Red Bend Software, Inc. et al v. Google

Filing 38

Transcript of Motion Hearing held on January 19, 2010, before Judge Woodlock. Court Reporter: Brenda K. Hancock at 617/439-3214. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 2/23/2010. Redacted Transcript Deadline set for 3/5/2010. Release of Transcript Restriction set for 5/3/2010. (Scalfani, Deborah)

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1 2 3 4 5 6 7 8 9 10 BEFORE: 11 12 vs. GOOGLE, INC.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RED BEND SOFTWARE, INC. AND RED BEND, LTD. Plaintiffs,

Defendant.

) ) ) ) ) No. 1:09-CV-11813-DPW ) ) ) ) )

THE HONORABLE DOUGLAS P. WOODLOCK

MOTION HEARING 13 14 15 16 17 18 19 20 21 22 23 24 25 Brenda K. Hancock, RMR, CRR Official Court Reporter John Joseph Moakley United States Courthouse One Courthouse Way Boston, MA 02210 [phone] John Joseph Moakley United States Courthouse Courtroom No. 1 One Courthouse Way Boston, MA 02210 Tuesday, January 19, 2010 11:03 a.m.

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APPEARANCES: DWYER & COLLORA LLP By: Daniel J. Cloherty, Esq. 600 Atlantic Avenue, 12th Floor Boston, MA 02210 On behalf of Red Bend Software. BAKER BOTTS LLP By: Robert C. Scheinfeld, Esq. 30 Rockefeller Plaza, 44th Floor New York, NY 10012-4498 On behalf of Red Bend Software. BINGHAM McCUTCHEN LLP By: Susan Baker Manning, Esq. David Michael Magee, Esq. 2020 K Street, N.W. Washington, DC 20006-1806 On behalf of Google, Inc.

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(The following proceedings were held in open court before the Honorable Douglas P. Woodlock, United States District Judge, United States District Court, District of Massachusetts, at the John J. Moakley United States Courthouse, One Courthouse Way, Courtroom 1, Boston, Massachusetts, on Tuesday, January 19, 2010): THE CLERK: All rise.

(The Honorable Court entered the courtroom at 11:00 a.m.) THE CLERK: You may be seated. Calling the case Civil Action 09-11813, Red Bend Software, Inc. versus Google, Inc. Will counsel please identify themselves for the This Honorable Court is now in session.

MS. BAKER MANNING:

Good morning, your Honor.

Susan With

Baker Manning, with Bingham McCutchen, for Google, Inc. me is my colleague, David Magee. MR. CLOHERTY: Good morning, your Honor.

Daniel

Cloherty, here on behalf of Red Bend. MR. SCHEINFELD: Good morning, your Honor. Robert

Scheinfeld, Baker Botts, on behalf of Red Bend. THE COURT: Well, I cannot recall, Mr. Scheinfeld;

were you present at the scheduling conference? MR. SCHEINFELD: made a great impression. Well, yes, your Honor. I must have

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THE COURT: what I had to say?

I gather you did not pick up the tone of

MR. SCHEINFELD: what you had to say. THE COURT:

Your Honor, I did pick up the tone of

Well, what I had to say was, basically,

that I was going to expedite this matter -MR. SCHEINFELD: THE COURT: Yes.

-- to permit your claim to be put forward, You have

but that I was going to permit some discovery. decided to interfere with that.

I am sorry, but this is

outrageous, clear and simple, outrageous. MR. SCHEINFELD: THE COURT: Your Honor, I apologize.

Well, you should apologize, and I It is a little late, but I appreciate

appreciate the apology. the apology.

Now let me tell you -Okay.

MR. SCHEINFELD: THE COURT:

-- you have also put off your schedule for So, you want to play a game of

your hearing because of that.

chicken; you played and you lost. MR. SCHEINFELD: Your Honor, I apologize. Obviously, I

I completely misread the Court, and I apologize for that. understood from the Court -THE COURT:

Let us talk about where we are going from

MR. SCHEINFELD:

Okay.

