Intermec Technologies Corp. v. Palm, Inc.

Filing 11

Transcript of Proceedings held on May 15, 2009, before Judge William Alsup. Court Reporter/Transcriber Christine Triska, CSR, RPR, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/10/2009. (cat, COURT STAFF) (Filed on 5/15/2009)

Intermec Technologies Corp. v. Palm, Inc.

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Pages 1 - 21 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM ALSUP, JUDGE

CORPORATION, a Delaware corporation,

) ) ) Plaintiff, ) ) v. ) NO. C09-80097; C09-80098 ) PALM, INC., a Delaware ) corporation, ) ) Defendants, ) ______________________________) San Francisco, California Friday, May 15, 2009 TRANSCRIPT OF PROCEEDINGS

APPEARANCES: For Plaintiff BY: For Plaintiff FREEBORN & PETERS LLP 311 South Wacker Drive, Suite 3000 Chicago, IL 60606-6677 JACOB D. KOERING Attorney at Law LINER, GRODE, STEIN, YANKELEVITZ, SUNSHINE, REGENSTREIF & TAYLOR LLP 199 Fremont Street, 20th Floor San Francisco, CA 94105-2255 RICHARD J. MOONEY Attorney at Law CHRISTINE TRISKA, CSR, RPR Pro-Tem Reporter

BY:

Reported By:

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]
Dockets.Justia.com

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APPEARANCES CONTINUED: For Defendant BY: KING AND SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 SCOTT T. WEINGAERTNER Attorney at Law

Also Present:

Chester Day, Google, Inc.

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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Friday, May 15, 2009 8:57 A.M. PROCEEDINGS THE CLERK: Calling Miscellaneous Civil Case C09-80097

and C09-80098, Intermec Technologies versus Palm, Inc. Counsel, please come forward and state your appearance. MR. WEINGAERTNER: Good morning, your Honor. Scott

Weingaertner of King and Spalding, Pro Hac Vice on behalf of Google, Inc. MR. KOERING: of Freeborn and Peters. THE COURT: Good morning, your Honor. Jacob Koering

Pro Hac Vice on behalf of Intermec. Who wants to go first?

All right.

MR. WEINGAERTNER: oblige. THE COURT:

Your Honor, I would be happy to

Say what? Your Honor, we would be happy to go

MR. WEINGAERTNER: first. THE COURT:

All right.

Go ahead.

I have a hearing at 10:00, so I'll have to wind this up before 10:00, so take that into account. MR. WEINGAERTNER: THE COURT: Okay, your Honor.

Mr. Koering, you may have a seat. Thank you, your Honor. Your Honor, first of all, Google

MR. KOERING:

MR. WEINGAERTNER:

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thanks the Court for the opportunity to bring to the Court's attention its request for a protection here in its motion to quash. We assure the Court that we have been in touch with Intermec up until yesterday looking for a way to resolve this issue but unfortunately have been unable to do so. We move the Court, because we have looked very closely at the subpoena, spent a lot of time looking at it, talking about it with Intermec, and it's extremely open-ended. It would potentially target all of the company's

product, of which there are many, and the requests themselves are so broad that it's almost difficult to assess the difficulty with which -- and the burden which we'd need to satisfy the request. In essence, for each of the products it targets it seeks a level of detail and burden similar to what a patent infringement defendant would need to contend with, and entailing two, possibly more witnesses per identified product. The real difficulty in Google's view is that the scope of the information requested, even for an individual application, is very speculative. We have asked Intermec for some theory of evidence here. We've never received it. We've asked for an We have not received

identification of the claims asserted. that.

We've asked for a copy of the infringement Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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contentions, even in redacted form to get some sense of how Google's information could be relevant, and we haven't received that either. There have been a couple of instances in which Intermec has said, "Well, we'll reduce the number of applications we'll be targeting for discovery." But in each

instance they said basically they would start with two but would not limit themselves. And these are very complicated products, your Honor. And so to give your Honor a flavor of the scope,

their subpoena -- and this is Topic Five and Request Number Five -- asks how Google applications -- and this is without limitation to the applications' involvement with the Palm products that are accused. The underlying case in Palm's accusation of infringement against Palm handheld devices that certain Google products can be downloaded onto, it asks without limitation how Google applications store and access data, which is extremely broad, and that's without regard to even use on Palm products. your Honor. In addition, as a way of supposedly narrowing the scope, there was a letter sent on April 3rd that's appended to both parties' papers, which in a way actually complicates and magnifies the scope of requests. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone] So it could be basically company-wide,

