Rockstar Consortium US LP et al v. Google Inc

Filing 126

MOTION to Compel by Rockstar Consortium US LP. (Attachments: # 1 Appendix of Exhibits ISO Motion to Compel, # 2 Affidavit of Amanda Bonn ISO Motion to Compel, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Text of Proposed Order Granting Motion to Compel)(Bonn, Amanda)

Exhibit 3

S USMAN G ODFREY L . L . P .
A RE GIST ERED LIMITED LIABILITY PARTNE RSHI P

SUITE 950
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LOS ANGELES, CALIFORNIA 90067-6029
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Suite 5100
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Suite 5100
901 Main Street
Dallas, Texas 75202-3775
[phone]
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Amanda Bonn
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Suite 3800
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Seattle, Washington 98101-3000
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15th Floor
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E-Mail [e-mail]

July 1, 2014
VIA E-MAIL
J. Mark Mann
G. Blake Thompson
MANN | TINDEL | THOMPSON
300 West Main Street
Henderson, Texas 75652
Charles K. Verhoeven
David A. Perlson
Sam S. Stake
QUINN EMANUEL
URQUHART & SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111-4788
Andrea P. Roberts
QUINN EMANUEL
URQUHART & SULLIVAN, LLP
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, California 94065
Re:

Rockstar Consortium US LP et al. v. Google Inc., Case No. CV 1300893(RG) (E.D. Tex.)

Dear Counsel:
I write in response to Google’s deficient responses to Plaintiffs’ document
requests set forth in Google’s letter dated June 18, 2014. I also write regarding
Google’s disclosure of most significant email custodians on June 30, 2014.
Both Google’s response to Plaintiffs’ document requests and its disclosure of
email custodians illustrate a disturbing pattern in Google’s approach to its Court-

July 1, 2014
Page 2

ordered discovery obligations in this case: complaining about purported
deficiencies in Plaintiffs’ Infringement Contentions—notwithstanding that Google
received the contentions months ago and never moved to compel more specific
responses—and using that as an excuse to avoid providing discovery.
The Court’s ESI Order required both parties to exchange yesterday a “specific
identification of the twenty most significant listed e-mail custodians,” which
“requires a short description of why the custodian is believed to be significant.”
See ESI Order at 7 & n.1 (emphasis added). Google’s disclosure only includes
sixteen custodians rather than twenty, and apparently attempts to justify the
withholding of four custodians’ identities on the grounds that Plaintiffs’
Infringement Contentions do not provide sufficient “specificity regarding what
functionalities it accuses of infringement . . . .” Moreover, Google completely
fails to include the required “short description of why the custodian is believed to
be significant.” Google has failed to comply with the Court’s ESI Order and
should immediately supplement the disclosure to include (1) the required twenty
most significant custodians and (2) the required “short description” of the reason
for each custodian’s significance.
Along similar lines, Google’s response to Plaintiffs’ document requests consists
primarily of (1) complaining about purported deficiencies in Plaintiffs’
Infringement Contentions and (2) using that argument as justification for refusing
to produce relevant documents. By way of example, Google argues that
“Rockstar’s Infringement Contentions do not sufficiently specify what Rockstar
accuses of infringing the asserted claims,” and then suggests that “[w]ithout such
specificity . . . it is difficult, if not impossible, for Google to identify what
documents are ‘relevant’ to the litigation,” noting that this explains its assertions
that it “does not understand the relevance” of dozens of requests.
As an initial matter, Plaintiffs served their Preliminary Infringement Contentions
on March 24, 2014—over three months ago. To the extent Google had any
complaint about the sufficiency of those contentions, the appropriate response
would have been to promptly meet-and-confer and file a motion to compel.
Google did not do so.
Instead, Google has elected to repeat its complaint about the specificity of
Plaintiffs’ Infringement Contentions as an excuse for Google’s myriad discovery
failures—including its service of millions of combinations of prior art in its
Invalidity Contentions, its refusal to respond to interrogatories, its refusal to
provide the Court-ordered email custodian disclosures, and, in this instance, its
refusal to produce relevant documents. Indeed, even in the parties recent meetand-confer over Google’s Invalidity Contentions, Google threatened that it would
complain about Plaintiffs’ Infringement Contentions to the Court only if Plaintiffs

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filed a motion to compel regarding Google’s Invalidity Contentions. It seems
Google would prefer to use its purported complaint as a crutch throughout the
case rather than bringing it to the Court’s attention for prompt resolution.
Google’s approach of trotting out this favorite hobby-horse as an excuse for
failing to respond to discovery requests violates Federal Rule of Civil Procedure
26 and the Discovery Order, both of which provide that “[a] party is not excused”
from its discovery obligations simply because “it challenges the sufficiency of
another party’s disclosures, or because another party has not made its
disclosures.” See Fed. R. Civ. P. 26(a)(1)(E); Discovery Order (Dkt. No. 69) at
¶ 10. Indeed, the Discovery Order requires that “[w]ithout awaiting a discovery
request,” Google must “produce or permit the inspection of all documents,
electronically stored information, and tangible things in the possession, custody,
or control of the party that are relevant to the pleaded claims of defenses involved
in this action . . . .” Discovery Order (Dkt. No. 69) at ¶ 3(b) (emphasis added).
For numerous requests, Google appears to make disingenuous claims of failing to
understand what the request is seeking or the relevance of the request in order to
avoid producing responsive documents. By way of example only, Request No. 96
seeks documents “concerning the location of Google’s servers and data centers,
both in the United States and internationally.” Similarly, Request No. 109 seeks
documents “related to the interaction between Google’s servers and data centers
in the United States and Google’s servers and data centers outside the United
States, including all documents showing any relationship between any ‘master’
server or database and any subservient or servant servers or databases.” Google
raises no objection to these requests other than to state it “does not understand the
relevance of this request.” Plaintiffs find it difficult to believe that sophisticated
counsel for Google fail to understand the relevance of the locations of Google’s
servers, particularly given that Google objects to other document requests because
they call for information regarding Google’s activities outside of the United
States. See, e.g., Objection to Request No. 166 (objecting that request for sales
and revenue data is “not limited to U.S. financial data”).
In another example, Google objects to producing “licenses and/or agreements
between Google and any third party for providing Google search services to a
third party, including but not limited to all licenses and/or agreements between
Google and Yahoo!,” on the grounds that it “do[es] not understand what relevance
Google’s agreements with these third parties has to the litigation.” See Objection
to Request No. 33. Once again, Plaintiffs find it difficult to believe that Google’s
counsel do not understand this request, as (1) Plaintiffs accused “Google search
services provided to third-party websites such as Custom Search Services or
AdSense for Search” and (2) Google itself requested that Plaintiffs produce any

