Polaris IP, LLC v. Google Inc. et al

Filing 229

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION TO COMPEL Hearing held on 11/5/09 before Judge Chad Everingham. Court Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: [phone]. (24 pgs.)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 12/9/2009. Redacted Transcript Deadline set for 12/21/2009. Release of Transcript Restriction set for 2/16/2010. (tja, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC, )( )( )( )( )( )( GOOGLE, INC., ET AL. )( NOVEMBER 5, 2009 2:00 P.M. CIVIL DOCKET NO. 2:07-CV-371-CE MARSHALL, TEXAS

MOTION TO COMPEL HEARING BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

FOR THE PLAINTIFFS:

(See Attorney Sign-In Sheet)

FOR THE DEFENDANTS:

(See Attorney Sign-In Sheet)

COURT REPORTER:

MS. SHELLY HOLMES, CSR Deputy Official Court Reporter 2593 Myrtle Road Diana, Texas 75640 [phone]

(Proceedings recorded by mechanical stenography,

transcript produced on a CAT system.)

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INDEX

Page 1 3 23

Court Reporter's Certificate

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COURT SECURITY OFFICER: THE COURT: All right.

All rise.

Please be seated. We have a motion to compel set

today in Bright Response versus Google, 2:07-371. What says the plaintiff? MR. SPANGLER: Your Honor, Andrew Spangler Ready to proceed. For the defendant? May

on behalf of the plaintiff. THE COURT: MR. BUFE:

All right.

Good afternoon, Your Honor.

it please the Court, John Bufe and Jason White for defendant, Yahoo. We're present and ready, Your Honor. All right. Good afternoon.

THE COURT:

Tell me, what's the status of the motion? Where are we on this? MR. SPANGLER: Your Honor, we're partly If the Court would

resolved, but not completely.

indulge me, I'd like to explain why we're still -- still here. THE COURT: Sure. Yeah, go use the podium,

MR. SPANGLER:

Okay.

Basically, Your Honor,

we're here for some certainty from the Court as opposed to some agreements between the parties. Starting back

last summer, we had a hearing regarding a protective order in front of Judge Folsom over technology that

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overlaps to this one a great deal, the PA Advisors case. You'll see that actually the protective orders are in line with one another. So back then we raised the issue -obviously, they knew the issue of source code production. We requested in September -- I have the

correspondence if the Court wants to see it -- when we're going to get the source code? code. Followed up again in March. We need the source When are we going to

get the source code?

We need the source code.

Come June, we have new counsel that can read source code, which was helpful, named Ari Rafilson, and he again started asking for the source code. Not much

trickled in until after we filed the motion to compel a year and a half after all this started. Now, since then, we've had a lot of source code produced but not everything we need, and the reason we're still here is for two reasons. One, there's some

specific stuff that we need that we haven't gotten. And, two, there is a lack of trust on my client's part, not to Mr. White, but as to his client, Yahoo, that once the motion is pulled down, if they stop producing again, there's no motion pending, we have to start this process all over again. place. So we'd like to get some orders in

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And, additionally, there's an issue that was raised just a day or two ago in the PA Advisors case that's also applicable to this one regarding an amendment to the protective order. So if the Court

would allow me to address those, I'd be -THE COURT: briefed before me? Sure. Well, I mean, is that

It just came up? It just came up. It's a

MR. SPANGLER:

specific issue about whether a printer should be in a room or not. So I thought instead of briefing for six

weeks, we might raise it now and see if the Court would resolve it or not. THE COURT: Well, okay. What's the issue?

MR. SPANGLER:

The issue is the agreed

protective order that Yahoo agreed to in both the PA Advisors case and in this case allows for a printer to be in the room whereby our expert prints off a file as it sees one that's relevant and important. Then gets a

Bates number, provides it to the other side, gets a Bates number, and then we move forward with the case. Yahoo refuses to put a printer in the room and has now taken the position that my client has to list -- my expert has to go back through and list every file and line number it needs printed, submit that to the other side, and wait for them to print it and send

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it back. To give you an idea, I have a list of that that adds a couple of hours each time my expert has to do that which has cost us, and a year and a half after we had an agreement in place, we're now changing it. that's the issue with respect to the printer. THE COURT: right. MR. SPANGLER: THE COURT: Yes, sir. Okay. Do you have -- okay. All So

All right. Would you like to know the

MR. SPANGLER:

specific stuff we --- we'd like for the relief on the motion or -THE COURT: Well, yeah. I mean, I need know

exactly what you're asking me to do. MR. SPANGLER: Okay. So what we'd like is

the code that we've asked for to date, that all of it be produced by Monday at 9:00 a.m. That code is the That was

Yahoo's Click Server and associated software.

