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

Filing 67

JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by Be In, Inc.. (Barquist, Charles) (Filed on 8/12/2013)

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CHARLES S. BARQUIST (BAR NO. 133785)
[e-mail]
WENDY J. RAY (BAR NO. 226269)
[e-mail]
MORRISON & FOERSTER LLP
707 Wilshire Blvd., Suite 6000
Los Angeles, California 90017-3543
Telephone: [phone]
Facsimile:
213.892.5454
KENNETH A. KUWAYTI (BAR NO. 145384)
[e-mail]
MORRISON & FOERSTER LLP
755 Page Mill Road
Palo Alto, California 94304-1018
Telephone:
650.813.5600
Facsimile:
650.494.0792

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Attorneys for Plaintiff BE IN INC.

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COLLEEN BAL (BAR NO. 167637)
[e-mail]
CHARLES TAIT GRAVES (BAR NO. 197923)
[e-mail]
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., YOUTUBE, LLC, and GOOGLE UK LTD.

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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,

Case No.

5:12-CV-03373-LHK

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Plaintiff,
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v.
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GOOGLE INC., a California corporation;
YOUTUBE, LLC, a Delaware limited liability
company; and GOOGLE UK LTD., a private
limited company registered in England and
Wales,

JOINT CASE MANAGEMENT
CONFERENCE STATEMENT &
[PROPOSED] ORDER
Judge: Hon. Lucy H. Koh

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Defendants.
JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER

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The parties to the above-entitled action jointly submit this Joint Case Management

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Statement & Proposed Order pursuant to the Court’s Order of August 10, 2013 (ECF No. 66), the

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Standing Order for All Judges of the Northern District of California dated July 1, 2011, and Civil

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Local Rule 16-9.
Counsel for the parties met and conferred on May 15, 2013, and on May 29, 2013 filed an

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Initial Joint Case Management Statement & Proposed Order. The Court subsequently continued

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the Case Management Conference that had been set for June 5, 2013, to August 14, 2013. (ECF

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No. 51.)

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1.

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JURISDICTION & SERVICE

Plaintiff’s Statement:
The Court has subject matter jurisdiction over Be In’s claims under the Copyright Act of

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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

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supplemental jurisdiction over Be In’s state law claims under 28 U.S.C. § 1367. This Court also

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has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1332 based on the diversity of the

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parties, and because the amount in controversy exceeds $75,000.00. Venue is proper in this Court

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pursuant to 28 U.S.C. § 1391(b), because Google Inc.’s principal place of business is Mountain

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View, California, in this judicial district, and Google transacts business in this district.

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Be In filed a second amended complaint on April 30, 2013, pursuant to a stipulation and

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order dated June 10, 2013. (ECF No. 58.) Counsel for Defendants accepted service on behalf of

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all defendants. No issues exist as to personal jurisdiction.

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Defendants’ Statement:

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Defendants do not contest jurisdiction.

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FACTS

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Plaintiff’s Statement:

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Starting in 2007, Be In created and developed CamUp, an award-winning social

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entertainment consumption platform. The platform allows up to eight users, such as groups of

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friends to simultaneously watch, listen, chat and collaborate around shared videos, music, and

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other media in a real-time, personal environment online as they see live streaming video of each
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other—something no other platform provided. By March 2011, Be In had developed the unique

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technology, appearance and infrastructure for this social video sharing platform, CamUp, and had

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developed proprietary strategies for integrating that platform into established content, social and

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media platforms.

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Be In publicly unveiled CamUp for the first time at SXSW Interactive, the industry-

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leading technology conference, in Austin, Texas in March 2011. CamUp’s demonstration booth

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was located steps away from Google’s booth, and Google personnel visited the booth and viewed

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the demonstration. Be In publicly launched the Cam Up website shortly thereafter. In

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April 2011, Be In won the “Early Stage” award from MIPTV Connected Creativity Ventures for

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the most innovative start-up of the year.

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On May 12, 2011, Be In representatives met in London with Richard Robinson, a Google

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executive, to discuss Be In’s vision and strategy for the CamUp platform and a proposed business

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partnership. At the meeting, Be In disclosed proprietary and confidential business strategies in

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confidence, pursuant to a non-disclosure agreement. Among the information Be In disclosed was

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using the platform Be In had devised to transform Google’s (and YouTube’s) massive—but

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unstructured, and largely anonymous—user base into an organized social community that would

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foster shared social experiences around Google’s content products, including most immediately,

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YouTube. Part of this integration strategy was a button that could be used to invite YouTube

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users to “Watch With Your Friends,” allowing YouTube users to share content in a novel

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dynamic environment using CamUp. Mr. Robinson was enthusiastic about CamUp and asked Be

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In to send additional written information. Be In followed up the meeting by sending

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Mr. Robinson an eight-page memo the next day, marked “Confidential,” which described some

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key aspects of Be In’s confidential strategic plan.

