Viacom International Inc. et al v. YouTube, Inc. et al

Filing 10

Declaration of Steven D. Hemminger in Support of 9 Response of NonParty BayTSP to Defendant YouTube's Motion to Compel Production of Documents filed byBayTSP, Inc. (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, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Related document(s) 9 ) (Hemminger, Steven) (Filed on 11/18/2008)

Viacom International Inc. et al v. YouTube, Inc. et al

Doc. 10

1 Steven D. Hemminger, State Bar No. 110665 2 Two Palo Alto Square 3 3000 El Camino Real, Suite 400 4 Telephone: [phone] [phone] 5 Fax: [phone] Viaco m Internat ional Inc., et al., 12 13 14 15 16 17 18 The Football Association Premier League Limi19 20 21 23 24 25 26 27 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS CASE NO . 08-MC -80211 JF (PVT x)

ALSTON & BIRD LLP

Palo Alto, CA 94306-2112

Email:

[e-mail]

7 Attorney for Nonparty BayTSP, Inc.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. CV08-80211-JF (PVTx) DECLARATION OF STEVEN D. HEMMINGER IN SUPPORT OF RESPONSE OF NONPARTY BAYTSP TO DEFENDANT YOUTUBE'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Plaint iffs,

v. YouTube, Inc. et al., Defendants.

ted, et al.,

Plaint iffs, v.

Date: Time: Courtroom: Judge:

December 9, 2008 10:00 a.m. 5, 4th Floor Patricia V. Trumbull

22 YouTube, Inc. et al.,
Defendants.

0

Dockets.Justia.com

1 DECLARATION OF STEVEN D. HEMMINGER 2 3
I, STEVEN D. HEMMINGER, declare: 1. I am a partner at Alston & Bird, LLP, counsel for nonpart y BayTSP.com, Inc. and I

4 make this declarat ion based on informat ion known to me in that capacit y. Unless indicated 5 otherwise, I have personal knowledge of the facts contained in this declarat ion, and, if called upon 6 to do so, I could and would testify co mpetent ly thereto. 7
2. Attached hereto as Exhibit A is a true and correct copy of the October 29, 2007

8 letter from Mark Ishikawa to James Hartnett, stating, "I have been informed that you granted 9 BayTSP an extension o f time unt il November 7, 2007 in which to object or otherwise respond to 10 the subpoena." 11 13 confer. 14
4. During the telephonic meet and confer, I emphasized the need to identify all 3. Attached hereto as Exhibit B is a true and correct copy of the November 27, 2007

12 email fro m Shayna Cook, counsel for YouTube, to me confirming our init ial telephonic meet and

15 plaint iffs regarding which BayTSP will produce responsive informat ion prior to commencing the 16 process of co llect ing documents. 17
5. During the telephonic meet and confer, I explained that BayTSP does not store

18 each client's informat ion in a separate database such that it would be simple to extract data 19 relat ing to any particular client. 20
6. During the telephonic meet and confer, YouTube's counsel agreed to seek

21 clarification fro m YouTube on: (i) the breadth of the requests; (ii) the relevance of the informat ion 22 sought; (iii) whether YouTube agrees to limit the requests to include informat ion relat ing to the 23 named plaint iffs; and (iv) whether YouTube is seeking production of the BayTSP's source code. 24
7. Similarly, I agreed to consult with BayTSP regarding the fo llowing issues: (i)

25 whether BayTSP would agree to a piecemeal production despite the burden; and (ii) whether 26 BayTSP would agree to produce design specificat ions, user manuals, market ing materials and 27 other such information discussing BayTSP's so ftware. 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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8.

YouTube's counsel and I conducted a telephonic meet and confer on December 4,

2 2008 to continue discussing BayTSP's response to YouTube's subpoena.
9. During the December 4 telephonic meet and confer, I explained that although

4 BayTSP does not believe the requests are proper because they are overbroad, it would like to reach 5 an agreement regarding the scope of the requests and produce relevant documents. 6
10. During the telephonic meet and confer, I then expressed BayTSP's concerns that

7 the document requests, as written, sought informatio n relat ing to each of BayTSP's clients and 8 potential clients. 9 11
11. YouTube's counsel responded and raised for the first time the issue o f whether

10 BayTSP will agree to produce documents relat ing to Viaco m's subsidiaries.
12. Because the subpoena did not define the term "Viacom," I agreed to consult with

12 BayTSP regarding this issue and YouTube's counsel agreed to provide BayTSP with a list of 13 Viaco m's subsidiaries. 14 16
13. Attached hereto as Exhibit C is a true and correct copy of the December 5, 2007

