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 E

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August 14, 2009

VIA ELECTRONIC MAIL

Justin A. Nelson Susman Godfrey LLP 1201 Third Avenue, Suite 3800 Seattle, WA 98101

Re:

Function Media, L-L.C. y. GoogIevInc.,.Civ. A. No. 2007-CV-279 _

Dear Justin: I write to update you on the production of various documents. 1) Relevant EMG and GPS Notes and Presentations: Pursuant to our agreement, we have been producing relevant GPS presentations and are in the process of collecting and producing the remaining relevant GPS presentations . In addition, pursuant to our agreement, we have been searching for, collecting and producing additional relevant EMG presentations on a rolling basis - (See GGL-FM0000001 -0000739 & GGLFM0000740-00021$2.) 2) Relevant Board of Directors Meeting Minutes: We are in the process of reviewing the meeting minutes and will let you know as soon as possible when you can expect production. However, we are aiming to have the relevant meeting minutes produced next week.

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3) Information Regarding All Acquisitions: As we have repeatedly stated, price information for all of Google's acquisitions - irrespective of what assets were acquired (personnel, office space and equipment, etc.) or the similarity of any technology acquired to the technology at issue in this case - is not relevant to any issues in this case . Nevertheless, in an effort to compromise, we agreed to provide you with a list of price information for all of Google' s acquisitions because we thought that such information had already been compiled . However, as I told you during our phone call on Tuesday, we subsequently learned that the information we thought we had is not accurate and compiling such information would be unduly burdensome . Given that this information is irrelevant, unduly burdensome to compile and extraordinarily competitively sensitive, we can no longer agree to provide price information for all of Google's acquisitions. Rather, Google proposes the following compromise : Google will provide more detail regarding the substance of each of the acquisitions, such as more detail regarding the nature of any technology acquired . In light of that additional detail, if Function Media identifies a limited number of additional acquisitions that it believes should be included in the sub-set of acquisitions about which Google has agreed to produce additional information , Google will produce the following documents regarding those acquisitions and the price of those acquisitions: white paper, valuation report, and the final deal documents, to the extent that such documents continue to exist and can be located after a reasonable search. Please let me know if this compromise is acceptable to Function MediaI note that your e-mail today requests that we produce FASB -141 information or FASB-141 evaluations . To my understanding , Google has explained to Function Media numerous times that there is no such thing as a FASB-141 form, evaluation or other compilation of information. What exists, if anything, regarding the price of an acquisition is what I referenced in my proposal above -white papers, valuation reports, and deal documents. 4) Documents Reg the Sub-Set of Acquisitions: We continue to search for presentations and other documents regarding the previously identified sub-set of acquisitions and will produce such documents , to the extent that they exist, on a rolling basis . In particular, documents collected from the corporate development department are being produced on a rolling basis, including a CD of documents that will be produced either today or Monday. 5) Financial Documents: We produced additional financial documents in our August 7 production (GGL-FM00000010000739), and another chunk is in the production queue and should be produced early next week. b) Ads-Related Patent Applications: I have been informed that all ads-related patent applications have now been produced. (See G003-0029833-0279659.) 2

7) Intellectual Ventures: Pursuant to our agreement, Googie has searched for and collected for production all pre- and post-Complaint communications between itself (or its counsel) and Intellectual Ventures (or its counsel) regarding this lawsuit, the patents-in-suit and/or the inventors. The majority of those documents should be produced either today or Monday. 8) Documents from 30(b)(6) Deponents: Pursuant to our agreemen t we will produce documents from Mr. Curtiss related to the 30(b)(6) topics on which he is designated early next week. As noted above, we have been and will continue to produce financial documents relevant to Ms. Bravomolo's 30(b)(6) deposition. 9) Prior Testimony: We will produce prior testimony for Mr. Chen either today or Monday. We have confirmed that there is no prior testimony for Mr. Curtiss, Ms. Bravomolo, Ms. Lai, or Mr. Zoufonoun. Very truly yours,

/s/
Amy H. Candido

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