Google, Inc. et al v. Microsoft Corporation

Filing 27

Declaration of Michael J. Bettinger in Support of #26 Memorandum in Opposition filed byMicrosoft Corporation. (Attachments: #1 Exhibit A#2 Exhibit B#3 Exhibit C#4 Exhibit D#5 Exhibit E#6 Exhibit F#7 Exhibit G#8 Exhibit H#9 Exhibit I#10 Exhibit J)(Related document(s) #26 ) (Davidson, Rachel) (Filed on 9/23/2005)

Google, Inc. et al v. Microsoft Corporation

Doc. 27 Att. 9

Case 5:05-cv-03095-RMW

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Filed 09/23/2005

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09/13/05 PI Hearing Trans FINAL
9/13/2005

Dockets.Justia.com

Case 5:05-cv-03095-RMW
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF KING -------------------------------------------------------MICROSOFT, PLAINTIFF, ) )

) NO. 05-2-23561-6 SEA ) )

GOOGLE AND KAI-FU LEE, DEFENDANTS. )

-------------------------------------------------------VERBATIM REPORT OF PROCEEDINGS JUDGE'S ORAL RULING ON PRELIMINARY INJUNCTION -------------------------------------------------------THE HONORABLE STEVEN GONZALEZ SEATTLE, WASHINGTON SEPTEMBER 13, 2005 APPEARANCES: FOR PLAINTIFF: KARL QUACKENBUSH

JEFF JOHNSON THOMAS BURT FOR DEFENDANT GOOGLE: JOHN KEKER RAGESH TANGRI FOR DEFENDANT LEE: BRADLEY KELLER

APRIL LAINE

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(IN OPEN COURT:) THE COURT: FIRST, BEFORE I SUMMARIZE THE PRELIMINARY INJUNCTION, WHICH I AM ISSUING TODAY, I WANT TO SAY I'VE RECEIVED A NUMBER OF SUBMISSIONS FROM PEOPLE WHO ARE NOT PARTIES TO THIS CASE; SOME OF THEM COMPLIMENTARY, SOME OF THEM CRITICAL, JUST FROM THE HEADINGS ON THEM. I HAVEN'T READ ANY FARTHER. THEY SEEM TO ADDRESS MY ACTIONS AND BELIEFS, REAL OR IMAGINARY. I WOULD INVITE FOLKS TO STOP SUBMITTING SUCH THINGS TO ME. I WILL NOT BE READING THEM. I CANNOT CONSIDER THEM AS PART OF THIS CASE. IF ANYONE BELIEVES THEY HAVE INFORMATION WHICH IS RELEVANT TO THIS CASE, PLEASE BRING IT TO THE ATTENTION OF THE PARTIES, NOT DIRECTLY TO THE COURT. THIS MATTER IS HERE BEFORE THE COURT ON MICROSOFT'S MOTION FOR A PRELIMINARY INJUNCTION. THE DEFENDANTS, GOOGLE AND DR. LEE, HAVE ALSO REQUESTED THAT THE COURT DISSOLVE THE TEMPORARY RESTRAINING ORDER PREVIOUSLY ISSUED ON JULY 28TH OF THIS YEAR. AS YOU KNOW, THIS CASE INVOLVES

