Personalized User Model LLP v. Google Inc.

Filing 545

Official Transcript of Telephone Conference held on November 20, 2013 before Judge Leonard P. 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 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/10/2014. (bpg)

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IN THE UNITED STATES DISTRICT COURT

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IN AND FOR THE DISTRICT OF DELAWARE

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

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v.
GOOGLE, INC.,
Defendant.

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:
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:
:

CIVIL ACTION

NO. 09-525-LPS

- - -

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Wilmington, Delaware
Wednesday, November 20, 2013
Telephone Conference

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- - -

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BEFORE:

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

APPEARANCES:

MORRIS NICHOLS ARSHT & TUNNELL, LLP
BY: KAREN JACOBS, ESQ., and
REGINA S.E. MURPHY, ESQ.
and
DENTONS US, LLP
BY: MARK C. NELSON, ESQ.
(Dallas, Texas)
and
DENTONS US, LLP
BY: MARC S. FRIEDMAN, ESQ.
(New York, New York)
and
Brian P. Gaffigan
Registered Merit Reporter

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APPEARANCES:

(Continued)

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DENTONS US, LLP
BY: JENNIFER D. BENNETT, ESQ.
(Palo Alto, California)

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Counsel for Personalized User Model, LLP

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POTTER ANDERSON & CORROON, LLP
BY: RICHARD L. HORWITZ, ESQ.

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and

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

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and

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

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Counsel for Google, Inc.

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- oOo -

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P R O C E E D I N G S

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(REPORTER'S NOTE:

conference was held in chambers, beginning at 3:03 p.m.)

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The following telephone

THE COURT:
Judge Stark.

Good afternoon, everybody.

Who is there, please?

This is

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MS. JACOBS:

Good afternoon, Your Honor.

For

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Personalized User Model, this is Karen Jacobs and Regina

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Murphy from Morris Nichols.

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Friedman, Mark Nelson and Jennifer Bennett from Dentons U.S.

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THE COURT:

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MR. HORWITZ:

I have on the line with me Marc

Okay.
Good afternoon, Your Honor.

For

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Google, it's Rich Horwitz at Potter Anderson; and with me on

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the line from Quinn Emanuel are Charles Verhoeven, David

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Perlson, and Andrea Roberts.

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THE COURT:

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reporter here with me.

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Personalized User Model, LLP versus Google Inc., our Civil

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Action No. 09-525-LPS.

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Okay.

Thank you.

I have my court

For the record, it is our case of

I set this call after reviewing the latest round

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of letters relating to the scheduling of trial, and I have

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pending in front of me defendant's request that I reset the

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trial date from the March 10th date.

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probably be helpful in light of certain representations made

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in the various letters that we have a conversation before I

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decide whether to reset the trial date or not.

I thought that it would

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So let me hear first from Google.

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MR. VERHOEVEN:

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Yes, Your Honor.

This is

Charles Verhoeven.

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I personally have two trials in March that were

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previously set, and so from my personal perspective as lead

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counsel for Google, I obviously cannot be two places at once

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so I would request that it would be moved to a time where my

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team and my witnesses would have more availability as well

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as myself personally.

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THE COURT:

Now, Mr. Verhoeven, what has your

role been in this case to this point?

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MR. VERHOEVEN:

I've been working with David

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Perlson, who is running the case day to day, Your Honor.

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I've been working with him throughout the time that our firm

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has been retained on the case on strategy, direction.

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told my client that I would be lead counsel, and on that

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basis we were retained.

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though.

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THE COURT:

I've

I haven't been involved day to day,

How do I assess the prejudice to

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your client if you're not available to be lead counsel at

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trial and someone else has to be lead trial counsel?

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MR. VERHOEVEN:

Well, I think it's more than

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just myself, Your Honor, as we detailed in the letter.

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have a number of other conflicts.

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going to be conflicted.

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losing lead counsel, but we would also have to basically

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reach out the case, I think, Your Honor.

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MR. PERLSON:

We

Our whole team basically

So it will not just be prejudice of

Your Honor, this is David Perlson,

just to interject.
One of the other trials Mr. Verhoeven mentioned

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is a case that I am also on and that several other members

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of our team are also on.

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require restaffing.