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On or about June 28, 2011, Google launched an invitation-only field test of Google+, its

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then-most recent and ambitious attempt to create a social network to rival Facebook and other

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competitors. Included as part of Google+ is Google Hangouts, a social video platform that bears

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striking similarity to CamUp, and infringes Be In’s copyrights. It immediately was hailed by the

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media as the new social network’s “killer” feature. CNN called Hangouts “a key component of
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Google+” and “Google’s sharpest edge over Facebook’s current product.” TechCrunch gushed

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that “nailing an intimate experience that supports two or more people in a video conference is no

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small feat, but Google knocked it out of the park with Hangouts …. It’s more than just one-on-

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one chat though, which is why Hangouts are so magical.”

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Google claims that the development of Hangouts began “long before” the events giving

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rise to this lawsuit. But Google has acknowledged publicly that Hangouts was developed late in

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the process of Google+, and that the Hangouts group was the last group to join the development

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team for Google+. At least one news article based on an interview with the lead developer for

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Hangouts, Chee Chew, places the start of the development for Hangouts at only “several months”

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before July 28, 2011.
In addition, Mr. Chew has claimed in a video that the prototype for Google Hangouts

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purportedly only took “about an hour” to develop. The video, which pre-dates the filing of this

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lawsuit, can be found at http://thenextweb.com/google/2012/03/31/hangouts-how-an-internal-

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video-link-between-seattle-and-stockholm-became-an-awesome-google-feature/. Google’s claim

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that Hangouts’ development started earlier is apparently based on the fact that what Mr. Chew

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describes in the video as a “permanent video link” between two Google engineering offices had

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previously existed. The video makes clear that this permanent link was simply a means of

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enabling Google developers in Seattle and Stockholm to collaborate. This is very different from

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the consumer-facing Google Hangouts, whose conception Mr. Chew places at a much later point

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in time. Moreover, the issue for trial will not be when Google first began development of some

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of the base elements it later incorporated into Hangouts, but whether it copied from Be In during

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the development process and used the Be In trade secrets that it provided in confidence.

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Google points to the declaration of Mr. Robinson as evidence of Google’s lack of liability

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of Be In’s trade secret claim. Mr. Robinson’s recollection of the May 2011 meeting described in

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his declaration will be contradicted by the Be In representatives who attended the meeting.

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Notably, since at least March of 2012, three months prior to the filing of this lawsuit, Be In has

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been requesting documents evidencing Google’s purported independent development, but Google

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refused to provide them. It is only recently, well after receiving Be In’s document requests, that
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Google has finally offered to provide any such documents, but even now Google is offering to

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produce only a limited subset of less than 1000 pages of development documents of its choosing,

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which it refuses to provide in compliance with Federal Rule of Civil Procedure 34. Google insists

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that its selected documents will be provided in hard copy only—without metadata and not in the

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electronic format already agreed to by the parties—and that the documents must be viewed in

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Wilson, Sonsini’s office only and may not be copied in any form. Google refers to this as an

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“early inspection” of documents, but it is not. These documents are responsive to Be In’s first set

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of document requests, which were served on May 24, 2013—over eleven weeks ago— and

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should simply be produced. Be In’s lead counsel, and half of its legal team is located in Los

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Angeles. Be In has told Google that it will review the 1000 pages if Google produces them in the

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parties’ agreed upon electronic format or even if Google for now just runs the paper copies

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through a copy machine and produces those, but Google is refusing to do either.

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Google used and continues to use proprietary integration and business strategies disclosed

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by Be In at the May meeting in marketing and implementing Google Hangouts, including

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placement of a button underneath YouTube videos in August 2011 encouraging viewers to share

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the viewing experience with others. The button was labeled “Watch With Your Friends”—the

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language that was proposed by Be In—and was placed in the same position on the screen that Be

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In had described at the meeting. Google has acknowledged that the development of this button

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did not begin until July 2011, two months after Mr. Robinson’s meeting with Be In. Google

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subsequently modified the language of the button, but when a user placed the mouse over the

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button, the “Watch With Your Friends” language still appeared. It appears that Google has now

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removed the “Watch With Your Friends” language from YouTube entirely.

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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:
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Did Google copy elements of the CamUp website that it first viewed at a
demonstration in March 2011 at the SXSW Interactive conference?

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

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Did Google misappropriate the trade secrets that Be In disclosed at the May 2011

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meeting and in the written documentation Be In provided after the meeting at

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Mr. Robinson’s request?
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Can Google establish independent development of Hangouts given the apparent

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timing of the relevant development, the striking similarities of Hangouts to the

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CamUp website unveiled in March 2011, and Google’s apparent use of the same

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proprietary strategies that Be In disclosed in May 2011?

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Did Google violate the contractual Terms of Service of the CamUp website?

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What amount can Google prove should be deducted from the profits it derived
from infringing the copyrights of the CamUp website?

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stalled after Google launched Hangouts?

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To what extent has Google been unjustly enriched by its misappropriation of Be
In’s trade secrets?

