ONE NUMBER CORPORATION v. GOOGLE INC.

Filing 30

MOTION for Discovery to Take Limited Expedited Written Discovery, filed by Plaintiff ONE NUMBER CORPORATION. (Attachments: # 1 Exhibit A First Request for Production of Documents and Things to Google, Inc., # 2 Text of Proposed Order)(Warr, Alastair)

ONE NUMBER CORPORATION v. GOOGLE INC.

Doc. 30 Att. 1

Exhibit A

Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ONE NUMBER CORPORATION Plaintiff / Counterdefendant, vs. GOOGLE, INC. Defendant / Counterclaimant. ) ) ) ) Case No. 1:10-cv-0312-RLY-TAB ) ) ) ) )

ONE NUMBER CORPORATION'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS TO GOOGLE, INC.
Pursuant to Rule 34 of the Federal Rules of Civil Procedure, One Number Corporation (hereinafter "One Number") hereby requests Defendant / Counterclaimant Google, Inc. (hereinafter "Google") to produce and permit inspection and copying of the documents and things described below in accordance with the definitions and instructions set forth below as well as to provide written responses to this request. Production of these documents and things shall be within fourteen (14) days from the date of service of this request at the offices of Krieg DeVault LLP, One Indiana Square, Suite 2800, Indianapolis, Indiana 46204, or at a time and place mutually agreeable by the parties.

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DEFINITIONS 1. The terms "Defendant" and "you" or "your" or "yours" mean Defendant

/ Counterclaimant, Google, Inc., and its respective owners, shareholders, managers, parents, subsidiaries, predecessors, controlled, controlling, affiliated, or related companies; and their past and present officers, directors, agents, employees, representatives, distributors, accountants and auditors. 2. The term "GrandCentral" means GrandCentral Communications, Inc.,

and its respective owners, shareholders, managers, parents, subsidiaries, predecessors, controlled, controlling, affiliated, or related companies; and their past and present officers, directors, agents, employees, representatives, distributors, accountants and auditors. 3. The phrase "Google Voice Telephony Service" means any product,

service, software application, software client, or web based software application and/or service that has ever been provided, supplied, licensed, downloaded, or otherwise given to any entity or person with or without charge and that is currently being offered by you under the name or service mark of Google Voice. 4. The phrase "GrandCentral Telephony Service" means any product,

service, software application, software client, or web based software application and/or service that has ever been provided, supplied, licensed, downloaded, or otherwise given to any entity or person with or without charge and that was previously offered by GrandCentral at the universal resource locator of www.grandcentral.com.

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5.

The term "person" refers to natural persons and corporate, legal,

governmental or other business entities, partnerships, groups, associations, or other organizations. 6. The term "document" is used in its customary broad sense as defined

in Fed. R. Civ. P. Rule 34(a)(1), and includes, without being limited to, the original and all copies (carbon, photocopy, photographic, microfilm, electromagnetic storage media, or otherwise) of any recordings or storage of E-mail messages, electronic mail system messages, or other electronic communications; any advertising or promotional material including, without limitation, catalogs, press releases, selling sheets, displays, boxes, packaging, coupons, art work, drafts, proofs, tear sheets, scripts, storyboards, brochures, and business cards; travel tickets, lodging confirmations, lists of customers, customer inquiries, price schedules, letters, correspondence, customer or other complaints, books, journals, ledgers, working papers, invoices, contracts, purchase orders, estimates, reports, memoranda, surveys, opinions, search reports, records, studies, appraisals, papers, charts, recordings, notes, minutes, drawings, blueprints, sketches, charts, photographs, microfilm records, data compilations, movies, copyright applications and registrations, patents and patent applications, service mark applications and registrations, trademark applications and registrations, assignments, contracts, agreements, licenses, annual reports, reports to shareholders, reports of meetings of directors, boards or committees; engineering, technical, scientific, or research notebooks and data, bills, orders, and files; all other handwritten, typed, printed, or

