Digital Envoy Inc., v. Google Inc.,

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1 WRITTEN DISCOVERY IS CLOSED NOW . WE PROCEEDED 2 BASED ON OUR UNDERSTANDING OF WHAT THIS COMPLAINT 3 SAID. 4 HAD WE KNOWN OTHERWISE, HAD THE ISSUE FOR 5 ADSENSE FOR SEARCH BEEN JOINED EARLIER IN THI S 6 CASE, OUR SUMMARY JUDGMENT WOULD HAVE BEEN ENTIREL`j 7 DIFFERENT . 8 WE SPENT 15 PAGES OF OUR SUMMARY JUDGMENT 9 MOTION TALKING ABOUT INFORMATION SEARCH . 0 WE SPENT ONE PAGE TALKING ABOUT 1 DISCLOSURE AND SHARING OF INFORMATION . ITS ONE 12 PAGE IN OUR BRIEF . WHY? BECAUSE IT WAS A THROW 13 AWAY ISSUE THAT AROSE AFTER THE FACT WHEN THE 14 DEFINITION OF BUSINESS AND INFORMATION SEARCH 15 DIDN'T APPEAR TO BE GOING THE WAY THEY WANTED IT 16 TO . 17 IF ADSENSE FOR SEARCH WERE IN THIS CAS E 18 FROM THE START, WE WOULD HAVE HAD A 15-PAGE SUMMARY 19 JUDGMENT MOTION JUST ON THE ISSUE OF DISCLOSURE 0 BECAUSE THAT'S THE ONLY ISSUE THAT IMPACTS ADSENSE 1 FOR SEARCH. 22 THE COURT : WHAT DISCOVERY WOULD YOU HAVE 23 DONE DIFFERENTLY THAN YOU ? 24 MR . KRAMER : THERE ARE, THERE ARE A DOZEN 25 OTHER ADVERTISING NETWORKS THAT DIGITAL ENVOY Page 3 9 1 LICENSES UNDER CONTRACTS THAT ARE EXACTLY THE SAME 2 AS OURS, WITH EXACTLY THE SAME NONDISCLOSUR E 3 PROVISIONS. 4 OOGLE OPERATES ITS NETWORK THE SAME WAY 5 EVERY ONE OF THOSE NETWORKS OPERATES. 6 HE COURT: OKAY. 7 R. KRAMER: AND DIGITAL ENVOY HAS NEVE R 8 TOLD ANY OF THOSE COMPANIES THAT THEY'RE IN BREACH.

1 HE COURT : SO. 2 R . KRAMER : THE OPERATION OF THES E 3 COMPANIES IS IDENTICAL . THEY ARE USING THE 4 TECHNOLOGY IN EXACTLY THE SAME WAY . 5 HE COURT: BUT THE CRITICAL POINT TO THE 6 EXTENT THAT I SEEMED TO CONSIDER IT TO BE AMBIGUOUS 7 IS WHAT THE UNDERSTANDING OF THESE PARTIES IN THI S 8 ROOM WAS WITH RESPECT TO THAT, WHAT ONE PARTY MAY 9 THINK OR THE UNDERSTANDINGS THAT THEY HAVE WITH 10 SOME OTHER, MAYBE ITS A CUSTOM OR PRACTICE OR SO ME 11 OTHER THEORY, BUT ITS NOT, AND ITS THE SA ME 12 REASON, QUITE FRANKLY, THAT I'M INCLINED TO SA Y 13 YOURE RIGHT ABOUT NOT GETTING THE QUOVA CONTRACT . 14 EXCUSE ME . 15 R KRAMER: LET ME BE VERY CLEAR . 16 DIGITAL ENVOY'S UNDERSTANDING OF THE LANGUAGE THAT 17 IS REMAINING IN THIS CASE, THE NONDISCLOSURE 18 PROVISIONS IN THESE CONTRACTS IS ABSOLUTELY 19 INFORMED, ITS ABSOLUTELY REVEALED BY THE FACT THAT 20 THEY USE THE SA ME PROVISION IN A DOZEN OTHER 21 CONTRACTS WITH A DOZEN OTHER AD NETWORKS FULLY 22 KNOWING AND EXPECTING THAT THEY WILL USE IT TO 23 DISPLAY ADS ON THIRD PARTY SITES AND THEY DON T 24 THINK. THATS SHARING THE DATA OR DISCLOSING THE 25 DATA OR ALLOWING SOMEONE TO ACCESS THE DATA. IF Page 41

1 THEY DID, THEY WOULD BE GOING AFTER THESE OTHE R 2 COMPANIES FOR BREACH, THATS WHY ITS RELEVANT AND 3 FRANKLY WE JUST DEPOSED ADVERTISING .COM, ONE OF 4 THEIR CUSTOMERS, AND WHO SAID THAT ITS RIDICULOUS 5 TO READ THE CONTRACT THAT WAY. THEY KNEW FROM THE 6 BEGINNING THAT WE WERE GOING TO USE IT TO RUN AN A D 7 NETWORK . OF COURSE WE ARE OPERATING AN AD NETWORK 1 8 AND THEY KNEW IT. WE WERE GOING TO USE IT THI S 9 WAY . 9 DIGITAL -- THOSE COMPANIES UNDERSTOOD FROM THE GET 10 GO THAT THEY WERE ALLOWED TO USE THIS DAT A 10 HEY USED THIS LANGUAGE TO DEFINE TH E 11 RELATIONSHIP. S O THEY KNEW FROM THE START THATS 11 INTERNALLY . 12 12 WHAT WAS GOING TO HAPPEN AND THATS WHY THAT HE COURT : WHAT WOULD YOU HAVE DONE IN 13 DISCOVERY IS RELEVANT AND THERE ARE A DOZEN O F 13 DISCOVERY? 14 14 OTHER COMPANIES OUT THERE WE WOULD HAVE GONE TO R. KRAMER: I WOULD HAVE DEPOSED EVERY 15 TALK TO HAD WE KNOW THAT THAT ISSUE WAS FRONT AND 15 SINGLE ONE OF THOSE ADVERTISING NETWORKS AND GOT 16 THEM TO SAY DIGITAL ENVOY KNEW AT THE TIME WE 16 CENTER IN THIS CASE . 17 17 STARTED THAT WE WERE GOING TO USE THIS DATA TO HE COURT: HOLD OFF . ON THE PARAGRAPH 18 TARGET ADS ON THIRD PARTY WEB SITES AND DIGITAL 18 40 OF THE FIRST AMENDED COMPLAINT, MR KRAMER'S 19 ENVOY KNEW AND THERE'S NO WAY YOU CAN INTERPRET 19 POINT THAT THAT IS A LIMITING PARAGRAPH, WHY IS HE 20 THIS CONTRACT TO MEAN THAT WE CANT USE THIS TO RUN 20 WRONG? 21 AN AD NETWORK. 21 R . KRATZ: JUST RESPONDING TO THAT? 22 HE COURT : JUST WHAT I SAID WITH RESPEC T 22 HE COURT : YES. 23 TO THE QUOVA CONTRACT, I'M NOT SURE WHY THAT WOULD 23 R. KRATZ: HE'S WRONG BECAUSE THAT'S NOT 24 BE INDICATIVE OF ANYTHING. 24 WHAT THE COMPLAINT SAYS . THE COMPLAINT DETAILS ALL 25 R . KRAMER : THE LANGUAGE IS IDENTICAL . 25 OF THE THINGS THEY DID AND THEN IT SAYS THAT WERE

