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

Filing 243

Attachment 8
Declaration of Ajay S. Krishnan in Support of 238 MOTION for Sanctions Notice of Motion and Motion for Terminating, Evidentiary, and Monetary Sanctions Against ABWF for Spoliation of Evidence 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# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S (part 1)# 20 Exhibit S (part 2)# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X)(Related document(s)238) (Krishnan, Ajay) (Filed on 12/26/2006)

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 243 Att. 8 Case 5:03-cv-05340-JF Document 243-9 Filed 12/26/2006 Page 1 of 10 EXHIBIT H Case 5:03-cv-05340-JF Document 243-9 Filed 12/26/2006 Page 2 of 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GOOGLE, INC., a Delaware corporation, vs. Plaintiff, Case No. C 03-5340-JF ~ , AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday. com, Inc., and DOES 1 - 100, inclusive, CERTIFIED ~ (1 COpy / " ~ ~ ~ Defendants. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation l ~ $i) d/b/ a decoratetoday. com, Inc., vs. GOOGLE INC., ii ~ ~ Counter-Plaintiff, ., j ~ , Counter-Defendant. / The video deposition of MICHAEL D. LAYNE, taken pursuant to the Rules of the State of California, before Lana Kia Haws, CRR, CM, RPR, CSR-0995, a Notary Public in the County of Oakland, Acting in the County Jl . ~ 9 of Wayne, State of Michigan, at the Inn at St. John' s, 2006, commencing at or about the hour of 9: 00 a.m. 44045 Five Mile Road, Plymouth, Michigan, on August 2, APPEARANCES: Keker & Van Nest, LLP BY: MR. MICHAEL H, PAGE 710 Sansome Street San Francisco, CA 94111-1704 (415) 391-5400 Appearing on behalf of the Plaintiff. l~ .' ,j ,1 11 ~ .~ ii \1 :t ~ -'i Pi." .~ ~j ~ Kelley Drye & Warren, LLP BY: MR. PAUL W. GARRITY 101 Park Avenue New York, New York 10178 (212) 808-7613 Appearing on behalf of the Defendant. " ~ ~ ;J ~ ~ ~ ~ ~ ~ ~ U.S. LEGAL Suppor Certified Shorthand Reporters ~ c, ~ ~~ 180 Montgomery Street, Suite 2180 San Francisco, CA 94104 888-575-3376 . Fax 888-963-3376 "'4. ''',;., .;.o/.._..l~; 'd~_"" .) 'J.""",.';~" "J "j).;'~.':i1'.,~;.. Los Angeles' Orange County' San Diego' Inland Empire' Ventura' San Jose' San Francisco' Sacramento. . . and across the nation Case 5:03-cv-05340-JF Document 243-9 Filed 12/26/2006 Page 3 of 10 1 please state your appearances for the record and begin 2 examination. 3 MR. PAGE: Michael Page of Keker and Van 4 Nest representing Google. 5 MR. GARRITY: Paul Garrity from Kelley Drye 6 and Warren representing American Blind and Wallpaper 7 Factory, Inc. 8 9 10 CROSS-EXAINATION I 11 EXM. BY MR. PAGE: I 12 13 Q. Good morning, Mr. Layne. A. Good morning. Q. We met off the record but for the record, my name is Michael Page. 14 15 I represent Google in this matter. 16 I have marked as Exhibits 1 and 2 the 17 Amended Notice of 30 (b) (6) Deposition of American Blind 18 and Wallpaper Factory, Inc., as 1 and then a letter to 19 Klaus Hamm from your counsel, Caroline Plater, as Exhibit 2. 20 Have you seen Exhibit 1 before? 21 22 A. I have. Q. Okay. Is it your unders tanding that you have been 23 designated to testify on certain of these topics on behalf 24 of American Blind and Wallpaper? 25 A. Yes. 5 ...~ u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-9 Filed 12/26/2006 Page 4 of 10 Q. Okay. Which topics have you been designated to A. 2 testify on? 3 I have been designated to testify on topics five, 4 six, seven, and, to a 1 imi ted extent, on topic eight. 5 Q. Okay, and is Mr. Alderman also des ignated on 6 topic eight? 7 MR. GARRITY: That's correct, Mike. 8 Mike, just for the record, so there is a little bit of a 9 difference between what Michael was designated for in 10 Exhibit 2; and that really was the product of further 11 conversa tions that we had wi th Michael. I 12 13 MR. PAGE: Right, right. So my understanding matches yours, which is a pleasant change. i 14 Q. (BY MR. PAGE) Mr. Layne, have you ever been I I 15 deposed before? 16 17 A. Q. I have not. I I assume your counsel has gone over the ground I, 18 rules, but just a couple of things to keep in mind. ~ ., 19 First, because our words are being taken 20 down, it i S important that we each wait for the other to stop 21 talking before responding or asking another question, which 22 is difficult to do in normal conversation. 23 You tend to see where the question is going 24 and jump in and answer it, but we have to both try to pause 25 and wait for each other to finish. 6 '.. u . S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-9 Filed 12/26/2006 Page 5 of 10 A. I was responsible for hiring and managing a group 2 of individuals whose responsibility was to provide content 3 for our website. 4 Q. At the time -- this was in -- at the time you 5 became Director of Internet Content, did American Blind 6 have a website? 7 8 A. Yes. Q. Do you know when American Blind first had a 9 website? 