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 F

From: Sent: To: Cc:

Justin A. Nelson onelsonQSusmanGodfrey.com] Tuesday, August 18, 2009 1:12 PM Amy Candido; Billie D. Salinas; Stacy Schulze; Jeremy Brandon ; Max L. Tribble; Joseph S. Grinstein Google-Function Media ; [e-mail]; [e-mail]; [e-mail]; jrambin@capshawlaw. com; nancy @icklaw.com; [e-mail]; [e-mail]; [e-mail]; otfscarrollQicklaw.com; [e-mail]; [e-mail]

Subject:

RE: Summary of yesterday's evening call

Amy -Sorry for any misunderstanding . Best,
Justin

We are amenable to this expedited schedule.

From: Amy Candido [mailto:[e-mail]] Sent: Tue 8/18/2999 2:56 PM To: Justin A. Nelson; Billie D. Salinas; Stacy Schulze.; Jeremy Brandon; Max L. Tribble; Joseph S. Grinstein Cc: Google-f=unction Media; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'; '[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: "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." 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 parties 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.
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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.
Indeed, 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 S 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

-----original Message----From : Justin A . Nelson (mailto : jnelson @SusmanGodfrey.com] Sent : Tuesday, August 18, 2069 9:20 AM To: Billie D. Salinas.; Stacy Schulze; Jeremy Brandon ; Max L . Tribble; Joseph S. Grinstein Cc: Google - Function Media; Google - FM-Exchange @ fr.com ; [e-mail]; ccapshaw@ capshawlaw . com; jrambin@capshawlaw . com; nancy@icklaw . com; [e-mail]; ederieux @ capshawlaw . com; gil@gillamsmithlaw . com; otiscarroll @ickiaw . com; [e-mail]; katherine @ icklaw.com Subject : FM: Summary of yesterday ' s evening call

Billie/Amy -on yesterday evening's call, we discussed the following:
1. Interrogatory 11 -- I told you that we wanted to be able to track the value of a pre-IPo 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 i nformation might take a bit to produce . We tentatively agreed that you would have this information by Friday, August 28. 2. Acquisitions price list / valuation reports -- I told you that we needed either the price list (including whether the transaction was in stock) or the valuation reports 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 Googie ' 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.

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

FUNCTION MEDIA, L.L.C., V.

Civil Case No. 2:07-CV-279 (CE)

JURY TRIAL DEMANDED GOGGLE , INC. AND YAHOO!, INC.

DECLARATION OF BILLIE D. SALINAS IN SUPPORT OF GOGGLE INC.'S OPPOSITION TO FUNCTION MEDIA'S SECOND EXPEDITED MOTION TO COMPEL

I, Billie D . Salinas, declare: I am an associate at Quinn Emanuel Urquhart Oliver & Hedges LLP, counsel for defendant Google, Inc. ("Google") in this litigation. The facts stated herein are true of my own personal knowledge and, if called as a witness, I could and would testify competently thereto. 1. Attached as Exhibit A is a true and correct copy of a June 11, 2009 E-mail from

Justin A. Nelson to Jeremy Brandon. 2. Attached as Exhibit B is a true and correct copy of an August 3, 2009 E-mail from

Justin A. Nelson to Amy H. Candido. 3. Attached as Exhibit C is a true and correct copy of an August 4, 2009 Letter from

Amy H. Candido to Justin A. Nelson. 4. Attached as Exhibit D is a true and correct copy of an August 5, 2009 Letter from

Amy H. Candido to Justin A. Nelson. 5. Attached as Exhibit E is a true and correct copy of an August 14, 2009 Letter

from Amy H. Candido to Justin A. Nelson.

01980.51542/3065674.1

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6.

Attached as Exhibit F is a true and correct copy of an August 18, 2009 E-mail

from Justin A. Nelson to Amy H. Candido.

Dated: August 24, 2009

By: /s/ Billie D. Salinas

01980.51542/3065674.1

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on August 24, 2009 to counsel of record in the manner agreed by the parties, via electronic mail.

/s/ Billie D. Salinas Billie Salinas

01980 .51542/3065674.1

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