Personalized User Model LLP v. Google Inc.

Filing 247

REDACTED VERSION of 228 Letter to the Honorable Leonard P. Stark from Jeremy A. Tigan regarding discovery dispute by Personalized User Model LLP. (Attachments: # 1 Exhibits 1-11)(Tigan, Jeremy)

MoRRIS, NrcHoLs, hsHT & TuNNELL LLP
1201

NoRTH MARKET STREET

P.O. Box 1347
WILMINGTON, DELAWARE 19899-1347

JEREMY

A.

302 658 9200
302 658 3989 FAX
TrGAN

302 351 9106
302 425 3096 FAX
jtigan@mnat. com

The Honorable Leonard P. Stark
United States District Court
for the District of Delaware
844 North King Street
Wilmington, DE 19801
Re:

PUBLIC VERSION

March 31, 2011

Confidential Version Filed: March 31, 2011
Public Version Filed: April 12, 2011

Personalized User Model, L.L.P. v. Google, Inc. C.A. No. 09-525 (LPS)

Dear Judge Stark:
We write in advance of the April 6, 2011 conference (D.I. 211) regarding Google, Inc.'s
("Google") (i) refusal to continue to make its source code production available after the close of
fact discovery, (ii) refusal to make its previously unprepared Rule 30(b)(6) designees available
for four additional hours of deposition testimony, and (iii) refusal to allow Mr. Weinberg to
testify during his deposition regarding non-privileged business discussions simply because
counsel was present.
Google's Attempt To Take Back Its Source Code Production Should Be Rejected. Pursuant
to the Protective Order, Google made portions of its source code available for inspection on a
stand alone computer. Without justification, Google now indicates that it will cease to make that
code available once discovery closes. Google's position, although never fully articulated, is that
its "production" is only the paper copies of the source code that Personalized User Model, L.L.P.
("P.U.M.") elected to print during the discovery period, not the remainder of the source code that
Google made available electronically. Google's position should be rejected because it is
contrary to the Protective Order, the earlier position taken by Google before this Court in relation
to PUM' s request for an on-site inspection of the code, and normal discovery practices, and,
further, because it would severely prejudice P.U.M.
Google's position is directly contradicted by the Protective Order in this case. That Order
(D.I. 38) states that "[t]he printed pages shall constitute part [not all] of the source code
production in this case." D.I. 38, ~19(B)(7) at 18 (emphasis added). The remainder of the
production is the source code residing on the stand alone computer. This conclusion is supported
by paragraph B, which applies to the "production of source code" encompassing the treatment of
both the electronically available code and the printed code. See D.I. 38, at 14-21. Google,
moreover, admitted that the code residing on the stand alone computer constituted its production.
During the February 22, 2011 hearing when Google argued against permitting P.U.M. to inspect

Hon. Leonard P. Stark
March 31, 2011
Page 2 of4
the code at Google's facilities, Google stated: "Rule 34 concerns the production of electronically
stored information . . . it says . . . that a party need not produce the same electronically stored
information in more than one form ... ". Ex. 1, at 10. Google's counsel argued that it had
produced the code once -- in electronic form on a stand alone computer pursuant to the
Protective Order -- and thus should not have to produce it again by permitting inspection. Id at
10-11. Finally, and contrary to Google's position, the Protective Order does not state (or
contemplate) that access to the stand alone computer portion of the source code production shall
end with the close of fact discovery. The Protective Order provides that the code "shall be made
available during regular business hours local time, Monday through Friday ... ". D.I. 38,
~19(B)(3) at 15. Nothing in the Protective Order even remotely supports Google's position.
Google cannot "produce" the code in electronic form only to take that "production" away at the
close of fact discovery.
The provisions of the Protective Order that limit the number of source code pages to be printed
and the number of pages of source code that can be consecutively printed further support
P.U.M.'s position. See D.I. 38, at 17-18. P.U.M. agreed to such limits because P.U.M.
understood that it would continue to have access to the source code in electronic form (and the
search tools to search such code) after the close of fact discovery just as P.U.M. continues to
have access to the remainder of Google's non-source code production after fact discovery
closes. 1 To date, P.U.M. has printed REDACTED ofthe code Google has produced. See Pazzani
Decl., ~2. If P.U.M. is now denied access to the electronic portion of Google's source code
production, P.U.M. will lose access to REDACTED of Google's relevant source code. Such loss of
access will materially prejudice P.U.M. 's ability to prepare its expert report(s), and prepare and
present its case. Id Additionally, due to a restriction in the Protective Order that limits printing
more than 50 consecutive pages, P.U.M. can print only portions of large source code files,
including some of the most important files that are more than 50 pages. Id Google's attempt to
take back its production would preclude P.U.M. from having access to the remaining portions of
these large files that Google has produced. The prejudice on P.U.M. would be further
compounded because Google recently supplemented its production with source code that has
only been available to P.U.M. for a few weeks. See Ex. 2.
Google's counterarguments are unavailing. See Ex. 3. As stated above, the Protective Order
appropriately contemplates that the source code on the stand alone computer would remain
available after the close of fact discovery. Nor would the continued availability of the source
code be overly burdensome2 : it was Google that elected to implement the process that it now
criticizes as burdensome.
1