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ALLEGATIONS BY MICROSOFT THAT CERTAIN ASPECTS OF DR. LEE'S EMPLOYMENT AT GOOGLE VIOLATE THE NONCOMPETITION CLAUSE IN THE AGREEMENT HE SIGNED ON AUGUST 8TH OF 2000, WHEN HE BEGAN WORKING IN REDMOND. IT IS WELL ESTABLISHED IN WASHINGTON THAT COVENANTS NOT TO COMPETE UPON TERMINATION OF EMPLOYMENT ARE ENFORCEABLE IF THEY ARE REASONABLE. IN THE ORDER I AM ISSUING TODAY, AFTER THAT INTRODUCTORY LANGUAGE, PAGES TWO THROUGH FIVE ARE SIMPLY A LISTING OF THE EVIDENCE AND DOCUMENTS AND OTHER SUBMISSIONS I HAVE REVIEWED IN CONNECTION WITH THIS MATTER. THE RELIEF MICROSOFT SEEKS AT THIS STAGE MIRRORS IN MANY WAYS THE RELIEF IT SEEKS AT TRIAL. THE BURDEN ON MICROSOFT IS TO DEMONSTRATE THAT IT HAS A CLEAR LEGAL OR EQUITABLE RIGHT, A WELL-GROUNDED FEAR OF IMMEDIATE INVASION OF THAT RIGHT, AND THAT THE DEFENDANTS' ACTIONS ARE RESULTING IN OR WILL RESULT IN ACTUAL AND SUBSTANTIAL INJURY TO MICROSOFT. SINCE THE ENTRY OF THE TRO, THE DEFENDANTS HAVE, BOTH IN WRITING AND IN OPEN

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COURT, OFFERED TO STIPULATE TO CERTAIN RESTRICTIONS ON THEIR ACTIVITIES THAT MIGHT COMPETE WITH MICROSOFT. MICROSOFT HAS DECLINED TO JOIN THAT STIPULATION. SINCE MICROSOFT IS NOT REQUIRED TO JOIN THE STIPULATION, WE MUST GO THROUGH THIS EXERCISE BASED ON THE EVIDENCE SUBMITTED BY THE PARTIES AT THE HEARING. GOOGLE AND DR. LEE CONTEND THAT HE SHOULD BE ABLE TO EMPLOY HIS GENERAL KNOWLEDGE, PERSONAL ATTRIBUTES AND GENERAL REPUTATION AND SKILLS TO HELP GOOGLE SET UP AND STAFF A PRODUCT RESEARCH AND DEVELOPMENT FACILITY IN CHINA. MICROSOFT CONTENDS THAT, WERE DR. LEE TO DO SO, IT WOULD VIOLATE PARAGRAPH 9 OF THE AGREEMENT. MICROSOFT CONTENDS THAT DR. LEE LOST HIS OBJECTIVITY AND BEGAN USING PROPRIETARY INFORMATION OF MICROSOFT FOR HIS AND GOOGLE'S BENEFIT EVEN BEFORE HE LEFT HIS EMPLOYMENT WITH MICROSOFT. THE COURT MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: DR. LEE EXECUTED THE AGREEMENT ON AUGUST 8TH OF 2000. A QUESTION REMAINS FOR

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TRIAL WHETHER INDEPENDENT CONSIDERATION EXISTS TO SUPPORT THE AGREEMENT. THE AGREEMENT DOES NOT CONFER TO MICROSOFT ANY RIGHT TO CONTROL DR. LEE'S PUBLIC IMAGE OR PERSONAL RELATIONSHIPS. IN JUNE OF 2005, DR. LEE MISLED MICROSOFT ABOUT HIS INTENTION TO RETURN TO MICROSOFT FOLLOWING HIS SABBATICAL. HE CONTINUED TO HAVE ACCESS TO MICROSOFT'S PROPRIETARY INFORMATION AFTER HE DECIDED TO LEAVE AND JOIN ONE OF MICROSOFT'S DIRECT COMPETITORS. HE BEGAN ASSISTING GOOGLE WHILE STILL EMPLOYED AT MICROSOFT, AND CONFUSED THE DIFFERENCE BETWEEN THE DISCRETION GIVEN HIM TO DISCLOSE MICROSOFT'S CONFIDENTIAL INFORMATION FOR THE BENEFIT OF MICROSOFT AS PART OF HIS EMPLOYMENT AND DISCLOSING SUCH CONFIDENTIAL INFORMATION FOR HIS OWN BENEFIT OR FOR THE BENEFIT OF ANOTHER. DURING HIS EMPLOYMENT WITH MICROSOFT, DR. LEE WORKED ON PRODUCTS, SERVICES OR PROJECTS REGARDING INTERNET SEARCH, DESKTOP SEARCH, MOBILE SEARCH, NATURAL LANGUAGE PROCESSING AND SPEECH TECHNOLOGIES. HE RECEIVED CONFIDENTIAL, PROPRIETARY OR TRADE

