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

Filing 170

REPLY to Response to Motion re 120 MOTION for Protective Order to Preclude Depositions regarding Notice of Supplemental Authority filed by Google, Inc.. (Anderson, Carl)

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

Doc. 170

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C., v. JURY TRIAL DEMANDED GOOGLE, INC. AND YAHOO!, INC. REPLY TO FUNCTION MEDIA'S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY FOR GOOGLE'S MOTION FOR A PROTECTIVE ORDER Function Media's Response to Google's Notice of Supplemental Authority is procedurally improper and misleading in substance. Under the guise of a "response," Function Media has attempted to re-argue their position. As the Court has not requested additional briefing, further argument on the merits of the Motion is improper and should be ignored. Moreover, Function Media's tardy arguments are without merit. The fact that this Court granted a motion for a protective order to preclude a deposition of a top-level executive, indeed one of the same witnesses for which Plaintiff seeks to compel a deposition, cannot support Function Media's opposition to a similar protective order here. Function Media does not dispute that the PA Advisors LLC v. Google Inc. opinion shows that even where a top-level executive has personal knowledge, the party seeking the deposition must first try to obtain information by less burdensome means. Function Media cannot show it has exhausted less burdensome means. Indeed, all it has done is to ask corporate witnesses to opine on printed statements by others that the witnesses have never seen before and it has never served a Rule 30(b)(6) notice on the subject matter it seeks. Likewise, Function Media's other material misrepresentations of the evidence of record, this time made without reference to the record at all, have no merit for the reasons Google explained in its Motion and Reply.
01980.51542/3080144.3

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

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Dockets.Justia.com

For the reasons given therein and during the Court's August 25, 2009 hearing, Google's Motion for a Protective Order to Preclude Depositions of Three Top-Level Executives should be granted.

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Dated: August 31, 2009

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By: /s/ Charles K. Verhoeven (Bar No. 2272060) [e-mail] David A. Perlson (Bar. No. 209502) [e-mail] Amy H. Candido (Bar No. 237829) [e-mail] Carl G. Anderson (CA Bar No. 239927) [e-mail] 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Stan Karas (CA Bar No. 222402) [e-mail] 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 Telephone: [phone] Facsimile: [phone] FISH & RICHARDSON P.C. Juanita R. Brooks - Lead Attorney (CA SBN 75934) E-mail: [e-mail] Jason W. Wolff (CA SBN 215819) E-mail: [e-mail] Fish & Richardson P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: [phone] Facsimile: [phone] Harry L. Gillam, Jr., Bar No. 07921800 E-mail: [e-mail] Melissa R. Smith, Bar No. 24001351 E-mail: [e-mail] GILLAM & SMITH, L.L.P. 303 South Washington Avenue Marshall, TX 75670 Telephone: [phone] Facsimile: [phone]

01980.51542/3080144.3

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Counsel for Defendant and Counter-Claimant GOOGLE INC.

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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 31, 2009 to counsel of record in the manner agreed by the parties, via electronic mail.

/s/ Carl G. Anderson Carl Anderson

01980.51542/3080144.3 REPLY TO FUNCTION MEDIA'S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY FOR GOOGLE'S MOTION FOR A PROTECTIVE ORDER - Page 5