Google Inc. v. American Blind & Wallpaper Factory, Inc.

Filing 104

Declaration in Support of 102 MOTION to Compel ABWF to (1) Produce Documents, (2) Produce an Affidavit, and (3) Schedule Depositions filed byGoogle Inc., Google Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N)(Related document(s)102) (Krishnan, Ajay) (Filed on 6/8/2006)

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 104 Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KEKER & VAN NEST, LLP MICHAEL H. PAGE - #154913 MARK A. LEMLEY - #155830 KLAUS H. HAMM - #224905 AJAY S. KRISHNAN - #222476 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Plaintiff and Counter Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GOOGLE INC., a Delaware corporation, Plaintiff, v. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., and DOES 1100, inclusive, Defendants. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., Counter Plaintiff, v. GOOGLE INC., Counter Defendant. Case No. C 03-5340-JF (EAI) DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS Date: TBD Time: TBD Courtroom: 4 Judge: Hon. Richard Seeborg 374554.01 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) Dockets.Justia.com Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Ajay S. Krishnan, declare as follows: 1. I am an attorney duly licensed to practice before this Court and an associate at the law firm of Keker & Van Nest LLP in San Francisco. I represent Plaintiff Google Inc. in the above-captioned litigation. Unless otherwise specified, I have knowledge of the facts set forth herein, and if called to testify as a witness thereto, could do so competently under oath. List of Attached Exhibits 2. Attached hereto as EXHIBIT A is a true and correct copy of Google Inc.'s First Set of Requests for Production of Documents and Things from American Blind & Wallpaper Factory, Inc. (the "Document Requests"). It is dated May 21, 2004. 3. Attached hereto as EXHIBIT B is a true and correct copy of American Blind & Wallpaper Factory, Inc.'s Responses to Google, Inc.'s First Set of Requests for Production of Documents and Things. It is dated June 10, 2005. 4. Attached hereto as EXHIBIT C is a true and correct copy of the cover page of American Blind & Wallpaper Factory, Inc.'s ("ABWF") October 26, 2005 production of documents in response to the Document Requests. 5. Attached hereto as EXHIBIT D is a true and correct copy of Google's March 16, 2006 letter to ABWF regarding document production. The letter was from Ajay Krishnan, counsel for Google, to David Rammelt, counsel for ABWF. 6. Attached hereto as EXHIBIT E is a true and correct copy of Google's March 28, 2006 letter to ABWF regarding document production. The letter was from Ajay Krishnan, counsel for Google, to David Rammelt, counsel for ABWF. 7. Attached hereto as EXHIBIT F is a true and correct copy of ABWF's April 10, 2006 letter to Google regarding document production. The letter was from Caroline Plater, counsel for ABWF, to Ajay Krishnan, counsel for Google. 8. Attached hereto as EXHIBIT G is a true and correct copy of e-mail correspondence between Google and ABWF from April 13, 2006 to April 18, 2006 regarding document production. The correspondents are Ajay Krishnan, counsel for Google, and Caroline 1 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) 374554.01 Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plater, counsel for ABWF. 9. Attached hereto as EXHIBIT H is a true and correct copy of the cover page of ABWF's April 21, 2006 supplemental production of documents in response to the Document Requests. 10. Attached hereto as EXHIBIT I is a true and correct copy of Google's May 12, 2006 letter to ABWF regarding document production. The letter was from Ajay Krishnan, counsel for Google, to Caroline Plater, counsel for ABWF. 11. Attached hereto as EXHIBIT J is a true and correct copy of ABWF's June 6, 2006 letter to Google regarding document production and depositions. The letter was from Caroline Plater, counsel for ABWF, to Klaus Hamm and Ajay Krishnan, both of whom are counsel for Google. 12. Attached hereto as EXHIBIT K is a true and correct copy of a cover letter from Google and an enclosure, Google's Notice of 30(b)(6) Deposition of American Blind & Wallpaper Factory, Inc. The deposition notice and the letter are dated February 15, 2006. The letter is from Ajay Krishnan, counsel for Google, to three attorneys who serve as counsel for ABWF. 13. Attached hereto as EXHIBIT L is a true and correct copy of e-mail correspondence between Google and ABWF from March 29, 2006 to March 30, 2006 regarding document production and scheduling depositions. The correspondents are Ajay Krishnan, counsel for Google, and Caroline Plater, counsel for ABWF. 14. Attached hereto as EXHIBIT M is a true and correct copy of a cover letter from Google and four enclosures, which are deposition notices for Joe Charno, Bill Smith, Jeff Alderman, and Scot Powers. The deposition notices and the letter are dated May 19, 2006. The letter is from Klaus Hamm, counsel for Google, to David Rammelt, counsel for ABWF. 15. Attached hereto as EXHIBIT N is a true and correct copy of a cover letter from Google and an enclosure, a deposition subpoena for Steve Katzman. The deposition notice and the letter are dated June 1, 2006. The letter is from Klaus Hamm, counsel for Google, to David 2 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) 374554.01 Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rammelt, counsel for ABWF. Facts Related to the Document Requests 16. The Document Requests, attached hereto as Exhibit A, are dated May 21, 2004. On information and belief, discovery was then stayed for roughly one year, pending briefing and a ruling on Google's motion to dismiss. ABWF's responses to the Document Requests are dated June 10, 2005. ABWF's production consists of one box of documents. The cover letter accompanying the production is dated October 26, 2005. 17. On March 16, 2006, Google sent a letter to ABWF demanding certain financial documents covered by Document Requests 9-12, to which ABWF had objected earlier. ABWF did not respond to this letter. 