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

Filing 78

JOINT CASE MANAGEMENT STATEMENT filed by Be In, Inc.. (Attachments: # 1 Exhibit A)(Barquist, Charles) (Filed on 10/3/2013)

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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:
213.892.5200
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-HRL

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Plaintiff,
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v.

JOINT CASE MANAGEMENT
CONFERENCE STATEMENT

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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,

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Defendants.
JOINT CASE MANAGEMENT CONFERENCE STATEMENT

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Judge: Hon. Lucy H. Koh

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

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Statement & Proposed Order pursuant to the Standing Order for All Judges of the Northern

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District of California dated July 1, 2011 and Civil Local Rules 16-9 & 16-10(d).

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1.

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Plaintiff’s Statement:

FACTS

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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, simultaneously to 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 the SXSW Trade Show, 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 several Google personnel visited the booth and

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viewed the demonstration of the CamUp website. While Google is claiming it cannot identify

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any personnel, the visitors to the CamUp booth included Google’s Vice President of Consumer

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Products. Be In publicly launched the CamUp website shortly thereafter in early April 2011.

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That same month, Be In won the “Early Stage” award from MIPTV Connected Creativity

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Ventures for 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 on 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. Mr. Robinson forwarded an email about his

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meeting with Be In to at least two others at Google.

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Google points to a declaration of Mr. Robinson as evidence of Google’s lack of liability
for Be In’s trade secret claim, claiming that he did not discuss the meeting with others at Google.

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However, Mr. Robinson’s recollection of the May 2011 meeting described in his declaration is

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vague and incomplete and will be contradicted by the Be In representatives who attended the

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meeting. Circumstantial evidence suggests that Mr. Robinson’s meeting prompted others at

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Google to visit the CamUp website: On May 12, 2011, the same day that Mr. Robinson met with

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Be In’s representatives, users in the Seattle area and Sweden visited the CamUp website. The

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next day, on May 13, 2011, users in Seattle and Sydney, Australia visited the CamUp website.

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Google has identified these three places as locations where Google engineers who developed

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Hangouts worked. These visits at the time of the Robinson meeting are noteworthy because from

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the time of CamUp’s launch in early April 2011 until the day of Be In’s meeting with Google on

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May 12, 2011, camup.com had not received any visits from any users in the state of Washington.

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And from the time of CamUp’s launch in early April 2011 until the day of Be In’s meeting with

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Google on May 12, 2011, camup.com had received only one visit each from users in Sweden and

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Sydney. Moreover, after initially refusing to answer discovery requests on this topic, Google has

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now admitted that after the May 12, 2011 meeting and before August 18, 2011, when Hangouts

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was integrated with YouTube using the “Watch With Your Friends” button idea Be In disclosed

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to Mr. Robinson, he visited Google’s Mountain View headquarters.

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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+ was Google Hangouts, a social video platform that
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bears striking similarity to CamUp, and infringes Be In’s copyrights. It immediately was hailed

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by the media as the new social network’s “killer” feature. CNN called Hangouts “a key

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component of Google+” and “Google’s sharpest edge over Facebook’s current product.”

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TechCrunch gushed that “nailing an intimate experience that supports two or more people in a

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video conference is no small feat, but Google knocked it out of the park with Hangouts …. It’s

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more than just one-on-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 June 28, 2011.

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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, Google fundamentally mischaracterizes Be In’s claim. The issue for trial will

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not be when Google first began development of some of the base elements it later incorporated

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into Hangouts, but whether it copied from Be In during the development process and used the Be

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In trade secrets that it provided in confidence. The discovery provided by Google to date

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indicates that Hangouts did not take its final, infringing form until after Google personnel had

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access to CamUp at SXSW. While Google claims that it “developed the Hangouts user interface

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before March 10, 2011,” in fact, according to a Google internal email, the design of the user
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interface was still in progress after the SXSW show where Be In publicly unveiled CamUp. Of

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course, Be In can establish copying by showing access and substantial similarity.