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THE COURT:

So I think that would essentially

That is the TracBeam case in Texas;

correct?

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MR. PERLSON:

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THE COURT:

Correct.

All right.

Well, help me understand

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how this happened.

Because if I've got the timeline correct,

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I denied the motions for summary judgment on September 9th

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and ordered a status report by September 19th to tell me

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when you would all be available for trial.

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September 9th or on September 9th, after issuing our opinion,

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you knew that there was going to be a trial in this matter.

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You knew that this matter is pretty old.

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That is probably older than the TracBeam or the ViaSat case.

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And then somehow between September 9th and September 30th

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when, after a couple of stipulations, you got the joint status

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report in, somehow in those couple of weeks, the TracBeam

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case, which appears to be the primary issue, got scheduled for

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March 10th.

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But certainly by

It's an '09 action.

So help me understand how it happened and why I

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should put primary weight on this conflict when the conflict

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only arose at a time that you clearly knew that we were

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going to be scheduling trial.

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MR. PERLSON:

Your Honor, this is David Perlson.

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I can address that.

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What actually happened was, we were trying to

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work with plaintiff to try to come up with something that

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would work with both of us.

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happened with this TracBeam case that required the trial to

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be moved from an earlier date, and we had made that request

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earlier and were waiting on a ruling for the Court, which

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is the reason for why we had extended the time for the joint

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status report a few times.

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And there were things that

The day before we submitted the joint status

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report, we found out that the Court set the hearing in

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March, on March 10th, which is why we proposed and plaintiff

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did not object to a trial in May.

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In actuality, what had happened is that both

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plaintiff and defendant in this TracBeam case had actually

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requested that the trial be moved to May.

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that in part but only moved it to March 10th.

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next day, jointly with plaintiff in this case, we proposed

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May, which I understand by one of your recent orders didn't

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work for the Court, so we actually proposed that May date

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with this conflict in mind.

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the date for March, and that is sort of how we got to where

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we are.

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THE COURT:

The Court granted
And then the

Then we had the order setting

But your proposal to the Texas judge

as I understand it was made on September 12th and ruled on

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on September 26th; is that right?
MR. PERLSON:

No.

Let me see.

That sounds --

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I know that the Texas judge ruled on our request the day

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before we submitted our joint request, which was

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September 30th.

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THE COURT:

Right.

I'm looking at Mr. Horwitz's

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letter of November 7th which says at the bottom of page 1,

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"Google explained that on September 12th, the parties and

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TracBeam filed a motion to amend the case schedule to move

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the trial date to May 2014.

On September 26th, the TracBeam

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Court issued an order setting trial for March 10th."

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That's all accurate; correct, Mr. Perlson?

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MR. PERLSON:

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THE COURT:

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MR. PERLSON:

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THE COURT:

That's --

I'm sorry.

Did you answer that?

Yes, it is.

Okay.

So I guess what I'm struggling

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with at least in part is clearly September is a busy time

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for you and your trial team and you are juggling a number of

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different actions, but it is a time in which you knew that

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there was going to be trial in Delaware.

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'09 case here in Delaware waiting to be tried as compared to

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what looks like a 2013 case in the Eastern District of Texas,

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and then, of course, the 2012 case pending in California.

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you were discussing various options with the plaintiff and I

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guess getting agreement on putting off reporting back to me

You knew that was an

And

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as to when you would be available and now, because there is a

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conflict, the plaintiff here who has been waiting a long time

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for a trial date is being asked to wait even longer and I and

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my court and my docket are being asked to re-examine things

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and move things around.

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So I'm not saying those are illegitimate

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interests on your side, but I'm having a hard time figuring

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out how to weigh them and put them ahead of the interest on

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the other side.

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MR. PERLSON:

Well, Your Honor, if I could say

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this.

The reason why we had put it off a few times in, you

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know, the joint status report, one of the reasons was in

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relation to schedule.

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issues regarding agreement and what was going to go in there.

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But that is neither here nor there now.

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Another one was because we had some

But what we were trying to accomplish is to

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reach agreement with plaintiff in something that they would

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be comfortable with in which neither party would have a

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conflict.

