Silvers v. Google, Inc.

Filing 91

NOTICE by Google, Inc. to take deposition of P.W.M/K Stelor Productions, LLC 7/12/06 at 9:00 (ck, Deputy Clerk)

Case 9:05-cv-80387-KLR

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORID A Case No . 05-80387-CIV ( Ryskamp/Vitunac ) STEVEN A. SILVERS, an individual , Plaintiff, V. GOOGLE INC ., a Delaware corporation , Defendant . GOOGLE INC ., a Delaware corporation , Counterclaimant ,
V.

STEVEN A . SILVERS, an individual ; STELOR PRODUCTIONS, INC ., a Delaware corporation ; STELOR PRODUCTIONS, LLC, a business entity of unknown form ; and STEVEN ESRIG, an individual, Counter-Defendants .

NOTICE OF TAKING VIDEOTAPED DEPOSITION TO : ALL ATTORNEYS LISTED ON THE ATTACHED SCHEDULE : PLEASE TAKE NOTICE that the undersigned atto rn eys will take the following videotaped deposition , pursuant to Fed . R. Civ . P . 30(b)(6), at Adorno & Yoss LLP, 2525 Ponce de Leon Blvd ., Suite 400, Miami , FL 33134-6012 :

;SNT/213526 .0001/N0614672_1) ADORNO & YOSS LLP 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Florida 33301 · Telephone [phone] · Facsimile [phone]

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Case No . 05-80387-CIV (RyskampNitunac) NAME DATE TIM E

P/W/M/K Stelor Productions , LLC' July 12, 2006 9 :00 a.m. upon oral examination before a court reporter, notary public, or any other officer authorized by law to take depositions . The oral examinations will continue from day to day until completed . The deposition is being taken for purpose of discovery, for use at trial, or for such other purposes as are permitted under the rules of Court . The video deposition will be taken by Downtown Reporting & Videography, Inc ., whose address is 337 East Las Olas Boulevard, Fort Lauderdale , Florida 33301 . Respl

By : J Douglas ATYas Fl da Bar No . : 226246 jat s(Ladorno .com Samantha Tesser Haimo Florida Bar No . 0148016 stesser(ciladorno .com ADORNO & YOSS LLP 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 3330 1 Phone : [phone] Fax : [phone] Andrew P. Bridges California Bar No . 122761 abridges Lci)winston .coni WINSTON & STRAWN LLP 101 California Street, Suite 3900 San Francisco, California 94111 Phone : [phone] Fax : [phone] Attorneys for Defendant/Counterclaimant Google, Inc .

Pursuant to Fed. R . Civ . P . 30(b)(6), Stelor Productions , LLC shall designate one or more officers, directors, or managing agents, or other persons with information regarding the subjects of testimony listed on the att ached Schedule "A" .
7 ~tt Las p g zul?Yard · Suite 1700 · Fort Lauderdale , Flori da 33301 - Telephone ( 954) 763-1200 · Facsimile [phone] (SNT!21 3 6 .000 67 1 /N06~~ ~ ADORNO & YOSS LL P

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Case No . 05 -80387-CIV ( Ryskamp/Vitunac) Google, Inc .

CERTIFICATE OF SERVIC E I HEREBY CERTIFY that a true and correct copy of the foregoing has been fu rn ished b y mail on the addressee ( s) listed on the attached schedule ; on this L ) day of July, 2006 .

cc : Downtown Reporting, Inc. Downtown Reporting & Videography, Inc .

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)SNT/213526 .000I1N0614672_1 } ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fort Lauderdale , Florida 33301 · Telephone [phone] · Facsimile [phone]

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Case No . 05-80387-CIV (RyskampNitunac )

SERVICE LIST Harley S . Tropin, Esq . hst@?kttlaw .com Kenneth R. Hartmann, Esq . krh cikttlaw .co m
Gail A . McQuilkin, Esq . gam~?kttlaw .com KOZYAK, TROPIN, THROCKMORTON, P .A. 2525 Ponce de Leon, 9th Floo r

