Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 141

Memorandum in Opposition re 93 MOTION for Protective Order filed byCrunchPad, Inc., Interserve, Inc.. (Attachments: # 1 Scherb Declaration)(Scherb, Matthew) (Filed on 5/18/2010)

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101 California Street San Francisco, CA 94111-5802

Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs INTERSERVE, INC., dba TECHCRUNCH and CRUNCHPAD, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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-1SCHERB DECLARATION IN OPP. TO MOTION FOR RENEWED PROTECTIVE ORDER Case No. 09-CV-5812 RS (PVT)

Winston & Strawn LLP

INTERSERVE, INC., dba TECHCRUNCH, ) a Delaware corporation, and CRUNCHPAD, ) INC., a Delaware corporation, ) ) Plaintiffs, ) ) vs. ) ) FUSION GARAGE PTE. LTD., a Singapore ) company, ) ) Defendant. ) ) )

Case No. CV-09-5812 RS (PVT) SCHERB DECLARATION IN OPPOSITION TO FUSION GARAGE'S RENEWED MOTION FOR PROTECTIVE ORDER Date: June 8, 2010 Time: 10:00 a.m. Judge: Hon. Patricia V. Trumbull

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101 California Street San Francisco, CA 94111-5802

I, Matthew Scherb, declare pursuant to 28 U.S.C. § 1746: 1. Strawn LLP. 2. Exhibit A to this declaration is a true and correct copy of the document that I am counsel of record for Plaintiffs and an associate with the law firm of Winston &

Defendant Fusion Garage produced in this litigation bearing Bates number FG0008426. This document is an email in which Mr. Rathakrishnan states that Fusion Garage is only "kind of" responsible for the design of CrunchPad Prototype C. 3. Exhibit B to this declaration is a true and correct copy of the document that

Defendant Fusion Garage produced in this litigation bearing Bates number FG0010049. In this email, Mr. Rathakrishnan describes Fusion Garage's work with Plaintiffs as a "collaboration" and mentions the "evolution of the collaboration with techcrunch...prototype b then prototype c." 4. Exhibit C to this declaration is a true and correct copy of excerpts of the transcript of

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Winston & Strawn LLP

the deposition of Michael Arrington in which Mr. Arrington discusses Plaintiffs' contributions to the CrunchPad project. 5. Exhibit D to this declaration is a true and correct copy of excerpts of the transcript of

the deposition of Chandra Rathakrishnan in which Mr. Rathakrishnan refuses to answer questions based on this Court's April 9, 2010 protective order. 6. Fusion Garage initially designated Exhibit A, Exhibit B, and portions of Exhibit D

under the confidentiality provisions of the stipulated protective order in this case, but have agreed that Plaintiffs could file these exhibits in the public record. I declare under penalty of perjury that the foregoing is true and correct. Executed May 18, 2010. /s/ Matthew A. Scherb

SF:282407.1

-2SCHERB DECLARATION IN OPP. TO MOTION FOR RENEWED PROTECTIVE ORDER Case No. 09-CV-5812 RS (PVT)

EXHIBIT A

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EXHIBIT B

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EXHIBIT C

Michael Arrington Highly Confidential - Attorneys' Eyes Only
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION INTERSERVE, INC., dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, Plaintiffs, vs. FUSION GARAGE PTE. LTD, a Singapore company, Defendant. ------------------------------) ) ) ) ) ) )No. 09-CV-5812 RS ) ) )

VIDEOTAPED DEPOSITION OF INTERSERVE, INC. dba TECHCRUNCH MICHAEL ARRINGTON Redwood Shores, California Tuesday, April 20, 2010 HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY

REPORTED BY:

JAY W. HARBIDGE, CSR NO. 4090

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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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Fusion Garage or anybody associated with Fusion Garage appropriated or took from TechCrunch or CrunchPad? MR. BRIDGES: Objection, vague and

ambiguous, calls for a legal conclusion, foundation competence. THE WITNESS: legal conclusions. BY MR. STERN: Q. Can you tell me any feature of the I'm not comfortable making

JooJoo that was contributed to in whole or in part by either TechCrunch or CrunchPad? MR. BRIDGES: Objection, foundation,

competence in part, and vague and ambiguous. But you may answer. THE WITNESS: We -- obviously the

project, CrunchPad project began before Fusion Garage entered the picture. It began with our

initial post in July with progress from there through the various prototypes. Once Fusion Garage did enter the picture and started working with us, we worked collaboratively as a team. There was no difference

between what we were doing and what they were doing. They were in our office working with us directly,
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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mixing and mingling with my employees. It was a purely -- an awesome collaborative project where we were working together constantly. Decisions were made at high levels,

passed through me; low-level suggestions were made, passed right back up, and it was kind of how the product was developed. BY MR. STERN: Q. Can you tell me the high-level

suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage? me change that question. Can you please list for me all the high-level suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage where those high-level suggestions were proprietary rights of TechCrunch or CrunchPad? MR. BRIDGES: legal conclusion. THE WITNESS: forming legal conclusions. BY MR. STERN: Q. Can you tell me the high-level Yes, I'm uncomfortable Objection, calls for a No, let

suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage?
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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A.