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otherwise visually or aurally reproduced materials; and any tangible object other than a document, and includes objects of every kind and nature such as packages, goods, bottles, equipment, tools, circuit cards, prototypes, models, specimens, software, computer disks and tapes, videotapes, and audiotapes. 7. The term "thing" or "things" as used herein shall be interpreted in the

most comprehensive and inclusive sense in light of Fed.R. Civ. P. Rule 34 and shall include any physical articles responsive to the request that are not "documents" and that are in the custody, or the control, of Living Essentials. 8. The terms "and" and "or" shall be construed either disjunctively or

conjunctively, as necessary, to bring within the scope of the request all responses which might otherwise be construed to be outside its scope. 9. The singular shall always include the plural and the present tense

shall always include the past tense. 10. 11. The term "all" includes "any" and "every." As used herein, a masculine, feminine, or neuter pronoun shall not

exclude the other genders. 12. The term "concerning" means relating to, referring to, pertaining to,

describing, evidencing, constituting, comprising, mentioning, commenting on, connected with, discussing, analyzing, explaining, showing, dealing with or recording.

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13.

The term "communication" means the transmittal of information or

anything else (whether facts, ideas, comments, inquiries, or otherwise) in any medium. 14. The term "relating" or "relate" are to be construed in their broadest

sense and shall mean concerning, comprising, pertaining, describing, referring, discussing, showing, supporting, contradicting, refuting, constituting, embodying, containing, reflecting, identifying, or in any way logically or factually connected with, in whole or in part, the subject matter discussed. 15. The term "identify," in the case of a document or thing, means to

provide a specific identification of each document or thing in your possession, custody, or control, irrespective of whether it is claimed to be privileged, including a brief description of such document or thing sufficient to support a request for production and consisting of at least: a) b) c) d) the type of document or thing; its date; its general subject matter; and an identification of the author, designated addressee(s), designated

recipient(s), and all persons who received or saw copies of the documents or thing. 16. The phrase "Patents-In-Suit" means U.S. Patent No. 7,440,565 and

U.S. Patent No. 7,680,256.

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NSTRUCTIONS 1. You are to produce all originals, drafts and any differing copies and

photocopies of the documents requested. As set forth below, "documents" is to be construed in the broadest sense, including but not limited to printed matter, recorded matter, electronic communication in any form (including, but not limited to, E-mail, facsimiles) or any media and physical things. 2. The documents to be produced include all documents in your

possession, custody or control or in the possession, custody or control of your attorneys, agents, employees, investigators, consultants, and experts, or any firm, company, corporation or business in which you own a controlling interest or over which you exercise control in fact. You are required to use reasonable diligence to locate the documents, including those that are not in your immediate possession. 3. If you claim that the attorney-client privilege, or any other privilege,

doctrine or reason for withholding a document is applicable, please set forth in writing: (a) the date of the document; (b) the type of document; (c) the subject matter of the document; (d) the name, address, employment and title of each person who prepared or received the document or any copy thereof; and (e) the basis for the claim of privilege or other ground for withholding the document. If you claim that only part of the document is privileged or otherwise need not be produced, please produce the remaining part of the document. 4. If any document to be produced has been lost, discarded, transferred to

another person or entity, destroyed, or otherwise disposed of, please set forth in

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writing: (a) the date, name and subject matter of the document; (b) the name, address, employment and title of each person who prepared, received, reviewed, or had custody, possession, or control of the document; (c) all persons with knowledge of the contents or any portion of the contents of the document; (d) the previous location of the document; (e) the date of disposal or transfer of the document; (f) the reason for disposal or transfer of the document; and, if applicable, (g) the manner of disposal of the document; or, if applicable, (h) the names and addresses of the transferees of the document. 5. Pursuant to Fed. R. Civ. P. Rule 34(b), you are requested to produce

the documents with labels identifying the specific requests to which they respond or in the manner in which they are kept in the ordinary course of business. 6. This request is continuing, so as to require further and supplemental

production promptly if you obtain or discover additional documents called for herein.

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DOCUMENTS REQUESTED 1. All documents, electronic records and things that relate to the

acquisition, purchase, merger, and/or association of GrandCentral with and/or by Google (hereinafter the "GrandCentral Acquisition") including, but not limited to, any investigations, studies, due diligence inquiries and/or responses thereto, competitor analysis or studies, internal memoranda or communications, and any other item detailing with or relating to the reasoning or thought process behind the GrandCentral Acquisition. 2. All documents, electronic records and things that relate to any internal

discussions about or related to the GrandCentral Acquisition as it relates to the GrandCentral Telephony Service. 3. All documents, electronic records and things that relate to the design

and operation of the GrandCentral Telephony Service including, but not limited to, end user screen shots, system diagrams, charts, flow charts, screenshots, technical documentation, interoperability documentation, and other technical information or data from inception to date. 4. All documents, electronic records and things that relate to how the

GrandCentral Telephony Service operates in conjunction with other service providers / carriers including, but not limited to, Level 3 Communications, Bandwidth.com, and Global Crossing.