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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 in May. Google claims that before this meeting it had the idea of

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allowing Hangouts subscribers to share YouTube videos by providing a link on Hangouts that

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would permit them to do this. But Google does not contend that before the May 2011 meeting it

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had conceived of the idea of directly providing a link from YouTube to Hangouts comparable to

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the button that Be In disclosed. In fact, Google has acknowledged that the development of this

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

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described above, the button was part of a larger strategy disclosed by Be In to tap directly into

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Google’s large, but anonymous and scattered, user base to create an organized social community,

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not merely a means of giving existing Hangouts users an easy way to share YouTube videos from

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the Hangouts website as Google claims to have proposed.

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

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mouse over the button, the “Watch With Your Friends” language still appeared. In the summer of

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2013, Google removed the “Watch With Your Friends” language from YouTube entirely. Google

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has offered no explanation for all of these changes, leaving the logical inference that it did so to

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cover up its copying.

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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.
Google attaches a timeline to this case management conference statement which Be In

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disputes, and repeatedly refers to its document production, which it claims “irrefutably

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demonstrates” prior development, failing to mention that over 90% of that document production

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has been made in just the past 13 days. Until that time, Defendants’ document production lagged
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behind Be In’s. Be In has not even had the opportunity to review these documents. In fact,

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Defendants make several references below to documents that were only produced after close of

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business on Friday, September 27, less than a week before this Case Management Conference

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Statement was filed.

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Google’s claim that it “has tried to put these dispositive documents in Plaintiff’s hands for

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months” is highly misleading. Plaintiff has been asking for Google to provide evidence of prior,

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independent development of Hangouts for more than two years, long before this lawsuit was filed

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but Google repeatedly refused to provide it. The only time Plaintiff declined to review

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documents from Google was when Google offered to produce a much smaller subset of

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documents in paper form for in person inspection, well after its responses to Plaintiff’s discovery

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requests were due. Plaintiff told Google it was willing to review these documents and declined

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only after Google insisted that it would not allow the documents to be copied in any form as

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required by Rule 34.

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Defendants’ Statement:
INTRODUCTION

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Google’s documents demonstrate not merely that Plaintiff Be In’s accusations are false,

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but that they cannot possibly be true. Plaintiff’s central allegation is that it launched a video

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conferencing product called CamUp and that Google hastily copied that product to launch

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Google Hangouts a few months later. But Google’s documents irrefutably demonstrate that it

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would have had to invent time travel to copy from CamUp, because Google developed Hangouts

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before Plaintiff made its CamUp product public. Google developed the Hangouts user interface

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before March 10, 2011; Plaintiff claims to have first publicly released CamUp at a trade show

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beginning on March 14, 2011 and to have launched its CamUp website on April 6, 2011.

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Attached as Exhibit A is a timeline showing Google’s first-in-time development. 1

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Plaintiff does not dispute the timeline. Nor can it identify a single design element in the

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Google redacted the user names from the exhibit, but can provide an unredacted version
to the Court if requested.

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June 28, 2011 launched version of Hangouts that is not present in the March 10, 2011 version.

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Google’s first-in-time development is fatal to Plaintiff’s case.

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Despite this dispositive evidence, and instead of withdrawing accusations that are plainly

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false, Plaintiff persists with a strained argument that Google copied the design of the Hangouts

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user interface from Plaintiff’s CamUp website after a Google UK salesperson (Richard

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Robinson) met with Plaintiff in London on May 12, 2011. Plaintiff’s “circumstantial evidence”

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of copying is the fact that a total of four unknown Internet users visited Plaintiff’s CamUp

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website on May 12-13, 2011 from Seattle, Washington and Sydney, Australia, and cities in

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Sweden and Washington State many miles from any Google office. The inference Plaintiff seeks

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to draw is nonsense. There is no good faith inference that these four of the millions of Internet

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users populating these cities are someone connected to Google (much less to the development of

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Hangouts). The evidence is all to the contrary, as Google has confirmed through its own

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searches and inquiries that no Hangouts developer visited Plaintiff’s website until well after

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Plaintiff initiated this lawsuit in June 2012. And in any event, the dates of the four visits to

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Plaintiff’s website are more than two months after Google had already designed the Hangouts

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user interface. Plaintiff’s feeble Hail Mary does not rebut Google’s first-in-time development

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evidence.

