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

Filing 48

CASE MANAGEMENT STATEMENT - INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER - filed by Be In, Inc., Google Inc., Richard Robinson. (Kuwayti, Kenneth) (Filed on 5/29/2013)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 CHARLES S. BARQUIST (BAR NO. 133785) CBarquist@mofo.com WENDY J. RAY (BAR NO. 226269) WRay@mofo.com MORRISON & FOERSTER LLP 707 Wilshire Blvd., Suite 6000 Los Angeles, California 90017-3543 Telephone: 213.892.5200 Facsimile: 213.892.5454 KENNETH A. KUWAYTI (BAR NO. 145384) KKuwayti@mofo.com MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650.813.5600 Facsimile: 650.494.0792 Attorneys for Plaintiff BE IN, INC. COLEEN BAL (BAR NO. 167637) CBal@wsgr.com CHARLES TAIT GRAVES (BAR NO. 197923) TGraves@wsgr.com WILSON SONSINI GOODRICH & ROSATI One Market Plaza, Spear Tower, Suite 3300 San Francisco, California 94105-1126 Telephone: 415.947.2000 Facsimile: 415.947.2099 Attorneys for Defendants GOOGLE INC. AND RICHARD ROBINSON 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 SAN JOSE DIVISION 21 22 BE IN, INC., a New York Corporation, 23 24 25 26 Case No. 5:12-CV-03373-LHK Plaintiff, v. GOOGLE INC., a California Corporation, RICHARD ROBINSON, and DOES 1 through 3, inclusive, INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Judge: Hon. Lucy H. Koh 27 Defendants. 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 1 The parties to the above-entitled action jointly submit this Initial JOINT CASE 2 MANAGEMENT STATEMENT & PROPOSED ORDER pursuant to the Standing Order for All 3 Judges of the Northern District of California dated July 1, 2011 and Civil Local Rule 16-9. 4 Counsel for Be In, Inc. and counsel for Defendants met and conferred on May 15, 2013. 5 1. 6 Plaintiff’s Statement: 7 JURISDICTION & SERVICE The Court has subject matter jurisdiction over Be In’s claims under the Copyright Act of 8 1976, 17 U.S.C. § 101 et seq., pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a) and (b), and 9 supplemental jurisdiction over Be In’s state law claims under 28 U.S.C. § 1367. This Court also 10 has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1332 based on the diversity of the 11 parties, and because the amount in controversy exceeds $75,000.00. Venue is proper in this Court 12 pursuant to 28 U.S.C. § 1391(b), because Google Inc.’s principal place of business is Mountain 13 View, California, in this judicial district, and Google transacts business in this district. 14 15 No issues exist as to personal jurisdiction over current defendants Google Inc. and Richard Robinson. Be In has served both current defendants. 16 Be In moved for leave to file a second amended complaint on April 30, 2013, which adds 17 defendants YouTube, LLC, and Google UK Ltd., and drops defendants Richard Robinson, and 18 Does 1-3. (D.I. 37.) Defendants do not contest jurisdiction as to proposed defendant YouTube 19 LLC. 20 Personal jurisdiction over proposed defendant Google UK may be disputed. Be In 21 contends the Court has personal jurisdiction over Google UK because, upon information and 22 belief, Google UK transacts, operates, and solicits business in this District (including without 23 limitation business activities conducted with and on behalf of its parent company Google Inc.), 24 and it purposefully directed its activities at the forum, thereby invoking the benefits and 25 protections of its laws; the claims arise out of or relate its forum-related activities; and the 26 exercise of jurisdiction is reasonable. Defendants may contest jurisdiction over Google UK based 27 on a forum selection clause contained in a non-disclosure agreement (“NDA”) executed between 28 Be In and Google Ireland, Ltd. That forum selection clause does not apply to the claims alleged INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 1 1 against Google UK. First, although the NDA requires that affiliates to whom Google Ireland 2 discloses confidential information also maintain that information in confidence, Google UK is not 3 a party to the NDA and cannot invoke the forum selection clause. Second, the forum selection 4 clause is narrow and would not extend to the claims alleged against Google UK in any event. 5 As to service, Be In has served current defendants Richard Robinson and Google Inc. If 6 the Court grants Be In’s motion for leave to file its Second Amended Complaint, Be In will serve 7 new defendants YouTube LLC and Google UK promptly on receipt of the Court’s order. The 8 parties have discussed the possibility of Defendants accepting service on behalf of Google UK in 9 exchange for an extension of time to respond to the second amended complaint. 