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What harm did Be In suffer after potential investors pulled back and its momentum

Defendants’ Statement:
This is a lawsuit that never should have been filed. There are two core issues: (1)

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whether Google independently conceived the user interface for its video chat product called

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"Hangouts" or committed copyright infringement by copying the interface from Plaintiff’s

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“CamUp” product, and (2) whether YouTube independently added a link from its YouTube

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player to the Hangouts product, or stole the idea of such a link from a conversation Plaintiff had

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with a Google UK sales employee (Richard Robinson) in London in May 2011. As Defendants

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have learned, the evidence in this case will irrefutably demonstrate independent conception by

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Defendants in both instances and completely dispose of Plaintiff’s claims:

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Google could not possibly have copied Plaintiff’s CamUp product for Hangouts.

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Hangouts was based on a video chat product acquired through Google’s 2007 purchase

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of a Swedish company called Marratech. The Hangouts integration with YouTube and

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other features at issue were documented before Plaintiff contends it first publicly

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disclosed its “CamUp” product in March or April 2011. The Hangouts user interface
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therefore predates anything of Plaintiff’s to which Defendants could have had access,

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and Defendants have the development documents to prove it.

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As set forth in his sworn declaration, which Defendants supplied to Plaintiff, Mr.

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Robinson did not disclose to anyone the substance of his May 2011 conversation with

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Plaintiff. He is a salesperson with no connection to any of the development at issue, did

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not work on Hangouts, and only met with Plaintiff as a favor to a business

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acquaintance.

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Over the course of about a year, Plaintiff has been represented by five different law firms

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and has advanced four different complaints, repeatedly changing its allegations. In that time,

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Plaintiff dropped Mr. Robinson as a defendant after receiving his sworn declaration that he did

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not use or disclose Plaintiff’s claimed trade secrets; amended its complaint to remove a faked

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graphic that Plaintiff originally claimed showed imitation by Defendants but which Defendants

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demonstrated was fabricated; and amended its complaint to remove allegations that Plaintiff had

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evidence that Defendants had accessed Plaintiff’s CamUp website to copy it.

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Over the course of the past two months, Defendants have run intensive and wide-ranging

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searches to confirm that none of the Hangouts or YouTube developers knew about Plaintiff or its

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CamUp product, and that as Mr. Robinson declared, he had no communications with any of

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those developers. Defendants have also gathered documents showing independent conception of

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the features and information Plaintiff claims to own. So that Plaintiff’s counsel could review

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these documents as early as reasonably possible, we invited Plaintiff’s counsel to our offices

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(literally across the street) to inspect the documents before we had completed internally

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processing, numbering and designating them, and before the parties had agreed upon a protective

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order. This afforded Plaintiff a mechanism to resolve and/or limit the case with very little

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additional cost. Plaintiff’s counsel has refused to inspect the documents.

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Defendants’ evidence conclusively demonstrates that Google independently developed

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the Hangouts user interface and that Defendants did not steal any trade secrets from Plaintiff. To

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avoid, wasteful wide-ranging discovery that would costs hundreds of thousands or millions of

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dollars, Defendants propose a case management schedule that will focus discovery on certain
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enumerated, case-dispositive issues in anticipation of an early summary judgment motion.

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Defendants request that the motion be scheduled for hearing on November 21, 2013, the same

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date already scheduled for Defendants’ motion to dismiss. Both motions would be heard

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together. Defendants expect that the motions would completely dispose of the case. (See

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Narrowing of Issues and Defendants’ Proposed Case Management Schedule below).

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Defendants anticipate that the following factual issues will need to be resolved:

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1. Did Google independently develop the user interface for the Hangouts product?

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2. Did the development predate Plaintiff’s earliest public disclosure of its CamUp
product and Plaintiff’s May 2011 London meeting with Google UK’s Richard

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Robinson?

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3. Did Defendants independently decide to link YouTube to Hangouts with a button and

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independently come up with the phrase “watch with your friends”?

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4. Did Google UK’s Richard Robinson disclose to anyone the substance of his London

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meeting with Plaintiff?

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5. Did Plaintiff itself publicly disclose its claimed trade secrets before it met Richard

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Robinson in London?

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2.

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Plaintiff’s Statement:

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LEGAL ISSUES

The legal issues in dispute are those raised in Be In’s Second Amended Complaint,

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including the following:

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Defendants’ misappropriation of Be In’s trade secrets in violation of California
Civil Code § 3426, et seq.;

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Defendants’ infringement of Be In’s copyright in violation of the Copyright Act,
17 U.S.C. §§ 101, et seq.;

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Defendants’ breach of an implied in fact contract to compensate Be In for use of
Be In’s proprietary business and integration strategies;

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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;

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Be In’s entitlement to injunctive relief and monetary damages.

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Be In reserves the right to add claims if discovery reveals additional wrongdoing by defendants,

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and to expand the legal issues in dispute accordingly.

