Digital Envoy Inc., v. Google Inc.,

Filing 37

Attachment 1
Brief re 26, 27, 28, 29 Request for Order Allowing Surreply in Opposition to Motion to Stage Discovery [Local Rule 7-10(b)] filed by Digital Envoy,Inc.,. (Attachments: # 1 Declaration of Craig Cardon in Support of Digital Envjoy's Request for an Order Allowing Surreply# 2 Exhibit A to Declaration of Craig Cardon in Support of Digital Envjoy's Request for an Order Allowing Surreply# 3 Exhibit B to Declaration of Craig Cardon in Support of Digital Envjoy's Request for an Order Allowing Surreply# 4 Declaration of Brian R. Blackman in Support of Digital Envjoy's Request for an Order Allowing Surreply# 5 Proposed Order Order Granting Request to Allow Digital Envoy's Surreply to Motion to Stage Discovery)(Related document(s)26, 27, 28, 29) (Blackman, Brian) (Filed on 8/24/2004)

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Digital Envoy Inc., v. Google Inc., Doc. 37 Att. 1 Case 5:04-cv-01497-RS Document 37-2 Filed 08/24/2004 Page 1 of 2 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: 415-434-9100 Facsimile: 41 5-434-3947 5 6 7 TIMOTHY H. KRATZ (Admitted Pro Hac Vice) LUKE ANDERSON (Admitted Pro Hoc Vice) MCGUIRE WOODS, L.L,P 1170 Peachtree Street, N.E., Suite 2100 Atlanta, Georgia 30309 Telephone: 404.443.5500 Facsimile: 404.443.5751 1 8 9 10 Attorneys for DIGITAL ENVOY, INC. 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 0401497 RS DECLARATION OF CRAIG CARDON IN SUPPORT OF DIGITAL ENVOY'S REQUEST FOR AN ORDER ALLOWING SURREPLY Date: Time: Crtrm.: September 22, 2004 9:00 a.m. 4, 5th Floor 12 13 14 DIGITAL ENVOY, INC., 15 Plaintiff/Counterdefendant, v. GOOGLE, INC., Defendant/Counterclaimant. 16 17 18 19 20 21 22 I, P. Craig Cardon, declare: 1. The Honorable Richard Seeborg I am an attorney licensed to practice before this Court and am a member of 23 Sheppard Mullin Richter & Hampton LLP, counsel ofrecord for plaintiff and counterdefendant 24 Digital Envoy, Inc. in this matter. I make this declaration based on my personal knowledge, 25 except where noted otherwise, and would competently testify to these statements if called to do so. 2. On August 20, 2004, I received a fax letter from counsel for Google, Stephen 26 27 Holmes. A true and correct copy of this letter is attached as Exhibit A. That letter asked Digital 28 Envoy to provide a California Code of Civil Procedure ("C.C.P.") section 2019(d) trade secret W02-sF:5B8\61426262A CARDON DECLARATION ISO REQUEST FOR ORDER ALLOWING SURREPLY Dockets.Justia.com Case 5:04-cv-01497-RS Document 37-2 Filed 08/24/2004 Page 2 of 2 I 2 3 4 5 disclosure. This was the first tirne Google ever raised the C.C.P. 2019(d) issue. That same day I sent Mr. Holmes an email reminding him that this case was in Federal court and not State court, 3. On August 23, 2004, I spoke with Mr. Holmes and told him that no case in the Northern District nor any opinion of the Ninth Circuit had ever held that a C.C.P. section 2019(d) disclosure is required in Federal court. Mr. Holmes maintained that the case out of the Central 6 District did mandate such disclosure in the Northern District, 7 8 9 10 11 12 13 14 15 16 17 18 19 /5/ 4. After I got off of the phone with Mr. Holmes, I received a letter from him at 5:10 p.m. asserting that the Central District case applied and requiring that Digital Envoy provide a C.C.P. section 2019(d) disclosure. A true and correct copy of this letter is attached as Exhibit B. Realizing the inconsistency of Google's demand and its Motion to Stage Discovery, I filed a Surreply in opposition to Google's motion at or about 11:30 p.m. that same day. I did not seek a stipulation from opposing counsel prior to filing the reply brief in light of the late hour at which I filed the Surreply. I declared under the penalty ofperjury that the above statement are true. Executed this 24th day of August 2004 in San Francisco, California. P. CRAIG CARDON 20 21 22 23 24 25 26 27 28 _____________ ____ -2- W02'SF:513B\61426262.1 CARDON DECLARATION ISO REQUEST FOR ORDER ALLOWING SURREPLY

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