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

Filing 378

NOTICE by Function Media, L.L.C., Google, Inc. of Joint Submission of Objections to the Admission of Designated Deposition Tesimony (Anderson, Carl)

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

Doc. 378

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C. Plaintiff, vs. GOOGLE INC. AND YAHOO, INC. Defendants. § § § § § § § § §

Civil Action No. 2:07-CV-279 FILED UNDER SEAL JURY TRIAL DEMANDED

JOINT SUBMISSION OF OBJECTIONS TO THE ADMISSION OF DESIGNATED DEPOSITION TESTIMONY

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Dockets.Justia.com

Pursuant to the Court's request during the January 5, 2010 evidentiary hearing, Function Media and Google hereby jointly submit objections to the admissibility of designated deposition testimony. For the Court's convenience, the parties have lodged under seal with the Court's clerk hard copies of the relevant excerpts of deposition transcripts with the objected-to testimony highlighted. The deposition transcripts are referred to herein by Exhibit number. FUNCTION MEDIA'S OBJECTIONS Function Media's Statement Regarding Deposition Designations Consistent with this Court's Orders and direction, FM has narrowed its deposition designations. At the present time, FM has designated 6 hours and 35 minutes of testimony for use during its case in chief or rebuttal.1 FM has further designated approximately 2 hours and 8 minutes of testimony from FM's prosecution attorneys and a former employee for use solely during the hearing of Google's inequitable conduct claims, should such hearing be necessary. FM's Remaining Objections FM has resolved or waived all remaining objections with one exception. FM has

objected to certain testimony by Henry Croskell, Esq. (FM prosecuting attorney), Kenneth S. Roberts, Esq. (FM prosecuting attorney), and Jared Burke to the extent such testimony relates to FM's Motion in Limine No. 47 regarding copying. This Court granted FM's Motion to

Reconsider MIL No. 47. As such, FM maintains that the testimony is inadmissible. Google has informed FM that it will not seek to play the relevant deposition clips without first raising the issue of admissibility with the Court. On the basis of that representation, FM will not present its objections to the Court for resolution at this time. FM's Responses to Specific Google Objections This computation of time does not include Google's counter-designations or FM's counter-counter-designations. 1
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In the tables below, FM has provided responses to certain objections raised by Google. FM does not waive its opposition to any remaining Google objections noted below. However, in the interest of time and efficiency, FM asserts that such objections may be resolved by reference to the depositions alone. FM is willing to provide additional argument at this Court's request. GOOGLE'S OBJECTIONS Google's General Objections Google's objections are based upon Function Media's designations of deposition testimony served October 2, 2009 and supplemental designations served December 23, 2009, and Function Media's subsequent agreements to withdraw previously designated testimony during the parties' meet and confer. For the purposes of admissibility of Function Media's deposition designations, Google does not at this time rely on its objections to questions as lying outside the scope of Function Media's Rule 30(b)(6) notices; however, Google reserves its rights to object to any attempt by Function Media to use testimony outside the scope of its 30(b)(6) notices as representative of Google or as binding admissions regarding any issue of fact or law. In addition, in order not to burden the Court with general objections that will likely be resolved by the Court's rulings on pending or carried motions in limine, Google reserves its rights to object to additional specific deposition testimony under those motions in limine after they are resolved by the Court. Because the admissibility of testimony from a witness depends on the context, Google reserves the right to object to any deposition testimony under Rules 402 and 403, depending on the presentation of evidence at trial. Google's Specific Objections to Function Media's Deposition Designations For the reasons indicated in the following, Google respectfully requests that the Court preclude Function Media from offering the deposition testimony listed below during trial.

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Google's Objections to Designated Testimony from Brian Axe (Transcript at Ex. A). Name Axe, Brian Axe, Brian FM's Designations 149:8-149:10 160:3-22; 160:24-162:22; 162:25-163:8; 163:13-163:25; 165:19-166:1; Objections Subject to Google's MIL 10 regarding acquisitions; Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions. FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to re-introduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections. Granted ?

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Name Axe, Brian

FM's Designations 179:6-181:24

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to re-introduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

Google's Objections to Designated Testimony from Mireya Bravomalo (Transcript at Ex. B). Name Bravomalo, Mireya Bravomalo, Mireya FM's Designations 148:24-149:2; 149:4-149:12; 149:14-149:22; 149:24-150:1 167:15-168:2; 168:4-168:10; 168:12-168:12; 169:9-169:14; 169:16-169:25; 170:2-170:3 200:24-201:2; 201:4-201:8; 201:10-201:17 Objections Lacks foundation, calls for speculation, argumentative, misstates witness' testimony, hearsay Lacks foundation, calls for speculation, argumentative, misstates witness' testimony, hearsay Granted ?