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reason we wanted to wait is that we didn't want to be in a

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situation where we suggested May of 2014, knowing that the

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Court in Texas was just about to rule and so we waited

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until the Court ruled and then worked out an agreement with

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plaintiff that would allow us both, that provided a date

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that they would not object to and present that jointly to

What we did was, is that -- and part of the

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the Court, and that was in May of 2014.

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months later than what you presently set.

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So it was only two

What we were trying to do is work out something

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that worked for everybody.

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being too busy or to not having time to work something out

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or address the issue.

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trying to weigh the conflicts in the multiple cases, and

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then additionally plaintiff's concern regarding getting a

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date.

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THE COURT:

It wasn't really a matter of us

We were actively working on it and

And either Mr. Perlson or Mr. Verhoeven,

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there is about three and-a-half months until this trial is set

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to begin.

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If in fact I keep my trial date, you already

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told me, it sounds like you decided to replace the whole

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trial team here.

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folks who could come in and pick up this case?

Can that be done?

Does your firm have the

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MR. VERHOEVEN:

This is Mr. Verhoeven.

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I mean it would be substantially prejudicial and

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create a huge expense to ramp up a whole other team, so I

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think we would be prejudiced.

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THE COURT:

Okay.

But it sounds like it could

be done.
MR. VERHOEVEN:

We're a large firm, Your Honor.

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I'm not going to say we don't have resources.

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wouldn't be true.

That just

But there would be significant prejudice.

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THE COURT:

I'm sure I will have some more

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questions for you, but let me give plaintiff a chance to

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weigh in.

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Go ahead.
MS. JACOBS:

Thank you, Your Honor.

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Karen Jacobs from Morris Nichols.

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This is

points.

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Let me respond on a few

As Your Honor already noted, this case has been

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pending since 2009 and we're only on the liability phase.

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And we had asked Your Honor, we had a request over a year

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ago to set a trial date and Your Honor had told the parties

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that you were unwilling to set a trial date at that time but

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that as soon as you had issued your summary judgment rulings

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that a trial date would be promptly set.

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So beyond having the notice of this year, I would

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say over a year ago, Your Honor gave notice to be ready.

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although, the joint status report, we had stated that we were

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willing to agree to May as a matter of compromise, we also

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made it very clear to Google that we were available in March

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and wanted to go forward in March.

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And

When we were given Google's trial calendar, and

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specifically counsel's trial calendar, we were very much

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concerned that we would be put in just such a position that

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counsel was very busy, and we have encountered that situation

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over and over again in this case, and that is at least one

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of the reasons why we're five years into the case.

Counsel

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is very busy, and we made it clear that if the Court were

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unavailable, then we wanted to press for a March date.

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What I haven't heard is counsel say that they

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have even requested of these other courts to make this date

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available.

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letter expresses a preference to go forward on March 18th,

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but to the extent that Google wants to go forward with this

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trial team, I don't see any evidence that they have made an

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effort to at least attempt to move things around.

Certainly, the order that was attached to their

My guess

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is if Your Honor kept this date, that they would do so and

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that these things have a way of working themselves out once,

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if Your Honor does in fact keep this date.

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As we say, we're five years into the case.

Our

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witnesses, our experts, our counsel, we all have conflicts as

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well but have made every effort to make ourselves available

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when Your Honor had time on the calendar.

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that those dates stay.

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THE COURT:

All right.

We would request

Ms. Jacobs, as you would

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expect, my calendar is always moving and changing so having

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looked at it today, I see some potential other dates, and I

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wanted to get your reflection on them and certainly if you

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need time to look at whether there are any conflicts I under-

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stand that.

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or not I could find that there was significant prejudice to

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your client if I were to move the date from March 10th.

But I'm looking first for your view as to whether

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First, we do now have available April 14th to

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25th and there was certain reference in your letter about

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the possibility of the Jewish holiday of Passover maybe

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interfering with availability on your side.

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concretely tell me whether that April 14th to 25th period

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would significantly prejudice your team?

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MS. JACOBS:

Yes, Your Honor.

Can you

Unfortunately, it

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really does.

Believe me, we want to go forward at the first

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available date that Your Honor has, but certainly certain

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trial team members do observe Passover, not for the entire

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period but for part of that time period.

