Digital Envoy Inc., v. Google Inc.,

Filing 319

Digital Envoy Inc., v. Google Inc.,

Doc. 319

Case 5:04-cv-01497-RS

Document 319

Filed 09/16/2005

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 6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) LUKE ANDERSON (Admitted Pro Hac Vice) 7 MCGUIRE WOODS, L.L.P 1170 Peachtree Street, N.E., Suite 2100 8 Atlanta, Georgia 30309 Telephone: [phone] Facsimile: 404.443.5751 10 Attorneys for DIGITAL ENVOY, INC. 11 12 13 14 DIGITAL ENVOY, INC., 15 16 v. Plaintiff/Counterdefendant, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS DIGITAL ENVOY'S MOTION UNDER CIVIL L.R. 7-2 FOR LEAVE TO FILE ITS MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56(F) Date: Courtroom: No Hearing Set 4, 5th Floor

17 GOOGLE, INC., 18 19 20 21 22 23 24 25 26 27 28
W02-SF:5BK\61469025.1

Defendant/Counterclaimant.

The Honorable Richard Seeborg

DIGITAL ENVOY'S MOTION FOR LEAVE TO FILE MOTION PURSUANT TO FRCP 56(F) Dockets.Justia.com

Case 5:04-cv-01497-RS

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Filed 09/16/2005

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Pursuant to Local Rule 7-2, Digital Envoy, Inc. ("Digital Envoy") seeks leave of the Court

2 to file a Motion pursuant to Federal Rule of Civil Procedure 56(f). In support of this Motion, 3 Digital Envoy shows the Court as follows: 4 1. Digital Envoy filed its Opposition to Google Inc.'s Motion for Partial Summary

5 Judgment on September 1, 2005. 6 2. On September 2, 2005, counsel for Google Inc. stated that it did not intend to

7 produce additional documents or information, which Digital Envoy contends the Court required 8 Google to produce in its July 15, 2005 Order Granting in Part and Denying in Part Digital's 9 Motions to Compel and Denying Motion for Sanctions or a corporate witness to testify on key 10 issues. See Exhibit B to Declaration of Robert J. Waddell, Jr. in support of Rule 56(f) Motion. 11 3. On September 8, 2005, Google filed its Reply in Support of Motion for Partial

12 Summary Judgment Regarding Digital Envoy, Inc.'s Damages Claims asserting that the record 13 was insufficient to support a finding that Google was unjustly enriched due to its use of Digital 14 Envoy's proprietary technology. See Reply at 12-13. 15 4. Notwithstanding the sufficiency of the record to establish Google's unjust

16 enrichment due to its misappropriation of Digital Envoy's trade secrets, Google in its Reply 17 flaunts the alleged absence of evidence as justification of its entitlement to partial summary 18 judgment. See, e.g., Google's Reply at 11-12. However, the very evidence that Google contends 19 is absent resides in the hands of Google, which Google has refused to produce. Digital Envoy will 20 be forced once again to seek relief from the Court to obtain the discovery to which it is entitled. 21 5. Under the circumstances, it would be unjust indeed for Google to use its own

22 refusal to provide meaningful discovery responses as the very basis justifying its entitlement to 23 partial summary judgment. 24 6. Therefore, to the extent the Court were to accept Google's contention that the

25 record does not establish its unjust enrichment, Digital Envoy respectfully requests that the Court 26 continue Google's motion for partial summary judgment until such time as Digital Envoy can 27 bring Google's non-compliance with its discovery obligations before the Court. 28 -1W02-SF:5BK\61469025.1

DIGITAL ENVOY'S MOTION FOR LEAVE TO FILE MOTION PURSUANT TO FRCP 56(F)

Case 5:04-cv-01497-RS

Document 319

Filed 09/16/2005

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1 DATED: September 16, 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 -2W02-SF:5BK\61469025.1

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: [phone] Facsimile: 404.443.5751 Attorneys for DIGITAL ENVOY, INC.

DIGITAL ENVOY'S MOTION FOR LEAVE TO FILE MOTION PURSUANT TO FRCP 56(F)