Miami, FL 33134 Telephone : [phone] Facsimile : (305) 372-350 8 Adam T . Rabin, Esq. arabin(cudkrpa .com DIMOND , KAPLAN & ROTHSTEIN, P.A. 525 South Flagler Driv e Trump Plaza, Suite 200 West Palm Beach, FL 33401 Telephone : [phone] Facsimile : [phone] Kevin C . Kaplan, Esq. kkaplan a:bwskb .com BURLINGTON, WEIL, SCHWIEP , KAPLAN & BLONSKY, P.A. 2699 South Bayshore Drive Miami, FL 3313 3 Telephone : [phone] Facsimile : [phone]

Ramsey M . Al-Salam, Esq . Washington Bar . No . 18822 ralsalam (aD perkinscoie .com William C . Rava, Esq . Washington Bar No . 29948 wrava(-)perkinscoie .com a PERKINS COIE LLP 1201 Third Avenu e Suite 4800 Seattle , WA 98101-3099 Telephone : [phone] Facsimile : - (206) 359-733 8 Johanna Calabria, Esq . California Bar No . 226222 j calabria(aDperkinscoi e . com PERKINS COIE LL P 180 Townsend Street, 3rd Floor San Francisco, CA 94107 Telephone : [phone] Facsimile : (415) 344-705 0

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SNT/213526 .000l /N0614672 I I ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fort Lauderdale . Florida 33301 · Telephone ( 954) 763-1200 · Facsimile [phone]

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Case No . 05-80387-CIV (RyskampNitunac )

EXHIBIT A DEFINITIONS 1 . The terms "you" or "your" refer to counterdefendant Stelor Productions, LLC an d includes any persons or entities controlled by or acting on behalf of you, including without limitation Steven Esrig, Stelor Productions, Inc ., and all past and present licensees, agents, attorneys, predecessors, subsidiaries, parent companies, or affiliated companies and their agents, officers, directors, employees, representatives and attorneys . 2 . The term "Google" refers to Defendant and Counterclaimant Google Inc . as well as its officers, directors, employees, and authorized representatives . 3 . The term "crossclaim" refers to the crossclaim filed by Stelor Productions, LLC against Steven Silvers in this action on September 9, 2005 . 4 . The term "document" is defined to be synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34 and its interpretation by the courts, including originals, copies, drafts or other productions of any written, graphic or otherwise recorded matter, however produced or reproduced, whether inscribed by hand, by computer or by mechanical, electronic, or photographic means . 5 . The term "concerning" means relating to, referring to, describing, reflecting, evidencing or constituting . 6 . the terms "all" and "each" shall be construed to include all and each . 7 . The term "and" shall be construed to include "or" and vice versa and shall be the logical equivalent of "and/or . " 8 . The term "amended complaint" refers to the first amended complaint filed in thi s action . 9 . The use of the singular form of any word also includes the plural and vice versa . 10 . The term MARKS refers to the GOOGLES and GOOGLES AND DESIG N marks as well as any other marks incorporating the letter st ri ng "GOOGLES . " 5
!.SNT'2 i 3526 .0001/N0614672_ 1 } ADORNO & YOSS LLP 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Florida 33301 · Telephone [phone] · Facsimile [phone]

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Case No . 05-80387-CIV (Ryskamp /Vitunac )

SUBJECTS OF TESTIMON Y 1 . The License, Distribution, and Manufacturing Agreement dated June 1, 2002 between you and Steven A . Silvers, including circumstances and communications leading to that agreement . 2 . The Letter Agreement dated June 1, 2002 between you and Steven A . Silvers, including circumstances and communications leading to that agreement . 3 . Any other agreements between you and Steven A . Silvers or his representatives relating to the promotion and use of the MARKS . 4 . Your business dealings with Steven A . Silvers or Silvers Entertainment Group, Inc ., including but not limited to : a. Communications between you and Steven A . Silvers or Silvers Entertainment Group, Inc ., or anyone acting on his/its behalf concerning the MARKS . b . Communications between you and Steven A . Silvers or Silvers Entertainment Group, Inc ., or anyone acting on his/its behalf concerning Google or this lawsuit . c . Communications with any attorney for Steven A. Silvers or Silvers Entertainment Group, Inc . d . Payments by you to Steven A . Silvers, or Silvers Entertainment Group, Inc ., including but not limited to any royalties, advance on royalties, or consultancy fees . e . Certain facts alleged in your crossclaim : i . in paragraph 10 of the crossclaim that despite "efforts to preserve, expand and promote the GOOGLES IP, Silvers' venture made little impact in a marketplace crowded with children's materials from bigger and better financed providers . "

