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

Filing 86

Reply Memorandum re 63 MOTION for Discovery Defendant's Notice of Motion and Motion to Enforce Stipulated Protective Order and to Dedesignate Documents Defendant's Reply Memorandum in support of Motion to Enforce Stipulated Protective Order and to Dedesignate Documents filed byAmerican Blind & Wallpaper Factory, Inc.. (Andelman, Ethan) (Filed on 1/20/2006)

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KELLEY DRYE & WARREN LLP 333 WEST $ ^�"q{05d1.�'054�4 *dLY E1 %01�"��P�6 Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 Google' Opposition confirms that it knowingly chose not to comply with the terms of s the Protective Order entered in this case. Google admits that it did not review the documents it produced to American Blind for purposes of this case, and thus it did not designate the documents produced in accordance with the Protective Order entered in this case. Nonetheless, Google makes the incredible demand that American Blind review the production for compliance with the Protective Order and then ask Google to redesignate documents to comply with the confidentiality provisions of the Protective Order on a piecemeal basis. With over 110,000 pages of documents in the production thus far, this proposal is onerous to say the least and demonstrates Google' bad faith. s I. GOOGLE HAS NOT COMPLIED WITH THE PROTECTIVE ORDER. Following the filing of this motion and its Opposition, Google admitted that its entire document production was only in response to one of American Blind' document requests, s Request No. 44, which sought all documents produced in Geico v. Google. (See Andelman Decl., Ex. A). Putting aside the fact that this admission reveals Google' failure to produce documents s in response to the other 50 requests and 10 interrogatories for which it indicated it would produce responsive documents, Google also admitted in its Opposition that it ignored the terms of the Protective Order when it produced these documents. (Opp. at 4). According to Google, "[w]hen Google produced to American Blind... 24 boxes and 10 CDs that it had reviewed, designated and produced one year prior in Geico v. Google, it did not re-review them for the purpose of reconsidering what type of confidentiality designations to apply." (Opp. at 4) (emphasis added). Google further acknowledged, "[u]ndoubtedly, there are documents designated ` onfidentialC Attorneys'Eyes Only'in the Geico v. Google document production that � whether because of passage of time, or differences between the terms of the two protective orders, or simple error � should be redesignated ` onfidential,'and Google has no objection to doing so." (Opp. at 1) C (emphasis added). But Google cannot dismiss the basis for this motion so easily. Under the terms of the Protective Order entered in this case, Google had an obligation to review every document it produced in this litigation, whether it was from Geico v. Google or produced originally in this Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -2- Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 case. Even though Google claims to have reviewed and designated the produced documents under the protective order in Geico v. Google, those designation are meaningless in this case unless the relevant terms of the protective order in Geico v. Google are identical to those of the Protective Order in effect in this litigation. Google has not and cannot demonstrate that the two protective orders are identical, because they are not. As it admitted in the first page of its Opposition, certain documents "should be redesignated" because of "differences between the terms of the two protective orders". (Opp. at 1). Google further acknowledged that the relevant terms "differ in some respects". (Opp. at 7). Inexplicably, although conceding the differences between the two protective orders, Google justifies its failure to re-review and re-designate the production pursuant the Protective Order in this case because the "protective orders from Geico v. Google and from the current case are so similar, Google reasonably believed that the vast majority of the documents bore the appropriate designations... " (Opp. at 7) (emphasis added). No matter how "similar" the provisions or how "reasonable" Google' belief that the designations were proper, Google has admitted that the two s protective orders contain different terms. Furthermore, Google could not even reasonably believe that the Attorney' Eyes Only s designations it made in Geico v. Google were appropriate in this case. The negotiation history of the Protective Order in this case demonstrates this clearly. After rejecting American Blind' s original proposed protective order, Google sent a wholly new proposal which included an Attorney' Eyes Only provision. (Rammelt Decl., � 3.) American Blind, believing the s Attorney' Eyes Only provision was much too broad, significantly limited the types of documents s which could be designated Attorney' Eyes Only and specified that the Attorney' Eyes Only s s designation would be used only in "limited circumstances." (Rammelt Decl., � 4; see also Protective Order.) Google agreed to these limitations on its original draft. (Id.) Now that Google has provided a copy of the Geico protective order as part of its Opposition to this motion, it is clear that the protective order Google sent American Blind -- the protective order American Blind clearly and specifically limited -- was the Geico protective order. (Compare Andelman Decl., Ex. B, with Hamm Decl., Ex. B.) In other words, Google initially proposed the lax Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -3- Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 Attorney' Eyes Only standards applicable in the Geico case to American Blind, and American s Blind rejected them. Google thus clearly understood that, under the Protective Order in this case, the Attorney' Eyes Only designation could not be used as broadly as it had been in the Geico s case, and it could not reasonably believe otherwise. Google' willingness to "dedesignate any documents that it designated incorrectly" (Opp. s at 7) or "treat [American Blind' ] requests for de-designation in a reasonable and expeditious s manner" (Opp. at 8) are not at issue and do not absolve Google for failing to comply with the Protective Order in the first place. American Blind brought this motion so that it would not have to scrutinize the designation of every document and then meet and confer with Google, challenging the accuracy of the designations. Because of the vast number of documents produced - and potentially improperly designated - American Blind identified a small fraction of the documents in its motion as a representative sample of Google' failure to comply with the s Protective Order. Tellingly, Google has conceded to dedesignate (or undesignate) every single document that American Blind has identified in this