Digital Envoy Inc., v. Google Inc.,

Filing 28

Digital Envoy Inc., v. Google Inc.,

Doc. 28

Case 5:04-cv-01497-RS

Document 28

Filed 08/16/2004

Page 1 of 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 26 27 28

DAVID H. KRAMER, State Bar No. 168452 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant/Counterclaimant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DIGITAL ENVOY, INC., Plaintiff/Counterdefendant, v. GOOGLE INC., Defendant/Counterclaimant.

) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. C 04 01497 RS DECLARATION OF DAVID H. KRAMER IN SUPPORT OF GOOGLE INC.'S MOTION FOR ENTRY OF A PROTECTIVE ORDER STAGING DISCOVERY Judge: Courtroom: Date: Time: Hon. Richard Seeborg 4, 5th Floor September 22, 2004 9:00 a.m.

KRAMER DECL. ISO GOOGLE'S MOTION FOR ENTRY OF A PROTECTIVE ORDER STAGING DISCOVERY -- C 04 01497 RS

C:\NrPortbl\PALIB1\DAG\2511974_1.DOC

Dockets.Justia.com

Case 5:04-cv-01497-RS

Document 28

Filed 08/16/2004

Page 2 of 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 26 27 28

I, David H. Kramer, declare as follows: 1. I am an attorney at law duly licensed to practice in the State of California and before this Court. I am a member of Wilson Sonsini Goodrich & Rosati, counsel for defendant and counterclaimant Google, Inc. ("Google"). I have personal knowledge of the facts set forth herein and, if called as a witness, could and would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of an email from Rob Friedman of Digital Envoy to Steve Schimmel of Google, dated November 21, 2000, which was retrieved from Google's electronic mail system. The email chain, which by convention is read from end to beginning, reflects Google's discussions with Digital Envoy concerning a license to certain Digital Envoy technology. It has been highlighted by our firm for emphasis. 3. Attached hereto as Exhibit B is a true and correct copy of an email from Steve Schimmel of Google to Rob Friedman of Digital Envoy, dated November 21, 2000, also retrieved from Google's electronic mail system. The email continues the discussion commenced in Exhibit A between representatives of Google and Digital Envoy. It too has been highlighted by our firm for emphasis. 4. Attached hereto as Exhibit C is a true and correct copy of the November 30, 2000 agreement between Google and Digital Envoy (along with its two amendments and subsequent ratification), which Digital Envoy has acknowledged as authentic in its pleadings in this case. 5. Attached hereto as Exhibit D are true and correct copies of emails from Steve Schimmel of Google to Digital Envoy representatives that were retrieved from Google's email system. The messages reflect discussions between Google and Digital Envoy concerning Digital Envoy's use of Google's online advertising programs. 6. Digital Envoy originally commenced litigation over this dispute with Google in the U.S. District Court of the Northern District of Georgia (Civil Action No. 1:04-CV-0864) (CAP). By Order dated May 21, 2004, the Georgia court granted Google's motion to transfer the case to California. See 319 F.Supp.2d 1377 (N.D. Ga. 2004). 7. Before the transfer order issued, Digital Envoy filed a proposed discovery plan for -1C:\NrPortbl\PALIB1\DAG\2511974_1.DOC

the action, a true and correct copy of which is attached hereto as Exhibit E. Digital Envoy's
KRAMER DECL. ISO GOOGLE'S MOTION FOR ENTRY OF A PROTECTIVE ORDER STAGING DISCOVERY -- C 04 01497 RS

Case 5:04-cv-01497-RS

Document 28

Filed 08/16/2004

Page 3 of 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 26 27 28

plan called for far-reaching discovery into Google's operations, finances, plans, and business partners. 8. Both while the parties were litigating in Georgia and again later, when the case was transferred here, I met and conferred with Digital Envoy's counsel in an effort to reach agreement on a plan to stage discovery in the matter. I explained that Google believed that its license defense would be dispositive of Digital Envoy's claims, and suggested that discovery be limited to matters concerning the negotiation and interpretation of the license agreement. Digital Envoy rejected those proposals. 9. Digital Envoy recently served its first set of requests for production in this matter, a copy of which is attached as Exhibit F. The requests reflect Digital Envoy's desire for a substantial amount of information that does not bear on Google's license defense. The same is true for Digital Envoy's initial disclosures in this matter, which detail the breadth and scope of the discovery it plans to seek. A copy of those initial disclosures is attached hereto as Exhibit G.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August 16, 2004, at Palo Alto, California. /s/ David H. Kramer David H. Kramer

KRAMER DECL. ISO GOOGLE'S MOTION FOR ENTRY OF A PROTECTIVE ORDER STAGING DISCOVERY -- C 04 01497 RS

-2-

C:\NrPortbl\PALIB1\DAG\2511974_1.DOC