Be In, Inc. v. Google Inc. et al

Filing 38

Declaration of Katie Townsend in Support of 37 MOTION for Leave to File Second Amended Complaint filed byBe In, Inc.. (Related document(s) 37 ) (KatieLynn, Townsend) (Filed on 4/30/2013)

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GIBSON, DUNN & CRUTCHER LLP
S. ASHLIE BERINGER, SBN 263977
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: 650.849.5333
WAYNE BARSKY, SBN 116732
[e-mail]
KATIELYNN TOWNSEND, SBN 254321
[e-mail]
2029 Century Park East
Los Angeles, California 90067
Telephone: [phone]
Facsimile: 310.551.8741
Attorneys for Plaintiff
BE IN, INC., a New York corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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BE IN, INC., a New York corporation,
Plaintiff,
v.
GOOGLE, INC., a California corporation,
RICHARD ROBINSON, and DOES 1-3,
inclusive.
Defendants.

CASE NO. 5:12-CV-03373-LHK
DECLARATION OF KATIE TOWNSEND
IN SUPPORT OF PLAINTIFF’S MOTION
FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
Date:
Time:
Dept:
Judge:

September 26, 2013
1:30 p.m.
Courtroom 8, Fourth Floor
Hon. Lucy H. Koh

Date Comp. Filed: June 28, 2012
Trial Date: None set.

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Gibson, Dunn &
Crutcher LLP

DECLARATION OF KATIE TOWNSEND IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Case No. 5:12-CV-03373-LHK

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DECLARATION OF KATIE TOWNSEND
I, Katie Townsend, declare:
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I am an attorney licensed to practice law in the State of California and before the

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United States District Court for the Northern District of California, and am an associate in the law

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firm of Gibson, Dunn & Crutcher LLP, counsel of record for plaintiff Be In, Inc. (“Be In”) in the

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above-captioned action. I make this declaration in support of Be In’s Motion for Leave to Amend

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Complaint. I have personal knowledge of the facts set forth in this declaration and if called as a

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witness, I could and would testify competently thereto.

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2.

Attached hereto as Exhibit A is a true and correct copy of Be In’s proposed Second

Amended Complaint.
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On Monday, April 22, 2013, Ashlie Beringer, Jeana Bisnar Maute and I met and

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conferred with Colleen Bal, counsel for defendants in the above-captioned action, by telephone.

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During that call, we conveyed to defendants’ counsel plaintiff’s willingness not to name Richard

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Robinson or the entity that we understand to be his direct employer, Google UK Ltd., as defendants

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in plaintiff’s proposed Second Amended Complaint, provided defendants agreed to provide access to

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discovery from Mr. Robinson and Google UK as though they were named parties located within the

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United States. During our discussion, we explained to defendants’ counsel that the purpose of this

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proposal was to facilitate discovery in this matter and ensure that Be In would not be procedurally

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disadvantaged were it to agree not to name Mr. Robinson or Google UK as defendants.

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4.

Later that same day, I e-mailed counsel for defendants a copy of Be In’s Proposed

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Second Amended Complaint. In that same e-mail, I reiterated the proposal that we had conveyed to

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defendants’ counsel earlier that day concerning Mr. Robinson and Google UK. Attached hereto as

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Exhibit B is a true and correct copy of an e-mail chain containing that e-mail to defendants’ counsel.

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5.

On Friday, April 26, 2013, I received an e-mail response from defendants’ counsel to

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plaintiff’s “proposed second amended complaint and [its] related discovery proposal.” In that

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response, among other things, defendants’ counsel stated that it would agree to stipulate to the filing

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of the proposed Second Amended Complaint if, inter alia, plaintiff agreed “to extend Defendants’

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deadline to move, answer or otherwise respond to the complaint by 21 days after the deadline

Gibson, Dunn &
Crutcher LLP

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DECLARATION OF KATIE TOWNSEND IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Case No. 5:12-CV-03373-LHK

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calculated under applicable rules.” Defendant’s counsel also stated that, in order for defendants to

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agree to Plaintiff’s proposal concerning Mr. Robinson, that “Be In (and any related parties) must

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agree that it will not now nor at any time in the future name him as a defendant in this or any related

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action. The agreement by Be In (and related parties) must be enforceable by injunction, and with the

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prevailing party to recover its attorney’s fees.” Finally, defendants were unwilling to agree to

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produce relevant discovery maintained by Google UK, asserting that “Google UK will not enter any

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agreement with respect to the proposed second amended complaint or discovery in this action.” A

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true and correct copy of defendants’ counsel’s April 26, 2013 response e-mail is included in the e-

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mail chain attached hereto as Exhibit B.

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6.