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1 INCORPORATING EVERYTHING AND WHAT THEY HAVE DONE ] 2 A VIOLATION . AND IF THEY WANTED MORE INFORMATIO N 3 ABOUT IT, THEY WOULD HAVE ASKED AND THEY DID. 4 HE COURT : WHERE WOULD YOU POINT TO IN 5 YOUR COMPLAINT THAT YOU SAY IS A PROVISION THAT 6 FAIRLY PUTS AT ISSUE THE ADSENSE PROGRAM, OTHE R 7 THAN THE ADSENSE PROGRAM, OTHER THAN THE GENERAL 8 REFERENCE ? 9 R . KRATZ : THAT S IT. WE SAID WE HAVE 10 GOOGLE'S MISUSE AND THE FIRST PARAGRAPH IS RELATED 11 TO ADSENSE RESEARCH, WHICH IT DOESN T SAY THAT , 12 JUST IS AND THE SECOND PARAGRAPH IS ADSENSE FOR 13 CONTENT. 14 HE REASON IT'S BROKEN OUT DIFFERENTLY IS 15 BECAUSE THERE'S A LITTLE BIT OF A NUANCE THAT I S 16 DIFFERENT ABOUT CONTENT BECAUSE THERE'S ANOTHE R 17 ARGUMENT TO BE MADE ABOUT ADSENSE FOR CONTENT 18 HE SAID THAT THE REST OF THE ARG UMENT, THE MAIN AND 19 ARGU MENT IS A THROW AWAY BECAUSE FPS ALL ABOUT 20 INFORMATION SEARCH OR NOT . THE VERY FIRST TIME 21 GOOGLE WAS CONTACTED ABOUT IT, THEY WERE TOLD WE 22 HAVE A PROBLEM WITH IT BECAUSE ITS IMPROPER 23 SHARING AND DISCLOSURE AND LICENSING AND ALL OF THE 24 RESTRICTIVE THINGS. IT'S IN THE COMPLAINT THAT 25 THEY CANT DO THI S LICENS ING AND THE IDEA THAT HE
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MAKES SUBSTANTIAL MONEY FROM NONINFORMATION SEARC RELATED ADVERTISEMENT'S. IT'S ABOUT NONINFORMATION SEARCH RELATED PROGRAMS, ADSENSE FOR CONTENT . 40 AND 41 BOTH LIMIT IT THAT WAY . SO THAT'S WHAT WE HAVE BEEN OPERATING UNDER. THAT'S WHY WE DON'T THINK ADSENSE FOR SEARCH IS IN THE CASE . WE HAVE SPECIFICALLY SAID IF YOU WANT TO ADD IT TO THIS CASE, WELL CONSIDER IT, WE'R E WILLING TO DO IT BACK IN JANUARY, BUT SEVEN MONTHS LATER OR SIX MONTHS LATER, SIX AND A HALF MONTHS LATER, DISCOVERY IS CLOSED . WERE GOIN G TO TRIAL . IT SHOULDN T BE IN THE CASE, AND IF IT IS WE HAVE EEN SUBSTANTIALLY PREJUDICED AS A R ESULT. S O THAT'S MY TAKE ON ADSENSE SEARCH, YOUR HONOR THE COURT: TO THE EXTENT THAT YOU RE MAKING SOME BURDEN ARGUMENT WITH RESPECT TO ADSEN S
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20 R. KRAMER: UH-HUH. 21 HE COURT : - I DIDN T GET MUCH IN THE 22 WAY OF GIVING ME A SENSE OF WHAT IT WOULD MEAN IF 1 23 SAID THAT THAT IS MATERIAL THAT SHOULD GO OVE R 24 R . KRAMER: YES, YOUR HONOR. BEFORE I 25 START TALKING ABOUT THE BURDEN, I DON'T KNOW
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1 SPENT 15 PAGES ON SEARCH AND I PAGE ON THE REST OF 2 THE ALLEGATIONS IN THE COMPLAINT RELATING TO 3 . 1 3 AND 7, YOU CAN LOOK AT THEIR BRIEF AND ITS ABSURD 4 THAT HE'S MAKING THIS ARGUMENT NOW. IT'S ABSURD 5 THAT HE'S MAKING THIS ARGUMENT WITH RESPECT TO THE 6 THIRD PARTIES AND CONTRACTS BEING IDENTICAL WHICH 7 THEY'RE NOT. 8 HE COURT: OKAY. WERE NOW GO IN G FAR 9 AFIELD . 10 R . KRAMER : YOUR HONOR, I'M NOT GO IN G TO 11 JOIN THAT ARGUMENT. I 3UST WANT TO POINT YOU TO 12 41 . 13 THE COURT: LET ME STOP YOU ALL NOW FOR A 14 MOMENT. EVERYONE STOP . 15 YOU CAN GO AHEAD AND SIT DOWN, MR . KRATZ, 16 AND WE WILL RESUME . 17 MR . KRAMER: PARAGRAPH 41 ALSO MAKES 18 SPECIFIC REFERENCE TO GOOGLE MAKES SUBSTANTIAL 19 INCOME AND PROFIT FROM THE PLACE MENT OF 20 GEOGRAPHICALLY TARGETED NONINFORMATION SEARCH 1 RELATED ADVERTISE MENTS. THAT S IN THE A MENDED 22 COMPLAINT 41 . 23 SO IN 40 IT REFERENCES NONINFORMATIO N 24 SEARCH RELATED ADVERTISEMENTS AND THEN IN 41 WHE N 2 5 THEY TALK AB OUT HOW THEY HAVE BEEN INJURED, GOOGLE

EVERYBODY IN THE COURTROOM AND THERE ARE SO ME RELATIVELY SENSITIVE DATA POINTS THAT GOOGLE WOULD LIKE NOT DISCLOSED PUBLICLY. THE COURT: ABOUT THE BURDEN? MR. KRAMER: ABOUT THE NUMBER O F PUBLISHERS AND ADVERTISERS IN ITS VARIOUS PROGRAMS . THE COURT : BUT THAT S NOT WHAT I'M ASKING ABOUT. I DON'T NEED TO KNOW THAT FOR THIS PURPOSE . WHAT I NEED TO KNOW IS SOME VOLUME ASSESSMENT OF MATERIAL . YOU DON'T HAVE TO SAY HOW MANY . I WANT TO KNOW IS IT -- DOES IT INVOLVE SEARCHING AT NU MEROUS FACILITIES? DOES IT INVOLVE, YOU KNOW, THAT KIND OF THING? I DONT SEE WHY THAT IS DISCLOSING ANYTHING OTHER THAN JUST MAGNITUDE. MR KRAMER : WELL, THE MAGNITUDE IS DEFINED BY THE NUMBER OF PUBLISHERS AND THAT IS ACTUALLY IN THE PAPERS BUT ITS WITHOUT DISCLOS ING . THE COURT: NUMBERS DON'T TELL ME MUCH. YOU CAN HAVE -MR. KRAMER: ITS NOT 10 CONTRACTS. IT'S NOT 100 CONTRACTS . ITS NOT 1,000 CONTRACTS. IT'S NOT 1,000 NEGOTIATIONS. IT'S HUNDREDS OF THOUSANDS OF NEGOTIATIONS AND MILLIONS OF WEB SITES . AND YOUR HONOR IS RIGHT TO FOCUS ON BURDEN WITH RESPEC T TO VIRTUALLY ALL OF THIS DISCOVERY BECAUSE ITS

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MASSIVELY BURDENSOME AND AS YOU WERE GOING BACK ANT FORTH WITH MR. KRATZ, I HAD A DEIA VU EXPERIENCE BECAUSE WE WERE HERE TALKING ABOUT DISCOVERY RELATING TO 22 PUBLISHERS, DISCOVERY RELATING TO 22, AND THE COURT SAID THAT IS ENORMOUSLY BURDENSOME . WHAT ARE YOU TALKING ABOUT? SHOW ME THE CAUSAL CONNECTION . SHOW ME WHAT THE DISCOVERY IS GOING TO SHOW YOU THAT BEARS ON YOUR CASE AND NOW WE'RE TALKING ABOUT HUNDREDS OF THOUSANDS OF PUBLISHERS AND MILLIONS OF WEB SITES . THAT IS PROBLEMATIC . THAT WOULD TAKE, ACCORDING TO THE DECLARATIONS THAT WE SUBMITTED, WHICH ARE UNREBUTED, MONTHS. THE COURT : AND THIS IS SHIFTING FOCUS A BIT BUT WHAT IS THE DEGREE TO WHICH MR . KRATZA IS ARGUING THAT DIGITAL ENVOY'S TECHNOLOGY IS USED IN EVERYTHING? ADDRESS THAT POINT . MR. KRAMER : YOUR HONOR, I FIND MYSELF IN THE UNIQUE POSITION OR SELDOM POSITION OF AGREE ING WITH MR . KRATZA. THE AMENDMENT, THE LIMITATION THAT YOUR HONOR IS PROPOSING IS NOT AN ACTUAL LIMITATION . THE COURT : OKAY. MR . KRAMER : THE WAY GOOGLE USES THIS TECHNOLOGY IS THAT WHEN A REQUEST CO MES FOR AN AD Page 4 7

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YOU'RE IN A POSITION TO KNOW . YOU LOST A SALE. YOU LOST A LICENSEE . WHO, IDENTIFY THAT ONE FOR US, OR IDENTIFY THOSE TEN FOR US AND THEN WE HAV E SOMETHING TO TALK ABOUT. THAT'S WHAT I SAID TH E LAST TIME WE WERE HERE TALKING ABOUT THIS ISSUE. CO ME FORWARD WITH SOMETHING TO MAKE M E BELIEVE THAT THAT ACTUALLY HAPPENED AND THEN YO U HAVE DEMONSTRATED GOOD CAUSE FOR DISCOVERY RELATIN G TO THAT PUBLISHER. NOW, THERE'S A REASON WHY THEY HAVENT COME FORWARD WITH THAT. BECAUSE IT DOESN T MAKE ANY SENSE GIVEN THE WAY THIS BUSINESS WORKS. THE PUBLISHERS WHO ARE OPERATING IN GOOGLE'S NETWOR K DON'T CARE ABOUT GEOTARGETING . THE COURT : THAT'S YOUR ASSUMPTION . ISNT YOUR ARGUMENT THAT THOSE PEOPLE WERENT OU T IN THE MARKETPLACE BECAUSE THEY DIDNT HAVE T O BECAUSE YOU UTILIZ IN G THEIRS TOOK THOSE PLAYERS OU T OF THE MARKETPLACE? MR KRAMER : YOUR HONOR, GEOTARGETING ISNT EVEN MENTIONED IN GOOGLE'S MATERIALS FOR PUBLISHERS . THEY REN'T'ED THE SPACE ON THEIR SITES . WE DO NOT OFFER PUBLISHERS THE ABILITY TO GEOTARGE T OR OTHERWISE . THEY HAVE NO IDEA WHETHER THE AD S THAT THEY RE GETT ING ARE GEOTARGETED OR NOT. THEY Page 4 9

