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

Filing 104

Attachment 4
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 Att. 4 Case 5:03-cv-05340-JF Document 104-5 Filed 06/08/2006 Page 1 of 5 EXHIBIT D Dockets.Justia.com " Case 5:03-cv-05340-JF c Document 104-5 LAW OFFICES Filed 06/08/2006 Page 2 of 5 KEKER & VAN NEST LLP 710 SANSOME STREET SAN FRANCISCO,CA 94111-1704 TELEPHONE (415) 391-5400 FAX (415) 397-7188 WWW.KVN.COM AJAY S. KRISHNAN AKRISHNANlSKVN.COM March 16, 2006 VIA FACSIMILE David A. Rammelt, Esq. Kelley Drye & Waren LLP 333 West Wacker Drive Chicago, IL 60606 Re: Google Inc. v. American Blind & Wallpaper Factory, Inc. Dear David: I am writing to follow up on a set of financial documents that Google requested from American Blind & Wallpaper Factory, Inc. ("ABWF") and that were never produced. Requests 9-12 of Google's First Set of Requests for Production of Documents and Things cover financial documents demonstrating monthly gross revenues, profits, and losses for ABWF's trademarked products and products sold through ABWF's websites. ABWF agreed to produce only annual audited financial statements from 1997 to 2004, which do not contain monthly sales information, and do not contain any breakdown of sales data by product. Production of merely these annual audited financial statements in response to Requests 9-12 does not satisfy ABWF's discovery obligations. 1. Relevance of Requests 9-12 The documents described in Requests 9-12 are clearly relevant to this case. For instance, ABWF alleges, "Absent Defendants' intentional and improper interference through their deceptive and manipulated search engine 'results,' it is reasonably certain that American Blind would realize additional sales from existing customers and/or new customers." ,Defendant American Blind & Wallpaper Factory~ Inc.'s Answer, Affirmative Defenses, Counterclaims, and Third-Pary Claims, ~ 122. In order to evaluate this allegation and others like it, Google is including sales attributable entitled to detailed documentation of ABWF sales figures over time, to ABWF's websites. Additionally, Google wil require documents covered by Requests 9-12 for the purpose of establishing that ABWF was actually sellng products and services under ABWF's claimed trademarks and through ABWF's claimed domain names, dating back to the time of ABWF's first claimed use of these trademarks and domain names. 369259.02 Case 5:03-cv-05340-JF David A. Ramelt, Esq. Document 104-5 Filed 06/08/2006 Page 3 of 5 March 16, 2006 Page 2 2. ABWF's Undue Burden Objection ABWF's primary objection to producing these documents is that doing so would be justify producing no documents that permit analysis of ABWF's sales. As mentioned above, information about ABWF's sales is central to one ABWF's allegations, and Google is entitled to documents about this information. ABWF must therefore produce a comprehensive set of documents that permits a complete analysis of ABWF's allegation oflost sales. unduly burdensome. That objection, however, does not 3. ABWF's Claimed Inabilty to Distinguish Between Website and Telephone Sales Another improper objection raised by ABWF, in response to Requests 10 and 12, is ABWF's claimed difficulty of distinguishing between website and telephone sales. ABWF claims that it canot distinguish between such sales because some ABWF customers may be inspired by ABWF's website to execute a telephonic order. what root cause inspired the customer to initiate a purchase, Requests First, regardless of 10 & 12 address sales "through" ABWF's website. To be clear, Requests 10 & 12 address only sales that were executed over ABWF's websites. Second, documents demonstrating ABWF's telephonic sales data should be produced anyway in response to Requests 9& 11. As Requests 9 & 11 cover sales data for any products and services "sold under the American Blind Marks," and ABWF has taken the position that "virtually all, if not all, of the products and services sold by American Blind are sold under the American Blind Marks," Requests 9 & 11 necessarily cover all of ABWF's sales data, whether the sale was executed via the internet, telephone, or otherwise. 4. Timeframe A final issue is the timeframe of Requests 9-12. In response to Requests 9-12, ABWF refused to produce documentation of sales prior to 1997. For purposes of evaluating ABWF's allegation of lost sales, documentation of sales for 1997 and later years will suffice. This wil include information from January 1,2005 to the present. Notably, the anual audited financial statements that ABWF produced to date do not cover the time period after December 31, 2004. Google wil also require pre-1997 documents, covered by Requests 9-12, for the purpose of establishing that ABWF was actually sellng products and services under ABWF's claimed trademarks and through ABWF's claimed domain names dating back to the these trademarks and domain names. Google wil therefore time of ABWF's first claimed use of that are suffcient for performing a complete analysis of require some documents prior to 1997 the volume of sales (as indicated by gross revenues, profits and losses) under those trademarks and through those domain names. Because the documentation needed for analyzing ABWF's needed for analyzing alleged lost sales, I volume of sales wil be less voluminOus than that expect that the burden on AB WF to produce pre-1997 documents in response to Requests 9-12 However, wil not be paricularly heavy. 369259.02 Case 5:03-cv-05340-JF (. Document 104-5 Filed 06/08/2006 I Page 4 of 5 David A. Ramelt, Esq. March 16, 2006 Page 3 5. Summary of Documents Responsive to Requests 9-12 records ABWF maintains, and ABWF's responses have not explained how or why compliance with Requests 9-12 would be burdensome. Nonetheless, in the interest of advancing this process, the following is a non-exhaustive summary of documents ABWF should produce in response to Requests 9-12 in order to comply with its discovery obligations: Google is not in a position to know what sorts of ); In order to evaluate ABWF's claim oflost sales, for each product for which ABWF claims lost sales, documents from Januar i, 1997 until the present that demonstrate: the monthly volume of sales (i.e., number of units sold); . price per unit (including information about discounts, sales, and price changes); . gross revenues; . profits and/or losses; and . for each transaction, all information collected that relates to whether and how the sale was attributable to an ABWF trademark or domain name, including but not limited to: . The medium ofthe transaction (i.e., by website (and if so, which one), telephone, in-store purchase, etc.); and . All information conveyed by the customer indicating the reason for the purchase; and ); In order to evaluate ABWF's claim that it was sellng goods under its claimed trademarks and through its claimed domain names from the date of the first use of those trademarks and domain names: . For each claimed trademark, documents dating back to the first use of the trademark: . Demonstrating which products were sold under the trademark; and . Demonstrating the monthly volume of sales (i.e., through number of units sold, gross revenues, and profits and/or losses) of those products the sold under the trademark; and . For each claimed domain name, documents dating back to the first use of domain name: 369259.02 Case 5:03-cv-05340-JF David A. Ramelt, Esq. March 16, 2006 Page 4 Document 104-5 Filed 06/08/2006 Page 5 of 5 . Demonstrating which products were sold through the domain name; and . Demonstrating the monthly volume of sales (i.e., through number of units sold, gross revenues, and profits and/or losses) of those products sold through the domain name. Please let me know as soon as possible whether ABWF intends to produce the documents described in this letter. Than you for your prompt attention to this matter. Please do not hesitate to contact me if you have any questions. _ ~mC~l::t; cc: Caroline C. Plater, Esq. - J:Krshan r iJ 369259.02

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