On April 29, 2013, I responded to defendants’ counsel via e-mail. Among other

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things, I informed defense counsel that plaintiff was willing to agree to an extension of time, as set

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forth in defendants’ counsel’s prior e-mail. I also informed defendants’ counsel that “it is our

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understanding that Google UK is currently, and has been at all relevant times, Mr. Robinson’s direct

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employer,” and confirmed that plaintiff “remains willing to agree that it will not separately name

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Google UK in its proposed second amended complaint if Google Inc. agrees that it will treat Google

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UK as within the scope of its discovery obligations in connection with this matter (for example, that

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it will respond to any requests for production of documents directed to Google, Inc. by providing

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responsive material and information from Google UK).” A true and correct copy of my April 29,

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2013 e-mail to defendants’ counsel is included in the e-mail chain attached hereto as Exhibit B.

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7.

On April 30, 2013, defendants’ counsel responded to my e-mail. Among other things,

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defendants’ counsel’s stated that they would stipulate to the filing of the Proposed Second Amended

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Complaint, but only if defendants would agree that “Defendants shall have 21 extra days to respond

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to the complaint, from the deadline calculated under the applicable rules (counting from the date

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when service is effectuated upon all Defendants).” A true and correct copy of defendants’ counsel’s

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April 30, 2013 e-mail to me is included in the e-mail chain attached hereto as Exhibit B.

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8.

Shortly thereafter, my colleague Jeana Maute, sent, via e-mail, a draft proposed

stipulation for the filing of the proposed Second Amended Complaint to defendants’ counsel. I was

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Gibson, Dunn &
Crutcher LLP

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DECLARATION OF KATIE TOWNSEND IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Case No. 5:12-CV-03373-LHK

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copied on that e-mail. Thereafter, defendants’ counsel sent back a redlined version of that draft

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stipulation with proposed changes. I was also copied on that e-mail.

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9.

Later that day, after reviewing the redlined version of the draft stipulation with

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defendants’ counsel’s comments, I sent an e-mail to defendant’s counsel stating that plaintiff did not

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oppose defendants’ “proposed changes to the draft stipulation. . ., with one exception: that each

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Defendant’s deadline to ‘answer, move, or otherwise respond to the Second Amended Complaint”

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will be “calculated as of the date when service is effectuated upon all defendants named in the

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Second Amended Complaint.’” I explained in my e-mail to defendants’ counsel that we had

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“assumed that you would be accepting service on behalf of all defendants named in the [Second

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Amended Complaint]” and “still assume, at a minimum, that you will be accepting service for

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Google, Inc., who we do not think should get the benefit of any delay that would result if Plaintiff is

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required to effect personal service on YouTube, LLC or Google UK.” Accordingly, I requested that

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defendants’ counsel “let us know which parties you will accept service for,” so that we could address

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that issue in the draft stipulation. I also offered, in the alternative, to “take the agreement with respect

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to timing out of the stipulation and address it separately after the parties have had an opportunity to

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work through that issue.” A true and correct copy of my April 30, 2013 e-mail to defendants’

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counsel is included in the e-mail chain attached hereto as Exhibit B.

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10.

In response to that e-mail, defendants’ counsel did not inform us which defendants

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named in the proposed Second Amended Complaint it was willing to accept service on behalf of, and

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instead stated that “[a]t this point, it is obviously too late to try to reach any agreement regarding

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service on Google UK.” A true and correct copy of that April 30, 2013 e-mail to me from

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defendants’ counsel is included in the e-mail chain attached hereto as Exhibit B.

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11.

In response, I again proposed that the parties file a stipulation “that does not address

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extensions of time for any party, and [that the parties] address the service/briefing schedule issue

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separately.” I explained that “Plaintiff is not opposed to giving defendants an extension of time to

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respond to the Second Amended Complaint. However, it appears that there are issues that the parties

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need to discuss further with respect to that point.” I attached to that e-mail a draft stipulation that

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made no reference to any extensions of time, but included the other revisions defendants’ counsel had

Gibson, Dunn &
Crutcher LLP

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DECLARATION OF KATIE TOWNSEND IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Case No. 5:12-CV-03373-LHK

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proposed. A true and correct copy of that April 30, 2013 e-mail is included in the e-mail chain

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attached hereto as Exhibit B.

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12.

Defendants’ counsel would not agree to such a stipulation. Accordingly, I informed

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defendants’ counsel that plaintiff would be proceeding by way of a motion for leave to file an

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amended complaint. A true and correct copy of those April 30, 2013 e-mails exchanged between

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myself and defendants’ counsel are included in the e-mail chain attached hereto as Exhibit B.

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I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct and that this declaration was executed on April 30, 2013, in Los Angeles, California.

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By: __/s/__________________________
Katie Townsend

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DECLARATION OF KATIE TOWNSEND IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Case No. 5:12-CV-03373-LHK