10 Defendants’ Statement: 11 Defendants do not contest jurisdiction with respect to Google Inc. and proposed 12 Defendant YouTube, LLC. With respect to proposed Defendant Google UK, however, a forum 13 selection clause in the non-disclosure agreement (“NDA”) pleaded in both Plaintiff’s First and 14 Proposed Second Amended Complaints requires that Plaintiff’s claims against Google UK be 15 brought exclusively in the courts of England. As Be In acknowledges, the NDA was executed in 16 anticipation of the May 12, 2011 meeting in London, to cover the potential disclosure of 17 confidential information between Google UK and Be In. See, e.g., Proposed Second Amended 18 Complaint, ¶¶ 44-47, 55. Google UK is a “group company” under the NDA and is entitled to the 19 benefits of the provisions of the NDA, including the forum selection clause. Although Be In 20 apparently disputes the straight-forward application of the forum selection clause to the claims Be 21 In proposes to assert against Google UK, the clause applies to those claims under both English 22 law (which expressly governs the NDA and all related claims) and California Law. Thus, if 23 Google UK is ultimately named as a party in the case, Google UK may contest jurisdiction. 24 2. 25 Plaintiff’s Statement: FACTS 26 Starting in 2007, Be In created and developed CamUp, an award-winning social 27 entertainment consumption platform. The platform allows up to eight users, such as groups of 28 friends to simultaneously watch, listen, chat and collaborate around shared videos, music, and INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 2 1 other media in a real-time, personal environment online as they see live streaming video of each 2 other—something no other platform provided. By March 2011, Be In had developed the unique 3 technology, appearance and infrastructure for this social video sharing platform, CamUp, and had 4 developed proprietary strategies for integrating that platform into established content, social and 5 media platforms. 6 Be In publicly unveiled CamUp for the first time at SXSW Interactive, the industry- 7 leading technology conference, in Austin, Texas in March 2011. CamUp’s demonstration booth 8 was located steps away from Google’s booth, and Google personnel visited the booth and viewed 9 the demonstration. Be In publicly launched the Cam Up website shortly thereafter. In April 10 2011, Be In won the “Early Stage” award from MIPTV Connected Creativity Ventures for the 11 most innovative start-up of the year. 12 On May 12, 2011, Be In representatives met with Richard Robinson, a Google U.K. 13 executive, to discuss Be In’s vision and strategy for the CamUp platform and a proposed business 14 partnership. At the meeting, Be In disclosed proprietary and confidential business strategies in 15 confidence, pursuant to a non-disclosure agreement. Among the information Be In disclosed was 16 using the platform Be In had devised to transform Google’s (and YouTube’s) massive—but 17 unstructured, and largely anonymous—user base into an organized social community that would 18 foster shared social experiences around Google’s content products, including most immediately, 19 YouTube. Part of this integration strategy was a button that could be used to invite YouTube 20 users to “Watch With Your Friends,” allowing YouTube users to share content in a novel 21 dynamic environment using CamUp. Mr. Robinson was enthusiastic about CamUp and asked Be 22 In to send additional written information. Be In followed up the meeting by sending 23 Mr. Robinson an eight-page memo the next day, marked “Confidential,” which described some 24 key aspects of Be In’s confidential strategic plan. 25 On or about June 28, 2011, Google launched an invitation-only field test of Google+, its 26 most recent, and ambitious, attempt to create a social network to rival Facebook and other 27 competitors. Included as part of Google+ is Google Hangouts, a social video platform that bears 28 striking similarity to CamUp, and infringes Be In’s copyrights. It immediately was hailed by the INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 3 1 media as the new social network’s “killer” feature. CNN called Hangouts “a key component of 2 Google+” and “Google’s sharpest edge over Facebook’s current product.” TechCrunch gushed 3 that “nailing an intimate experience that supports two or more people in a video conference is no 4 small feat, but Google knocked it out of the park with Hangouts …. It’s more than just one-on- 5 one chat though, which is why Hangouts are so magical.” 6 Google claims that the development of Hangouts began “long before” the events giving 7 rise to this lawsuit. But Google has acknowledged publicly that Hangouts was developed late in 8 the process of Google+, and that the Hangouts group was the last group to join the development 9 team for Google+. At least one news article based on an interview with the lead developer for 10 Hangouts, Chee Chew, places the start of the development for Hangouts at only “several months” 11 before July 28, 2011. 12 In addition, Mr. Chew has claimed in a video that the prototype for Google Hangouts 13 purportedly only took “about an hour” to develop. The video, which pre-dates the filing of this 14 lawsuit, can be found at http://thenextweb.com/google/2012/03/31/hangouts-how-an-internal- 15 video-link-between-seattle-and-stockholm-became-an-awesome-google-feature/. Google’s claim 16 that Hangouts’ development started earlier is apparently based on the fact that what Mr. Chew 17 describes in the video as a “permanent video link” between two Google engineering offices had 18 previously existed. The video makes clear that this permanent link was simply a means of 19 enabling Google developers in Seattle and Stockholm to collaborate. This is very different from 20 the consumer-facing Google Hangouts, whose conception Mr. Chew places at a much later point 21 in time. Moreover, the issue for trial will not be when Google first began development of some 22 of the base elements it later incorporated into Hangouts, but whether it copied from Be In during 23 the development process. 