Intermec Technologies Corp. v. Palm, Inc.

Filing 17

EXHIBITS re 15 Response ( Non Motion ) Exh B filed byGoogle Inc.. (Related document(s) 15 ) (Kobialka, Lisa) (Filed on 5/29/2009)

Intermec Technologies Corp. v. Palm, Inc.

Doc. 17

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EXHIBIT B

Dockets.Justia.com

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\ s. y--

AO 88A (Rev. 01/09) Subpona to Tesfy at a Depoition or to Produce Downents in a Civil Action

UNITED STATES DISTRICT COURT
for

the

Nortern Distrct of Californa
INTERMEC TECHNOLOGIES CORP., Plaintiff v.

)

) )
) ) )

Civil Action No. 07 -272-SLR-LPS
(lfthe action is pending in another district, state where:

PALM,INC.,
Defendnt

Distict of Delaware

SUBPOENA TO TESTIF AT A DEPOSITION OR TO PRODUCE DOCUMENTS IN A CIVIL ACTION
To: Google Custodian of Records for Google, Inc., 1600 Amphitheatre Parkay, Mountain View, CA 94043

~ Testimony: YOU AR COMMED to appear at the time, date, and place set forth below to testify at a
you are an organization that is not a par in this case, you must designate one or more offcers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set fort in an attachment:
deposition to be taen in ths civil action. If

Place: Merrill Court Reporters 1731 Embarcadero Road, 1st Floor

Date and Time:

Palo Alto CA 94303

April 24, 2009

9: 00 a.m.

The deposition wil be recorded by this method: Court Reporter & Videographer
f/ Production: You, or your representatives, must also bring with you to the deposition the following documents,

electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material:
See Exhibit A attached hereto.

The provisions of

Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
not doing so, are

45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of

attached.
Date: 03/24/2009

CLERK OF COURT

OR
Signture of

Clerk or Deputy Clerk
the attorney representing (nae of

b-Qd
party)

--

The name, address, e-mail, and telephone number of

Intermec Technologies Corp. , who issues or requests this subpoena, are:
David S. Becker, Freeborn & Peters LLP, 311 South Wacker Drive, Suite 3000, Chicago, IL 60606

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AO 88A (Rev. 01/09) Subpona to Tesfy at a Deposition or to Produce Documents in a Civil Action (page 2)

Civil Action No. 07 -272-SLR-LPS
PROOF OF SERVICE (This section should not bejiled with the court unless required by Fed. R. Civ. P. 45.)
Ths subpoena for (name of individual an title, if an)

was received by me on (date)

o I personally served the subpoena on the individual at (place)
on (date)

; or

o i left the subpoena at the individual's residence or usual place of abode with (nae)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual's last known address; or
o I served the subpoena on (name of

individual)
, who

is

designated by law to accept service of process on behalf of (name of organization)

on (date)
o I retued the subpoena unexecuted because

; or

; or

o Other (spcif):.

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of
$

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjur that ths information is tre.

Date:
Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

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AD 88A (Rev. 01/09) Subpona to Testi at a Deposition or to Produce Downents in a Civil Action (page 3)

Federal Rule of

Civil Procedure 45 (c), (d), and (e) (Effective 1211107)
(d) Duties in Responding to a Subpoena. (I) Producing Documets or Electonical Stored Information. These procedures apply to producing docwnents or electronically stored infonnation: (A) Docments. A person responding to a subpoena to produce docwnents must produce them as they are kept in the ordinar
course of business or must organize and label them to correspond to the categories in the demand. (B) Formfor Produâng Electronically Stored Information Not Specifed If a subpoena does not specifY a fonn for producing

(c) Protecting a Person Subject to a Subpoena.
(I)

Avoidig Undue Burden or Exense; Sanctons. A par or

attorney reponsible for issuing and serving a subpoena must tae
reasnable steps to avoid imposing undue burden or expense on a

person subject to the subpoena. The issuing cour must enorce this duty and impose an appropriate sancton - which may include lost

eargs and reonable attrney's fees - on a par or attrney
who fails to comply.

(2) Comnd to Produce Materal or Permi Inspecton.
(A) Appearance Not Required A peson commanded to produce
docwnents, electonicaly stored inonnation, or tagible thgs, or
to penn

it the inspection of premises, need not appear in pen at the

electonicaly stored infonnation, the person responding must

place of production or inspecon uness also commanded to appear
for a deposition, hearng, or tral.

produce it in a fonn or fonns in which it is ordinarily maintained or in a reasonably usable fonn or fonns.
(q Electronically Stored Iriormation Produced in Only One

(B) Objections. A person commanded to produce docwnents or tagible thngs or to penn it inpection may serve on the par or attorney designated in the subpoena a wrtten objection to
inspecting, copying, testing or sampling any or all of

Form The person respondig nee not produce the same
electnically stored infonnation in more than one fonn.
(D) Inacessible Electronically Stored Iriormation. The person

the materials or

responding nee not provide discovery of electronically stored

to inspectig the premises - or to producing electrnically stored
inonnation in

the fonn or fonns requested The objection must be

served before the ealier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving par may move the issuing cour for an order compellng production

inonnation from sources that the person identifies as not reasonably undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the infonnation is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless
accesible because of order discovery from such sources if good cause, considering the limitations of

the requesting par shows

or inspection.

