Digital Envoy Inc., v. Google Inc.,

Filing 34

Digital Envoy Inc., v. Google Inc.,

Doc. 34

Case 5:04-cv-01497-RS

Document 34

Filed 08/23/2004

Page 1 of 3

1 P. CRAIG CARDON, Cal. Bar No. 168646 3 Four Embarcadero Center, 17th Floor 4 Telephone: 5

2 KENDALL M. BURTON, Cal. Bar No. 228720
San Francisco, California 94111-4106 415-434-9100 Facsimile: 415-434-3947

BRIAN R. BLACKMAN, Cal. Bar No. 196996

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) 7 MCGUIRE WOODS, L.L.P 8 Atlanta, Georgia 30309 9 Facsimile: 404.443.5751 11 12 13 14 DIGITAL ENVOY, INC., 15 16 18 19 20
Digital Envoy submits this further memorandum in opposition to Google's Motion for v. Plaintiff/Counterdefendant, Telephone: [phone] LUKE ANDERSON (Admitted Pro Hac Vice) 1170 Peachtree Street, N.E., Suite 2100

10 Attorneys for DIGITAL ENVOY, INC.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 04 01497 RS DIGITAL ENVOY, INC.'S SURREPLY RE GOOGLE, INC.'S MOTION TO STAGE DISCOVERY

17 GOOGLE, INC.,
Defendant/Counterclaimant.

21 Protective Order Staging Discovery in order to address the following limited issues pertinent 22 thereto, which were raised by Google subsequent to Digital Envoy's Opposition being submitted. 23 24 25 26
As described in Digital Envoy's prior brief, Google submitted extensive discovery to Digital Envoy timed such that Digital Envoy's responses were served before Google filed this motion. Portions of the discovery requests whose scope were far beyond the contemplated first

27 stage of discovery were quoted in Digital Envoy's memorandum. Digital Envoy has expended the 28 effort to respond to those requests as required by rule. -1W02-SF:5BB\61425220.1

SURREPLY RE MOTION TO STAGE DISCOVERY

Dockets.Justia.com

Case 5:04-cv-01497-RS

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Evidently emboldened by the prospect of successfully leveraging an imbalance of

2 discovery expenses against Digital Envoy, Google has set upon further discovery efforts outside 3 the scope of its own proposed first stage of discovery. After Digital Envoy submitted its 4 5 6 7

Opposition to the motion, on August 20, 2004, counsel for Google requested that Digital Envoy identify its alleged trade secrets pursuant to a California state procedural rule, and repeated this request on August 23, 2004, in response to Digital Envoy calling into question the applicability of

8 the rule to federal court proceedings. See Declaration of P. Craig Cardon in Support of Surreply, 9 Exhs. A and B. Digital Envoy intends to set aside the technical question of the rule's applicability 10 and voluntarily submit such information as a good faith effort to support the aims of the discovery 11 process in civil matters. 12 13 14

Digital Envoy submits that Google's conduct is a microcosm of its contradictory approach

to this discovery issue. Despite claiming in its reply brief that Digital Envoy has identified no

15 flaw in the "bright line" test proposed by this motion, Google itself cannot maintain a constant 16 position as to whether they intend to present parole evidence in its proposed dispositive motion. 17 Digital Envoy understands that Google will, since the plain language of the document supports 18 Digital Envoy's position and since Google has already referred extensively to their version of the 19 20 21 22 23
of discoverable potential parole evidence swallows the limitations proposed for the first stage of discovery. The Court, through inevitable additional discovery disputes and Rule 56(f) issues arising

parole evidence. Therein lies the flaw, as in fact noted in Digital Envoy's initial brief. The scope

24 from an allegedly dispositive motion to be filed on incomplete discovery, and Digital Envoy, who 25 will be compelled to engage in such additional disputes or suffer prejudice from being 26 economically leveraged against protecting its rights and will need to re-take at least two 27
depositions, gain nothing from staging discovery.

28
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Google, since the motion will not be well taken and it will also have increased its own

2 expenses, gains only economic leverage by causing equal increased expenses to be incurred by a 3 significantly less financially capable foe and the strategic advantage of making Digital Envoy go 4 5 6 7 9 11 12 DATED: August 23, 2004 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
W02-SF:5BB\61425220.1

through hoops to obtain legitimate discovery (i.e. requiring Digital Envoy to justify its purpose in asking any particular question, invading Digital Envoy's work product). Google is thus the only person who benefits from its proposal, improper and imbalanced benefits, just like its request for

8 further discovery of Digital Envoy's trade secrets claim.
For this reason, and those set forth in its prior briefing, Digital Envoy requests that

10 Google's motion be DENIED.

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By P. CRAIG CARDON BRIAN R. BLACKMAN Attorneys for DIGITAL ENVOY, INC.

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SURREPLY RE MOTION TO STAGE DISCOVERY