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IN MOST CASES THERE WILL BE SO ME CONSULTATION OF THE DATA TO DECIDE WHAT AD. IF IT'S ONE OF MANY VARIABLES, 20 TO 25 DIFFERENT VARIABLES THAT GOOGLE USES IN ORDER TO DETERMINE WHAT AD TO SELECT BUT IMPOS ING A LIMITATION BY SAYING WHAT, WHAT ADS USE THEIR IP AND WHICH DO NOT IS NOT EFFECTIVE . THE COURT : ALL RIGHT. MR. KRAMER: IT'S EFFECTIVE WITH ADVERTISERS BUT NOT WITH RESPECT TO PUBLISHERS . THE COURT : ALL RIGHT. MR . KRAMER: I DON'T KNOW IF YOU WANT ME TO TALK ABOUT THE ISSUE MORE GENERALLY ABOUT THEIR DAMAGES THEORY, YOUR HONOR, BECAUSE I THINK THAT'S WHERE THE RUBBER MEETS THE ROAD IN THIS CASE AND ON THESE MOTIONS AND IM HAPPY TO DO IT . THE COURT : ALL RIGHT. MR . KRAMER: THEY HAVE TWO. THEY HAVE AN ACTUAL DAMAGES THEORY AND AN UNJUST ENRICHMENT THEORY . THE ACTUAL DAMAGES THEORY IS THAT SO ME OF THE HUNDREDS OF THOUSANDS OR ONE OF THE THOUSANDS OF PUBLISHERS IN GOOGLE'S NETWORK WOULD HAVE TAKEN A LICENSE FROM DIGITAL ENVOY BUT FOR GOOGLE'S USE OF THE DATA IN ITS ADVERTISING PROGRAMS . THE COURT : RIGHT. MR. KRAMER: WE SAID TO THEM, TELL US HOW

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HAVE NO CONTROL OVER THE ADS THAT ARE RECEIVED . ALL THEY CARE ABOUT IS THAT THEY GET ADS, USERS CLICK ON THEM AND THERE'S A REVENUE SHARE . THAT' S WHAT DRIVES THE DECISION. THERE'S BEEN NO SHOW IN G AT ALL THAT A PUBLISHER THAT PARTICIPATES IN GOOGLE'S NETWORK CARES ABOUT GEOTARGETIN G AT AL L AND GOGGLE DOESNT THINK THEY DO BECAUSE THEY DON T MARKET. PUBLISHERS DON'T FIND OUT. THE COURT: SO IN YOUR THEORY WHAT IS I T THAT THEY NEED TO SHOW? THEY NEED TO SHOW SO ME POTENTIAL CUSTOMER COMING TO THEM AND SAYING WER E CONSIDERING WHETHER OR NOT TO LICENSE DIRECTLY WITH YOU AND THEN THOSE PEOPLE GO OFF AND THEY BECO ME , THEY BECOME GOOGLE CUSTO ME RS AND YOU NEVER SEE THE AGAIN . MR. KRAMER: THAT CERTAINLY WOULD BE GOOD CAUSE FOR THAT PUBLISHER BUT WERE NOT EVEN THERE . AND I HAVE TO TELL YOU NOT ONLY HAVE THEY NOT DEMONSTRATED THAT ANY OF THE PUBLISHERS IN GOOGLO S CARE ABOUT IT BUT THERE'S A REASON WHY THE Y PARTICIPATE IN A ADVERTISING NETWORK . MY SON'S WEB SITE HAS ADS FROM GOGGLE ON IT . I'M NOT GOING TO GO GET A LICENSE FROM DIGITAL ENVOY SO I CAN HAVE GEOTARGETED ADS ON MY SON' S SITE . THEY DON'T HAVE INVENTORY OF ADVERTISEMENTS.

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THEY DON'T HAVE HARDWARE AND TARGETING PROCESSES . THEY DON'T HAVE SOFTWARE . THEY DON'T HAVE A LICENSE FROM DIGITAL ENVOY AND THEY DONT NEED ONE. THAT'S WHAT WE'RE TALKING ABOUT. THE COURT : NOW, BRING THIS BACK IN , HAVING LET YOU OPEN THE DOOR TO HAVING DISCUSSE D THIS GENERALLY BRING IT BACK TO THE DISCOVER Y MOTIONS . MR . KRAMER: SO THEY ASKED US TO IDENTIFY 10 PUBLISHERS IN THE NETWORK, HUNDREDS OF THOUSANDS , 11 THEN THEY ASKED FOR EVERY CONTRACT OF EVERY 1 2 PUBLISHER, HUNDREDS OF THOUSANDS . THEN THEY ASKED 1 3 FOR ALL NEGOTIATIONS OR NEGOTIATOR, HUNDREDS OF 1 4 THOUSANDS. THEN THEY SAID FOR EVERY PUBLISHER THAT 1 5 PARTICIPATES IN YOUR NETWORK, HERE'S AN EIGHT 16 FACTORED MULTI CALCULATED MATHEMATICAL PROCESS I 17 WANT YOU TO ENGAGE IN DRAWING INFORMATION FROM 18 SERVERS ALL OVER THE PLACE TO FIGURE OUT FOR EVERY 1 9 ONE OF THOSE PUBLISHERS HOW MUCH MONEY YOU GOT, HOW 2 0 MUCH WAS DERIVED THAT WERE GEOTARGETED WHETHER TH E 2 1 CARED OR NOT, AND HOW MUCH WAS DERIVED FROM . I 2 2 MEAN, IT'S MIND BOGGLING IN TERMS OF WHAT THE 2 3 REQUESTS ACTUALLY ASK FOR WITH RESPECT TO 2 4 PUBLISHERS . 25 IT'S LAID OUT IN OUR PAPERS AND I Page 5 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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YOU KNOW, YOU KNOW, CALM DOWN ON THE MERITS AN D LET'S GO ON WITH DISCOVERY . MR. KRAMER: UH-HUH . BUT ONE THING THAT IS NOT IN DISPUTE, AS I UNDERSTAND IT, IS THAT DIGITAL, OR THAT GOGGLE, RIGHTLY OR WRONGLY, IS A T A CERTAIN POINT IN TIME OUT TELEVISING DIGITAL ENVOY'S INTELLECTUAL PROPERTY FOR PURPOSES OF DOIN G SOME GEOTARGETING. THEY RE LICENSED TO OR NOT AN D THAT'S THE DISPUTE THAT WERE LITIGATING . MR. KRAMER: UH-HUH. THE COURT : BUT THAT HAS HAPPENED ? MR. KRAMER: YES, YOUR HONOR . THE COURT : ALL RIGHT. NOW, FOR DISCOVERY PURPOSES, THEY ARE SAYING THAT, THAT THE Y WANT TO GET INFORMATION THAT IN A GROSS SENSE GIVE S THEM SOME BASIC FACTS ABOUT WHO THESE PEOPLE AR E THAT ARE USING, MAYBE THEY DONT CARE ABOUT USIN G IT, BUT NONETHELESS THEY ARE USING THEI R INTELLECTUAL PROPERTY, AND THEN THEY ARE MOUNTIN G THE ARGUMENT THAT THOSE CUSTOMERS ARE NOT CUSTOMER S AVAILABLE TO THEM. AND I HEAR WHAT YOU SAY WHICH IS, WELL , IN ORDER TO GET I GUESS TO JUSTIFY THAT, THAT REQUEST FROM IN YOUR MIND THEY NEED TO SAY SHO W SOME INSTANCES IN WHICH THOSE PEOPLE WERE SHOPPIN G Page 5 3 AROUND FOR GEOTARGETING AND UNTIL THEY DO THAT , THIS IS TOO FAR AFIELD. MR . KRAMER: IT'S MORE THAN THAT, THAT IT'S NOT JUST TOO FAR AFIELD, IT'S A MIND BOGGLIN G AND BURDENSOME AS REQUESTED . THE REASON FOR SAYIN THEY NEED TO COME FORWARD WITH SOMETHING FIRST I S BECAUSE THAT'S HOW YOU LIMIT THE BURDEN . THAT'S HOW YOU SAY, OKAY, HERE'S SOMEBODY, HERE ARE FIV E COMPANIES THAT WE THINK WE WOULD HAVE LICENSED O U DATA TO, BUT FOR GOOGLE'S SUPPOSED MISUSE OF TH E DATA ON THE PUBLISHER SIDE . WE HAVENT TALKED ABOUT THE ADVERTISER'S SIDE YET. AND I HAVE A SEVENTH CIRCUIT CASE BY JUDGE POSNER WHICH TALKS ABOUT DAMAGES IN A TRAD E SECRET CONTEXT AND HE SAID, "FOR YEARS WE HAVE BEEN SAYING WITHOUT MUCH VISIBLE EFFECT THAT PEOPLE WHO WANT DAMAGES HAVE TO PROVE THEM USIN G METHODOLOGIES THAT NEED NOT BE INTELLECTUALL Y SOPHISTICATED BUT MUST NOT INSULT THE IN'T'ELLIGENCE . POST HOC ERGO PROPTER HOC WILL NOT DO ; NOR TH E ENDUING OF SIMPLISTIC EXTRAPOLATION AND CHILDIS H ARITHMETIC WITH THE APPEARANCE OF AUTHORITY B Y MIRING A PROFESSOR TO MOUTH DAMAGES THEORIES THA T MAKE A JOKE OF THE CONCEPT OF EXPERT KNOWLEDGE ." THE COURT: OF COURSE, JUDGE POSNER IS

