CLRB Hanson Industries, LLC et al v. Google Inc.

Filing 111

ORDER FOLLOWING HEARING ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION re 85 First MOTION for Summary Judgment or in the Alternative, for Summary Adjudication filed by Google Inc. 80 MOTION for Partial Summary Judgment filed by CLRB Hanson Industries, LLC, Howard Stern. Motion Hearing set for 4/2/2007 10:00 AM in Courtroom 8, 4th Floor, San Jose. Signed by Judge James Ware on 2/8/2007. (ecg, COURT STAFF) (Filed on 2/8/2007)

CLRB Hanson Industries, LLC et al v. Google Inc.

Doc. 111

Case 5:05-cv-03649-JW

Document 111

Filed 02/08/2007

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CLRB Hanson Industries, LLC d/b/a Industrial Printing, et al., v. Google Inc., Defendant. / Plaintiffs, NO. C 05-03649 JW ORDER FOLLOWING HEARING ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

United United States District Court

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For the Northern District of California

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On January 22, 2007, the Court conducted a hearing on Plaintiffs' Motion for Partial Summary Judgment and Defendant's Motion for Summary Judgment. (See Docket Item Nos. 80, 85.) During the hearing, Defendant's counsel referred to the declaration of Michael Schulman ("Schulman"), a Google engineer, as evidence of how Google's AdWords system compensates for fluctuations in Internet traffic over a period of time.1 Plaintiffs' counsel indicated that they had not have an opportunity to take Schulman's deposition, or the deposition of any other Google employee with knowledge of how the AdWords system delivers advertisements. Presently, there is insufficient evidence describing how the AdWords system accounts for fluctuations in Internet traffic and offsets prior shortfalls in advertising hits. For instance, there is

In his declaration, Schulman states, inter alia, "Recognizing that the daily budget is an advertiser's target, as opposed to its maximum, daily advertising spending, the AdWords system was designed to average out natural fluctuations in daily charges by permitting accrual of charges up to 120% of the daily budget in a day if it is necessary to offset prior shortfalls within that monthly billing period." (Declaration of Michael Schulman ¶ 9, Docket Item No. 88.)

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Dockets.Justia.com

Case 5:05-cv-03649-JW

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insufficient evidence in the record establishing that overdelivery by up to 120 percent will actually occur on the first day that an advertising campaign is commenced. Accordingly, Defendant is ORDERED to deliver Michael Schulman for deposition by Plaintiffs. Plaintiffs shall also be permitted to depose one to two additional Google employees with knowledge of how the AdWords system compensates for fluctuations in Internet traffic. The depositions will occur within thirty days of this Order. The Court continues the hearing on Plaintiffs' Motion for Partial Summary Judgment and Defendant's Motion for Summary Judgment to April 2, 2007 at 9 AM. The parties will comply with the Local Rules for supplemental briefing, if any.

United States District Court

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For the Northern District of California

Dated: February 8, 2007

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JAMES WARE United States District Judge

Case 5:05-cv-03649-JW

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Christopher M. Jhang [e-mail] David T. Biderman [e-mail] Judith B. Gitterman [e-mail] Lester L Levy [e-mail] Lisa Delehunt [e-mail] Michele Fried Raphael [e-mail] Ryan M. Hagan [e-mail] William M. Audet [e-mail] Dated: February 8, 2007 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

United States District Court

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For the Northern District of California

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