Specht et al v. Google Inc et al

Filing 46

TRANSCRIPT OF PROCEEDINGS held on 06/04/09 before the Honorable Harry D. Leinenweber. COURT REPORTER CONTACT INFORMATION: Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312-435-5567. IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter 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 7/2/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/9/2009. (Burgeson, Krista)

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Spechtetalv.GoogleIncetal Doc.46 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 June 4, 2009 9:00 o'clock a.m. TRANSCRIPT OF PROCEEDINGS - STATUS AND MOTION BEFORE THE HONORABLE HARRY D. LEINENWEBER APPEARANCES: For the Plaintiffs: LAW OFFICE OF MARTIN J. MURPHY MR. MARTIN J. MURPHY 2811 RFD Long Grove, Illinois 60047 847-540-8899 For the Defendant, Google, Inc.: GREENBERG TRAURIG, LLP MR. HERBERT H. FINN MR. RICHARD D. HARRIS 77 West Wacker Drive Chicago, Illinois 60601 312-456-8400 For the Defendant, T-Mobile: LOEB & LOEB MR. ROBERT M. ANDALMAN MS. EMILY R. HAUS 321 North Clark Street Chicago, Illinois 60610 312-464-3100 Dockets.Justia.com 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporter: FEDERAL OFFICIAL COURT REPORTER MS. KRISTA BURGESON 219 South Dearborn Street Chicago, Illinois 60604 312-435-5567 Krista_Burgeson@ilnd.uscourts.gov 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE CLERK: 09 C 2572, Specht versus Google. MR. MURPHY: Good morning, your Honor. Martin Murphy on behalf of the plaintiffs. MR. HARRIS: Good morning, your Honor. Richard Harris and Herb Finn on behalf of Google. MR. FINN: Good morning. MR. ANDALMAN: Good morning, your Honor. Robert Andalman and Emily Haus for T-Mobile. MS. HAUS: Good morning. THE COURT: Status today? MR. MURPHY: Your Honor, at this point the plaintiffs have decided to withdraw their motion for the preliminary injunction at this time and rather get all the pleadings in order, get everybody in, and perhaps proceed at that point. THE COURT: So, the motion for the preliminary -for the TRO and the preliminary injunction are withdrawn? MR. MURPHY: Yes. MR. HARRIS: They are done. That is correct, your THE COURT: Okay. MR. HARRIS: Before addressing plaintiff's motion to amend the complaint under plaintiff's interpretation of Rule 15, Judge, I did want to mention that after the Court opened up the opportunity to take some discovery, and we put together 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a schedule, we identified 4 witnesses that we were going to be taking here and in California, came in with briefing dates and things like that, and right after that -- oh, and we started exchanging some documents as well, and right after that, the motion was withdrawn. Here we are now, and instead of subtracting defendants from the complaint, apparently we are going to be adding some new defendants to the amended complaint. THE COURT: Let me see. Who have you got in here? Is AT&T in here? MR. MURPHY: No, AT&T is not. THE COURT: Okay. MR. MURPHY: I have added 5 defendants, your Honor, 4 of them are employees of Google, and one is Android Inc., which is a subsidiary of Google, and Android Inc. was actually incorporated by the 4 employees of Google. They purchased Android Inc. from these individuals. MR. HARRIS: Unfortunately, your Honor, we not only don't have a copy of the proposed amended complaint, again, because of what is happening under Rule 15, according to plaintiff, we have no basis whatsoever for the addition now of individual employees of Google, as well as a wholly-owned sub. MR. MURPHY: None of the defendants have answered. None of the defendants' answers are due until at least the 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29th, because I originally served everybody with notice and request for waivers. So, there are no answers in the file yet. No one has filed. No one's answers are due for another 25 days, at the earliest. THE COURT: When are you going to file the amended complaint? MR. MURPHY: Today. I have to file it electronically, so I will go back to my office, once I have leave, and file it today. THE COURT: And incidentally, what is the Astonishing Tribe? MR. MURPHY: The Astonishing Tribe, Inc.? THE COURT: AB. MR. MURPHY: Yes. THE COURT: What is it? MR. MURPHY: It is a corporation. It is one of the -- there are 47 members of the open handset alliance, and the open handset alliance together with Google are the -- the manufacturers or makers of this Android software. So, these are all members of this open handset alliance. MR. HARRIS: Your Honor, there are 48 or 49 -actually, there will be 52 or 53 co-defendants now. The vast majority of those co-defendants have been sued because they 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 belong to a trade association. There has been no pleading, much less any kind of showing, that they have actually used the mark, much less used that mark in commerce, but because they belong to this handset association, they have been sued. That is where this case is going. THE COURT: Well, I am taking counsel on his word that there is Rule 11. Will you be representing many of them? MR. HARRIS: We expect to, your Honor. Some of them have not been served yet. THE COURT: We will not end up with 47 lawyers? MR. MURPHY: So far we have 6, and only 2 defendants represented. MR. HARRIS: You have the room for it but I don't think that will happen, Judge. That won't be the case. Frankly, by the time the response period comes into play in terms of responding to the allegations in the complaint, I think it will come down in size considerably. THE COURT: Okay. Well, I will grant the motion to file the first amended complaint. That is adding parties, right? MR. MURPHY: It is adding parties. It is correcting