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

Filing 158

***REPLACES # 154 ***RESPONSE in Opposition re 153 Second MOTION to Expedite Motion to Compel filed by Google, Inc.. (Attachments: # 1 Affidavit in Support of Opposition to Function Media's Second Expedited Motion to Compel, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Text of Proposed Order)(Anderson, Carl) Modified on 8/24/2009 (ch, ).

EXHIBIT A

To: Lorraine Morton[[e-mail]]; FW: licensing and damages follow-up Subject : Sent : Thur 6111/2009 12:11:42 AM From: Jason Wolff

Froze : Justin A. Nelson [malito:jnelson@SusmanGodfirey com] Sent: Wednesday, June 10, 2009 5:00 PM - . To: Jeremy Brandon; 3ason Wolff; Chad Walker; Christina D. Jordan; Howard Pollack; Juanita Brooks Cc: Joseph S. Grinstein; Max L Tribble; Stacy Schulze

Subject : FM: licensing and damages fnAow-up

Jason, Howard or others -I wanted to memorialize some of what we've generally discussed (but have not reached final agreement on) regarding further document searches and discovery on damages-related issues as well as discuss some other issues where I want to confirm that we are on the same page so that there is no doubt. In no particular order, here they are:

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 Goggle and/or Larry Page or Sergey Brin has entered with the company or, for example, between Stanford and Google. If 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(b)(6) deposition by a few weeks until these are produced. If Google objects, let's tee up a meet and confer soon. I told you I'd send some authority on licenses. 2. Acquisitions: As we discussed, we would like to obtain basic and confirmatory details 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 1"ASB-141 report or document that similar document that discusses any valuation of the IP 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 IP 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
befbre, even if not used in AdSense. 3. Other Litigation: 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. 4. As mentioned in other emails, we'd like to nail down scheduling for any remaining 30(b){6} topics from the second notice.

5. We've also discussed trying to schedule a call with both damages 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 Tbird Avenue Suite 3800 Seattle , WA 98101 206-516-3867 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.