24 Google points to the declaration of Mr. Robinson as proof of Google’s lack of liability of 25 Be In’s trade secret claim. Notably, however, since prior to the filing of this lawsuit Be In has 26 been requesting documents evidencing Google’s purported independent development, but Google 27 thus far has refused to provide them. Mr. Robinson’s recollection of the May 2011 meeting 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 4 1 described in his declaration will be contradicted by the Be In representatives who attended the 2 meeting. 3 Google used and continues to use proprietary integration and business strategies disclosed 4 by Be In at the May meeting in marketing and implementing Google Hangouts, including 5 placement of a button underneath YouTube videos in August 2011 encouraging viewers to share 6 the viewing experience with others. The button was labeled “Watch With Your Friends”—the 7 language that was proposed by Be In—and was placed in the same position on the screen that Be 8 In had described at the meeting. Google has acknowledged that the development of this button 9 did not begin until July 2011, two months after Mr. Robinson’s meeting with Be In. Google 10 subsequently modified the language of the button, but when a user placed the mouse over the 11 button, the “Watch With Your Friends” language still appeared. It appears that Google has now 12 removed the “Watch With Your Friends” language from YouTube entirely. 13 14 15 16 With this action, Be In seeks to stop defendants from their continued copying, use, and misappropriation of Be In’s valuable trade secrets and intellectual property. Be In anticipates the following factual issues will need to be resolved: • 17 18 Did Google copy elements of the CamUp website that it first viewed at a demonstration in March 2011 at the SXSW Interactive conference? • Did Google misappropriate the trade secrets that Be In disclosed at the May 2011 19 meeting and in the written documentation Be In provided after the meeting at 20 Mr. Robinson’s request? 21 • Can Google establish independent development of Hangouts given the apparent 22 timing of the relevant development, the striking similarities of Hangouts to the 23 CamUp website unveiled in March 2011, and Google’s apparent use of the same 24 proprietary strategies that Be In disclosed in May 2011? 25 • Did Google violate the contractual Terms of Service of the CamUp website? 26 • What amount can Google prove should be deducted from the profits it derived 27 from infringing the copyrights of the CamUp website? 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 5 1 • 2 3 4 5 6 What harm did Be In suffer after potential investors pulled back and its momentum stalled after Google launched Hangouts? • To what extent has Google been unjustly enriched by its misappropriation of Be In’s trade secrets? Defendants’ Statement: In June 2011, Google launched a video chat product called Hangouts as part of its larger 7 rollout of its Google+ offerings. Hangouts was the result of internal development, ideas and 8 planning at Google that date back long before the time period at issue in this lawsuit. Separately, 9 in July and August 2011, California employees of Google and its subsidiary YouTube, LLC who 10 were responsible for the YouTube user interface came up with the idea of linking the new 11 Hangouts product to YouTube through a button on the YouTube user interface. After 12 considering different wording possibilities to express the idea that friends could use the button to 13 watch YouTube videos together via Hangouts, these employees decided to add the phrase 14 “Watch With Your Friends” to the button. One Google product (YouTube) thereby promoted 15 another Google product (Hangouts). 16 Meanwhile, in March 2011, Plaintiff launched an unsuccessful video chat website called 17 CamUp. Plaintiff hoped to interest Google and/or YouTube in the CamUp website. Through a 18 mutual acquaintance in London, Plaintiff arranged a meeting in London with a Google UK 19 employee named Richard Robinson. Mr. Robinson is a sales employee, not a product developer; 20 his job responsibilities did not encompass or relate to evaluating business proposals from third 21 parties. However, he agreed to the meeting as a favor to the mutual acquaintance. Plaintiff met 22 with Mr. Robinson in May 2011 in London to promote CamUp, and sent him a document 23 describing the CamUp website. Shortly afterwards, Mr. Robinson emailed two London 24 colleagues to see if they were interested in learning more about Plaintiff. Neither colleague 25 responded. Mr. Robinson let the matter drop, and did not tell anyone else about the meeting or 26 transmit anything from the meeting to others. Mr. Robinson was unaware that Google was 27 working on Hangouts, and does not know who developed Hangouts or who placed the button to 28 Hangouts on the YouTube user interface. The two colleagues to whom Mr. Robinson sent an INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 6 1 email about the meeting never received any other information about the meeting, and in any 2 event did not transmit anything about Plaintiff to anyone else. Neither of these recipients, Bruce 3 Daisley and Benjamin Faes, were involved in Google’s development of Hangouts or YouTube’s 4 integration with Hangouts. 