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Google has tried to put its dispositive documents in Plaintiff’s hands for months.

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Plaintiff has chosen not to engage with Google regarding the bases for its claims or to review

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Google’s documents demonstrating independent development. Instead, it has sought to hide

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from the facts, while pressing for massive discovery, hoping attrition can substitute for merit.

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Google has now produced over 8,200 documents totaling over 26,000 pages, which

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uniformly demonstrate that it independently developed Hangouts and the other accused features.

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Google has also searched the documents and email of approximately 175 employees, and

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conducted inquiries of each, in response to Plaintiff’s discovery requests. There is no evidence

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that anyone was aware of Plaintiff or its CamUp product, much less copied anything from

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Plaintiff.

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When previously challenged, Plaintiff withdrew allegations from its complaint that it had
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no good faith basis to assert, including (1) that Google UK’s Richard Robinson transmitted

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information Plaintiff told him during a London meeting in May 2011 to other Google or

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YouTube personnel, and (2) that Plaintiff experienced a “dramatic spike” in traffic to its CamUp

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website following the London meeting from locations where Google employees are located.

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With irrefutable evidence of independent development in hand, Plaintiff should voluntarily

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withdraw the rest of its case, or face sanctions for pressing claims it knows are meritless.

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A.

Plaintiff Should Voluntarily Dismiss Its Frivolous Case
There are two primary issues in this lawsuit: (1) whether Google independently

conceived and designed the user interface for its Hangouts video chat product, or instead

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committed copyright infringement by copying the user interface from Plaintiff’s CamUp product

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at a technology conference or from the CamUp website; and (2) whether YouTube employees in

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California independently added a link from YouTube to Google’s Hangouts product, or stole the

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idea for the link from a conversation Plaintiff had with a Google UK sales employee (Richard

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Robinson) in London in May 2011.

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Plaintiff alleges that Hangouts is “A Blatant Copy of CamUp”; that “Google slavishly

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copied the CamUp platform in a hurried attempt to bolster its new social network, Google+”; and

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that Google came up with the idea to develop Hangouts from Mr. Robinson’s May 2011 London

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meeting, and thereafter copied the Hangouts interface from Plaintiff’s CamUp website:

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Upon information and belief, following Plaintiff’s meeting with Google in May,
2011, Defendants and/or their employees, agents, and/or other individuals acting
on their behalf used and/or visited the CamUp website for the purpose of, or with
the result of, copying individual expressive elements and the overall design of
CamUp to create a competing social entertainment consumption platform,
Hangouts, and for the purpose of, or with the result of, furthering Defendants’
misappropriation of Plaintiff’s confidential, proprietary information.

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See Second Amended Complaint ¶¶5, 59, 60. Plaintiff has no good faith basis to pursue these

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allegations in light of Google’s evidence that Hangouts was developed before CamUp was first

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publicly released.

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Prior to the first case management conference on August 14, 2013, Google assembled a

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set of documents demonstrating that Plaintiff’s claims are meritless and offered Plaintiff’s

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counsel the opportunity to review the documents at WSGR’s offices (across the street from
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Morrison & Foerster’s offices) before the documents had been fully processed for distribution to

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Plaintiff. Plaintiff’s counsel refused to inspect them. See Docket No. 67 at 6. Since then,

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Google has sent Plaintiff’s counsel copies of those documents, and produced thousands more, at

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tremendous burden and expense. Plaintiff and its lawyers can no longer claim to be unaware of

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Google’s prior development of Hangouts. The evidence is in their hands. The documents show:

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Google could not possibly have copied Plaintiff’s CamUp user interface.

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Google’s evidence demonstrates that it independently conceived, designed and developed

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the user interface for its Hangouts product, starting years before Plaintiff ever thought about

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CamUp. Google has produced scores of user interface mock ups, wire frames and other planning

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documents, beginning with Google’s April 2007 acquisition of video conferencing technology

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from a company called Marratech AB, and continuing to the Hangouts launch in June 2011.

