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

Filing 243

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

Doc. 243 Att. 10

Case 5:03-cv-05340-JF

Document 243-11

Filed 12/26/2006

Page 1 of 9

EXHIBIT J

Dockets.Justia.com

Case 5:03-cv-05340-JF

Document 243-11

Filed 12/26/2006

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2 MA

KEKER & VAN NEST, LLP MICHAEL H. PAGE - #154913 A. LEMLEY - #155830 KLAUS H. HAMM - #224905

3AJAY S. KRSHNAN - #222476
710 Sansome Street
4 San Francisco, CA 94111-1704

Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Plaintiff and Counterdefendant

GOOGLE INC.
7
8 9 10
11

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

12 GOOGLE INC., a Delaware corporation,

13 Plaintiff,
14 Y. .
& WALLPAPER FACTORY, INC., a Delaware corporation
1100, inclusive,

Case No. C 03-5340:'JF (EAI)

15. AMERICAN BLIND

GOOGLE INC.'S SECOND SET OF REQUESTS FOR PRODUCTION OF . DOCUMENTS AN TIDNGS FROM AMERICAN BLIND & WALLPAPER FACTORY, me.

16 d//a decoratetoday.com, Inc.; and DOES

17

Defendant.
18

AMERICAN BLIND & W ALLP APER 19 FACTORY, INC., a Delaware corporation
d//a decoratetoday.com, Inc.

20
Counterclaimant,
21

v.

22

GOOGLE, INC.,

23
COlllterdefendants.
24

25 26 27

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372634.01

GOOGLE INC.'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMNTS AN THINGS CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

Document 243-11

Filed 12/26/2006

Page 3 of 9

1 PROPOUNDING

PARTY:

Plaintiff

GOOGLE INC.

2 RESPONDING PARTY:
3
SET

Defendant AMERICAN BLIND & WALLPAPER FACTORY, INC.
Two

NO.:

4
5 . Pursuant to Federal Rule of Civil Procedure 34, Plaitiff Google Inc. ("Google") requests

6 that Defendant American Blind & Wallpaper Factory, Inc. ("American Blind") produce for
7 inspection and copyig the documents and other tangible things described

below. The

8 documents shall be produced for inspection and copying at the offices öfKeker & Van Nest,

9 LLP, 710 Sansome Street, San Francisco, California 94111, or at such' other location as the

10 paries may mutually agree, withn thirt days of service of these requests.
11

DEFINITIONS
1.

12
13. predecessor

"AMERICAN BLIN" means American Blind, its subsidiaries, divisions,
and successor companies, affiliates, parents, any j

oint venture to which itmaybe..a

14 pary, and/or

each of its employees, agents, offcers, directors, representatives, consultants,

15 accountats and attorneys, inc1udingany person who served in any such capacity at any tie.
16

2.

"GOOGLE" means

Google, its subsidiaries, divisions, predecessor and successor

17 companes, afliates, parents, any joint venture to which it may be a pary, and/or each ofits

18 employees, agents, officers, directors, representatives, consultants, accountants and attorneys,

19 including any person who served in any such capacity at any time.
20
3.

The phrase "AMERICAN BLIND MARS" shall have the sae meaning it had

21 in AMERICAN BLIND's Answer in this lawsuit. See Anerican Blind & Wallpaper Factory,
22 Ineo's Answer, Affirmative Defenses, Counterclaims, and Third-Pary Claims, ~ 18. Specifically,
23 the phrase "AMERICAN BLIND MA" refers to the claied marks

American Blind,

24 American Blinds, American Blind & Wallpaper Factory, Anerican Blind Factory, and .
25 Decoratetoday.

26
27

4.

The phre "ST AND-ALONE MAR" refers to the use of an AMERICAN

BLIND MAR in a context where that mark is not used as par of some other AMERICAN

28

BLIND MAR. For instance, "American Blind" is not used as a STAND-ALONE MARK in
1

372634.01'

GOOGLE INC. 'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

Document 243-11

Filed 12/26/2006

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1 the phrase "American Blind & Wallpaper Factory."

2

5.

The phrase "DISPUTED KEYWORD" means any keyword, the auctionig of

3 which to thrd pares pursuant to GOOGLE's AdWords program, serves as the basis for

4 AMRICAN BLIND's counterclaims in this case.
5

6.

The phrase "AMERICAN BLIND DOMAIN NAMES" means

6 any Internet domain name owned by or on behalfof AMERICAN BLIND though which
7 customers may purchase AMERICAN BLIND's products or services.
8

7.

The phrase "AMRICAN BLIND WEBSITE" means aIy Internet website

9 operated by or on behalf of AMERICAN BLIND though which customers may purchase

10 AMRICAN BLIN's products or services.
11

8.

The phrase "CLICK" means a single instace of an Internet user activating a lin
"an AMERICAN BLIND WEBSITE in order to arive at an

12 on any website other than

13 AMERICAN BLIND WEBSrrK
14
15

9.

