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

Filing 187

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

Doc. 187

Case 5:03-cv-05340-JF

Document 187

Filed 09/07/2006

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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: [phone] Facsimile: [phone] 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 MICHAEL H. PAGE IN SUPPORT OF COUNTERDEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS Date: October 18, 2006 Time: 9:30 a.m. Courtroom: 4 Judge: Hon. Richard Seeborg

379998.01

DECLARATION OF MICHAEL H. PAGE IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS CASE NO. C 03-5340-JF (EAI) Dockets.Justia.com

Case 5:03-cv-05340-JF

Document 187

Filed 09/07/2006

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I, Michael H. Page, declare as follows: 1. I am an attorney duly licensed to practice before this Court and a partner 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. 2. Attached hereto as EXHIBIT A is a true and correct copy of pages 105 to 112 of

the deposition transcript of Jeffrey Alderman. 3. On August 4, 2006, I took the deposition of Jeffrey Alderman, the Director of

Business Development and E-Commerce of American Blind and Wallpaper Factory ("ABWF"). 4. The attached Exhibit A shows the following: Mr. Alderman testified about an

experiment ABWF conducted in roughly May and June of 2006. He testified that the experiment involved a 6-week prohibition on affiliate bidding on ABWF's branded keywords in search engine advertising. Mr. Alderman testified that the resulting decline in traffic to ABWF's website from its affiliates was lost to competitors, and not recouped by ABWF either through ABWF's own search engine advertising or through its natural search results. Specifically, Mr. Alderman testified that he had relied on an analysis of ABWF's natural search results to draw this conclusion. During the deposition, Paul Garrity, counsel for ABWF, stated that ABWF would produce the documents that Mr. Alderman relied on in drawing his conclusions about the 6-week affiliate bidding experiment (the "Alderman documents"). 5. I never heard back from Mr. Garrity about this issue. On August 14, 2006, I

wrote a letter to ABWF counsel David Rammelt to inquire about the Alderman documents. Mr. Rammelt did not respond to that letter. On August 28, I again raised the issue in a letter to Mr. Rammelt. In an August 30, 2006 letter, Mr. Rammelt referred me to a set of documents that ABWF had already produced. After reviewing these documents, it became clear that this could not have been the complete set of Alderman documents because the documents to which Mr. Rammelt referred me did not include any analysis of ABWF's natural search results. I conveyed this point to Mr. Rammelt in an August 31, 2006 letter. 1
DECLARATION OF MICHAEL H. PAGE IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS
CASE NO. C 03-5340-JF (EAI)

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Case 5:03-cv-05340-JF

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6.

On August 31, 2006, Mr. Rammelt sent me an email asking me to identify the

document requests to which the Alderman documents responded. That same day, I provided Mr. Rammelt with eight document requests that covered the Alderman documents. 7. On September 5, 2006, Caroline Plater, an attorney for ABWF, faxed a letter to

Keker & Van Nest, in which she stated that eleven pages of Alderman documents had not yet been produced. She did not explain why these eleven pages of Alderman documents had not been produced previously. On September 6, 2006, Ms. Plater faxed those eleven pages to Keker & Van Nest. In her cover letter, Ms. Plater stated that these eleven pages of documents were "Coremetrics reports" for the period of June 25, 2006 to July 1, 2006. I have reviewed those documents and am unclear as to how Mr. Alderman might have drawn the conclusions to which he testified based on those eleven pages of documents. Additionally, these newly produced documents do not appear to include any analysis of ABWF's natural search results.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 7th day of September, 2006, in San Francisco, California.

/s/ Michael Page MICHAEL H. PAGE

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DECLARATION OF MICHAEL H. PAGE IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS

379998.01

CASE NO. C 03-5340-JF (EAI)