Specht et al v. Google Inc et al

Filing 337

MOTION by Defendant Google Inc for protective order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Finn, Herbert)

EXHIBIT D

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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SPECHT, et.al.,

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Plaintiffs,

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v.

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GOOGLE, INC., et.al.,

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Defendants.

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Docket No. 09 C 2572
Chicago, Illinois
April 28, 2011
9:00 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE HARRY D. LEINENWEBER

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APPEARANCES:

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For Plaintiff:
The Android's Dungeon

MR. MARTIN J. MURPHY
2811 RFD
Long Grove, IL 60047

For Defendant Google:

GREENBERG TRAURIG LLP by
MR. HERBERT H. FINN
MR. JEFFREY DUNNING
77 West Wacker Drive
Chicago, IL 60601

For Novack & Macey, LLP:

NOVACK & MACEY LLP by
MR. ERIC MACEY
100 North Riverside Plaza
Suite 1500
Chicago, IL 60606

Court Reporter:

GAYLE A. MCGUIGAN, CSR, RMR, CRR
Official Court Reporter
219 South Dearborn Street
Room 1944
Chicago, Illinois 60604
[phone]

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(Proceedings had in open court:)

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THE CLERK:

09 C 2572, Specht v. Google.

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MR. MACEY:

Good morning, your Honor.

Eric Macey with

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Novack & Macey on behalf of the firm and my partner, Andrew

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Fleming.

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MR. FINN:

Herbert Finn and

Jeffrey Dunning on behalf of Google.

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Good morning, your Honor.

MR. MURPHY:

Good morning, your Honor.

Martin Murphy

on behalf of myself and plaintiff.

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THE COURT:

Okay.

There's Google's motion for

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attorneys' fees and sanctions, plaintiffs' motion to strike the

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motion for attorneys' fees and strike the motion for sanctions.

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Is that a response or do you wish -- I don't know how
we want to do this.

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MR. FINN:

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I want to work on it once -As do we, your Honor --

THE COURT:

-- so I need all the information, so if you

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want to file something in lieu of the fact if I don't strike

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it --

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MR. MURPHY:

Your Honor, first of all, the first

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problem, of course, is that they've joined two completely

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different motions together into one, so it's kind of confusing

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to answer each motion.

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Second one is there's an issue with respect to the

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attorneys' fees on the Lanham Act as to whether or not that

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motion is timely in light --

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THE COURT:

I understand that's your motion to strike.

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MR. MURPHY:

Right, but then -- if the Court -- if you

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don't strike it, then I have to respond to the Nightingale

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exceptional, so are you going to want me to respond to that part

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of the --

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THE COURT:

Yeah, because I intend to devote one period

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of time in resolving all of the issues on post-trial costs and

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fees, so I may grant your motion, I haven't -- so I don't know.

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But if I don't, you may want to have a response.

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MR. MURPHY:

I understand, your Honor.

I mean, I can

certainly prepare a response on the Nightingale and explain --

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THE COURT:

Yeah --

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MR. MURPHY:

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THE COURT:

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respond to their objections.

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MR. FINN:

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MR. MACEY:

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The first is it is a combined motion --

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THE COURT:

Right.

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MR. MACEY:

-- and under 15 U.S.C. 1157(a), I need to

-- why it's not an exceptional case --- that's what I want.

And if you want to

Yes, your Honor.
I have several questions.

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understand from Google if they're seeking attorneys' fees only

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against the plaintiff and not our firm.

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MR. FINN:

No, I think the motion was pretty clear.

It's -- it's against both the plaintiffs and the attorneys.
MR. MACEY:

So there's a question as to whether you can

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get --

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THE COURT:

Sanctions -- I can see that under an

exceptional case, you're entitled to attorneys' fees --

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MR. MACEY:

Against the party.

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THE COURT:

-- as the winner.

That's a separate issue

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from whether or not we should sanction the client and the

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attorneys.

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MR. FINN:

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THE COURT:

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That is -Because the damages may be the same or

the --

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MR. FINN:

That's correct, Your Honor, not only are the

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damages the same, basically what the foundation for why it's an

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exceptional case and why the sanctions are appropriate are

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pretty much identical.