PROBABLY LAID IT OUT IN THE PAPERS BETTER THAN I 1 2 COULD . THERE'S ONE INTERROGATORY THAT IS EIGHT PARTS, WHICH IN AND OF ITSELF IS OBJECTIONABLE BUT 3 IT'S PARTICULARLY OBJECTIONABLE WHEN YOU APPLY THAT 4 EIGHT PART INTERROGATORY TO A WORLD IN WHICH THESE 5 6 PUBLISHERS DON'f CARE, THESE PUBLISHERS, YES, THEY RE POTENTIAL CUSTOMERS OF DIGITAL ENVOY BUT 7 IT'S NOT ENOUGH TO SAY THAT . EVERYBODY IS A 8 POTENTIAL CUSTOMER OF ENVOY . WHAT THEY NEED TO 9 SHOW IS SOME CAUSAL CONNECTION BETWEEN LOST 10 BUSINESS AND GOOGLE'S OPERATION . 11 AND ONE LAST CAUSAL LINK THAT IS MISSING 12 HERE IS LET'S ASSUME THERE'S A PUBLISHER WHO 13 ACTUALLY CARES ABOUT GEOTARGETING . LET'S ASSUME 14 THAT THAT PUBLISHER WAS ACTUALLY WILLING TO CREATE 15 AN INFRASTRUCTURE TO SERVE GEOTARGETED ADS AS 16 OPPOSED TO GOING TO SOME DIFFERENT' NETWORK THAT 17 WOULD GIVE THEM THE ADS IF THEY CARED ABOUT 18 GFOTARGETING, THEN THERE'S A QUESTION THAT THERE 19 ARE STILL PEOPLE OUT IN THE WORLD THAT APPLY 20 GEOTARGETING AND HOW WOULD WE KNOW THEY WOULD HAN, E21 GONE TO DIGITAL ENVOY? 22 23 THE COURT : BUT, AGAIN, I'M NOT GOING TO 23 24 SUGGEST THAT THE ANSWER TO A DISCOVERY MOTION 24 25 REQUEST IS ALWAYS, WELL, IT'S JUST DISCOVERY SO, 25

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1 UNIMAGINABLE BURDEN ON GOOGLE WITH RESPECT TO THI S 2 DISCOVERY, LITERALLY, UNDISPUTED, MONTHS, TO GATHE R 3 THIS INFORMATION AND DO THE CALCULATIONS, THEY SEE M 4 TO THINK WE CAN DO IT AT THE TOUCH OF A BUTTON . 5 1992 . 5 THAT S NOT SO AND THE EVIDENCE IS TO THE CONTRAR Y 6 WHAT HE'S SAYING IS THAT T HIS THEORY 6 AND IT'S UNDISPUTED. THEY WANT THIS MASSIVE BURDE N 7 THEY'RE ADVANCING HERE YOU CAN LOOK AT IT NOW AND 7 TO BE TAKEN BY MY CLIENT AND HUNDREDS OF MILLIONS 8 DECIDE THI S DOESN'T MAKE A LOT OF SENSE AND IT 8 OF DOLLARS FOR A PIPE DREAM. AND UNTIL THEY COM E 9 DOESN'T MAKE ANY SENSE AS FAR AS GOOGLE IS 9 FORWARD WITH SOMETHING THAT SHOWS THAT PIPE DREAM 10 CONCERNED . 10 HAS SOME BASIS IN REALITY, SOME GOOD CAUSE, THERE'S 11 HE COURT : IT DOESN'T MAKE ANY SENSE IF 11 NO BASIS FOR GRANTING THE DISCOVERY CONCERNING TH E 1 2 YOU ACCEPT THE ASSUMPTION BEHIND THE ARGUMENT WHIC H 1 2 PUBLISHERS . 1 3 IS NONE OF THESE PEOPLE, NONE OF THESE PUBLISHERS 13 THE COURT: LAST COMMENT AND THEN WEL L 1 4 IS GOING TO CARE ABOUT THE GEOTARGETING ASPECT OF 1 4 BRING IT TO A CLOSE . 1 5 IT . IT COMES ALONG WITH THE PACKAGE. THEY REALL Y 15 MR. KRAMER: YOUR HONOR, I DID NO T 1 6 DON'T CARE. 1 6 DISCUSS THE ISSUE OF ADVERTISEMENTS, WHICH I S 17 MR . KRAMER : THEY DON'T KNOW. 1 7 EQUALLY BURDENSOME AND EQUALLY PROBLEMATIC . THAT' S 18 1 8 THEIR UNJUST ENRICHMENT THEORY . AND I DON'T WANT THE COURT : EITHER THEY DON 'T KNOW OR 1 9 CARE BUT THE BOTTOM LINE IS THAT IT'S A GIVEN THAT 1 9 TO SUGGEST. IT'S CRITICAL THAT WE TALK ABOUT BOTH 2 0 THEY WILL NOT BE IN THE MARKETPLACE FOR 2 0 OF THESE SO THE COURT UNDERSTANDS EXACTLY WHAT 2 1 GEOTARGETING. THEY WON'T BE OUT THERE ACQUIRING 2 1 BURDEN IS BEING ORDERED IN THE EVENT THAT ANY 2 2 THAT SERVICE. 2 2 DISCOVERY ON ANY OF THIS PROCEEDS . 23 MR. KRAMER : IF THAT'S WHAT THEY CONTEND, 23 THE COURT : YOU'VE GOT BY THE TIME IT'S 2 4 LET THEM COME FORWARD AND SAY, HERE'S PROOF. WE 2 4 20 OF YOU'RE SITTING DOWN. OKAY . GO AHEAD . 25 HAVE PROOF . WE OFFERED EVIDENCE THAT THEY DON'T 25 MR . KRAMER : WITH RESPECT TO TH E Page 5 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CARE . WE OFFERED THE TESTIMONY OF MR . SMvlELL WHO EXPLAINED THAT PUBLISHERS DON 'T CARE AND WOULDNT DO WHAT THEY'RE SUGGESTING HERE. HAVE AS A RESULT OF DEPOSITIONS THAT WERE TAKEN AFTER THE PAPERS WERE SUBMITTED ON THIS MOTION, THE TESTIMONY OF DOUBLE CLICK AND ADVERTIS IN G.COM, TWO OTHER ADVERTISING NETWORKS WHO SAID THAT THEY DON'T CARE. THEY WOULDN T DO WHAT DIGITAL ENVOY IS SUGGESTING . PM HAPPY TO SHOW IT . THE COURT : BUT IF ANECDOTAL MATERIAL THAT SHOWS VARIOUS PUBLISHERS DON'T CARE, WHY IS THIS? MR . KRAMER: THESE AREN'T PUBLISHERS, THEY OPERATE NETWORKS . THEY'RE IN THE SAME EXACT POSITION AS GOGGLE. THEY SAY NO ONE WOULD LEAVE FROM THEIR NETWORK . ACTUALLY DOUBLE CLICK SAYS O A YEAR MIGHT, MIGHT, MI GHT, MIGHT LEAVE FROM BE ING A PUBLISHER TO TAKING A LICENSE DIRECTLY, ONE A YEAR, AND A DVERTISING .COM SAYS, NO, THAT DOESN'T MAKE ANY SENSE AND THEY'RE IN THE EXACT SAME THROW AS GOGGLE. THEY WERE AT THE DEPOSITION AND I'M HAPPY TO SHARE THE TESTIMONY WITH THE COURT . THE POINT IS RULE 26 SAYS FOR GOOD CAUSE SHOWN . 24 THE COURT : RIGHT. 25 MR. KRAMER: THEYRE LOOKING TO IMPOSE AN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 5 7 ADVERTISERS, THE DISCOVERY IS IF ANYTHING EVEN MOR E BURDENSO ME . THERE'S A REQUEST THAT SAYS THAT GIVE ME ALL COMMUNICATIONS ABOUT ANYTHING EVER WITH AN Y OF THE HUNDREDS OF THOUSANDS OF ADVERTISERS IN YOUR NETWORK . THAT'S A REQUEST THAT THEY SERVED AND IT'S HARD TO TELL WHET HER TH EYRE SERIOUS ABOU T THAT BECAUSE THE BURDEN WOULD BE UNIMAG INABLE . THE COURT: WELL, ARE THERE ANY LIMITS THAT YOU CAN SUGGEST TO IT? I KNOW YOUR POSITION IS THAT YOU DON'T WANT ANY DISCOVERY BUT - MR. KRAMER: NOT AT ALL. IF THEY CAME FORWARD AND SAID HERE'S A PUBLISHER THAT WE WOUL D HAVE LICENSED TO BASED ON SO ME EVIDENCE, WE WOULD GIVE THEM DOCUMENTS . IN FACT, I REPRESENTED AT THE LAST HEARING, WE WOULD GIVE THEM DOCU ME NT S REFLECTING THE COMMUNICATIONS BACK AND FORTH WIT H THE PUBLISHER. THERE ARENT GO ING TO BE ANY THAT MENTION GEOTARGETING OR DIGITAL ENVOY BUT THAT'S A FACT AND WELL LET AND GET THEM THAT WITH THE SAM E PUBLISHER . THE COURT : WHY ISN'T THERE A POSSIBILITY OF DOIN G IT ON A SAMPL ING BASIS? I MEAN, TH E NOTION THAT THEY HAVE TO CO ME FORWARD AND GIVE Y O 24 NAMES AND THEN THEY'LL GIVE YOU DISCOVERY, I THINK 25 THAT'S SHIFTING THE BURDEN SOMEWHAT .