It essential that Google's source code remains available in electronic format. If it does not,
P.U.M.'s expert will be precluded from running any searches across Google's source code
production, which he frequently does to efficiently navigate the source code files and find the
definition of functions in code. See Pazzani Decl., ~3.
2

Any burden can also be easily removed by simply making the code available on a stand alone
computer at the offices ofP.U.M.'s counsel, or at the office ofP.U.M.'s expert, subject to similar
safeguards that are currently in place.

Hon. Leonard P. Stark
March 31,2011
Page 3 of4
Google Must Adequately Prepare And Then Reproduce Certain Of Its 30(b)(6) Deponents.
As the attached testimony demonstrates, Google's 30(b)(6) witnesses Ponnekanti (AdSense),
Golpalratnam (AdWords), and Horling (Search) were not adequately prepared to testify about
many areas of the technical subject matter for which they were designated. See Exs. 4-7. REDACTED
REDACTED

It is black letter law that a party is obligated to prepare its 30(b)(6) designees so that they can
give knowledgeable and binding answers. Black Horse Lane Assoc., L.P. v. Dow Chern. Corp.,
228 F.3d 275, 304 (3d Cir. 2000) (ordering sanctions due to unprepared corporate witness); see
also Teles AG Informationstechnologien v. Cisco, 2009 WL 5251537, at *2 (D. Del. Dec. 28,
2009) (ordering parties to reproduce better prepared 30(b)(6) witnesses); In re Neurontin
Antitrust Litig., 2011 WL 253434, at *15 (D.N.J. Jan. 25, 2011) (ordering unprepared witness be

re-deposed and awarding sanctions).
Google's failure to adequately prepare these witnesses resulted in P.U.M. spending additional
time trying to elicit testimony on several key technical areas from 30(b)(1) witnesses. While
these witnesses were able to answer questions in certain instances, there remain a number of
technical areas where Google has yet to provide witnesses who can adequately answer important
technical questions. This prejudice to P.U.M. is magnified because Google produced additional
technical documents and source code that are relevant to the topics for which these witnesses
were noticed and expected to testify earlier after these witnesses were produced. Exs. 2, 8-10.
Given the deficient testimony and continued production of documents and source code, P.U.M.
respectfully requests that the Court order Google to reproduce each of these witnesses for up to
four more hours of 30(b)(6) deposition testimony after each has been properly prepared or,
alternatively, that Google provide additional witnesses who are better prepared and/or more
knowledgeable to testify on the noticed topics, including the calculations involved in the
personalization aspects ofthe AdSense, AdWords, and personal search systems.
Google Cannot Assert Privilege Over Business Discussions. Google should be ordered to
produce Aitan Weinberg for a further deposition regarding weekly business meetings with
REDACTED
Google's founders over which Google has asserted a blanket attorney-client privilege.
REDACTED

The presence ofin-house
counsel at a business meeting does not convert business communications among non-lawyers
into a privileged attorney-client communication. SIPCA Holdings S.A. v. Optical Coating Lab.,
1996 WL 577143, at *2 (Del. Ch. Sept. 23, 1996) ("the presence of a lawyer at a business
meeting called to consider a problem that has legal implications does not itself shield the
communications that occur at that meeting").

Hon. Leonard P. Stark
March 31, 2011
Page 4 of4
Respectfully,

1~~~T
Jeremy A. 'man (#5239)
JAT/cht
cc:
Clerk of the Court (by hand)(w/enc.)
All Counsel of Record (by email)(w/enc.)
4168064