Digital Envoy Inc., v. Google Inc.,

Filing 110

Digital Envoy Inc., v. Google Inc.,

Doc. 110

Case 5:04-cv-01497-RS

Document 110

Filed 03/09/2005

Page 1 of 3

1 P. CRAIG CARDON, Cal. Bar No. 168646 BRIAN R. BLACKMAN, Cal. Bar No. 196996 2 KENDALL M. BURTON, Cal. Bar No. 228720 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 3 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4106 4 Telephone: [phone] Facsimile: 415-434-3947 5 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) 6 LUKE ANDERSON (Admitted Pro Hac Vice) MCGUIRE WOODS, L.L.P. 7 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 8 Telephone: [phone] Facsimile: 404.443.5751 9 Attorneys for DIGITAL ENVOY, INC. 10 11 12 13 14 DIGITAL ENVOY, INC., 15 16 v. Plaintiff/Counter defendant, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS DECLARATION OF ANDREW LINDER IN SUPPORT OF DIGITAL ENVOY, INC.'S OPPOSITION TO GOOGLE, INC.'S SECOND MOTION FOR SUMMARY JUDGMENT Date: Time: Courtroom: March 30, 2005 9:30 a.m. 4, 5th Floor

17 GOOGLE, INC., 18 19 20 21 22 23 24 25 26 27 28
W02-SF:5BK\61446857.1

Defendant/Counterclaimant.

The Honorable Richard Seeborg

DECLARATION OF ANDREW LINDER

Dockets.Justia.com

Case 5:04-cv-01497-RS

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I, Andrew Linder, hereby declare: 1. I am a Partner of Frontier Funds, a venture capital firm headquartered in Charlotte,

3 North Carolina. I have personal knowledge of the facts set forth herein and, if called as a witness, 4 would testify competently thereto. 5 2. Frontier Funds is an investor in Digital Envoy, Inc. Prior to Frontier Funds making

6 that investment, I was responsible for conducting due diligence into the business of Digital Envoy. 7 3. In connection therewith, on April 5, 2001, I spoke with Matt Cutts who was a

8 senior software engineer for Google. Mr. Cutts was responsible for evaluating and selecting 9 Digital Envoy as Google's geo-location vendor. I asked him about the selection process, his 10 general opinion regarding Digital Envoy, Google's use of Digital Envoy's data and technology. 11 Essentially, Mr. Cutts praised Digital Envoy for its superior technology, and its professionalism. 12 4. Following the conversation, I sent an e-mail to Mr. Cutts and he replied. The

13 document marked Plaintiff's Exhibit 8 which is attached hereto is a true and correct copy of this e14 mail exchange. 15 5. I sought clarification of Google's understanding of its prohibition against reselling

16 products or services based on Digital Envoy's technology or data due to my understanding that 17 Digital Envoy's business model was based on the ability to license its technology to web site 18 owners who would be interested in the technology for a variety of purposes and it was imperative 19 that Google was prohibited from sharing the benefit of the technology with potential licensees of 20 Digital Envoy without either expanding its license or requiring a license to be obtained by the 21 third party. 22 6. Based on my reading of the License Agreement, and Mr. Cutts' confirmation of

23 Digital Envoy's understanding of the restrictive language, I was satisfied that Digital Envoy had 24 adequately protected its market, and my company ultimately invested in Digital Envoy. 25 26 27 28 -1W02-SF:5BK\61446857.1

DECLARATION OF ANDREW LINDER

Case 5:04-cv-01497-RS

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Filed 03/09/2005

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I declare under penalty of perjury under the laws of the United States of America the

2 foregoing is true and correct. Executed on March 9, 2005 at Charlotte, North Carolina. 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 -2W02-SF:5BK\61446857.1

/s/ Andrew Linder Andrew Linder

DECLARATION OF ANDREW LINDER