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

Filing 438

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 1/26/10 Afternoon - Verdict before Judge Chad Everingham. Court Reporter/Transcriber: S. Simmons/S. Holmes,Telephone number: 903/935-3868. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/26/2010. Redacted Transcript Deadline set for 3/8/2010. Release of Transcript Restriction set for 5/6/2010. (lss, )

1 1 2 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS M A R S H A L L DIVISION * * * * * * Civil Docket No. 2:07-CV-279 Marshall, Texas January 26, 2010 1:30 P.M.

3 F U N C T I O N MEDIA, LLC 4 VS. 5 G O O G L E , INC. 6 7 8 9 APPEARANCES: 10 F O R THE PLAINTIFFS: 11 12 13 14 15 16 17 18 19 20

T R A N S C R I P T OF JURY TRIAL B E F O R E THE HONORABLE CHAD EVERINGHAM U N I T E D STATES MAGISTRATE JUDGE

M R . MAX TRIBBLE M R . JOSEPH GRINSTEIN Susman Godfrey 1 0 0 0 Louisiana Street S u i t e 5100 H o u s t o n , TX 77002 M R . JUSTIN NELSON S u s m a n Godfrey 1 2 0 1 Third Avenue S u i t e 3800 S e a t t l e , WA 98101 M R . JEREMY BRANDON S u s m a n Godfrey 9 0 1 Main Street S u i t e 5100 D a l l a s , TX 75202 M R . ROBERT PARKER P a r k e r , Bunt & Ainsworth 1 0 0 East Ferguson S u i t e 1114 T y l e r , TX 75702

21 A P P E A R A N C E S CONTINUED ON NEXT PAGE: 22 C O U R T REPORTERS: M S . SUSAN SIMMONS, CSR M S . SHELLY HOLMES, CSR 23 O f f i c i a l Court Reporters 100 East Houston, Suite 125 24 Marshall, TX 75670 903/935-3868 25 ( P r o c e e d i n g s recorded by mechanical stenography, transcript produced on CAT system.)

2 1 APPEARANCES CONTINUED: 2 3 F O R THE DEFENDANTS: 4 5 6 7 8 9 10 11 12 PROCEEDINGS 13 14 15 16 17 C O U R T SECURITY OFFICER: (Jury in.) THE COURT: Please be seated. All rise. M R . CHARLES VERHOEVEN M S . AMY CANDIDO Q u i n n Emanuel 5 0 California Street 2 2 n d Floor S a n Francisco, CA 94111 M R . EDWARD DEFRANCO Q u i n n Emanuel 5 1 Madison Avenue 2 2 n d Floor N e w York, NY 10010 M R . HARRY L. GILLAM G i l l a m & Smith 3 0 3 South Washington Avenue M a r s h a l l , TX 75670

Judge Ward had a couple of criminal

18 proceedings going on upstairs, so we'll be adaptable and 19 conduct part of the proceedings down here. 20 I received a note that states: We re --

21 we request a copy of the charge from the Judge to the 22 jury, signed Juror No. 1, and the timeline that defense 23 used during closing, is also written on the bottom of 24 the note. 25 T h e Court's charge to the jury is an oral

3 1 charge, and a copy is not provided to the -- to the jury 2 and is not sent back to the jury room. 3 The timeline that you requested was not

4 offered in evidence, so I can't send a copy back to the 5 jury room for you to look at, but it was used for 6 demonstrative purposes, and I can bring you back into 7 the court and allow you to view it and will allow you to 8 view it for such time you-all would like to view it. 9 And I believe we've got it over here if y'all want to 10 put it on the easel. 11 12 MR. VERHOEVEN: THE COURT: May I, Your Honor? And once you're

Yes, please.

13 through viewing it, if you'll just signal me that -14 I'll -- I'll excuse you and send you back upstairs to 15 continue your deliberation. 16 Can all of the jurors see it? Raise your

17 hand if you can't see it. 18 19 (Jurors view demonstrative.) THE COURT: Okay. Anyone need more time?

20 If you do, raise your hand.

Seeing no hands, I'll ask

21 that you return at this time to the jury room and 22 continue your deliberations in accordance with all the 23 Court's prior instructions. 24 25 COURT SECURITY OFFICER: (Jury out.) All rise.

4 1 THE COURT: All right. Ms. Lockhart, if

2 -- if you'll file the two jury notes. 3 A n y objections to the responses from the

4 Court to the jury note -5 6 7 8 MR. TRIBBLE: THE COURT: No objections, Your Honor. -- from the Plaintiff? No objection. We'll be in recess

MR. VERHOEVEN: THE COURT:

Okay.

9 pending further communication from the jury. 10 11 12 13 14 (Recess.) COURT SECURITY OFFICER: (Jury in.) THE COURT: A l l right. Please be seated. Ladies and gentlemen, I've All rise.