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These documents not only show Google’s development path independent of Plaintiff’s

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CamUp product, but also demonstrate that Google had substantially completed its user interface

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at the latest by March 10, 2011. 2 See Exh. A (showing development timeline); see also Exh. B

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(comparing Hangouts UI with CamUp UI). While Plaintiff argues without specifics that

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Hangouts was not really “final” on March 10, 2011, Plaintiff fails to identify a single design

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element of Hangouts as launched in June 2011 that is not seen in the March 10, 2011 version. It

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cannot because there are none. Google designed the Hangouts user interface before Plaintiff

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contends anyone working for Google could theoretically have seen the CamUp user interface for

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the first time, either at the South by Southwest trade show (March 14-17, 2011) or when Plaintiff

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launched its CamUp website (April 6, 2011), and before Google UK salesperson Mr. Robinson

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met with Plaintiff in London in May 2011.

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Google’s prior development of the Hangouts user interface renders Plaintiff’s accusations
not merely false but impossible, since Google could not have stolen something that did not yet
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This includes every design element (and the selection and arrangement of elements)
that Plaintiff claims in this case, including a user interface with a large rectangular screen over a
row of smaller screens, a link for watching YouTube videos, a box for chat on the side, large
buttons, a silhouette icon for participants and invite functionality using pre-existing social
contacts. Compare SAC [Docket No. 59] ¶¶62-64 (identifying allegedly copied user interface
elements) with Exh. A (showing Google’s March 10, 2011 Hangouts user interface).
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exist. Plaintiff should dismiss its claims for copyright infringement of the CamUp user interface

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and for breach of the CamUp website’s Terms of Service (based on alleged copying of the user

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interface from the website), rather than continue to press patently false claims.

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2.

Defendants did not misappropriate Plaintiff’s claimed trade secrets.

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Plaintiff’s claims for trade secret misappropriation and breach of implied contract, which

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center on Plaintiff’s May 2011 London meeting with Mr. Robinson, fare no better. Plaintiff

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accuses Google and YouTube of improperly using information it conveyed to Mr. Robinson at

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the London meeting, even though Plaintiff does not allege that Mr. Robinson transmitted any

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information he learned at that meeting to anyone else (and even though Plaintiff amended its

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complaint to drop all such accusations). 3 Plaintiff focuses in particular on YouTube’s

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development of a button on the YouTube player linking to Hangouts, and Google’s development

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of a Hangouts feature called “On Air” which allows Hangouts users to “broadcast” their

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Hangouts sessions as a live video stream, like a podcast. Plaintiff has produced no evidence that

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it can claim these ideas as its trade secrets, since (1) it does not appear to have thought up these

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ideas before Google and YouTube adopted them, and (2) the ideas are too generic to be secrets.

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Regardless, Defendants did not misappropriate them.
a.

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Mr. Robinson did not use or transmit Plaintiff’s claimed trade secrets.

Mr. Robinson told only two Google UK co-workers and his assistant about the May 2011

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London meeting. He did not tell them, or anyone else, any of Plaintiff’s claimed trade secrets.

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The fact that Mr. Robinson never disclosed Plaintiff’s trade secrets to anyone disposes of

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Plaintiff’s trade secret claims, since the alleged secrets never went to anyone who worked on the

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features Plaintiff claims were stolen.
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In August 2012, Google gave to Plaintiff Mr. Robinson’s lengthy, sworn

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declaration stating that he did not disclose the substance of his conversation to

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anyone and did not use any of the information Plaintiff told him. He stated that

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Plaintiff’s failure to allege improper “disclosure or use of a trade secret” is the subject of
Defendants’ pending motion to dismiss Plaintiff’s trade secret misappropriation claim. See Cal.
Civ. Code §3426.1 (definition of trade secret misappropriation).

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he does not even know any of the Google or YouTube employees who conceived,

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designed or developed the Hangouts user interface or the YouTube button linking

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to Hangouts.

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meeting.

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Google subsequently produced all documents regarding the 2011 London

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Google conducted an in-depth investigation of the four London employees,

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including by searching their email and documents. None transmitted anything

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about Plaintiff to anyone else. See Response to Interrogatory Nos. 3, 4, 14.

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b.

