Personalized User Model LLP v. Google Inc.

Filing 316

Official Transcript of Telephone Confererence held on July 27, 2011 before Judge Stark. Court Reporter Brian Gaffigan, Telephone [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, it may be obtained through PACER. Redaction Request due 9/9/2011. Redacted Transcript Deadline set for 9/19/2011. Release of Transcript Restriction set for 11/17/2011. (bpg)

1
1

IN THE UNITED STATES DISTRICT COURT

2

IN AND FOR THE DISTRICT OF DELAWARE

3
4

- - PERSONALIZED USER MODEL, L.L.P.,
Plaintiff,

5
6
7

v.
GOOGLE, INC.,
Defendant.

8
9

:
:
:
:
:
:
:

CIVIL ACTION

NO. 09-525-LPS

- - -

10

Wilmington, Delaware
Wednesday, July 27, 2011
Telephone Conference

11

- - -

12
13
14
15
16
17
18
19
20
21
22
23
24
25

BEFORE:

HONORABLE LEONARD P. STARK, U.S.D.C.J.
- - -

APPEARANCES:

MORRIS NICHOLS ARSHT & TUNNELL, LLP
BY: KAREN JACOBS LOUDEN, ESQ.
and
SNR DENTON, LLP
BY: MARK C. NELSON, ESQ.
(Dallas, Texas)
and
SNR DENTON, LLP
BY: MARC S. FRIEDMAN, ESQ.
(New York, New York)
and

Brian P. Gaffigan
Registered Merit Reporter

2
1

APPEARANCES:

2

(Continued)
SNR DENTON, LLP
BY: CHRISTIAN E. SAMAY, ESQ.
(Short Hill, New Jersey)

3
4

Counsel for Plaintiff

5
6

POTTER ANDERSON & CORROON, LLP
BY: DAVID E. MOORE, ESQ.

7

and

8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP
BY: DAVID A. PERLSON, ESQ.
(San Francisco, California)

9
10

and

11

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP
BY: ANDREA PALLIOS ROBERTS, ESQ.
(Redwood Shores, California)

12
13

Counsel for Defendant

14
15
16

- oOo -

17

P R O C E E D I N G S

18
19

(REPORTER'S NOTE:

conference was held in chambers, beginning at 3:15 p.m.)

20

THE COURT:

21

Judge Stark.

22

Stark.

23

The following telephone

Good afternoon, counsel.

Who is there, please?

This is

Counsel, this is Judge

Who is there, please?
MR. MOORE:

Good afternoon, your Honor.

David

24

Moore from Potter Anderson on behalf of Google.

With me on

25

the line is David Perlson and also Andrea Roberts from Quinn

3
1

Emanuel.

2

MS. JACOBS LOUDEN:

Good afternoon, your Honor.

3

For the plaintiff, Personalized User Model, this is Karen

4

Jacobs Louden from Morris Nichols.

5

me, Mark Nelson, Mark Friedman and Christian Samay from SNR

6

Denton.

7

THE COURT:

I have on the line with

I have a court reporter here with

8

me.

It is our case of Personalized User Model versus Google

9

Inc., Civil Action No 09-525-LPS.

10

Today's call is for us to take a look again, I

11

should say yet again, at the dispute over -- well, now it is

12

basically whether some additional communications need to be

13

produced by the plaintiff as a result of the waiver that has

14

been found by the Court of privilege.

15

with the dispute at this point and have reviewed the papers,

16

but I will give you each a chance to address the remaining

17

scope of the dispute.

I'm somewhat familiar

18

Google is the moving party, so you can go first.

19

MR. PERLSON:

Thank you, your Honor.

Good

20

afternoon.

21

are, from our perspective, very important materials.

22

I apologize we're back here yet again, but they

What we are seeking here, your Honor, there are

23

these eight withheld documents.

We are seeking them to the

24

extent that they concern conception and changed testimony and

25

changed interrogatories relating to the date of conception,

4
1

which were subjects that were discussed at these January 19th

2

and February 7th meetings and thus we think that they are

3

within the scope of the Court's order.

4

PUM has never said that these withheld documents

5

do not concern conception with the changed testimony and

6

interrogatory response.

7

documents do not relate to Category A and B that the Court did

8

allow.

9

categories.

Instead, what they're saying is these

At least, that is the way PUM is interpreting those
What it seems to be happening here is that PUM

10

is interpreting these categories in such a way that A, B,

11

and C are necessarily exclusive of each other such that if a

12

document is concerning the preparation of the interrogatory

13

responses, that cannot concern one of the subject matters that

14

the Court did allow.