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SECRET INFORMATION WITH RESPECT TO MICROSOFT'S RECRUITING STRATEGIES AND RESEARCH AND DEVELOPMENT IN CHINA, MICROSOFT'S GOVERNMENT RELATIONS IN CHINA, AND OTHER MATTERS. GOOGLE'S USE OF DR. LEE TO ENGAGE IN RECRUITING ACTIVITIES RELATED TO GOOGLE'S PLANNED RESEARCH AND DEVELOPMENT FACILITY IN CHINA PENDING TRIAL IN JANUARY OF 2006, DOES NOT VIOLATE THE AGREEMENT, PROVIDED DR. LEE DOES NOT RECRUIT FROM MICROSOFT OR USE ANY CONFIDENTIAL INFORMATION FROM MICROSOFT. AS FOR CONCLUSIONS OF LAW, IF INDEPENDENT CONSIDERATION IS ESTABLISHED AT TRIAL, WHICH LIKELY IT WILL BE, THE AGREEMENT PROVIDES MICROSOFT WITH CLEAR LEGAL OR EQUITABLE RIGHTS ENFORCEABLE UNDER WASHINGTON LAW. AT ISSUE AT TRIAL WILL BE THE SCOPE OF THOSE RIGHTS UNDER THE AGREEMENT. I FIND THAT PARAGRAPH 9 IS REASONABLY NECESSARY TO PROTECT MICROSOFT'S LEGITIMATE BUSINESS INTERESTS. THE DEFENDANTS' STIPULATION IS NOT A SUBSTITUTE FOR PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF, ESPECIALLY, AS HERE, THE

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STIPULATION WAS OFFERED AFTER THE LAWSUIT BEGAN AND THE COURT ISSUED THE TEMPORARY RESTRAINING ORDER. EXCEPT AS TO CERTAIN ACTIVITIES IN CHINA, THE COURT IS SATISFIED THAT MICROSOFT HAS ESTABLISHED A CLEAR LEGAL OR EQUITABLE RIGHT, A WELL-GROUNDED FEAR OF IMMEDIATE INVASION OF THAT RIGHT, AND THE EQUITIES DICTATE A PRELIMINARY INJUNCTION, DESPITE THE OFFER OF A STIPULATION. MICROSOFT, HOWEVER, HAS NOT SUFFICIENTLY SHOWN THAT IT HAS A CLEAR LEGAL OR EQUITABLE RIGHT TO ENJOIN DR. LEE, PENDING TRIAL, FROM ESTABLISHING AND STAFFING A GOOGLE DEVELOPMENT FACILITY IN CHINA, OR AT LEAST CERTAIN ASPECTS OF THAT WORK. THIS IS BASED ON THE FACT THAT THE GENERAL ACTIVITIES OF DR. LEE AT MICROSOFT SINCE 2000 REGARDING CHINA AND RECRUITING EFFORTS IN CHINA ARE NOT A PROJECT WITHIN THE MEANING OF THE AGREEMENT. DUE TO THE PUBLIC POLICY IMPLICATIONS, ANY BROADER INTERPRETATION OF THE TERM "PROJECT" IN THE AGREEMENT TO INCLUDE SUCH ACTIVITIES WOULD RAISE SIGNIFICANT QUESTIONS ABOUT THE