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And in particular, these requests ask for how the client and server side -- "client," meaning the handheld device, and the "server," meaning the big machines that sit on the server farm somewhere of each Google product, quote, unquote, "use and store information." So, your Honor, that would be like asking how an F-16 operates. It may sound simple when you phrase it that

way, but it implicates a number of situations. Your Honor, I've worked on a number of litigations for Google involving litigation of specific features of one specific application. And that is actually quite a large

task even for one patent infringement case. So what you're talking about here are any number of features over any number of products with no real stopping point. And one point that makes clear that this is a speculative operation that we're talking about is that in a teleconference we had, Intermec's counsel said they wanted to take discovery application by application until they found one that fit its theory. Your Honor, we contend that if they don't necessarily know what the relevance of the requests are, it's very difficult for us to even know how to respond. So what we've tried to do is cap it to a small manageable response -- so even if you have no theory of Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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relevance -- in an effort to respond within the time frame, because they have found themselves up against the close of discovery through no fault of Google's, I might add, your Honor. We're trying to find a way to get them what they

think they need, but apparently they are not sure what they need. So as a result, there are these extremely broad requests. And even as late as yesterday the requests from They suggested they

the April 30th letter were not narrowed.

might limit it to two applications we had, but in the past they haven't really stuck with that. But even if they did,

we still have this problem of requiring an enormous amount of digging. They seem to believe that there are some readymade answers sitting ready for them tied up with a bow that we can simply hand off to them, which I can testify with experience is not the case with complex software applications. They are incredibly complex projects. The

technical documentation is vast, and for a company like Google the documentation tends to be communications among engineers, which requires a lot of digging to figure out what things mean. Again, Intermec is looking for some high-level documentation, and if there were something that were handy for one application we certainly would be willing to try to Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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find it.

We certainly have not dug our heels in yet, refused But we're simply trying to find something that

to produce.

is reasonable given their theory of relevance. And again, we haven't seen one. Even in their

briefing papers all they say is "calculated to lead to the discovery of admissible evidence." There's actually no

theory of how all this information would relate to their case. What we tried to do, your Honor, is propose an order that we, to best of our ability, thought might be helpful to them, which has to do with downloading a Google application onto a Palm device based on our best reading of what we think their claims require. We found out for the first time just yesterday that they have some theory of contributory infringement, although it's quite vague. We don't really understand what it is.

If your Honor would be interested I can perhaps describe in more detail what the burden is. We put in a declaration that we were able to put together in relatively short order identifying that there may be witnesses in other countries that we'd have to deal with here. If the Court orders we will certainly do it. But

these are complicated projects.

Each feature on one of these And since

software products can involve multiple engineers.

we don't know which features they are targeting we're not Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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sure how to respond. The request for information about how something stores data, for example, could differ from feature to feature. So not only is each product separately designed and

built and separately operated, 'cause there are separate teams that don't necessarily overlap with the others, but each feature has its own characteristics. And to give a sense of complexity, one of the applications that Intermec has targeted is Gmail. online Internet mail service. It's an

And Google has introduced a

new feature every week since its inception several years ago. There's a lot of bells and whistles. function. There's a chat

There's ads that appear -- not just sending and There's a lot -- much more than meets the

receiving mail.

eye that is actually going on. So in sum, your Honor, we believe that the burden is potentially Herculean here, and we request the Court's guidance and relief to narrow it to a scope that would be reasonable, particularly in view of the fact that we have not yet learned exactly how Intermec believes these requests would be relevant to it. THE COURT: Thank you. Thank you, your Honor. Thank you for We appreciate

MR. WEINGAERTNER: MR. KOERING:

Good morning, your Honor.

setting a hearing on this matter in short notice. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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it. I think before I address counsel for Google I think it would be helpful for the Court to understand Google's position with respect to Intermec's case and how it's going to be relevant here. Our client owns several patents that relate to a very early description of a client-server architecture system. And while that technology has its application in

various different ways, in this case we're talking about a client as far as a Palm handheld and a server being a computer device that's accessible through a wireless connection on the Internet. So, for example, it could be an

enterprise e-mail server or it could be an Internet server. These descriptions that I'm giving you here have been -- since Intermec submitted it's subpoena to Google on March 24th of this year, we've had detailed discussions with counsel. So this should give some flavor to the back and forth

between the parties. The information that Intermec is requesting relative to Google's position here is that we want to understand when somebody is using Palm's product they can open up a Web browser and access Gmail. If I get a listing of e-mails, if I click on that e-mail: What request is sent to Google servers? How does

Google's server process that?

Locate the e-mail that's

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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stored in the server? server?

How are those e-mails organized in the

And then, how does it get that information back to That's it.

the person who clicked on it?