5 In this lawsuit, Plaintiff makes two false accusations. The first is that Richard Robinson 6 covertly passed alleged “trade secrets” from the May 2011 meeting with Plaintiff in London 7 (1) to the developers elsewhere working on Google’s Hangouts product; and (2) to the 8 employees elsewhere who added the button to Hangouts on the YouTube user interface. Plaintiff 9 apparently alleges, for example, that the idea of one Google product (YouTube) interoperating 10 with another Google product (Hangouts) through a button is Plaintiff’s unique intellectual 11 property that nobody could have created but Plaintiff. It also apparently alleges that use of the 12 phrase “watch with your friends” to encourage users to watch videos with their friends is a 13 valuable trade secret and/or that YouTube could not have independently arrived at use of the 14 same common phrase. These accusations are baseless. Google has informed Plaintiff since 15 September 2011 that the allegations are false, and in August 2012, Google provided Plaintiff a 16 detailed, sworn declaration of Richard Robinson which attached Mr. Robinson’s emails to his 17 colleagues and made clear that (1) he transmitted nothing from the May 2011 meeting apart from 18 the two emails attached to the declaration; and (2) he does not know who was involved in 19 developing Hangouts or the YouTube “Watch With Your Friends” button. 20 Plaintiff’s trade secret claim also appears to encompass the allegation that Mr. Robinson 21 covertly told others at Google to develop Hangouts, based on secret information from the May 22 2011 meeting in London, and that Google’s Hangouts product therefore embodies a stolen “trade 23 secret.” The accusation is false for all of the reasons described above. To support this 24 allegation, Plaintiff selectively quotes an interview with a Hangouts developer, who states that a 25 Hangouts prototype was generated after review by Google executives in “about an hour.” 26 Plaintiff insinuates that Google created Hangouts for the first time after Mr. Robinson’s May 27 2011 meeting, and that it was able to create it so quickly only because the idea was stolen from 28 Plaintiff. See Proposed Second Amended Complaint ¶ 67. But that suggestion misrepresents the INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 7 1 very Google interview Plaintiff cites. The parts of the interview omitted by Plaintiff explain that 2 (1) Hangouts had long existed as an internal project to link Google employees in Seattle 3 collaborating with other employees in Stockholm; (2) Google executives joined a “Hangout” to 4 see the project; (3) Google was able to create a prototype of Hangouts in Google+ in “about an 5 hour” because it already had pre-existing work, and (4) the project was “at the core the same” as 6 the released version, including “a bunch of thumbnails” and a “main screen.” The YouTube 7 video of the Google interview – which predates the filing of this lawsuit – can be found at: 8 http://thenextweb.com/google/2012/03/31/hangouts-how-an-internal-video-link-between-seattle- 9 and-stockholm-became-an-awesome-google-feature/. 10 Because Plaintiff persists in pursuing a baseless trade secret claim in bad faith, 11 Defendants will seek an award of attorneys’ fees and costs under the California Uniform Trade 12 Secrets Act. 13 Plaintiff’s second accusation is that Google’s Hangouts developers repeatedly visited the 14 Plaintiff’s CamUp website in 2011 and then “slavishly copied” the appearance of the website, 15 thereby infringing Plaintiff’s copyright in the website and breaching the website Terms of 16 Service. Among other things, Plaintiff claims that Google copied the placement of a rectangular 17 viewing screen above a horizontal row of small thumbnails of participant viewers, use of a 18 grayed-out silhouette in the thumbnails to signify a seat open for an additional viewer, placement 19 of chat or playlist logs to the side of the main screen, and a grey and white color palate. Plaintiff 20 does not explain why Google would want to copy the user interface of Plaintiff’s failed product. 21 Nor does Plaintiff allege any credible factual support for its claim that anyone from Google 22 involved in the development of the Hangouts user interface ever even saw its website, much less 23 copied it. Instead, Plaintiff asserts that traffic to its website from locations where Google has 24 offices increased prior to Google’s release of Hangouts. Notably, the locations of the claimed 25 increased traffic vary with each version of Plaintiff’s complaint, depending on the particular 26 Google-related entities that it names as defendants. Compare First Amended Complaint § 32 27 (alleging a “dramatic spike in user traffic . . . in particular from individuals located in Mountain 28 View, California) with Proposed Second Amended Complaint § 58 (alleging “unusual, new INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 8 1 traffic . . . from within the United Kingdom, the areas of Palo Alto and Mountain View . . . and 2 Seattle, Washington[.]”). 