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

Filing 243

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

Dockets.Justia.com

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
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AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday. com, Inc., and DOES 1 - 100, inclusive,

CERTIFIED

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Defendants.
AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation

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d/b/ a decoratetoday. com, Inc.,
vs.
GOOGLE INC.,

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Counter-Plaintiff,

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Counter-Defendant.
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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

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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 [phone] Appearing on behalf of the Plaintiff.

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Kelley Drye & Warren, LLP BY: MR. PAUL W. GARRITY 101 Park Avenue New York, New York 10178 [phone] Appearing on behalf of the Defendant.

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U.S. LEGAL
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Certified Shorthand Reporters

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180 Montgomery Street, Suite 2180 San Francisco, CA 94104
888-575-3376 . Fax [phone]

ww.uslegalsuppon.com
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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
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Document 243-9

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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.
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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

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15 deposed before?
16
17

A.
Q.

I have not.
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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.
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Document 243-9

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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
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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

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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
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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.
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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
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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

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22 23

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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

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10 11
12 13

County of Oakland

Acting in the County of Wayne

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My Commission Expires:

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17

September 29, 2011

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CHAPA & GIBLIN
(3l3) 961-2288

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