Bravomalo, Mireya

Lacks foundation, calls for speculation, misstates witness' testimony, hearsay

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[Note: Ex. C omitted]. Google's Objections to Designated Testimony from Jeff Dean (Transcript at Ex. D). Name Dean, Jeff FM's Designations 37:18-38:15; 38:18-39:20; 41:4 "Prior"41:22; 41:24-42:4; Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to re-introduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections. Granted ?

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Name Dean, Jeff

FM's Designations 161:8-161:15

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to re-introduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections. Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to re-introduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

Dean, Jeff

163:15164:10; 164:19164:23; 164:25-165:3; 165:5-165:7

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Google's Objections to Designated Testimony from Roy Fielding (Transcript at Ex. E). Name Fielding, Roy FM's Designations 72:7-73:11; 73:14-73:19; 72:21 Objections Calls for improper testimony by a lay witness (FRE 701); lacks foundation, incomplete hypothetical, calls for a legal conclusion, improper testimony by a lay witness. FM Response: This testimony relates to the witness's knowledge concerning the prior art and distinguishing features between the patents in suit and the prior art. Calls for improper testimony by a lay witness (FRE 701); lacks foundation, incomplete hypothetical, calls for a legal conclusion, improper testimony by a lay witness. FM Response: This testimony relates to the witness's knowledge concerning the prior art and distinguishing features between the patents in suit and the prior art. Google's Objections to Designated Testimony from Sandi Lee Mathers (Transcript at Ex. F). Name Mathers, Sandi Lee Mathers, Sandi Lee FM's Designations 73:21-73:25; 74:3-74:12; 74:14-74:15; 74:17 101:19-102:9; 102:13-103:10; Objections Argumentative and misstates witnesses' testimony Granted ? Granted ?

Fielding, Roy

79:18-80:11; 80:13-80:21; 80:23-81:21; 81:23-81:24

Argumentative and misstates witnesses' testimony

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Name Mathers, Sandi Lee

FM's Designations 154:9-154:15; 154:17-154:24; 155:1-155:14; 155:17-155:21; 155:23-156:5; 156:7-156:11; 156:13-156:18; 156:20-157:3; 157:24-158:1; 158:3-158:4; 158:24-159:3; 159:5-159:5; 159:7-159:12; 159:14-159:15; 160:10-160:13; 160:15-160:15; 161:7-161:9; 161:11-161:17; 161:19-161:24; 162:1-162:7; 162:9-162:12; 162:17-162:19; 165:15-166:1; 166:3-166:4; 166:6-166:14; 166:16-166:21; 167:12-167:13; 167:15-167:20; 167:22-168:7; 168:9-168:10; 170:24-171:1; 171:3-171:5; 171:7-171:12; 171:14-171:15

Objections Misstates witness' testimony, and calls for a legal conclusion, also at times argumentative

Granted ?

Mathers, Sandi Lee

Misstates witness' testimony, and calls for a legal conclusion

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Google's Objections to Designated Testimony from Nicolle Pangis (Transcript at Ex. G). Name Pangis, Nicolle FM's Designations 61:14-61:23; 61:25-61:25; 62:3-62:11; 62:13-62:16; 62:20-62:21; 65:3-66:2 Objections Lacks foundation and calls for speculation Granted ?

Pangis, Nicolle

Incomplete hypothetical and lacks foundation

Google's Objections to Designated Testimony from Stephen Rupp (Transcript at Ex. H). Name Rupp, Stephen Rupp, Stephen FM's Designations 45:1-45:7; 45:10-45:14; 45:17-45:17 72:7-72:23; 73:1-73:20 Objections Lacks foundation, calls for speculation, calls for improper testimony from a lay witness (FRE 701) Lacks foundation, calls for speculation, calls for improper testimony from a lay witness (FRE 701) Granted ?

Google's Objections to Designated Testimony from Tomaz Tunguz-Zawislak (Transcript at Ex. I).. Name FM's Designations Objections Granted ?

