AdTrader, Inc. v. Google LLC

Filing 363

FURTHER ORDER re 311 , 362 Plaintiffs' Motion to Exclude Evidence. Signed by Magistrate Judge Virginia K. DeMarchi on 11/19/2021. (vkdlc2, COURT STAFF) (Filed on 11/19/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADTRADER, INC., et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 17-cv-07082-BLF (VKD)
FURTHER ORDER RE PLAINTIFFS'
MOTION TO EXCLUDE EVIDENCE

v.
GOOGLE LLC,

Re: Dkt. Nos. 311, 362

Defendant.

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By order dated October 25, 2021, this Court denied Plaintiffs’ motion to exclude evidence,

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but found that Google had committed a discovery violation that warranted alternative remedies or

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sanctions. Dkt. Nos. 350 (sealed), 354 (redacted). As directed, the parties advise that they have

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conferred about possible alternative remedies but do not agree. Dkt. No. 362.

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As the Court observed in its prior order, the appropriate remedy for Google’s discovery

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violation must afford Plaintiffs an opportunity to explore the facts responsive to SCB’s

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Interrogatories Nos. 15-17, including how Google derived the information on which it relies in its

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supplemental responses, as well as an opportunity to modify their damages calculation to account

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for the supplemental responses, including supplementing their expert’s opinions. In addition,

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Google must reimburse Plaintiffs’ reasonable attorneys’ fees and costs associated with these

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efforts. The Court has considered the parties’ respective proposals, and now orders as follows:

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1. Fact discovery: Google will promptly produce Michael Spaulding and Felix Chang for

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deposition regarding the underlying data and processes on which Google relied to

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arrive at the numbers it included in both its original supplemental responses to SCB’s

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Interrogatories Nos. 15-17, including the matters described in Messrs. Spaulding and

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Change’s respective declarations. Dkt. Nos. 316-6, 316-8. Each deposition may not

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exceed three hours. Alternatively, at Plaintiffs’ election, Google will produce a Rule

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30(b)(6) designee to testify regarding the same subject matter, and such deposition will

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not exceed four hours.

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2. Expert discovery: Plaintiffs’ expert, Dr. Kneuper, may prepare a supplemental expert

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report incorporating any new information learned from the additional fact discovery

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authorized above. The supplemental expert report must be served no later than 21 days

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after completion of the last deposition unless the parties agree otherwise.

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3. The parties shall cooperate in seeking a modification of the case schedule to reopen
fact and expert discovery for the sole purpose of completing the additional discovery

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United States District Court
Northern District of California

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authorized above.

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4. Google will reimburse the reasonable attorneys’ fees and costs incurred by Plaintiffs in

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connection with the additional discovery authorized above, as follows:

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a. cost of court reporter and videographer for the deposition(s);

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b. reasonable attorneys’ fees for time spent taking the deposition(s);

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c. reasonable attorneys’ fees for time spent preparing to take deposition(s) (not to

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exceed 5 hours);
d. expert fees for time spent by Dr. Kneuper in preparing a supplemental expert report
(not to exceed 15 hours); and
e. reasonable attorneys’ fees for time spent working with Dr. Kneuper to prepare a
supplemental expert report (not to exceed 15 hours).
IT IS SO ORDERED.
Dated: November 19, 2021

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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