15 been handed a note that says that the jury has reached a 16 verdict; is that correct? 17 18 FOREPERSON: T H E COURT: Yes. If you'll hand it to the

19 Court Security Officer. 20 Okay. Ladies and gentlemen and parties,

21 what I'm going to do is I'm going to read the question 22 number, and then with respect to each claim, the answer 23 the jury has given. 24 Question No. 1, with respect to AdSense Claim 1, no. Claim 20, no. Claim

25 for Content Online:

5 1 37, no. Claim 52, no. Claim 63, no. Claim 90, no.

2 Claim 179, no. 3 4 Online:

Claim 231, no. With respect to AdSense for Mobile

Claim 1, no.

Claim 20, no.

Claim 37, no. Claim 179,

5 Claim 52, no. 6 no. 7

Claim 63, no.

Claim 90, no.

Claim 231, no. Question No. 2, with respect to AdSense Claim 1, no.

8 for Content Online: 9 10 Online: 11 12 yes.

With respect to AdSense for Mobile Claim 1, no. Question No. 3: Claim 37, yes. Claim 1, yes. Claim 20,

Claim 52, yes.

Claim 63, yes.

13 Claim 90, yes. 14 Subpart B: 15 yes.

Claim 179, yes.

Claim 231, yes. Claim 37,

Claim 1, yes.

Claim 20, yes.

Claim 52, yes.

Claim 63, yes.

Claim 90, yes.

16 Claim 179, yes. 17 18 Subpart B: 19

Claim 231, yes. Claim 1, yes.

Question No. 4, Subpart A: Claim 1, yes.

In accordance with the Court's

20 instructions, Question No. 5 has not been answered. 21 22 foreperson. 23 N o w , ladies and gentlemen, I'm going to S i g n e d today's date, Wendy Bush, jury

24 ask for each of you that this represents your verdict -25 if it does represent your verdict, please stand at this

6 1 time. 2 3 (Jurors stand.) T H E COURT: The record will reflect that

4 all of the jurors are standing, representing and 5 reflecting a unanimous verdict. 6 7 Please have a seat. All right. Ladies and gentlemen, a I'm about to excuse you now I appreciate

8 couple more instructions.

9 and release you from your jury service.

10 very much the time that you have spent here in resolving 11 this difficult case. 12 You have been prompt when you're supposed

13 to be here, and you've been attentive throughout the 14 entire trial, and you have the thanks of the Court and 15 the parties for your service today. 16 Now, I've instructed you throughout the

17 trial up until you got the case for deliberations not to 18 discuss the case with anyone. 19 of those instructions. Well, I'm reversing all

You can talk to whomever you

20 want to about the case, or you can not talk to whomever 21 you want to about the case. It's entirely up to you as

22 to whether and to what extent you wish to discuss your 23 jury service. 24 The rules that govern the practice of law

25 in this district do not allow lawyers to approach you

7 1 and talk to you about your jury service. However, the

2 rules do not prevent you from approaching the lawyers 3 and, you know, waving to them and saying, I'd like to 4 visit with you about the jury service. And I can assure

5 you that if you do that, they'll be delighted to invest 6 the time to have that discussion. 7 So with that, you are excused now from

8 jury service with the thanks of the Court and the 9 parties. 10 Please remember to give Ms. Anderson back

11 your buttons, and she can supply you with whatever types 12 of work releases and things that you need for your 13 employment. 14 15 very much. 16 17 jury. 18 19 (Jury out.) THE COURT: All right. Anything from the COURT SECURITY OFFICER: All rise for the With that, you're excused. Appreciate it

20 Plaintiff at this time? 21 22 Honor. 23 24 25 Your Honor. THE COURT: From the Defendant? Nothing at this time, MR. TRIBBLE: Nothing at this time, Your

MR. VERHOEVEN:

8 1 THE COURT: All right. Thank you for

2 your presentations. 3 4 5 6 7 8 9 10 I HEREBY CERTIFY that the foregoing is a CERTIFICATION MR. TRIBBLE: THE COURT: Thank you. Court's in recess.

(Court adjourned.) * * * * *

11 true and correct transcript from the stenographic notes 12 of the proceedings in the above-entitled matter to the 13 best of my ability. 14 15 16 17 / s / _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ S U S A N SIMMONS, CSR 18 O f f i c i a l Court Reporter S t a t e of Texas No.: 267 19 E x p i r a t i o n Date: 12/31/10 20 21 22 / s / _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ S H E L L Y HOLMES, CSR 23 D e p u t y Official Court Reporter S t a t e of Texas No.: 7804 24 E x p i r a t i o n Date 12/31/10 25 _________________ Date ___________________ Date