FPX, LLC v. Google, Inc. et al

Filing 39

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/26/09 Scheduling Conference before Judge Chad Everingham. Court Reporter/Transcriber: Susan Simmons, CSR,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 11/18/2009. Redacted Transcript Deadline set for 11/30/2009. Release of Transcript Restriction set for 1/26/2010. (lss, )

FPX, LLC v. Google, Inc. et al

Doc. 39

1 2 3 4 V. 5 6 7 8 9 10 11 12 13 14 APPEARANCES: 15 FPX, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION § § § § § § § Civil Docket No. 2:09-CV-142-TJW

GOOGLE, INC., ET AL

Marshall, Texas October 26, 2009 1:30 p.m.

********** JOHN BECK AMAZING PROFITS, LLC § Civil Docket No. § 2:09-CV-151-TJW-CE § V. § § Marshall, Texas § October 26, 2009 GOOGLE, INC., ET AL § 1:30 p.m.

TRANSCRIPT OF SCHEDULING CONFERENCE BEFORE THE HONORABLE CHAD EVERINGHAM UNITED STATES MAGISTRATE JUDGE

FOR THE PLAINTIFF: 16 17 18 APPEARANCES CONTINUED ON NEXT PAGE 19 20 21 22 23 24 25 COURT REPORTER/: TRANSCRIBER

MR. DAVID MICHAEL PRIDHAM Attorney at Law 25 Linden Road Barrington, RI 02806

MS. SUSAN SIMMONS, CSR Official Court Reporter 100 East Houston, Suite 125 Marshall, Texas 75670 903/935-3868

(Proceedings recorded by digital recording, transcript produced on CAT system.)

Dockets.Justia.com

-21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE DEFENDANTS: APPEARANCES CONTINUED MR. KIP GLASSCOCK, JR. Attorney at Law 550 Fannin, Suite 1350 Beaumont, TX 77701 MR. MARC A. FENSTER Russ August & Kabat 12424 Wilshire Blvd. 12th Floor Los Angeles, CA 90025 MR. CHARLES "CHIP" BABCOCK MR. CARL BUTZER Jackson Walker - Dallas 901 Main St. Suite 6000 Dallas, TX 75202-4207

-31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS THE COURT: Please be seated.

A scheduling conference is set today in Cases 2:09-CV-142 and 2:09-CV-151, FPX versus Google and Beck versus Google, respectively. What says the Plaintiff? MR. GLASSCOCK: Your Honor, we're ready. And

if I can introduce my co-counsel is David Pridham and Marc Fenster, Your Honor. MR. FENSTER: THE COURT: Good afternoon, Your Honor. All right. Good afternoon.

I only mentioned Google, but there are other Defendants involved in the cases as well. Defendants? MR. BABCOCK: Your Honor, Charles Babcock and Who's here for the

Carl Butzer of Jackson Walker for all Defendants. THE COURT: MR. BABCOCK: THE COURT: All right. Y'all ready to proceed?

We are, Your Honor. All right. Have a seat.

Somebody tell me why I shouldn't consolidate these cases for discovery purposes and class -- dealing with the issues of certification. MR. FENSTER: Honor, Marc Fenster. May it please the Court, Your

If I can, I'd like to address that. Uh-huh.

THE COURT:

-41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different? MR. FENSTER: The class claims in the state MR. FENSTER: The -- the cases should be

consolidated or coordinated for discovery purposes, but not consolidated. These are two separate classes involving

different claims, and so while coordination for consoli -- for discovery purposes makes sense because there are overlapping issues, I don't think that consolidation makes sense because there will be different questions for cert -- for certification with respect to each class. The putative class