raised October 27th, was not reflected in Yahoo's response on November 1st. The Machine Learning software, the produced source code has a class of -- a code called MRL Model Builder which is part of the Machine Learning code, but that has been produced. The production of source code

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that calls the produced source code, we need that code to understand how the codes -- all the different codes fit within the accused instrumentalities. There's a

header file, which I'm sure the Court does not want me to read, but I can provide it to the Court, that exists. The reference appears to be somewhat important. hasn't been produced. Yahoo's tool bar and web browser, that was also requested on October 27th but was not addressed in Mr. White's letter of November 1st. that by 9:00 a.m. on Monday. And then source code that -- we want all of that by 9:00 a.m. If there's future code that we find So we'd like all of That

that's relevant that should have been produced, we'd like an order that says that has to be produced within 48 hours. And then because this is stretched out so

far, we'd like a 30(b)(6) directed to something consistent with the Court's Laser Dynamic's opinion specifically addressed to what the functionality is, where it's located. We had to spend a lot of time late

in the case trying to put this together, and we really need to expedite that process. And the last issue we raise, we tried to stipulate, we can't reach a stipulation this week. We'd

like the Court to order that if the parties cannot reach

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a stipulation regarding the multiple versions of the source code, that Yahoo be ordered to provide those multiple versions, and by that, I mean, we have a stipulation with Google who's also in this case that because this -- the damages are over time, there's various versions of software that implemented these accused instrumentalities and functions, and Google, in part, response, and I understand it's a stipulation, a single version will apply across all of them so that they don't have to produce multiple versions of code, and we don't have to review multiple versions of code. We do not have that agreement with Yahoo, so we either need that agreement, or we need that code in an expedited process. Your Honor. THE COURT: MR. WHITE: Okay. Let's hear a response. So that's what we're asking for,

Good afternoon, Your Honor.

Jason White on behalf of Yahoo. THE COURT: MR. WHITE: Good afternoon. I'd prefer to start with the

last issue first and sort of work back if that makes sense to you. THE COURT: MR. WHITE: That's fine with me. On the stipulation, obviously The status of

that's an issue that's not been briefed.

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that is we have been discussing whether we can enter into a stipulation that describes how the functionality across multiple versions has changed or not changed in the Yahoo system. The ball is actually in the plaintiff's court on that. I sent a proposal to them -- I don't

have the letter here because I didn't know this issue was going to come up. But I sent a letter to them most

recently saying, "We are interested in entering into such a stipulation if you can identify the functionality that you want, a stipulation on it, and also the time frame." And on the time frame, that's important because Yahoo has not personally operated the accused instrumentalities for the length of the accused infringement. For example, the algorithmic search

results that are available on Yahoo's web page were at a time provided by Google. And at a time after a certain And so as

date, then Yahoo had its own system in place.

you go back through time, we can't give you a blanket stipulation saying that for the entire time of the accused infringement, these systems operated identically. We just can't do that.

But we will work with them and have repeatedly offered to work with them on stipulations

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regarding specific functionality over specific periods of time. And that was the proposal that I made to them

that they could come back to me, and I -- my understanding was that I spoke with their counsel this week about that, that they would come back to me with a proposal of, "Here's the functionality that we want a stipulation on, and here's the period of time." So I'm a little bit surprised that the issue was raised today. THE COURT: Well, have -- I mean, okay.

Have you produced all of the versions of the source code, though, despite whether or not you've had a stipulation in place? MR. WHITE: We have not produced every

historical version of the source code. THE COURT: Okay. Those are relevant, and So you need

their production, then, is overdue, okay? to produce those.

Now, if you can reach a stipulation that absolves your client from the necessity of having to do that, I encourage you to do that, but you're not going to get to have it both ways, refrain from producing the prior versions while you work out a stipulation and then worry about working out the stipulation. I mean, the

order of this Court is that those are -- those --

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they're overdue, and they're relevant, and they need to be produced. Now, I -- you know, I'm not in the business of requiring you to -- to do something that you can resolve by stipulation. So if you can get -- get a

stipulation in place, then, quickly, then I would encourage you to do that, okay? MR. WHITE: I understand, Your Honor. If we -- if the I

fully expect we will do that.

version -- the amount of code would be overwhelming to anybody, and it would be basically unmanageable, so we will -THE COURT: Well, that's -- you know, I

understand that position, but I've got -- what is before me is a motion to compel production of source code, and you've just told me that there are versions out there that hadn't been produced, so I'm -- you know, without regard to whether I ought to be taking up the stipulation or not, I'm taking up that part of it, okay? MR. WHITE: Understood. Understood.