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{SNT/2I352o .000i/N0614672 1· } ADORNO & YOSS LLP 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Flo rida 33301 · Telephone [phone] · Facsimile ( 954) 766-7800

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Case No . 05 -80387-CIV (RyskampNitunac) ii . in paragraph 10 that "[a]n initial effo rt between Silvers and Aurora Collection, Inc . failed . "

iii . in paragraph 10 that "Silvers was in no position to move forward alone, as he had many personal and business hurdles to overcome," including Testimony reflecting or evidencing "a lack of capital, a lack of connections , a lack of experience , a lack of access to financing , and increasingly adverse relationship with Aurora, and negative aspects of Silvers ' background that made him unsuited to se rve as figurehead or spokesman for an enterp ri se aimed at providing wholesome and enriching entertainment to an audience of impressionable children . " iv . in paragraph 11 that " Stelor was formed to develop Silvers' concept into a reality. " v . in paragraph 13 that "Stelor has spent millions of dollars, and its p rincipals and employees have devoted themselves tirelessly to making Stelor and the `Googles ' successful and profitable, both for themselves and for the benefit of Silvers . " vi . in paragraph 14 that Silvers "held himself out as a Stelor representative at crucial industry trade shows . " vii . in paragraph 14 that Silvers "threatened to communicate directly with the trade and press conce rn ing the GOOGLES IP." viii . in paragraph 14 that Silvers "withheld information vital to Stelor's ability to carry out the business of transforming the basic Googles ideas into a thriving and profitable business an d denied it access to Googles domain names . "

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(SNT/213526 .0001/N06I4672_I } ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale , Flo rida 33301 · Telephone [phone] · Facsimile ( 954) 766-7800

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Case No . 05-80387-CIV (Ryskamp/Vitunac) ix . in paragraph 14 that Silvers "subverted Stelor's intellectua l

property rights by diverting communications from the USPTO from Stelor to himself." x . in paragraph 14 that Silvers "interfered with litigation undertaken by Stelor against third parties . " xi . in paragraph 19 that Silvers failed to cooperate in pending and future trademark and domain name dispute proceedings, failed to provide evidence of paid insurance premiums, and "schemed to undo Stelor's business activities and steal its work . " 5 . Your business dealings with Michael Silvers, including but not limited to : a. the MARKS b . the Googles Children's Workshop, Inc . c . any allegations contained in the amended complaint or crossclaims . 6 . Your business dealings with The Googles Children's Workshop, Inc ., including but not limited to : a. Communications between you and The Googles Children's Workshop, Inc . or anyone acting on its behalf concerning the MARKS . b . Communications between you and The Googles Children's Workshop, Inc ., or anyone acting on its behalf concerning Google or this lawsuit . c . Communications with any attorney for The Googles Children's Workshop, Inc . d . Payments by you to The Googles Children's Workshop, Inc . including but not limited to any royalties, advance on royalties, or consultancy fees . e . Your belief that, as of March 25, 2003 (or at any time between January 1 and March 25, 2003) The Googles Children's Workshop, Inc . was doing business .

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{SNTi2l3526 .000!/N0614672_I } ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Florida 33301 · Telephone ( 954) 763-1200 · Facsimile [phone]

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Case No . 05-80387-CIV (Ryskamp/Vitunac) f. Your belief that, as of March 25, 2003 (or at any time between January 1

and March 25, 2003) The Googles Children's Workshop, Inc . was the owner of Registration No . 2,087,590 dated August 12, 1997, as shown by the records in the United States Patent and Trademark Office . g . Your knowledge concerning the dissolution of The Googles Children's Workshop, Inc . 7 . Your business dealings with The Aurora Collection, Inc . including but not limited to : a . the MARKS ; b . The Asset Purchase Agreement between you and The Aurora Collection, Inc . c . Communications between you and The Aurora Collection, Inc ., or anyone acting on its behalf concerning the MARKS. d . Communications between you and The Aurora Collection, Inc ., or anyone acting on its behalf concerning Google or this lawsuit . e . Communications with any attorney for The Aurora Collection, Inc . f. Payments by you to The Aurora Collection, Inc . including but not limited to any asset purchase . g . any allegations contained in the amended complaint or crossclaims . 8 . Assignments or licenses of the MARKS or other agreements concerning the MARKS, including the decision to enter into the assignments, licenses, or agreements . 9 . Testimony concerning your company charters ; operating or management agreements ; by-laws ; investor agreements ; qualifications to do business ; incorporations or registrations ; annual reports or returns required by law ; other business filings required by law ; officers, board of directors, management committee, or executive committees ; and minutes relating to the conduct of your business .