Now, we've explained this to counsel for Google before, both inside counsel and then when it got transitioned to outside counsel. They've continued to say what I can only

characterize as litigation-based confusion. These same requests went to Microsoft, Verizon, AT&T and Sprint, and they understood what we were asking for and not only complied with the subpoena but have produced people who had the capability to talk. So we think that the -- really the scope of the request, especially given the two -- nearly two months of time we spent explaining it are both within Google's grasp and readily understandable. Yesterday was the first time I've spoken with Mr. Weingaertner, and it was the first time that he had expressed to me this concern about burden. Now, I haven't seen the declaration. yesterday. burdensome. request -THE COURT: How can you say that -- I've read these I did ask him

Perhaps he could give me an idea why it's Perhaps we could make that the scope of our

e-mails and they were talking about burden some time ago. MR. KOERING: I'm sorry. It was the first time I

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spoke with him about -- about burden. time -THE COURT:

But as of yet, the only

Well, are you trying to lead me to believe

that they had not raised the burden issue before yesterday? MR. KOERING: THE COURT: Counsel. MR. KOERING: THE COURT: Oh, I'm sorry. They raised the No, your Honor.

I think that's what you were trying to do,

You better be very clear.

burden issue a long time ago. Don't you agree with that? MR. KOERING: Honor. Yes -THE COURT: Don't try to lead me to believe that they I've seen it in e-mails; yes, your

are just raising this argument for purposes of this litigation. They raised this from day one. MR. KOERING: THE COURT: I apologize if you felt that I misled. I forgive you. Go ahead.

All right.

MR. KOERING:

We have not yet seen the declaration,

and so being able to understand concretely what the burden was might help narrow -- perhaps they think that our request is going to something that we don't want. For example, counsel had mentioned a chat application on Google, Google mail. something that we're interested in. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone] That's not necessarily

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Again, from a top-level perspective we feel the request is relevant to the role that the server is going to play in that client-server architecture. And being able to

understand how a request goes to Google's servers, how they store and access data from that server, and how they return it is necessary and relevant to our case. Now, so far Rule 45 allows us to seek discovery from third parties that is likely to lead to the discovery of admissible evidence. From our perspective the description that I gave you is the same description that we'd given to the folks at Google. It's information that is likely to lead to the discovery of admissible evidence relative to the role that a server plays when a Palm handheld is used in that system. And Google's -- the understanding of how Google's servers operate here is not only relevant, it's only available from Google, and it's necessary to our case. And so we're asking your Honor to compel compliance with the subpoena, and if it would help narrow the burden we'd like to focus on three applications and three applications only: Calendar. Thank you, your Honor. THE COURT: Where does it say in this paperwork that Google Mail; Google Maps; and Google

was submitted -- is there something under oath that states that Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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the same subpoena was served on Microsoft and Microsoft complied fully? MR. KOERING: that effect. THE COURT: So you're just saying that. I'm representing that to the Court, your There is not a declaration in there to

MR. KOERING: Honor. THE COURT:

That is not part of the sworn record.

I

want that to be clear. MR. KOERING: THE COURT: I understand that, your Honor.

All right.

Anything more on your side, Mr. Weingaertner? MR. WEINGAERTNER: Yes, your Honor.

Your Honor, with all due respect we -- even today just now we haven't had anything more than a conclusory statement that all this Google information is important to their case. They've never said anything. There was nothing at

all in their brief other than "calculated to lead to the discovery of admissible evidence." And in each case we've looked at there needs to be some showing that it relates to their case. We really,

honestly have no idea other than some colloquy over the phone yesterday, your Honor. With respect to the declaration that they said they Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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didn't have, we served it with our papers. why they wouldn't have seen it, your Honor. the day that we filed it in this Court. THE COURT:

We're not sure It was served on

Which declaration are you referring to? Yes, your Honor. There is a

MR. WEINGAERTNER:

declaration of Edmund Choi, which -- it might be a little bit confusing, but it's appended to a declaration that one of our associates who compiled the e-mails -THE COURT: Let's be -- I want this to be a fair

proceeding, so let's identify what declaration it is that you're talking about. MR. WEINGAERTNER: be -THE COURT: Is this the one that's Exhibit Number F? Yes, sir. Yes, your Honor. Absolutely, your Honor. That would

MR. WEINGAERTNER: THE COURT:

Edmund Choi? Yes, your Honor. Let's

MR. WEINGAERTNER: THE COURT:

Show that to counsel right now.

see -- I can see that possibly there could be confusion, because it's a declaration to a declaration. MR. KOERING: Is it F? Counsel now admits that he has seen

MR. WEINGAERTNER: the declaration. THE COURT:

You have seen that one? Your Honor, I understood him to be

MR. KOERING:

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referring to a new declaration this morning. THE COURT:

I misunderstood.