typos, because some of the names -- I took all the names off their web site, I was rushing to get this in, some names were 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abbreviated, and I had to go back and do some research to find their legal names. It was pointed out by some of the attorneys for some of the various defendants that the actual member of the open handset alliance is not the company name, but another company, and so I needed to correct some of the defendants' names, put in the jurisdiction, their residency, and some of the counts were -THE COURT: But AT&T is not a member of the alliance; is that correct? MR. MURPHY: They are not. THE COURT: Okay. MR. HARRIS: We don't represent the alliance, your Honor, so I don't know. I can tell the Court though that in view of the fact that we have already started producing documents, and we had a mini schedule for accommodating the now withdrawn motion for preliminary injunction, that it is really, really important in this case that we start addressing discovery, and we wanted to request in stanter the Court's approval for us to exchange discovery immediately to that purpose. I think it is going to be very, very important in this case to start addressing the facts behind these accusations. MR. MURPHY: Your Honor, with respect to the 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents they produced, all they produced so far, is Google's 10-K's and 10-Q's, quarterly filings with the SEC, which are not even relevant to this case. I would like to get everybody in and get everybody's pleadings so we can at least form what the case is about, figure out exactly what the issues are, and what positions everybody is taking. Counsel wants to proceed with discovery, yet he has never filed a responsive pleading to my motion, my memorandum, or has ever produced any answer to the complaint. So, I would like to know what exactly -- what are the -- what is the dispute. THE COURT: You have sent out requests to waive service; is that correct? MR. MURPHY: Correct. THE COURT: And do you anticipate that all the parties that you will be representing will waive service? Do you anticipate them to waive service? MR. HARRIS: We expect a lot will, and a good number will not. We don't know right now for sure. I can tell you, Judge, that this is now the third appearance for the motion for preliminary injunction that has now been withdrawn. There was a sense for urgency, and now all of a sudden, the brakes are put on. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We want to get to the facts of this case. We need to at least exchange discovery to that purpose, Judge, instead of waiting 60 or 90 days to find out what this case is about. MR. MURPHY: Your Honor, the purpose of the temporary restraining order was to block the developer's conference which took place on May 27th and May 28th, that was the purpose of the TRO, to stop that. When that didn't happen, we were going into the preliminary injunction, and it seemed fruitless to have one defendant preliminarily enjoined as opposed to all the defendants that are actually infringing on the trademark. So, I thought it best, rather than wasting the Court's time and all the attorneys' time, coming in here one at a time seeking preliminary injunctions, to have everybody in here, frame the issues, and then proceed. So, I think it is best that we get answers on file and proceed in the normal fashion. THE COURT: Who is before the Court now, Google? MR. HARRIS: That is correct, your Honor. THE COURT: Who else? MR. ANDALMAN: Your Honor, we filed an appearance on behalf of T-Mobile. There are some service issues that we need to talk to Mr. Murphy about. We received a waiver of service request this week, I am not sure it is the right entity, so we are not technically served, and we haven't 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 waived service at this point, but we have filed an appearance. MR. HARRIS: Your Honor, we were told at the last hearing on the 21st that the preliminary injunction action was not being targeted toward anybody else other than Google. We have just been told now that the purpose, the intent, behind the preliminary injunction was to stop everybody. We are getting frustrated with the little misdirection here. The Court certainly may recall the fact that Google was the target for the preliminary injunction. Now that has been withdrawn. Google would like to know the basis for this complaint. And we are well aware of this Court's position on not only the formal discovery, but the informal exchange of discovery, and anything we can do to get things going as soon as possible to find out if there is, in fact, any basis for this complaint, would sincerely be appreciated. THE COURT: When would you anticipate -I mean, are you going to file an answer or a motion or -MR. FINN: Yes. MR. HARRIS: We are going to be answering, or otherwise responding, probably otherwise responding, certainly well within the period that the waiver request addressed. