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

Filing 110

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

Doc. 110

Case 5:03-cv-05340-JF

Document 110

Filed 06/09/2006

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KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606

Robert N. Phillips (SBN 120970) Ethan B. Andelman (SBN 209101) HOWREY SIMON ARNOLD & WHITE, LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] David A. Rammelt (Admitted Pro Hac Vice) Susan J. Greenspon (Admitted Pro Hac Vice) Dawn M. Beery (Admitted Pro Hac Vice) KELLEY DRYE & WARREN LLP 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant/Counter-Plaintiff AMERICAN BLIND AND WALLPAPER FACTORY, 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. Date: June 23, 2006 Time: 9:00 a.m. Courtroom: 3 Hon. Jeremy Fogel Case No. C 03-5340-JF (EAI) DECLARATION OF CAROLINE C. PLATER IN SUPPORT OF AMERICAN BLIND & WALLPAPER, INC.'S MOTION TO AMEND AND EXTEND CASE MANAGEMENT ORDER DATES

CH01/PLATC/210092.1

Dockets.Justia.com

Case 5:03-cv-05340-JF

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KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606

I, Caroline C. Plater, declare as follows: 1. I am an attorney at Kelley Drye & Warren LLP, counsel of record for

Defendant/Counter-Plaintiff American Blind & Wallpaper Factory, Inc. ("American Blind") in the above-captioned action. I am a member in good standing of the State Bar of Illinois. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. Description of the Motion to Amend and Extend the Case Management Order Dates 2. Defendant/Counter-Plaintiff American Blind's Motion to Amend and Extend Case

Management Order Dates filed herewith seeks to extend all dates in the case management order by 90 days. 3. As set forth in the Motion to Amend and Extend Case Management Order Dates,

both parties require additional time to complete their discovery of the opposing party and to fulfill their discovery obligations to the opposing party. Without the additional time requested, neither party will be able to properly prepare and defend their positions in this matter and, thus, will be prejudiced. 4. American Blind was unable to bring this motion at an earlier date due to the timing

of the change in management at the company and Google's recent refusal to agree to any joint submissions regarding an extension of the case management order. Basis for the Motion to Amend and Extend Case Management Order Dates 5. In the midst of completing fact discovery in this matter, negotiations were taking

place between the then current management of American Blind and its then current Board of Directors and shareholders with respect to the potential sale of the company. The then current management of American Blind was unable to respond to the supplemental interrogatories and document production requests and did not have the time necessary to prepare for and attend depositions due to the company's focus on these negotiations. On May 18, 2006, the company's ownership was sold and American Blind unexpectedly underwent a change in the management of the company. 6. As a result of the transition in management and ownership, American Blind was -2-

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KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606

unable respond to Google's discovery requests in the time frame originally anticipated, the deposition of American Blind's corporate representative was canceled, due to the subsequent resignation of American Blind's corporate designee and no new corporate designee has yet to be appointed by the company. 7. Counsel for American Blind has apprised counsel for Google of these

developments and has requested that Google agree to an extension of the discovery and subsequent deadlines, but Google has refused to agree to such a voluntary extension, despite the fact that much of the delay prior to April 18, 2006, was caused by Google. (See June 6, 2006 correspondence from Caroline C. Plater to Klaus Hamm and Ajay Krishnan, attached hereto as Exhibit B). 8. Google did not properly respond to American Blind's First Request for Documents

until March 10, 2006 because it was compelled to do so by the Court by order dated February 8, 2006. The documents produced in association with the motion to compel were only a fraction of Google's document production. Following its original production, Google produced approximately 28,000 pages of additional documents to American Blind ­ often timed so that it was impossible for American Blind to review Google's entire production prior to the depositions of Google representatives. Google also produced an unprepared Fed. R. Civ. P. 30(b)(6) witness, Alana Karen, and then refused to produce her a second time for a re-deposition on the topics she was unprepared to testify to during her first deposition.1 The need for a second deposition of Ms. Karen is the direct result of Google's dilatory behavior in the discovery process. 9. Google produced a second Fed. R. Civ. P. 30(b)(6) designee, Prashant Fuloria, but

there was not enough time to complete Mr. Fuloria's deposition because Mr. Fuloria was two hours late. Counsel for American Blind and Google agreed at the conclusion of Mr. Fuloria's deposition that he would be produced again to complete his Fed. R. Civ. R. 30(b)(6) testimony. Mr. Fuloria's deposition was also separately and individually noticed on April 14, 2006. Google has provided no dates for the continuation of Mr. Fuloria's Fed. R. Civ. P. 30(b)(6) deposition or
1

American Blind will be separately filing a Motion to Compel the further deposition of Alana Karen for failure to comply with Fed. R. Civ. P. 30 (b)(6). -3-

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for his individually noticed deposition. In addition, although the parties had previously selected June 13, 2006 for the deposition of Rose Hagan, as a result of the recent changes at American Blind and the cancellation of Mr. Katzman's deposition for June 6, 2006, it was agreed that Ms. Hagan's deposition would also be canceled. No new date has been provided by Google for Ms. Hagan's deposition and counsel for Google, Michael Page, stated on June 7, 2006, to counsel for American Blind that it will not produce any more of its witnesses until Google has taken the depositions of American Blind's witnesses. 10. Google has also not provided the names or dates for the designees who will

address the remainder of the Fed. R. Civ. P. 30(b)(6) topics from American Blind's Notice. 11. Both Google and American Blind share responsibility for the delays in completing

discovery and require additional time to properly prepare and defend their positions in this matter. Both parties will be prejudiced if the current schedule is not extended. I declare under penalty of perjury that the foregoing is true and correct. Executed June 9, 2006, at Chicago, Illinois. __/s/ Caroline C. Plater___________ CAROLINE C. PLATER

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