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Defendants’ Statement:
Defendants anticipate the following legal issues will need to be resolved:

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1. Whether Plaintiff can articulate valid “trade secrets” that were not publicly disclosed

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prior to the claimed misappropriation;

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2. Whether Plaintiff can meet its burden to prove that Defendants did not independently

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develop the Hangouts product and the button linking the Hangouts product to the
YouTube user interface;

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3. Whether Plaintiff has any protectable copyright rights in the alleged similarities between

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Plaintiff’s Cam Up website and Google’s Hangouts product;

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4. Whether there is a binding contract, express or implied, between Plaintiff and any

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Defendant and, if so, the terms of that contract(s);

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5. The enforceability and terms of Plaintiff’s Terms of Service, in general and with respect

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to any Defendant;

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6. Whether Plaintiff acted in bad faith, within the meaning of California Civil Code section

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3426.4 with respect to its trade secret accusations; and

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7. Whether Defendants are entitled to their costs and attorneys’ fees from Plaintiff for

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defending against Plaintiff’s copyright claim.

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3.

MOTIONS
Defendants’ Motion to Dismiss Plaintiff's First, Third and Fourth Causes of Action of the

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Second Amended Complaint is pending. Briefing on this motion will be complete as of August

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15, 2013. The motion is set for hearing on November 21, 2013. Be In requests, however, that if

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possible the Court advance the hearing so that the issues raised by the motion may be resolved

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sooner.

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Be In has filed the following motions:

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

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(WITHDRAWN) Motion for Leave to File Second Amended Complaint on April

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30, 2013 (D.I. 37). Google filed a conditional opposition to the motion on May

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14, 2013 (D.I. 33). This motion was withdrawn, and the Second Amended

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Complaint was subsequently filed pursuant to stipulation and order.
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(PENDING) Notice of Substitution of Counsel on May 14, 2013 (D.I. 42).

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Morrison & Foerster has replaced Gibson Dunn & Crutcher, but an order relieving

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the Gibson Dunn lawyers has not yet been entered.
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Motion to continue hearing on Defendant’s Motion to Dismiss on March 25, 2013
(D.I. 34), which the Court granted on March 26, 2013 (D.I. 35)

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Motion to withdraw counsel on February 19, 2013 (D.I. 28) and to substitute

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counsel on March 6, 2013 (D.I. 30), which the Court granted together March 7,

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2013 (D.I. 33)
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Administrative Motion to file under seal Opposition to Motion to Dismiss on

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September 25, 2012 (D.I. 22), which the Court found moot on March 26, 2013

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(D.I. 35)

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Additionally, Be In anticipates that it may need to move to compel discovery from Defendants,

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including Google UK Ltd., because Google initially took the position during meet and confer that

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documents and information of Google UK are “not necessarily” in Google Inc.’s custody or

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control. Be In also anticipates that it may file a motion for partial summary judgment, depending

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on the facts revealed during discovery.

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Defendants have filed the following motions:
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Motion to Dismiss Plaintiff’s First, Third and Fourth Causes of Action on July 11,
2013 (D.I. 64);

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Motion to Dismiss Plaintiff's Third and Fourth Causes of Action on September 4,

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2012 (D.I. 15), which the Court found moot on March 26, 2013 in light of Be In’s

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amended complaint (D.I. 35)
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Administrative Motion to file under seal on September 4, 2012 (D.I. 16), which the
Court granted on September 12, 2012 (D.I. 20)

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Motion to remove incorrectly filed document on September 4, 2012 (D.I. 17),
which the Court granted on September 12, 2012 (D.I. 21)

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As noted above, Defendants seek to file an early summary judgment motion that would be

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case-dispositive. The motion would demonstrate that there is no genuine issue of fact that (a)

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Defendants independently conceived and developed the Hangouts features and elements in which

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Plaintiff claims a proprietary interest, and (b) many of the trade secrets claimed by Plaintiff were

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not secret at the time of the claimed misappropriation, including because Plaintiff had previously

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disclosed them. Defendants expect that this motion would dispose of all of Plaintiff’s claims.
Defendants may also file motions to compel with respect to certain discovery disputes.

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Defendants also contemplate filing motions for attorneys’ fees and costs and sanctions.

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4.

AMENDMENT OF PLEADINGS

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Be In has filed its Second Amended Complaint. Be In does not presently anticipate
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seeking further leave to amend, but Be In reserves the right to so amend its pleading if necessary.
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Be In proposes that the deadline for such an amendment be set for one month before the close of
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fact discovery.
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5.

EVIDENCE PRESERVATION

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The parties have reviewed the Guidelines Relating to the Discovery of Electronically
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Stored Information, and met and conferred on May 15, 2013 pursuant to Fed. R. Civ. P. 26(f).
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Be In confirms that it has taken reasonable and proportionate steps taken to preserve
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evidence relevant to the issues reasonably evident in this action. Pursuant to the instructions of
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prior counsel, Be In notified relevant employees and contractors of Be In of their obligation to
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preserve evidence. Current counsel for Be In has reminded relevant employees and contractors of
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their obligations.
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Defendants confirm that they have taken reasonable and proportionate steps to preserve
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evidence relevant to the issues reasonably evident in this action.
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6.

DISCLOSURES
The parties exchanged initial disclosures under Fed. R. Civ. P. 26 on May 29, 2013

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(14 days after their conference, as provided in Fed. R. Civ. P. 26(a)(1)(C)).

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7.

