Specht et al v. Google Inc et al

Filing 284

REPLY by Defendant Google Inc in support of motion to exclude due to plaintiffs' untimely document production and interrogatory responses (Attachments: # 1 Exhibit A)(Finn, Herbert)

Specht et al v. Google Inc et al

Doc. 284 Att. 1

EXHIBIT A

Dockets.Justia.com

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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 September 30, 2010 9:30 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS - MOTIONS BEFORE THE HONORABLE HARRY D. LEINENWEBER APPEARANCES: For the Plaintiffs: NOVACK & MACEY MR. JOHN F. SHONKWILER 100 North Riverside Plaza Chicago, Illinois 60606 312-419-6900

For the Defendant, Google, Inc.:

GREENBERG TRAURIG, LLP MR. HERBERT H. FINN 77 West Wacker Drive Chicago, Illinois 60601 312-456-8400

Court Reporter:

FEDERAL OFFICIAL COURT REPORTER MS. KRISTA FLYNN BURGESON 219 South Dearborn Street Chicago, Illinois 60604 312-435-5567

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THE CLERK: 09 C 2572, Specht versus Google. MR. FINN: Good morning, your Honor. Herbert Finn on behalf of Google. MR. SHONKWILER: Your Honor, good morning. John Shonkwiler on behalf of the plaintiffs. Your Honor, the subject of this motion that we received in the evening a couple nights ago is a late document production, the most recent one we made, that is virtually all production concerning Google and not Mr. Specht. There are certainly Internet printouts about Google's business, its use of the marks, its profits from the use of the marks, its partners' uses of the marks. There is some production about my client's ongoing business activities after the suit was filed. Those ongoing business activities are continuing to generate relevant materials today, and they will tomorrow, just like Google's ongoing activities will. We will need to have a supplemental discovery exchange at some point post-summary judgment and pre-trial if we get there. If there is anything in the most recent production that we intend to rely on for summary judgment that we end up actually relying on, that Google feels it did not see before, we have indicated, and we continue to be willing, to put up Mr. Specht for a deposition next week. If there isn't, this is moot. If there is, by all

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means, we will -THE COURT: When is your answer due? MR. SHONKWILER: I'm sorry? THE COURT: When is your answer due? Are the briefs in? MR. SHONKWILER: Tuesday. I would suggest that we enter and continue this for a couple weeks, we will file our summary judgment, and then if there is anything -THE COURT: Do you know whether or not you are relying on this information? MR. SHONKWILER: If there is anything, it will be very, very little, and what I expect it to be, if anything, your Honor, is electronic copies that were produced, native electronic files that were produced that were copies of hard copy materials that were produced long ago. It is not new information unless there is a dispute as to the authenticity of a document and if the electronic information shows that, in fact, a document was created when we say it was, and if it is relevant to the Court to an issue that the Court considers material for summary judgment, then the Court can take that under consideration, I suppose, with the motion, and Google will have ample opportunity to take whatever discovery it wants. And this will be a very small amount, if anything.

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Honestly, I can't say there will be anything. I can tell you there won't be anything, but if Sunday night when we are working on this we change our minds, I don't want to come in on Monday and say, Okay, there is this small piece. But it won't be anything material. MR. FINN: Your Honor, we have heard a lot of information just now, more than we have heard previously. We have asked for clarification as to the information that was produced to us long ago, as well as recently. What we are hearing now is that if they do rely on anything, it is electronic files of documents that were previously produced. Those electronic files were in their possession, at the time that they produced the paper, and should have been produced then, or at least should have been produced before Mr. Specht's deposition so we could have addressed them, or addressed whatever the issue is with third parties, because presumably, this would deal with use, so that Mr. Specht took the paper materials, handed them out, sent them out, mailed them, distributed them, displayed them, whatever he did with whatever the materials are to third parties to constitute use. We have been robbed of that opportunity. Plaintiffs came in shortly before Mr. Specht's deposition wanting to blow up the discovery schedule, seeking extensions, seeking to postpone Mr. Specht's deposition. This

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Court said no. By late production they are getting the de facto extension they want. MR. SHONKWILER: There are good reasons for everything we have done, your Honor. We don't want to delay this case. We want the summary judgment briefed, decided, and then get on with things. We are not surprising anyone with anything, and this may all be moot. Your Honor, we haven't decided if we will use anything, and if we do, as I said, it will be tiny, and the easy remedy is a short supplemental deposition, not the exclusion of what could be important information to your Honor. MR. FINN: Your Honor, this motion has been pending for almost 6 weeks. It is now 4 days before the response is due and they still can't tell you whether or not they are going to rely on this material information. MR. SHONKWILER: Let me say that we -THE COURT: Why don't I just exclude the information from your response and then we can argue about it later if you get by the summary judgment as to whether or not there would be a reason to open discovery? MR. FINN: Your Honor, just so we are clear, our motion is only seeking exclusion for purposes of summary judgment. We understand discovery may take place afterwards then.