The term "DOCUMENT(S)" is used iilthe broadest possible sense as interpreted

under the Federal Rules of Civil Procedure and includes, without limitation, all originals and
copies, duplicates, drafs, and recordings of any written, printed, graphic or otherwse recorded

16
17 18 19

matter, however produced or reproduced, and all "writings" as defined in Federal Rule of

Evidence 1001, including, without limtation, the following: abstracts, advertisements, agendas,
agreements, analyses of any

kid, appointment calendar, aricles, assignents, blueprints,

20
21

books, brochures, chars, circulars, compilations, computer programs, rus and printouts,
computer data fies in machine readable form, contracts, diares, letters, email, reports (including
report or notes of

22
23

telephone or other conversations), memoranda, brochures, books, ledgers,

'drawings, photographs, specifications, drafts, catalogs, instrctions, invoices, bils of materials,

24
25

minutes, orders, publications, purchase orders, proposals, workig papers, and other writings of

whatsoever natue, whether on paper, magnetic tape or other inormation storage means,
including fim: and computer memory devices; all draf prepared in connection with any such
writings, whether used or not, regardless of whether the document still exists, and regardless of who has maintained custody of such documents; and where any such items contain any marking
2

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372634.01

GOOGLE INC.'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
CASE NO. C 03~5340-JF (EI)

Case 5:03-cv-05340-JF

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Filed 12/26/2006

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1 not appearng on the original or are altered from the original, then such items shall be considered
2 to be separate original documents.

3

10.

The phrase "RELATIG TO" means concerning, referrng to, sumarizing,

4 reflecting, constituting, containing, embodying, pertining to, involved with, mentioning,

5 discussing, consisting of, comprising, showig, commenting upon, evidencing, describing or
6 otherse RELATING TO

the subject matter.
method of

7

11.

The term "COMMUNICATION(S)" means every maner or

disclosure

8 or transfer or exchange of

information) whether oral or by document, and whether face-to-face,

, 9 by telephone, mail, personal delivery or otherwse.

10

12.

The words "and" and "or" shall be constred in the conjunctive or disjunctive,

11 whichever makes the request more inclusive.
12
13

13.

"Any" shall mean one or more; "each" shall mean "each and every."

INSTRUCTIONS
1.
AMERICAN BLIND is required to produce all DOCUMENTS

14

in the maner,

15 form and position in which they are kept in the ordinar course of

business, as required by

16 Federal Rule of

Civil Procedure Rule 34(b), including, where applicable, any index tabs, file

17 dividers, designations or information as to the location of DOCUMENTS.
18
, 2.

If AMRICAN BLIND canot respond to a document request fully, after a
,

19 diligent attempt to attain the requested information, AMRICAN BLIND must answer the
20 ,document request to the extent possible, specify the portion of the document request

21 AMERICAN BLIND is unable to answer, and provide whatever information AMRICAN

22 BLIND has regarding the unanswered portion.
23
3.

In the event that any DOCUMNT called for by the requests has been destroyed,

24 lost, discarded or is otherwse no longer in AMRICAN BLIND's 'possession, custody or
25 control, AMRICAN BLIND shall identify such DOCUMENT as completely as possible, and
26 shall specify the date of disposal of

the DOCUMENT, the maner of disposal, the reason for

27 disposal, the person authorizing the disposal, and the person disposing ofthe DOCUMNT.

28
3
372634.01
GO OGLE INC.'S SECOND

SET OF REQUETS FOR PRODUCTION OF DOCUMNTS AND THINGS CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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Filed 12/26/2006

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1

4.

In the event any information is withheld on a claim of attorney-client privilege or

2 work product doctrine, AMERICAN BLIND shall provide a privilege log which includes at least

3 the following inormation: the nature of the information contained in the witheld
4 DOCUMENT, the date of the DOCUMENT, its source, and subject matter, and to

whom that

5 information was disclosed, such as would enable the privilege clai to be adjudicated, and any

7 REQUESTS
8 REQUEST FOR PRODUCTlON NO.1:
9 All DOCUMENTS RELATING TO analysis or quatification of

6 authority which AMRICAN BLIND asserts supports any claim of privilege.

internet traffic to any

10, AMRICAN BLIN DOMA NAME.
11 REQUEST FOR PRODUCTION NO.2:

12 All DOCUMENTS RELATING TO strategies and/or methods for increasing internet
13 traffic.toanyAMERICAN BLIND WEBSITE.
'-:', '

14,RE9UEST FOR PRODUCTION NO.3:

15 All DOCUMENTS RELATING TO strategies and/or methods for advertisingiwith search

16 engines.
17 REQUEST FOR PRODUCTION NO.4:
18 All DOCUMENTS RELATING TO AMERICAN BLIND's valuation of internet

traffic

19 to any AMERICAN BLIN WEBSITE, including but not limited to AMERICAN BLIND's
20 valuation of CLICKS.

