Overture Services, Inc. v. Google Inc.

Filing 82

DECLARATION in Support re 70 (Christine P. Sun) Opposition to Overture's Motion for Protective Order filed by Google Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit I# 8 Exhibit J# 9 Exhibit K# 10 Exhibit L# 11 Exhibit M# 12 Exhibit N# 13 Exhibit O# 14 Exhibit P# 15 Exhibit Q# 16 Exhibit R)(Related document(s) 70 ) (Sun, Christine)

Overture Services, Inc. v. Google Inc.

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Case 3:02-cv-01991-JSW

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KEKER & VAN NEST, LLP JOHN W. KEKER - #49092 DARALYN J. DURIE - #169825 MICHAEL S. KWUN - #198945 CHRISTINE P. SUN - #218701 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant and Counterclaimant GOOGLE TECHNOLOGY, INC., sued under its former name GOOGLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

OVERTURE SERVICES, INC., a Delaware corporation, Plaintiff and Counterdefendant, v. GOOGLE INC., a California corporation, Defendant and Counterclaimant.

Case No. C 02-01991 JSW (EDL) DECLARATION OF CHRISTINE P. SUN IN SUPPORT OF GOOGLE'S OPPOSITION TO OVERTURE'S MOTION FOR PROTECTIVE ORDER Date: Time: Dept: Judge: August 19, 2003 9:30 a.m. E, 15th Floor Hon. Elizabeth Laporte

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DECLARATION OF CHRISTINE P. SUN IN SUPPORT OF GOOGLE'S OPPOSITION TO OVERTURE'S MOTION FOR PROTECTIVE ORDER CASE NO. C 02-01991 JSW (EDL) Dockets.Justia.com

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I, CHRISTINE P. SUN, declare and state as follows: 1. I am an attorney licensed to practice law in the State of California and am an

associate in the law firm of Keker & Van Nest, LLP, counsel for Google in the above-captioned matter. This declaration is in support of Google's Opposition to Overture's Motion for Protective Order. Except as otherwise noted, I have personal knowledge of the facts stated in this Declaration, and if called as a witness I could and would competently testify to them under oath. 2. Attached hereto as Exhibit A is a true and correct copy of United States Patent

No. 6,269,361 B1. 3. Attached hereto as Exhibit B is a true and correct copy of relevant portions of an

Office Action dated January 17, 1999 regarding Patent Application No. 09/322,677. 4. Attached hereto as Exhibit C is a true and correct copy of a May 19, 1998 Press

Release entitled "GoTo.com Announces First Round of Financing Totaling More Than 6 Million." 5. Attached hereto as Exhibit D is a true and correct copy of the Declaration of

Darren Davis In Support of Petition and Motion to Make Application Special dated October 22, 1999 regarding Patent Application No. 09/322,677. 6. Attached hereto as Exhibit E is a true and correct copy of Information Disclosure

Statement dated August 27, 1999 regarding Patent Application No. 09/322,677. 7. Attached hereto as Exhibit F is a true and correct copy of a Response dated April

6, 2000 regarding Patent Application No. 09/322,677. 8. Attached to Volume 2 of my Declaration, which has been filed under seal, as

Exhibit G is a true and correct copy of excerpts of the Deposition of Darren Davis dated May 2021, 2003. 9. Attached to Volume 2 of my Declaration, which has been filed under seal, as

Exhibit H are excerpts of the Deposition of John Rauch dated July 23, 2003. 10. Attached hereto as Exhibit I is a true and correct copy of a Declaration of Darren

J. Davis dated September 16, 2000 regarding Patent Application No. 09/322,677. 2
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11.

Attached hereto as Exhibit J is a true an correct copy of the Notice of Allowability

dated March 23,2001 regarding Patent Application No. 09/322,677. 12. Attached hereto as Exhibit K is a true an correct copy of Google's First Request

for Production of Documents dated September 20, 2002. This document request includes requests for information related to Google's prior public use defense. For example, Request No. 10 seeks, "All documents relating to the first sale or offer for sale of any product, device, or method that incorporates or embodies any of the subject matter claimed in the `361 patent.' Request No. 32 seeks, "Copies of all advertising and promotional materials for Overture's Paid Listing System." Request No. 77 seeks, "All documents provided by Overture at any conference, symposium seminar, exhibition, convention, or trade show at which any product, device, apparatus, or method that allegedly embodies, or falls within the scope of, any of the subject matter claimed in the `361 patent was discussed, referred to, advertised, displayed, demonstrated, or shown, including without limitation any such advertisements, brochures, articles, pamphlets, price lists, product specifications, or other promotional or marketing material." 13. With respect to Request 10, Overture agreed in its initial response to produce