DISCOVERY

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Discovery has begun. Be In has served a total of 17 Interrogatories, 90 Requests for

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Production, and 36 Requests for Admission on the defendants. Be In’s first set of discovery

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requests were served on May 24, 2013. Defendants have served a total of 22 Interrogatories,

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85 Requests for Production, and 9 Requests for Admission on Be In.
Be In expects to begin producing documents to defendants during the week of August 12,

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2013.
The parties have met and conferred with respect to e-discovery. The parties have also met

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and conferred on a proposed stipulated protective order. With respect to the protective order, all

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terms have been agreed upon except for one provision concerning a prerequisite for the

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qualification of experts to access confidential information. With respect to the e-discovery order,

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all terms have been agreed upon except for one provision concerning the time period for which

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materials must be preserved.

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If the parties are unable to reach agreement, they will present their disputes on a discrete
set of issues to the Court.
The parties anticipate that the scope of discovery will encompass the factual and legal

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issues identified in Sections 2 and 3 above, and the requested relief discussed in Section 11

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below, including all related, ancillary, and subsidiary factual and legal issues and matters.

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The parties propose the following modifications to the rules governing discovery:

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Plaintiff’s Position:
Google’s proposal for bifurcation, limited discovery, and early summary judgment on a

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subset of issues was first presented to Plaintiff in an email at 3:52 p.m. on the day this filing was

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due to the Court. Google did not discuss the proposal with Be In’s counsel or even indicate that a

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proposal of that type was forthcoming. Be In’s counsel has had no time to consider the proposal,

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discuss it with their client, or confer with Google’s counsel concerning the proposal. Be In
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disagrees with Google’s characterization of Be In’s discovery requests, which ignores both the

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specifics of those requests and the parties’ discussions about narrowing and focusing the requests.

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Be In will be prepared to address Google’s proposal at the conference with the Court on August

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14.

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Plaintiff’s position on discovery limitations is as follows:

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

Interrogatories: Each side may propound a maximum of 50 interrogatories.

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

Depositions: Each party may take up to 20 witness depositions (excluding expert
witness depositions).

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Plaintiff Be In is a much smaller company than Google, and intends to make every effort

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to handle discovery efficiently and to minimize discovery expense. However, Be In does not

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believe that ten depositions will be sufficient in this case. In its initial disclosures, Google has

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disclosed nine developers of Hangouts and the “Watch With Your Friends” button upon whom

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Google may rely at trial, and Be In believes that the development teams were much larger. Be In

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also needs to depose what is sure to be an entirely separate group of individuals regarding

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Google’s business strategy for Hangouts and the monetary and strategic significance of Hangouts

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and the integration strategy Google adopted for both YouTube and Google. Google’s indirect

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revenue model makes this discovery particularly challenging.

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In addition, Be In needs to depose Mr. Robinson and the individuals with whom he

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communicated regarding the May 2011 meeting—which even Google admits is at least three

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additional people. Be In also needs to depose third party investors whose actions were impacted

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by the launch of Google Hangouts and is entitled to depose a corporate representative of Google

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Inc., YouTube and Google U.K. Some of the witnesses reside outside of the United States and

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they cannot be compelled to testify at trial, making depositions even more critical here than in the

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typical case.

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Given the combined size of Google Inc., YouTube and Google UK, Be In seeks to

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increase the number of interrogatories to 50 to allow it to focus its discovery efforts more

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effectively on the individuals who have relevant information and to tailor its discovery to the key

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issues of the case.

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Defendants’ Position:

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1. Proposed Limitation of Discovery Pending Resolution of Early Summary Judgment
Motion

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Defendants propose that discovery be limited to issues relevant to Defendants’

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independent development of the accused features and elements (as detailed in “Narrowing of

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Issues” below), pending resolution of an early summary judgment motion, to try to avoid the cost

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and burden of the discovery campaign Plaintiff seems intent on launching. Plaintiff’s discovery

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demands would potentially require Defendants to spend hundreds of thousands of dollars or more

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on issues that are irrelevant to the case, and would entangle the parties in needless discovery

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motions. Among other things, Plaintiff demands:

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

Intensive and wide-ranging records, including email, from every person who

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participated in Hangouts development, from years before CamUp existed to the

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present. Defendants have agreed to produce documents sufficient to show conception

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and development of the elements and features at issue. But there is no basis to require

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Defendants to search for and produce all documents regarding conception and

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development that occurred before CamUp existed. Defendants could not possibly

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have copied something that did not yet exist.

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

networking initiative), not just the portion relating to Hangouts.

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Documents and financial information about all of Google+ (Google’s social



Searches of each of Defendants’ thousands of employees worldwide to try to

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determine whether any visited the CamUp website, which was not launched until after

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Defendants had already conceived and developed the Hangouts user interface.

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

Searches of each of Defendants’ employees who attended any part of the two-week

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long 2011 South by Southwest music festival and conference where Plaintiff

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demonstrated CamUp, after Defendants had already conceived and developed

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Hangouts;
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Richard Robinson’s daily activities and communications in his ordinary job

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responsibilities as a Google UK salesperson, having nothing to do with the

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information Plaintiff claims to have disclosed to him;
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Generalized communications between Google UK, Google Inc. and YouTube having
nothing to do with the events in dispute.