15 email Shayna Cook, counsel for YouTube, to me attaching a list of Viaco m subsidiaries.
14. During the December 4 telephonic meet and confer, YouTube's counsel

17 communicated their proposal to limit the requests to seek informat ion relat ing to BayTSP's ten 18 biggest clients (in addit io n to documents relating to the named plaint iffs), including documents 19 concerning the effect iveness of BayTSP's searching mechanism, the rules provided by the clients 20 to BayTSP to guide BayTSP's search for infringing uses, and the process for sending takedown 21 notices to YouTube. 22 24 26
15. In response, I explained several problems wit h YouTube's proposal including the

23 substant ial burden on BayTSP and likely chilling effect on BayTSP's business.
16. I further explained that BayTSP's documents are subject to confident ialit y

25 agreements and co mpliance wit h YouTube's proposal could put BayTSP's business at risk.
17. I explained that a copyright owner may opt not to hire BayTSP for fear of exposure

27 to the following risks: (1) the production of the copyright owner's confident ial informat ion to 28 YouTube; and/or (2) YouTube's issuance of a subpoena to the copyright owner.
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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18.

Further, I questioned the relevance o f the informat ion regarding ten of BayTSP's

2 clients and stated that the relevance to Viacom's claims was unclear.
19. At the conclusio n of the December 4 telephonic meet and confer, I informed

4 YouTube that the types of documents sought are not necessarily maintained by BayTSP. I am 5 informed that, BayTSP does not take tallies of all of the takedown notices it sends on behalf o f 6 each client nor does BayTSP maintain documents concerning its effect iveness in ident ifying 7 infringement. Which of course would be impossible. How does anyo ne know how many 8 infringing videos are missed. 9 11 13
20. Counsel for YouTube was receptive to the concerns discussed and agreed to

10 consult with YouTube in order to narrow its requests in light of the foregoing concerns.
21. On December 18, 2007, I met and conferred via telephone wit h counsel for

12 YouTube.
22. On behalf o f BayTSP, I proposed that the parties agree to limit the subpoena to

14 seek information relat ing to the named plaint iffs and that BayTSP's production of this informat ion 15 would const itute compliance with the subpoena, and that BayTSP would not object to YouTube's 16 issuance o f a second subpoena at a later date seeking informat ion relat ing to BayTSP's other 17 clients. 18 20
23. YouTube's counsel agreed that this proposal made sense, but noted that counsel did

19 not have the authority to agree without conferring with YouTube.
24. During the call, I also stated BayTSP's concern about the production of informat ion

21 relat ing to their clients other than the named plaint iffs. The issue I expressed was the possibilit y 22 that the production of information relating to its clients would drag them into the lawsuit and have 23 a chilling effect on BayTSP's business. 24 26 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

25.

I also stated that BayTSP did not understand the relevance of the names of its

25 clients to this lit igat ion.
26. I objected to the production of informat ion relating to BayTSP's clients on the

27 grounds of relevance, confident ialit y and burden.

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27.

Wit h regard to the production of informat ion relat ing to the named plaint iffs, I

2 represented that BayTSP would contact each named plaint iff that is a client of BayTSP regarding 3 the production of the client's informat ion in response to YouTube's subpoena. 4
28. Further, I represented that if the client did not object to the production of its

5 informat ion, BayTSP would produce it and BayTSP would not object to the production of 6 documents relat ing to any of these clients unless the client objected. 7
29. I also informed YouTube that BayTSP must fo llo w this procedure because of its

8 non-disclo sure agreements and understandings wit h its clients was such that BayTSP may neit her 9 disclose that a particular ent it y is a client nor disclose that client's informat ion wit hout notifying 10 the client and providing the client with the opportunit y to object. 11
30. Attached hereto as Exhibit D is a true and correct copy of the January 2, 2008

12 email informing me that Mayer Brown LLP would replace Bartlit Beck Herman Palenchar & Scott 13 LLP as counsel for YouTube in this matter. 14
31. To further the production process, I repeated BayTSP's proposal to YouTube's new

15 counsel on January 7, namely that YouTube limit its excessive requests for documents to include 16 only Plaint iffs and their subsidiaries and exclude BayTSP's proprietary so ftware and nonpart y 17 clients. 18
32. YouTube's counsel agreed to speak to YouTube to determine whether it was

19 willing to accept the fo llowing proposal by BayTSP: (1) YouTube would limit its subpoena to 20 seek information relat ing to the named plaint iffs only; (2) YouTube would agree that BayTSP 21 need not produce its source code; and (3) BayTSP would agree that it will not to object to the 22 issuance o f a second YouTube subpoena seeking this informat ion at a later date because it had 23 already responded one subpoena. 24 26 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

33.