3 Like the trade secret claim, the copyright infringement claim and related breach of Terms 4 of Service claim are meritless. As noted above, Google has been working on what became 5 Hangouts for years – it did not suddenly rush to “copy” Plaintiff’s website in March 2011. 6 Moreover, basic website design elements about which Plaintiff complains are commonplace and 7 driven by functional considerations. Plaintiff’s copyright claim and related breach of contract 8 claim are baseless. 9 Defendants anticipate the following factual issues will need to be resolved: 10 1. Did Google independently develop its Hangouts product, including its user 11 interface? 12 2. Did Google’s development of Hangouts predate Plaintiff’s London meeting with 13 Google UK’s Richard Robinson and Plaintiff’s release of its Cam Up website? 14 3. Did Google employees independently decide to link YouTube to Hangouts with a 15 button after considering different wording possibilities for that button? 16 4. Did Richard Robinson of Google UK transmit information about his May 2011 17 meeting with Plaintiff in London to others, apart from the emails attached to his 18 August 2012 declaration? 19 5. Did Mr. Robinson know who at Google or YouTube was developing Hangouts, or 20 was in charge of the YouTube user interface? 21 6. Was anyone involved in Google’s Hangouts product aware of Plaintiff or 22 Plaintiff’s CamUp website? 23 7. Did any involved in Google’s Hangouts product ever copy any elements of 24 Plaintiff’s Cam Up website? 25 3. 26 Plaintiff’s Statement: 27 28 LEGAL ISSUES The legal issues in dispute are those raised in Be In’s proposed Second Amended Complaint, including the following: INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 9 1 • 2 3 Civil Code § 3426, et seq.; • 4 5 • Defendants’ breach of an implied in fact contract to compensate Be In for use of Be In’s proprietary business and integration strategies; • 8 9 Defendants’ infringement of Be In’s copyright in violation of the Copyright Act, 17 U.S.C. §§ 101, et seq.; 6 7 Defendants’ misappropriation of Be In’s trade secrets in violation of California Defendants’ breach of contract in violation of Be In’s terms of service prohibiting them from making unauthorized use of Be In’s intellectual property rights; • Be In’s entitlement to injunctive relief and monetary damages. 10 Be In reserves the right to add claims if discovery reveals additional wrongdoing by defendants, 11 and to expand the legal issues in dispute accordingly. 12 Defendants’ Statement: 13 Defendants anticipate the following legal issues will need to be resolved: 14 1. What law applies to Defendant Google UK; 15 2. Whether Plaintiff can articulate valid “trade secrets,” or whether all such 16 17 information is non-secret; 3. Whether Plaintiff can or cannot meet its burden to prove that Defendants did not 18 independently develop the Hangouts product and the button linking the Hangouts 19 product to the YouTube user interface; 20 21 22 23 24 25 26 27 28 4. Whether Plaintiff has any protectable copyright rights in the alleged similarities between Plaintiff’s Cam Up website and Google’s Hangouts product; 5. Whether there is a binding contract, whether express or implied, between Plaintiff and any Defendant and, if so, the terms of that contract(s); 6. The enforceability and terms of Plaintiff’s Terms of Service, in general and with respect to any Defendant; 7. Whether Plaintiff acted in bad faith, within the meaning of California Civil Code section 3426.4 with respect to its trade secret accusations; and 8. Whether Defendants are entitled to their costs and attorneys’ fees from Plaintiff INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 10 1 2 3 4 for defending against Plaintiff’s copyright allegations. 4. MOTIONS Be In has filed the following motions: • (PENDING) Motion for Leave to File Second Amended Complaint on April 30, 5 2013 (D.I. 37). Google filed a conditional opposition to the motion on May 14, 6 2013 (D.I. 33). The Court is currently set to hear the motion on September 26, 7 2013 at 1:30 p.m. 8 • (PENDING) Notice of Substitution of Counsel on May 14, 2013 (D.I. 42). 9 • Motion to continue hearing on Defendant’s Motion to Dismiss on March 25, 2013 10 11 (D.I. 34), which the Court granted on March 26, 2013 (D.I. 35) • Motion to withdraw counsel on February 19, 2013 (D.I. 28) and to substitute 12 counsel on March 6, 2013 (D.I. 30), which the Court granted together March 7, 13 2013 (D.I. 33) 14 • Administrative Motion to file under seal Opposition to Motion to Dismiss on 15 September 25, 2012 (D.I. 22), which the Court found moot on March 26, 2013 16 (D.I. 35) 17 Additionally, Be In anticipates that it may need to move to compel discovery from Google UK 18 Ltd., because Google has taken the position during meet and confer that documents and 19 information of Google UK are “not necessarily” in Google Inc.’s custody or control. Be In also 20 anticipates that it may file a motion for partial summary judgment, depending on the facts 21 revealed during discovery. 