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one of our witnesses who does celebrate the entire holiday,

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and our client representatives who very much want to be part

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of the trial are unavailable during the entire, the entirety

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of the ten days -- I'm sorry -- the eight day period.

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unfortunately, that really is a great prejudice and the

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clients and witnesses, of course need to be a part of the

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trial and are just simply unavailable.

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THE COURT:

All right.

We have at least

So,

I have had a June date

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open up, June 2nd to 14th.

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terms of either availability or prejudice to your client?

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MS. JACOBS:

Are you able to speak to that in

I'm just taking a look at that,

Your Honor.

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THE COURT:

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(Pause.)

Take your time.

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MS. JACOBS:

Your Honor, there is a Jewish

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holiday on June 4th and 5th which again would affect some

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of our clients.

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their presence on those two days, but that would certainly

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be our preference to stay with March 10th.

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If we had to go forward, we could without

THE COURT:

Let me throw out another possibility

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that I might be willing to consider.

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this case is bifurcated.

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bifurcated it way back early in the days of this case, near

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when it was filed.

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You referenced that

I believe it was Judge Farnan that

It wasn't even my case, I don't believe.

In any event, what about the possibility that

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we begin damages discovery immediately and have a trial on

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liability as well as damages some time later in 2014?

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would your client think of that?

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MS. JACOBS:

What

Your Honor, I would have to consult

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with the client on that.

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want to go forward with liability at this time.

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THE COURT:

All right.

Is there anything else,

Ms. Jacobs?

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MS. JACOBS:

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THE COURT:

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My suspicion is that we very much

That's all, Your Honor.
Let me hear further from Google,

whoever wishes to speak.

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MR. VERHOEVEN:

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I believe that those April dates would work at

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least for me personally.

Your Honor, this is Mr. Verhoeven.

David Perlson, I'll let you

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respond for the rest of the team; but just for your

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information, I think that would work for me.

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MR. PERLSON:

I think -- I'm sorry to interrupt

but we could make the April dates work, I think.

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MR. VERHOEVEN:

I don't know if we put this in

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our letter.

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but otherwise we're conflict free on the dates you said.

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We have one witness who has a conflict in June

MR. PERLSON:

Yes.

contracted to do studies in Milan that month.

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THE COURT:

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MR. VERHOEVEN:

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Our invalidity expert is

And you don't -Finally, Your Honor, this is

Mr. Verhoeven again.

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As to your third alternative, a very intriguing

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suggestion, but we, too, would have to check with our client

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on that.

The putting the damages together with liability.

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THE COURT:

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MR. FRIEDMAN:

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All right.
Your Honor, this is Marc Friedman

from Dentons.
What if we were to agree to try the whole kit

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and caboodle together?

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the time frame you are talking about?

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THE COURT:

Can you indicate more specifically

Yes.

And let me, in answering that,

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let me give you guidance as to what I want you to do.

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Because I am going to -- for now, I'm keeping my trial date

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but I am going to direct you to meet and confer and get back

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to me by the end of this week with a joint letter telling

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me of any further developments that there may be in light of

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the things that we've talked about today and the things I'm

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about to say.

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So for now, I'm not providing any relief.

My

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trial date is what it is.

But I'm still willing to ponder

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this motion to reschedule the trial; and, specifically, here

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is the availability I have.

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about further confer with your clients, confer with one

And I want you all to think

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another and get back to me with the joint submission at the

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end of this week.

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So we currently have trial set for March 10th,
let's say, through the 21st.
I'm available as of now; and I'll keep these

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spots available until I hear from you all on Friday;

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April 14th to 25th, June 2nd to 14th, July 7th to 18th,

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August 4th to August 17th.

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Then if we were to go forward with the damages

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discovery and make this into a not necessarily longer but

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certainly a trial that would involve more issues, I could

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do that from September 9th to 24th.

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Hashanah is not until after that date.

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that, but I believe that is correct.

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And I believe Rosh
I meant to look at

So to answer the specific question, if I were to
put this off and give you time to do the damages discovery,

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any motions related to that, I would be willing to put it

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off until September 9th if I was confident we were going to

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get more than just liability done at a trial at the end of

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the day.

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So that answers that question.

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to answer more questions.