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MR. MACEY:

I don't -- I don't know that I agree with

that.

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My question is am I responding just to the 1927 or also

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to the 1115(a), which is only -- the statute says it's only

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against the party, not against the attorney.

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is for the -- related to attorneys, but I don't know if I

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need --

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THE COURT:

I understand 1927

I would not think that the attorneys are

responsible for the Lanham Act attorneys' fees.
MR. FINN:
that's correct.

That is correct, Your Honor.

I believe

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THE COURT:

So the answer is you don't have to do that.

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MR. MACEY:

Thank you.

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The second question is I didn't raise the issue because

That's my first question.

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I don't have a dog -- I don't have a horse in the race on the

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1115, but one of his arguments is that -- is whether this is to

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be handled as a -- no, no, since I'm only 1927, it doesn't

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matter.

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Thank you.
MR. MURPHY:

several.

The other issue is that it's not joint and

It's direct liability under 1927 --

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THE COURT:

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MR. MURPHY:

Right.
-- so they've grouped us all together.

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They haven't alleged specific misconduct by any particular

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attorney and the excess costs attributed to that misconduct.

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They've just said, Well, we spent a million dollars and,

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therefore, we want a million dollars and we want it against

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everybody.

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had conducted -- had behaved himself improperly.

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Andrew Fleming because clearly one of the cases they cite, the

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Citicorp case, says it's not -- it's not nefarious, it's

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strictly direct liability.

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Novack & Macey wouldn't be liable if Andrew Fleming
It would be

It's liability for your action.

Now, am I liable -- are they alleging that I'm liable

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for pleadings I didn't sign?

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know, wasn't my conduct?

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Am I liable for conduct that, you

So the motion is really -- as I say, your Honor, it's
extremely confusing and it makes it difficult to respond.

And I

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think the proper thing is to have them separate the motions.

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First of all, the motion under 1115(a), what are you claiming

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against the plaintiff and how is it an exceptional case over

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there.

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each attorney specifying the conduct of that attorney.

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Otherwise, I'm answering for them, they're answering for me,

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we're answering for the plaintiffs.

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answers, I may not like theirs.

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well, your Honor --

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THE COURT:

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And the second one is, is file separate 1927s against

And they may not like my

And then we're going to say,

Well, I think that probably the way to

handle that is this:

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If they win on the Lanham Act, then they get their

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attorneys' fees or at least reasonable attorneys' fees and

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costs.

If they win on the --

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MR. MACEY:

1927?

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THE COURT:

-- 1927, it would seem to me that the Court

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would then have to determine what damages are appropriate for

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that.

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attorneys' fees, but usually it's the amount -- if it's for

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unduly prolonging litigation, the attorneys' fees or costs

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associated with that particular activity.

It would not necessarily mean the entire amount of

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MR. MACEY:

Correct.

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THE COURT:

So probably the easiest thing to do would

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be for the Court to determine whether or not there is any

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individual responsibility, and I would take up the damages --

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the amounts assessed to the attorneys separately.

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MR. MACEY:

Okay.

Because we don't have, it wasn't

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filed with the motion, was any indication of their fees.

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have an estimate, but there's no documentation supporting that

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at this point in time.

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you decide that sanctions should be awarded --

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THE COURT:

We

So I assume you're saying if and only if

If I award sanctions, then I will entertain

suggestions as to the appropriate sanctions.

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MR. MACEY:

Thank you.

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MR. MURPHY:

Thank you.

One other part of my motion, your Honor,

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was that I requested a hearing.

Obviously we're entitled to a

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hearing.

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the attorneys, we're entitled to a hearing.

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certainly, based on the allegations, want certain witnesses to

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attend that hearing, witnesses that they claimed were -- had no

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participation, that we've alleged had participation, so there

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may be another issue as to whether or not we're going to need to

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have a hearing and if so --

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THE COURT:

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MR. MURPHY:

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MR. FINN:

If the Court is considering awarding sanctions against

Put that in.

Then I would

Put that in your papers --

That's in my motion now.

