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

Filing 246

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

Doc. 246

Case 5:03-cv-05340-JF

Document 246

Filed 12/29/2006

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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 Counterdefendant 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., Counterclaimant, v. GOOGLE, INC., AMERICA ONLINE, INC., NETSCAPE COMMUNICATIONS CORPORATION, COMPUSERVE INTERACTIVE SERVICES, INC., ASK JEEVES, INC., and EARTHLINK, INC., Counter-Defendants/ Third-Party Defendants.

Case No. C 03-5340-JF (RS) DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE

386974.01

DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS) Dockets.Justia.com

Case 5:03-cv-05340-JF

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I, Ajay S. Krishnan, declare as follows: 1. I am an attorney at the firm of Keker & Van Nest LLP, counsel for Plaintiff and

Counter-Defendant Google Inc., and am admitted to practice before this Court. I make this declaration, pursuant to Civil Local Rule 6­3, in support of Google's Motion to Maintain the Current Schedule or Abide by It as Closely as Possible. Unless otherwise stated, I know the facts stated herein of my personal knowledge and if called as a witness, I would testify competently thereto. Relief Sought by Google 2. Google requests that the Court calendar the hearing for Google's Motion For

Summary Judgment and Google's Motion for Terminating, Evidentiary, and Monetary Sanctions Against ABWF for Spoliation of Evidence (collectively, "Motions")--which had been set for January 30, 2007--on either January 30, 2007, or as soon as practicable thereafter. Google notes that its lead counsel, Michael Page, will be unavailable for a hearing from February 5 through February 8, 2007, inclusive. For any additional briefing time that results from the postponement of the hearing date after January 30, 2007, Google requests that this time be divided evenly between the parties. 3. Additionally, Google requests an explicit finding that the hearing for dispositive

motions was indeed set for January 30, 2007, and that as a result, the deadline for filing dispositive motions was December 26, 2006. Moreover, Google requests a finding that the postponement of the hearing for Google's motions will not affect any other case-management dates in this case. The Reasons for the Requested Enlargement of Time. 4. The hearing date for dispositive motions was set by this Court for January 30,

2007, at 9 a.m. In a minute order on February 16, 2006, with regard to the hearing for dispositive motions, the Court stated, "motion hearing on 12/1/06 at 9:00 a.m." See Docket Item No. 95. In a written order on June 23, 2006, the Court stated, "the Court will amend and extend the case management dates by only sixty (60) days." See Docket Item No. 133. Thus, the hearing date for dispositive motions was set for January 30, 2007, at 9 a.m. This set a filing 1
DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS)

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deadline for dispositive motions of December 26, 2006. a. That the Court's hearing date for dispositive motions establishes a filing deadline 35 days earlier was made clear on February 16, 2006, from Michael Page, counsel for Google, to Susan Greenspon and David Rammelt, counsel for ABWF. On information and belief, ABWF never responded to that email. A true and correct copy of that email is attached hereto as Exhibit A. b. Google was also clear to ABWF--in the two weeks prior to the December 26, 2006 filing deadline--that the deadline for filing dispositive motions was imminent. In those two weeks, ABWF and Google negotiated a stipulation to exceed the page limits on both parties' summary judgment briefing. The Court subsequently ratified that stipulation. See Docket Item No. 229. In an email on December 18, 2006, I informed Mr. Rammelt that we needed to file the stipulation that day, so the Court would have enough time to rule on it. A true and correct copy of that email is attached as Exhibit B. c. ABWF's contrary argument about the hearing and filing deadlines in this case makes no sense. ABWF attorney Caroline Plater explained to me in an email on December 28, 2006, that ABWF believes that the filing deadline for dispositive motions is January 29, 2007, and that the hearing date for dispositive motions is January 30, 2007! This is an absurd result. Ms. Plater stated that this was because the Court's February 16, 2006 Order that set the hearing date for dispositive motions on December 1, 2006 (1) was silent as to the filing date for dispositive motions (which was previously set for July 31, 2006), and (2) postponed all other casemanagement dates by four months. Thus, according to Ms. Plater, this Court's February 16, 2006 Order created an absurd situation wherein the hearing date for dispositive motions was December 1, 2006, and the filing 2
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date was November 30, 2006. Ms. Plater then believes that this Court's June 23, 2006 Order simply postponed this scenario--with one day between the hearing date and filing date--by sixty days. A true and correct copy of this email from Ms. Plater is included in a string of correspondence between ABWF and Google, which is attached hereto as Exhibit C. Attached hereto as Exhibits D and E are true and correct copies of letters between Ms. Plater and myself, both dated December 27, 2006, that are referenced in Exhibit C. d. Of course, the correct, and considerably more plausible reading of the Court's February 16, 2006 Order is that it did not need to explicitly mention a filing deadline because it explicitly set a hearing date for dispositive motions. Civil Local Rule 7­2 would naturally supply a filing deadline of 35 days prior to the Court-set hearing date. On December 28, 2006--two days after Google had already filed its Motions--

the Court's clerk informed Google that the January 30, 2007 hearing date had not been calendared. Google was informed of this during a conference call involving (1) the Court's clerk, Christian Delaney, (2) Ms. Plater, counsel for ABWF, and (3) myself and Klaus Hamm, counsel for Google. Ms. Delaney explained that it is the chambers' policy that counsel must call chambers and reserve a hearing date even when the hearing date is set by Court order. 6. With regard to the calendaring of the hearing date for Google's Motions, Ms.