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YouTube independently conceived the idea for the link to Hangouts.
Google produced documents demonstrating the moment, just days after Hangouts

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launched, that a YouTube employee came up with the idea to add the link from

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YouTube to Hangouts. See GOOG 2030-32.

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the link by the four California-based YouTube employees who worked on it.

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Google produced all documents concerning the conception and development of

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Google conducted an investigation, including electronic searches, of Mr.

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Robinson and the two co-workers he emailed about Plaintiff, to determine that the

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four London-based employees did not transmit anything to the four YouTube

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developers concerning Plaintiff, CamUp or the London meeting. See Response to

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Interrogatory No. 14.

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Google’s documents demonstrate that Google planned to link Hangouts with

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YouTube years prior to the May 2011 London meeting. See Response to

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Interrogatory No. 5. For instance, Google produced a document to Plaintiff

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showing a link from Hangouts to YouTube with a button titled “Watch a

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YouTube video together” dated February 16, 2011. GOOG 243-44.

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Plaintiff contends in this CMC statement that Google has never offered any

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explanation for its decision in July 2013 remove the button from YouTube,

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arguing that the removal was “to cover up its copying.” Plaintiff’s statement

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makes no sense – removing a button from a public product is hardly “covering
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up” anything – and is false. Google has produced documents reflecting Google’s

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detailed business rationale for removing the button. See GOOG 25921-44.

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c.

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Google’s users inspired it to develop Hangouts On Air.
Google’s documents demonstrate that it was inspired to create the On Air feature

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by Hangouts users who broadcast Hangouts segments. The evidence

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demonstrates that even the name “On Air” comes from users’ vernacular. See

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GOOG 2847-2849.
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Google conducted an investigation, including electronic searches, to determine
that the four London employees did not transmit anything to the developers of

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Hangouts On Air or any other aspects of Hangouts regarding Plaintiff, CamUp, or

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the London meeting. See Response to Interrogatory No. 4.
d.

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Miscellaneous Website Features.

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Plaintiff also contends that vague, generic ideas, such as having apps associated with

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video conferencing technology or working with content providers, are its trade secrets. Even

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ignoring that generic information cannot constitute trade secrets, Plaintiff has no possible trade

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secret claim since no one working on the relevant features at YouTube or for Hangouts ever

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knew anything about Robinson’s meeting with Plaintiff, Plaintiff or CamUp before this dispute

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began.

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2.

MOTIONS
The parties have filed a Discovery Dispute Joint Report regarding the terms of a

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protective order to govern discovery of allegedly confidential information (D.I. 76). The dispute

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is pending before Magistrate Judge Lloyd.

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Plaintiff’s Statement

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Plaintiff expects that it will need to file additional discovery motions to compel responses

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to interrogatories and requests for admission. Plaintiff may need to file a motion to compel

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further production of documents as well, but has not yet had time to digest the approximately

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25,000 pages of documents Google has produced within the past 13 days.

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Defendants’ Statement

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Defendants expect that they will need to file an additional discovery motion to require

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Plaintiff to identify its claimed trade secrets with specificity and to compel a complete response to

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numerous other interrogatories and requests for admissions.
Defendants expect to file a motion for summary judgment. Defendants may also file

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motions for sanctions against Plaintiff, including for maintenance of bad faith trade secret claims

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and under FRCP 26(g) for unreasonable and unduly burdensome discovery in light of the

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allegations at issue.

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3.

AMENDMENT OF PLEADINGS
Be In does not presently anticipate seeking further leave to amend the Second Amended

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Complaint, but Be In reserves the right to seek leave to amend its pleading if necessary. The

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Court set the deadline for such an amendment on November 1, 2013.

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4.

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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).

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Plaintiff’s Statement

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Be In has confirmed to undersigned counsel that it has taken reasonable and proportionate

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steps taken to preserve evidence relevant to the issues reasonably evident in this action. Pursuant

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to the instructions of prior counsel, Be In notified relevant employees and contractors of Be In of

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their obligation to preserve evidence. Current counsel for Be In has reminded relevant employees

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and contractors of their obligations.

