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

Filing 85

Statement of Non-Opposition re 84 MOTION for Extension of Time to Amend COMPLAINT Defendants' Conditional Non-Opposition filed byGOOGLE UK LTD., Google Inc., YouTube, LLC. (Attachments: # 1 Exhibit A and B)(Related document(s) 84 ) (Bal, Colleen) (Filed on 10/24/2013)

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COLLEEN BAL, State Bar No. 167637
CHARLES TAIT GRAVES, State Bar No. 197923
RIANA S. PFEFFERKORN, State Bar No. 266817
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
One Market Plaza
Spear Tower, Suite 3300
San Francisco, California 94105-1126
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants
Google Inc., Google UK Ltd.,
and YouTube, LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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

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DEFENDANTS’ CONDITIONAL NONOPPOSITION TO MOTION FOR EXTENSION
CASE NO.: 5:12-CV-03373-LHK

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CASE NO.: 5:12-cv-03373-LHK
DEFENDANTS’ CONDITIONAL
NON-OPPOSITION TO
PLAINTIFF’S MOTION FOR
EXTENSION OF TIME TO FILE
THIRD AMENDED COMPLAINT
Courtroom: 8, 4th Floor
Judge: Hon. Lucy H. Koh

INTRODUCTION

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Defendants do not oppose Plaintiff’s request for more time to secure yet another

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successor law firm to file a Third Amended Complaint. In light of the overwhelming evidence

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that there is no good faith basis for Plaintiff’s claims, however, Defendants ask the Court to

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account for the possibility that Plaintiff will be unable to find a sixth firm to press those claims.

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Accordingly, Defendants respectfully request that – to the extent Plaintiff is granted the

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extension it requests but nonetheless fails to file a Third Amended Complaint by the extended

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deadline (December 2, 2013) – Plaintiff be required to show cause within 14 days thereafter why

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the case should not be dismissed with prejudice in its entirety.
ARGUMENT

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Plaintiff’s current counsel Morrison & Foerster is the fifth firm to represent it since

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Plaintiff first raised this misguided dispute in September 2011. On August 14, 2013, the firm

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assured the Court that, unlike prior counsel, it was in this case to stay (Court: “And as far as you

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know, you’re here to stay?” Plaintiff’s counsel: “That’s our plan, Your Honor.”). See Hearing

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Transcript [Docket No. 80] at 5:6-8. But following the Court’s dismissal of most of the case, and

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the evidence Defendants have presented showing that the case is being pursued in bad faith,

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Morrison & Foerster too now seeks to withdraw. It would appear that Morrison & Foerster has

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recognized, as Defendants have maintained from the start, that there is no good faith basis for

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this case.

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When asked to identify successor counsel, Morrison & Foerster was unable to do so –
evidently because none has been retained.

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Defendants do not believe that any law firm can file Plaintiff’s claims consistent with

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Rule 11. To demonstrate the falsity of Plaintiff’s accusations, Defendants have conducted an

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inquiry of more than 175 people, conducted intensive electronic searches, and produced

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thousands of documents.

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independent, prior development cannot reasonably be disputed.

The dates in the metadata of Defendants’ documents showing

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Plaintiff’s allegation that Google developed its Hangouts user interface by copying from

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Plaintiff’s CamUp platform is rendered impossible by Google’s evidence that Google developed
DEFENDANTS’ CONDITIONAL NONOPPOSITION TO MOTION FOR EXTENSION
CASE NO.: 5:12-CV-03373-LHK

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the disputed user interface before Plaintiff claims to have made CamUp public.1 Google’s

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independent, prior development is backed up by thousands of pages of Google development

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documents that have been produced to Plaintiff – evidence conclusively demonstrating that

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Plaintiff’s copying claims (copyright infringement and breach of terms of service) cannot be

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maintained in good faith.
Plaintiff’s allegations that Google misappropriated trade secrets relating to Hangouts and

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a link from YouTube to Hangouts are also unquestionably false.

The only person from

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Defendants whom Plaintiff ever met (and the only person to whom Plaintiff claims it disclosed

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trade secrets) – Google UK salesperson and former defendant Richard Robinson – did not

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transmit anything about that meeting to anyone who worked on the Hangouts or YouTube

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features at issue and did not even know those employees. Google long ago submitted to Plaintiff

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a detailed declaration from Mr. Robinson attesting to the facts that he did not use Plaintiff’s

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alleged trade secrets or transmit them to anyone else. Google also conducted an intensive

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investigation which verified Defendants’ independent development and the absence of any

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transmission from Mr. Robinson to any of the relevant developers.

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disclosed all or most of its alleged trade secrets in an April 2011 YouTube video presentation, a

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month before it met Mr. Robinson in London.

Meanwhile, Plaintiff

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Given these facts, Plaintiff has struggled to come up with any viable claims. Plaintiff (1)

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amended its original complaint to remove a doctored graphic after Defendants pointed out that

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the graphic could not have existed when Plaintiff claimed to have disclosed it to Mr. Robinson;

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(2) amended its First Amended Complaint to remove (a) factual allegations that it could not

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possibly support, (b) all claims against Mr. Robinson, and (c) a trade dress claim that Defendants

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had moved to dismiss as a matter of law; and (3) now must amend, if it can in good faith, to re-

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Attached as Exhibits A and B are (1) the timeline showing Google’s first-in-time
development, and (2) screen shots showing the significant differences between the Hangouts and
CamUp user interfaces, that Google submitted with the joint case management conference
statement on October 3, 2013.
DEFENDANTS’ CONDITIONAL NONOPPOSITION TO MOTION FOR EXTENSION
CASE NO.: 5:12-CV-03373-LHK

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allege previously-removed fact allegations necessary to state claims for trade secret

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misappropriation and for breach of terms of service.

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Each time Plaintiff has hired replacement counsel, Defendants have spent more time and

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more money repeating the same facts that conclusively rebut Plaintiff’s claims. Each time,

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replacement counsel has withdrawn after a few months. With Plaintiff’s latest counsel now

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withdrawing, Defendants seek finality so that the case does not languish should Plaintiff be

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unable to find another law firm willing to pursue this baseless case.

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Accordingly, Defendants request an order that – to the extent Plaintiff is granted the

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extension it requests but nonetheless fails to file a Third Amended Complaint by the extended

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deadline (December 2, 2013) – Plaintiff be required to show cause within 14 days thereafter why

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the case should not be dismissed with prejudice in its entirety.2
CONCLUSION

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For all of these reasons, Defendants respectfully request an order that if Plaintiff’s

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successor counsel does not file a Third Amended Complaint by December 2, 2013, Plaintiff must

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show cause within 14 days as to why this action should not be dismissed with prejudice in its

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entirety.

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Dated: October 24, 2013

WILSON SONSINI GOODRICH & ROSATI
By: /s/ Colleen Bal
Colleen Bal

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Attorneys for Defendants
Google Inc., YouTube, LLC, and Google UK Ltd.

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In its October 9, 2013 order granting Defendants’ motion to dismiss, the Court ordered that
Plaintiff’s failure to “cure deficiencies” with respect to the two causes of action for which it was
granted leave to amend (trade secret misappropriation and breach of terms of service) “will result
in the dismissal of these claims with prejudice.” See Oct. 9, 2013 Order (Docket No. 80) at 9.
The only claim that would remain to be the subject of the order to show cause would be the
copyright infringement claim, which is entirely premised on the false copying allegations
discussed above.
DEFENDANTS’ CONDITIONAL NONOPPOSITION TO MOTION FOR EXTENSION
CASE NO.: 5:12-CV-03373-LHK

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