21 REQUEST FOR PRODUCTION NO.5:

22 All DOCUMENTS RELATING TO each and every instance where AMERICAN BLIND
23 has set its maxmum cost-per-click for each DISPUTED KEYWORD in GOOGLE's AdWords
24 program.

25

REQUEST FOR PRODUCTION NO.6:
All DOCUMENTS RELATING TO each and every instace where AMRICAN BLIN
has set its maxmum cost-per-click for each DISPUTED KEYWORD in any Internet search
engine advertising program.
4

26

27
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372634.01

GOOGLE INC. 'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMNTS AND THGS CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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Filed 12/26/2006

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1 REQUEST FOR PRODUCTION NO.7:
2 All DOCUMENTS RELATING TO each and every instace where AMERICAN BLIND
3 has set its maximum daily budget for each of

its advertising campaigns in GOOGLE's AdWords

4 program that include any DISPUTED KEYWORD.

5 REQUEST FOR PRODUCTION NO.8:
6 All

DOCUMNTS RELATING TO AMRICAN BLIND's expendituesori developing

7 and maitaining each AMERICAN BLIND WEBSITE.

8 REQUEST FOR PRODUCTION NO.9:

9 All DOCUMENT~ RELATING TO AMERICAN BLIND's retu on investment for
10 search engine advertising, including but not limited to advertising with GOOGLE.

11 REQUEST FOR PRODUCTION NO. 10:
12 All DOCUMENTS RELATING TO AMERICAN BLIN's use ofthe marks "American
11" Blind" or,~'American Blinds,"as STAND-ALONE MAS,

in connection with AMRICAN

14 BLIND's sale of products or services.
15 REQUEST FOR PRODUCTION NO. 11:

16 All DOCUMENTS RELATING TO AMRICAN BLIND's decision to use
17 ww.decoratetbday.com as the destination website to which most, if not all, AMERICAN

18 BLIND WEBSITES refer visitors.

19 REQUEST FOR PRODUCTION NO. 12:

20 All DOCUMENTS RELATIG TO AMERICAN BLIND's decision to use the phrase
21 "American Blinds, Wallpaper & More" to refer to AMERICAN BLIND on the cover of

some, if

22 not all, of AMERICAN BLIND's customer catalogs.
23

24
25

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5 GOOGLE INC. 'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMNTS AND THINGS CASE NO. C 03-5340-JF (EAI)

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1 REQUEST FOR PRODUCTION NO. 13:

2 All DOCUMENTS RELATING TO AMERICAN BLIND's decision to use the phrase
3 "American Biiids, Wallpaper & More" in the logo in the upper-left comer of

the currently

4 viewable version ofth,e web page, ww.decoratetodav.com.

5

Dated: May 10, 2006

KEKER & VAN NEST, LLP

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By:

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6 GOOGLE INC.'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMNTS AND THINGS CASE NO. C 03-5340-JF (EAI)

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1

PROOF OF SERVICE
I am employed in the City and County of San Francisco, State of

2
3

California in the offce

of a member of the bar of this cour at whose direction the following serice was made. I am

4

over the age of eighteen years and not a par to the withn action. My business address is Keker & Van Nest, LLP, 710 Sansome Street, San Francisco, Calforna 94111. On March 20,

2006, I served the following document: .

5.
6 GOOGLE INC.'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMRICAN BLIND & WALLPAPER FACTORY, INC.
7
8

ø

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by ATTORNY SERVICE, by placing a tre and correct copy in a sealed envelope addressed as shown below, and dispatchig a registered agent of process with instrctions to hand car the above and make delivery to the following during normal business hours, by leaving the package with the person whose name is shown or the person authorized to accept courier deliveries on behalf of the addressee:

12 '
13

Robert N. Philips, Esq. Howrey SimC)l Arold & Whte, LLP 525 Market Street, Suite 3600 Francisco, CA 94105-2708 San.

14
15

ø

by PDF TRASMISSION AN UNITED STATES MAI, by transmitting via PDF on ths date. A tre '
with

and correctcopy of same was placed in a sealed envelope addressed as shown below. I am readily familar: the practice ofKeker & Van Nest, LLP for collection and processing of correspondence for mailing. · . According to that practice; items are deposited with the United States Postal Service at San Francisco, the party California on that sae day with postage thereon fully prepaid. I am aware that, on motion of
served, service is presumed invalid if day after the date of deposit for mailing the postal cancellation date or the postage meter date is more than

16 17
18

one

stated in this affidavit. .

Caroline C. Plater, Esq.
David A. Raelt. Esq.

19

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21

Kelley Drye & Warren LLP 333 West Wacker Drive Chicago, IL 60606 cplater~kelleydrye.coln

dramelt(ßkellydrve.com
Executed on May 10, 2006, at San Francisco, Californa. I declare under penalty of
perjury under the laws of the State of Californa that the above is tre and correct.

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Shelby 1. Brock
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~~.~~

332455.01

Proof Of Service

Case No. C 03-5340-JF (EAl)