PA Advisors, LLC v. Google Inc. et al

Filing 257

MOTION to Quash and, MOTION for Protective Order to Preclude Deposition of Johanna Shelton by Google Inc.. (Attachments: #1 Affidavit Declaration of Brian Cannon, #2 Exhibit A to Declaration of Brian Cannon, #3 Exhibit B to Declaration of Brian Cannon, #4 Exhibit C to Declaration of Brian Cannon, #5 Exhibit D to Declaration of Brian Cannon, #6 Exhibit E to Declaration of Brian Cannon, #7 Exhibit F to Declaration of Brian Cannon, #8 Exhibit G to Declaration of Brian Cannon, #9 Exhibit H to Declaration of Brian Cannon, #10 Exhibit I to Declaration of Brian Cannon, #11 Exhibit J to Declaration of Brian Cannon, #12 Exhibit K to Declaration of Brian Cannon, #13 Exhibit L to Declaration of Brian Cannon, #14 Affidavit Declaration of Johanna Shelton, #15 Text of Proposed Order)(Cannon, Brian)

EXHIBIT J

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Ari Rafilson Telephone: [phone] Fax: [phone] [e-mail] VIA EMAIL TO [e-mail] August 13, 2009 Andrea Pallios Roberts Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 Re: Dear Andrea: This letter is written in response to your letter dated August 12, 2009 regarding the deposition of Ms. Johanna Shelton. Please be advised that nXn does not agree to move the date of its subpoena for Ms. Johanna Shelton to Friday, August 21. As you know, nXn discussed why the deposition of Ms. Shelton was necessary during a recent meet and confer. For clarification, Ms. Shelton's deposition is needed because Ms. Shelton has knowledge of how Google views, manages, and handles its own Intellectual Property including with respect to the products and services of Google at issue in this case, and how Google views and treats the Intellectual Properties of third parties, such as nXn Tech. and Mr. Ilya Geller. Ms. Shelton's lobbying activities on behalf of Google and her public pronouncements including her postings on Google's public policy blog reveal that she has knowledge in this regard. As a related matter, your letter misconstrues the facts regarding Ms. Shelton's deposition. Plaintiffs agreed to delay the date of the Shelton deposition until after claim construction briefing on the condition that Google provide a firm date for the deposition. Google has failed to provide such a date. As stated in nXn's communication dated July 20, "nXn is willing to work with Google to schedule this deposition but is not willing to wait for weeks on end only to have Google file another motion for PO." Additionally, in your letter you have argued that "Plaintiffs are improperly seeking nXn Tech LLC v. Google Inc., et al.

The Rafilson Law Firm, PLLC 1318 Royal Palm Lane, Carrollton, TX 75007

discovery of protected lobbying and political activities and/or attorney-client privileged information." nXn is unaware of any privilege regarding "lobbying and political activities." Please provide legal support for your assertion that such a privilege exists. Please be advised that nXn is not seeking any attorney-client privileged communications, but to the extent that such communications exist, nXn will expect a corresponding privilege log, such as the one Google has demanded that parties it has served with subpoenas produce (e..g., Hershkovitz and Associates). As a related matter, Google has accused nXn and Bright Response of using "the subpoena process as an end-run around party discovery" by serving deposition notices on its employees. This is the proverbial "pot calling the kettle black" and such gamesmanship will not be tolerated. As you know, Google served a document subpoena on Mr. Spangenberg in nXn v. Google and also served a subpoena on Brad Sheafe, the Manager of Bright Response in the Bright Response v. Google case. nXn fails to see how the subpoenas on Google's employees is any different other than the identity of the serving party. Finally, as Ms. Shelton's deposition has been scheduled tomorrow, Google will need to meet and confer with in person with Mr. Spangler if it still intends to file a motion for a protective order tomorrow. Mr. Spangler will be available at his office in Longview, TX. Sincerely,

Ari Rafilson