Function Media, L.L.C. v. Google, Inc. et al

Filing 153

Second MOTION to Expedite Motion to Compel by Function Media, L.L.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Text of Proposed Order)(Nelson, Justin)

EXHIBIT

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From: Justin A. Nelson Sent: Wednesday, June 10, 2009 8:00 PM To: Jeremy Brandon; 'Jason Wolff; 'Chad Walker'; 'Christina D, Jordan'; 'Howard PollacK; 'Juanita Brooks'
Cc: Joseph S. Grinstein; Max L. Tribble; Stacy Schulze Subject: FM: licensing and damages follow-up

Jason, Howard or others -wanted to memorialize some of what weVe generally discussed (but have not reached final agreement on) regarding further document searches and discovery on damagesrelated issues as well as d¡scuss some other issues where I want to confirm that we are on the same page so that there is no doubt. ln no particular order, here they are:
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1. License Agreements: Can you please confirm that you have produced all Google's
(and its officers and directors') license agreements regarding intellectual property (including any deals by which Google pays another provider for content or shared revenue related to content provided by a third party, copyright, trademark, and of course patent licenses). We expect that this would include, for example, any licenses that Google and/or Larry Page or Sergey Brin has entered with the company or, for example, between Stanford and Google. lf we do not have this material (and it appears that we do not have some of this), we should discuss whether it makes sense to delay the licensing 30(bX6) deposition by a few weeks until these are produced. lf Google objects, let's tee up a meet and confer soon. I told you I'd send some authority on licenses.

regarding all the acquisitions Google has entered into. For some of these, a confirmation of price, amount, technology, and whether any patents were purchased should be sufficient in chart form. We'd also like, however, any FASB-141 report or document that similar document that discusses any valuation of the lP or patents at the deal's conclusion. For others, including all those related to internet advertising, AdSense, or AdWords in any manner, we'd like to see these FASB-141 or equivalent docs plus any internal deal documents, including any presentations or analysis to or by the EMG or others within Google or any analysis performed by an investment bank or others about the purchase. We are limiting this to discussions of lP and the technology involved.We'd also like to see in more depth Google's or Google's advisers' analysis of deals from 2003 or before, even if not used in AdSense.
I know you and Jeremy have discussed this to some degree involving Overture, but we'd like to see all depositions, expert reports on damages, admissions, responses to interrogatories, affidavits, and declarations in litigation involving the accused products. This would include Overture but also would encompass, for example, the Digital litigation.
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2. Acquisitions: As we discussed, we would like to obtain basic and confirmatory details

3. Other Litigation:

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4. As mentioned in other emails, we'd like to nail down scheduling for any remaining
(bX6) topics from the second notice.

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experts and a Google employee regarding revenue that we would treat as confidential. Further to this, you stated that Google does not keep much of the data in the ordinary course of business, but that the underlying data is kept. We discussed ways to resolve this problem, and hopefully we'll be able to set up a call in a couple weeks.
Best,
Justin A. Nelson Susman Godfrey 1201 Third Avenue Suite 3800 Seattle, V/A 98101 206-sr6-3867

5. We've also discussed trying to schedule a call with both damages

This message is intended only for the people to whom it is addressed and is intended to be a confidential attorney-client communication. If this message is not addressed to you, please delete it and notify me.

From: Jeremy Brandon Sent: Monday, June 08,2009 4:29PM To: 'Jason Wolff; 'Chad Walker'; 'Christina D, Jordan'; 'Howard Pollack'; 'Juanita Brooks'
Cc: Justin A. Nelson; Joseph S. Grinstein; Max L. Tribble; Stacy Schulze

Subject:
Counsel,

FM

Please confirm one way or the other whether Google has searched or will search the documents/files of the following individuals and groups: (1) Susan Wojcicki; (2) Eric Schmidt; (3) Sergey Brin; (4) Larry Page; (5) [e-mail]; (6) Tom Hutchinson; (7) wikis and/or listserve groups related to the Accused Products or patenting, including for example the "competitor wiki"; (8) Kripa Krishnan; (9) Tracy Wilk; and (10) Vishal Sharma. Based on our review of the documents produced to date, we've now confirmed that each of these individuals/groups possesses discoverable information. lf you disagree, please provide dates for a meet and confer on a motion to compel.

l've attached for service a 30(bX6) Notice re knowledge of FM patents/apps and document custodian/search issues. This notice replaces Topic 4 in the First 30(bX6) Notice.
Regards, ieremy

8/19/2009