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 C

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50 California Smet 22nd Floor, San Fr=isoo, California 94131 17EU (415) 875$6(10 PAX. [phone]

August 4, 2009
VIA ELECTRONIC MAIL

Justin A. Nelson Susman Godfrey LLP 1201 Third Avenue Suite 3800

Seattle, WA 98101

Re:

Function Media, L_L.C. v. Google, Inc Civ . A. No. 2007-CV-279

Dear Justin: I write to memorialize our meet and confer yesterday. 1) Relevant EMG and GPS Notes and Presentations: We agreed that Google will review the recently identified list of GPS presentations and produce all relevant presentations, to the extent they exist I stated that I thought we could complete this production by the end of the week or early next week. I also agreed to inquire whether I can provide you with a copy of that list so that you can identify the GPS presentations that Function Media believes should be produced. With respect to relevant EMG notes and presentations, I reiterated that, as Leslie Altherr testified, there is no central repository of EMG notes and presentations to be searched. Instead, Google collected those materials from both the custodial and noncustodial sources about which Ms. Aitherr testified, including Google Fellow Jeff Dean and VP of Engineering Sridhar Ramaswamy. I also explained that additional custodial searches of additional higher-level employees would at most be duplicative of what you already have. Moreover, we agreed that the

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issue of whether the members of the EMG Group's files should be searched was the subject of Function Media's pending motion to compel. You explained that you believe that there are EMG presentations about acquisitions and financial information that were not captured by GoogIe's prior searches. I agreed to investigate whether we could identify such presentations from the files of individuals in groups such as corporate development and finance. 2) Relevant Board of Directors Notes and Minutes: Google agreed to produce the official minutes of the Board of Directors ' meetings that are relevant. You specified that Function Media would like the Board of Directors' meeting minutes regarding financials, patents, AdWords, AdSense and the sub -set of 17 acquisitions that Function Media has previously identifiedYou asked me to look into whether Google can reasonably search for and produce presentations to the Board of Directors on the same subjects identified above . I agreed to look into that and get back to you. 3) Acquisitions Related Documents: For all acquisitions, you asked if Google would produce the price information for each acquisition . While we believe that such information is irrelevant, I stated that I thought Google would be able to produce such information and I would get back ' to you on this issue. With respect to the sub-set of 17 acquisitions that Function Media previously identified, we discussed searching for additional information -- in particular EMG and GPS presentations from individuals within the corporate development group . You told me that you thought this group might be called "OMG." You also asked that we search for documents regarding the patents-in -suit and your client within the corporate development . group . I agreed that Google conduct a reasonable search for and produce additional -documents regarding the identified subset of acquisitions, to the extent they exist. We agreed that it made the most sense to postpone the deposition of Google's 30(b)(6 ) designee on acquisitions, Amin Zoufonoun, until after this additional acquisition information is produced. I agreed to look into additional dates when Mr. Zoufonoun is available . We discussed August 28 or September 8 or 9 as potential dates. 4) Financial Documents: Google agreed to search for and produce Earnings Books, like the Earnings Book marked as an exhibit at Ms . Altherr ' s deposition, to the extent they exist. Google also agreed to search for and produce pre-IPO financials , to the extent they exist. You explained what you meant by "Everest'inforrnation " and I agreed to look into whether that information exists and, if so, whether and in what form it can be produced - You explained that you are primarily looking for documents sufficient to show Google ' s revenues, costs, and 2

margins. I explained that I thought reports containing that information were in the production queue and would be produced later this week. You reiterated your request for presentations about financials, such as a presentation called. "Where a Dollar Goes at Google." I agreed to look into that and get back to you. 5) Intellectual Ventures: We agreed that Google will search for and produce all pre- and post-Complaint communications between itself (or its counsel) and Intellectual Ventures regarding this lawsuit, the patents-in-suit and/or the inventors, and Function Media will produce all pre- and post-Complaint communications between (i) Function Media (or its counsel) and Intellectual Ventures; or (ii) the inventors (or their counsel) and Intellectual Ventures, regarding this lawsuit,.the patents-in-suit and/or the inventors. You told me that you think all communications between Function Media (or its counsel) and Intellectual Ventures and all communications between the inventors (or their counsel) and Intellectual Ventures have been oral, but you agreed to double-check and get back to me_ 6) Documents From 30(6)(6) Deponents: We discussed that the parties may have misunderstood each other previously regarding this issue. To the extent that Function Media was asking for a custodial search for each 30(b)(6) designee, I explained that such a search would be unduly burdensome to complete at this time and highly unlikely to yield any relevant, non-duplicative documents. I explained that we believe that what is important is that the documents relevant to the 30(6)(6) topic at issue be produced before the 30(b)(6) designee is deposed. For example, I explained that, because Mr. Zoufonoun, is an attorney, a custodial search of his files is unlikely to yield many non-privileged documents. Similarly, a custodial search of the email for Google's 30(6)(6) witness on financial information would likely yield results that would be far less relevant than the production of Google's financial information and the burden of conducting such a search at this late date is significant. You agreed to consider whether Function Media thought it needed a custodial search for the upcoming 30(b)(6) deponents. 7) Prior Ads-Related Litigation Documents: I explained the difficulty of collecting these litigation materials from Google's various law firms. I stated that the production of all deposition testimony and declarations would be completed this week and that expert reports would not be far behind. I noted, however, that there may be some stragglers. I explained that Google did not collect interrogatory responses for these cases because it did not realize that Function Media wanted them. We discussed the difficulty of going back to Google's various law firms a second time for these materials . You agreed to discuss whether Function Media would drop its request for interrogatory responses.

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8) Prior Testimony: I explained that there was no prior testimony or declarations for Mr. Zoufonoun or Mr. Curtiss. I stated that Google was unaware of any prior testimony or declarations for Mr. Ranganath, but would need to confirm that fact with Mr. Ranganath . ˇ Further, I stated that Google would endeavor to obtain any prior testimony or declarations from future deposition witnesses and produce any such testimony or declarations as soon as possible. We discussed whether it was necessary for Google to search for and produce any prior testimony or declarations from witnesses on Google's initial disclosures if those witnesses were not going to be deposed . I noted that to the extent that any such deposition testimony was ads-related, it would be captured by the production of deposition transcripts from ads-related cases. You agreed to look into this issue and get back to me. 9) Patent Applications: I explained that, like ads-related litigation documents , Google has to obtain these patent applications from various law firms. I stated that I believe that a large batch of these are in the production queue for production later this week. I explained that we would produce these as quickly as possible on a rolling basis . I will update you on status when we talk again on Wednesday. 10) Overture Litigation Documents: I told you that I thought the Overture litigation documents had been produced on July 8, and that I believed the starting production number was G003-003678. You said you would look into that production and get back to me. 11) License Agreements: I stated that our production of license agreements was complete and agreed to supplement our interrogatory response regarding license agreements shortly. Overall, you expressed your- past frustration about not knowing when to expect various production documents from Google and your desire that Google identify dates by which various items would be produced . I explained that because events outside our control often impact the timing of production, we were reluctant to promise production by specific dates . Ultimately, we agreed that the parties will provide each other with realistic , expected production dates and that the parties would be understanding it from time to time, those dates were not met-

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Please let me know if you have anything to add or if you think I have misrepresented our discussion in any way. Otherwise, we will speak again on Wednesday afternoon, if not sooner, regarding the status of these various issues. Very truly yours, (s/

Amy I-I_ Candido

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