Digital Envoy Inc., v. Google Inc.,

Filing 155

Brief re 146 MOTION for Extension of Time to Complete Discovery Pursuant to Fed. R. CIv. P. 56(f), 151 MOTION for Extension of Time to Complete Discovery Corrected Notice of Motion and Rule 56(f) Motion, 147 Declaration in Opposition,,,, 152 Declaration in Opposition,, Supplemental Brief In Support of Digital Envoy's Rule 56(f) Motion filed byDigital Envoy,Inc.,. (Related document(s)146, 151, 147, 152) (Blackman, Brian) (Filed on 5/13/2005)

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Digital Envoy Inc., v. Google Inc., Doc. 155 Case 5:04-cv-01497-RS Document 155 Filed 05/13/2005 Page 1 of 5 1 P. CRAIG CARDON, Cal. Bar No. 168646 3 Four Embarcadero Center, 17th Floor 4 Telephone: 415-434-9100 Facsimile: 415-434-3947 BRIAN R. BLACKMAN, Cal. Bar No. 196996 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP San Francisco, California 94111-4106 2 KENDALL M. BURTON, Cal. Bar No. 228720 5 6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) LUKE ANDERSON (Admitted Pro Hac Vice) 1170 Peachtree Street, N.E., Suite 2100 Telephone: 404.443.5500 7 MCGUIRE WOODS, L.L.P 8 Atlanta, Georgia 30309 9 Facsimile: 404.443.5751 10 Attorneys for DIGITAL ENVOY, INC. 11 12 13 14 DIGITAL ENVOY, INC., 15 16 v. Plaintiff/Counter defendant, DIGITAL ENVOY'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS RULE 56(F) MOTION Date: June 15, 2005 Time: 9:30 a.m. Courtroom: 4, 5th Floor The Honorable Richard Seeborg UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS 17 GOOGLE, INC., 18 19 20 21 22 23 24 25 26 27 28 W02-C:\Documents and Settings\5BB\Desktop\PDFCopies\Digital Envoy's Supp. Brief.DOC Defendant/Counterclaimant. -1- DIGITAL ENVOY'S SUPP. BRIEF ISO RULE 56(F) MOTION Dockets.Justia.com Case 5:04-cv-01497-RS Document 155 Filed 05/13/2005 Page 2 of 5 1 Due to questions raised at the May 4, 2005, Digital Envoy respectfully submits the 2 following supplemental brief in clarification of issues pertaining to its Rule 56(f) Motion. 3 4 A. Digital Envoy's Rule 56(f) Motion Is Timely. Digital Envoy filed its Rule 56(f) motion two days before the May 4, 2005, 5 summary judgment hearing. As such, Digital Envoy's motion is timely. (See Mason v. 6 United States, 120 Fed.Appx. 40, 2005 WL 32820, *3 (9th Cir. 2005) ("A Rule 56(f) 7 motion must be timely filed. This means that a `Rule 56(f) motion must be brought before 8 the summary judgment hearing.'")(citing United States v. Kitsap Physicians Serv., 314 9 F.3d 995, 1000 (9th Cir. 2002) (see also Wolde-Giorgis v. Goddard, 176 F.3d 486, n.5 (9th 10 Cir. 1999) (holding that because movant did not file its 56(f) motion before the summary 11 judgment hearing, motion was untimely.) Digital Envoy respectfully submits that this 12 authority, together with the complete absence of contrary authority, establishes that Digital 13 Envoy's motion is timely and should be given proper consideration. 14 15 B. Digital Envoy Has Made A Proper Showing Under Rule 56(f). Digital Envoy has made the required showing under Rule 56(f). Digital Envoy has 16 presented affidavits in which it appears that the court should refuse to consider Google's 17 motion until the discovery pinpointed by Digital Envoy is taken. Discussion of the 18 missing evidence and the steps being taken to obtain that evidence is contained in the brief, 19 but the underlying evidentiary support for that discussion is contained in proper 20 Declarations timely submitted. Digital Envoy has set forth the discovery requested, and 21 the partial evidence obtained regarding three issues which it contends can be decided in 22 Digital Envoy's favor presently, but in the alternative to the extent the Court is inclined 23 toward Google's argument on the issue, the Court should defer ruling until complete 24 discovery on the issue is provided to Digital Envoy. 25 Further, Google's effort to confuse certain issues at the hearing, underscores the 26 need for complete discovery prior to blind acceptance of Google's position. Google has 27 confused the interplay between the second and third sentences of Section 3.1. Google 28 further suggests that there is similarity between the AdSense and AdWords customers such -2W02-C:\Documents and Settings\5BB\Desktop\PDFCopies\Digital Envoy's Supp. Brief.DOC DIGITAL ENVOY'S SUPP. BRIEF ISO RULE 56(F) MOTION Case 5:04-cv-01497-RS Document 155 Filed 05/13/2005 Page 3 of 5 1 that Digital Envoy's acceptance of the AdWords program somehow justifies disregard of 2 the plain language prohibiting use of Digital Envoy's data in AdSense. 3 Digital Envoy submits that the following issues can be resolved in its favor on the 4 record before the Court. First, the specific prohibitions in the third sentence of Section 3.1 5 has priority over the narrow development permission granted in the second sentence. 