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Because this case can be resolved fairly and efficiently on the irrefutable evidence that

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Defendants developed Hangouts independent of Plaintiff, Defendants request that the Court

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adopt their case management proposal.
2. Other Limitations on Discovery

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

Interrogatories: 25 per side

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

Depositions: 70 hours per side

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This is a simple case where limited discovery will quickly show that Plaintiff’s

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accusations are not true. There is no need to increase the number of interrogatories beyond the 25

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permitted under the Federal Rules. Likewise, there is limited deposition questioning necessary to

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determine that Defendants independently developed Hangouts. Defendants propose a 70-hour

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time limit on depositions (rather than the 10 depositions x 7 hours each provided under the

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Federal Rules) to give the parties flexibility to use deposition time as they see fit. For instance,

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Defendants expect it would take Plaintiff only a short time to depose a Hangouts developer to

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confirm that Hangouts was not, and could not possibly have been, copied from CamUp. The

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actual numbers of hours consumed by Plaintiff for such a deposition would be counted against the

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70-hour total.

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There is no need to double the number of depositions and interrogatories at this point.
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Indeed, Plaintiff’s request to do so confirms Defendants’ concerns that Plaintiff seeks to create
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unnecessary and unjustifiable discovery burdens in the case.
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8.

CLASS ACTION

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This case is not a class action.
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RELATED CASES
There are no related cases pending at this time.

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10.

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Plaintiff’s Statement:

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RELIEF

Be In seeks the following relief in its case against Google, Google UK, and YouTube:


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An order preliminarily and permanently enjoining defendants and any other

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persons or entities acting in concert with defendants from further misappropriation

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of Be In’s trade secrets including its confidential business and marketing plans and

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strategies;


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An order preliminarily and permanently enjoining defendants and any other

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persons or entities acting in concert with defendants from engaging in future acts

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of infringement, contributory infringement and/or induced infringement of Be In’s

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copyrights in it is CamUp platform, including by prohibiting Google from offering

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or utilizing its Hangouts platform;


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Damages:
o adequate to compensate Be In for defendants’ acts of trade secret

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misappropriation, copyright infringement, breach of implied contract and

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breach of contract, including actual and exemplary damages, lost profits,

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infringer’s profits and/or, at a minimum, damages based on reasonable

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royalty rates for Be In’s technology, in amounts to be proven at trial;

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o for unjust enrichment based on profits of defendants attributable to their
wrongful acts;

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

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judgment and post-judgment interest.

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An award of Be In’s attorneys’ fees, costs of suit herein incurred, and pre-

Defendants’ Statement:

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Defendants seek denial of Plaintiff’s requested relief, an award of attorneys’ fees and

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costs under the Uniform Trade Secrets Act, and costs and -- if they are the prevailing party--

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attorneys’ fees under the Copyright Act. Defendants are considering other requests for

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relief/sanctions, and reserve the right to supplement this response.

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SETTLEMENT AND ADR
The parties have agreed to submit to private mediation before a neutral at a time and date

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that is mutually acceptable to both parties.

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12.

Be In is willing consent to having a magistrate judge conduct all further proceedings

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including trial and entry of judgment if that will enable the case to be set for trial more quickly.
Defendants do not consent to a magistrate judge.

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CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES

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OTHER REFERENCES
This case is not suitable for reference to binding arbitration, a special master, or the

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Judicial Panel on Multidistrict Litigation.

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NARROWING OF ISSUES

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Plaintiff’s Position

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Google’s proposal for bifurcation, limited discovery, and early summary judgment on a

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subset of issues was first presented to Plaintiff in an email at 3:52 p.m. on the day this filing was

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due to the Court. Google did not discuss the proposal with Be In’s counsel or even indicate that

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a proposal of that type was forthcoming. Until 3:52 p.m. today, Be In had no notice that Google

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was going to propose a different case schedule other than the one that the parties jointly

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presented to the court in May. Be In’s counsel has had no time to consider the proposal, discuss

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it with their client, or confer with Google’s counsel concerning the proposal. Google has not

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produced any of the evidence that it claims “conclusively demonstrates” its view of the merits of

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this lawsuit.

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Defendants’ Proposal to Narrow Issues

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Because Defendants’ evidence conclusively demonstrates the pre-existing development

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of Hangouts and that Defendants did not misappropriate trade secrets from Plaintiff, rather than

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have this case proceed into wasteful wide-ranging discovery that would costs hundreds of

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thousands or more, Defendants respectfully request that the Court enter a revised proposed case
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management schedule that would:
(1) Permit Defendants to schedule a summary judgment motion to be heard on November

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21, 2013, the hearing date already set for Defendants’ pending motion to dismiss, or as soon

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thereafter as it can reasonably be heard. The summary judgment motion would be case-

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dispositive. It would show that there is no triable issue that: (a) Defendants independently

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conceived and developed the Hangouts features and elements in which Plaintiff claims a

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proprietary interest, and (b) many of the trade secrets claimed by Plaintiff were not secret at the

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time of the claimed misappropriation, including because Plaintiff had previously disclosed them.

