule for Overture's Motion for a Protective Order filed by Overture Services, Inc.. (Attachments: # 1 Proposed Order # 2 Affidavit of Charles M. McMahon in Support of Motion to Shorten Briefing and Hearing Schedule)(McMahon, Charles)

Overture Services, Inc. v. Google Inc.

Doc. 71 Att. 2

Case 3:02-cv-01991-JSW

Document 71-3

Filed 08/04/2003

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LATHAM & WATKINS Anthony I. Fenwick (Bar No. 158667) Allon Stabinsky (Bar No. 197642) 135 Commonwealth Drive Menlo Park, California 94025 Telephone: [phone] Facsimile: [phone] BRINKS HOFER GILSON & LIONE Jack C. Berenzweig (Admitted Pro Hac Vice) William H. Frankel (Admitted Pro Hac Vice) Jason C. White (Admitted Pro Hac Vice) Charles M. McMahon (Admitted Pro Hac Vice) NBC Tower - Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff OVERTURE SERVICES, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
OVERTURE SERVICES, INC., a Delaware Corporation, Plaintiff, vs. GOOGLE INC., a California Corporation, Defendant. No. C02-01991 JSW (EDL) DECLARATION OF CHARLES M. MCMAHON IN SUPPORT OF OVERTURE'S UNOPPOSED MOTION TO SHORTEN THE BRIEFING AND HEARING SCHEDULE PURSUANT TO CIVIL LOCAL RULE 6-3

Dockets.Justia.com

Case 3:02-cv-01991-JSW

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Filed 08/04/2003

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I, Charles M. McMahon, declare as follows: 1. I am an associate at the law firm of Brinks Hofer Gilson & Lione, counsel

of record for plaintiff Overture Services, Inc. ("Overture") in this matter. I make this declaration in support of Overture's Unopposed Motion for a Protective Order Preventing Excessive Third Party Discovery. I make the following declaration based upon my personal knowledge, and I could and would testify thereto under oath if called upon to do so. 2. On June 19, 2003, Google Inc. ("Google") provided Overture with notice

that it had served twenty-five (25) subpoenas on third parties who may have advertised with Overture's cost-per-click beta search system on or before May 28, 1998. 3. On July 21, 2003, Google notified Overture that it was serving subpoenas

on forty-six (46) additional third parties, seeking the same categories of documents as Google's twenty-five (25) earlier subpoenas. 4. On July 23, 2003, I telephoned Christine P. Sun, counsel for Google, to

request that Google withdraw at least the last forty-six subpoenas and agree not to serve any further subpoenas on third parties. Ms. Sun refused to do so, and explained that Google plans to serve over 200 more third party subpoenas seeking the same categories of documents. 5. Based upon Ms. Sun's representations, I understand that Google plans to

serve a total of approximately 300 such subpoenas. To prevent Google from pursuing this excessive third party discovery, Overture is filing a Motion for a Protective Order Preventing Excessive Third Party Discovery. 6. Overture seeks to shorten the briefing and hearing schedule for its Motion

for a Protective Order because under the normal schedule, the motion is likely to become at least partly moot before it is heard by the Court. Under the normal discovery motion briefing schedule, the Court would not hear Overture's Motion for a Protective Order until at least 35 days from now. In that time, Overture expects that Google will serve another round or two of subpoenas on third parties, potentially rendering
DECLARATION OF CHARL ES M. MCMAHON IN SUPPORT OF MOTION TO SHORTEN SCHEDULE C 02-01991 JSW (EDL)
BRINKS HOFER GILSON & LIONE NBC Tower ­ Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611-5599 Telephone: [phone] Facsimile: [phone]

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Case 3:02-cv-01991-JSW

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Overture's Motion for a Protective Order moot with respect to those subpoenas. Even since July 23, 2003, when I met and conferred with Ms. Sun pursuant to Civil L.R. 371(a), Google served another three subpoenas on third parties. 8. Another reason that Overture seeks a shortened briefing and hearing

schedule is that many of the subpoenas that Google already served are still pending. The sooner the Court resolves this dispute between the parties, the more likely it will be at least some of the third parties served with these subpoenas will be spared the difficulty of responding to Google's excessive third party discovery. 9. On August 4, 2003, I telephoned Christine P. Sun, counsel for Google, to

request that Google agree to a shortened briefing and hearing schedule for Overture's Motion for a Protective Order. I proposed that Google's opposition to Overture's Motion for a Protective Order be filed no later than August 11, 2003, which is seven (7) days after the motion filing date. I further proposed that the Court hear Overture's Motion for a Protective Order on August 19, 2003, which is fifteen (15) days after the motion filing date. I informed Ms. Sun that if the Court grants Overture's motion for a shortened briefing and hearing schedule, then Overture would forego its right to file a reply brief. Ms. Sun left me a voice message later that afternoon confirming that Google accepts Overture's proposed schedule and will not oppose Overture's Motion for a Shortened Briefing and Hearing Schedule Pursuant to Civil Local Rule 6-3. 10. There have been several modifications to the case management schedule

in this case. However, the present Motion to Shorten the Briefing and Hearing Schedule does not affect the case management schedule. The parties currently are preparing for a Claim Construction Hearing on October 22, 2003. Overture's Motion for a Protective Order relates to Google's third party discovery, which does not bear on the claim construction proceedings or any other deadlines in this case. /// /// ///
DECLARATION OF CHARL ES M. MCMAHON IN SUPPORT OF MOTION TO SHORTEN SCHEDULE C 02-01991 JSW (EDL)
BRINKS HOFER GILSON & LIONE NBC Tower ­ Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611-5599 Telephone: [phone] Facsimile: [phone]

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 4th day of August 2003 in Chicago, Illinois.

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s/Charles M. McMahon Charles M. McMahon

DECLARATION OF CHARL ES M. MCMAHON IN SUPPORT OF MOTION TO SHORTEN SCHEDULE C 02-01991 JSW (EDL)

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BRINKS HOFER GILSON & LIONE NBC Tower ­ Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611-5599 Telephone: [phone] Facsimile: [phone]