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 D

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August 5, 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. Goo le, Inc., Civ. A. No. 2007-CV-279

Dear Justin: I write to follow-up on various issues from our meet and confer on Monday. 1) Relevant EMG and GPS Notes and Presentations: We have reviewed the list of GPS presentations and identified all relevant presentations. Apparently, while there is a list of GPS presentations, there is no central repository of the presentations themselves. Accordingly, Google is in the process of collecting'the identified, relevant presentations and we will produce them to you on a rolling basis, as available, beginning the end of this week or early next week. I cannot agree to provide you with a copy of the list of GPS presentations because of the highly sensitive nature of the list and the privileged nature of some of the entries. However, having reviewed the list myself, I can assure you that we have identified for collection any presentations that are remotely relevant to the accused products and other issues in this case. For example, there was only one entry that, from its short description, had any conceivable relevance to acquisitions and I identified that item for collection. Similarly, if there were entries that from

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their short description could possibly be relevant, I identified those entries for collection and review. We are still working on potential ways to identify additional sources of EMG presentations, particularly EMG presentations about acquisitions or financial information , to the extent that these have not already been produced.

2) Relevant Board of Directors Meeting Minutes:
You asked me to look into whether Google can reasonably search for and produce relevant presentations to the Board of Directors . I am informed that, unlike the minutes , there is no central repository of such presentations . However, we believe that any such presentations will be noted in the meeting minutes. Accordingly , we propose that our discussion regarding presentations should be put on hold until we are able to review the meeting minutes.

3) Acquisitions Related Documents:
While we believe that such information is irrelevant , Google will produce the price information for each acquisition . We should be able to produce that information to you by the end of this week or early next week.

We will send you a separate letter regarding narrowing down the sub- set of 17 acquisitions for purposes of additional document collection regarding that sub -set of acquisitions. When we talk later today, we can discuss some specific issues regarding collection of documents related to the sub-set of acquisitions. We have not heard back yet regarding the proposed dates for Mr. Zoufonoun's deposition. 4) Financial Documents:
With respect to "Everest information," would you please identify the deposition testimony you referenced regarding this information? We are continuing to look into your other requests. 5) Prior Ads-Related Litigation Documents: I have been informed that all prior ads-related litigation deposition transcripts , declarations and expert reports to date have now been provided to our document vendor for processing . You have agreed that Google does not need to collect additional ads-related litigation documents. 6) Ads-Related Patent Applications: 1 have been informed that all ads-related patent applications to date have now been provided to our document vendor for processing. I will let you know when I have a better sense of what that means in terms of when you can expect production to be complete.

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As discussed, I will give you a call at 3 pm today. Very truly yours,

Isl Amy H. Candido

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