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5.

All documents, electronic records and things that refer or relate to any

award or industry recognition received by GrandCentral related to the GrandCentral Telephony Service. 6. All documents, electronic records and things that refer or relate to the

innovative, unique, novel, or non-obvious nature of the GrandCentral Telephony Service. 7. All documents, electronic records and things that refer or relate to any

award or industry recognition received by Google related to the Google Voice Telephony Service. 8. All documents, electronic records and things that refer or relate to the

innovative, unique, novel, or non-obvious nature of the Google Voice Telephony Service. 9. All documents, electronic records and things in which you have

referred to the GrandCentral Telephony Service and/or the Google Voice Telephony Service as being innovative, unique, novel, non-obvious, or that otherwise cast the GrandCentral Telephony Service and/or the Google Voice Telephony Service as being a technologically advanced, innovative, novel, unique, or non-obvious telephony service. 10. All documents, electronic records and things that were prepared by

GrandCentral for the purpose of soliciting investors, obtaining capital or investors, or otherwise promoting the GrandCentral Telephony Service including, but not

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limited to, items prepared for and received by Halsey Minor and/or Minor Ventures, IP. 11. All documents, electronic records and things that refer or relate to the

innovative, unique, novel, or non-obvious nature of the technology covered by the Patents-In-Suit. 12. All documents, electronic records and things that relate to any prior

art that you deem is relevant to or otherwise related to the Patents-In-Suit. 13. All documents, electronic records and things that relate to One

Number or any product or service offered by One Number or the `256 and `565 Patents. 14. All documents, electronic records and things that were reviewed or

that otherwise relate to your responses to One Number's First Set of Interrogatories to Google, Inc.

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Date: November 11, 2010

Respectfully submitted,

/s/ Alastair J. Warr Alastair J. Warr Scott S. Morrisson Dean E. McConnell KRIEG DEVAULT LLP One Indiana Square, Suite 2800 Indianapolis, IN 46204 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail]

Attorneys for One Number

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CERTIFICATE OF SERVICE I hereby certify that on November 11, 2010, a complete copy of the foregoing was mailed via first-class mail, postage prepaid, to the address of record of counsel for Google at the following address: Todd G. Vare Jeff M. Barron Jennifer Schuster BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 [phone] [phone] (Facsimile)

[e-mail] [e-mail] [e-mail]

/s/ Alastair J. Warr Alastair J. Warr

KD_3069444_1.DOC

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ONE NUMBER CORPORATION Plaintiff / Counterdefendant, vs. GOOGLE, INC. Defendant / Counterclaimant. ) ) ) ) Case No. 1:10-cv-0312-RLY-TAB ) ) ) ) )

ONE NUMBER CORPORATION'S FIRST SET OF INTERROGATORIES TO GOOGLE, INC.
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, One Number Corporation (hereinafter "One Number") direct the following interrogatories to Defendant Google, Inc. (hereinafter "Google") and requests that they be answered within fourteen (14) days of service. To the extent Google's answers to any of these interrogatories may at any time be changed by information acquired by Google after the filing of its answer, One Number requests that Google promptly thereafter serve supplemental answers reflecting such changes.

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DEFINITIONS 1. The terms "Defendant" and "you" or "your" or "yours" means

Defendant / Counterclaimant, Google, Inc., and its respective owners, shareholders, managers, parents, subsidiaries, predecessors, controlled, controlling, affiliated, or related companies; and their past and present officers, directors, agents, employees, representatives, distributors, accountants and auditors. 2. The term "GrandCentral" means GrandCentral Communications, Inc.,

and its respective owners, shareholders, managers, parents, subsidiaries, predecessors, controlled, controlling, affiliated, or related companies; and their past and present officers, directors, agents, employees, representatives, distributors, accountants and auditors. 3. The phrase "Google Voice Telephony Service" means any product,

service, software application, software client, or web based software application and/or service that has ever been provided, supplied, licensed, downloaded, or otherwise given to any entity or person with or without charge and that is currently being offered by you under the name or service mark of Google Voice. 4. The phrase "GrandCentral Telephony Service" means any product,

service, software application, software client, or web based software application and/or service that has ever been provided, supplied, licensed, downloaded, or otherwise given to any entity or person with or without charge and that was previously offered by GrandCentral at the universal resource locator of www.grandcentral.com.