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Defendants expect that the summary judgment motion would dispose of all of Plaintiff’s claims;

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and
(2) Limit the scope of discovery to those two case-dispositive issues until the summary
judgment motion is resolved, as follows:
Plaintiff would produce: (1) evidence demonstrating its public launch and disclosure of

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the CamUp product, (2) identification of each alleged secret or copyrighted element it claims

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Defendants misused; (3) any evidence that would show the alleged secrecy of trade secrets at

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issue, (4) any evidence that would show knowledge or copying of Plaintiff’s CamUp product by

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Defendants’ employees who conceived the Hangouts elements at issue, at the time of such

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conception, (5) any evidence that would show knowledge or awareness of information Plaintiff

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disclosed to Richard Robinson by Defendants’ employees who conceived the Hangouts user

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interface or YouTube features or elements at issue, at the time of such conception, and (5) any

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outstanding responses to written requests directed to these issues.

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Defendants would produce: (1) documents demonstrating independent development of

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the Hangouts user interface, YouTube link, and any other features claimed by Plaintiff, (2) all

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documents concerning the May 2011 London meeting and Richard Robinson’s communication

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and actions regarding the same, and (3) any outstanding responses to written requests directed to

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these issues. Defendants would also confirm their completion, and the results, of the searches

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addressing knowledge or awareness of Plaintiff or its CamUp website among or by all employees

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who conceived the Hangouts and YouTube elements at issue, and would produce any documents
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showing such knowledge or awareness (though it has located none to date after intensive

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searches).
Defendants expect they can produce the documents (already offered to Plaintiff)

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demonstrating their independent development of Hangouts and the other website features at issue

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within three weeks, and the remaining documents within the suggested categories within two

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additional weeks. Because these documents are tailored to address narrow issues, Defendants

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anticipate that they would produce a very manageable set of documents for Plaintiff’s review.

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Plaintiffs should have more than sufficient time to take depositions and other discovery to

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investigate Defendants’ evidence before Plaintiff’s opposition to the motion would be due on

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November 1, 2013.

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This proposal provides a means of resolving what Defendants have said from the start is a

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frivolous case. The schedule would not prejudice Plaintiff. There is no cause, much less an

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urgent need, for the massive discovery campaign that Plaintiff now seeks. Plaintiff waited nine

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months to file suit after sending its first letter to Defendants, never sought a preliminary

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injunction, and has requested scheduling delays in the litigation over several months as it cycled

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through law firms.

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completely dispose of the case as Defendants expect they will, Plaintiff can proceed with

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remaining discovery (with the case presumably narrowed and focused by the decision on the

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dispositive motions).

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If the motion to dismiss and the summary judgment motion do not

EXPEDITED TRIAL PROCEDURE
This case should not be handled under the Expedited Trial Procedure of General Order

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No. 64.

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SCHEDULING
Plaintiff’s Proposed Schedule: The schedule below is the schedule jointly presented by all

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parties to the Court in the Initial Case Management Conference Statement, dated May 29, 2013.

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Plaintiff stands by its prior agreement with defendants as follows:

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER

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Event

Proposed Date

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

Exchange rebuttal expert reports (on
issues on which the rebutting party would
not bear the burden of proof at trial)

04/15/2014

Complete expert discovery

05/5/2014

Last date to file dispositive motions

06/02/2014

Motions in Limine (filing)

21 days before trial

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Opposition to Motions in Limine (filing)

14 days before trial

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Pretrial Statement

07/14/2014

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Pretrial Conference

07/21/2014

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Trial

07/28/2014
(or Court’s earliest convenience)

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Defendants’ Proposed Schedule:

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Event

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Defendants to produce discovery limited to (1) documents
September 20, 2013
demonstrating independent development of Hangouts user
interface, YouTube link, and any other features claimed by
Plaintiff, (2) documents concerning May 2011 London
meeting and Richard Robinson’s communication and actions
regarding the same, and (3) any outstanding responses to
written requests directed to these issues. Defendants also to
confirm completion of searches demonstrating no
knowledge or awareness of Plaintiff or its CamUp website
among or by those who conceived the Hangouts and
YouTube elements at issue, and produce any documents
showing such knowledge or awareness, if any.

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Plaintiff to produce discovery limited to (1) evidence
demonstrating public launch and disclosure of CamUp
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product, (2) identification of each alleged secret or
copyrighted element it claims Defendants misused; (3)
alleged secrecy of trade secrets at issue, (4) any evidence
that would show knowledge or copying of Plaintiff’s
CamUp product by Defendants’ employees who conceived
the Hangouts elements at issue, at the time of such
conception, (5) any evidence that would show knowledge or
awareness of information Plaintiff disclosed to Richard
Robinson by Defendants’ employees who conceived the
Hangouts user interface or YouTube features or elements at
issue, at the time of such conception, and (6) any
outstanding responses to written requests directed to these
issues.