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 June. THE COURT: Which is what? MR. HARRIS: The deadline I think is the 29th of MR. FINN: 29th or 30th, based on the current complaint, your Honor. THE COURT: What exactly -Well, what discovery do you want at this point? MR. HARRIS: We want to go into, as this Court knows, the crucial issue of abandonment. We want to simply find out what business this individual did between 2001 and 2009 when, on the day before its trademark was going to go abandoned, it all of a sudden resurrected all of its companies, started filing, doing all sorts of things, and within a day or two after, filed suit. We want to simply find out, take a look, at what business he has been doing, because we -THE COURT: The problem is if you depose -- do you want to depose someone, oris this just written discovery? MR. HARRIS: I'm sorry? THE COURT: Do you want to depose someone or is it written discovery? The problem I see as far as depositions are concerned, you know, we have got a bunch of defendants who aren't in the case, and aren't participating, which would mean duplicating it, and that is why it makes some sense to delay 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. I don't have a problem with some written discovery targeted for a specific purpose. MR. HARRIS: Your Honor, for now, the written discovery would be the limits of what we are looking at. We would like to be able to get some Answers to Interrogatories. We want to see documents, that is what we want to see. We realize we are not in a situation where we need depositions for a preliminary injunction hearing, because conveniently, that has now been withdrawn. MR. MURPHY: Your Honor, every time we have come in here they want to answer, they want to respond, and then every time I try to get a response out of them, they want to do discovery. Counsel has stated that we have got tons of documents that establish abandonment, yet they have never pled abandonment except in here to argue that -- I mean, abandonment is their affirmative defense, or they file a cross complaint for cancellation. They haven't sought to cancel my client's trademark registration ever. They used it. They knew about it since February of 2008 that my client had the registered mark, Android Data, but they took no action. They waited for us to come in on the assumption that we will lose it. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, I will permit Google, as soon as you file a responsive pleading, to send out written discovery limited to the issue of abandonment. That is what you want; is that correct? MR. HARRIS: Yes, your Honor. MR. MURPHY: And then would I also be allowed discovery with regard to their search, their trademark search, and investigations? THE COURT: Written discovery. You want it as to what, now? MR. MURPHY: Well, what steps they took before using the name Android did they take to ensure that they weren't infringing on my client's trademark. I believe one of the defendants, Android Inc., actually began the infringement in 2003, one year after my client registered his trademark. So, that is why I am adding Android Inc., which was then purchased by Google, for the purposes of issuing this Android software. THE COURT: You want written discovery on -MR. MURPHY: With respect to the trademark research, as to Google and Android Inc., as to the research they did with respect to the trademark, Android, that they tried to register. MR. HARRIS: Your Honor, that would be discovery on 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the issue of willfulness. I don't know if that is a crucial substantive issue right now. MR. MURPHY: Well, abandonment -- you are going to allege that we abandoned it at some point in time, and if you started using it before any abandonment, and you have infringed before any abandonment, if there was such a thing of abandonment, which we of course dispute, then certainly there is this timeframe here that we would like to know about. We would like to know when did they start their infringing activities, what was the -- they had a web site, Android Inc., they had -- I'm sorry, a web site, Android.com, they had the corporation, Android Inc., which was registered in California, registered in California and Delaware, and we have these 4 individuals that were -MR. HARRIS: Your Honor, apparently we are going to have some new trademark law that will be generated in this case where, under plaintiff's claim, if someone started using a mark illicitly or unlawfully before it was abandonment, then abandonment is somehow told or stayed along the way, which is -THE COURT: I suppose if it hadn't been abandoned, there would be a period of time prior to abandonment where there might be damages. That is possible. MR. HARRIS: That would be a big if, your Honor, but I don't believe that is the case. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guess. We are looking at 7 years of nonuse in this case. We want to see -- we want to see that which was promised to us before the motion was withdrawn. MR. MURPHY: Every time we come in the number changes, 3 years, 4 years, 5 years, and now it is 7 years. This is why I need a response, your Honor. Their information changes. THE COURT: You will get an answer or other pleading at some point. MR. MURPHY: Yes, then we will take it from there, I THE COURT: Right. So, you can take paper discovery limited to the issue of the efforts made to research -- what is it? MR. MURPHY: To investigate the trademark. THE COURT: To investigate the trademark, yes. MR. MURPHY: Also, counsel said he has loads of documents showing their investigation, and I would like to see those documents. THE COURT: I will let you retain those. So, we will have a status in July then, because your answer or other pleading will be in then, or if have you a motion, you will probably come in on it. MR. HARRIS: Very well. THE COURT: All right. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Give them a date in July. THE CLERK: July 22 at 9:00. MR. MURPHY: Thank you, your Honor. MR. HARRIS: Thank you. MR. FINN: And your Honor, just so we are clear, the preliminary injunction hearing date of July 8th is gone? THE COURT: It is vacated on the basis of the withdrawal of the motion for both TRO and the preliminary injunction. MR. FINN: Thank you. MR. HARRIS: Thank you, your Honor. MR. MURPHY: Thank you. MR. ANDALMAN: 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 June 4, 2009 Date

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