Digital Envoy Inc., v. Google Inc.,

Filing 37

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: [phone] 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: [phone] Facsimile: 404.443.5751

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

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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

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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

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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,
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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

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W02'SF:513B\61426262.1

CARDON DECLARATION ISO REQUEST FOR ORDER ALLOWING SURREPLY