22 23 Defendants have filed the following motions: • Motion to Dismiss Plaintiff's Third and Fourth Causes of Action on September 4, 24 2012 (D.I. 15), which the Court found moot on March 26, 2013 in light of Be In’s 25 amended complaint (D.I. 35) 26 27 • Administrative Motion to file under seal on September 4, 2012 (D.I. 16), which the Court granted on September 12, 2012 (D.I. 20) 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 11 • 1 2 Motion to remove incorrectly filed document on September 4, 2012 (D.I. 17), which the Court granted on September 12, 2012 (D.I. 21) 3 In addition to a motion to dismiss Plaintiff’s Second Amended Complaint (and any further 4 amended complaints), Google Inc. and proposed Defendants YouTube and Google UK anticipate 5 that they may file dispositive motions, including motions for summary judgment, and that there is 6 the potential for discovery issues moving forward which may require motion practice to resolve. 7 Defendants also contemplate filing motions for attorneys’ fees and costs and sanctions. 8 5. AMENDMENT OF PLEADINGS 9 Be In has a pending motion for leave to file its Second Amended Complaint. Defendants 10 have stated that they “do not in principle oppose Plaintiff’s filing of an amended complaint,” but 11 object only to having the amended complaint signed by Gibson Dunn, when Morrison & Foerster 12 has now substituted in as counsel in the case. (D.I. 43 at 5.) The parties have stipulated that Be 13 In has until May 30 to file a revised proposed second amended complaint to be signed by 14 Morrison & Foerster or a reply brief. (D.I. 46.) If Be In seeks to file a revised proposed second 15 amended complaint, Defendants will use their best efforts to confirm whether they stipulate to 16 the revised second amended complaint prior to the June 5 Case Management Conference. (Id.) 17 Be In does not presently anticipate seeking further leave to amend, but discovery has not 18 yet commenced, and Be In reserves the right to so amend its pleading if necessary. Be In 19 proposes that the deadline for such an amendment be set for one month before the close of fact 20 discovery. 21 6. 22 23 24 EVIDENCE PRESERVATION The parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored Information, and met and conferred on May 15, 2013 pursuant to Fed. R. Civ. P. 26(f). Be In confirms that it has taken reasonable and proportionate steps taken to preserve 25 evidence relevant to the issues reasonably evident in this action. Pursuant to the instructions of 26 prior counsel, Be In notified relevant employees and contractors of Be In of their obligation to 27 preserve evidence. 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 12 1 Defendants confirm that they have taken reasonable and proportionate steps to preserve 2 evidence relevant to the issues reasonably evident in this action. 3 7. DISCLOSURES 4 At their meet-and-confer on May 15, 2013 pursuant to Fed. R. Civ. P. 26(f), the parties 5 agreed to exchange initial disclosures under Fed. R. Civ. P. 26 on May 29, 2013 (14 days after 6 their conference, as provided in Fed. R. Civ. P. 26(a)(1)(C)). 7 8. 8 9 10 DISCOVERY Neither party has taken any discovery to date. As noted immediately above, the parties agreed to exchange initial disclosures on May 29, 2013. The parties have met and conferred with respect to e-discovery. The parties have also met 11 and conferred on a proposed stipulated protective order. The parties hope to have agreed on the 12 form of order before the June 5 Case Management Conference. If the parties are unable to reach 13 agreement, they will have narrowed their disputes to a discrete issue or set of issues that can be 14 presented to the Court. 15 The parties anticipate that the scope of discovery will encompass the factual and legal 16 issues identified in Sections 2 and 3 above, and the requested relief discussed in Section 11 17 below, including all related, ancillary, and subsidiary factual and legal issues and matters. 18 The parties propose the following modifications to the rules governing discovery: 19 Plaintiff’s Position: 20 • Interrogatories: Each side may propound a maximum of 50 interrogatories. 21 • Depositions: Each party may take up to 20 witness depositions (excluding expert 22 23 witness depositions). Plaintiff Be In is a much smaller company than Google, and intends to make every effort 24 to handle discovery efficiently and to minimize discovery expense. However, Be In does not 25 believe that ten depositions will be sufficient in this case. Although the parties have not yet 26 exchanged initial disclosures, Be In understands that Google will be disclosing four to five 27 developers of Hangouts whom Google may rely upon at trial and that the development team was 28 much larger than that. In addition, Be In understands that Google will be disclosing individuals INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 13 1 from a separate development team at YouTube who were responsible for the development of the 2 “Watch With Your Friends” button whom Google may also rely upon at trial. Be In also needs to 3 depose what is sure to be an entirely separate group of individuals regarding Google’s business 4 strategy for Hangouts and the monetary and strategic significance of Hangouts and the integration 5 strategy Google adopted to both YouTube and to Google. Google’s indirect revenue model 6 makes this discovery particularly challenging. 