6 Second, a proper reading of the second sentence leads to the determination that "to 7 develop" is the only action permitted and providing to third parties is a subordinate 8 description of ultimately un-licensed activity. Third, the record establishes that both 9 Google and Digital Envoy understood that the second sentence operated only to permit 10 Google "to play" with the data (Google's words repeated at various points of time) and 11 seek an expanded license or require the third party to obtain the license for actual, active 12 use of the data within any application or service that would be developed. 13 This interpretation is consistent with Digital Envoy's business model of 14 encouraging development of new potential uses of its technology to expand its market 15 while making sure it is compensated in the event that such uses involved a licensee sharing 16 Digital Envoy's data with third parties thus taking away potential customers from Digital 17 Envoy. It is also consistent with the "web index" example, the only example given in that 18 second sentence. 19 20 "distributed," "use," and "share," among other relevant language in the Agreement, must 21 be given meaning and effect in interpreting the Agreement and eliminates Google's 22 attempt at confusing the issues. Fifth, the record available of the AdWords and AdSense 23 agreements establishes without reasonable dispute that Google's operation of AdSense 24 exceeded the scope of business it licensed. Lastly, the record available of the operation of 25 Google's advertisement programs establishes that AdSense "third party web site publisher" 26 customers stand in complete contrast to the AdWords "advertiser" customers. That is, 27 AdWords customers for advertisements placed on Google sites do not (and cannot 28 possibly) share IP addresses with Google for Google to share the geo-location using -3W02-C:\Documents and Settings\5BB\Desktop\PDFCopies\Digital Envoy's Supp. Brief.DOC Fourth, the plain meaning of the words "not distribute in whole or in part," DIGITAL ENVOY'S SUPP. BRIEF ISO RULE 56(F) MOTION Case 5:04-cv-01497-RS Document 155 Filed 05/13/2005 Page 4 of 5 1 Digital Envoy data because all IP addresses looked up in Digital Envoy's database are 2 Google's own information, belonging to visitors to Google's site. In contrast, the AdSense 3 "third party web site publisher" customer sends an IP address (associated with a visitor to 4 that third party web site--i.e., the third party web site publisher's information) so that the 5 AdSense customer is a partner of Google, sharing Digital Envoy's technology in lieu of 6 legitimately acquiring it themselves from Digital Envoy. It is undisputed that this type of 7 use by third parties was specifically discussed by the parties and the parties agreed that 8 such third party use was specifically not allowed under the Agreement. In short, use of 9 Digital Envoy's technology by Adwords customers is within the scope of the Agreement 10 because the AdWords customer is just that a customer in the chain of commerce of 11 Google's employment of legitimate use of Digital Envoy's technology on its own site -12 something which was completely contemplated and bargained for by the parties in the 13 Agreement. 14 If the Court, however, is otherwise inclined to accept Google's arguments on these 15 issues, full discovery regarding the AdSense and AdWords agreements and negotiations 16 thereof, as well as testimony on the 30(b)(6) topics previously requested, all of which is set 17 forth in the timely submitted declarations, would be appropriate to clarify the issues raised 18 by Google. A full examination of the relationship between AdWords and AdSense, and 19 the second and third sentence of Section 3.1 firmly establish that Google has exceeded the 20 License Agreement through its operation of the AdSense program. 21 The motion addresses issues of fundamental fairness. Google has consistently 22 thwarted fair discovery, yet moves for summary judgment on issues which it has 23 intentionally confused and over-reached in its presentation of the incomplete evidence. 24 Digital Envoy submits a decision can be made in its favor since Google's arguments are 25 refuted by the present record before the Court. However, to the extent the Court is inclined 26 to accept Google's position, at least the position should be tested after complete discovery. 27 28 W02-C:\Documents and Settings\5BB\Desktop\PDFCopies\Digital Envoy's Supp. Brief.DOC -4- DIGITAL ENVOY'S SUPP. BRIEF ISO RULE 56(F) MOTION Case 5:04-cv-01497-RS Document 155 Filed 05/13/2005 Page 5 of 5 1 DATED: May 13, 2005 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 W02-C:\Documents and Settings\5BB\Desktop\PDFCopies\Digital Envoy's Supp. Brief.DOC SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Brian Blackman P. CRAIG CARDON BRIAN R. BLACKMAN TIMOTHY H. KRATZ (Pro Hac Vice To Be Applied For) LUKE ANDERSON (Pro Hac Vice To Be Applied For) MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: 404.443.5706 Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC. -5- DIGITAL ENVOY'S SUPP. BRIEF ISO RULE 56(F) MOTION

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