18. On March 28, 2006, Google sent ABWF a letter containing six clearly-labeled issues, one of which was ABWF's failure to respond to Google's March 16th letter. Although Google requested a response by April 3, 2006, ABWF requested a one-week extension, and Google granted it. On April 10, 2006, ABWF responded to Google's March 28th letter. 19. On April 21, 2006, ABWF mailed Google a supplemental document production, consisting of roughly 140 pages of documents. 20. On May 12, 2006, Google sent ABWF a letter containing eleven clearly-labeled issues pertaining to the Document Requests. Google requested that ABWF respond by May 18, 2006. ABWF asked for three extensions. First, ABWF attorney Caroline Plater requested an extension until May 22, 2006. On information and belief, on the afternoon of May 22, 2006, ABWF attorney David Rammelt called Google attorney Michael Page to request an extension of a few days, because of a change in management at ABWF. ABWF did not contact Google in a few days; as such Google threatened to file this motion. On information and belief, on June 1, 2006, ABWF attorney Susan Greenspon called Page to ask for an extension until June 5, 2006. ABWF finally responded to Google's May 12th letter on June 6, 2006. 21. ABWF's April 21st supplemental document production contains monthly internal financial statements from 1997 to 2005. I have reviewed these financial statements. They are 3 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) 374554.01 Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 designated "Confidential" and "Attorney's Eyes Only," pursuant to the protective order in this case. Each statement contains monthly financial figures. There is a single line item in these statements for "Advertising." Thus, the statements appear to indicate a monthly dollar value spent on advertising by ABWF. This single figure for each month, labeled "Advertising," is all of the information contained in ABWF's April 21st supplemental production concerning advertising expenditures. Facts Related to the Depositions that Google Noticed 22. On February 15, 2006, Google noticed a Federal Rule of Civil Procedure 30(b)(6) deposition of ABWF for March 15, 2006. ABWF represented that its Rule 30(b)(6) designee, Steve Katzman, was unavailable on March 15, and asked Google to suggest alternative dates. After Google suggested several other dates, ABWF agreed to make Mr. Katzman available on April 20. 23. As a result of ABWF's failure to produce documents in a timely fashion, ABWF forced Google to reschedule the 30(b)(6) deposition of ABWF for May 11, 2006. This agreement is memorialized in Exhibit L. 24. Just ten days before it was set to take place, ABWF cancelled the May 11th deposition. ABWF explained that its lead counsel, Mr. Rammelt, had to attend a hearing in a foreign court on May 11. ABWF proposed rescheduling the deposition for June 6, and even though Google had requested an earlier date, Google accepted. 25. On May 22, ABWF cancelled the June 6th deposition. ABWF explained that it had just undergone a change in management, and as such, Mr. Katzman would no longer be its 30(b)(6) designee. On information and belief, Google has pressed ABWF numerous times since May 22 to designate a new 30(b)(6) deponent and to offer deposition dates. ABWF's current position is that due to the management change, it does not know when it will be able to designate a 30(b)(6) deponent. 26. On information and belief, on May 19, 2006, Google attorney Klaus Hamm issued deposition notices for four individuals listed in ABWF's initial disclosures: Joe Charno, 4 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) 374554.01 Case 5:03-cv-05340-JF Document 104 Filed 06/08/2006 Page 6 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bill Smith, Jeff Alderman, and Scot Powers, along with a letter offering to schedule the depositions at a convenient time. The letter requested ABWF to accept service for Mr. Charno, even though Mr. Charno no longer worked at ABWF. ABWF has since stated that it will represent him for this litigation. Additionally, because ABWF counsel informed Google counsel that Steve Katzman no longer worked at ABWF, Google served a copy on ABWF and a copy on Mr. Katzman personally. 27. On information and belief, ABWF has repeatedly stated that it will get back to Google about scheduling depositions, but it still has not done so. On June 8, 2006, ABWF attorney Mr. Rammelt repeated this position in a letter addressed to me. Thus, ABWF has not informed Google when Messrs. Charno, Smith, Alderman, or Powers will be available for depositions. Nor has ABWF stated whether or not it will represent Mr. Katzman. Google's Document Production and Deponents 28. The Bates numbers from ABWF's two document productions indicate that ABWF has produced roughly 3000 documents in response to the Document Requests. These documents all fit within in a single banker's box. 29. I have reviewed a report produced by a paralegal from my office concerning the dates and bates numbers of documents produced during the course of this litigation. This report reveals that on October 26, 2005, Google had produced more than 100,000 pages of documents, and that Google has produced, to date, roughly 137,000 documents. Google has produced documents on at least seven occasions. Over the last several months, Google has continued the process of searching for responsive documents without prompting from ABWF and producing those documents. 30. On information and belief, ABWF took the depositions of Google designees Alana Karen and Prashant Fuloria on April 12, 2006 and May 18, 2006, respectively. I declare under penalty of perjury that the foregoing is true and correct. Executed June 8, 2006, at San Francisco, California. ________/s/ Ajay S. Krishnan_____________ AJAY S. KRISHNAN 5 DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE INC.'S MOTION TO COMPEL COUNTERPLAINTIFF ABWF TO (1) PRODUCE DOCUMENTS, (2) PRODUCE AN AFFIDAVIT DETAILING ABWF'S DOCUMENT COLLECTION EFFORTS, AND (3) SCHEDULE DEPOSITIONS CASE NO. C 03-5340-JF (EAI) 374554.01

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