Specht et al v. Google Inc et al

Filing 166

TRANSCRIPT OF PROCEEDINGS held on 12-17-09 before the Honorable Harry D. Leinenweber. Court Reporter Contact Information: KRISTA BURGESON, [e-mail], 312-435-5567. IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings. Redaction Request due 2/22/2010. Redacted Transcript Deadline set for 3/4/2010. Release of Transcript Restriction set for 5/3/2010. (Burgeson, Krista)

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APPEARANCES: vs.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

ERICH SPECHT, et al., Plaintiffs,

GOOGLE, INC., et al., Defendants.

) ) ) ) ) ) ) ) )

No. 09 C 2572 Chicago, Illinois December 17, 2009 9:30 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS - MOTION BEFORE THE HONORABLE HARRY D. LEINENWEBER

For the Plaintiff:

NOVACK & MACEY MR. JOHN F. SHONKWILER 100 North Riverside Plaza Chicago, Illinois 60606 312-419-6900

For the Defendant:

GREENBERG TRAURIG, LLP MR. HERBERT H. FINN 77 West Wacker Drive Chicago, Illinois 60601 312-456-8400 FEDERAL OFFICIAL COURT REPORTER MS. KRISTA FLYNN BURGESON 219 South Dearborn Street Chicago, Illinois 60604 312-435-5567

Court Reporter:

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THE CLERK: 09 C 2572, Specht versus Google. MR. SHONKWILER: Good morning, your Honor. John Shonkwiler for the plaintiff. MR. FINN: Good morning, your Honor. Herbert Finn on behalf of Google. MR. SHONKWILER: Your Honor, we have briefed a protective order motion that Google filed several weeks ago and I believe both parties, unless the Court has questions, would like to have answered. Specifically, both parties at this point are of the view that the matter is briefed. THE COURT: All right. So, you just need an order to -MR. FINN: Your Honor, I'm sorry to interrupt. Just for the record, though, I want to pose an objection to the cross motion as not being properly before the Court under Federal Rules 26 and 37. I understand that the Court may take it any ways, and we do consider everything briefed. THE COURT: I will rule on it. I have just been presented I think with your reply this morning though. We will rule in January. MR. FINN: I believe there is already a January 20th ruling date, your Honor. THE COURT: Oh, okay. THE CLERK: Okay.

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MR. SHONKWILER: And because we are here, there is one small matter I would like to bring up that may be just as important going forward as the substance of our protective order. Just so that we have an understanding going forward, our efforts to compromise discovery issues before discovery motions are filed, my understanding is that those ought to be kept out of the litigant's briefs in the event that briefs are filed, as they have been here. THE COURT: Say that again. MR. SHONKWILER: Google's briefs on this issue include various accounts of what plaintiffs did or said during the course of the parties' efforts to resolve and negotiate and compromise this issue, as the Rules require. My understanding has always been that just as the Federal Rules forbid you from using that sort of evidence in a trial or in a summary judgment brief, so to they forbid this sort of use of that information to impeach a party. The way it is used in the briefs is to paint plaintiffs as being disingenuous or inconsistent in the positions they are talking now. If I am wrong, and it is my understanding that that information cannot be used the way Google has used it here, I would like to know certainly before we engage in any future efforts to compromise and settle a dispute.

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right. though.

MR. FINN: Your Honor, I am not precisely sure what counsel is referring to, but to the extent he is referring to, you know, evidentiary Rule 408 that speaks to offers of settlement do not determine liability, that is clear. Whether a party in the throws of a Rule 37 discussion takes one position and changes it along the way, I think that is history of the case that the Court is entitled to know, and that is what I believe counsel is referring to in his motions. MR. SHONKWILER: That is exactly what I am referring to, your Honor. And of course, we wouldn't characterize it as charactering our position. What I did is what I do in every effort to settle something, and that is I compromise or at least try to -THE COURT: Well, we are not talking about liability

MR. SHONKWILER: That is right. We are not. That is

THE COURT: I am not sure that -- and I don't think I have had that argument presented before, that positions taken in briefs and so forth, that they are different than positions you take when you are trying to settle a case. So, I will bear that in mind, your concern, but I am not sure it is applicable.

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MR. SHONKWILER: Thank you, Judge. MR. FINN: Thank you, your Honor. (Proceedings concluded.)

CERTIFICATE

I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

/s/Krista Burgeson, CSR, RMR, CRR Federal Official Court Reporter

December 17, 2009 Date