You did get this information? If this is defining what they claim to

MR. KOERING:

be burden, yes, I've seen this before. MR. WEINGAERTNER: Your Honor, if I might -- one

additional point regarding their description of, you know, how Gmail would be sent and received by a server, their requests are not limited to that, your Honor. They said that -- and it's been repeatedly the case that they'll say, "Well, we're going to start with this, and then we'll keep looking until we find something that fits." And on the papers and correspondence they have never -- never reduced, only increased the scope. They have

this April 30th letter which has extremely broad language. And what we're afraid of is that unless there's something to prevent it, they will continue to hunt and peck and look for things that will fit their -- a theory that's not only to them -- a theory that they haven't shared even with the Court. THE COURT: Delaware? MR. WEINGAERTNER: About two years ago, roughly, your When did this litigation start in

Honor, as far as I understand. THE COURT: Mr. Koering, when did it start? He's correct. It was about two years

MR. KOERING:

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ago. MR. WEINGAERTNER: I might. We believe infringement contentions have been served. We don't know why we couldn't have been sent a copy Your Honor, one additional thing if

in redacted form, and from what we understand Google was not identified in the contentions, although Microsoft was. So to the extent -- although we're unable to prove it, your Honor, because we don't have a copy on information and relief, having spoken just a moment ago with Palm's counsel we understand that to be the case. THE COURT: What to be the case? Oh, that the infringement

MR. WEINGAERTNER:

contentions, which were never provided to us, that Intermec has against Palm identified Microsoft in the contentions but never identified Google. So even as of their contentions they had no notion of Google's involvement, which tends to confirm that -- I hate to use the term "fishing expedition," your Honor, because it's cliche, but it very much seems that that's what's going on. THE COURT: All right. Is that it?

MR. KOERING:

Your Honor, I would like -One additional point, your Honor,

MR. WEINGAERTNER:

to give a sense of the magnitude. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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There are 10 to 15 specific applications, possibly more that could eventually be involved if they continue to persist in having this notion of, "pick one, see if it fits their theory; pick another, see if it fits their theory." Again, within each of those there may be many different features, so it's a very large-dimension problem that we're trying to contend with, your Honor. THE COURT: Has the Judge in Delaware made a specific

finding that the evidence sought by this subpoena is relevant to an issue in that case? MR. WEINGAERTNER: As far as I understand, your Honor,

THE COURT:

Mr. Koering, what do you say to that? Your Honor, nobody has ever brought up

MR. KOERING:

to the District Court in Delaware whether or not the subpoena is relevant to the issue in the case. What I can tell you is that the contentions that -- excuse me. The contentions that Mr. Weingaertner is They were

referring to are over a yeah-and-a-half old.

preliminary infringement contentions, and the parties have developed discovery since that point. There's not a required supplementation date for those, although the parties are planning on supplementing after further discovery. So to claim that these issues are fishing Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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expeditions because they don't appear in a year-and-a-half-old document doesn't necessarily mean -doesn't follow. I also -- relative to this particular issue, a subpoena does not require us to submit infringement contentions, nor as counsel for Google has requested claim-construction positions or a covenant not to sue. Those

were the demands that were placed on us in order for us to agree -- in order for us to get discovery. And then by the time we got discovery, or by the time we came to some sort of an agreement, we were informed that counsel for Google was going to allow us to depose somebody that would tell us how you open up the Web browser, click on a link, and download a program to a Palm device. We think our -- we've spent a month-and-a-half describing in detail how we thought that this was relevant to our case. We think that the requests themselves show the

relevance, and so we're asking compliance with the subpoena. THE COURT: Do we have any declaration here by your

expert in the Delaware case explaining how the information sought would be relevant? MR. KOERING: THE COURT: No, your Honor. Anything more?

All right.

MR. WEINGAERTNER: THE COURT:

Your Honor, one point. Anything more by you,

Let me ask.

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Mr. Koering? MR. KOERING: No, your Honor. Your Honor, I would like to correct

MR. WEINGAERTNER: a point raised by counsel.

Google did not make any condition to receive a covenant not to sue. that. No way did we condition a response on

We simply asked the intentions of Intermec, what their

plans were with respect to that; whether they would do it or not so we would at least know their position, and they simply didn't respond. So the letters that would bear that out we have in no way conditioned. We mentioned it in a similar letter, but And I

it's not a fair characterization, your Honor.

represent to the Court we certainly are not imposing that as any condition to respond to the subpoena. THE COURT: All right. I've heard both sides. The

Court will try to get an order out today but at the latest on Monday that deals with this problem. MR. KOERING: Thank you.

Thank you, your Honor. Thank you, your Honor.

MR. WEINGAERTNER:

(The proceedings concluded at 9:20 a.m.)

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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CERTIFICATE OF REPORTER I, CHRISTINE TRISKA, Pro-Tem Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C09-80097 and C09-80098, MISC Intermec Technologies v. Palm, Inc., were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.

____________/S/ Christine Triska_____________ Christine Triska, CSR 12826, CSR, RPR Friday, May 15, 2009

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]