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THE COURT: Yes, yes. MR. SHONKWILER: Your Honor, we cannot have this decided without an opportunity to read the cases they have cited, to do our own research, and to tell your Honor what really has happened here. THE COURT: You can -MR. SHONKWILER: We have not had that opportunity, your Honor. THE COURT: Here is what you can do: Write your brief without it, and then add a supplement. If you feel you have to use additional information, add a supplement, and then we can hassle that out and they can reply to why I shouldn't accept it. You can explain why in your supplement, why this information wasn't produced or wasn't -- for whatever reason, inadvertence, or whether you did in another form, or whatever. I don't care how you do it. But make that as a severable part of your brief. MR. SHONKWILER: Well, we would -THE COURT: And then Google can respond both to your motion and why it shouldn't be considered or why they are withdrawing their objection to it. MR. SHONKWILER: I think the easiest way for us to do this, and I think what you just explained, is to file something, file a document that -- we would file it before

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Google files their reply, or at least in time, in the same schedule, so that your Honor has full briefing of everything at the same time, and that would -- and the briefing would explain, A, why we should be allowed to use anything we have decided to use, and B, it would identify exactly which exhibits and which facts we -THE COURT: No, I am saying do that now. If you are going to use some of it -- I mean, it may be moot, then you don't have to do it, but if you are going to rely upon these late produced documents, make that a severable portion of your brief and explain in your brief why I should consider it, then they can respond to it, and then I will rule. Either I will accept it saying, Yes, you made a good point, that is acceptable and you should be able to use it, or I will say, You can't. MR. SHONKWILER: Your Honor, we don't disagree anything was late produced and we haven't had an opportunity to brief the motion saying it was late produced. I was trying to suggest an alternative that allows us to perhaps solve this before it ever becomes a moot issue over the next two weeks and, at worst, submit a brief to your Honor that identifies everything being used and explains why we ought to be able to be allowed to use it. THE COURT: That is essentially what I am saying, but just make sure it is highlighted, or whatever, so I know that

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this was material that was not produced prior, and explain why it wasn't produced so that they can respond, just so we can -I want you to highlight it so I don't have to go through it line by line and figure it out, this sentence includes this, and this one doesn't, blah, blah, blah. That is why I want it easily severable. MR. SHONKWILER: I think that is fine but -THE COURT: You can explain why you are using the material. And if you are not using any, then it becomes academic and moot. MR. SHONKWILER: I am happy to do that. I think that is fine. But we cannot submit that -- I am up to my ears preparing the biggest summary judgment project -- or as big as any summary judgment project I have ever been involved with. It is due next Tuesday and I will be up all night over both weekends with a team of 6 attorneys and 2 paralegals, and I will not be able to file another brief on top of it by Tuesday. If we could submit the supplemental filing that identifies every document and explains why we ought to be able to use it in 2 weeks or 3 weeks, or if we could have another 2 weeks to file everything, either way, I am fine with it. I think the solution is right, but I don't think I will be able to give it to you by Tuesday. I am certain I can't.

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earlier.

THE COURT: For more time, you will have to file a motion for that and ask. I think this is the best time to do it, and it eliminates the need to separately brief this motion, which would delay everything, and as everybody says, they want to get this thing resolved sooner rather than later. The brief has been on file for 6 weeks. You can file your brief and just -- if you are going to use this information, indicate where you are using it, and why it wasn't produced, or if it was -- if you contend it was produced, explain where it was produced so they can respond to it, and I can either -- when I am reading the brief, I can say, That is a good reason why they should be able to use it, and I will use that in determining whether or not to grant the summary judgment or not, or I can say, I don't think it is a good reason. MR. SHONKWILER: I think I understand what your Honor wants. What we file on Tuesday, we certainly will identify everything that is in there that is produced recently. THE COURT: And explain why it was not produced

MR. SHONKWILER: But your Honor, if we can have an extra week just to explain why, to submit the supplemental brief to explain why, that would be a big help to us. And then I am making an oral motion for us to do

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that. THE COURT: I will give you to the end of the week. How is that? It was due Tuesday and I will give you to Friday. How much time did you have for your reply? MR. FINN: The current briefing schedule should be sufficient. THE COURT: Thank you. So, I will give you to Friday. MR. SHONKWILER: Thank you, your Honor. MR. FINN: Thank you. (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

September 30, 2010 Date