Digital Envoy Inc., v. Google Inc.,

Filing 83

Digital Envoy Inc., v. Google Inc.,

Doc. 83

Case 5:04-cv-01497-RS

Document 83

Filed 02/07/2005

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DAVID H. KRAMER, State Bar No. 168452 STEPHEN C. HOLMES, State Bar No. 200727 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.

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CASE NO. C 04 01497 RS DECLARATION OF STEPHEN C. HOLMES IN SUPPORT OF GOOGLE INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS II, III, IV AND V OF THE AMENDED COMPLAINT Date: Time: Courtroom: Judge: March 16, 2005 9:30 a.m. 4, 5th Floor Hon. Richard Seeborg

HOLMES DECL. ISO GOOGLE'S MOTION FOR PARTIAL SUMMARY JUDGMENT - C 04 01497 RS

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Dockets.Justia.com

Case 5:04-cv-01497-RS

Document 83

Filed 02/07/2005

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I, Stephen C. Holmes, 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 an associate at 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 the November 30, 2000 agreement between Google and Digital Envoy, Inc. ("Digital Envoy") (along with its two amendments and subsequent ratification), which Digital Envoy has acknowledged as authentic in its pleadings in this case. 3. Attached hereto as Exhibit B 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. 4. Attached hereto as Exhibit C 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 B between representatives of Google and Digital Envoy. It too has been highlighted by our firm for emphasis. 5. Attached hereto as Exhibit D is a true and correct copy of excerpts from the deposition testimony of Rob Friedman, dated November 17, 2004. Mr. Friedman was designated by Digital Envoy pursuant to Fed. R. Civ. P. 30(b)(6). The excerpts reflect Mr. Friedman's acknowledgment that Digital Envoy's only breach of contract claim has been satisfied by Google and that all of Digital Envoy's claims are based on Google's allegedly unlicensed use of Digital Envoy's technology. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on February 7, 2005, at Palo Alto, California. /s/ Stephen C. Holmes Stephen C. Holmes
HOLMES DECL. ISO GOOGLE'S MOTION FOR PARTIAL SUMMARY JUDGMENT - C 04 01497 RS

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