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

5

---Orig inal Message----From : Amy Cand ido [mailto: amycand ido@qu in nemanuel.com] Sent: Tuesday, August 18,2009 12:56 PM To: Justin A. Nelson; Billie D. Salinas; Stacy Schulze; Jeremy Brandon; Max L. Tribble; Joseph S. Grinstein Cc: Google-Function Media;'[e-mail]';'[e-mail]'; '[e-mail]'; [e-mail]'; '[e-mail]'; 'charley@ pbatyler. com';'[e-mail]';'gil@gil lamsm ithlaw.com' ; '[e-mail]'; '[e-mail]'; '[e-mail]' Subject: RE: Summary of yesterday's evening call

Justin,

Your email is inaccurate in a few respects. First, I did not state that I understood how you and a Court could consider the price information for all of Google's acquisitions to be relevant. Rather, I said that I understand how broadly the Court may construe what is relevant. As you know, it is our belief that price information for all of Google's acquisitions, irrespective of what was acquired and when, is irrelevant. The only acquisitions that have any conceivable relevance -- and even then, we do not think they are relevant under Georgia Pacific -- are acquisitions of ads-related technologies and we have produced that information to you. Second, you state: "l agreed to refrain from filing a Motion tomorrow on this while you checked again with the client on producing this in exchange for your agreement on an expedited schedule to hear this at Markman." This is inaccurate. You agreed to refrain from filing a Motion today while I checked again with the client in the hopes that we might be able to avoid unnecessary motion practice. I was very clear that I could not agree on the phone last night to an expedited schedule. You proposed what you had in mind for an expedited schedule -- for example, the pañies each submitting simultaneous papers on Monday. I told you that if we were able to agree to an expedited schedule, it would have to involve FM filing something first and Google having an opportunity to respond. The example that we discussed was FM filing an Opening Brief on Friday and Google filing a response on Monday. But, I did not agree to any such schedule. I explicitly said I would discuss it with my client - along with the substantive issue -- and get back to you tonight. lndeed, I am now in a position to confirm that Google will not agree to produce the price information for all acquisitions (or to produce the valuation reports for all acquisitions), for the reasons stated previously. We will agree to the following expedited schedule for your motion to compel: by end of day tomorrow, FM files its motion to compel limited to 5 pages; and by end of day Friday, Google files its opposition to the motion to compel limited to 5 pages. There will not be any reply or sur-reply briefs. This schedule is necessary given travel to the Markman hearing next week. Please confirm this schedule is acceptable to FM.

Thanks, Amy
-----Orig inal Message----From : J usti n A. Nelson [mailto:[e-mail]] Sent: Tuesday, August 18, 2009 9:20 AM To: Billie D. Salinas; Stacy Schulze; Jeremy Brandon; Max L. Tribble; Joseph S. Grinstein Cc: Google-Function Media; [e-mail]; [e-mail]; ccapsh aw@ca psh awlaw. com ; j ra m bi n @ capshawlaw. com ; na ncy@ icklaw. com ; [e-mail]; [e-mail]; [e-mail]; otisca rrol l@ icklaw. com ; rcbu nt@ pbatyl er. com ; katheri n e@ icklaw. co m Subject: FM: Summary of yesterday's evening call

Billie/Amy -On yesterday evening's call, we discussed the following:
11 -- I told you that we wanted to be able to track the value of a pre-lPO share, including any splits, dividends, etc. You told me that you would try to obtain this information, and that no motions practice was necessary. You told me this information might take a bit to produce. We tentatively agreed that you would have this information by Friday, August 28.

1. lnterrogatory

2. Acquisitions price lisVvaluation repoÉs - I told you that we needed either the price list (including whether the transaction was in stock) or the valuation repofts for the list of transactions, and that this fell squarely within the Georgia-Pacific factors. I also stated that we have been asking for the valuation reports for the beginning, that we were willing to accept a price list to ease Google's alleged burden, but that it now seemed easier to simply produce the valuation reports given that Google would have to recreate a price list. I said that I intended to file a motion tomorrow on this given the prior meets and confers. You stated that you were still trying to obtain client approval for this, that you did not think that the documents were relevant under Georgia Pacific, but understood how we and a court could think they were relevant. I agreed to refrain from filing a Motion tomorrow on this while you checked again with the client on producing this in exchange for your agreement on an expedited schedule to hear this at Markman. I suggested having simulataneous briefs of a paragraph or page long or so due in a joint filing to tee this up for hearing on Markman day. You stated that 1 page was too short. I suggested 5 pages. You suggested that the Opening Brief be due on Friday and the Responsive Brief due on Monday. I agreed to that schedule.

3. Depositions -- We offered September 21 for Hasan and either Sep 28 or 29 for Burke.

You are checking on other dates, and stated that you will give them to us on a rolling basis. I emphasized the urgency of getting us dates and nailing down a schedule.

From: Billie D. Salinas [mailto:[e-mail]] Sent: Mon B/1712009 11:36 PM To: Stacy Schulze; Justin A. Nelson; Jeremy Brandon; Max L. Tribble; Joseph S. Grinstein Cc: Google-Function Media;'[e-mail]';'[e-mail]'; '[e-mail]'; [e-mail]'; '[e-mail]'; 'cha rl ey@ p batyl er. com' ;'ed erieux@ ca ps hawlaw. com' ;'g l@ g il la msm ith law. com' ; '[e-mail]'; '[e-mail]'; '[e-mail]' Subject: Mr. Zoufonoun's deposition
i

Justin,

Amin Zoufonoun is available to be deposed on September 1 at Quinn's office in San Francisco, Please let me know if that date is acceptable to you.

Thanks,

Billie