Northeastern University et al v. Google, Inc.,

Filing 198

***DEFICIENT DOCUMENT, PLEASE IGNORE.***Emergency MOTION to Quash the Subpoena of Michael Belanger by Jarg Corporation, Northeastern University. (Attachments: # 1 Affidavit Declaration of Robert Schick, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Text of Proposed Order)(Glauser, Nicole) Modified on 4/6/2011 (sm, ).

Northeastern University et al v. Google, Inc.,

Doc. 198 Att. 5

Exhibit 5

Dockets.Justia.com

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VS.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION NORTHEASTERN UNIVERSITY, )( ET AL )( )( )( )( GOOGLE, INC., ET AL )( )( MARCH 29, 2011 9:00 A.M. CIVIL DOCKET NO. 2:07-CV-486-CE MARSHALL, TEXAS

PRE-TRIAL HEARING BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

FOR THE PLAINTIFFS:

(See attached sign-in sheet.)

FOR THE DEFENDANT:

(See attached 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.)

48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Corporation.

MR. CORDELL: housekeeping.

Maybe it's more than

This case was filed by Jarg, this Jarg Northeastern University was included

because they happened to still be the title owner of the patent. They have some interest in the patent. I

acknowledge all of that. Jarg.

But this case was filed by

Jarg is really personified by one person, Michael He was the CEO. He owns most of the interest We're not

Belanger.

in the company, or at least did at one time.

really sure about now, but the fact of the matter is he's been -- he's been pointed to by everybody in the case as the company. He testified at his deposition We've heard it time and time

that he was the company. again.

This man availed himself of this Court's

jurisdiction when he chose to file the case here. Last Friday, we got plaintiffs' final witness list, and they dropped Mr. Belanger from their witness list. We have him on ours. We called him up You're not And they said,

and said, gee, that's a little strange. calling your own client to -- at trial. that's right, we're not calling him.

And I then asked

them this morning whether or not they would accept a trial subpoena, and they have told me, no, that he's not coming to trial and that they're not going to take a

49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

trial subpoena. We think that it's fundamentally unfair for this man to, again, avail himself of this Court's jurisdiction and then not show up. And so I guess what

I would like to do is to have the Court order them to have their client show up. He is the corporation. He

has represented them all the way through this case, and he ought to be here. MR. SCHICK: behalf of the plaintiff. If anyone is the face of Jarg, it's the inventor of this patent who is Dr. Ken Baclawski. Dr. Baclawski, when he gave his deposition, was presented as the corporate representative. On March the Your Honor, Bob Schick on

11th, we sent a letter to counsel letting them know that for trial purposes, Dr. Baclawski would be the Court representative on behalf of Jarg. Mr. Belanger is the president of what today is essentially a nonoperating company. deposition. He did give his

And counsel -- we gave counsel two days to Mr. Belanger lives in

take Mr. Belanger's deposition.

Massachusetts for part of the year, but at the moment, he's living at Florida where he's taking care of his ill father. We let counsel know that we were not going

50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to bring him to trial.

But they have the corporate

representative, the man who is the -- owns the second most outstanding shares of Jarg, and that's the inventor, Dr. Ken Baclawski. And we think it's unfair,

regardless of what Rule 45 says about service of a subpoena, it is nowhere contemplated that the moving party, the party attempting to subpoena a witness, gets to tell us who our corporate representative is, which is why we told them on March the 11th that our corporate representative would be Dr. Baclawski. MR. CORDELL: Your Honor, they can designate

their corporate rep for purposes of the rule so they can hear all the witnesses. device. That's -- that's a procedural

I -- you know, I guess they could pick -- you

know, they could pick my grandmother if they wanted to be their corporate rep. That's a different matter about whether or not he's going to stand before this Court and before this jury and defend the case that he's filed. And I

asked Dr. Baclawski about his relationship to Jarg at his deposition on I guess it was December 13 of this year, and I asked him point blank -- if I can find it -MR. SCHICK: what you're looking for. MR. CORDELL: He has no relationship. He He holds no offices, if that's

51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

told me he had no relationship.

He resigned from the

board of directors in 2006 -- 2005, excuse me, and -and has -- and he was asked point blank, "Do you have any relationship?" "No." "Have you consulted for Jarg?" "No." "Do you do anything for Jarg?" The answer was "No." Over and over and over again. left Las Vegas with respect to Jarg. relationship with them whatsoever. Dr. Baclawski

He has no We're entitled to

have the man who decided to file this case and -- and made -- made decisions about -- about communicating with -- with Google. Their entire willfulness

allegation is borne out of Mr. Belanger's attempt to reach out to Google. This -- this phantom e-mail that

was sent to a machine and got a machine response, that was Mr. Belanger. That wasn't Dr. Baclawski at all.

So we're entitled to have the man who is the persona of Jarg here in the courtroom and sit in the witness stand and testify. MR. SCHICK: THE COURT: Baclawski, Your Honor -Well, I've heard enough. I'm

denying the request to have plaintiff bring a particular

52

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

representative or witness to trial. MR. SCHICK: THE COURT: MR. SCHICK: MR. DAWSON: THE COURT: Thank you, Your Honor. Anything further? No, Your Honor. No, Your Honor. All right. I'll get you some

guidelines on your interim statements, and I'll get you some rulings on your exhibits that you've got outstanding as quickly as I can. If I can get it to you

before jury selection, I will, but that's not a warranty, okay? With that, is there anything further? MR. DAWSON: MR. CORDELL: you, Your Honor. THE COURT: LAW CLERK: (Recess.) All right. All rise. Thank y'all. No, Your Honor. Not from defendants. Thank

53

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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: 12/31/12

Date