Digital Envoy Inc., v. Google Inc.,

Filing 212

Attachment 1
Brief re 210 Brief, Digital Envoy's Supplemental Brief In Support Of Digital Envoy's Motion To Compel filed byDigital Envoy,Inc.,. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C part 1# 4 Exhibit C part 2# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M [Filed Under Seal])(Related document(s)210) (Blackman, Brian) (Filed on 7/5/2005)

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Case 5:04-cv-01497-RS Document 212-2 Filed 07/05/2005 Page 1 of 8 EXHIBIT A S McGuireWoods LLP 1170 Peachtree Street, N.E . D G Case 5:04-cv-01497-RS uite 2100 Atlanta, GA 30309 Phone : 404 .443 .5500 Fax: 404.443 .5599 www.mcguirewoods .com Robert 1 . Waddell Jr. Direct : 404.443 .5704 Document 212-2 Filed 07/05/2005 Page 2 of 8 MCGUIREWOODS rwaddell@mcguirewoods .com Direct Fax : 404 .443 .578 1 VIA FACSIMILE (650) 493-681 1 June 28, 2005 David H . Kramer, Esquire WILSON, SONSINI, GOODRICH & ROSATI, P .C . 650 Page Mill Road Palo Alto, Californ ia 94304-105 0 Re : igital Envoy, Inc. v. Google Inc., In the Northern District of Califo rn ia, San Jose Division, Case No . C 04 01497 RS, Dear David : In consideration of the Court's implicit encouragement to the parties to utilize further the meet and confer process to resolve their discovery disputes, Digital Envoy proposes the following preliminary modifications of its pending discovery requests that are the subject of its motions to compel . Digital Envoy's proposed modifications assume, and are conditioned upon, Google's agreement that the term "AdSense," as used in Digital Envoy's discovery requests, is inclusive and refers without distinction to both "AdSense for Content" and "AdSense for Search ." Request for Production Number 3 Google may exclude those documents that relate specifically and solely to Google's use of Digital Envoy's technology with respect to advertisers who advertise only on Google's site (i.e ., non-AdSense advertisers) . Requests for Production Numbers 14, 18, 22, 23, 24 and 25 ; Interrogatory Number 5 In lieu of specific responses to the above discovery requests, Digital Envoy proposes the following global modification : 1. oogle will produce documents sufficient to identify all current (and former, to the extent that such customer was a Google customer at any time during the relevant period) Google Network Member publisher customers who are listed on the version of the comScore Media Metrix top 100 sites identified on Google's web site (see, e .g., w a 2 3 5 4 IG F Case 5:04-cv-01497-RS David H . Kramer, Esquire June 28, 200 5 Page 2 Document 212-2 Filed 07/05/2005 Page 3 of 8 hft :// .com/intl/en/coKporate/facts .htm l noting that Google's AdSense customers include "60% of the comScore Media Metrix top 100 sites") . n addition to those Google Network Members identified pursuant to item 1 . above, Google will produce documents sufficient to identify Google's top-50 Google Network Members (who are not listed in the Media Metrix top 100) in terms of the gross number of "click throughs" of Google AdSense ads (excluding PSAs as that term is defined in Google's AdSense glossary located at https ://www .google .conVadsense/glossary#P) on that Member site during the relevant period . Notwithstanding the foregoing, to the extent that such Google Network Member ould not otherwise be included under the provisions of number 1 or 2 of this letter, Google will also produce the documents identified in item number 3 below for each Google Network Member identified on the web page located at: httt)s ://adwords .google .com/s=ort/bin/answer .py?answer=6119&hl=e n US, a copy of which is attached hereto . . or each of the Google Network Members identified in items 1 and 2 above, Google will produce : . the Member's AdSense agreement or agreements with Google ; ii. all documents referring or relating to negotiations between Google and the identified Member; an d iii. all communications (internal or external) referring or relating to the agreement or agreements and the negotiations between Google and the Member . This request includes, but is not limited to, email, paper correspondence, and recorded telephone calls . . oogle will produce documents sufficient to identify any remaining Google Network Members not included in items 1 and 2 above . . or the Google Network Members identified in item number 4 that are not Google AdSense premium customers (i.e., those customers that agree to Google's "click-wrap" greement, as Google refers to it in its filings with the SEC), in lieu of producing the individual agreements with those Members, Google will produce all revisions of the agreement so as to provide an exemplar of each and every possible agreement it entered into with these customers . To the extent that Google's use of certain sample agreements was determined by a particular time period or category of customer, please so indicate . Google will also produce all documents relating to the marketing and sale of its AdSense programs . Additionally, Google will produce each and every final signed agreement relating to Google AdSense premium customers (because those agreements are described as "heavily negotiated" in Google's filings with the SEC) . In addition, Google shall also produce all communications with any Google Network Member referring or relating to the provision by such Google Network Member of the Internet Protocol Case 5:04-cv-01497-RS David H. Kramer, Esquire June 28, 200 5 Page 3 Document 212-2 Filed 07/05/2005 Page 4 of 8 Addresses ("IP Addresses") of its users/visitors to Google (as well as referring or relating to a Google Network Member's failure to provide, or agreement or request not to provide, IP Addresses of its users/visitors to Google) and all communications that refer or relate to country, region or city targeting of a Google Network Member's users/visitors . Reauest for Production Number 1 9 Google may exclude documents otherwise responsive to this request if such documents relate specifically and solely to Google's use of Digital Envoy's technology with respect to advertisers who advertise only on Google 's site (i.e., non-AdSense advertisers) . Included within this request are documents that