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Google’s comments below about an “executed” copy of the NDA are puzzling, because as

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Google notes the NDA was a form on its website, to which one acceded by clicking a button. As

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far as Be In is aware, neither party “executed” a copy; Google certainly hasn’t produced one from

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its files that bears anyone’s signature.

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Defendants’ Statement

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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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Possible Failure to Preserve Documents By Plaintiff. Aspects of Plaintiff’s document

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production suggest that Plaintiff may have failed to fulfill its document preservation obligations,

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including by failing to retain documents of its former Business Development Director Nik

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Miskov (from whom Plaintiff has not produced any documents). For instance, Mr. Miskov

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signed the NDA governing the May 2011 London meeting on Plaintiff’s behalf, and Mr. Miskov

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should therefore have an executed copy of the agreement. However, Plaintiff has never

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produced an executed copy of the NDA from its own files, but has instead produced (1) a

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downloaded, blank form copy from Google’s website, and (2) a copy that Google filed in the

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course of the litigation. In addition, Plaintiff’s counsel has requested that Google de-designate

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certain documents in Google’s production that were sent to or received from Mr. Miskov. The

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request by Plaintiff’s counsel suggests that Plaintiff failed to retain a non-confidential version of

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the same documents from Mr. Miskov’s files. (Google agreed to the de-designation.)

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On September 26, 2013, Google’s counsel wrote to Plaintiff’s counsel, explaining the

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bases for Google’s suspicions that Plaintiff had failed to retain Mr. Miskov’s documents, and

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asking for confirmation no later than October 1, 2013 that Plaintiff had in fact retained all

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relevant documents, including Mr. Miskov’s documents. Plaintiff’s counsel failed to respond,

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and even in this CMC statement fails to confirm that it has properly preserved Mr. Miskov’s

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documents (and other relevant documents). Google therefore respectfully requests that the

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Court require Plaintiff’s counsel to submit declarations from Plaintiff and its counsel setting

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forth in detail all measures they have taken to preserve documents, and either affirming their full

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compliance with all document retention obligations or stating in detail all documents and

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categories of documents they have failed to retain.

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5.

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 25 Interrogatories,

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96 Requests for Production, and 104 Requests for Admission on Be In.
The parties have stipulated to an e-discovery order, which is pending before the Court.

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The parties have met and conferred on a proposed stipulated protective order. With respect to the

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protective order, all terms have been agreed upon except for one provision concerning a

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prerequisite for the qualification of experts to access confidential information, which is the

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subject of the motion before Magistrate Judge Lloyd.
The parties have met and conferred on several occasions concerning several discovery

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issues. As a result of those discussions, supplemental and amended responses were recently
served by both parties. Additional meet and confer meetings are likely.

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Plaintiff’s Statement

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Be In recognizes this Court’s direction to the parties at the August case management

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conference that “all of your discovery disputes should go to Judge Lloyd.” D.I. 77, at 25. Be In

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is nevertheless compelled to respond here to the discovery issues that Google has inserted below

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into this case management statement. Be In would prefer, however, to continue to make progress

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through further meet and confer conferences and, if necessary, to follow Magistrate Judge

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Lloyd’s standing order for the proper procedure to bring discovery matters to the attention of the

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Court.

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Be In denies that the discovery it seeks from Google is unduly burdensome or otherwise

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unjustified. Be In has narrowed, deferred or withdrawn certain requests as a result of the normal

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meet and confer process required by the Court’s rules. The Court does not have to take Be In’s

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word for this. The number of documents produced by Google in the case thus far—8,200

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documents totaling just over 26,000 pages—is a fraction of the discovery the Court normally sees

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in cases of this type and shows that Be In’s discovery requests have not been unreasonable or

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unduly burdensome. Moreover, Google’s responsiveness to legitimate discovery requests is

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incomplete, and over 90 percent of its document production has been made in just the past two

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weeks, obviously timed to coincide with the October 10 case management conference.

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In fact, until two weeks ago, Google had produced just 2,875 pages of documents,

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whereas Be In had produced 5,176 pages, nearly twice as many. Google repeatedly makes

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reference in this CMC statement to documents it only produced on September 27, less than a

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week before this CMC statement was filed. The truth is that Google has only momentarily—and

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very recently—surpassed Be In’s production and for the rest of this case has lagged behind.