All of them.

I mean, every aspect of

the product was something we discussed constantly. Q. A. Okay. Tell me.

Examples, what the case was made out of,

what color it would be, where buttons would be, what kind of touch technology we could afford, what kind of touch technology was possible. Q. reporter. A. Sure, but I'm going to list every Could you just slow down for the court

feature that was there because it was a collaborative project that we worked on constantly all day long every day. Q. I want to make this very clear. I did

not ask for what was all of the features of the project. I have asked, and I want to make this

clear for the judge, I asked, can you tell me the high-level suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage? I'm asking about high level. We'll get to low

level, but I'm asking about the high-level suggestions that were made by anybody at TechCrunch or CrunchPad to anybody at Fusion Garage. I'm not

asking about collaboration; I'm asking about -- I'm looking for a list of specific suggestions.
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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MR. BRIDGES:

He was giving you a list

of specific suggestions when you interrupted him, Mr. Stern. THE WITNESS: If you look at my original Am I

post from July of 2008 -- do we have that? allowed to pull up documents? MR. BRIDGES: THE WITNESS: No.

Probably not, right?

Virtually every feature

that I stated and I reserve to look to was original at the time, and almost every one of them is part of the CrunchPad project. So those are some examples,

such as boots directly into a browser, browser only, large screen, touchscreen, etcetera. As the project went on, there were, again, additional levels of input which were virtually every product decision you could make: Whether the device had a fan or not, how much heat we could handle without a fan, whether we could deal with the extra height of the device and lowering of battery capacity with the fan, is one example. versus Intel's Adam processor platform was a constant debate. Going with ARM, significantly ARM

lower cost -- we're talking about a $35 to $45 cost low end on the X86 ARM platform -- I'm sorry, Adam platform to maybe $10, $15 for an ARM11 chip using a
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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fraction of the power. The biggest problem was that Flash didn't work properly on the ARM, so constant debates over that. And the ability to run Flash was a key factor

that we debated constantly, and it was a key issue for me that we could run Flash and run Flash effectively on this device so that people could watch movies. We debated issues like whether or not there should be a, quote-unquote, ap store for the device where people could create their own applications and upload the software to the device. That was something that we agreed wouldn't happen in the early days -- it's a lot of work -- but we might look at later. The form factor, literally the aspect ratio of the screen, limited a lot by what was available in a cost-effective way, but I wanted to have a large screen. was a minimum. inch screen. Twelve inches for me really

I actually would have liked a 13But one of the key issues was not just

the size of the screen but also the aspect ratio. And a square screen would have been a much more attractive option. debated endlessly. It was something we

The problem is finding vendors
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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at the appropriate price for that screen. We worked with guys in Asia. Brian

Kindle specifically worked with the Fusion Garage team to try to find somebody to find a better screen for us. time. The operating system, the debate we had after the announcement of Google's Chrome project. In the summer of 2009, Google announced that they would be creating a Linux-based operating system that was browser-only effectively, very similar to the original idea for the CrunchPad. There was a Those discussions were ongoing all the

discussion with the team, Chandra and I, over a long period of time as to whether we would eventually need to port to that operating system because it was very similar to what we were doing, and it -- and the problem was that there were, you know, theoretically hundreds of thousands of developers working to improve that -- I think I'm done. There's probably a few more things I'll remember; then I can bring them up. The important thing to note is that literally all day every day, particularly when Chandra was in town and available, we would be debating, you know, the device, what we could do,
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Michael Arrington Highly Confidential - Attorneys' Eyes Only
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what parameters we had and what we could create together. BY MR. STERN: Q. Did you ever ask Mr. Rahthakrishnan to

maintain any of the information which you've just identified in your answer in confidence? A. Q. A. Yes. And can you tell me when you did that? A few times. And by the way, when you

talk about in confidence, there is -- of course there's discussion between Chandra and his employees and Chandra and the outside world. There were some Like when

things Chandra kept from his employees.

we ditched the entire operating system to go with Chrome, it was up to him to talk to them about it because it might be a morale hit for them to think about working on software that would eventually be thrown away and replaced with something else. But with regard to -- I'm sorry? Q. I'm going to move to strike all of this. I'm looking for dates. Can

I'm asking for dates. you tell me --

MR. BRIDGES: BY MR. STERN: Q.

Whoa.

-- the question was -- hey, chill.
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STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO

) ) ss )

I, JAY W. HARBIDGE, Certified Shorthand Reporter, do hereby certify: That prior to being examined, the witness in the foregoing proceedings was by me duly sworn to testify to the truth, the whole truth, and nothing but the truth; That said proceedings were taken before me at the time and place therein set forth and were taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision; I further certify that I am neither counsel for, nor related to, any parties to said proceedings, nor in anywise interested in the outcome thereof. In witness whereof, I have hereunto subscribed my name. Dated: April 22, 2010

JAY W. HARBIDGE CSR No. 4090
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EXHIBIT D