1 NOT OPINING ON A DISCOVERY MOTION ONE ASSUMES? 2 MR . KRAMER : THAT'S RIGHT, HE IS NOT 3 OPINING . THE CASE IS SCHILLER & SCHMIDT, INC ., V . 4 NORDISCO CORP ., 969 F.21) AT 416, SEVENTH CIRCUIT,

15 (Pages 54 to 57 )

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I ME AN, IF YOUR ARGUMENT IS THAT YOURS 1 NEVER GOIN G TO FIND ANYTH IN G IN HERE THAT IS GOING 2 TO DEMONSTRATE THAT THESE ARE POTENTIAL CUST OMERS 3 THAT WERE NOT AVAILABLE FOR YOUR CONDUCT, YOU 'RE 4 JUST NOT GOING TO DO IT, WELL, MAYBE ONE 5 ALTERNATIVE TO CONS IDER IS WHETHER OR NOT THERE IS 6 SOME KIND OF INITIAL DISCLOSURE ON SOME SORT OF 7 8 SAMPLING BASIS SO THEY CAN LOOK AT IT . I MEAN, MY 8 9 CONCERN ABOUT ALL OF THE WAY YOURE APPROACHING 9 10 THIS, MR . KRAMER, IS THAT YOU HAVE A VERY DEFINITE 10 11 VIEW OF THIS CASE, GREAT, YOU MAY WIN WHEN YOU 11 12 LITIGATE IT ALL OUT, BUT YOU'RE APPLYING YOUR VIEW 12 13 OF THE WORLD TO THEIR DISCOVERY REQUESTS . 13 14 MR. KRAMER : UH-HUH. 14 15 THE COURT: NOW, ON THE BURDEN ISSUE YOU 15 16 HAVE TO HAVE SOMETHING TO SAY AND I UNDERSTAND THA W 17 BUT IT IS NOT THE USUAL PRACTICE, AND YOU DID NO T 18 GET SUMMARY JUDG MENT ON EVERYTHING . YOU GOT IT ON 19 SOME THINGS. YOU CANT SAY MY VIEW OF THE WORLD IS 20 X AND THAT'S HOW MY DISCOVERY IS GOING TO PROCEED, 21 CONSISTENT WITH MY VIEW OF THE WORLD . 22 R. KRAMER : I UNDERSTAND, YOUR HONOR. 23 THE IDEA IN APPROACHING THIS, I MEAN, I WISH WE 24 WERENT HERE IN THE CONTEXT OF A MOTION TO COMPEL 25 AND WE IN STEAD WERE ADDRESSING ISSUES INVOLVING Page 5 9
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REGARD IS THAT THEY CONCEDE AND HAVE CONCEDED ALL ALONG IS THAT AD WORDS IS LICENSED . ADVERTIS ING CO ME TO GOGGLE FOR AD WORDS. MR . DENUCCI'S DECLARATION SAYS THAT. THAT'S THE PROGRAM THEY ALL PARTICIPATE IN . SOME PARTICIPATE IN ADSENSE FOR CONTENT . S O IF DIGITAL ENVOY WANTS TO SHOW THAT THERE'S AN ADVERTISER OUT THERE THAT WOULD NOT HAVE PARTICIPATED IN THE ADSENSE FOR CONTENT PROGRAM ONLY, IF DIGITAL ENVOY'S DATA WASN 'T AVAILABLE FOR THEM THROUGH GOGGLE, HAVE AT IT . IT'S IMPOSSIBLY SPECULATIVE . IT'S IMPOSSIBLY SPECULATIVE AND ITS EVEN MORE COMPLICATED THAN THAT BECAUSE AT THE END OF THE DAY THE ADVERTISERS IF THEY THINK THAT THEIR ADS ARE GOING TO BE SLIGHTLY LESS TARGETS BECAUSE DIGITAL ENVOY'S DATA ISN 'T THERE, THEY RE STILL GOING TO PARTICIPATE IN THE PROGRAM . THEY RE STILL GOING TO PARTICIPATE BECAUSE ALL THEY CARE ABOUT IS GETTIN G USERS TO THEIR SITE . THEY CARE ABOUT CHECKS . SO IF GOOGLE'S IS SLIGHTLY LESS TARGETE D THEY MIGHT GET FEWER AND MIGHT HAVE PAID SLIGHTLY LESS MONEY FOR THEM HYPOTHETICALLY BUT HOW YOU CAN POSSIBLY GET THERE BY SAYING GIVE ME EVERY DOCUMENT YOU EVER EXCHANGED WITH EVERY ONE OF YOUR HUNDREDS OF THOUSANDS OF ADVERTISERS, IT JUST, THERE'S NO Page 6 1

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LIMITATION OF LIABILITY CAUSES IN THE CONTRACT AND 1 THE INABILITY TO DEMONSTRATE CAUSATION AS A MATTER 2 OF LAW, BUT THAT' S NOT WHY WERE HERE . 3 THE COURT: I -4 MR. KRAMER: WERE HERE TO TALK ABOUT 5 DISCOVERY AND SINCE THIS IS THE VEHICLE, THE ONLY 6 VEHICLE WHICH I HAVE TO RAISE THE ARGUMENTS 7 INVOLVING THE PIE IN SKY NATURE OF THEIR DAMAGES 8 THE ORY I HAVE TO RAISE IT HERE. I WISH I COULD 9 BRING IT IN A DIFFERENT CONTEXT, BUT THE COURT IS 10 ENTITLED TO RECOGNIZE JUST AS TENUOUS A THEORY THIS 11 IS IF IT HAS ANY BASIS IN REALITY AT ALL . AND WITH 12 RESPECT TO THE ADVERTISERS, LET ME BRING IT BACK TO 13 THEY WANT TO SHOW THAT AN ADVERTISER WOULDN'T HAV]t 14 ADVERTISED WITH GOGGLE BUT FOR THE AVAILABILITY OF 15 GEOTARGETING. THAT S THEIR UNJUST ENRICHMENT 16 THEORY . 17
THE COURT: OKAY. 18 19 20 21 22 23 24 25

19 MR. KRA MER : GOOGLE MAKES ITS MONEY FROM 20 ADVERTISERS. PUBLISHERS DON'T PAY GOOGLE . THE 21 OTHER WAY AROUND . 22 THE COURT : T HE Y RE JOINT VENTURERS . 23 MR. KRA MER : IN EFFECT . WE, WE RENT OUT 24 THE SPACE THAT THE PUBLIS HERS OFFER. 25 THE PROBLEM FOR DIGITAL ENVOY IN THIS

EFFORT AT ALL AS YOUR HONOR SAID AT THE START . THE COURT: THE SECOND PART, THE LAS T THING YOU JUST SAID IS THE ONE THAT HAS SOME , SOME RESONANCE WITH ME WHI CH IS THE BURDEN ISSUE, BU T THE MERITS DISCUSSION, THE ARGUMENT THAT, THAT YOU THINK YOU 'RE GOING TO BE ABLE TO EVISCERATE THEI R DAMAGES THEORY AND THE LIKE IS NOT A DISCOVERY ARGUMENT TO ME . WHAT I WANTED TO FOCUS ON IS IF YOU SAY ITS GROSSLY OVER, GROSSLY BURDENSO ME AND OVERBROAD, THEN WHAT ARE THE LIMITS ON IT THAT MAKE E SENSE, NOT THE, YOU KNOW, THEY RE NOT GETTIN G ANYTHING BECAUSE THEYRE CIRCL ING AROUND AND THERE'S NO WAY THEY RE GOING TO MAKE THIS DAMAGE CLAIM AND THIS, THAT, AND THE OTHE R THING . YOU MA Y BE RIGHT, MR. KRAMER, I DONT KNOW, WE HAVENT REACHED THAT POINT IN T HE CASE BUT I HAVE REAL TROUBLE WITH THE NOTION THAT IN A DISCOVERY CONTEXT I OUGHT TO BE MAKING THE CALLS ON WHETHER OR NOT THEY HAVE GOT A DAMAGE THEORY OR NOT AND, AN D THAT'S -- AND YOU ARE NOT GIVING ME A LOT OF HELP ON . OKAY. GRANTED WE DONT THINK MUCH OF T HE IR DAMAGE THEORY BUT AT THE VERY LEAST, BECAUSE OF TH E BURDEN ISSUE, WE SHOULD LIMIT, WE SHOULD PUT THES E CONSTRAINTS ON THEIR REQUEST, AND RESERVING THEIR

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1 RIGHT TO SAY THEY SHOULDN'T EACH GET A PIECE OF 2 PAPER, I UNDERSTAND THAT, BUT I'VE GOT THE CHOICE 3 NOW BETWEEN WHAT YOU'RE TELLING ME IS THE BEGINNING 4 OF THE APOCOLAS AND THEY'RE SAYING THEY DON'T GET A 5 PIECE OF PAPER . 6 MR. KRAMER : YOUR HONOR, I DON'T MEAN TO 7 GIVE YOU THAT EITHER OR CHOICE, BUT I THINK THE 8 LAST TIME WE WERE HERE YOUR HONOR SAID THAT'S NOT 9 YOUR JOB TO REWRITE THEIR REQUESTS. 10 THE COURT : THAT'S TRUE. 11 MR. KRAMER : THESE ARE THEIR REQUESTS . 12 THE COURT: YES. 13 MR . KRAMER : WE TOLD THEM WHAT OUR 14 POSITION WAS IN THE MEET AND CONFER NINE MONTHS 15 AGO. THEYRE NOT SAYING 1 WANT THE SUBSET . 16 THEY'RE SAYING I WANT YOU TO DO THIS . I WANT YOU 17 TO ORDER THIS, YOUR HONOR . AND IF THEY HAVE 18 SOMETHING ELSE THAT THEY WANT US TO PRODUCE THAT'S 19 LESS BURDENSOME THAT WE COULD MANAGE WITHOUT 20 MILLIONS OF DOLLARS IN EXPENSE, WELL, THEN WE 21 SHOULD BE TALKING ABOUT THAT BUT ITS NOT FOR US TO 22 INTRODUCE THAT INTO THE CONVERSATION . THESE ARE 23 THEIR REQUESTS AND THEIR MOTION . 24 LAST POINT . 25 THE COURT : YES. Page 6 3 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