-- the putative classes are different, and putative class claims in each case are different. subset of the other. THE COURT: Well, how are the class claims One is not just a mere

case, Your Honor, which is FPX, involve two state claims that are not included in the federal case which is now styled the Rodney Hamilton Living Trust. The -- the two fed -- the two

state claims are, one, common law trademark infringement; and, two, unjust enrichment. And those claims are not at issue,

nor is there any analog to them in the federal cases -- in the national class. THE COURT: MR. FENSTER: Okay. So there are considerable issues

overlapping for discovery purposes, but ultimately there will be different questions for -- for certification, so we --

-51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiffs' position is that we would like consolid -coordination but not consolidation. THE COURT: MR. BABCOCK: perspective, Your Honor? THE COURT: Well, it was your motion. I didn't Okay. Would you like to hear from our

mean to ask for the response first, but I didn't -- I think you just filed your motion a few days ago. MR. BABCOCK: speaks for itself. Yes. Yes, we did, and -- and it

The only thing I would add is he forgot

that there are four additional Defendants in the FPX case, but the claims -- it's true there are two state claims, but they're identical allegations, identical things they have to prove, and the FPX class is a subset of the Beck class. In

other words, they asked for state -- statewide Texas class certification and nationwide class certification in the Beck case, so the distinctions are in our view without a difference and they are trying to get substantial additional discovery based on those slim -- slim differences. MR. FENSTER: Your Honor, I don't think that We

the Plaintiffs are looking for any additional discovery.

want to make sure that we have sufficient discovery in both cases, but it has been our proposal to Defendants throughout that discovery taken in one case should be used in both and that there should not be duplication between the two cases.

-61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Okay. All right. All right. THE COURT: Well, are you asking for a hundred

hours of depositions per side in each case? MR. FENSTER: THE COURT: MR. FENSTER: No. In the combined cases.

The combined cases. A hundred hours, total, Your

Putting aside the issue of whether they ought to be formally consolidated, I'm going to address the issues of what discovery you -- you're entitled to, and I'm going to give -I'll give you a hundred hours per side in the two cases, and I'll call them for now -- for present purposes coordinated cases. Whether or not I issue an order that consolidates all

or part of them for purposes -- either for discovery or through certification, I'll leave that -- I'll allow you to file a written response to the motion and I'll allow the briefing to -- to -- to complete on that, but, you know, a hundred hours per side is sufficient in these -- for -- for both cases as far as I'm concerned. So that's going to be the

order of the Court on your depositions. I'll adopt your -- well, on your proposed written discovery, are you seeking 35 requests for production, 35 requests for interrogatories, and 35 requests for admissions in each case or in the coordinated cases? MR. FENSTER: Your Honor, I think we're fine

-71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 having that as the limits for the coordinating cases. THE COURT: That will be the order of the Court

then for the coordinated cases. Working back from certification, in light of the discovery that I'm going to allow in the case, I'm going to set you a certification date toward the end of October 2010. Ms. Lockhart, you -COURTROOM DEPUTY: THE COURT: Yes, sir.

-- I'm going to -- I'm going to set

them both on the same day, one in the morning and one in the afternoon. If I wind up consolidating them and hearing the

entirety of the argument that morning, then that may be what we do. Ms. Lockhart, if you can give me a date the last week of October 2010. COURTROOM DEPUTY: THE COURT: Which week of October?

The last week? How about Tuesday, October

COURTROOM DEPUTY: 26th, at 9:30 for one -THE COURT:

Tuesday, October 26th at 9:30 for

the FPX, and then the Hamilton case will be set that same afternoon at 1:30. In light of that, y'all think y'all can meet and confer on an agreed order with respect to the other

-81 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deadlines? MR. FENSTER: THE COURT: I believe we can, Your Honor. Well, the one -- one thing I want

to ask you about is why are you requesting two different deadlines for the identification of experts and then the service of reports? MR. FENSTER: be the same date. Your Honor, they can -- they can