10 11 A. Q. 1996. I see. And was there a Director of Internet 12 Content prior to you? 13 A. Q. There was not. I see. 14 15 16 So it was a new position? A. Q. Yes. Okay. As Director of Internet Content, how many 17 people reported to you? Start initially in '99. 18 19 A. Initially, three. Q. What -- so I know when to stop asking, what i s your 20 current position? 21 22 A. Vice-President of Internet Content. Q. When did you become Vice-President of Internet 23 Content? 24 25 A. Q. In May of this year. I see. Did your job responsibilities change 14 u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-9 Filed 12/26/2006 Page 6 of 10 Are you asking for titles? Q. 2 I am just trying to get a rough sense of whether 3 it's 100 people, two people. 4 5 6 A. It would be 12 to 15 people, probably. Q. So, essentially, vice-presidents and that level? A. Vice-presidents and directors, senior managers. 7 Q. As best you recall, what did Mr. Katzman say during 8 this announcement? 9 A. That we had filed a lawsuit or were filing a Q. Anything else? A. He may have talked about a reason for doing so, 10 lawsui t against Google. 11 12 13 that being related to the sale of Google ad words. 14 Q. Were you -- at any point between the time of 15 that announcement and today, were you asked to search 16 for documents in connection with this lawsuit? 17 18 A. During what time frame, please? Q. Any time from when you first learned of the 19 existence of the lawsuit to today. 20 21 A. Yes. Q. When? When were you first asked to look for I 22 documents? 23 A. I was asked to look for a document maybe a month 24 to two months ago. 25 Q. And what -- did you say a document? Was it a I~ I 35 I: I;: u . S. Legal Support Case 5:03-cv-05340-JF Document 243-9 Filed 12/26/2006 Page 7 of 10 1 specific document? 2 A. Yes. Q. What document was that? A. It was a study that we had conducted of -- a type 3 4 5 of survey. 6 Q. Prior to that, have you been asked to look for 7 any documents? 8 A. Prior to that, no. Q. Do you know, does American Blind have any written 9 10 document retention rules or guidelines? 11 12 A. I have not seen a document like that, no. Q. Have you ever received any instruction as to 13 what e-mails you are to keep or not keep? 14 15 A. No. Q. Have you ever received any instructions from concerning what paper documents you are to keep or I i 16 17 not keep? 18 19 A. No. Q. Are you pretty much left to your own judgment 20 as to what files you maintain? 21 22 23 A. I would say so. Q. Do you use e-mail in the course of your business? A. Yes. Q. Sometimes we ask questions to which the answers 24 25 are gonna be obvious. 36 u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-9 Filed 12/26/2006 Page 8 of 10 What iS your personal practice in terms of 2 retaining e-mails? 3 A. I have a file structure within my e-mail system 4 into which I move e-mails in order to bring them off the 5 e-mail server. 6 We have a limi ted amount of space for each 7 of our accounts on the e-mail server. So I bring them down 8 to the hard drive of my P. C. 9 Q. And do you keep all of your e-mails in that manner 10 or just the ones you want to keep? 11 12 A. Just the ones I want to keep. Q. As to e-mails that you don i t move off of the 13 server onto your P. C., what happens to them? 14 15 A. They remain on the server. Q. Are they, at some point, deleted from the server? 16 17 A. Not by anybody but me. Q. So if you were to simply stop moving e-mails out 18 of your in box, would it just simply continue to grow? 19 A. No. There is a limit on the size. I would 20 receive a notice bye-mail that my mailbox was full and be 21 asked to either delete e-mails or move them off the server. 22 Q. Okay. I could also request that the size limit on my t 1 23 A. 24 25 mailbox be increased. Q. Those are those ones you always get when you are on 37 . , u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-9 Filed 12/26/2006 Page 9 of 10 CERTIFICATE OF NOTARY 2 4 ss. 3 STATE OF MICHIGAN 5 COUNTY 0 F OAKLAND 6 7 I, Lana Kia Haws, Certified 8 Shorthand Reporter and Notary Public in and for the 9 above county and state, do hereby certi fy that the 10 deposi tion of MICHAEL D. LAYNE was taken before me 11 at the time and place hereinbefore set forth; that 12 the witness was by me first duly sworn to testify 13 to the truth, the whole truth and nothing but the 14 truth; that thereupon the foregoing questions were 15 asked and foregoing answers made by the wi tness 16 which were duly recorded by me stenographically and 17 later reduced to computer transcription; and I certify 18 that this is a true and correct transcript of my 19 stenographic notes so taken. 20 21 22 23 24 25 64 ".' u . S. Legal Support Case 5:03-cv-05340-JF Document 243-9 Filed 12/26/2006 Page 10 of 10 1 2 3 i further certify that I am not Of Counsel 4 to either party nor interested in the event of this cause. 5 6 7 8 Notary Public State of Michigan 9 10 11 12 13 County of Oakland Acting in the County of Wayne l4 My Commission Expires: l5 16 17 September 29, 2011 18 19 20 21 22 23 24 25 CHAPA & GIBLIN (3l3) 961-2288 65

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