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“comparable licenses” that may be relevant to a reasonable royalty determination.
Google made similar claims of failing to understand the request in dozens of other
instances. See, e.g., Objections to Request Nos. 2-4, 7, 8, 13, 15, 17, 36, 37, 45,
46, 48, 50-52, 54, 55, 57, 58, 66-68, 73-85, 87, 88, 90-92, 94-109, 111, 113-15,
117-22, 142-45, 147, 149. While Plaintiffs cannot help but be skeptical of such
claimed confusion, they nevertheless are willing to meet-and-confer regarding
requests that Google insists it does not understand. Plaintiffs invite Google to
evaluate whether it truly intends to claim ignorance as to the meaning and
relevance of all of these requests.
In many of the requests to which Google apparently agrees to produce some
responsive documents—rather than claiming an inability to understand the
request—it has taken an unfairly narrow and limited approach to its discovery
obligations. By way of example only, document request No. 150 seeks “[a]ll
documents related to any Interrogatory served on you or any response you provide
to any Interrogatory.” Google has agreed only to produce documents only to the
extent that (1) “any interrogatory . . . asks Google to identify documents” and (2)
“Google cites to documents pursuant to Rule 33(d) in response to an
interrogatory.” This response is improperly narrow. For example, Google may
attempt to respond to an interrogatory under Rule 33(d) by citing documents that
it believes support its position. But the document request requires Google to
produce documents related to the interrogatory regardless whether they support
Google’s position. Similarly, Plaintiffs are entitled to use interrogatories to ask
Google to identify certain specific documents from within its production. But that
does not limit Plaintiffs’ ability to seek production of any documents related to
any interrogatory (whether it calls for identification of specific documents or not).
In another example, Plaintiffs asked that Google produce documents “that support
or relate to your contention in Paragraph 37 of your Answer” regarding noninfringement. Google responded that it would only produce “documents
supporting its contentions in this matter . . . .” But Google is equally obligated by
the request to produce documents that would refute its non-infringement
contentions. There is no apparent basis for Google to limit its response to
documents that support, rather than refute, its position.
It further appears that Google is taking an overbroad position with respect to
privilege. For example, it appears that Google is refusing to produce any litigation
hold or related documents it may have sent to partners, licensors, customers,
resellers, or affiliates on grounds of the attorney-client privilege and work product
doctrine. See Objections to Request No. 153. Plaintiffs fail to understand
Google’s position that such documents sent by Google to third parties are
privileged. Please explain Google’s basis for believing that such correspondence

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sent to third parties is privileged and whether Google is asserting a privilege over
any other documents sent to third parties that fall within the scope of Plaintiffs’
requests.
For many requests, Google stated that “[a]dditional documents may also be
located in Google’s searches of custodial data pursuant to the terms of the
proposed ESI agreement.” See, e.g., Objections to Request No. 1. Although the
parties were negotiating an ESI agreement when Google served its responses and
objections, the Court has since entered an ESI Order—which, as you know,
rejected many of the limitations on electronic discovery that Google sought.
Please confirm that Google intends to produce responsive documents pursuant to
the Court’s ESI Order. In addition, please confirm that for each category of
documents to which Google stated additional documents “may be located,” that it
actually agrees to produce such documents. See, e.g., Objections to Document
Request Nos. 1, 5, 6, 9, 10, 12, 14, 16, 19, 21, 26, 30, 34, 38, 39, 47, 49, 52, 56,
60-65, 71, 73-79, 89, 127, & 128.
The above examples are not exhaustive, but are merely illustrative of Google’s
deficient approach to its discovery obligations pursuant to the Discovery Order
and ESI Order and in response to Plaintiffs’ document requests.
Plaintiffs wish to meet-and-confer promptly regarding Google’s deficient
responses to Plaintiffs’ document requests and disclosure of most significant ESI
custodians. Please advise what times you are available for a meet-and-confer
between Wednesday, July 2, 2014 and Thursday, July 3, 2014. If Google intends
to submit revised responses and objections to Plaintiffs’ document requests and a
revised ESI disclosure in advance of such a meet-and-confer—which Plaintiffs
believe is appropriate—we request that it do so no later than 12 hours in advance.
If you have any questions or concerns regarding this letter, we are happy to
discuss them during our meet-and-confer.

Sincerely,

Amanda Bonn