Personalized User Model LLP v. Google Inc.

Filing 636

Letter to The Honorable Leonard P. Stark from Richard L. Horwitz regarding PUMs deposition designations. (Horwitz, Richard)

1313 North Market Street
P.O. Box 951
Wilmington, DE 19899-0951
302 984 6000
www.potteranderson.com
Richard L. Horwitz
Partner
Attorney at Law
[e-mail]
302 984-6027 Direct Phone
302 658-1192 Fax

March 9, 2014
VIA ELECTRONIC MAIL
The Honorable Leonard P. Stark
United States District Court
District of Delaware
844 North King Street
Wilmington, DE 19801
Re:

Personalized User Model LLP v. Google Inc., C.A. No. 09-525-LPS

Dear Judge Stark:
Google respectfully files this letter in response to PUM's March 8, 2014 disclosure of
deposition testimony to be played at trial. Google sought to include the below explanation of its
positions in the parties’ joint letter to the Court, but PUM refused this request. Accordingly,
Google is setting forth its additional grounds for objecting to PUM’s disclosures below.
In addition to those objections set forth in the chart filed with the Court as an attachment
to the parties’ joint letter to Court, Google objects to the entirety of PUM’s deposition
designations for March 11 because they are drastically different from what PUM disclosed when
it made its pretrial disclosures. Specifically, at the 3 p.m. March 8 deadline for PUM to identify
deposition designations for use during trial on Tuesday, March 11, PUM served on Google
designated deposition testimony from 10 separate witnesses. PUM had originally designated
approximately 950 minutes of testimony from these witnesses, but its March 8 designations
totaled only 92 minutes. This means that the testimony designated is drastically different than
the testimony Google previously reviewed for objections and counter-designations. This lastminute reduction effectively requires Google to re-review the entirety of all 10 deposition
transcripts to identify counter-designations. It may be that Google did not previously counterdesignate certain testimony because PUM had already designated that testimony. Now that PUM
has withdrawn those designations, Google needs to re-review the testimony to determine if any
of PUM’s previous designations should be counter-designated for completeness.
Google has made a good faith effort to respond to the new, reduced designations, pulling
attorneys away from other pre-trial responsibilities two days before trial to try to address the
designations in the time allotted. But, these are not just one or even a few depositions that PUM
has changed. It is 10. Google could not conceivably complete in such a limited timeframe the
full review of the 10 depositions necessary to ensure that PUM did not remove any key
testimony from its final trial designations. Accordingly, Google reserved the right to identify
additional counter designations to cure the resulting prejudice and ensure that its counterdesignations are complete in light of PUM’s recent and drastic changes. But, this does not cure
the prejudice to Google. Given the amount of work necessary to analyze PUM’s changes to its
designations, Google may not be able to complete that work by Tuesday, March 11, the day

The Honorable Leonard P. Stark
August 30, 2012
Page 2
PUM plans to play the testimony, and certainly will not be able to do so without diverting
Google’s attorneys from other pretrial work. Google’s trial preparations should not be
interrupted simply because PUM finally tried to narrow its case on the eve of trial.1
There is no reason why this drastic change could not have been done earlier. Google has
been asking PUM to reduce its deposition designations (which amounted to about 34 hours in the
Pre-Trial Order) for weeks. And since PUM presents its case first at trial, it has always been in
a position to reduce these designations, as they would not be dependant on anything other than
how PUM chose to present its own case. PUM’s explanation for its drastic change in its
deposition designations was that it “lost five hours of trial time,” presumably referring to the
Court limiting each party to 17 hours of trial time, rather than 22 hours. This does not justify
PUM’s last-minute changes. First, the Court never told the parties that they would have 22 hours
per side; the Court said that it would give the parties no more than 22 hours. Second, the Court
limited the parties to 17 hours per side on February 27, nine days before PUM’s trial deposition
designations were served. Nothing prevented PUM from reducing at least some of its deposition
designations earlier. Indeed, PUM waited until three minutes before its deadline on March 8 to
reduce its designations. Finally, PUM reduced its designations from these ten witnesses by about
14 hours—not the 5 hours of trial time PUM “lost.” Google is working with PUM to, if possible,
find a solution to the problem caused by PUM’s changed deposition designations.
A second issue that has arisen is whether deposition testimony from the same witness can
be played in different phases of the trial. PUM indicates it may present deposition testimony of
the same witnesses in Phase 3 of the trial, even though paragraph 22 of the Pretrial Order
indicates that deposition testimony will all be played together. Google did not understand the
Court’s subsequent order stating that there would be four phases of the trial to change this.
Google does not object to PUM’s plan for playing depositions, but only if it is acceptable to the
Court and mutual—meaning that Google may play deposition testimony from the same witness
in multiple phases of the case as well. Google further requests that if it is necessary to counterdesignate testimony in Phase 3, which was already played in Phase 1, for completeness, that
Google be permitted to do that, and that Google not get charged for that time.
Respectfully,
/s/ Richard L. Horwitz
Richard L. Horwitz
Enclosures
cc:
Clerk of the Court (via electronic mail)
Counsel of Record (via electronic mail)
1

During the parties’ meet and confer process PUM stated that Google should have no
basis to object to PUM’s drastic reductions because the agreed the time between disclosure of
deposition designations and counters and objections is 30 minutes longer than Google had
originally proposed. This additional 30 minutes, however, obviously does not provide the time
needed to remedy these drastic changes to PUM’s designations.
01980.51575/5806144.2