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)SNT/213526 .000I/N0614672_1 } ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fort Lauderdale. Florida 33301 · Telephone ( 954) 763-1200 · Facsimile ( 954) 766-7800

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Case No . 05-80387-CIV (Ryskamp/Vitunac) 10 . Advertising, marketing, and promotion and use of the MARKS, including but not limited to :

a . the products and services associated with any such use ; b . the nature, manner, and extent of such promotion and use ; c . your commercialization of intellectual property related to the MARKS, including the manufacture, distribution, sale, or offer of sale of any service or product bearing or otherwise associated with the MARKS . 11 . Use of the MARKS by you or any other person or entity in connection with the conduct of business operations, including but not limited to Steven A . Silvers; Stelor Productions, Inc . ; Stelor Productions, LLC ; The Googles Children's Workshop, Inc . ; Silvers Entertainment Group, Inc . ; The Aurora Collection, Inc . ; and Goo Investments LLC . 12 . Your plans to develop or enforce rights in the MARKS, including business plans concerning the MARKS or products or services bearing or otherwise associated with the MARKS, including but not limited to the business plans of Steven A . Silvers ; Silvers Entertainment Group, Inc . ; Stelor Productions, Inc . ; Stelor Productions, LLC ; The Googles Children's Workshop, Inc . ; The Aurora Collection, Inc . ; and Goo Investments LLC . 13 . Any domain name registrations you filed or your efforts to secure domain names incorporating the letter string GOOGLE or GOO . 14 . The conceptualization, design, creation, launch, publication, plans or modification of Web sites designed by or for you, established by or for you, or designed or established by or for Steven A . Silvers, The Googles Children's Workshop, or Silvers Entertainment Group, Inc ., used in connection with the MARKS, including but not limited to : a . stelor.co m b . stelorproductions .com c . googles .com d . a Googles Web site

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{SNT!213526 .000!/N0614672_ 1 I ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Flori da 33301 · Telephone ( 954) 763-1200 · Facsimile [phone]

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Case No . 05-80387-CN (Ryskamp/Vitunac )

e . a Gootopia Web site 15 . Revenues, costs, and profits related to use and license of the MARKS by product or service, including by SKU (stock keeping unit) . 16 . Projection of sales, revenue, or profits for any products or services bearing or otherwise associated with the MARKS . 17 . Actual or potential investors in Stelor Productions, Inc . ; Stelor Productions, LLC ; The Googles Children's Workshop, Inc . ; The Aurora Collection, Inc . ; Goo Investments LLC ; or other businesses that have developed, marketed or delivered products or services that bear or are otherwise associated with the MARKS . 18 . Actual or potential investment in, the MARKS, products or services that bear or are otherwise associated with the MARKS, or businesses associated with the MARKS, including but not limited to business plans, valuation of intellectual property assets, valuation of potential litigation, or valuation of potential settlement of litigation . 19 . Testimony concerning financial transactions between you and any party claiming an interest in the MARKS or any party to domain name disputes, trademark opposition or cancellation proceedings, or litigation to which Google Inc . is or has been a party . 20 . Testimony concerning Google Inc ., communications with Google, Inc . and the rights you claim in this dispute . 21 . Communications to persons or entities other than Google in which you have made allegations (against any person or entity) of trademark infringement of the MARKS . 22 . Testimony concerning litigation between you and Steven A . Silvers, Silvers Entertainment Group, Inc . or The Googles Children's Workshop, Inc ., including but not limited to pending or threatened litigation . 23 . Testimony concerning the business experience, business background, reputation, and criminal background (if any) of Steven A . Silvers, Steven Esrig, or of other officers o r

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SNT, 213526 .0001 /NO614672_ l 1 ADORNO & YOSS LLP 350 East Las Olas Boulevard · Suite 1700 · Fort Lauderdale , Florida 33301 · Telephone ( 954) 763-1200 · Facsimile [phone]

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Case No . 05-80387-CIV (Ryskamp/Vitunac) management personnel of The Googles Children's Workshop, Inc . ; Silvers Entertainment Group, Inc . ; Stelor Productions, Inc . ; Stelor Productions, LLC ; or The Aurora Collection .