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THE COURT:

You can apologize to your client, too, if

that is what is necessary, if you were acting on your own as opposed to serving interests of your client that are inconsistent with an orderly and fair resolution of the case. But that is not my interest. My interest is to ensure

that there be a fair, efficient, prompt, orderly resolution of the issues that are teed up. So, you said, "No," on January 6th. Now we have just

managed to extend the time period from at least January 6th to January 19th. That amounts to 13 days, and it may be a little

longer for this strategic choice. When are your clients going to be available -- or the two deponents going to be available? MR. SCHEINFELD: first week in February. THE COURT: depositions? MR. SCHEINFELD: THE COURT: Obviously, again, I apologize. We are on to What are we talking about, if not for For deposition, your Honor? The

No; we are past apologies.

the question of what we are going to do about this profound mistake that you made or, more accurately, the plaintiff seeking extraordinary relief from the Court made in deciding that they would not make available the two most critical witnesses? MR. SCHEINFELD: Your Honor -- if I may, your Honor?

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THE COURT:

You will have an opportunity.

What I will

do is, I will set a schedule, and then, at the conclusion of all of this, we will listen to what you have to say by way of apology or whatever you want to say. am here to set a schedule. before. But the short of it is, I

I was here to set a schedule

I set a schedule that I thought was relatively prompt,

although you wanted it even faster. MR. SCHEINFELD: THE COURT: I did.

Now, having urged me to hurry up, you So, let us get to the schedule.

asked, in effect, to wait.

Your clients will be -- or the two deponents will be available the first week in February; is that right? MR. SCHEINFELD: THE COURT: That's correct, your Honor. Do we have to set a particular

Okay.

date, or is the tenor clear enough now so that I do not have to set a particular date? MR. SCHEINFELD: THE COURT: Your Honor, the tenor is very clear.

Okay. I mean, February -- the week of I have

MR. SCHEINFELD:

February -- the first week in February should work. consulted with my client already. week in February.

He is available the first

I believe the experts should be available

the Friday before that first week or at least the Monday or Tuesday following. Your Honor, if I may? Just to address the issue of

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depositions, we got the notice that Google wanted depositions the first week in January, seeking the deposition five business days later. the expert. THE COURT: That is not the grounds on which you My client was not available at the time, nor was

rejected the deposition. MR. SCHEINFELD: Honor. THE COURT: the primary grounds. order it. No. It was the subsidiary grounds and not It was one of the grounds, your

The primary grounds is that I did not You got it absolutely wrong.

You got it wrong. MR. SCHEINFELD:

When your Honor said that you would I don't want to argue.

not hear -- you're right, your Honor. THE COURT:

Do you want to have this discussion with

me about what I meant when I said certain things? MR. SCHEINFELD: THE COURT: No, no, your Honor; I don't.

What I will do is I will consult the In fact, I consulted him over the

person who made the order.

weekend, when I read these outrageous papers. MR. SCHEINFELD: THE COURT: did I mean by that? deposition?" Okay.

I looked in the mirror, and I said, "What Could I have meant not to have a Nobody in

And the mirror said back to me, "No.

his right mind would have thought that." MR. SCHEINFELD: I apologize.

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THE COURT:

All right.

Do you understand?

MR. SCHEINFELD: THE COURT:

Yes, I do, your Honor.

So, depositions when, Ms. Baker Manning? Sir, unfortunately, we have a We

MS. BAKER MANNING:

couple of schedule conflicts that first week of February. may need to go over into the second week. THE COURT: What are your schedule conflicts?

I feel like I am the chaperone at a tea dance. MS. BAKER MANNING: I am happy to work it out with

Mr. Scheinfeld, as long as we can go over into the next week. I have a Federal Circuit oral argument that week, into that week, that I simply can't move. THE COURT: All right. So, if we could, with your Honor's

MS. BAKER MANNING:

permission, go over into the following week of February, I am quite confident, given the clarity of your Honor's directions, we can find specific times that work for everybody involved to take depositions of these two witnesses. THE COURT: All right. Now, you had a subsidiary

point that you wanted to make about not having depositions of your own. You can have depositions of your own, if you would Do you want it in depositions,

like to have some depositions. or was that simply makeweight? MR. SCHEINFELD: depositions.

No, your Honor.

No.

I would like

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THE COURT:

When are they going to take place? As soon as we receive their

MR. SCHEINFELD:

opposition and learn who -THE COURT: Oh, no, no. You are not going to get

their opposition before all of the depositions go forward on this. MR. SCHEINFELD: Your Honor, we don't know who their

declarants are, so we would like the depositions of their declarants. THE COURT: declarants -MR. SCHEINFELD: THE COURT: Correct. You want the depositions of their

-- before you file your reply? Not necessarily. As long as we have

MR. SCHEINFELD:

a chance to provide a supplemental paper, if necessary, after the reply. THE COURT: Well, what supplemental paper -Yes, your Honor. Yes.

