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

Filing 188

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

Doc. 188

Case 5:03-cv-05340-JF

Document 188

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 AJAY S. KRISHNAN 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

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DECLARATION OF AJAY S. KRISHNAN 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

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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 Google Inc.'s

Second Set of Requests for Production of Documents and Things from American Blind & Wallpaper Factory, Inc. (the "Document Requests"). It is dated May 10, 2006. 5. Attached hereto as EXHIBIT D is a true and correct copy of American Blind &

Wallpaper Factory, Inc.'s Responses to Google Inc.'s Second Set of Requests for Production of Documents and Things. It is dated June 19, 2006. 6. Attached hereto as EXHIBIT E is a true and correct copy of Google Inc.'s First

Set of Requests for Admission to American Blind & Wallpaper Factory. It is dated January 26, 2006. 7. Attached hereto as EXHIBIT F is a true and correct copy of American Blind &

Wallpaper Factory, Inc.'s Response to Plaintiff Google Inc.'s First Set of Requests for Admission. It is dated February 27, 2006. 8. Attached hereto as EXHIBIT G is a true and correct copy of Google Inc.'s

Second Set of Interrogatories to American Blind & Wallpaper Factory, Inc. It is dated May 10. 2006. 1
DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS
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9.

Attached hereto as EXHIBIT H is a true and correct copy of American Blind &

Wallpaper Factory, Inc.'s Answer to Google Inc.'s Second Set of Interrogatories. It is dated June 19, 2006. 10. Attached hereto as EXHIBIT I is a true and correct copy of the Amended Notice

of 30(b)(6) Deposition of American Blind and Wallpaper Factory, Inc. It is dated July 12, 2006. 11. Attached hereto as EXHIBIT J is a true and correct copy of documents Bates

labeled ABWF48851 ­ ABWF48860, ABWF48864 - ABWF48873, and ABWF48988 ­ ABWF48997. Google Inc. has under separate cover requested that these documents be filed under seal. 12. Attached hereto as EXHIBIT K is a true and correct copy of pages from the

deposition transcript of Jeffrey A. Alderman, taken on August 4, 2006. 13. Attached hereto as EXHIBIT L is a true and correct copy of documents Bates

labeled ABWF005530 ­ ABWF005534, and ABWF005605 - ABWF005609. Google Inc. has under separate cover requested that these documents be filed under seal. 14. Attached hereto as EXHIBIT M is a true and correct copy of pages from the

deposition transcript of Gerald B. Curran, taken on August 3, 2006. 15. Attached hereto as EXHIBIT N is a true and correct copy of a document a

document Bates labeled ABWF 047376 ­ ABWF 047377. Google Inc. has under separate cover requested that this document be filed under seal. 16. Attached hereto as EXHIBIT O is a true and correct copy of a letter from

Caroline Plater to myself, dated August 14, 2006, and attached documents Bates labeled ABWF 049364 ­ ABWF 049369. Google Inc. has under separate cover requested that these documents be filed under seal. 17. Attached hereto as EXHIBIT P is a true and correct copy of a document labeled

ABWF 001308 ­ ABWF 001310. 18. Attached hereto as EXHIBIT Q is a true and correct copy of document

production enclosure letters from Dawn Beery and Caroline Plater to Klaus Hamm and myself, 2
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with dates ranging from October 26, 2005 ­ September 6, 2006. 19. Attached hereto as EXHIBIT R is a true and correct copy of a document Bates

labeled ABWF 046106 ­ ABWF 046114. Google Inc. has under separate cover requested that this document be filed under seal. 20. Attached hereto as EXHIBIT S is a true and correct copy of a document Bates

labeled ABWF 043139 ­ ABWF 043140. Google Inc. has under separate cover requested that this document be filed under seal. Facts Related to the Online Customer Satisfaction Survey 21. On August 1, 2006, ABWF produced documents that it described, in the cover

letter accompanying the production, as "an online customer survey conducted by American Blind regarding customer satisfaction with the products and services of American Blind" (the "Online Customer Satisfaction Survey"). The Online Customer Satisfaction Survey actually consists of three documents: a 13-page file entitled "survey data comments 2001.txt" (Bates Range ABWF 48851 - 48863), a 125-page file entitled "product surveys.txt" (Bates Range ABWF 48864 ­ 48987), and a 247-page file entitled "customer surveys.txt" (Bates Range ABWF 48988 ­ 49232). 22. On August 2, 2006, I wrote a letter to Caroline Plater, counsel for ABWF, asking

for more readable versions of the Online Customer Satisfaction Survey, and all documents associated with the survey, including the survey results, analysis, questions, and methodology. On August 3, 2006, Ms. Plater conceded that the survey documents were "difficult to read," and stated that if better versions of the survey exist or if any of the associated documents were found, ABWF would produce them. On August 14, Ms. Plater represented in a letter that more readable versions of the survey did not exist, and that there were no documents associated with the survey. 23. Ms. Plater confirmed this position in a September 5, 2006 letter.

