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

Filing 160

Emergency MOTION To Set Deadline for Google to Complete Production and Relief from Meet and Confer by Function Media, L.L.C.. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A-D filed separately under seal, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K, # 10 Exhibit L)(Nelson, Justin)

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

Doc. 160

IN THE UNITED STATES DISTRICT COURT FOR THE E,A.STERN DISTRICT OF TEXAS MARSHALL DIVISION
FUNCTION MEDIA. L.L.C.
Plaintiffs.
vs.
$

$ $ $ $
$ $

Civil Action No. 2007-CY-279

GOOGLE, INC. AND YAHOO, INC.
Defendants.

$
$

JURY TRIAL DEMANDED

EMERGENCY MOTION TO SET DEADLINE FOR GOOGLE TO COMPLETE PRODUCTION AND RELIEF FROM MEET AI\D CONFER
Function Media brings this Motion so that Google can finish its production sufficiently in advance of the discovery deadline for Function Media to review documents and take depositions

before the close of discovery on September 18 and the deadline for expert reports 15 days after

this Court issues its Markman Order. Function Media requests that this Court order Google to
finish production so that Function Media has it no later than September 1,2009. Function Media
has requested a meet and confer on this point, but Google has stated that

it is unavailable for a

meet and confer this week

-

despite the fact that such a meet and confer should not take very

long given the discreteness of the issue. This failure to meet and confer is yet another example
of how Google has stalled on production since April.

As discussed briefly at the hearing and extensively in the briefing on the Motion to
Compel and Motion for Protective Order (attached as Exhibits A (Response to Protective Order),

B (Motion to Compel), C (Reply to Protective Order), and D (Suneply on Motion to Compel)
(filed under seal separately)), Google has slow-rolled production since April. Immediately before
the hearing on Tuesday, August 25, counsel for Google and Function Media agreed on many

of

Dockets.Justia.com

the outstanding production issues - with only a few still pending that are the subject of the motions to compel already in front of this Court.
attached as Exhibit

A copy of the notes from this meeting is

E. Moreover,

the Monday before the hearing, Google had promised Function

Media a couple weeks ago that

it

had completed production of other relevant categories of

documents, such as financial and revenue information, by the end of last week. See Exhibit F

(letter from Google counsel, August 24,2009).

'When

Function Media reviewed the production,

however, vast swaths of information agreed to be produced was still missing.

Function Media issued a 30(b)(6) deposition notice related primarily to damages issues in

April. Google has stated it will present four

witnesses in response to this notice. None of these

depositions have occurred, however, because Google has not produced the documents necessary

for these depositions. Immediately upon reviewing the incomplete production

-

on Wednesday, August 26

-

Function Media asked Google to complete production by a week later
,See

- Tuesday, September 1.
a meet and

Exhibit G (email from Justin Nelson, August 26). Function Media also asked for

confer on August 27 on this issue, to which Google responded that neither its lead nor local
counsel were available on August 27, and that its local counsel was not available for the remainder of this week.
^See

Exhibit H (email from Amy Candido, August 27). Counsel for

Function Media asked to confirm that Google's lead counsel did not even have five minutes for a
conference call over the next two days, and received no response. See Exhibit I.

Google has used this same slow-roll strategy repeatedly over the past few months.
Indeed, for prior art witnesses, Google routinely has produced documents literally on the eve

of

deposition despite outstanding document subpoenas that Function Media issued over seven
months ago. In one instance, Google did not even give the subpoena to the witness it represented

until right before the deposition.

,See

Exhibit J (deposition of Christopher Evans (rough draft)

pp. 15-16); see also Exhibit K (cover email from Google producing documents the night before the deposition); Exhibit

L

(cover email from Google producing documents the night before

another deposition where it represented the party).

Thus, Function Media requests that this Court order Google

to finish its

agreed

production by no later than September 1 and for relief from complying with the meet and confer requirement in this particular case. In addition, Function Media requests that this Court order
Google to complete the corporate deposition on revenue and margin information by no later than September 10, and the corporate deposition on acquisitions by no later than September 15.

Function Media is available for any expedited hearing (either in-person or telephonically)
at the Court's discretion, and is

filing this Motion in lieu of any call to the discovery hotline.

Respectfully submitted,
/s/ Justin A. Nelson Max L. Tribble, Jr. State Bar No. 20213950 Email : [e-mail] SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: (7 t3) 651 -9366 Facsimile: (7 13) 65 4-6666 Lead Attomey for Plaintiffs OF COUNSEL: Justin A. Nelson, State Bar No.24034766 Susvrax Gonrnnvl.L.P. 1201Third Avenueo Suite 3800 Seattle, Washington 98 I 01 -3000 Telephone: (206) 5 I 6-3880 Facsimile: [phone] j [e-mail]

Joseph S. Grinstein, State Bar No. 24002188 Aimée Robef, State Bar No.24046729

SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096 Telephone: [phone] Fax: [phone] Email: j [e-mail] Email: [e-mail] Jeremy Brandon, State Bar No. 24040563 SUSMAN GODFREY L.L.P. Suite 5100 901 Main Street Dallas, Texas 7 5202-377 5 Telephone: [phone] Fax: [phone] Email j brandon@susmangodfr ey. com

CERTIFICATE OF CONFERENCE
Counsel for plaintiffs have not properly conferred with counsel
described in the

for

defendants as

Motion. Function Media

requests relief from this requirement for the reasons

described in the Motion. /s/ Justin A. Nelson Justin A. Nelson

CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
This is to certiff that Exhibits A through D are being filed under seal separately because they contain material covered by the protective order.

/s/ Justin A. Nelson Justin A. Nelson

CERTIFICATE OF SERYICE

I hereby certify that the foregoing documents have been served on all counsel of record
via ECF/PACER this 27th day of August, 2009.
/s/ Justin A. Nelson Justin A. Nelson