7 In addition, Be In needs to depose Mr. Robinson and the individuals with whom he 8 communicated regarding the May 2011 meeting—which even Google admits is at least two 9 additional people. And Be In needs to depose third party investors whose actions were impacted 10 by the launch of Google Hangouts and is entitled to depose a corporate representative of Google 11 Inc., YouTube and Google U.K. Some of the witnesses reside outside of the United States and 12 they cannot be compelled to testify at trial, making depositions even more critical here than in the 13 typical case. 14 Given the combined size of Google Inc., YouTube and Google UK, Be In seeks to 15 increase the number of interrogatories to 50 to allow it to focus its other discovery efforts more 16 effectively on the individuals who have relevant information and to tailor its discovery to the key 17 issues of the case. 18 Defendants’ Position: 19 Defendants do not believe that discovery should exceed the limits set forth in the Federal 20 Rules. This is a simple case where minimal discovery will quickly show that Plaintiff’s 21 accusations are not true. There is no good cause for increased depositions or interrogatories 22 based on Plaintiff’s speculation about the content of discovery not yet taken. Defendants believe 23 that Plaintiffs have nothing to support their central accusations -- that Mr. Robinson transmitted 24 anything from his May 2011 meeting with Plaintiff in London to developers elsewhere or that 25 Google copied any aspects of Plaintiff’s website -- and thus hope to conduct a broad fishing 26 expedition in what will be a failed effort to support those accusations. Plaintiff can always come 27 back with a request for increased depositions or interrogatories if, after Plaintiff has exhausted the 28 default discovery limits, it can show a legitimate need to increase the burden and expense of this INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 14 1 meritless lawsuit on Defendants. There is no need to double the number of depositions and 2 interrogatories at this point. 3 9. 4 5 CLASS ACTION This case is not a class action. 10. 6 RELATED CASES There are no related cases pending at this time. 7 11. 8 Plaintiff’s Statement: 9 10 RELIEF Be In seeks the following relief in its case against Google, Google UK, and YouTube: • An order preliminarily and permanently enjoining defendants and any other 11 persons or entities acting in concert with defendants from further misappropriation 12 of Be In’s trade secrets including its confidential business and marketing plans and 13 strategies; 14 • An order preliminarily and permanently enjoining defendants and any other 15 persons or entities acting in concert with defendants from engaging in future acts 16 of infringement, contributory infringement and/or induced infringement of Be In’s 17 copyrights in it is CamUp platform, including by prohibiting Google from offering 18 or utilizing its Hangouts platform; 19 20 • Damages: o adequate to compensate Be In for defendants’ acts of trade secret 21 misappropriation, copyright infringement, breach of implied contract and 22 breach of contract, including actual and exemplary damages, lost profits, 23 infringer’s profits and/or, at a minimum, damages based on reasonable 24 royalty rates for Be In’s technology, in amounts to be proven at trial; 25 o for unjust enrichment based on profits of defendants attributable to their 26 27 wrongful acts; o based on the copyright statute; 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 15 • 1 2 3 An award of Be In’s attorneys’ fees, costs of suit herein incurred, and prejudgment and post-judgment interest. Defendants’ Statement: 4 Defendants seek denial of Plaintiff’s requested relief, an award of attorneys’ fees and 5 costs under the Uniform Trade Secrets Act, and costs and -- if they are the prevailing party-- 6 attorneys’ fees under the Copyright Act. Defendants are considering other requests for 7 relief/sanctions, and reserve the right to supplement this response. 8 12. 9 SETTLEMENT AND ADR The parties have agreed to submit to private mediation before a neutral at a time and date 10 that is mutually acceptable to both parties. 11 13. 12 13 Be In is willing consent to having a magistrate judge conduct all further proceedings including trial and entry of judgment if that will enable the case to be set for trial more quickly. 14 15 CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES Defendants do not consent to a magistrate judge. 14. 16 OTHER REFERENCES This case is not suitable for reference to binding arbitration, a special master, or the 17 Judicial Panel on Multidistrict Litigation. 