15

We would submit, your Honor, that is not how

16

the Court ruled.

17

situation at the hearing and found that when there is

18

overlap, what is going to be protected is the work product,

19

i.e., the interrogatory responses themselves.

20

Your Honor specifically addressed the

I do not think that applies to any of the --

21

at least based on their log, it does not appear to apply to

22

any of the things they are still withholding, all of which I

23

think are e-mails, and none of which the plaintiff before

24

has claimed worked product protection.

25

related claim in their brief, but it certainly does not seem

They throw away the

5
1

like these are the interrogatory responses themselves that

2

they are withholding.

3

Just as a practical matter, as we pointed out,

4

it does seem quite clear that SRI and the ownership issue

5

regarding it was discussed in connection with the changed

6

interrogatory response.

7

the meeting, the February 7th meeting, it would be just as

8

relevant as if it is discussed in a February 7th meeting;

9

but under PUM's interpretation, if there was an e-mail from

If it was discussed the day after

10

PUM's counsel or the inventors, and this was on February 8th,

11

and it says if we agree to pick a September 21st conception

12

date to include in its interrogatory response, this would

13

put the ownership issue to bed.

14

not need to be produced.

15

is just the type of thing that your Honor's order did allow

16

for, and that these documents should be produced.

They are saying that would

We would submit, your Honor, that

17

Another point is that they are saying that our

18

argument is that because the Court granted its motion with

19

respect to Category B, the subject matters discussed in the

20

meeting, that PUM cannot withhold any documents outside of

21

drafts and supplemental interrogatory responses, but that is

22

not our argument.

23

Our argument is that anything that falls within

24

the subjects that your Honor did allow needs to be produced

25

regardless of whether it falls into the category that your

6
1

Honor did not allow, with the sole exception of the work

2

product, the interrogatory responses themselves, as your

3

Honor ruled.

4

A couple other things.

They seem to be somehow

5

saying that documents on February 8th should not be produced

6

because they do not relate to the meetings themselves, but

7

there is nothing in your Honor's order that provided a cutoff

8

of February 7th, which is when that last meeting occurred.

9

In fact, I inquired as to the dates.

We had specifically

10

said that was not the cutoff.

11

response.

12

day after the February 7th meeting are just as relevant to

13

the discussions in the meeting itself.

14

The cutoff was the interrogatory

So these communications regarding conception the

Finally, your Honor, I would just note that to

15

the extent that your Honor is not inclined to rule on the

16

papers themselves, that seems appropriate for a submission

17

in camera so that your Honor can determine whether these you

18

documents fall within the scope of your ruling.

19

THE COURT:

20

Let me hear from the plaintiff, please.

21

MR. NELSON:

22

speaking on behalf of plaintiff PUM.

23

Thank you very much.

Your Honor, this is Mark Nelson,

We, too, unfortunately find ourselves back here

24

again and really did not want to.

25

than what Google states it.

Our position is different

I think they misunderstand our

7
1

position.

2

We complied fully we believe with the order by

3

producing the documents relating to the scheduling of the

4

meetings and documents relating to the subjects discussed at

5

those meetings, but your Honor's order specifically denies

6

them communications regarding PUM's preparation of its

7

fourth supplemental responses.

8
9

It seems like when we kind of cut to the chase,
that what Google is really looking for here is documents

10

that somehow overlap.

I think the question is, well, how do

11

you define relating to conception or relating to the changed

12

response?

13

said, most are work product, and many of them do have the

14

draft interrogatory response attached as part of a Blackberry

15

readable e-mail.

16

changed interrogatory response because the ones that have

17

the draft on them, that is what it is.

Because these e-mails, contrary to what counsel

In one sense, well, they all relate to the

18

To the extent there is overlap like what I think

19

counsel for Google was talking about where you had something

20

to do with actual discussion of conception, for example, we

21

produced that overlapping e-mail.

22

is -- I need to find it here.

23

I believe that e-mail

There was an e-mail from Jennifer Bent to Roy

24

Twersky on February 8th at 10:30 a.m. talking about a

25

document relating to conception.

That document was one of

8
1

the documents that was discussed at the meeting.

2

did produce that.

3

Well, we

The other documents that are here generally

4

relate to -- well, really relate to the preparation of the

5

fourth supplemental interrogatory response.