What I was concerned about was getting

squeezed on the date for the reports because we need time to conduct surveys -THE COURT: MR. FENSTER: and consolidated. THE COURT: I under -- okay. Now, Mr. Babcock, That's --- so they can be at a later date

if -- I mean, are y'all interested in receiving the identities of their expert and then -- one date and then the service of their reports on a second date or are you interested -- I mean, your proposal to me has it all happening on the same day, which is -- be customary in my Court, but I don't have frankly a preference. It's y'all's lawsuits, not mine, so... We don't have a preference

MR. BABCOCK:

either, either way is fine with us. THE COURT: what I'm going to do. Okay. Well, I'm going to tell you

I'm going to go ahead, in light of the

discovery that I've -- that I've allowed, I'm going to adopt

-91 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 generally the Plaintiffs' proposal as to when the expert reports are going to be due. Now, I'll phase them and let you

identify the experts at some earlier date if you want to, but -- but the Defendants are telling me that they don't really care one way or the other, so it -- I mean, it would be customary for me to just have a single deadline in there for the disclosure of experts and the -MR. FENSTER: THE COURT: That makes sense. -- service of reports, so absent

agreement otherwise, I'd -- that'll be the order that -- that I sign. Unless and until the certification order is issued in the case, I would be inclined to allow you to conduct discovery under the rules and not adopt a discovery order that, you know, provides for what -- what I would call mandatory disclosures and what -- I'd ordinarily use in a twoparty, you know, case or maybe a two or three-party case that did not involve class action allegations. I'd wait to adopt a

more formal discovery order once certification -- those issues have been decided and I've -- the Court's determined whether or not it's going to proceed as an individual claim or it's a class claim. The general rule that I follow is that discovery is limited to issues of certification so when you're dealing with relevancy fights, you can bear that in mind. But

- 10 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 I also have some understanding of what the -- the circuits look for in assessing certification issues, and there is going to be some overlap in the merits. So, Mr. Babcock, from y'all's standpoint, you know, I think the law is going to require me to look at the merits of claims and defenses as they're asserted, so blanket objections to the relevancy of -- the production of information on the grounds that it goes to the merits of -- of the claims and are not limited to class certification issues are going to be ill-received. MR. BABCOCK: THE COURT: Okay? Yes, Your Honor. With that, what else do y'all want

me to do today insofar as resolving your differences in this case? MR. FENSTER: I think that takes care of it

from the Plaintiffs' perspective. THE COURT: Okay. I think I've resolved your I've tried to give you

disputes as to discovery limitations.

some guidance on -- on the schedule that I'd like to see you adopt, and I'm essentially adopting the Plaintiffs' version of -- of when things need to happen and I don't -- y'all know your schedules more than I do, so when you give me a May of 2010 date, I -- I'll allow you a week to meet and confer and see if you can pick the right date in May for, for instance, the -- the Defendants -- you know, the rebuttal reports, for

- 11 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 instance. Then sometime in April of 2010 for your opening

expert reports. And motion for class certification will be due sometime in July of 2010. MR. BABCOCK: THE COURT: MR. BABCOCK: Your Honor -Yes, sir. -- I just had two brief things.

One, there was language that we had found in the Court's order in the class case involving the Goldman-Sachs and Broadhead case, and I think it was Paragraph 15 that -- that gave everybody some guidance as to the -- what you just told us about the overlap between merits and we would -- we would ask that that language be incorporated in whatever order you have just so that we have some guidance and can talk to our clients, et cetera, et cetera. THE COURT: Well, if you can -- I mean, I don't

know that what I said tracks precisely what was said by the Court in the Goldman-Sachs case -MR. BABCOCK: THE COURT: Pretty close. -- but that would certainly be one And if

that I look to if I were called up to craft an order.

y'all want to supply a copy to counsel and include it in the final order that governs your -- the case through the disposition of class certification, then I'll include it in there.

- 12 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 MR. BABCOCK: That would be great, Your Honor.