Delaney also stated that the Court would likely be open to setting the hearing date after January 30, 2007. She also stated that although the outgoing voicemail message of the scheduling clerk, Teresa Fleishman, stated that February 16, 2007 is the earliest available hearing date for civil motions, the Court is sometimes able to schedule an earlier date--particularly an earlier Friday-- if there is cause for doing so. Ms. Delaney then suggested that the parties attempt to stipulate to a briefing schedule and a hearing date, and that barring that, either party could file a motion seeking relief from the Court.

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DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS)

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Efforts Google Has Made to Obtain a Stipulation to the Time Change 7. Immediately after the December 28, 2006 conference call with Ms. Delaney,

pursuant to Ms. Delaney's suggestion, the parties remained on the line and attempted to stipulate to a briefing schedule. Ms. Plater stated that ABWF would likely agree to a February 16, 2007 hearing date (which, according to Ms. Fleishman's outgoing message, was the earliest available hearing date), with additional briefing time divided evenly between the parties, but that she would have to check. Mr. Hamm suggested that the parties ask the Court to schedule the hearing as soon as possible, with the parties evenly dividing any additional briefing time that resulted from the new schedule. Mr. Hamm made it clear that this might mean that, if the Court's schedule so permitted, the hearing would be held earlier than February 16, 2007. Ms. Plater said that she would need to speak to other lawyers on her team. 8. On the morning of December 29, 2006, Ms. Plater stated in an email to Mr.

Hamm and myself that ABWF would not agree to any hearing date earlier than February 16, 2007, and that ABWF would not agree to splitting additional briefing time between the parties. The Harm or Prejudice that Would Occur if the Court Does Not Change the Time 9. It would be prejudicial and inequitable to Google if the Court does not reschedule

the hearing date either on, or shortly after January 30, 2007, and if the Court does not equitably allocate briefing time between the parties. 10. It would be prejudicial to Google if the Court were to substantially delay the

hearing on these motions because ABWF has consistently been dilatory in prosecuting this action. The history of ABWF's efforts to delay this action--which was filed over three years ago--is laid out in detail in the accompanying motion. Trial is set for this case on May 15, 2007. 11. It would be inequitable because Google went through substantial hardship to

abide by the Court's own orders, and file its Motions by December 26, 2006. Numerous attorneys worked on these Motions while on vacation, and I personally altered my holiday travel plans to ensure that the filing could take place on December 26, 2006. I and other attorneys have also planned our schedules around the briefing schedule that would result from a January 30, 2007 hearing date. ABWF now seeks to capitalize on the Court's unavailability on January 30, 4
DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS)

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2007 not only to postpone substantially this case, but to assign to itself all of the additional briefing time. The inequity is heightened by the fact that ABWF's interpretation of this Court's orders, with regard to the hearing date and filing deadline for dispositive motions, is entirely unreasonable and unsupportable. All Previous Time Modifications in this Case 12. On May 16, 2005, the Court adopted following schedule: February 27, 2006 March 31, 2006 May 15, 2006 June 30, 2006 July 31, 2006 October 2, 2006 October 13, 2006 at 11:00 a.m. November 17, 2006 at 11:00 a.m.

Cutoff of Fact Discovery All Parties' Expert Reports Due Rebuttal Expert Reports Due Cutoff of Expert Discovery Cutoff for filing Dispositive Motions Pretrial Conference Statement Pretrial Conference Trial Date See May 16, 2005 Order (Docket Item No. 57). 13.

On February 16, 2006, the Court issued an order stating "The Court extends all

case management dates by 4 months. The case is set for jury trial on 3/16/07 at 1:30 p.m, pretrial conference on 3/2/07 at 11:00 a.m. and motion hearing on 12/1/06 at 9 a.m." See February 16, 2006 Order (Docket Item No. 95). 14. On June 23, 2006, the Court issued an order stating that "the Court will amend

and extend the case management dates by only sixty (60) days." See June 23, 2006 Order Granting In Part Defendant's Motion To Extend Case Management Deadlines (Docket Item No. 113). 15. On August 31, 2006, the Court extended the deadline for the serving of expert

reports from September 29, 2006 to November 14, 2006 and extended the deadline for the serving of rebuttal expert reports from November 14, 2006 to December 5, 2006. See Stipulation and Order Amending Case Management Dates for Expert Reports (Docket Item No. 180).

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DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS)

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I state under penalty of perjury of the laws of the United States of American that the foregoing statements are true and correct. Executed December 29, 2006, at San Francisco, California.

/s/ Ajay S. Krishnan AJAY S. KRISHNAN

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386974.01

DECLARATION OF AJAY S. KRISHNAN IN SUPPORT OF GOOGLE'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE CASE NO. C 03-5340-JF (RS)