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MR. FRIEDMAN:

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I'm happy to try

Go ahead.
Your Honor, this is Marc Friedman.

Rosh Hashanah begins the evening of September 24th.

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THE COURT:

Okay.

And so I think -- so if you

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started on the 9th, I think even a two week trial would be

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over before the 24th.

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there, I believe.

I think I added a few extra days in

But thank you for --

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MS. JACOBS:

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THE COURT:

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MS. JACOBS:

Your Honor.
Yes.

Go ahead, please.

I'm sorry.

Just in looking at the

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schedule, we may have a conflict with the early part of that

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time frame.

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Hashanah for the jury deliberation, it could go further in

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the week, just to see if there is ...

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I just wanted to explore whether with Rosh

THE COURT:

Yes, I'm not sure if that is a

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question to me.

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expectation would be that even with jury deliberations, if

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the case were to take two weeks -- let me pull my calendar

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out.

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Hold on.

I believe if we started September 9th, the

September 9th.

A VOICE:

Two weeks would be the 20th, Your Honor.

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THE COURT:

Two weeks would be the 20th.

Then

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there is a weekend there.

Then there is Monday is the 22nd,

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Tuesday is the 23rd, and I'm told I think that Rosh Hashanah

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is the night of the 24th, Wednesday night, if I heard that

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correctly.

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A VOICE:

That's correct.

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THE COURT:

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MR. NELSON:

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I think I speak for at least myself and Ms.

Okay.
Your Honor, this is Mr. Nelson.

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Bennett as well.

We have a trial beginning on September 8th

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of 2014 that will likely last two weeks.

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possibility of doing this combined is intriguing and I don't

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think we can decide this today, the September 9th date I think

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would be problematic at least for me and for Ms. Bennett.

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THE COURT:

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MS. JACOBS:

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Okay.

So I think while the

Understood.

Are there any openings on your

calendar in October, Your Honor?
THE COURT:

I don't believe so, but if you all

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come back to me and say everyone would be happy with a

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consolidated trial in October, I'll do my very best to move

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other things around to make that happen, but right now I

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couldn't commit to that.

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MR. NELSON:

Or perhaps August because it looked

like Your Honor had the 8/4 through 8/17 date open as well.
THE COURT:

True.

True.

That is a good point.

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Other questions?

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MR. HORWITZ:

Your Honor, this is Rich Horwitz.

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I just have a comment that perhaps counsel can

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talk about it as we prepare the joint submission for you

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towards the end of the week.

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I have to admit that I am certainly not a

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practicing Orthodox Jew but I know that some holidays, I and

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others attend synagogue, and other holidays are holidays

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where it's not as significant.

There may be celebrations

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at home.

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of realistic factors as we deal with the Jewish holidays

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obviously being sensitive to just how serious different

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people practice their religion.

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And I just want everybody to consider those kinds

THE COURT:

I think there is probably not much

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more we can say at this point.

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confer, but obviously I'm hoping that I don't have to, at

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the end of the day, make a decision between a choice of

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preferred counsel having to put a whole new litigation team

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together three and-a-half months before trial weighed

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against religious beliefs and a right to get to a trial when

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one has what had been found to be patent rights to assert.

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You all need to meet and

So it's a complicated situation.

I don't want

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to unduly prejudice anyone.

So I'm hoping, having said what

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I have said, maybe there is a solution that we can all agree

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on.

If there isn't, I'm going to have to make a decision

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weighing these various factors.

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Does anybody else want to say anything before we
go?

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MR. FRIEDMAN:

This is Marc Friedman.

One last

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comment so we can be fully informed when we speak among

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ourselves, Your Honor.

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Do I understand that if we, and, of course, Google

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agreed to try both parts of the case at the same time, that we

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may be able to do it August 4th through August 17th?

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THE COURT:

I have that time frame open right now.

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MR. FRIEDMAN:

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THE COURT:

Okay.

So I would expect if you all agree

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on that, that that is what we would do.

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are.

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Is there anybody else?

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Okay.

Let's see where you

Well, thank you very much.

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for your submission by Friday of this week.

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much.

We'll wait

Thank you very

Good-bye.

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(The attorneys respond, "Thank You, Your Honor.")

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(Telephone conference ends at 3:30 p.m.)

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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