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THE MOTION WE MADE PREVIOUSLY WAS NO T LIABILITY AND DAMAGES, IT WAS CONTRAC T INTERPRETATION AND EVERYTHING ELSE AND THAT WAS M MISTAKE . IT SHOULD HAVE BEEN LIABILITY AND DAMAGE S AND IF THE COURT IS CONSIDERING ALLOWING THIS KIN D OF SWEEPING DISCOVERY BIFURCATION IS APPROPRIATE . THE COURT : ALL RIGHT . THE FINAL WORD, MR. KRATZ. MR. KRATZ: YOUR HONOR, I KNOW YOU WANT TO MOVE THIS ALONG . THE COURT: PROFOUNDLY . MR . KRATZ: AND THE PROBLEM IS PM STRUGGLING WITH THAT BECAUSE WE HAVE GOT A SITUATION WHERE WERE HAVING OUR CLAIMS DEFINED FO R US, WERE HAVING OUR DAMAGES THEORIES DEFINED FO R US INCORRECTLY . ITS NOT THAT HE GETS TO SPEND AL L OF THIS TIME CHARACTERIZING. THE COURT : AND I'M NOT GOING TO BE MAKING -- THIS IS NOT THE HEARING, I KEE P REITERATING, WHERE I AM GOING TO BE MAKING CALLS O N THE MERITS OF THE CASE. BUT THE PROBLEM THAT I HAD, AND THIS GOE S BACK TO MY COMMENT BEFORE, AS I READ YOUR DISCOVER S REQUESTS, AND AS MR KRAMER CORRECTLY POINTS OUT, THEY ARE EXPANSIVE . YOU'RE NOT HELPING AND IT' S Page 6 5

MR KRAMER : LAST POINT AND THIS WILL BE THE LAST ONE . I DISAGREE WITH YOUR HONOR WITH 2 RESPECT TO WHETHER OR NOT YOU CAN LOOK AT THEIR 3 4 DAMAGES CLAIM IN CONNECTION WITH THE DISCOVERY MOTION . THE STANDARD IS, AS YOUR HONOR ARTICULATE] } 5 IT HAS TO BE RELEVANT. IF THIS DAMAGE CLAIM ISN T 6 7 GOING ANYWHERE . THE COURT : OR TO GOOD CAUSE AND LIKELY 8 LEAD TO THE DISCOVERY . 9 MR. KRAMER: IF THIS DAMAGE CLAIM ISN'T 10 GOING ANYWHERE, YOU CAN DECIDE THAT AND SAY 11 DISCOVERY ISN T RELEVANT BECAUSE THIS DAMAGE CLAI 12 ISN'T GOING ANYWHERE. IF YOU HAVE A DIFFERENT 13 THEORY THAT IT IS RELEVANT, LET ME HEAR IT BUT THIS 14 CLAIM ISNT GOING ANYWHERE . 15 16 AND LASTLY, IF YOUR HONOR IS GOING TO ORDER THIS KIND OF BURDENSOME DISCOVERY WE TALKS 17 ABOUT THE MOTION TO BIFURCATE. THERE'S NO REASON 18 THAT WE COULDNT NOW BIFURCATE LIABILITY AND 19 DAMAGES . ITS AN ISSUE OF INTERPRETATION AND 20 INTENT . AND WE CAN TRY THOSE ISSUES AND TALK ABOUT ' 21 WHAT DISCOVERY, IF ANY, THEY ARE ENTITLED TO BUT 22 BEFORE YOU IMPOSE MILLIONS OF DOLLARS OF BURDEN O 23 GOOGLE I THINK WE OUGHT TO CONSIDER THE ISSUE OF 24 BIFURCATION . 25
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YOUR ROLE AT THIS JUNCTURE, FRANKLY, TO PUT SOM E PARAMETERS ON IT BECAUSE YOU FORCE THE ISSUE IN SOME WAYS BY HAVING -- I'M WILLING TO EXCEPT, B Y THE WAY FOR PURPOSES OF DISCUSSION, THAT TO ORDE R SIvIPLY LET'S SAY I GRANT DIGITAL ENJOYS MOTIO N WITH RESPECT TO DISCOVERY, I DON'T THINK THERE' S ANY DOUBT THAT IT WOULD BE BURDENSOME . I MEAN, I THINK IT IS EXTENSIVE AND YOURE NOT EVEN SAYING IT ISN'T. AND THE RESULT OF THAT IS THAT I EXPECT SOME, SOME EFFORT TO SAY, ALL RIGHT, THAT WHAT WE WOULD BE ASKING FOR WOULD BE VERY, VERY, VER Y EXTENSIVE . AND WERE TRYING TO DO THIS IN A FASHION WHERE PERHAPS WE DONT NEED EVERY PIECE O F PAPER AND WE'LL LIVE WITH THIS BATCH AND COME BACK . THERE'S ABSOLUTELY NO EFFORT BETWEEN THE PARTIES T O TRY TO FIND SOME MIDDLE GROUND IN TERMS OF MATERIALS THAT YOU GET RESERVING THE RIGHT TO ASK FOR ME AND NOW DISCOVERY IS CLOSED SO THAT S A WHOLE DIFFERENT ISSUE, BUT I DONT GET THE SENS E THAT THE MEETING AND CONFERRING, TO PUT IT MILDLY , IS NOT A MODEL OF HOW THIS SHOULD BE DONE BECAUSE IT SOUNDS LIKE THERE'S EVEN SOME QUESTION ABOUT , ABOUT BASED ON MR. KRAMER'S COMMENTS, HE THINKS HE LIMITED THE CASE IN SOME FASHI ON AND YOU DON'T

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1 THINK HE DID AND ALL OF THIS OTTER STUFF BUT THESE 2 REQUESTS, THE REASON THAT HE IS ARGUING THAT THESE 3 MERIT ISSUES IS BECAUSE THESE REQUESTS ARE SO 4 EXTENSIVE . 5 R. KRATZ : .MAY I ADDRESS THAT? 6 HE COURT: YES . 7 R. KRATZ: OF COURSE BEFORE I DO IF 8 WERE TALKING ABOUT BURDEN ONLY I'M FINE WITH THAT 9 FOR PURPOSES OF THIS DISCUSSION BUT MR . KRAMER MADE 10 SEVERAL COMMENTS THAT ARE FACTUALLY INACCURATE THA 1 0 1 11 ARE BOTH WITH RESPECT TO OUR CLAIM AND PLUS WITH 2 12 RESPECT TO THE FACTS IN THI S CASE. 13 OW, I WANT AN OPPORTUNITY, AT SOME 3 4 14 POINT, TO ADDRESS THAT CONDUCT BECAUSE IT'S 15 HAPPENED AGAIN AND AGAIN AND IT'S IMPORTANT BECAUSE 1 5 16 IT'S LEFT WITH THIS FRAMEWORK THAT WE'RE THIS 6 7 17 LITTLE PIECE THAT S OUT THERE TRYING TO GET A BIG, 18 A BIG CLAIM AGAINST IT AND THAT IMPRESSION HAS BEEN 8 19 REPEATED AGAIN AND AGAIN AND AGAIN AND ITS WRONG . 9 20 IT'S FALSE . AND THEY RE FALSE BASED ON FALSE 0 1 21 STATEMENTS . 22 HAT I'D LIKE TO DO IS TO HAVE AN 2 23 OPPORTUNITY TO RESUBMIT BASED ON A TRANSCRIPT OF 3 24 THIS HEARING BECAUSE IT'S THERE AND IT'S A BIG 4
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WANT TO TALK ABOUT BURDEN BUT THE PROBLEM IS THAT HE'S MAK IN G ARGUMENTS WHETHER THIS IS DISCOVERABLE OR NOT BASED ON FALSEHOODS WITH RESPECT TO WHAT OU CLAIM IS BUT ALSO WITH RESPECT TO WHETHER THERE IS EVIDENCE IN THERE AND I'VE GOT A BIG PROBLEM WITH THAT. I'M READY TO TALK ABOUT BURDEN BUT NOW HERE AGAIN, YOU KNOW, IF THE RULING IS THAT ITS DISCOVERABLE THEN, THEN ALL RIGHT, HE DID IT AND THAT'S FINE, LET'S TALK ABOUT BURDEN . OKAY . BUT THAT'S NOT WHAT I'M HEARING . THE PROBLEM IS WE STILL NEED TO LOOK A T THE OVERALL FRAMEWORK AND I HAVE A LOT TO SAY ABOUT HAT BECAUSE THE ONLY PERSON THAT HAS BEEN ABLE TO GIVE OUR DAMAGE THEORY IS MR . KRAMER. HE'S GOT IT WRONG BASED ON THE FACTUAL UNDERPINN ING EVIDENCE, HE HAS IT WRONG WITH RESPECT TO WHAT ARGU MENTS WERE GOING TO MAKE AND SO THAT'S THE PROBLEM I'VE GOT. AND I KNOW YOU WANT TO GET DONE, AND I KNOW OU WANT TO TALK ABOUT BURDEN AND I'M GOING TO DO THAT RIGHT NOW BUT THEN WHAT ARE WE LEFT WITH ? THE COURT : WHAT WERE LEFT WITH IS AN OUT OF HAND DISCOVERY HEARING . I MEAN, IT IS OUT OF HAND . THE PARTIES ARE NOT ASSISTING THE COURT IN TRYING TO FOCUS ON WHAT DISCOVERY IS REASONABLE AND WHAT DISCOVERY ISN T . ALL I'M HEARING, Page 6 9

