SM Kids, LLC v. Google LLC et al

Filing 159

ORDER granting in part and denying in part 153 Letter Motion for Local Rule 37.2 Conference. Application GRANTED IN PART and DENIED IN PART. Google now has provided dates certain for the four depositions at issue. (See ECF No. 157.) The deposit ions shall go forward on the dates provided by Google unless Plaintiff's counsel is unavailable or the parties agree otherwise. In either case, the depositions still shall occur prior to the close of fact discovery. Google's related request for an extension of the fact discovery deadline (see id.) is granted and the Court adopts the proposed schedule set forth in ECF No. 157-1. SO ORDERED.. (Signed by Magistrate Judge Stewart D. Aaron on 12/17/2020) (ks)

Case 1:18-cv-02637-LGS-SDA Document 159 Filed 12/17/20 Page 1 of 3
21st Floor
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12/17/2020

John M. Magliery
212.603.6444 tel
212.379.5212 fax
[e-mail]

Application GRANTED IN PART and DENIED IN PART. Google
now has provided dates certain for the four depositions at
issue. (See ECF No. 157.) The depositions shall go forward on
Via ECF
the dates provided by Google unless Plaintiff's counsel is
unavailable or the parties agree otherwise. In either case, the
The Honorable Stewart D. Aaron
depositions still shall occur prior to the close of fact discovery.
United States Magistrate Judge
Google's related request for an extension of the fact discovery
Daniel Patrick Moynihan United States Courthouse deadline (see id.) is granted and the Court adopts the
500 Pearl Street
proposed schedule set forth in ECF No. 157-1. SO ORDERED.
New York, NY 10007
Dated: December 17, 2020

December 11, 2020

Re:

SM Kids, LLC v. Google LLC, et al., Case No. 18 Civ. 2637 (LGS) (SDA)

Dear Judge Aaron:
We represent Plaintiff SM Kids, LLC (“SM Kids”) in the above-captioned matter. We write
pursuant to Your Honor’s Individual Rule II.B to request that the Court schedule a discovery
conference on a motion to compel certain depositions of Defendants Google LLC, Alphabet Inc.,
and XXVI Holdings Inc. (collectively, “Google”) already ordered by the Court, to proceed on dates
certain. As set forth below, Google has failed and refused to commit to any of the dates requested
by SM Kids for one week, after multiple meet and confer sessions and numerous communications
seeking to schedule the depositions, for which only 30 days remain in fact discovery to complete.
On December 3, 2020, this Court issued an order that SM Kids may proceed with four depositions
of Google: a Rule 30(b)(6) deposition; Timothy Alger; Adam Barea; and one of the following
individuals: Malik Ducard, Ruchi Bezoles, or Pavni Diwanji. (See Dkt. No. 145.)
On December 4, 2020, SM Kids sent an e-mail to Google with proposed dates for the four witnesses
and asked to meet on confer on this (and other) issues. (See Exhibit 1.) Google agreed to meet and
confer on December 7, 2020. (See id.) During that meet and confer, however, counsel for Google
explained that he was not prepared to discuss the proposed deposition dates and suggested that the
parties meet and confer on that topic on the following day, December 8. Counsel for both parties
subsequently met and conferred on December 8, but inexplicably, counsel for Google again
represented that he was unable to discuss the deposition dates for Google’s witnesses; he could
neither agree to SM Kids’ proposed dates nor offer any alternative dates. Counsel for Google
represented that he would respond regarding witness availability by either the end of the day or no
later than the following one. After not hearing from counsel for Google on the next day, December
9, undersigned counsel asked for an answer by e-mail. On December 10, counsel for Google again
promised to respond by the end of the day. (See Exhibit 2.) Counsel for Google failed to fulfill that
promise, instead responding on December 11 in an e-mail that failed to acknowledge or address SM
Kids’ proposed deposition dates. (See Exhibit 3.) On December 11, undersigned counsel spoke
with counsel for Google on the telephone, during which Google once again did not confirm any

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December 11, 2020
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dates for depositions of its witnesses, nor explain why the dates were not provided, merely saying
that Google needed more time and would respond next week.
There is now only one month left in fact discovery, a time period that includes multiple holidays.
SM Kids has met and conferred with Google on this topic three times and followed up with multiple
e-mails. Meanwhile, SM Kids has offered dates for Stephen Garchik, Tammy DePaolis, and Bobby
Friedman, all of which are confirmed. Google cannot be permitted to take depositions of SM Kids
witnesses while declining to provide dates for its own depositions, already ordered by the Court.
Given the brief period remaining in discovery, SM Kids respectfully requests that the Court order
depositions of the Google witnesses to take place on dates certain, as follows:
Timothy Alger on December 17;
Google’s 30(b)(6) witness on December 21;
Adam Barea on December 23; and
Malik Ducard on January 6.
We are grateful for the Court’s attention to this matter.
Respectfully submitted,
Davis Wright Tremaine LLP

John M. Magliery
cc:

All counsel of record (via ECF)

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December 11, 2020
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CERTIFICATION
I hereby certify that the parties met and conferred by phone on this dispute on December 7 and 8,
2020. Cyrus Ansari, Geoffrey Brounell, Christopher Donati, and I attended on behalf of SM Kids.
Ian Shapiro, Jane van Benton, and Charlie Low attended on behalf of Google. On December 11,
2020, I advised Ian Shapiro that if we did not receive confirmation of deposition dates, we would be
at an impasse, and offered to speak by telephone. Mr. Shapiro and I subsequently spoke, but he did
not offer any dates for Google witness depositions, not explain why he could not, only committing
to get back to me next week.

John M. Magliery
Attorneys for Plaintiff SM Kids, LLC