Yeah, we have supplied it to them and it's also in our proposal, so... THE COURT: MR. BABCOCK: Okay. One other matter, and I think

maybe I won't speak for Plaintiffs' counsel, but we were a little puzzled about a provision that the Court asked about which is Item 6 in our joint proposal which was deadline for filing any dispositive motions of class certification issues which was a different request for a date than the -- than the class certification hearing. And as I was looking at it last night, it -- it struck me that there may be a preliminary motion that the Defendants would want to make that perhaps was what the Court had in mind or maybe not, but this is a very unusual case in that as far as we can tell, there's never been a class certified in a trademark dispute like this one. And there was an identical case that was just decided in Illinois, a case called Vulcan Golf versus -coincid -- coincidentally Google. no discovery allowed. And in that case there was

The Court said that just per se, based

on the type of claims that there were, class certification was inappropriate. I wondered if it would be -- if it would fit in with the Court's schedule, which we're fine about, but to have

- 13 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 some date -- earlier date -- we had said April, but I think maybe earlier than that even -- when we could raise that type of an issue with the Court, just that this is a trademark claim. By the very nature of trademarks, it defies class -It's sort of a per se matter.

you can't ascertain a class.

And if the Court would entertain that, great; and if not, we'll just wait until you've made my law firm or they've made my law firm a lot of money and we've done a lot of depositions. THE COURT: Well, I don't -- I don't have a I don't I want

disinclination to putting that deadline in there.

have an aversion to doing it sooner rather than later.

everybody to understand, though, that the filing of such a motion doesn't stay discovery. MR. BABCOCK: THE COURT: Right, exactly. So I mean, I don't want you to --

to resist doing discovery on the grounds that -- that you think I'm going to recommend that motion be granted. MR. BABCOCK: THE COURT: Absolutely, yeah. As long as everybody is on the same Okay?

page, if you've got something to file, you know, particularly something along those lines, I suggest doing it sooner rather than later if you want to get it before Court. MR. BABCOCK: Okay? And if I

Very well, Your Honor.

could -- to the extent the Court's interested, I've got an

- 14 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 all I had. THE COURT: Well, short of just adopting that extra copy of this Vulcan -- Vulcan versus Google case. could leave it with your law clerk? THE COURT: to counsel, as well. MR. BABCOCK: Thank you, Your Honor. That's That would be fine. Supply a copy If I

view today and sending everyone on their way, is there anything else we can do today to resolve the case sooner rather than later? MR. FENSTER: No, Your Honor. I just do want

to comment very briefly on the Vulcan matter, Your Honor. We are very familiar with the Vulcan case. This case is very different than the Vulcan case, and I think that the motion that Defendants are contemplating is actually a motion regarding certification that can only be decided during certification. I think that it will be a waste of the

parties' resources and the Court's time in that it will ultimately be put off until certification, but we'll respond to the motion as -- as it's brought out. THE COURT: If they file it, you need to

respond to it or ask for such extensions as you think are appropriate in light of what the procedural history of the case is, but -- okay? MR. FENSTER: Will do, Your Honor.

- 15 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 * THE COURT: I've given you the discovery that

you've asked for, and if he's got a request to make, I'm generally going to allow parties to make those requests. Okay? MR. FENSTER: THE COURT: the Plaintiffs' standpoint? MR. FENSTER: THE COURT: MR. BABCOCK: THE COURT: Thank you for being here. MR. BABCOCK: Thank you, Your Honor. All rise. No, Your Honor. Defendants'? No, Your Honor. All right. Y'all are excused. Thank you. Thank you, Your Honor. Anything else we can do today from

COURT SECURITY OFFICER:

(Hearing adjourned.) * * * *

- 16 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 __________________________________ SUSAN SIMMONS, CSR Official Court Reporter State of Texas No.: 267 Expiration date: 12/31/10 ______________________ DATE I HEREBY CERTIFY that the foregoing is a correct transcript from the digital recording of the proceedings in the above-entitled matter to the best of my ability. CERTIFICATION