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1 FRANKLY, FROM BOTH SIDES IS THEYRE EAGE R 1 HE COURT: WHAT IS IT THAT YOURE 2 LITIGATORS WHO WANT TO ARGUE THE MERITS OF THE 2 ASKING? I MEAN, I SELDOM HAVE A DISCOVERY MOTION THE CONTEXT OF THE DISCOVERY 3 CASE, BUT, REALLY, YOU KNOW, THIS IS NOT, THIS I S 3 THAT IS NOW, IT'S IN 4 MOTION WE APPEAR TO BE HAVING THE TRIAL OF THE 4 NOT THE HEARING ON THE SUBSTANCE OF THIS CASE AND 5 CASE . 5 NEITHER SIDE IS, I MEAN, I'M ALMOST INCLINED T O 6 FORCE YOU TO GO AND SIT AND DO SOME MORE MEETIN G 6 R. KRATZ : I UNDERSTAND THAT . AND IF 7 ALL WERE TALK IN G ABOUT IS BURDEN, I WANT TO TALK 7 AND CONFERRING BECAUSE IT'S NOW THE TWO, YOU KNOW, 8 I,I-8 ABOUT THAT BUT THE PROBLEM IS -9 R . KRATZ : MAY I ADDRESS SOME OF THIS? 9 HE COURT : THAT'S WHAT MY FOCUS I S 10 HE COURT: SOME OF IT BUT I'M LOSING 10 BECAUSE I AGREE WITH YOU THAT THIS IS A DISCOVERY 11 GROUND. THIS IS ONE OF THE FEW HEARINGS WHERE I 11 MOTION AND SO TO THE EXTENT THAT -- BUT MR . KRAMER 12 KNOW LESS AFTER THE HEARING THAN I DID BEFORE . 12 IS CORRECT THAT I HAVE TO APPLY THE STANDARD AND 13 R. KRATZ : AND I SUBMIT THE PROBLEM I S 13 THE STANDARD IS IF HE WAS RIGHT, AND IF HE IS RIGH T 14 AND GO BACK AND LOOK AT IT, THAT SO ME OF WHAT 14 THE MISCONCEPTION OF WHAT OUR CASE IS . 15 YOURE ASK IN G FOR DOESN'T RISE TO THE LEVEL OF 15 HE COURT : THAT'S NOT THE ENTIRE 16 PROBLEM . 16 LIKELY TO LEAD TO THE DISCOVERY OF AD MISSIBLE 17 17 EVIDENCE. R. KRATZ: IT IS. 18 18 BVIOUSLY I HAVE TO LOOK AT THE SUBSTANCE HE COURT : THE PROBLEM IS, I'LL TELL YO U 19 WHAT THE PROBLEM IS, IS THAT THE LAWYERS HAVE NOT 19 OF THE CASE. 20 R . KRATZ : THEN THAT'S THE PROBLEM . 20 FOCUSSED THE QUESTION . INSTEAD THEY HAVE USED THIS 21 21 OPPORTUNITY AS A SPRING BOARD TO ARGUE EVER Y HE COURT: BUT I NEED TO LOOK AT I T 22 THROUGH THE LENS OF NOT DECIDING THE ISSUES BU T 22 CONCEIVABLE ISSUE IN THE CASE AND THE FOCUS OUGHT 23 DETERMINING WHETHER OR NOT SO ME THING IS ARGUABLY I * 23 TO BE ON THE MAGNITUDE OF THE DISCOVERY THAT I S 2 4 THE CASE OR NOT IN THE CASE. 24 BEING REQUESTED AND WHETHER OR NOT UNDER THAT BRO 25 R . KRATZ : AND THAT'S THE PROBLEM, AND I 25 RUBRIC OF DISCOVERABILITY IF IT FALLS OUTSIDE O R

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1 NOT . 2 R . KRATZ: OKAY . 3 HE COURT: AND I AM HEARING -- BUT G O 4 AHEAD. I'LL GIVE YOU FIVE MORE MINUTES AND I F 5 THERE'S SOME REQUEST THAT YOU WANT TO GIVE ME SOM~ 6 WRITTEN SUB MISSION, I'LL CONSIDER DOING THAT BUT I 7 COULD BE HERE FOR DAYS THE WAY T HI S IS GOING AND I 8 HAVE OTHER THINGS TO DO. 9 R. KRATZ : AND, YOUR HONOR, THEIR 10 SPECIFIC REQUEST THAT DIRECTLY ADDRESSES ADSENSE 11 AND NOT ANY WHETHER IT BE GOOGLE'S OR NOT. 12 INTERROGATORIES S, 6, 10, AND I I DIRECT TO ADSENSE 13 WHICH IS THE ENTIRETY OF OUR CLAIM . REQUEST FOR 14 PRODUCTION 3 . 15 HE COURT : WELL, YES . BUT THEIR 16 ARGUMENT IS THAT ADSENSE IS NOT IN THE CASE . 17 THERE'S NO DISPUTE THAT'S WHAT YOU'RE ASKING FOR,1 18 AGREE WITH YOU . YOU'RE ASKING FOR MATERIA L 19 PERTA INING TO ADSENSE FOR SEARCH, RIGHT, IN 20 ADDITION TO ADSENSE FOR CONTENT . 21 R . KRATZ : YEAH. 22 HE COURT: WHY IS -- WELL, I DON'T WANT 23 TO GO THERE . THIS WILL GO ON FOREVER 24 R . KRATZ: I KNOW BUT THE DAMAGE THEOR Y 25 IS NOT WHAT HE SAYS. THE DAMAGE THEORY IS WE HAVE
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1 COMING INTO THIS AREA AND PROVIDING IT AS PART O F 2 THEIR SERVICE THAT THEY WOULD HAVE LICENSED WIT H 3 YOU? DON'T YOU HAVE TO HAVE SOME PEOPLE THAT YO 4 COULD IDENTIFY? 5 R . KRATZ : WE HAVE SOME PEOPLE BU T 6 THAT S NOT OUR DAMAGE CLAIM WITH RESPECT TO JUS T 7 THOSE PEOPLE BECAUSE THEY WENT AND TOOK IT ALL . 8 HE COURT: THE PLAINTIFFS WERE HOPEFULLY 9 SPECULATIVE. 10 R. KRATZ : ABSOLUTELY NOT. THEY 11 LICENSED IT TO THEM AND WE SHOULD GET THE REVENU P 12 FOR THOSE LICENSES. 13 HE COURT : BUT THAT'S LIKE SAY IN G IF 14 THERE'S AN ASPECT TO THE LICENSE THAT THEY THROW 15 IN, BUT THERE'S NO MARKET FOR AN INDEPENDENT OF 16 THAT, AREN T YOU GOIN G TO HAVE TO SHOW THERE IS A 17 MARKET? 18 R. KRATZ : WELL, THERE IS, WE ARE IN 19 BUS INESS . THATS WHAT WE DO . 20 HE COURT: OKAY. 21 R KRATZ : AND ITS NOT JU ST -- MR. 22 KRAMER SAYS IT'S INCONCEIVABLE THAT THESE CONTENT 23 SITES WANT TO LICENSE . 24 HE COURT : OKAY . THIS IS WHAT I'M GOING 25 TO DO. I'M GO ING TO BRING THIS TO A CONCLUSION AN D Page 7

1 I'M GOING TO DO TWO THINGS : ONE IS WITH THE 2 UNDERSTANDING THAT YOU NOW HAVE THAT I DONT VIEW A 3 LOT OF THE ARGUMENT AS HAVING SHED A LOT OF LIGH T 4 ON MY DISCOVERY REQUEST, YOURE GO ING TO BE AT THE 5 MERCY OF WHAT I ORDER WITH RESPECT TO I'LL GO BACK 6 AND I'LL READ ALL OF THIS AND I'LL GIVE I T 7 CONSIDERABLE THOUGHT, AND I WILL MAKE AN ORDER . 8 N THE MEANTI ME, I REALLY DO THINK THA T 9 IT IS APPROPRIATE THAT FOR THE PARTIES THAT KNOW 10 THIS CASE AS WELL AS THEY KNOW IT TO TRY TO GE T 11 TOGETHER AND SEE IF THEY CAN TRY AND MEET ON THESE 12 DISCOVERY REQUESTS . 13 N THE GOGGLE MOTION I AM PREPARED T O 14 RULE ON THE GOOGLE MOTION, AS I INDICATED, BUT ON 15 YOUR MOTION, I THINK IT IMPLICATES SOME ISSUES THAT 16 THEY INVADED A TREMENDOUS AMOUNT OF SPACE AND GIVEN 16 MAY BE THE PARTIES TOGETHER COULD TRY TO WOR K 17 THROUGH IT, AND THEY COULD PUT SOME , SOME 17 LICENSES TO USE OUR TECHNOLOGY . 18 PARAMETERS ON THIS DISCOVERY THAT WOULD BE WORKABL E 18 HE COURT : BUT IN ORDER TO DO THAT, BU T 19 FOR BOTH. 19 THIS IS DANGEROUS FOR ME TO VENTURE INTO T HI S, BUT 20 F YOU DON'T DO THAT, I'LL GIVE YOU AN 20 IN ORDER TO DO THAT AREN'T YOU GO IN G TO HAVE TO 21 SHOW THAT THERE WAS SOME MARKET FOR YOUR SERVICES 21 ORDER . 22 ND IF YOU'RE ALL SO, YOU KNOW, YOU THIN K 22 IN DEPENDENT AND BY WAY OF DOING THAT ARENT YO U 23 GOING TO HAVE TO MAKE SOME PRESENTATION THAT THERE 23 THAT THERE'S MORE THAT I NEED TO KNOW BESIDES THE 24 PAD OF PAPERS THAT I HAVE ALREADY SEEN, ARE YO U 24 ARE PLAYERS IN THE MARKET THAT ARE SEEKING TO HAVE YOUR SERVICES AND THAT YOU HAVE, AND BUT FOR GOOGLE 25 REQUESTING AN OPPORTUNITY TO SUB MIT SOMETHING? I S 25 1 A MULTITUDE OF FORCED PLACED LICENSES THAT THEY 2 HAVE OUT THERE . THEY HAVE FORCED ALL OF THESE 3 PEOPLE TO DO GEOTARGET ING AND THEY WANT TO DO 4 GEOTARGETING DESPITE MR . KRAMER TO THE CONTRARY, 5 THERE'S PUBLIC STATEMENTS BY PUBLISHERS, BY GOOGLE 6 THAT SAYS, THAT SAYS THAT THIS IS A GREAT OFFERING , 7 THI S IS SOMETH ING THEY WANT . THIS ADVERTISING .COM 8 DEPOSITION THAT HE'S TALKING ABOUT, THERE' S 9 DOCUMENTS IN THERE THAT SAYS THAT BEFORE THEY SIGN 10 UP WITH US, THEY WERE TRYING TO DO GEOTARGET ING ON 11 THEIR OWN. THEY WERE BAD AT IT AND THEY SAI D 12 THEY'RE LOSING CUSTOMERS AS A RESULT OF THAT . 13 OKAY. S O THIS NOTION - BUT OUR DAMAGE THEORY I S 14 MORE THAN JUST, YOU KNOW, WE LOST A CUSTO MER HERE 15 OR THERE. WE WANT TO DO A MARKET SHARE ANALYSIS .