MR. SCHEINFELD: THE COURT: "supplemental paper."

You do not want a reply, you want a Is that a ruse by another name? No, your Honor, it is not.

MR. SCHEINFELD: THE COURT:

It is a reply, right? It is a reply. Let us call things what they are. If it is possible,

MR. SCHEINFELD: THE COURT:

Okay.

MR. SCHEINFELD:

Yes, your Honor.

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we would like to have the depositions of Google's declarants that are submitted with their opposition papers -THE COURT: Okay. -- before our reply is due. That seems fair to me. That's always been

MR. SCHEINFELD: THE COURT:

All right.

MS. BAKER MANNING: our position, your Honor. THE COURT:

That's fine.

So, now into schedule.

Your reply will

presumably -- your opposition will be presumably after the depositions. MS. BAKER MANNING: THE COURT: Yes, sir; that's our hope.

And your reply or supplemental papers will

be after you have a chance to do your depositions. Now, do I have to set the schedule for you for all of this, the dates of depositions and so on? MS. BAKER MANNING: MR. SCHEINFELD: THE COURT: I don't think so, your Honor.

We will work it out. Now, let us talk

Yes, I hope you will.

about when we are going to have a hearing on this, in light of this contretemps. It seems to me that what Red Bend has done

has bought itself at least another month and, perhaps, more. Realistically, when do you think your opposition will be filed? MS. BAKER MANNING: Well, if I can start with the

hearing, for a moment, your Honor, and then work back to your

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question, we have a rather significant difficulty engendered by this delay with regard to the hearing. Google has made it

clear from the time we were hired in this case that they would like my colleague, William Abrams, to actually argue the preliminary injunction hearing. Mr. Abrams has a month-long

trial that starts the beginning of March and will consume the entirety of the month of March. So, in order for Mr. Abrams to

be available, given his trial conflict, we would need to be looking at April. THE COURT: Well, I have to tell you, I am indifferent

to Mr. Abrams' trial schedule; so, we are not scheduling it to accommodate Mr. Abrams' or your client's preferences, not a preliminary injunction that you are defending. MS. BAKER MANNING: THE COURT: terms. Okay.

So, now let us talk about it in functional

When, realistically, do you think you will have your

opposition? MS. BAKER MANNING: If we can take the witnesses by --

because we are going to be going into that second week of February -- we could file our paper certainly March 5th. THE COURT: March 5th? I'm sorry; I'm looking at the

MS. BAKER MANNING: 12th.

I could do February 26, which would be two weeks later,

which would be approximately the same kind of time frame that we were looking at between when we were already planning on

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taking the deposition and the filing of our paper. THE COURT: All right. And then how long is it going

to take you to get to your depositions after looking at their declarations? MR. SCHEINFELD: THE COURT: A week later.

In that week of the -March 8th.

MR. SCHEINFELD: THE COURT:

March 8th you would do your supplemental

papers, or you would be doing depositions? MR. SCHEINFELD: THE COURT: Take the depositions of Google's -And then when would your

All right.

"supplemental paper," to adopt the term of art here, be? MR. SCHEINFELD: THE COURT: March 24th. Now, there is a missing

March 24th.

person in this; that is me.

I have to review these papers,

supplemental or not, and it takes me sometimes a little bit of time to do that. I will set it for April 14th at 2:00. Now, you had some additional observations you wanted to make regarding this matter? MR. SCHEINFELD: The only question I would have is

whether or not you would hear live testimony on April 14, but you made it clear at the last conference -THE COURT: I do not intend to. Okay. That's fine.

MR. SCHEINFELD:

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THE COURT:

The parties can ask me to, or say that,

having reviewed their declarations they think live testimony is appropriate, but I am going to focus on the declarations on the 14th. It may be that I will say I cannot fairly rule on the

Motion for Preliminary Injunction until I hear live testimony, but the default here is the assumption that it is going to be done on the papers. MR. SCHEINFELD: THE COURT: Okay. That is fine, your Honor.

But is there anything else that you wanted

to observe for the record or for other purposes? MR. SCHEINFELD: apology, your Honor. THE COURT: I am sorry. I did not mean to interrupt No. Other than to extend, again, my

The best apology is that we get this done in an orderly I intend to get to

fashion without this kind of gamesmanship.

the merits of the claims and have the opportunity for both sides to have an opportunity to confront the persons who are offering evidence against them. Mr. Cloherty? MR. CLOHERTY: Your Honor, I just want to join in the

apology, because I am responsible for that mistake, too. THE COURT: I welcome anyone in the courtroom who

would like to apologize to me, but I welcome more than anything else getting to the merits of this, and I think I have made that clear.