Attached hereto as Exhibit E is a true and correct copy of the January 18, 2008

25 letter from Brandon Baum to me accept ing my proposal.
34. On January 30, I conducted a meet and confer with YouTube's counsel, during

27 which I clarified that YouTube's January 18 letter did not accurately reflect BayTSP's proposal.

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35.

I proposed that the parties agree to limit the subpoena to seek documents specific to

2 the named Plaint iffs only and to exclude production of BayTSP's source code.
36. I further proposed that its response to the subpoena would constitute full

4 compliance wit h the subpoena without prejudice to YouTube's right to issue a subsequent 5 subpoena seeking the production of addit ional info rmat ion. 6
37. Counsel for YouTube expressed concern that YouTube would have no recourse

7 should BayTSP produce very few responsive documents, to which I responded by stating that 8 BayTSP would produce all responsive documents subject to these limitat ions and that YouTube 9 could later issue a second subpoena seeking the production of the excluded categories of 10 documents. 11 13
38. Counsel for YouTube agreed to my proposal and requested that I memorialize in

12 writing the parties' agreement to the above terms as stated on January 30, 2008.
39. I then memorialized in writ ing the agreement made on January 30, 2008, and

14 submitted a written summary o f the parties' agreement for execut ion on February 13, 2008. 15 Attached hereto as Exhibit F is a true and correct copy of the February 13, 2008 letter from Maria 16 Ellinikos, an associate under my supervisio n, to Brandon Baum summarizing our agreement. 17
40. During our January 30 meet and confer, YouTube's counsel and I agreed to further

18 limit YouTube's request to exclude the fo llowing: the history o f BayTSP's software development, 19 any development contribut ions made by ent it ies other than named Plaint iffs (wit h the exception o f 20 development documents showing design specificatio ns of the techno logy), and API's that do not 21 belo ng to BayTSP (which I represented I believed BayTSP did not have). 22 24
41. I also informed YouTube's counsel that takedown notices sent by BayTSP on

23 behalf o f its clients did not exist at BayTSP in any documentary form.
42. I further explained to YouTube's counsel that the informat ion contained in the

25 takedown notices existed in a proprietary database such that they can be created, but to create the 26 takedown notices would require creation o f a script and processing on the current and archived 27 databases. 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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43.

I stated the ent ire process of generat ing takedown notices would be extremely

2 burdenso me and time consuming to BayTSP.
44. I also reminded YouTube's counsel that YouTube has a copy of the takedown

4 notices and stated that it was unclear why these takedown notices were crit ical to YouTube's case.
45. I then declined to produce the ent ire database because to my understanding it

6 contains proprietary informat ion that would need to be redacted by BayTSP emplo yees, 7 prevent ing them fro m attending to their ordinary business. 8
46. In response, YouTube's counsel stated YouTube would consider reimbursing

9 BayTSP for the expense of redaction. I also agreed to discuss wit h BayTSP the effort required to 10 retrieve the takedown notices. 11
47. Attached hereto as Exhibit G is a true and correct copy of the February 15, 2008

12 email fro m Brandon Baum to Maria Ellinikos, in which YouTube sought to expand the negotiated 13 subpoena's scope to "Viaco m-related ent ities," rather than simply Viaco m subsidiaries, but 14 refused to clarify the meaning of this phrase. 15
48. Attached hereto as Exhibit H is a true and correct copy the February 20, 2008

16 email fro m Maria Ellinikos to Brandon Baum enclosing BayTSP's list of "Viaco m-related 17 ent it ies." 18
49. Attached hereto as Exhibit I is a true and correct copy of the March 24, 2008 letter

19 fro m Maria Ellinikos to Brandon Baum, in which BayTSP stated it would collect documents 20 pursuant to the agreement, specifically o mitting (i) documents related to BayTSP clients not 21 named as plaint iffs and not included on the February 20 list of Viaco m-related ent it ies, and (ii) 22 BayTSP's source code, firm ware, computer programs and algorithms. 23
50. Attached hereto as Exhibit J is a true and correct copy of the March 28, 2008 letter

24 fro m Maria Ellinikos to Brandon Baum, in which BayTSP requested YouTube provide an 25 alternate list of "Viaco m-related ent it ies." 26
51. Attached hereto as Exhibit K is a true and correct copy of the April 2, 2008 letter

27 fro m Brandon Baum to Maria Ellinikos, in which BayTSP's list of over 470 "Viaco m-related 28 ent it ies."
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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52.

