Red Bend Software, Inc. et al v. Google

Filing 32

AFFIDAVIT of David M. Magee in Support re 31 Emergency MOTION to Compel DEPOSITIONS OR IN THE ALTERNATIVE STRIKE DELARATIONS OF YORAM SALINGER AND STEPHEN EDWARDS AND/OR PRECLUDE REPLY BRIEFING filed by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Magee, David)

Red Bend Software, Inc. et al v. Google

Doc. 32 Att. 1

EXHIBIT 1

Dockets.Justia.com

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V. GOOGLE, INC.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
_ _ __ _ _ _ __ _ _ _ __ _ _ __ _ _ _ __ _ _ _ _ R E D B E N D S O F T W A R E, I N C. ,

Plaintiff,

Civil Action No. 0 9 - 1 1 8 1 3 - D P W
December 2, 2009, 1 0 : 55 a .m .

Defendant. ___________________________

TRANSCRIPT OF SCHEDULING CONFERENCE B E F O R E T H E H O N O R A B L E D O U G L A S P. W O O D L O C K UNITED STATES DISTRICT COURT J O H N J. M O A K L E Y U . S . C O U R T H O U S E 1 COURTHOUSE WAY B O S T O N , MA 02210

DEBRA M. JOYCE, RMR, CRR Official Court Reporter J o h n J. M o a k l e y U . S . C o u r t h o u s e 1 Courthouse Way, Room 5204 B o s t o n , MA 0 2 2 1 0 617 - 7 3 7- 4 4 1 0

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talking about the taint that perhaps would apply to Red Bend during this period of time where Google is using its muscle and marketing muscle to advertise to the world that its code is open. THE COURT: Okay. So, you know, if David has to wait

a bit to bring down Goliath, I'm not sure that's material here. So I think I understand what your concerns are, and they're reasonable concerns, I'm just not persuaded that it justifies what I might call distorting the schedule a bit, including the schedule for me to be able to absorb these materials. MR. SCHEINFELD: THE COURT: Well, your Honor, I've tried my best. And you can report to your client

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Okay.

that you did, that you faced an obdurate and unreasonable judge. (Discussion off the record.) THE COURT: So if we set this -- I'm going to set it

and then work my way back for hearing on the afternoon, let's say, 2:30 on Wednesday, February 17th. Do the parties

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realistically think they're going to have live testimony here or want to have live testimony? MR. SCHEINFELD: THE COURT: Yes, your Honor.

Like what? We would propose at this point in

MR. SCHEINFELD:

time hearing from two of our witnesses, our principal and our

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expert. THE COURT: What are they going to talk about? Well, harm, our principal is going to

MR. SCHEINFELD: talk -THE COURT:

Let me tell you -- why is it that I can't

just take your -- take their depositions -- take their affidavits on this? I always like to make new friends, but I'm

not sure that I need to meet them here. MR. SCHEINFELD: Well, your Honor could take their

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declarations, but then we would want the opportunity to cross. THE COURT: Let's see what I think about that. Do you

want to press your luck by telling me -MR. SCHEINFELD: You're doing so well. Well, I will tell you, your Honor,

MS. BAKER MANNING:

certainly if Red Bend intends to present their witnesses live, I think it would make sense to have live witnesses as well. THE COURT: My default on this at this point is

declarations or affidavits from the witnesses that you intend to introduce here. MS. BAKER MANNING: And would cross be introduced

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through deposition testimony, your Honor? THE COURT: I don't know what cross would be necessary

And what I think I would say is in the argument on the

17th, I'll hear you on the question of whether or not you think it is necessary to have cross-examination. And then I'll

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schedule time if I think it's appropriate.

But we're dealing

with a preliminary injunction here, and I'm not sure that -because it's not going to be resolved in a final form at this stage that I think that live testimony is going to be that helpful, but I certainly don't know enough about it, that a kind of desire of your clients to speak in open court is not enough for me, and the chance to practice cross-examination skills is not enough for me either. So it's got to be something that tells me it's going to be material to my disposition of the matter that couldn't fairly have been anticipated by the parties here. I view live testimony generally as important for purposes of dealing with witnesses' credibility, and I'm not sure credibility is going to be that much of an issue here. Maybe it will, I don't know. Won't be the first time I'm

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surprised, but the time at which I'll make a determination about that I think is going to be at the hearing on this. So what I'm carving out is, as I said, 2:30 on February 17th. That then, I think, works us back here, just using the time frame that Google has in its, I think, reply, so Google -let's see -MS. BAKER MANNING: We had proposed, your Honor,

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anticipating a hearing the week of the February 15th, which is where we are. We had suggested we file an opposition on

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January 29th, which I believe is a Friday. THE COURT: Okay. So January 29th for the opposition.

Here the parties' depositions' schedule and production of document schedule I don't understand -- apart from wanting to expedite it more on the part of Red Bend, I don't see that as a problem. Is it? MR. SCHEINFELD: No, it's not, your Honor. But if I

may address the time of Google's opposition.

If that's the

case, your Honor, we would only have six days to file a reply, and we would -- I would like more time to do that. suggesting that we push back the hearing. I'm not

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What I'd like to

have is Google's opposition due a week or two earlier than January 29th to give Red Bend time to reply, more time to reply. THE COURT: So what you had the last time under your

proposal is nine days? MR. SCHEINFELD: THE COURT: That's correct, your Honor. The 25th, January 25th for Google's But in

Okay.

opposition to the motion for preliminary injunction.

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terms of the document production and that sort of thing, the development of time periods, do I have to impose one or do you think you can work it out without coming back to me? MR. SCHEINFELD: out. MS. BAKER MANNING: There is one issue I would like to I think we'll be able to work that