24 . Trademark research, investigations, and searches relating to the MARKS . 25 . Your knowledge concerning applications to register the MARKS with the United States Patent and Trademark Office, whether filed by you or someone else or sent on your behalf or someone else's behalf, including : a . any registrations issued as a result thereof , b . any efforts to secure or maintain registrations or to secure "incontestable" status . 26 . Your knowledge, information, belief, inquiries, and investigations concerning the facts alleged in declarations filed with the United States Patent and Trademark Office regarding Registration No . 2,087,590 dated August 12, 1997 and its underlying application, including : a . Testimony concerning your belief that, as of March 25, 2003 (or at any time between January 1 and March 25, 2003) the mark described in Registration No . 2,087,590 dated August 12, 1997 in the United States Patent and Trademark Office was still in use by The Googles Children's Workshop or by a licensee of The Googles Children's Workshop on or in connection with the goods identified in the Certificate of Registration . b . Testimony concerning your belief that, as of March 25, 2003 (or at any time between January 1 and March 25, 2003) the mark described in Registration No . 2,087,590 dated August 12, 1997 in the United States Patent and Trademark Office had been in continuous use for more than five (5) years from June 1996, subsequent to the date of the registration, through to March 25, 2003, on or in connection with the goods identified in the Certificate of Registration .

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SNT/213526 .000 L NO614672_1 1 ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Flo rida 33301 · Telephone [phone] · Facsimile [phone]

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Case No . 05-80387-CIV (Ryskamp/Vitunac) 27 . Your knowledge, information, belief, inquiries, and investigations concerning th e

facts alleged in declarations filed with the United States Patent and Trademark Office regarding Application Serial No . 76/591,386 dated May 7, 2004 . a . Your knowledge, information, belief, inquiries, and investigations regarding the facts alleged in the declaration executed by Ira C . Edell filed with the United States Patent and Trademark Office regarding Application Serial No. 76/591,386 . b . Your knowledge of Steven A . Silvers' or your intent (or your knowledge of any person, company or licensee's intent) to use the mark GOOGLES EDUTAINMENT at the time the declaration executed by Ira C . Edell regarding Application Serial No . 76/591,386 was filed with the United States Patent and Trademark Office . c . The appointment of Ira C . Edell or other attorneys with the firm of Edell, Shapiro & Finnan, LLC, as the attorneys to file a declaration and to transact all business in connection with Registration No . 2,087,590 and Application Serial No . 76/591,386 in the United States Patent and Trademark Office . 28 . Your knowledge, information, belief, inquiries, and investigations concerning the facts alleged in declarations filed with the United States Patent and Trademark Office regarding Application Serial No . 78/420,234 dated May 17, 2004, including : a. Your knowledge, information, belief, inquiries, and investigations regarding the facts alleged in the declaration executed by Laurence Hefter filed with the United States Patent and Trademark Office regarding Application Serial No . 78/420,234 . b . Your knowledge of Steven A . Silvers' or your intent (or your knowledge of any person, company or licensee's intent) to use the mark GOOGLES a t

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SNT/213526 .0001!N0614672_l ) ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fort Lauderdale, Florida 33301 · Telephone [phone] · Facsimile ( 954) 766-7800

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Case No . 05-80387-CN (RyskampNitunac) the time the declaration executed by Laurence Hefter regarding Application Serial No . 78/420,234 filed with the United States Patent and Trademark Office .

c . The appointment of Laurence Hefter or other attorneys with the firm of Finnegan, Henderson, Farabow, Garrett & Dunner, L .L .P . as the attorneys to file a declaration and to transact all business in connection with Application Serial No . 78/420,234 .

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SNT/213526 .0001 fN0614672_ I I ADORNO & YOSS LL P 350 East Las Olas Boulevard · Suite 1700 · Fo rt Lauderdale, Flo ri da 33301 · Telephone ( 954) 763-1200 · Facsimile ( 954) 766-7800