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Name TunguzZawislak, Tomaz

FM's Designations 50:9-51:9; 51:11-51:22; 51:24-53:10; 53:18-54:7; 54:9-54:23;

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions, and calls for improper testimony from a lay witness (FRE 701) FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to reintroduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

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Name TunguzZawislak, Tomaz

FM's Designations 59:17-60:7; 61:09-61:23; 61:25-62:14;

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions, and calls for improper testimony from a lay witness (FRE 701) FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to reintroduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

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Name TunguzZawislak, Tomaz

FM's Designations 70:14-71:07

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions, and calls for improper testimony from a lay witness (FRE 701) FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to reintroduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

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Name TunguzZawislak, Tomaz

FM's Designations 75:6-75:16; 75:18-75:18; 76:17-77:24

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions, and calls for improper testimony from a lay witness (FRE 701) FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to reintroduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

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Name TunguzZawislak, Tomaz

FM's Designations 144:20145:25; 157:08157:16; 157:18157:25; 158:2-158:10; 158:16158:21; 158:23-159:1; 161:11162:11; 163:10163:13; 163:15164:13; 164:25-166:6

Objections Irrelevant and prejudicial because a witness' independent patent prosecution activities, not related to the patents-in suit, would serve to mislead and confuse the jury and lack probative value; lacks foundation, calls for speculation, calls for legal conclusions, and calls for improper testimony from a lay witness (FRE 701) FM Response: Google previously moved in limine to preclude evidence of its own patenting. FM prepared vigorously to rebut this argument. Yet, by agreement between the parties, Google previously withdrew its MIL. Through this objection, Google seeks to reintroduce its meritless argument. Google's patenting activity--as well as that of its employees--is highly relevant to this dispute. It speaks immediately to issues concerning obviousness and the prior art. Further, it relates to Google's and its employees appreciation and awareness of intellectual property rights and similarities between Google patents/applications and the patents in suit. Google's "legal conclusion" objections are equally meritless. By asking an inventor whether his invention is "novel," for example, FM is not seeking a legal opinion. This Court should overrule Google's objections.

Granted ?

Google's Objections to Designated Testimony from Amin Zoufonoun (Transcript at Ex. J). Name Zoufonoun, Amin Zoufonoun, Amin FM's Designations 138:21-139:1; 139:3-139:4 143:24-144:1; 144:3-144:17; 144:19-144:23 Objections Subject to Google's MIL 10 regarding anticompetitive allegations; lacks foundation, calls for speculation, hearsay, and misstates witness' testimony Subject to Google's MIL 10 regarding anticompetitive allegations; lacks foundation, calls for speculation, hearsay, and misstates witness' testimony Granted ?

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Dated: January 14, 2010

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP /s/ Amy H. Candido Charles K. Verhoeven (admitted pro hac) Lead Attorney [e-mail] Amy H. Candido (admitted pro hac) [e-mail] Carl G. Anderson (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Edward J. DeFranco (admitted pro hac) [e-mail] James M. Glass (admitted pro hac) [e-mail] Patrick Curran (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: [phone] Facsimile: [phone] Harry L. Gillam, Jr., Bar No. 07921800 [e-mail] Melissa R. Smith, Bar No. 24001351 [e-mail] GILLAM & SMITH, L.L.P. 303 South Washington Avenue Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] Counsel for Defendant and Counter-Claimant GOOGLE INC.

/s/ Max L. Tribble Jr. ________ Max L. Tribble, Jr. (lead counsel) Texas State Bar No.: 20213950 Email: [e-mail] Joseph S. Grinstein Texas State Bar No. 24002188 Email: [e-mail] SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Telephone: [phone] Jeremy Brandon Texas State Bar No. 24040563 [e-mail] SUSMAN GODFREY L.L.P. 901 Main Street Dallas, Texas 75202-1900 Telephone: [phone] Justin A. Nelson Texas State Bar No. 24034766 [e-mail] SUSMAN GODFREY L.L.P. 1201 Third Avenue Seattle, Washington 98101-3000 Telephone: [phone] S. Calvin Capshaw State Bar No. 03783900 Email: [e-mail] Elizabeth L. DeRieux State Bar No. 05770585 Email: [e-mail] CAPSHAW DERIEUX, LLP Energy Centre 1127 Judson Road, Suite 220 P. O. Box 3999 (75606-3999) Longview, Texas 75601-5157 Telephone: [phone] Robert Christopher Bunt State Bar No. 00787165

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Email: [e-mail] Robert M. Parker State Bar No. 15498000 Email: [e-mail] Andrew Thompson Gorham Email: [e-mail] PARKER, BUNT & AINSWORTH, P.C. 100 East Ferguson, Ste. 1114 Tyler, TX 75702 Telephone: [phone] Counsel for Function Media, L.L.C.

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LOCAL RULE CV-5(7) STATEMENT The contents of this submission are filed under seal in compliance with the Court's Protective Order in this case. The submission contains information designated as "Confidential Outside Counsel Only." Date: January 14, 2010 /s/ Amy H. Candido Amy H. Candido

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