Novak v. Overture Services, Inc. et al

Filing 59

Novak v. Overture Services, Inc. et al

Doc. 59

Case 2:02-cv-05164-DRH-JO

Document 59

Filed 05/10/2004

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ROBERT NOVAK, d/b/a Pets Warehouse and PetsWarehouse.com, Plaintiff, -vOVERTURE SERVICES, INC, GOOGLE, INC., INNOVATIVE MARKETING SOLUTIONS, INC., d/b/a KANOODLE.COM, NEEPS INC d/b/a THEFERRETSTORE.COM, JOHN HOLDEFEHR d/b/a JUDGE-FOR-YOURSELF.COM, BIOCHEMICS, INC. d/b/a DOCTORDOG.COM, Defendants. GOOGLE, INC., Counter-claimant, -vROBERT NOVAK, d/b/a Pets Warehouse and PetsWarehouse.com, Counter-defendant. BACKGROUND

No. CV 02 5164 (DRH) (WDW)

DISCOVERY PLAN PROPOSED BY DEFENDANT GOOGLE

Plaintiff and Counter-defendant Robert Novak ("Plaintiff") filed his Complaint on September 24, 2002 Plaintiff unsuccessfully sought a stay of these proceedings in May 2003, and at no point sought to conduct a 26(f) conference with Defendant and Counter-claimant Google Inc. ("Google"). There has not been a Case Management Conference in this case. In April 2004, following Google's successful motion to dismiss the first count of Plaintiffs' complaint, Google's counsel contacted Plaintiff to schedule a conference concerning discovery between Google and Plaintiff. On April 27, 2004, counsel to Google and Mr. Novak participated in a telephone conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure. Mr. Novak requested that Google's counsel forward to him a draft discovery plan for
DISCOVERY PLAN PROPOSED ... Case No. CV 02 5164
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his review. Counsel forwarded a draft joint discovery plan to Mr. Novak by fax on May 7, 2004. On May 10, 2004, counsel and Mr. Novak again spoke by telephone; Mr. Novak stated that he did not agree with the substance of the proposed discovery plan and that he did not agree that a plan needed to be filed, jointly or otherwise, no later than May 11, 2004, as required by Rule 26(f). Mr. Novak has set forth his positions in a letter to Google's counsel dated May 10, 2004, a copy of which is attached.1 Mindful of the Court's rules and in accordance with Rule 26(f), Google is nevertheless submitting its proposed discovery plan and requests the Court incorporate it into its Case Management Order in this case. DISCOVERY Initial Disclosures. As required by 26(a), Google will make Initial Disclosures no later than May 11, 2004. Mr. Novak indicated by phone on May 10 that he does not intend to make any Initial Disclosures by May 11, and did not indicate when his initial disclosures would be forthcoming. Subjects of discovery. The subjects on which discovery may be needed include: · · · · Communications between Plaintiff and Google; Plaintiff's alleged rights to the PETS WAREHOUSE trademark; Alleged use by Google of Plaintiff's PETS WAREHOUSE trademark; Google's sale of advertising to co-defendants Neeps, Inc. d/b/a The FerretStore.com, John Holdefehr d/b/a Judge-for-Yourself.com, and Biochemics, Inc. d/b/a DoctorDog.com in connection with search queries on www.google.com;

Plaintiff has suggested that there should be a consolidated discovery plan in this matter. Google certainly has no objection to having its proposal adopted by the other defendants, and believes it affords a reasonable (perhaps generous) schedule for resolving the matter.

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Google's alleged sale of advertising keyed to search queries on www.google.com for the phrase "PETS WAREHOUSE";

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Actual and likelihood of confusion, if any, relating to Plaintiff and arising from Google's alleged use of Plaintiff's trademark;

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Harm, if any, suffered by Plaintiff as a result of Google's allegedly improper actions; and

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Plaintiff's purchases of advertising keyed to search queries generally.

Timing of discovery. Discovery should be completed as follows: Last Day to Amend Pleadings or Join Parties Close of Fact Discovery Simultaneous Exchange of Expert Reports Simultaneous Exchange of Rebuttal Expert Reports Close of Expert Discovery Filing of Dispositive Motions Pretrial conference June 22, 2004 September 13, 2004 October 13, 2004 November 29, 2004 January 14, 2005 February 15, 2005 May 16, 2005

Discovery need not be conducted in phases. Discovery should be limited to the subjects above. Limitations on Discovery. Google proposes that Google and Mr. Novak limit the total number of percipient witness depositions they may take in this case to three each (as between these parties only). Mr. Novak would be free to reach independent limitations with other Defendants. Google otherwise agrees that discovery in this case should be governed by the Federal Rules of Civil Procedure and the Local Rules of this Court. Dated: May 10, 2004 By: /s/ David H. Kramer David H. Kramer (DK 4619) John L. Slafsky (JS 3212) WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Tel.: [phone] Fax: [phone] Attorneys for Defendant Google Inc. -3-

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CERTIFICATE OF SERVICE I hereby certify that on May 10, 2004, I caused the Discovery Plan Proposed by Defendant Google to be dispatched via Federal Express to the following: ROBERT NOVAK Plaintiff Pro Se 1550 Sunrise Highway Copaigue, New York 11746 And Discovery Plan Proposed by Defendant Google to be dispatched via U.S. Mail to the following: Paul Perlman, Esq. HODGSON RUSS LLP Attorneys for Marketing Solutions, Inc. d/b/a Kanoodle.com One M&T Plaza, Suite 2000 Buffalo, New York 14203 Suzanne Berger, Esq. BRYAN CAVE LLP Attorneys for Overture Services, Inc. 1290 Avenue of the Americas New York, New York 10104 David S. Fleming, Esq. Philip A. Jones, Esq. Eric W. Gallender, Esq. BRINKS HOFER GILSON & LIONE Attorneys for Overture Services, Inc. NBC Tower, Suite 3600 455 N. Cityfront Plaza Drive Chicago, IL 60611 John Holdefehr d/b/a judge-for-yourself.com 185 Lakeshore Drive Oakland, New Jersey 07436 Arthur J. Liederman, Esq. Matthew B. Anderson, Esq. MORRIS, MAHONEY & MILLER, LLP Attorneys for Biochemics, Inc. d/b/a/ DOCTORDOG.COM 17 State Street ­ Suite 1110 New York, New York 10004 /s/ Deborah Grubbs Deborah Grubbs
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