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ENFORCEABILITY OF THAT PORTION OF THE AGREEMENT. PENDING TRIAL OF THIS MATTER, IT IS ORDERED THAT DR. LEE AND GOOGLE ARE PRELIMINARILY ENJOINED AS FOLLOWS: DR. LEE IS ENJOINED FROM ACCEPTING EMPLOYMENT COMPETITIVE WITH OR ENGAGING IN ACTIVITIES COMPETITIVE WITH ANY PRODUCT, SERVICE OR PROJECT ON WHICH HE WORKED OR ABOUT WHICH HE LEARNED CONFIDENTIAL OR PROPRIETARY INFORMATION OR TRADE SECRETS WHILE AT MICROSOFT. THIS INCLUDES COMPUTER SEARCH TECHNOLOGIES, NATURAL LANGUAGE AND SPEECH TECHNOLOGIES. IT ALSO INCLUDES PARTICIPATION IN SETTING THE BUDGET OR COMPENSATION LEVELS, OR DEFINING THE RESEARCH AND DEVELOPMENT TO BE UNDERTAKEN AT GOOGLE'S PLANNED RESEARCH AND DEVELOPMENT FACILITY IN CHINA. GOOGLE IS SIMILARLY PRELIMINARILY ENJOINED. WHAT THE COURT MEANS BY THAT IS THAT DR. LEE MAY INTERVIEW AND ASSIST IN RECRUITMENT FOR THE FACILITY IN CHINA. HE MAY ASSIST SITING THAT FACILITY IN CHINA. HE

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MAY MEET WITH FACULTY IN CHINA ONLY REGARDING RECRUITMENT FOR THAT FACILITY. HE MAY MEET WITH GOVERNMENT OFFICIALS IN CHINA, TO THE EXTENT THAT IS NECESSARY, TO ESTABLISH, LICENSE AND SITE THE FACILITY. HE IS NOT TO HAVE CONTACT WITH THOSE GOVERNMENT OFFICIALS OR UNIVERSITY OFFICIALS REGARDING SOFTWARE DEVELOPMENT OR OTHER RESEARCH PROJECTS OF GOOGLE PENDING TRIAL. DR. LEE AND GOOGLE ARE, OF COURSE, ENJOINED FROM DISCLOSING OR MISAPPROPRIATING ANY TRADE SECRETS OR CONFIDENTIAL INFORMATION OF MICROSOFT. DR. LEE, AS THE AGREEMENT PROVIDES, IS ENJOINED FROM SOLICITING ANY OF MICROSOFT'S EMPLOYEES TO JOIN GOOGLE. ALL PARTIES ARE ENJOINED FROM DESTROYING ANY DOCUMENTS OR FILES OF ANY KIND THAT RELATE TO THIS MATTER. MICROSOFT SHALL MAINTAIN THE CURRENT INJUNCTION BOND IN PLACE AFTER THE TRO. THE TRO IS SUPERSEDED BY THIS PRELIMINARY INJUNCTION. THEREFORE, DEFENDANTS' MOTION TO DISSOLVE THE TRO IS MOOT AT THIS POINT.

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THE BAILIFF HAS COPIES OF THE PRELIMINARY INJUNCTION I HAVE JUST SUMMARIZED. SHE WILL MAKE THEM AVAILABLE TO THE PARTIES AND THE PUBLIC. WE ARE IN RECESS UNTIL THE TRIAL IN JANUARY. (RECESS.)

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STATE OF WASHINGTON ) ) SS. REPORTER'S CERTIFICATE COUNTY OF KING )

I, APRIL M. LAINE, ONE OF THE OFFICIAL COURT REPORTERS OF THE SUPERIOR COURT OF THE STATE OF WASHINGTON, IN AND FOR THE COUNTY OF KING, DO HEREBY CERTIFY THAT THE VERBATIM REPORT OF PROCEEDINGS IN THE FOREGOING CAUSE WAS ORDERED VERBALLY BY DENNIS TESSIER AND SCOTT RIEWERTS ON THE 13TH DAY OF SEPTEMBER, 2005.

I FURTHER CERTIFY THAT I DELIVERED A COPY OF SAID VERBATIM REPORT OF PROCEEDINGS TO MR. TESSIER AND MR. RIEWERTS ON THE 15TH OF SEPTEMBER, 2005, THE ORIGINAL BEING RETAINED BY ME.

________________________ APRIL M. LAINE OFFICIAL COURT REPORTER

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