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

Filing 249

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

Doc. 249

Case 5:03-cv-05340-JF

Document 249

Filed 01/03/2007

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KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606

Robert N. Phillips (SBN 120970) Ethan B. Andelman (SBN 209101) HOWREY LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] David A. Rammelt (Admitted Pro Hac Vice) Susan J. Greenspon (Admitted Pro Hac Vice) KELLEY DRYE & WARREN LLP 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant/Counter-Plaintiff AMERICAN BLIND AND WALLPAPER FACTORY, 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-Defendants. Case No. C 03-5340-JF (RS) DECLARATION OF CAROLINE C. PLATER IN SUPPORT OF AMERICAN BLIND AND WALLPAPER FACTORY, INC.'S RESPONSE TO GOOGLE INC.'S MOTION TO MAINTAIN THE CURRENT SCHEDULE OR ABIDE BY IT AS CLOSELY AS POSSIBLE

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Dockets.Justia.com

Case 5:03-cv-05340-JF

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KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606

I, Caroline C. Plater, declare as follows: 1. I am an attorney at Kelley Drye & Warren LLP, counsel of record for

Defendant/Counter-Plaintiff American Blind and Wallpaper Factory, Inc. ("American Blind") in the above-captioned action. I am a member in good standing of the State Bar of Illinois. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. Exhibits. Google's Contact with American Blind Prior to Noticing the Motions For January 30, 2007. 2. Google filed its Motion for Summary Judgment and Motion for Terminating,

Evidentiary, and Monetary Sanctions Against American Blind on December 26, 2006 (collectively, "Motions"). Google did not contact American Blind prior to filing and noticing these Motions in order to ascertain American Blind's availability for a hearing date, as required by the Court's Standing Orders. 3. The only contact that Google had with American Blind in relation to the filing

of any motion, was regarding Google's request for a stipulation to extend the page limit on summary judgment motions and attendant briefs thereto. A true and correct copy of the email exchange between counsel for Google and counsel for American Blind regarding the page limit stipulation is attached as Exhibit A. No where in this exchange does Google indicate its belief that dispositive motions were due on December 26, 2006. Google also did not seek American Blind's availability for a hearing date in this email exchange or in any other correspondence regarding the stipulation. Contact Between Google and American Blind After Noticing the Motions. 4. On December 26, 2006, I received Google's Motions via ECF, which were

noticed for hearing on January 30, 2007. At the time the Motions came in, four of the six attorneys working on this matter were out of town for that holiday week. Counsel for Google was aware that a number of American Blind's attorneys were out of town that week. Counsel for Google was also aware that the schedule it sought called for opposition briefs to be served the day before the court-ordered deposition of Google's co-founder Larry Page in California. After
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noticing that the Motions were set on Tuesday and not a Friday, I checked the Court's online calendar and verified that the Court held its hearings on Fridays, not Tuesdays. 5. On December 27, 2006, I called the Court's chambers to double check that

the Court still held all civil hearing on Fridays at 9:00 a.m. I received an outgoing message indicating that the Court was dark from December 27, 2006 through January 4, 2007, and the next available hearing date was Friday, February 16, 2007. 6. On December 27, 2006, I sent correspondence to counsel for Google

inquiring as to how it came to notice its Motions on January 30, 2007, given that (a) the Court only hears motions on Fridays, (b) the Court's next available hearing date was February 16, 2007, and (c) Google had not contacted counsel for American Blind to determine if the selected hearing date would cause under prejudice prior to noticing the Motions fro January 30, 2007. In light of its numerous procedural errors, I asked that Google agree to re-notice the hearings on or after February 16, 2007. A true and correct copy of my letter to Ajay S. Krishnan is attached as Exhibit B. That letter further detailed why the selected date caused undue prejudice to American Blind. 7. On December 27, 2006, counsel for Google, Ajay S. Krishnan, responded by

letter to my earlier correspondence. In that letter, Google explained that the hearing date it noticed was pursuant to Court order. A true and correct copy of this letter is attached as Exhibit C. 8. On December 28, 2006, I sent an email to counsel for Google, Ajay S.

Krishnan and Klaus H. Hamm, regarding Mr. Krishnan's December 27, 2006 letter. In that email I explained why Google was in error in calculating the dispositive motion filing and hearing date. The confusion stemmed from multiple extensions of the case management orders, which unintentionally allowed for two inconsistent dates to remain on the schedule; namely, the cut-off for filing dispositive motions was set for January 29, 2007 and the hearing date for dispositive motions was set for January 30, 2007. A true and correct copy of my December 28, 2006 email is attached as Exhibit D. 9.
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In an effort to clear up the obvious confusion and difference of opinions, I -3-

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asked that Google participate in a conference call with the Court's law clerk in order to rectify the scheduling issues. Google refused to participate in a call to the Court's law clerk, as reflected in its response email on December 28, 2006. A true and correct copy of this email is attached as Exhibit E. 10. In response to Google's refusal to participate in a call to the law clerk, I

sent another email alerting Google to the fact that I would be contacting the law clerk on my own. A true and correct copy of that email is attached as Exhibit F. 11. Later that same day, on December 28, 2006, I spoke by telephone with

Christian Delaney, the Court's law clerk. On that call, I explained the situation to Ms. Delaney and told her that Google had refused to participate in that call I was making. Ms. Delaney indicated to me that she understood the situation and provided me with the following explanation to pass on to counsel for Google: (a) Chambers practice is that a hearing date must be cleared with the judicial assistant or deputy clerk before noticing it, and there is no special; exception in this case; (b) Before selecting a hearing date, the movant should also contact opposing counsel to make sure there is agreement on the date selected; (c) The Court hears motions on Fridays, not Tuesdays; (d) If counsel had called the clerk, they would have been informed that January 30th is not available because the Court has a patent trial starting on January 12, 2007, that will last 3 weeks; (e) In light of this confusion, the parties should do a stipulated order regarding the date for filing dispositive motions and for noticing dispositive motions. I conveyed Ms. Delaney's message to Google by email. A true and correct copy of that email is attached as Exhibit G. 12. Following my email summarizing Ms. Delaney's statements, Google initiated a conference call with Ms. Delaney and I myself. On the second call with Ms. Delaney, she reiterated her statements set forth above and in my email to Google and specifically informed counsel for Google that Google did not have a hearing date at that time. After we concluded our call with Ms. Delaney, counsel for Google and myself continued our call and Google proposed filing a joint motion regarding the hearing date. Google summarized its proposed terms for the joint motion by email later that same day. A true and correct copy of that email is attached as Exhibit H.
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Case 5:03-cv-05340-JF

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13. The next morning, I responded by email to Google's proposal for the joint motion, agreeing in part to the terms. A true and correct copy of that email is attached as Exhibit I. 14. Google never responded to my email regarding the proposed terms for the joint motion. Instead, Google filed its Motion to Maintain the Current Schedule or Abide by it as Closely as Possible. I declare under penalty of perjury that the foregoing is true and correct. Executed this 4th day of January 2007, in Chicago, Illinois.

__/s/ Caroline C. Plater___________ CAROLINE C. PLATER

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