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Defendants file opening summary judgment papers on the
issues of independent creation/development of protectable
elements and features; and trade secrecy.

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November 21, 2013

Discovery on all other issues is stayed pending resolution of
Defendants’ summary judgment motion.

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After resolution of Defendants’ summary judgment motion,
the parties will appear at a further status conference to
discuss litigation of remaining issues, if any.

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November 14, 2013

Hearing on Defendants’ summary judgment motion (and
motion to dismiss)

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November 1, 2013

Defendant files reply papers

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October 4, 2013

Plaintiff files opposition papers.

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TRIAL
Be In, Inc. has requested a jury trial. The parties expect trial will last seven to ten court

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days.

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DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS
Be In filed its “Certificate of Interested Entities or Persons” under Civil Local Rule 3-16

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on April 30, 2013 (D.I. 36) identifying the following entities known by Plaintiff to have either:

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(i) a financial interest in the subject matter in controversy or in a party to the proceeding; or

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(ii) any other kind of interest that could be substantially affected by the outcome of the

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proceeding:

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a) Dreamore, Inc. (63% shareholder)

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b) Zeus Corporation (15% shareholder)

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c) Joseph Jordan D’Anna (11% shareholder)

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d) Elia D’Anna (11% shareholder).

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Defendant Google Inc. filed its Certificate of Interested Entities Persons on May 29, 2013

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(D.I. 49), certifying that, other than the named parties, there is no interest to report. Pursuant to

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Federal Rule of Civil Procedure 7.1, Defendant Google Inc. has no parent corporation, and no

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publicly held corporation owns 10% or more of its stock.

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Defendant Google UK filed its Certificate of Interested Entities of Parties on June 17,

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2013 (D.I. 62), certifying that the following listed persons, associations of persons, firms,

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partnerships, corporations (including parent corporations) or other entities (i) have a financial

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interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non-

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financial interest in that subject matter or in a party that could be substantially affected by the

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outcome of this proceeding:

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1.

Google Inc.

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2.

Google International LLC

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3.

YouTube, LLC

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Pursuant to Federal Rule of Civil Procedure 7.1, the following listed corporations are

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Google UK Ltd.’s parent corporations:

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1.

Google Inc.

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2.

Google International LLC

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3.

YouTube, LLC

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Defendant YouTube, LLC filed its Certificate of Interested Entities of Parties on June 17,

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2013 (D.I. 61), certifying that the following listed persons, associations of persons, firms,

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partnerships, corporations (including parent corporations) or other entities (i) have a financial

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interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non-

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financial interest in that subject matter or in a party that could be substantially affected by the

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outcome of this proceeding: Google Inc.

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Pursuant to Federal Rule of Civil Procedure 7.1, the following listed corporation is
YouTube, LLC’s parent: Google Inc.
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OTHER
PDF Email Service: The parties agree that they may serve discovery and objections

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and/or responses to discovery by electronic mail and that, if sent by 5:30 p.m. Pacific time on a

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business day, they shall be deemed served as of that business day as though they had been

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personally served. The parties further agree that electronic mail shall be the sole required method

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for such service. Additional service by hard copy is optional, and does not affect calculation of

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due dates. Separately, and for purposes of production of documents and things, the parties further

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agree that production through secure file transfer or FTP via electronic mail shall be the preferred

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method for such production, except in instances of voluminous productions that cannot practically

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be sent in this manner. Each Party may specify to opposing counsel a list of attorneys, assistants,

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and paralegals to be included on an electronic mail service list for purposes of this paragraph.

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In addition, the parties agree that they may serve documents filed with the Court under

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seal by electronic mail and that the documents shall be deemed served as of the time and date of

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the accompanying ECF documents filed with the Court provided that they are sent promptly after

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the filing.

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The parties do not anticipate raising any other issues at the Case Management Conference.

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT & [PROPOSED] ORDER

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Dated: August 12, 2013

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MORRISON & FOERSTER LLP
By:

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/s/ Charles S. Barquist
CHARLES S. BARQUIST
Attorneys for Plaintiff BE IN INC.

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Dated: August 12, 2013

WILSON SONSINI GOODRICH ROSATI
By:

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/s/ Colleen Bal
COLLEEN BAL

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Attorneys for Defendants
GOOGLE INC., YOUTUBE, LLC, and
GOOGLE UK LTD.

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CASE MANAGEMENT ORDER

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The above JOINT CASE MANAGEMENT STATEMENT & PROPOSED ORDER is

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approved as the Case Management Order for this case and all parties shall comply with its

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provisions.

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IT IS SO ORDERED.

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Dated: __________________________

By:
Honorable LUCY H. KOH

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UNITED STATES DISTRICT JUDGE

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LOCAL RULE 5-1(I)(3) ATTESTATION

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I, Charles S. Barquist, am the ECF User whose ID and password are being used to file the

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Joint Proposed Case Management Schedule. In compliance with Local Rule 5-1(i)(3), I hereby

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attest that Colleen Bal has concurred in this filing.

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/s/ Charles S. Barquist
Charles S. Barquist

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