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U .S . COURT REPORTERS
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T M M T C S M

M T T M

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Document 212-5
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1 THIS WHAT YOU WANT TO DO TO QUOTE-UNQUOTE CORRECT 2 THE RECORD FROM WHAT MR . KRAMER HAS ARGUED? 3 R . KRATZ : THE PROBLEM IS I HAVE NOT 4 BEEN GIVEN AN OPPORTUNITY TO MAKE A COMPLETE 5 RECORD. 6 HE COURT: I'M OFFERING YOU THAT 7 OPPORTUNITY . 8 R. KRATZ : I HAVE GIVEN ONE DAMAGE 9 THEORY AND WE HAVE THREE . 10 HE COURT: MR . KRATZ, I'M TELLING YOU 11 YOU COULD DO THAT, YOU CAN DO IT ORALLY OR IN 12 WRITING . 13 R. KRATZ : OKAY . THATS FINE, THAT'S 14 WHAT I WOULD LIKE TO DO. 15 HE COURT : OKAY . OKAY . SO WHEN WOULD 16 YOU BE PREPARED TO GIVE ME THIS SUBMISSION? 17 R . KRATZ: I WOULD LIKE TO HAVE TH E 18 TRANSCRIPT. 19 HE COURT: OKAY . WELL . 20 R . KRATZ : WERE TALKING ABOUT -- WERE 21 DERAILED ANYWAY. 22 HE COURT : YOU'RE NOT DERAILED. YOU'RE 23 ASSUMING I'M GOING TO CHANGE ALL SORTS OF DATES AND 24 I MAY NOT SO DON'T ASSUME THAT. BUT I'M NOT GOING 25 TO FURTHER THE DERAILMENT BY A PROLONGED SUBWSSI0 3f
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T'HREE OR FOUR WEEKS SO WE CAN TALK ABOUT THE ISSUES THAT MAY FLOW OUT OF T HI S? THE COURT: THATS FINE . IT WOULD HAVE TO BE TOWARDS THE END OF JULY BECAUSE BETWEEN THE NINTH CIRCUIT CONFERENCE AND OTHER THINGS THERE'S NO WAY YOU CAN GET ON THE SCHEDULE BEFORE THEN . MR. KRATZ: I AGREE WITH THAT . I THINK WE NEED TO DO THAT. WE HAVE A DEADLINE COMING UP OF EXPERT DISCLOSURES . THE COURT : RIGHT . WELL, I WAS UNDER THE IMPRESSION I WAS GOING TO GET A STIPULATION FROM YOU PEOPLE TO MOVE SOME DATES . MR . KRATZ: PRESUMING THATS NOT A PROBLEM BECAUSE THATS GOING TO COME AND GO BEFORE THE CASE MANAGEMENT . AGAIN WE NEGOTIATED -- LETS TRY TO DO THIS BY STIPULATION AND ENDED UP SAYING NOW LETS JU ST WAIT. SO, YOU KNOW, HERE AGAI N WE'RE LEFT WITH THIS NO IDEA WHAT GOOGLE'S ULTIMATE POSITION IS GOING TO BE ON THIS . HE SAYS ITS ALL OVER AND THE PROBLEM IS WE CANT GIVE AN EXPERT DISCLOSURE, WE DON'T HAVE ANY DATA, YOU KNOW, I MEAN, WE JUST DON'T . THE COURT : WELL, WHAT I WILL DO IS I WILL SET A CMC DATE . IN THE INTERIM, IF YOU ARE CONCERNED THERE'S A DATE, EXPERT DISCLOSURES DATES Page 77 1 ARE GOING TO COME AND 00, AND YOU WANT TO AGREE TO 2 GIVE ME A STIPULATION TO EXTEND IT, I DONT HAVE A 3 PROBLEM WITH THAT. 4 HE THING I DO HAVE A PROBLEM WITH IS 5 THIS NOTION THAT SEEMS TO BE FLOATING AROUND THE 6 COMMENT THAT ITS A DERAILED CASE, THAT THAT MEANS 7 THAT EVERYTHING IS JUST GOING TO GO OFF INTO LIMBO 8 AND THAT DATES ARE NATURALLY GOING TO EVAPORATE . 9 ALL PM GOING TO DO IS WHATEVER DATE IS COMING U P 10 PRIOR TO THE CMC THAT I'M ABOUT TO SET AT THE END 11 OF JULY, I WILL . IF YOU WANT TO EXTEND THAT OUT BY 12 STIPULATION, I DON'T HAVE A PROBLEM WITH THAT . 13 R. KRATZ : DO YOU HAVE A PROBLEM WITH 14 THAT? 15 R KRAMER: I WOULD LIKE TO GET A 16 SPECIFIC PROPOSAL . 17 HE COURT: YOU'RE NOT GOING TO DO IT 18 WITH ME SITTING HERE BUT DO IT WHILE YOU'RE 19 TOGETHER 20 R. KRAMER: NO, NO, CERTAINLY NOT . 21 R KRATZ : WELL, AS LONG AS -22 HE COURT : OKAY. I'M GOIN G TO SET A 23 CASE MANAGEMENT CONFERENCE, A FURTHER CAS E 24 MANAGEMENT CONFERENCE FOR JULY 28TH, A THURSDAY, A" ;, 25 2:00 O'CLOCK .

1 PERIOD ON A DISCOVERY MOTION . O IF YOU WANT TO SUBMIT SOMETHING 2 3 FURTHER TO ME, NO, WERE NOT GOING TO AWAIT TH E 4 TRANSCRIPT . YOU KNOW WHATEVER IT IS YOU WANT T O 5 TELL ME, GOD KNOWS YOU'RE PREPARED TO TELL ME RIGHT 6 NOW, SO SUBMIT IN WRITING ANYTHING FURTHER THAT YOU 7 THINK I SHOULD CONSIDER IN CONJUNCTION WITH THI S 8 DISCOVERY MOTION AND I WANT IT SUBMI TTED BY NEXT 9 FRIDAY, A WEEK FROM FRIDAY, AND ITS GOING TO B E 10 LIMITED TO, I'M GOING TO LIMIT IT TO TEN PAGES BUT 11 1 WOULD BE DELIGHTED IF PEOPLE USE LESS THAN TEN 12 PAGES . 13 AN YOU TELL ME WHATEVER YOU THINK I NEE D 14 TO KNOW WITH RESPECT TO THIS DISCOVERY MOTION, AND 15 I AM NOT GOING TO HAVE REPLY BRIEFS AND SURREPLY 16 BRIEFS AND EACH SIDE IS GOING TO I'M SURE SAY THE 17 OTHER SIDE HE'S MISCHARACTERIZED THIS, THAT, AND 18 THE OTHER. I'M BRINGING IT TO A CLOSE . S O A WEEK 19 FROM FRIDAY, GIVE ME WHATEVER YOUR SUB MISSION IS 20 AND THEN YOU 'LL GET AN ORDER FROM ME BECAUSE YOU 21 HAVE TO MOVE THI S CASE ALONG . 22 R. KRATZ : I WOULD LIKE NOTHING BETTER, 23 YOUR HONOR. 24 R. KRAMER: YOUR HONOR, COULD I PROPOS E 25 A STATUS CONFERENCE OR A CMC WITHIN THE NEXT SAY

20 (Pages 74 to 77 )

U .S . COURT REPORTERS
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T M ( M

Case 5:04-cv-01497-RS

Document 212-5
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Filed 07/05/2005

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1 R. KRAMER : THANK YOU, YOUR HONOR. 2 HE COURT : OKAY. AND JUST TO REVIEW TH E 3 BIDDIN G AGAIN, ITS GOIN G TO BE WHATEVER FURTHER 4 SUBMISSION ANYBODY WANTS TO SEE LIMITED TO TE N 5 PAGES OR LESS WITH RESPECT TO THE PEND ING DISCOVER 6 MOTIONS BY A WEEK FROM FRIDAY AND THEN THE MATTE 7 WILL BE TAKEN UNDER SUBMISSION AND I WILL BE 8 RECEIVING A STIPULATION AS I UNDERSTAND IT FROM YOU 9 REGARD ING THE IMPENDIN G EXPERT DISCLOSURE DATES ; 10 RIGHT? 11 R. KRAMER. YES, YOUR HONOR. 12 R. KRATZ : NO, YOUR HONOR. 13 HE COURT: THANK YOU . 14 WHEREUPON, THE PROCEEDINGS IN THIS 15 MATTER WERE CONCLUDED.)
16 17 18 19 20 21 22 23 24 25

21 (Page 78 )

U .S . COURT REPORTERS
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