On the printer issue, again, I didn't know that that would be raised. We did file a motion to

modify the protective order in the other case that counsel mentioned. The issue there is with access to

printing the source code, who actually prints out and

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labels the source code. I did want to correct something that was stated before. The current protective order requires It does say that we should That printer They

the process be as follows.

provide a printer for their expert to use.

would allow them to print out some information.

would have to send that to us where we would label it and then send it back to them. And what Yahoo has asked

is that we modify that protective order to allow for us to handle the printing and return it to them with the labels on it. And there's really two reasons for doing that, Your Honor. The first is the production has been

ordered to be made in Dallas, Texas, and my client, Yahoo, is located in California. So it has to load

source code, which it feels is its most valuable asset, basically load it onto a computer and then ship it to Dallas. And if we were to allow the printing, that would enable external ports to be active, so if somehow the computer got misplaced or got in the hands of somebody that we don't want it in the hands of, they could access that code, copy it, produce it, print it, whatever you want. In order to protect the code, what Yahoo

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does and their practice has been is to disable all external ports on the computer. So it's basically a

black box lockdown laptop that you cannot physically get the code out of. It does allow an expert to review the

code, but it does not allow them to print from the code. And what we've proposed is that if you identify the files, whatever you want, however you want to identify it, the code that you want copies of, we will print that, get that back to you ASAP so that you have it. So it's not an issue of who's got access to the code or when they do it, it's just a matter of who handles the printing. And because it's a laptop that

has to be shipped down here, that was a very -- concern that -- with having an open port, if you will, on the laptop. That also gives us control over what's printed,

to know what's printed to make sure it gets properly labeled and properly stamped before it gets produced. If their expert can print it, there's no guarantee it's going to get properly labeled, properly stamped, turned over to us and whatnot. So that is the motion that's currently before Judge Folsom in the other case, and we can file the same motion before Your Honor in a matter of days if you'd like to brief this issue.

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THE COURT:

Well, my question, though, to

you now is does the protective order, as it's now in place, require them to go through that process before printing portions of the source code? MR. WHITE: Well, the current version of the

protective order does not. THE COURT: Okay. Here's -- here's --

here's my ruling, then, and see if you understand me. There's no -- been no motion to modify the protective order in my case, correct? MR. WHITE: THE COURT: There has been no order, right. To the extent that you are

imposing additional requirements on the other side for printing -- for printing source code materials, you are violating or threatening the violation of an order of this Court, okay? self-help. So you're not entitled to resort to

Do you understand me? MR. WHITE: THE COURT: I do understand, Your Honor. Because I think I get a feeling

for what's going on here, and it's -- and I think that you've got an in order place that you're -- that you're not happy with, and you're going to resort to self-help measures while at the same time moving for relief from the Court from the obligations that are imposed on you in this -- in the order that is in place, and I -- I'm

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just -- you're in the wrong court to be doing that. you understand me? MR. WHITE: I do, Your Honor. And if I

Do

may -- I don't want to interrupt you. THE COURT: MR. WHITE: You may. I'm through.

We did speak with the prior

counsel, who's now withdrawn from this case, and we explained to him the concerns that we had for the protective order and our desire to do it in a different way, and they were amenable to that to go ahead with the production. So I didn't know it was going to be an issue that would come up because, like I said, the prior counsel was in agreement with that, and we did the initial source code production in this case with that procedure and never heard a complaint. that there's new counsel involved. understand -THE COURT: I'm -- I'm making no finding It's only now

And so I

that you're in violation of the order, or that, if so, that it's willful or you didn't have a reason for embarking on the course of the conduct that you embarked on, okay? MR. WHITE: THE COURT: Understood. Understood.

But what I'm telling you is how

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I view it.

I've got a dispute before me, and I've got

an order that's in place. MR. WHITE: THE COURT: version of it, okay? MR. WHITE: THE COURT: Okay. So you need to comply with the Understood, Your Honor. And I don't have a modified

order as it's -- as it's written. MR. WHITE: THE COURT: MR. WHITE: Understood, Your Honor. Okay. Now, go on.

The last point is this -- the

code that's been produced -- actually, to bring you up to speed, you said where are we at with this? And I

think Counsel did reflect that we produced a substantial amount of code since the -- since the motion has been filed. As we believe, we had produced all the relevant code. They did an initial inspection in this A lot of code was

case that lasted for several days. reviewed.