(ii) These acts may be required only as directed in the order, and
the order must protect a peron who is neither a par nor a par's
offcer frm significant expense resulting from compliance.

cour may specifY conditions for the discovery .

Rule 26(b)(2)(q. The

(2) Claimig Prvilege or Protection.
(A) Iriormation Withhld A person withholding subpoenaed

(3) Quashing or Modifying a Subpoena. (A) Whn Required On timely motion, the issuing cour must quash or modifY a subpoena that: (i) fails to allow a reasonable time to comply;

to trvel more than i 00 miles frm where that person resides, is

(ii) requies a person who is neither a par nor a par's offcer

infonnation under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the natue of the witheld docwnents, commUncations, or tagible things in a maner that, without reveaing infonnation itself privileged or protected, wil enable the
pares to assess the clai.

employed, or reguarly tract business in person - except that,
subject to Rule 45(c)(3)(B)(ii), the person may be coinanded to

(B) Information Produced If infonnation produced in response to a
subpoena is subject to a claim of privilege or of

attend a tral by trveling from any such place withn the state where
the tral is held;
(iii) requires disclosure of

protection as tral-

prepartion material, the person makng the claim may notifY any
par that received the infonnation of

the claim and the basis for it.

privileged or other protected matter, if

no exception or waiver applies; or (iv) subject a person to undue burden.
(B) When Permitted To protect a person subject to or afected by

After being notified, a par must promptly retu, sequester, or
destry the specified infonnation and any copies it has; must not use

a subpoena, the issuing cour may, on motion, quash or modifY the subpoena if it requires:
(i) disclosing a trde secet or other confidential research,

development, or commercial infonnation;
(ii) disclosing an unetaned expert's opinion or infonnation that

or disclose the infonnation until the claim is resolved; musttake reaonable steps to retreve the infonnation if the par disclosed it before being notified; and may promptly present the infonnation to the cour under seal for a detennination of the claim. The person who produced the infonnation must preserve the infonnation until the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the
subpoena. A nonpar's failure to obey must be excused if

does not describe speific occurences in dispute and results from
the expert's study that was not requested by a par; or

(iii) a person who is neither a par nor a par's offcer to incur
substantial expense to trvel more than i 00 miles to attend tral.
(q Specifing Conditions as an Alternative. In the circwnstaces

subpoena purrt to require the nonpar to attend or produce at a
place outside the limits of

the

descrbed in Rule 45(c)(3)(B), the cour may, instead of quashing or
modifYing a subpoena, order appeance or production under
specified conditions if

Rule 45(c)(3)(A)(ii).

the serving par:

(i) shows a substatial need for the testimony or material that
canot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person wil be reasnably
compensated.

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EXIITA
DEFITIONS
1. "Intermec" means Plaitiff Intermec Technologies Corp., and includes any
and all of its predecessors, predecessors-in-interest, successors, successors-in-interest,

subsidüires, divisions, affiliates, and afliated entities, as well as their offcers, directors, agents,
employees, and representatives.

2. "Pal" mean Defendant Pal, Inc., and includes any and all of its
predecessors, predecessors-in-interest successors, successors-in-interest, subsidiares, divisions,
afliates, and afliated entities, as well as their offcers, directors, agents, employees, and

representatives.
3. "Google" means Google Inc., and includes any and all of its predecessors,
predecessors-in-interest, successors, successors-in-interest, subsidiares, divisions, affliates, and

afliated entities, as well as their offcers, direCtors, agents, employees, and representatives.
4. "Palm Products" refers to the Palm~ CentroTM, TreoTM 680, TreoTM
70Op, TreoTM 700w, TreoTM 700wx, TreoTM 750, TreoTM 755p TreoTM 800w and TreoTM Pro

smarhones.
5. "Document(s)" is used in the same maner as that term is defined in Fed.
R. Civ. P. 34(a) and shall include, without liiitation, electronically stored information ("£81"),

thigs, project proposals, memos, notes, inventor notebooks, invention disclosures, source code

(including comments if any), object code, communcations regarding product development,

revision histories, flowchars, drawings, specifications, documents related to testing, status
reports or sumares, computer simulations, logic diagrams, and preliminar technical
documentation, along with every draft or non-identical copy of

the foregoing.