motion. (Opp. at 5). However, that leaves untold thousands (or tens of thousands) of pages of documents overdesignated by Google, which Google does not dispute. All of these overdesignated documents should be de-designated by the Court to Confidential, as requested in American Blind' motion. s Essentially, Google' position is that it is too heavy of a burden to expect it to comply s with the Protective Order in this case and, therefore, it should be allowed to produce documents without reviewing them or designating them pursuant to the Protective Order. But the Protective Order squarely places the burden on Google to designate documents "in limited circumstances" as "Confidential � Attorneys'Eyes Only" only if the party "believe[s] in good faith" that the information contained therein falls into one of four narrow categories of documents. (Protective Order, � 1(b).) Google admits that it did not do this when it produced the documents to American Blind in this case because it believes it was too burdensome. (Opp. at 6 ("When Google produced the documents in this case it did not repeat this burdensome exercise [of re-reviewing the documents].") (emphasis added); Opp. at 8 ( "American Blind wants to impose a heavy burden on Google by requesting that it review for confidentiality designations approximately 100,000 Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -4- Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 documents that American Blind already possesses... ") (emphasis added)). Yet Google, the plaintiff in this case and a company with a market capitalization of close to $140 billion, has the temerity to suggest that the appropriate burden is for American Blind to review over 110,000 pages of Google documents and determine whether the designations that Google applied in Geico v. Google translate to this case, and then, if they do not, submit all inappropriately designated documents pursuant to the challenge process outlined in Section 7 of the Protective Order. Google cannot shift its burden to review and properly designate documents under the Protective Order to American Blind. Google' position essentially rewrites the Protective Order to allow the s producing party to designate any document as Attorney' Eyes Only when originally produced. s This is not what the parties intended when they negotiated the Protective Order. (See Protective Order, �7 ("[a]t all times, the burden shall remain on the Designating Party to sustain a claim of confidentiality). Google' actions and arguments demonstrate its lack of good faith and should s not be allowed. II. GOOGLE' DEFENSES OF ITS ACTIONS ARE UNAVAILING. S The purpose of this motion is merely to obtain Google' compliance with the terms of the s Protective Order. Google has attempted to divert the Court' attention from its abject failure to s comply by insinuating that American Blind is seeking to share competitive information with the business persons at American Blind. Not only is this incorrect and unsupported, but it is irrelevant. Google' improper behavior in this matter speaks for itself and requires redress for no s other reason than it violates the Protective Order. Furthermore, Google' reliance on Intel Corp. v. VIA Techs., Inc., 198 F.R.D. 525 (N.D. s Cal. 2000), in support of this argument is entirely misplaced. In Intel, the plaintiff was seeking to modify the protective order so that one of its in-house counsel could have access to confidential materials beyond the conditions addressed in the protective order. See id. at 528. Intel argued that this individual needed access to this information so that she could advise Intel on all important decisions. The court rejected this argument as a valid basis for modifying the terms of the protective order. In refusing to modify the protective order, the Intel court also found persuasive the fact that the plaintiff and defendant were direct competitors and defendant' s Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -5- Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 argument that disclosing its trade secrets to its competitor would cause it irreparable harm. See id. at 527. Here, in contrast, American Blind seeks to enforce � not modify - the Protective Order. Specifically, American Blind does not seek to grant any non-attorneys or in-house counsel access to "Confidential � Attorney' Eyes Only" material, as did the movant in Intel. Moreover, Google s and American Blind are not direct competitors and no trade secrets are sought to be divulged. Finally, this motion was brought to enforce the very explicit terms of the Protective Order negotiated by the parties, not to enforce Rule 26 or the general discovery procedures. Thus, Google' reliance on the language of Rule 26(b)(2) is misplaced. Even assuming the Court s conducts a burden versus benefit analysis, the burden to Google is minimal and the benefit to American Blind is great. It can hardly be considered a burden for Google to comply with the terms of the Protective Order that it freely negotiated. On the other hand, without the Court' s intervention, American Blind will be forced to carry Google' burden and expend significant time s and resources doing Google' work. s III. CONCLUSION Google has admitted that it failed to comply with the terms of the Protective Order in producing Google' documents to American Blind. American Blind does not want Google to s conduct a "re-review" of its production, as Google suggests. (Opp. at 2). Rather, it wants Google to review its documents for the first time in this case under the terms of the parties'Protective Order and properly designate its documents. Had Google simply carried its burden at the outset, the parties would not be before this Court with this dispute. Only if Google is ordered to comply with the Protective Order will American Blind be able to determine which materials are actually Confidential and were simply improperly marked "Confidential � Attorney' Eyes Only" and, as s a result, can be shown to individuals outside the "Attorney' Eyes Only" group. American Blind s respectfully requests that the Court grant its motion and order Google to comply with the terms of /// /// /// Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -6- Case 5:03-cv-05340-JF Document 86 Filed 01/20/2006 Page 7 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 the Protective Order, and additionally de-designate all documents currently labeled as Attorney' s Eyes Only to the Confidential designation. Dated: January 20, 2006 HOWREY LLP By: R /s/ Ethan B. Andelman__________ OBERT N. PHILLIPS ETHAN B. ANDELMAN David A. Rammelt Susan J. Greenspon Dawn M. Beery KELLEY DRYE & WARREN LLP 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 Attorneys for Defendant/Counter-Plaintiff AMERICAN BLIND AND WALLPAPER FACTORY, INC. Case No. C03-5340-JF Defendant's Reply Memorandum ISO Motion to Enforce DM_US\8302598.v1 -7-

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