The excessive vo lume of data collected made clear to BayTSP that targeted

2 searches would be necessary to ident ify and then review documents responsive to the narrowed 3 scope of YouTube's subpoena. 4
53. Attached hereto as Exhibit L is a true and correct copy of the April 23, 2008 letter

5 fro m Maria Ellinikos to Brandon Baum, in which BayTSP informed YouTube that BayTSP had 6 completed its document collect ion and was in the process of developing a search term list. 7
54. Attached hereto as Exhibit M is a true and correct copy of the May 2, 2008 letter

8 fro m Maria Ellinikos to Brandon Baum and Josh Masur, in which BayTSP solicited a list of 9 relevant search terms from YouTube. 10 12 14
55. Attached hereto as Exhibit N is a true and correct copy of the May 9, 2008 letter

11 fro m Maria Ellinikos to Brandon Baum.
56. Attached hereto as Exhibit O is a true and correct copy of May 14, 2008 letter

13 fro m Maria Ellinikos to Brandon Baum, enclo sing BayTSP's preliminary search term list.
57. Attached hereto as Exhibit P is a true and correct copy of May 28, 2008 letter from

15 Maria Ellinikos to Brandon Baum, responding to YouTube's May 21 refusal to provide BayTSP 16 with search terms. 17 19 21
58. The vast majorit y o f documents responsive to YouTube's original subpoena

18 requests do not relate to Viaco m's suit wit h YouTube.
59. Attached hereto as Exhibit R is a true and correct copy of the May 29, 2008 letter

20 fro m Brandon Baum to Maria Ellinikos.
60. Attached hereto as Exhibit S is a true and correct copy of the May 30, 2008 letter

22 fro m Maria Ellinikos to Brandon Baum, acknowledging YouTube's May 29 refusal to provide 23 BayTSP with search terms and stating BayTSP will proceed with its list of terms. 24
61. Attached hereto as Exhibit T is a true and correct copy of the May 30, 2008 letter

25 fro m Brandon Baum to Maria Ellinikos, attempt ing to renege on the agreed upon limited scope of 26 its subpoena. 27 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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62.

Attached hereto as Exhibit U is a true and correct copy of the June 2, 2008 letter

2 fro m Brandon Baum to Maria Ellinikos, stating BayTSP intended to use its search term list to 3 retrieve properly requested documents to renege on the agreed upon limited scope of its subpoena. 4 6 8 10 12
63. At least seventeen attorneys and staff members have worked for months reviewing

5 documents for privilege and responsiveness and preparing documents for production.
64. Collect ively, these attorneys and staff have spent over 1900 hours ident ifying

7 documents and assist ing with their production to YouTube.
65. It is my understanding that BayTSP's internal emplo yees have invested substant ial

9 amounts of time and resources in ident ifying documents and assist ing with their co llect ion.
66. Over 1.35 millio n documents were electronically processed and loaded into a

11 database for review.
67. Attached hereto as Exhibit V is a true and correct copy of the October 24, 2008

13 letter from Kamran Jivani, an associate under my supervisio n, to Brandon Baum, stating BayTSP 14 ant icipates a significant number of documents to available for review beginning November 21, 15 2008. 16
68. Attached hereto as Exhibit W is a true and correct copy of the October 31, 2008

17 letter from Kamran Jivani to Eric Evans, counsel for YouTube, stating approximately half a 18 millio n documents have been ident ified for production. 19
69. Attached hereto as Exhibit X is a true and correct copy of the November 12, 2008

20 letter from Kamran Jivani to Eric Evans, stating BayTSP, counsel for YouTube stating BayTSP 21 ant icipates a significant number of documents identified for production will be made available for 22 review on a rolling basis beginning November 21, 2008. 23
70. Attached hereto as Exhibit Y is a true and correct copy of the November 18, 2008

24 letter from Kamran Jivani to Eric Evans, stating BayTSP, counsel for YouTube stating BayTSP 25 ant icipates a significant number of the over 650,000 documents identified for production will be 26 made available for review on a rolling basis beginning November 21, 2008. 27 28
DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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CASE NO. 08 -MC -80211 JF (PVTx)

1 3 4 Dated: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

71.

I declare under penalt y o f perjury that the foregoing is true and correct and I

2 executed this declarat ion at Los Angeles, California.
November 18 , 2008 ________/s/_______________ Steven D. Hemminger

DECL. OF STEVE HEMMIN GER ISO BAYTSP' S RESPONSE TO YO UTUBE' S MOTION TO COMPEL PROD UCTION O F DOCUMENTS

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CASE NO. 08 -MC -80211 JF (PVTx)