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6. "Electronically Stored

Information" or "ESI" is used in the same maner

as outlined in the Federal Rwes of Civil Procedure and showd also be interpreted to include data

stored in, or accessible though, computer or other inormation retreval systems and includes all

non-identical copies of such data. ESI includes, but is not limted to, electronic spreadsheets,

databases with . all records and fields and strctual inormation (including Lotu Notes
Discussion Databases and other online dialogs), char, graphs and outlines, arays of

inormation and all other information used or produced by any softare. Thus, Palm must

produce documents that exist in electronic form, including data stored in personal computers,
portble computers, workstations, minicomputers, personal data assistats, Blackberr or other

similar devices, instat messaging text files, archival voice storage systems, group and
collaborative tools, electronic messaging devices, maiames, servers, backup disks and tapes,

archive disks and tapes, portbl,e hard drves, memory cards, zip drves, iPods or other similar
devices, cel1phones and any other forms of online or offine storage. Furer, unless the paries

agree otherwse, ESI responsive to the Requests herein must be made (and if necessar,
tranlated by you) in reasonably useable form and produced.

7. "Thg" mean any physical specimen or tagible item in your possession,
custody, or control.
8. The term "person" means any natual person in any capacity, and all

entities of every description, including, by way of example but not limitation, associations,

organzations, companes, parerships, joint ventues, corporations, trsts and estates, and all
divisions, deparents and other such unts thereof.

2

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9. The terms "concernng," "regarding," "related to," and "relating to" are
used in their broadest sense and include all matters referrg to, describing, evidencing, or
constitutig the referenced subject(s).

i O. The terms "and" and "or" shall be constred either disjunctively or
conjunctively as necessar to bring withn the scope of the discovery request any information or

documents that might otherwse be constred to be outside of its scope.
i i. The use of the singuar form of any word includes the plural and vice

versa.

12. The use of any tense of a verb shall be constred to include also withn its
meang all of the tenses of that verb.
13. The terms "any," "all," and "every" mean each and every.
i 4. "Google Applications" means any and all softare applications offered by

Google, including, but not limited to, Google Maps, Google Calendar, Google Docs, Gmail, and
Picasa.

INSTRUCTIONS
i. To the extent any Document Request seeks documents also covered by

any other Document Request(s), itis for puroses of completeness only, and should in no way be

consted as limting or otherwse narowing any of the other Request herein.
2. These Requests extend to all documents in the possession, custody, and/or

control of Google, as well as all documents in the.possession, custody, or control of persons or
entities under Google's control.
3. In the event that more than one copy of a document exists, Google should

produce the original and each non-identical copy of each document or other tangible thing

3

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requested herein that is in Google's possession, custody or control, or the control of its agents,
attorneys, accountats, or employees.
4. Google shouJd comply.with the requirements of Rule 26(b)(5) of the

Federal Rules of Civil Procedure regardig clais of privilege or protection of tral preparation
materials.
5. These Requests shall be deemed to be continuing in natue to the fullest
extent permtted by law. If fuer responsive information comes into the possession or attention

of Google or its attorneys at any time durng the course of this proceeding, such information

must be provided as required by the Federal Rules of Civil Procedure.

2. Documents created and maintaned in the ordinar course of business
sufcient to show the maner in which Google Applications, such as Google Maps, Google

Calendar, Google Docs, Gmaíl, and Picasa, are accessed by a person using Microsoft's Internet
Explorer Mobile browser (also known as IE Mobile).
3. Documents created and maintaned in the ordinar course of business
sufcient to show the maner in which Google Applications, such as Google Maps, Google

Calendar, Google Docs, Gmaíl, and Picasa, communcate information to Palm Products.

4

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4. Documents created and maintained in the ordinar course of business

sufcient to show the maner in which Palm Products coinuncate information to Google
Applications, such as Google Maps, Google Calendar, Google Docs, Gmail, and Picasa.
5. Documents created and maintaed in the ordinar course of business
sufcient to show the maner in which Google Applications, such as Google Maps, Google

Calendar, Google Docs, Gmail, and Picasa, store and access data.

DEPOSITION TOPICS
1. The maner in which Google Applications, such as Google Maps, Google

Calendar, Google Docs, Gmail, and Picasa, are accessed by a person using Palm's Blazer
browser.

2. The maner in which Google Applications, such as Google Maps, Google

Calendar, Google Docs, Gmail, and Picas are accessed by a person using Microsoft's Internet
Explorer Mobile browser (also known as IE Mobile). 3. The maner in which Google Applications, such as Google Maps, Google
Calendar, Google Docs, Gmail, and Picasa, coinuncate inormation to Palm Products.

4. The maner in which Pal Products communcate information to Google

Applications, such as Google Maps, Google Calendar, Google Docs, Gmail, and Picasa. 5. The maner in which Google Applications, such as Google Maps, Google
Calendar, Google Docs, Gmail, and Picasa, store and access data.

5

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