6

and confer on this issue, we were again hamstrung because we

7

were trying to explain in our view what these documents

8

were, but, again, Google would not indicate to us that if

9

we gave them any sort of a real description of what the

During the meet

10

documents were, they would not use that as a waiver against

11

us, and then we would be back here on another ground.

12

I guess to summarize, we fully believe that we

13

complied with the order.

14

I guess by Google to snatch most of Category C which the

15

Court denied them the relief from under the Court's order.

16

We read the order again as very clear that communications

17

relating to the preparation of the fourth supplemental

18

response were not part of what was included within the

19

waiver.

20

all I can say.

21

We view this as just an attempt

That is what these documents are.

That is really

Google made a few other points.

They attach

22

a piece of one of the other e-mails in trying to maybe

23

create a smoking gun on the SRI issue.

24

then the e-mail that is attached to our letter, confirmed

25

what Mr. Twersky said in his deposition:

That e-mail, and

that there was a

9
1

question as to what the legal meaning of conception was.

2

provided that legal meaning to them.

3

is just an overreach by Google to try to get a second bite

4

at something that the Court already denied them.

5

THE COURT:

We

We think, here, this

Mr. Nelson, I think everybody agrees

6

it comes down to overlap.

7

understand PUM's position.

8
9

So I do want to make sure I fully

In your letter, at page 2, I'm near the top of
the page, you write:

"The remaining withheld communications

10

reflecting both attorney-client communications and work

11

product relate to PUM's preparation of its Fourth Supplemental

12

Response to Interrogatory No. 1, the category of communications

13

that the Court specifically denied Google."

14

Do the remaining eight withheld e-mails relate

15

solely to PUM's preparation of its Fourth Supplemental

16

Response to Interrogatory No. 1?

17

MR. NELSON:

Let me try to figure out a way

18

to answer that sort of most accurately without waiving

19

privilege.

20

The majority of the e-mails are essentially

21

transmittals that would have the interrogatory's proposed

22

supplemental response attached to it.

23

e-mails relate to a question about certain aspects unrelated

24

to conception in that proposed supplemental response.

25

couple of the other ones relate to -- one relates to a

A couple of the

A

10
1

document that was -- I'm in a difficult position, your

2

Honor, because, again, if I go into these in too much

3

detail, I feel like I risk a waiver.

4
5

THE COURT:

What do you think of the suggestion

that I review the eight e-mails in camera?

6

MR. NELSON:

We are fine with that.

I do not

7

think it is necessary, but we are certainly fine with that.

8

If I give a more detailed description here over the

9

telephone, I feel I risk a waiver, and so I am not sure --

10

and I do not want to misrepresent something to the Court in

11

case the Court finds for Google, and then they come back

12

and say, well, I said that something did not relate in any

13

way to the changed interrogatory and under some tortured

14

interpretation Google says it does.

15

THE COURT:

16

It is just eight e-mails that are at

issue; correct?

17

MR. NELSON:

18

THE COURT:

Yes, it is.
Well, I am inclined to order you to

19

submit them for in camera review.

20

you want to say before I turn back to Mr. Perlson?

21

MR. NELSON:

22

THE COURT:

23

inclination.

Is there anything further

No, your Honor.
Mr. Perlson, you have heard my

Is there anything else you want to add?

24

MR. PERLSON:

25

THE COURT:

No, your Honor.

Thank you.

Then I think given that we have

11
1

spent a quite a lot of time collectively on these issues and

2

we at least have narrowed it down to eight e-mails, and

3

counsel for plaintiff is in a difficult position in trying

4

to represent further what they say without risking a further

5

waiver, although review in camera is something I do not have

6

time to do very often, I think under the circumstances it is

7

the appropriate way to resolve this dispute, hopefully, once

8

and for all.

9

I'm hereby ordering the plaintiff submit for in

10

camera review a copy of the eight e-mails and to get those

11

into us by the end of the day tomorrow.

12
13

Is there anything further we need to discuss at
this time, Mr. Perlson?

14

MR. PERLSON:

No, your Honor.

15

THE COURT:

16

MR. NELSON:

17

THE COURT:

18

Thank you.

(Conference ends at 3:30 p.m.)

Mr. Nelson?
No, your Honor.

Thank you.

Thank you very much.

Good-bye.

19
20
21
22
23
24
25

I hereby certify the foregoing is a true and accurate
transcript from my stenographic notes in the proceeding.
/s Brian P. Gaffigan
Official Court Reporter
U.S. District Court