18 15. NARROWING OF ISSUES 19 Neither party at this time requests bifurcation of any issue, claim or defense. The parties 20 will work to narrow issues for trial once discovery commences, the case progresses further, and 21 the parties’ positions are more developed. 22 16. 23 EXPEDITED TRIAL PROCEDURE This case should not be handled under the Expedited Trial Procedure of General Order 24 No. 64. 25 17. 26 SCHEDULING The parties’ proposed case schedule is set forth below: 27 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 16 1 Event Proposed Date 2 Last day to make original Initial Disclosures (14 days after Rule 26 conference) 05/29/2013 Last day to file and serve amendments to the pleadings 01/24/2014 Designate experts 02/11/2014 Complete fact discovery 02/21/2014 Exchange opening expert reports (on issues on which the producing party would bear the burden of proof at trial) 03/14/2014 04/15/2014 11 Exchange rebuttal expert reports (on issues on which the rebutting party would not bear the burden of proof at trial) 12 Complete expert discovery 05/5/2014 13 Last date to file dispositive motions 06/02/2014 14 Motions in Limine (filing) 21 days before trial 15 Opposition to Motions in Limine (filing) 14 days before trial 16 Pretrial Statement 07/14/2014 17 Pretrial Conference 07/21/2014 18 Trial 07/28/2014 (or Court’s earliest convenience) 3 4 5 6 7 8 9 10 19 20 18. 21 TRIAL Be In, Inc. has requested a jury trial. The parties expect trial will last seven to ten court 22 days. 23 19. 24 DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS Be In filed its “Certificate of Interested Entities or Persons” under Civil Local Rule 3-16 25 on April 30, 2013 (D.I. 36) identifying the following entities known by Plaintiff to have either: 26 (i) a financial interest in the subject matter in controversy or in a party to the proceeding; or 27 (ii) any other kind of interest that could be substantially affected by the outcome of the 28 proceeding: INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 17 1 a) Dreamore, Inc. (63% shareholder) 2 b) Zeus Corporation (15% shareholder) 3 c) Joseph Jordan D’Anna (11% shareholder) 4 d) Elia D’Anna (11% shareholder). 5 6 With respect to Defendant Google Inc., and pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report. 7 Pursuant to Federal Rule of Civil Procedure 7.1, the undersigned counsel certifies that as 8 of this date, Defendant Google Inc. has no parent corporation, and no publicly held corporation 9 owns 10% or more of its stock. 10 11 20. OTHER PDF Email Service: The parties agree that they may serve discovery and objections 12 and/or responses to discovery by electronic mail and that, if sent by 5:30 p.m. Pacific time on a 13 business day, they shall be deemed served as of that business day as though they had been 14 personally served. The parties further agree that electronic mail shall be the sole required method 15 for such service. Additional service by hard copy is optional, and does not affect calculation of 16 due dates. Separately, and for purposes of production of documents and things, the parties further 17 agree that production through secure file transfer or FTP via electronic mail shall be the preferred 18 method for such production, except in instances of voluminous productions that cannot practically 19 be sent in this manner. Each Party may specify to opposing counsel a list of attorneys, assistants, 20 and paralegals to be included on an electronic mail service list for purposes of this paragraph. 21 In addition, the parties agree that they may serve documents filed with the Court under 22 seal by electronic mail and that the documents shall be deemed served as of the time and date of 23 the accompanying ECF documents filed with the Court provided that they are sent promptly after 24 the filing. 25 The parties do not anticipate raising any other issues at the Case Management Conference. 26 27 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 18 1 Dated: May 29, 2013 2 MORRISON & FOERSTER LLP By: 3 /s/ Kenneth A. Kuwayti KENNETH A. KUWAYTI 4 Attorneys for Plaintiff BE IN, INC. 5 6 7 Dated: May 29, 2013 8 WILSON SONSINI GOODRICH ROSATI By: 9 /s/ Colleen Bal COLLEEN BAL Attorneys for Defendants GOOGLE INC. and RICHARD ROBINSON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 19 1 2 CASE MANAGEMENT ORDER The above JOINT CASE MANAGEMENT STATEMENT & PROPOSED ORDER is 3 approved as the Case Management Order for this case and all parties shall comply with its 4 provisions. 5 6 IT IS SO ORDERED. 7 8 Dated: __________________________ By: Honorable LUCY H. KOH 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 20 1 GENERAL ORDER 45 ATTESTATION 2 I, Kenneth A. Kuwayti, am the ECF User whose ID and password are being used to file 3 the Joint Proposed Case Management Schedule. In compliance with General Order 45, X.B., I 4 hereby attest that Colleen Bal has concurred in this filing. 5 /s/ Kenneth A. Kuwayti Kenneth A. Kuwayti 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INITIAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER Case No. 5:12-CV-03373-LHK pa-1588852 21

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