Black et al v. Google Inc.

Filing 21

Declaration of Bart E. Volkmer in Support of 20 Reply Memorandum filed byGoogle Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 20 ) (Volkmer, Bart) (Filed on 7/29/2010) Modified on 7/30/2010 (cp, COURT STAFF).

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DAVID H. KRAMER, State Bar No. 168452 BART E. VOLKMER, State Bar No. 223732 JACOB T. VELTMAN, State Bar No. 247597 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION GARY BLACK, et al., Plaintiffs, v. GOOGLE INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-02381 CW DECLARATION OF BART E. VOLKMER IN SUPPORT OF DEFENDANT GOOGLE INC.'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS' COMPLAINT Hearing Date: August 12, 2010 Hearing Time: 2:00 p.m. Courtroom: 2 (Hon. Claudia Wilken)

VOLKMER DECL. ISO DEF. GOOGLE INC.'S REPLY ISO MOT. TO DISMISS CASE NO. C 10-02381 CW

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I, Bart E. Volkmer, declare as follows: 1. I am an attorney duly licensed to practice before this Court, and an

attorney at the law firm of Wilson, Sonsini, Goodrich & Rosati, counsel for defendant Google Inc. ("Google"). I am over the age of eighteen and competent to make this declaration. I make each of the following statements based on my personal knowledge, and I could, if necessary, testify to the truth of each of them. 2. On June 15, 2010, I called plaintiff Gary Black to introduce myself as

Google's outside counsel in this matter. I explained that 47 U.S.C. § 230(c) bars his claims and requested that he dismiss his case against Google. Mr. Black declined. Based on my schedule, I then asked for a short extension of time for Google to respond to the Complaint from June 22, 2010 to July 2, 2010. Mr. Black agreed to this request. We did not discuss in any manner that Google's response would be limited to an answer. And I never would have agreed to an extension that limited Google's substantive ability to respond to the complaint. On June 15, 2010, I sent Mr. Black a letter memorializing our agreement that Google had until July 2, 2010 "to answer, plead, move or otherwise respond to the complaint." A true and correct copy of that letter is attached hereto as Exhibit A. Plaintiffs never indicated to me a belief that my confirming letter was in any way inaccurate. 3. On June 22, 2010, I sent Mr. Black a draft stipulation that

memorialized the parties' agreement that Google had until July 2, 2010 "answer, move, or otherwise respond to the Complaint" and requested his consent to its filing. A true and correct copy of that message is attached hereto as Exhibit B. I sent Mr. Black a follow-up email on June 23, 2010, again asking for his consent to the filing of the stipulation. A true and correct copy of that message is attached hereto as Exhibit C. 4. On June 25, 2010, Mr. Black responded to my email messages by

stating that he had been on vacation and that "[i]t looks like you've gotten the stipulation properly filed." A true and correct copy of that message is attached
VOLKMER DECL. ISO DEF. GOOGLE INC.'S REPLY ISO MOT. TO DISMISS CASE NO. C 10-02381 CW

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hereto as Exhibit D. Mr. Black did not indicate to me that he had any disagreement with the form of the stipulation and I inferred from his statement that he had none. 5. On July 1, 2010, I called Mr. Black to secure his agreement regarding

the hearing date on Google's planned motion to dismiss. During that conversation, I informed Mr. Black that Google intended to file the draft stipulation and he told me that plaintiffs consented to its filing. 6. On July 2, 2010, Google filed the joint stipulation extending "Google's

deadline to answer, move, or otherwise respond to the Complaint" to July 2, 2010. Plaintiffs never indicated to me a belief that the stipulation was in any way inaccurate. 7. On July 19, 2010, plaintiffs claimed for the first time in a Court

submission entitled "Plaintiff's Brief" that their agreement to extend Google's time to respond to the Complaint was conditioned on Google answering the Complaint. Plaintiffs are mistaken. The parties never discussed any limitation on the form of Google's response to the Complaint, and Google would not have agreed to an extension of time that was conditioned on it giving up the substantive right to attack the sufficiency of the Complaint. If Mr. Black had made such a demand, Google would have sought relief from the Court or would have withdrawn its extension request. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct to the best of my knowledge. Executed on July 29, 2010 at Palo Alto, California. WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ Bart E. Volkmer Bart E. Volkmer Attorneys for Defendant Google Inc.

VOLKMER DECL. ISO DEF. GOOGLE INC.'S REPLY ISO MOT. TO DISMISS CASE NO. C 10-02381 CW

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