Personalized User Model LLP v. Google Inc.

Filing 637

REDACTED VERSION of 611 MOTION in Limine TO PRECLUDE GOOGLE FROM REFERRING TO RECENT CHANGES IN THE ACCUSED TECHNOLOGY by Personalized User Model LLP. (Tigan, Jeremy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PERSONALIZED USER MODEL, L.L.P.,

)
)
Plaintiff,
)
v.
)
)
GOOGLE, INC.,
)
)
Defendant.
)
)
)
)
GOOGLE, INC.
)
)
Counterclaimant,
)
v.
)
PERSONALIZED USER MODEL, L.L.P. and )
)
YOCHAI KONIG,
)
Counterclaim-Defendants. )

C.A. No. 09-525 (LPS)

REDACTED -- PUBLIC VERSION

PUM’S MOTION IN LIMINE TO PRECLUDE GOOGLE FROM
REFERRING TO RECENT CHANGES IN THE ACCUSED TECHNOLOGY
OF COUNSEL:
Marc S. Friedman
Andrew M. Grodin
DENTONS US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]
Mark C. Nelson
Richard D. Salgado
DENTONS US LLP
2000 McKinney Avenue, Ste. 1900
Dallas, TX 75201
Jennifer D. Bennett
DENTONS US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[phone]
Original Filing Date: March 2, 2014
Redacted Filing Date; March 10, 2014

MORRIS, NICHOLS, ARSHT & TUNNELL LLP
Karen Jacobs (#2881)
Jeremy A. Tigan (#5239)
Regina Murphy (#5648)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Personalized User Model, L.L.P.
and Yochai Konig

PUM moves in limine to preclude Google from introducing newly-produced
documents, source code, and supplemental interrogatory responses relating to alleged
changes or possible future changes to the accused Search, Search Ads and
technology. This evidence should be excluded because (i) these productions were all
made in the last few weeks or days, despite that the alleged changes occurred months and
in some cases years ago, (ii) any planned changes for the future are entirely irrelevant,
unsubstantiated and speculative; and (iii) any relevance of long past or planned changes
is substantially outweighed by unfair prejudice.
ARGUMENT
A.

Google’s New Evidence Should Be Excluded As Untimely
This case is nearly five years old. Fact discovery closed two and one-half years

ago, on June 10, 2011, expert discovery closed in November 2012, and trial begins in a
week. PUM currently accuses Google Search, Search Ads, Content Ads, YouTube
Content Ads, and YouTube Video Recommendations1 of infringing the patents-in-suit.
Less than six weeks before trial Google began to dump on PUM a series of documents
and supplemental discovery responses maintaining that it either ceased using the accused
technology or that it plans to stop using it sometime in the future. For example (emphasis
added):


On January 16, 2014, Google produced documents related to



On February 14, 2014, Google produced documents related to

PUM dropped Google News and Google+ for the accused products in the last two
weeks in effort to narrow the case for trial



On February 24, 2014, Google served supplemental discovery responses,
stating in part,



On February 25, 2014, on the eve of the pretrial conference, Google produced
source code likely relating to

There is a time in every case for the record to come to a close. This is particularly
so in this five year old case, where technology is constantly evolving. Here, trial is a
week away and the changes Google seeks to document either occurred years ago or—in
many instances—are nothing more than unsubstantiated future “plans.” Further, as
described below, Google refused discovery on Google Search during discovery, only to
spring its hand-picked information on PUM on the eve of trial. Google's steady stream of
last-minute productions clearly violates the Court's Scheduling Orders, and Google's duty
to seasonably update its discovery responses as required by Fed. R. Civ. P. 26(e).2
B.

Any Evidence Of Changes To The Accused Technology Is Unsubstantiated
and Prejudicial And Will Confuse The Jury
This newly-produced “evidence” is irrelevant. But if it has any relevance at all, it

is outweighed by its unfairly prejudicial effect and should be excluded under F.R.E. 403.
Google seeks to introduce this evidence so that it can argue that the patented technology
is not important to its business (to blunt PUM’s evidence of secondary considerations ).
But these purported changes or future plans are irrelevant to the issues in this

2

As the Advisory Committee's Note to Rule 26(e) states, “[t]he duty will normally be
enforced, in those limited instances where it is imposed, through sanctions imposed by
the trial court, including exclusion of evidence, continuance, or other action, as the court
may deem appropriate”.

case. Damages have been bifurcated. PUM’s commercial success argument is based on
increased revenues relating to the date the technology was implemented in 2009 and
shortly thereafter, not the date of its alleged removal (and certainly not alleged plans to
remove it). Furthermore, any argument that Google’s alleged replacement systems do not
infringe is speculative at best. PUM has not had the opportunity to take any discovery on
what replaced (or will replace) the allegedly no-longer-used technology. Google, in fact,
refused to provide discovery in 2012 regarding the alleged changes to Search. 3 As a
result, this evidence should be excluded because the probative value is low and risk of the
unfair prejudice and jury confusion is very high. The prejudice to PUM is especially
acute because if the newly-produced evidence is permitted, the jury will be left with a
misleading impression that Google no longer practices the patents, when PUM has not
had the opportunity to discover any facts relating to the new functionality Google uses
and whether it continues to infringe. Without such pretrial discovery, PUM will not be
able to cure this prejudice by cross-examination. The risk of unfair prejudice, and that the
jury will be confused if not outright misled, outweighs any probative value and is a
compelling reason why the evidence should be excluded under Fed. R. Evid. 403.

3

Google announced changes to its privacy policy on March 1, 2012 (
). PUM pushed Google for
discovery for months regarding
. Exs. 1-4. On April 24, 2012, Google finally
agreed to some additional discovery provided that PUM also push back the deadline for
rebuttal expert reports given
. Ex. 5.
After Google produced only 83 pages, PUM pushed again for documents, including
. Exs. 6-7. In late July, Google responded,
Ex. 8. Google also asserted that
but only agreed to
produce documents if PUM agreed to further modify the case schedule. Id. PUM refused
to further extend the case schedule. Google never supplemented its production but instead
waited until this month to produce its hand-picked documents that purport to show that
the functionality is not used, but provide no evidence about the current products. Id.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Jeremy A. Tigan
Karen Jacobs (#2881)
Jeremy A. Tigan (#5239)
Regina Murphy (#5648)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Personalized User Model, L.L.P.
and Yochai Konig
OF COUNSEL:
Marc S. Friedman
Andrew Grodin
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]
Mark C. Nelson
Richard Salgado
SNR Denton US LLP
2000 McKinney Avenue, Ste. 1900
Dallas, TX 75201
[phone]
Jennifer D. Bennett
SNR Denton US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[phone]
March 2, 2014
8054294

CERTIFICATE OF SERVICE
I hereby certify that on March 2, 2014, I caused the foregoing to be electronically
filed with the Clerk of the Court using CM/ECF which will send electronic notification of
such filing to all registered participants.
Additionally, I hereby certify that true and correct copies of the foregoing were
caused to be served on March 2, 2014, upon the following individuals in the manner
indicated:
BY E-MAIL

BY E-MAIL

Richard L. Horwitz
David E. Moore
POTTER ANDERSON & CORROON LLP
1313 N. Market St., 6th Floor
Wilmington, DE 19801

Brian C. Cannon
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, CA 94065
Charles K. Verhoeven
David A. Perlson
Antonio R. Sistos
Andrea Pallios Roberts
Joshua Lee Sohn
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111

/s/ Jeremy A. Tigan
Jeremy A. Tigan (#5239)