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Google claims below that “Plaintiff has all along had in its sole custody and control

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whatever data exist regarding traffic to its CamUp website following the May 2011 London

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meeting,” but this is not true. The data that Be In has (and has cited above) showing visits to its

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site from Washington, California and Australia immediately following the Robinson meeting are

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Google Analytics data maintained by Google itself. Google should have the ability to determine

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whether those visits were made by any of its past or present employees or contractors, but is

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claiming it cannot do so.

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Google alleges below that “CamUp’s first appearance at the trade shows occurred after

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Google designed the Hangouts user interface” as an excuse for not providing full discovery, but

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this assertion is not accurate. Even accepting that Hangouts development was underway before

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the March trade show, the documents produced by Google confirm that the Hangouts interface

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continued to be revised and was not finalized until after the SXSW event. Indeed, a Google email

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dated March 16, 2011, indicates that the design of the Hangouts still not been finalized at the time

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Be In’s CamUp product was publicly unveiled. Many of the alternatives considered during the

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final stages of design were very different from the Hangouts user interface that was ultimately

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chosen.

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Google’s allegations below that Be In’s discovery is deficient are incorrect. The claim

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that Be In has not produced any documents in the categories identified by Google below is

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incorrect. Google contends that Be In “has failed to produce any documents” concerning

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development of CamUp or the conception of Be In’s trade secrets, but Be In has in fact produced

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over 250 documents related to development and conception, and over 300 documents related to

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strategy and/or monetization. Be In has also produced the Google Analytics data showing user

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traffic to its website, including the unusual traffic immediately following the May 2011 meeting.
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Be In has produced documents reflecting prior user interfaces for the GigIn website, from which

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the CamUp website evolved. Google acknowledges that Be In has produced emails regarding the

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Robinson meeting and only speculates that there should be more. And Be In has also produced

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the terms of service documents for CamUp.com. Google’s complaint about “scalability”

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documents is difficult to understand, since Be In is not making any contentions regarding

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scalability in this lawsuit.

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The bottom line is that Google has adopted the classic strategy of attempting to

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overwhelm a tiny litigant with massive discovery requests, many of which demand irrelevant

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details or call for the provision of information or admission of facts that are in Google’s

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possession alone.
Defendant’s Statement
A. Google Has Engaged in Extensive Discovery Efforts
Plaintiff continues to demand burdensome discovery on claims it has no good faith basis

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to pursue. In response to Plaintiff’s discovery requests, Google conducted a document search

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and inquiry of more than 175 employees, none of whom was even aware of Plaintiff or CamUp,

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and produced over 8,200 documents. With respect to key specific issues, Google has

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undertaken the following efforts.

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1.

CamUp Website: Plaintiff continues to demand discovery concerning access by

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Google to the CamUp website, even though the evidence demonstrates that Google’s

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development pre-dated Plaintiff’s launch of the CamUp website on April 6, 2011.

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Plaintiff has all along had in its sole custody and control whatever data exist regarding

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traffic to its CamUp website following the May 2011 London meeting, yet it has repeatedly

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changed its characterization of the data over the course of the case. Plaintiff’s ever-changing

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allegations regarding its website traffic only underscore its lack of credibility. Initially, Plaintiff

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alleged that, after the May 2011 meeting, the website experienced “a dramatic spike” in user

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traffic “from individuals located in Mountain View, California where Google is headquartered.”

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[Docket No. 1, ¶32]. Within several months, Plaintiff changed course and alleged that the

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“dramatic spike” was instead “from within the United Kingdom, the areas of Palo Alto and
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Mountain View California, where Google is headquartered, and Seattle, Washington, where

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Google engineers alleged developed Hangouts.” [Docket No. 39]. Now, upon receiving

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discovery from Google that places potential Hangouts development elsewhere, Plaintiff claims

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in this CMC statement that the supposed spike in traffic was instead from users in Seattle,

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Sweden and Sydney, Australia.