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So, now we have a new schedule here. The next issue is this protective-order issue. say that I am allowing Google's Motion, No. 31, to Compel Depositions, in accordance with the schedule that I have established today. Now, the joint motion with respect to Protective Order and Ruling on Outstanding Issues, I guess there are several things that I do not understand. Is there nobody in the Boston Let me

area or, I guess, in New York City who reads Hebrew and can translate it? What is the deal with sending documents in I do

Hebrew that nobody can read and then saying, Trust me? not understand that. I do not understand it from the

defendant's point of view, that you cannot get a Hebrew translator. This kind of silliness -- Let me tell you, if you think this has been an unpleasant experience, try some more of this, and there will be less restraint shown with respect to the posturing of the parties on this. But enough of Hebrew. MR. SCHEINFELD: protective order? THE COURT: the issues. Yes. But let me tell you what I see is Your Honor, may I be heard on the

I am told that the Google in-house counsel are I would want a representation that they

working on litigation.

were not involved in competitive decision-making in this area,

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and I would want them to appear pro hac vice. MS. BAKER MANNING: THE COURT: That's fine, your Honor.

Because I intend to have full control over

whoever it is who gets access to this information, and if it is a lawyer and a lawyer who is directing clerical staff, I mean that any violation of it will survive this case and become contempt. That is my view with respect to it. I do not

understand why there was not some inclusion of lack of involvement in competitive decision-making in this area. MS. BAKER MANNING: They have never -- frankly, the

issue didn't come up until the reply papers, but the people that we are interested in disclosing and having active in the team are not competitive decision-makers. That is not an issue

at all, and we could certainly have them appear pro hac vice. THE COURT: Red Bend people. Now, let us turn to the question of the

Are they actively involved in the litigation?

What are they doing? MR. SCHEINFELD: any in-house counsel. THE COURT: That is not the question I asked. You Your Honor, Red Bend does not have

say, If they get three, we would like three too. MR. SCHEINFELD: No. I'm sorry, your Honor.

There are different categories of confidential information. The first category of confidential information is

confidential, and we did not object to Google's having three

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in-house counsel see that information.

We did object to

Google's having three in-house counsel for highly confidential information. Google has objected to have Iris Pappas, who is an Israeli lawyer, counsel to Red Bend, see any kind of confidential information. Is Iris Pappas a patent lawyer? No,

she is not, she is not a patent litigator, but she is counsel to Red Bend, and she has provided and continues to provide counsel to Red Bend. In terms of highly confidential

information, we thought it would be appropriate to be able to use Iris Pappas as counsel, since we would not be able to communicate -THE COURT: What does that mean? I guess I need to I can understand

understand more fully what is involved here.

in-house counsel working to support the efforts of privately retained counsel in the litigation of the case and providing expertise that presumably in-house counsel would have, so long as there is no -- or we minimize the dangers of competitive mischief. But I do not understand what Ms. Pappas adds to the mix here, if she does not practice in the intellectual property area. MR. SCHEINFELD: She does practice in intellectual

property transactions, not litigation, your Honor. THE COURT: What does she add to the mix? I guess I

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just do not understand. MR. SCHEINFELD: I would submit, your Honor, that what

she adds to the mix is what Google's in-house counsel adds. They have an expertise regarding Google's business. an expertise regarding Red Bend's business. Bend's business is about. management. THE COURT: decision-making? MR. SCHEINFELD: No, she is not, your Honor. In fact, Well, is she involved in competitive Iris has

She knows what Red

She's very close with the

I was just in Israel the last few days, and I met with her on Sunday, and we discussed this case. And she has signed a

declaration, your Honor, indicating what type of background she has, that she is not involved in Red Bend's competitive decision-making process. She also speaks about the ethics

rules in Israel as well submitting to the personal jurisdiction of the court. But, your Honor -Just a moment. How are they enforceable You will see that

THE COURT: here?

What jurisdiction do I have over it?