Facts Related to the Improperly Printed Spreadsheets 24. On July 21, 2006, I wrote Ms. Plater a letter in which I requested copies of

ABWF 5530 ­ 5534 and ABWF 5605 ­ 7802 in a readable format such that all of the 3
DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS

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information in the individual cells was readable. Ms. Plater responded in a letter on July 26, 2006, "I suggest you review the manner in which Google produced its spreadsheets and charts before you demand that we provide our documents in special formats." She then listed several Bates ranges and noted, "These are just a sampling of the numerous charts that Google produced in the exact manner that American Blind produced the charts you refer to in your letter." After reviewing these charts, I explained to Ms. Plater, in a letter dated August 29, 2006, that Google's charts did not appear to be deficient, and repeated my request for more readable versions of the two sets of documents. In a letter dated September 5, 2006, Ms. Plater announced, "unless and until Google agrees to reproduce all of its spreadsheets in electronic or more readable form, we will not be doing the same." In a letter dated September 6, 2006, I repeated my request for complete versions of the spreadsheets, and I stated, "If there are specific charts that we have produced that likewise appear to omit information or contain misaligned headings, we will of course attempt to provide you with the missing information." Facts Related to ABWF's Inadequately Prepared 30(b)(6) Witness 25. On June 22, 2006, Ms. Plater wrote a letter to Klaus Hamm, an attorney at my law

firm. In that letter Ms. Plater announced that Gerald Curran had been designated as ABWF's corporate representative with regard to Topic 19 of Google's 30(b)(6) Deposition Notice of ABWF. Facts Related to Google's First Set of Requests for Admissions 26. In a letter dated September 5, 2006, Ms. Plater cited the following cases in

support of the accompanying objections to Google's First Set of Requests for Admissions: Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1057 (S.D. Cal. 1999) (cited for the proposition that requests for admission cannot be used to compel an admission on a question of law); Abbott v. United States, 177 F.R.D. 92, 93 (N.D. N.Y. 1997) (cited for the proposition that hypothetical questions are not within the purview of Rule 36); California v. The Joules Fribourg, 19 F.R.D. 432, 436 (N.D. Cal. 1955) (cited for the proposition that requests for admission cannot be applied to controverted legal issues that lie at the heart of a case); Herrera v. Scully, 143 4
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F.R.D. 545, 549 (S.D.N.Y. 1992) (cited for the proposition that requests for admission must be direct, simple and limited to a singular relevant fact so that it can be admitted or denied without explanation). Ms. Plater did not re-assert ABWF's objection that it had no readily available information that would permit it to admit or deny the request. Facts Related to Google's Interrogatory Concerning ABWF's Names for Itself 27. With regard to Interrogatory No. 1 in Google's Second Set of Interrogatories, on

August 29, 2006, I wrote a letter to Ms. Plater asking her, inter alia, to specify the dates that ABWF had used the names "American Blind," "American Blind and Wallpaper Factory," "American Blinds, Wallpaper & More," and "decoratetoday.com." I explained that the 700 pages of documents to which ABWF's interrogatory response referred were not responsive to the interrogatory. In a responsive letter on September 5, 2007, Ms. Plater referred me, once more, to the 700 pages of documents. Facts Related to the Kaden Company Questionnaires 28. ABWF has produced reports in this litigation from the Kaden Company. Those

reports indicate that the Kaden Company conducted three focus groups on behalf of ABWF in the past several years. The reports offered to provide ABWF with the questionnaires that accompanied these focus groups. 29. In a letter dated July 21, 2006, I asked Ms. Plater to produce these questionnaires.

In a responsive letter on July 26, 2006, she refused to do so without legal authority showing that ABWF was obligated to produce documents in the possession of third parties. I provided her that legal authority in a letter on August 29, 2006. In a September 5, 2007 letter, Ms. Plater agreed to produce the Kaden information "if it still exists." Facts Related to the American Wallpaper Survey 30. ABWF has produced a document in this litigation showing that it conducted an

online survey of those individuals who visited ABWF's website after performing an internet search for the phrase "american wallpaper" (the "American Wallpaper Survey"). According to the document, which is attached as Exhibit N, individuals were asked why they visited ABWF's 5
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website. The survey appears to have been conducted by Michael Layne, ABWF's VicePresident of Internet Content. 31. At the time of Google's deposition of Mr. Layne (who was testifying on behalf of

ABWF), ABWF had only produced two sets of documents associated with the American Wallpaper Survey: (1) four CDs containing the raw data from the survey, which consisted of captured screenshots indicating how the survey participants navigated the online survey, which was placed on ABWF's website, and (2) an 8-line e-mail from May 2006--two years after the survey was conducted--in which Mr. Layne explained the survey results that were obtained in July 2004, using very specific numbers (i.e., Exhibit N). 32. In two letters on August 2, 2006, I requested that ABWF produce all documents

related to the American Wallpaper Survey, including any documents discussing the survey methodology or analyzing the results. I pointed out that there must at least have been a document from July 2004 describing the survey results, because Mr. Layne could not have possibly remembered the precise results of the survey two years after the fact. Ms. Plater responded on August 3, 2006, that she had produced all documents received from her client, but that she would check for further documents from Mr. Layne. 33. Roughly one week later, ABWF produced only one additional document--a July

2004 email to which Mr. Layne had referred when he drafted his May 2006 email (i.e., Exhibit O). This July 2004 email was sent to at least seven non-lawyers at ABWF. ABWF's position was, therefore, that it had no other documents related to the American Wallpaper Survey. Facts Related to ABWF 1308 ­ 1310 34. The top portion of a document produced by ABWF, ABWF 1308 ­ 1310, was

redacted on the basis of attorney-client privilege. On August 29, 2006, I wrote a letter to Ms. Plater asking why this portion of the document was redacted. Ms. Plater responded, "at this time, I can only speculate as to why ABWF 1308 was redacted because we have been unable to locate the original. We are continuing to look for it." Facts Related to the Form of ABWF's Production 6
DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF COUNTER-DEFENDANT GOOGLE INC.'S MOTION TO COMPEL COUNTER-PLAINTIFF ABWF TO SATISFY OUTSTANDING DISCOVERY OBLIGATIONS

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35.

On July 7, ABWF produced documents with Bates ranges ABWF 044473 ­ These 1500 pages are simply a compilation of loose-leaf papers

045522 and 046457 ­ 046870.

without any divisions, tabs, or indices.

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/ Ajay Krishnan AJAY S. KRISHNAN

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

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