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5.

The term "person" refers to natural persons and corporate, legal,

governmental or other business entities, partnerships, groups, associations, or other organizations. 6. The term "document" is used in its customary broad sense as defined

in Fed. R. Civ. P. Rule 34(a)(1), and includes, without being limited to, the original and all copies (carbon, photocopy, photographic, microfilm, electromagnetic storage media, or otherwise) of any recordings or storage of E-mail messages, electronic mail system messages, or other electronic communications; any advertising or promotional material including, without limitation, catalogs, press releases, selling sheets, displays, boxes, packaging, coupons, art work, drafts, proofs, tear sheets, scripts, storyboards, brochures, and business cards; travel tickets, lodging confirmations, lists of customers, customer inquiries, price schedules, letters, correspondence, customer or other complaints, books, journals, ledgers, working papers, invoices, contracts, purchase orders, estimates, reports, memoranda, surveys, opinions, search reports, records, studies, appraisals, papers, charts, recordings, notes, minutes, drawings, blueprints, sketches, charts, photographs, microfilm records, data compilations, movies, copyright applications and registrations, patents and patent applications, service mark applications and registrations, trademark applications and registrations, assignments, contracts, agreements, licenses, annual reports, reports to shareholders, reports of meetings of directors, boards or committees; engineering, technical, scientific, or research notebooks and data, bills, orders, and files; all other handwritten, typed, printed, or

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otherwise visually or aurally reproduced materials; and any tangible object other than a document, and includes objects of every kind and nature such as packages, goods, bottles, equipment, tools, circuit cards, prototypes, models, specimens, software, computer disks and tapes, videotapes, and audiotapes. 7. The phrase "state the basis" calls for Living Essentials to: a) identify all facts and reasons that support or relate to Living

Essentials' contentions referred to in the interrogatory; b) identify all documents and things that support or relate to

Living Essentials' contentions referred to in the interrogatory; and c) identify all communications that support or relate to Living

Essentials' contentions referred to in the interrogatory. 8. The term "thing" or "things" as used herein shall be interpreted in the

most comprehensive and inclusive sense in light and shall include any physical articles responsive to the request that are not "documents" and that are in the custody, or the control, of the Living Essentials. 9. The terms "and" and "or" shall be construed either disjunctively or

conjunctively, as necessary, to bring within the scope of the request all responses which might otherwise be construed to be outside its scope. 10. The singular shall always include the plural and the present tense

shall always include the past tense. 11. The term "all" includes "any" and "every."

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12.

As used herein, a masculine, feminine, or neuter pronoun shall not

exclude the other genders. 13. The term "concerning" means relating to, referring to, pertaining to,

describing, evidencing, constituting, comprising, mentioning, commenting on, connected with, discussing, analyzing, explaining, showing, dealing with or recording. 14. The term "communication" means the transmittal of information or

anything else (whether facts, ideas, comments, inquiries, or otherwise) in any medium. 15. The term "relating" or "relate" are to be construed in their broadest

sense and shall mean concerning, comprising, pertaining, describing, referring, discussing, showing, supporting, contradicting, refuting, constituting, embodying, containing, reflecting, identifying, or in any way logically or factually connected with, in whole or in part, the subject matter discussed. 16. The term "identify," in the case of a document or thing, means to

provide a specific identification of each document or thing in your possession, custody, or control, irrespective of whether it is claimed to be privileged, including a brief description of such document or thing sufficient to support a request for production and consisting of at least: a) b) c) the type of document or thing; its date; its general subject matter; and

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d)

an identification of the author, designated addressee(s), designated

recipient(s), and all persons who received or saw copies of the documents or thing.

INSTRUCTIONS 1. Each person responding to these interrogatories is required to furnish

responsive information within that person's personal knowledge or the personal knowledge of its attorneys, agents, employees, or other representatives. 2. Each objection, if any, shall be set forth with specificity and shall be

accompanied by a statement of the grounds for the objection. 3. When asked to identify or provide the identity of a natural person,

provide the following information as to each person: a) The full name of the person, including the last known home address

and telephone number of the person; b) The present employer of the person, including the address and

telephone number of the employer, and present position(s) of the person with the present employer; and c) If different from the above, the employer (including address and

telephone number) and position held by the person at the time of the events discussed in the pertinent interrogatory or answer. 4. With respect to an entity other than a natural person, set forth the full

name or title of the entity and state the address, telephone number, and principal place of business or activity of such entity.