include commentary, analysis or projections referring or relating the effectiveness of geo-targeting of advertisements including, but not limited to, Google's use of focus groups (such as those identified by Ms . Wojcicki in her recent deposition) and case studies (such as those identified in document number GOOG 012016 - GOOG 012027) . Reauest for Production Number 2 6 Digital Envoy is willing to submit this issue to the Court for ruling . Interrogatories 6,10 and 1 1 Digital Envoy continues to request the fiirther break down of the data sought by these interrogatories . Digital Envoy has been unable to ascertain the nature or magnitude of Google's difficulty in providing the requested data based on Google's generalized objections and claims of burdensomeness . However, Digital Envoy is more than willing to consider an appropriate modification of these interrogatories upon receipt from Google of a detailed and reasonable explanation of Google's contention that it cannot make the data available in the requested form . Digital Envoy reminds Google that its option to produce business records sufficient to respond to these interrogatories pursuant to Federal Rule of Civil Procedure 33(d), provided the conditions of the Rule are met, may alleviate Google's concerns regarding the burden of responding to these interrogatories. Digital Envoy is willing to consider receiving the requested information in electronic form in order to minimize the expense and burden ofpaper copies, provided that the parties can reach agreement on an acceptable electronic format . (Based on Ms . Wojcicki's recent deposition testimony, it is reasonable to assume that much of the information and documents sought by Digital Envoy is currently stored and available in electronic format .) This proposal represents a good faith effort to resolve the parties' discovery dispute . Digital Envoy believes that the proposal is reasonable and balances Digital Envoy's right to discover information and documents relevant to claims and defenses in this case with Google's stated concern regarding the breadth and burdensomeness of Digital Envoy's discovery requests . Case 5:04-cv-01497-RS David H. Kramer, Esquire June 28, 2005 Page 4 Document 212-2 Filed 07/05/2005 Page 5 of 8 Digital Envoy reserves the right to seek supplemental discovery based on the content of the material Google produces pursuant to this proposal . We look forward to your response . RJ WJr/pk s cc : Timothy H . Kratz, Esquire 1\COW20493 .1 P6 GoogleCase 5:04-cv-01497-RS will my ads appear? AdWords Help Center : Where Document 212-2 Filed 07/05/2005 Page 6 ge 18of 3 a of Help Cente r AdWords Hom e Help Center Ove rv iew AdWords Advantages Program Comparison Success Stories News and Updates Demos and Guide s Getting Sta rted Editorial-0 uidelines Step-by-step Optimization rips Account Navigatio n Keyword Tools Help Center > Getting started > Top 5 things I need to know to get started Where will my ads appear? Your keyword -targeted ads will appear along side or above the results on G m search results pages . Additionally, your ads could appear on the search and content sites and products in the Google Network. The Google Network is the largest online advertising network available, reaching over 80% of 30-day US Internet users . So you can be certain that your ads reach your target audience with Google AdWords . On search sites in the Google Network, your ads could appear along side or above search results or as a part of a results page a user navigates to through a site's directo ry . Our global search network includes Froogle and Google Groups and the following : ~M1r ~ ~v Ěc . _ Netscape 0 Netcenter ',allr#hUrlllk Cao apaSave Our extensive content network of high-qual i ty consumer and industry -specific websites and products, such as newsle tters (U .S . only) and email programs, includes : llnfoSpa+c46 a Reed Business Zvi Here are examples of what AdWords ads look like on Google's content network . AdWords ads on the Miami Herald and other sites are targeted to the actual content of the page that day. In the screenshot below, you can see the ads are directly relevant to NBA playoffs a rticles . https ://adwords . google . com/support/bin/ n US 129/2005 P6 - Google Case 5:04-cv-01497-RS AdWords Help Center : Where Document appear? will my ads 212-2 Filed 07/05/2005 Page 7aof 8 of 3 ge 2 You may also be interested in AdWords site-targeted campaigns , an alternative to keyword targeting that allows advertisers to select individual sites in the Google content network where they'd like their ads to appear . We work with permission-based newsle tter providers to place keyword-targeted AdWords ads targeted to the subject matter of newsl etters . The relevant ads shown below are at the end of an Millage newsle tter about cari ng for the home . Google's own Gmail displays AdWords ads . Here you can see that the ads relate to the discussion in the email . https :// .com/supporUbin/answer .py?answer=6119&hl=e n US /29/2005 P6 Case 5:04-cv-01497-RS Document 212-2 Google AdWords Help Center : Where will my ads appear? Filed 07/05/2005 Page 8aof 8 of 3 ge 3 Ads for email are placed by Google computers using the same automated process used to place relevant AdWords ads alongside web pages and newsletters . If our automatic filters detect that the topic of the email is sensitive, we don't show any ads . This addition to our content network currently applies only to English language ads targeted to'U .S .,"Canada,' or'All Regions . ' Our technology ensures that your ads appear in the most relevant locations across the Web so that your customers find you . For more information about advertising publishers within your industry, please visit .com/ads/metdcs .html . If this answer does not resolve your Issue, please search or browse our Helo Center for more assistance . If you are unable to find your answer, please contact us . Find answe rs about Ad Words containing the terms .. . examples : reporting or broad matchin g Glossary 02005 Google - Ad-Words Home - Editorial Guidelines - Contact Us https ://adwords .google .com/support/bin/answer .py?answer=6119&hl=e n US /29/2005

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