Your Honor, so the record is clear, we don't

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agree that any hearing is necessary nor do we agree that calling

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the exact witnesses that this Court found were unnecessary to a

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hearing on why it would be vexatious to have them at deposition

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and hearings to begin with is appropriate.

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That said, we have some other difficulties with
plaintiffs' and Mr. Murphy's motion --

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THE COURT:
it there.

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You're entitled to respond to it, so raise

MR. FINN:

Well, thank you.

We certainly will, but I

have --

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THE COURT:

And I can determine whether or not, you

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know, if I felt the hearing is necessary, I would certainly call

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for one.

You say you're entitled to one.

If you are, you would get one.

You may or may not

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be.

If not, you may or may not

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get one, depending on whether I think it's necessary or not.

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MR. FINN:

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There are two other, before we get to time periods,

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there are two other issues I wanted to raise with respect to

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Mr. Murphy's motion regarding motion to strike the motion for

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sanctions, and that appears to be violations of not only the

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protective order but the Federal Rules as far as disclosure of

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privileged information that was represented to us as being

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destroyed.

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Understood, your Honor.

There's a couple of instances at least, your Honor,

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which information marked under the protective order as

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confidential or highly confidential appear without any type of

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redaction or sealing in the pleading, as well as on page 9,

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Mr. Murphy -- 9 and other places, Mr. Murphy refers to the fact

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that at some point we inadvertently provided an unredacted copy

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of work product and attorney-client privilege information,

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within which four hours we asked for return and provided a

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redacted copy, yet we're finding reference to it and summaries

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of it in this pleading, despite receiving an e-mail, at least

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from Novack & Macey, that unredacted copies had been destroyed.

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I've got two big concerns with that.

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MR. MURPHY:

Your Honor, what he's referring to is,

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first of all, is an invoice that Greenberg & Traurig sent us.

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Your Honor previously ordered that the plaintiff pay for

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attorneys' fees and costs for my deposition, the second

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deposition.

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I seriously doubt that an invoice is considered attorney-client

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work product or attorney-client privilege when it's sent off to

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a billing department.

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to somebody in Accounts Payable, so I don't think it's even

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privileged to begin with, first of all.

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And Mr. Finn sent us Greenberg & Traurig's invoice.

It's not going to attorneys, it's going

Second of all, I think the Appellate Court made it

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pretty clear that if it's going to be a trial document, it's not

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going to be -- if it's going to be introduced at trial, it's not

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going to be protected under attorney-client privilege because

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it's going to be an exhibit.

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put it up, so I think on the prior ruling on the writ of

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mandamus, the Appellate Court made it crystal clear if this is

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going to be used in evidence, then in that case it's not

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protected by any -- any protection or, you know, any privilege.

And an exhibit you have a right to

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It's, you know, it's -- basically it's a trial exhibit.
And the invoices -- the reason Mr. Finn doesn't want

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the invoices in is that those invoices evidence a lot of

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misconduct by his firm in direct contradiction to things that

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this Court had ordered him to do.

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their invoices --

And if he could supply all

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THE COURT:

Wait, wait, we're getting --

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MR. MURPHY:

It's getting complicated --

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MR. FINN:

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Your Honor, it's a simple issue.

Mr. Murphy referred to it himself as an
inadvertently-produced invoice.
MR. MACEY:

I think we can moot the cat fight and just

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have them include it in their motion -- in their papers because

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it's not --

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MR. FINN:

Your Honor, I've got an e-mail from -- that

shows the history of what exactly transpired.
We're talking a four-hour period, through e-mails,

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where a copy of an invoice that was supposed to be redacted so

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that they could pay their sanctions was provided, returned, and

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a new one was provided --

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THE COURT:

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MR. FINN:

What do you suggest?
I just want confirmation that it will be

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destroyed and that it won't be used in an unredacted form.

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That's all I'm looking for.

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he's entitled to use it in an unredacted form, then he needs to

And, frankly, if Mr. Murphy thinks

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follow the Federal Rules of Civil Procedure, which asks for an

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in camera hearing on the matter, but he hasn't done that.