I said that these three decision-makers or three in-house counsel from Google had to be pro hac vice, and that is so that I can capture their hearts and minds through their role here in terms of officers of the Court. Now, I have no reason to believe that there is any material difference between the ethics requirements of

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attorneys practicing in Israel than in the United States, but the question of who gets to enforce a violation is a touchy subject for me, and I do not know how I have jurisdiction over Ms. Pappas if she violates that. I suppose I can take it out

on Red Bend, but that is not the way I ordinarily like to proceed. I am more interested in making sure that the actual

malefactor is subject to sanction. MR. SCHEINFELD: Your Honor, I am not an expert in

foreign judgments, but there is a Foreign Judgments Act of 1958, which seemingly would make judgments here enforceable in -THE COURT: jurisdiction over it? What is the judgment? What do I do? How do I have

I say I am going to have Does that

a contempt proceeding, and she does not show up.

mean that I can issue a judgment of contempt enforceable in the Israeli courts? say. MR. SCHEINFELD: point. And nor do I, your Honor, on that We will I do not know enough about that to be able to

I do not want to belabor this point anymore.

survive without Iris Pappas seeing highly confidential information. So, I am not sure at this point, given where we

are, given that we should move along to the merits, that it is necessary that we spend more time arguing over this point. THE COURT: Well, what I am prepared to do is enter an

order that includes I believe it is paragraph 10b, with an

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amendment that includes requirements that each of the counsel subject themselves to the jurisdiction of the Court by appearing pro hac vice, and that there be a representation that they are not involved in competitive decision-making. Now, with respect to Red Bend, I am prepared to consider something on a parity kind of basis, but I have to be satisfied that I am going to have control over persons who are going to receive this information. factors that are in play. Here, I have got two

Number one, apart from long-term

relationship with Ms. Pappas and the company and involvement, to some degree, in intellectual property matters but not in litigation, I am not sure that there is any way that I have a measure of enforcement over her compliance with the order. I can be persuaded otherwise, I will consider a further amendment to the Protective Order to deal with that. Second, with respect to specific matters, which, if counsel sees them and says, We need the assistance of someone in-house here by way of an attorney, I will look at that as a further order with respect to the Protective Order. But to put If

the Protective Order in place now, I may adopt the 10b, that is, the Google proposal with the two amendments that I have added. I will expect to have submitted to me by this afternoon

a clean copy of this for me to sign. MR. SCHEINFELD: One supplemental point, your Honor.

On the confidential level, each side is allowing, I believe,

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two business people to see the confidential information of the other side. I would like to raise that to three business

people, your Honor, on the confidential level, because we do not have -THE COURT: Point me to the paragraph. I believe it's 6.

MS. BAKER MANNING: THE COURT: 6h?

MS. BAKER MANNING:

I believe it's 6c that

Mr. Scheinfeld is referring to. MR. SCHEINFELD: THE COURT: 6c, your Honor.

Okay. Considering that we do not have

MR. SCHEINFELD:

in-house counsel, we thought it would be appropriate and fair. THE COURT: Any objection to that? No, your Honor. So, you will submit a modified

MS. BAKER MANNING: THE COURT:

All right.

version that changes 6c to provide up to three employees of a party who either have responsibility for making decisions, that is the language of 6c, and 10b with the modifications that I have indicated here and the further provisos that I have indicated. And I am, correspondingly, not making a change to

10i -- or introducing 10i. Now, is there anything else? MS. BAKER MANNING: MR. SCHEINFELD: Not from Google, sir.

Not from Red Bend, your Honor.

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THE COURT:

Okay.

So, I think I have, perhaps, made I intend to deal with this

myself clearer than I was before.

on the merits, but on the merits the parties have to have an opportunity to confront in a reasonable time frame those who are offering evidence against them. So, the depositions are, I

think, absolutely necessary, and we take the time to get it right. MR. SCHEINFELD: I appreciate that, your Honor. Thank you, sir.

MS. BAKER MANNING: THE COURT: THE CLERK:

We will be in recess. All rise.

(The Honorable Court exited the courtroom at 11:30 a.m.) (WHEREUPON, the proceedings adjourned at 11:30 a.m.)

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CERTIFICATE

I, Brenda K. Hancock, RMR, CRR and Official Reporter of the United States District Court, do hereby certify that the foregoing transcript constitutes, to the best of my skill and ability, a true and accurate transcription of my stenotype notes taken in the matter of Red Bend Software, Inc., et al v Google, Inc., No. 1:09-cv-11813-DPW.

/s/ Brenda K. Hancock Brenda K. Hancock, RMR, CRR Official Court Reporter