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5.

When asked to identify or produce a document or communication,

provide the following information as to each such document and communication: a) The general character, nature, or type of the document or

communication (e.g., letter, memorandum, etc.); b) The date of the document or communication or, if it has no date, the

approximate date of its preparation or occurrence; c) d) The title of the document; The full names of the author(s) and all addressee(s) and recipient(s) of

the document or communication; e) f) A summary of the subject matter of the document or communication; The present location and custodian of the document or communication

or any copies thereof; and g) The file number or other identifying mark or code of the document, if

applicable. 6. If any document requested to be identified has been lost, misplaced, or

destroyed, provide the following additional information as to each such document: a) b) c) Whether the document was lost, misplaced, or destroyed; The date the document was lost, misplaced, or destroyed; The identity of the person who lost, misplaced, or destroyed the

document; d) If the document was destroyed, the identity of any person who directed

that the document be destroyed; and

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e)

The circumstances under which the document was lost, misplaced, or

destroyed and, if the document is destroyed, the reasons for its destruction. 7. If any information, communication, or document responsive to any of

the following interrogatories is withheld on the basis of any claim of privilege, describe generally the substance or subject matter of the information, communication, or document withheld, state the privilege being relied upon or claimed and the basis for the claim, and identify all persons or entities who have had access to such information, communication, or document. 8. If any of these interrogatories cannot be answered in full, respond to

the extent possible, specifying the reasons for the inability to respond to the remainder of the interrogatory and state whatever information or knowledge is available concerning the unanswered portion. 9. No part of a discovery request may be left unanswered merely because

an objection is interposed to another part of the discovery request.

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INTERROGATORIES INTERROGATORY NO. 1: Identify each award or any instances of industry

recognition that you are aware of that relates to the GrandCentral Telephony Service previously offered by GrandCentral prior to the acquisition of the GrandCentral Telephony Service by you and/or the Google Voice Telephony Service now offered by you including, but not limited to, the circumstances surrounding or relating to such award or any instances of industry recognition, the date associated therewith, and the details of the entity or entities granting such award or providing such industry recognition. RESPONSE:

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INTERROGATORY NO. 2:

Identify any information of which you are aware of

that would tend to show, refer to, or otherwise evidence that the GrandCentral Telephony Service previously offered by GrandCentral prior to the acquisition of the GrandCentral Telephony Service by you and/or the Google Voice Telephony Service now offered by you as being technology that is innovative, new, novel, and/or otherwise non-obvious, including, but not limited to, any press releases, news articles, industry articles or press releases, technical publications or journals, websites, or internal reports or studies. RESPONSE:

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INTERROGATORY NO. 3:

Identify the manner in which the GrandCentral

Telephony Service and Google Voice Telephony Service is or was designed to provide telephony services to consumers from inception to date, including, but not limited to, the design or system architecture of the GrandCentral Telephony Service and the Google Voice Telephony Service from inception to date, the structure of the software or code that is or was utilized to provide the GrandCentral Telephony Service and the Google Voice Telephony Service from inception to date, the features included in each version, release, or update of the GrandCentral Telephony Service and the Google Voice Telephony Service from inception to date, and the respective dates in which each version, release, or update to the GrandCentral Telephony Service and the Google Voice Telephony Service was released for use by consumers. RESPONSE:

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Date: November 11, 2010

Respectfully submitted,

/s/ Alastair J. Warr Alastair J. Warr Scott S. Morrisson Dean E. McConnell KRIEG DEVAULT LLP One Indiana Square, Suite 2800 Indianapolis, IN 46204 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail] Attorneys for One Number

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CERTIFICATE OF SERVICE I hereby certify that on November 11, 2010, a complete copy of the foregoing was mailed via first-class mail, postage prepaid, to the address of record of counsel for Google at the following address: Todd G. Vare Jeff M. Barron Jennifer Schuster BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 [phone] [phone] (Facsimile)

[e-mail] [e-mail] [e-mail]

/s/ Alastair J. Warr Alastair J. Warr
KD_3069517_1.DOC

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