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fact, I didn't even realize he still had it in his possession

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because I thought, as it was represented to us, copies were

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destroyed.

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THE COURT:

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MR. FINN:

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I'm sorry, Your Honor.

It's just a very

It may be sensitive.

I'm not -- I don't

THE COURT:

know what you're talking about.

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I'm -- okay.

sensitive area.

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In

MR. MURPHY:

I guess that's my --

I think perhaps an in camera -- I think an

in camera would probably be proper, your Honor --

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THE COURT:

I don't want to look at anything in camera.

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MR. FINN:

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THE COURT:

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MR. MURPHY:

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to remove an e-mail.

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printed a copy.

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throw out the copy.

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clear what they were -- it was evidence of misconduct --

Your Honor --

THE COURT:

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MR. MURPHY:

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THE COURT:

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I didn't promise to destroy it.
I removed the e-mail.

I agreed

I had already

I didn't throw out the copy.

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If you promised to destroy something --

I wouldn't throw it out.

I didn't agree to
I mean, it was

If you agreed not to use it, then -I didn't agree not to use it.
I don't know what -- what did you agree to

then?
MR. MURPHY:

I agreed to destroy the e-mail.

I deleted

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the e-mail.

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delete the e-mail.

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They asked me did I delete the e-mail?

THE COURT:

I agreed to

Now you -- now I'm totally confused, which

is not all that unusual -MR. MURPHY:

What the invoice shows is that Mr. Finn

was in contact with Mr. White's attorneys long before -MR. FINN:

Your Honor, I don't mean to confuse you.

We

will bring a motion to correct this situation.
THE COURT:

All right.

Do that.

That's the easiest

thing to do.
And then how much -- okay, responses -- okay, you want

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to supplement your response.

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MR. MURPHY:

Right, I'll add the Nightingale.

I may

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also be wanting to file a 1927 on behalf of the plaintiffs

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versus Google.

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THE COURT:

Well, whatever you have -- we have

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presently pending --

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MR. MURPHY:

Our response --

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THE COURT:

-- cross motions.

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You want to respond to

their motion, so how much time do you need for that?

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MR. MURPHY:

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THE COURT:

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Mr. Macey, is that --

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MR. MACEY:

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the 1927 --

14 days, your Honor.
14 days.

I'd actually like three weeks to respond to

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THE COURT:

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And Mr. Finn responds to -- why don't you file one

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I'll give you 21 days.

Both sides 21 days.

response to both the responses --

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MR. FINN:

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THE COURT:

We would like to, to the extent

we can, your Honor.

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Certainly.

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responses.

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All right.

Respond to both their

which is --

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I'll give you two weeks after Mr. Macey's response,

MR. MACEY:

If he wants -- if he wants extra pages

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because he's responding to both, I have no problem with that;

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and, likewise, he asked to file a brief right now in excess of

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the page limit, I have no objection to that either whatsoever.

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Just for that -- because it's pending today.

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THE COURT:

Okay.

So there's

five weeks, and I'll rule by mail.

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That motion is granted.

THE CLERK:

May 19th for the responses and June 2nd for

the reply.

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MR. MACEY:

Thank you.

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THE COURT:

I'll rule on the whole --

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MR. MACEY:

Kit and caboodle.

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THE COURT:

-- by mail, and if you file this other

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Right.

motion, I'll probably --

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MR. FINN:

Your Honor, just so the record is clear, our

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reply is for a response to the pending motions to strike as

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well?

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THE COURT:

Yes, that's what I mean.

You have a joint

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response both to his motion to strike and to his motion

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presumably objecting to the quantity of the fees and whether any

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fees at all are due.

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MR. FINN:

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THE COURT:

Okay?

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MR. MACEY:

Thank you for your time this morning,

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Fair enough.

Judge.
MR. FINN:

Thank you, your Honor.

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- - - - - -

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C E R T I F I C A T E

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I certify that the foregoing is a correct transcript from

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the record of proceedings in the above-entitled matter.

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s/s_________________________________
GAYLE A. McGUIGAN, CSR, RMR, CRR
Official Court Reporter

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May 5, 2011