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Whatever traffic Plaintiff claims to have experienced after the May 2011 London

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meeting, the traffic was completely unrelated to Hangouts development. First, the evidence

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demonstrates that Google had developed the Hangouts user interface before the May 2011

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London meeting (and before the launch of the CamUp website), and therefore could not

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possibly have copied anything from Plaintiff. Second, Google conducted a document search

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and inquiry of the more than 60 members of the Hangouts development team (including for

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members in California, Seattle, Stockholm, and Sydney). There is no evidence that any

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Hangouts developer ever heard of Plaintiff or CamUp or visited Plaintiff’s website, before this

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dispute arose. See Response to Interrogatory No. 3.

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2.

SXSW Festival and MIPTV Conference. Plaintiff also continues to demand

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discovery regarding attendance by Google employees at two trade shows, even though CamUp’s

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first appearance at the trade shows occurred after Google designed the Hangouts user interface.

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Google conducted a document search and inquiry of the Google employees who even

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potentially attended these trade shows (totaling over 100 employees, none of whom overlap

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with the Hangouts development team). None was aware of CamUp or Plaintiff, noticed Plaintiff

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or CamUp at either trade show or visited the CamUp website. See Response to Interrogatory

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Nos. 1, 7. While Plaintiff alleges that a Google employee stopped by its booth at South by

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Southwest, that is irrelevant. None of the Hangouts developers attended the conference, and

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Hangouts was already designed by the time the conference started.

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B. Plaintiff’s Discovery Efforts Are Deficient
In stark contrast to the massive, wide-ranging discovery Google has performed to defend
against Plaintiff’s frivolous claims, Plaintiff’s discovery efforts to date have been trivial.

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1.

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Production from a single custodian. Plaintiff has produced documents

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from exactly one custodian. Google knows there are many, many more custodians with

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relevant documents. For instance, Plaintiff identified 17 witnesses in its initial

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disclosures to be “contact[ed] through counsel for Be In,” plus another eight who

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apparently had relevant communications with Plaintiff.
2.

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Missing categories of documents. Plaintiff has failed to produce any

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documents regarding the following categories of information requested by Google:

8

•

Login or visitor information concerning Plaintiff’s CamUp or GigIn websites

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•

Complete user traffic data for Plaintiff’s websites

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•

Documents concerning the development of the CamUp product

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•

Documents concerning Plaintiff’s claimed trade secrets, such as documents showing
who purportedly invented or conceived them, when or how

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•

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Numerous documents concerning Plaintiff’s May 2011 London meeting with

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Richard Robinson. To date, Plaintiff has produced only a small number of email

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communications concerning the meeting. Plaintiff has not even produced a copy of

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its non-disclosure agreement with Google from Plaintiff’s own files

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•

Documents concerning visitors to its booth at the South by Southwest festival

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•

Documents concerning the claimed “unusual traffic” to Plaintiff’s websites following
the May 2011 London meeting

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20

•

Third party communications concerning the current dispute

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•

Documents reflecting prior versions of the CamUp user interface

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•

Documents concerning the claimed scalability of the CamUp product

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6.

SETTLEMENT AND ADR
The Court referred the parties to private mediation with a deadline of March 14, 2014.

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Be In is open to conducting an early mediation well in advance of the deadline.

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7.

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SCHEDULING
The Court set the following case schedule in its August 14, 2013 Minute Order and Case

Management Order (D.I. 70):
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Deadline to File Motion to Amend or Add Parties – November 1, 2013

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Fact Discovery Cutoff – May 17, 2014

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Deadline for Designation of Experts – May 19, 2014

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Expert Discovery:

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Opening Expert Reports – June 18, 2014

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Rebuttal Expert Reports – July 18, 2014

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Expert Discovery Cut-Off – August 8, 2014

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Last Day to File Dispositive Motions – September 8, 2014

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Last Day for Hearing on Dispositive Motions – October 23, 2014, At 1:30 P.M.

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Pretrial Conference Date – December 18, 2014, At 1:30 P.M.

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Jury Trial Date – January 12, 2015, at 9 a.m.

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8.

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

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TRIAL

days.

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Dated: October 3, 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: October 3, 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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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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