responsive documents, subject to its objections. With respect to Requests 32 and 77, Overture initially stated that it would withhold responsive documents until the damages phase of discovery. After meet and confer, Overture agreed to produce documents responsive to those requests, subject to its objections, prior to the damages phase of discovery. Attached hereto as Exhibit L is a true an correct copy of a Letter from C. McMahon to C. Sun dated January 21, 2003. 14. As of this writing, Overture has not produced any billing statements to customers

of the pre-critical date system, or information sufficient to determine what Overture told customers about the features and costs of the pre-critical date system. 15. Attached hereto as Exhibit M is a true an correct copy of Google's Second Set of

Interrogatories dated December 12, 2002. Interrogatory 8 asks, "Identify all customers and potential customers of the COST-PER-CLICK SYSTEM, including but not limited to the name, 3
DECLARATION OF CHRISTINE P. SUN IN SUPPORT OF GOOGLE'S OPPOSITION TO OVERTURE'S MOTION FOR PROTECTIVE ORDER CASE NO. C 02-01991 JSW (EDL)

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address, and contact person at each company, firm, or entity that has purchased, been approached to purchase, or considered purchasing services in connection with the COST-PER-CLICK SYSTEM." "COST-PER-CLICK SYSTEM" is defined as, "the cost-per-click system which was available to the public at the website http://www.goto.com and associated web pages as of May 28, 1998; as well as any prior versions of any such systems, including but not limited to the "cost-per-click beta system" which OVERTURE began developing in January or February 1998, as described in OVERTURE's November 6, 2002 Response to Google's Interrogatory No. 2." (emphasis added). On January 10, 2003, Overture responded to Google's interrogatory with a list of approximately 500 names and addresses. Attached hereto as Exhibit N is a true an correct copy of Overture's Objections and Response to Google's Second Set of Interrogatories (Nos.7-8) dated January 10, 2003. Google eventually culled down the list to about 300 advertisers that, based on Google's research, are still in business. 16. Attached hereto as Exhibit O is a true an correct copy of the Davis Declaration

dated October 22, 1999 regarding Patent Application No. 09/322,677. 17. In June 2003, I served on behalf of my client Google 25 subpoenas to advertisers,

identified by Overture in its interrogatory response, located in California. With each subpoena, I enclosed a letter advising the advertiser that it could contact Google's attorneys or Google's vendor, Compex Legal Services, if the advertiser had any concerns about the subpoena. Attached hereto as Exhibit P is a true an correct copy of a Letter to Egghead from C. Sun dated July 8, 2003, which is an example of the letters I enclosed with each subpoena. No advertiser has contacted Google, or upon information and belief, Google's vendor to express any such concern. Further, Google and, upon information and belief, Google's vendor have granted extensions of time to each advertiser who has made such a request. 18. As of this writing, Google has received only one substantive response to the 25

subpoenas served in June, which consists of a bill for month ending January 31, 2000. Attached hereto as Exhibit Q is a true and correct copy of documents numbered THD 00009 and 00010 received in response to a Google's subpoena to Attorneys Trust Service. 19. Attached hereto as Exhibit R is a true an correct copy of all the documents 4

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received as of this writing (THD 0001-21) in response to Google's subpoenas served on entities that advertised on the pre-critical date system. 20. When I spoke with Charles McMahon, counsel for Overture, on July 23, 2003, I

asked Mr. McMahon if Overture had received any complaints from any advertisers that the subpoenas constituted harassment or undue burden. Mr. McMahon was unable to name a single advertiser who believed that the subpoenas constituted harassment. Nor could Mr. McMahon identify one single customer who believed that the subpoenas were overly burdensome. When I spoke with Mr. McMahon on August 4, 2003 to discuss Overture's request for a shortened briefing schedule, Mr. McMahon was still unable to name a single advertiser who had complained about the subpoenas from Google. Moreover, as stated above, not one advertiser has complained to Google about these subpoenas. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on August 11, 2003, at San Francisco, California.

/s/ Christine P. Sun CHRISTINE P. SUN

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DECLARATION OF CHRISTINE P. SUN IN SUPPORT OF GOOGLE'S OPPOSITION TO OVERTURE'S MOTION FOR PROTECTIVE ORDER CASE NO. C 02-01991 JSW (EDL)