They did make some additional requests for

additional code, and we are in the process of gathering that for them. Some of it is large. We mentioned in

our surreply that, for example, one -- one specific module is 29 million lines of code, 30 gigabytes of data. We have to process that internally at Yahoo and

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review it, get it loaded on the laptop, and then shipped out. So we're working just as diligently as we can on that. We expect that their additional requests

for code will be produced to them next week, and that will cover, I believe, all the open issues. Now, Counsel raised a couple of things this morning about Machine Learning software, something that calls produced source code a header file and tool bar, and I don't have any specific requests for that. I

don't know how that's relevant to the case, but if they tell us they need it and it's relevant to the case, we will get it to them ASAP, and that's been our -- our stance in this case. I don't know that we can get it to them by Monday morning, 9:00 a.m., given that this has to get put on a laptop in California, it has to be internally quality control checked so that there's nothing going out the door that we don't intend to, and then it has to get shipped down to Dallas. So if I could get some

additional time, we would be happy to do that with them. THE COURT: MR. WHITE: time. THE COURT: Friday? How much are you asking for? If we could get five days of

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MR. WHITE: THE COURT: MR. WHITE:

Next Friday, yes. Friday by 9:00? Yeah, and if we can get some I'm not That --

specificity on some of these other things.

exactly sure what Machine Learning software is.

that hasn't been raised in any letter that I've seen. THE COURT: Well, you're going to get a

chance to do that because he's going to -- before y'all leave the courtroom, he's going to give you a written -handwritten, if it needs to be, but he's going to give you a written request for that exactly what they're asking for. MR. WHITE: THE COURT: Perfect, Your Honor. And that's the order of the

Court that it be produced by next Friday at 9:00 o'clock in the morning, okay? MR. WHITE: THE COURT: Okay. Thank you, Your Honor. Anything else we can

All right.

do on this case today from the plaintiff's standpoint? MR. SPANGLER: two issues raised. Yes, Your Honor. There are

One -- one that's directed to the

source code directly, and that is, as Mr. White admitted, all the source code got dumped less than a month ago, and we're wading through, like we said, 25 million lines of code to try and find what's there

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and what's not there.

We needed it over a year ago.

We -- that's why this whole expedited process we're trying to put in place. So the -- the

last thing we're asking for is the Court to require -and if it can't be done in 48 hours, fine. Let's -- you

know, I'll take whatever the Court will give me, but I'm sure we're learning more from our expert about stuff that we needed that wasn't produced, calls to different subroutines, and we're having to do this super fast as opposed to over six months. So if the Court can put in an order that maybe we get it in five days, like we're doing for this source code, it would be greatly appreciated so we can get through it. THE COURT: Well, I'm not sure what you're

asking me for beyond what I've already given you. MR. SPANGLER: wasn't clear. Okay. Let me -- maybe I

The code that you just ordered on us,

stuff that we have listed, I specifically identified here about 10 minutes ago. THE COURT: Yes. What I'm talking about now is

MR. SPANGLER:

our expert is saying -- she's going through it as fast as she -- she can, that she believes there's other stuff she's probably going to come across that hasn't been

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identified yet, and we'd like an order that says if we find it, it's relevant, as we a wade through all these millions of lines of code, that they have a deadline to get us that supplemental code that should have been produced a long time ago. THE COURT: Well, I'm not going to try to

assess the relevancy of code that has not been produced, okay? What I've ordered produced is the code that is --

that you've identified, the other source code for the prior versions of the -- of the products that have been accused in the case. The order is that all relevant code needs to be produced, you know, by next Friday at 9:00 o'clock in the morning. Now, if something's been withheld from that, I'll deal with that by separate motion, but, you know, I -- what I'm going to encourage you to do in lieu of a 30(b)(6) deposition on this issue is I'm going to require the defendant, and your counsel can be present, to identify a technical person that's familiar with the code and to make that person reasonably accessible to the plaintiff and their expert be it for telephone communication in case there's a question. And your --

counsel for Yahoo can certainly be present on the call. I'm not going to make you designate someone to -- to

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assist them without counsel being present. But I'm not going to order a 30(b)(6) deposition at this time, but if -- if the procedure I've outlined comes up short, then I'll take another request for, you know, additional orders for the production of additional code and for the production of additional witnesses to explain how the code works together, but I would like y'all to do it on a more informal basis, if possible, okay? MR. BUFE: Understood. Your Honor, that's all I

MR. SPANGLER: have.

I appreciate your time. THE COURT: MR. WHITE: Anything from Yahoo? I do have one additional

request, on the -- the order that you're giving for next Friday, is that for the additional historical versions as well as the specific requests? THE COURT: MR. WHITE: THE COURT: Yes. Okay. And I -- having said that,

consent to an appropriate stipulation, Mr. Spangler, will not be unreasonably withheld, okay? MR. SPANGLER: THE COURT: We would agree.

Okay? Yes, sir.

MR. SPANGLER:

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THE COURT:

And I'll -- I'll expect to hear

about it if it is, all right? MR. WHITE: Understood, Your Honor. Thank

THE COURT:

We're in recess. All rise.

COURT SECURITY OFFICER: (Hearing concluded.)

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CERTIFICATION

I HEREBY CERTIFY that the foregoing is a true and correct transcript from the stenographic notes of the proceedings in the above-entitled matter to the best of my ability.

SHELLY HOLMES Deputy Official Reporter State of Texas No.: 7804 Expiration Date: 12/31/10

Date