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)

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Exhibit 3 S USMAN G ODFREY L . L . P . A RE GIST ERED LIMITED LIABILITY PARTNE RSHI P SUITE 950 1901 AVENUE OF THE S TARS LOS ANGELES, CALIFORNIA 90067-6029 (310) 789-3100 FAX (310) 789-3150 __________ Suite 5100 1000 Louisiana Street Houston, Texas 77002-5096 (713) 651-9366 __________ Suite 5100 901 Main Street Dallas, Texas 75202-3775 (214) 754-1900 __________ Amanda Bonn Direct Dial (310) 789-3131 Suite 3800 1201 Third Avenue Seattle, Washington 98101-3000 (206) 516-3880 __________ 15th Floor 560 Lexington Avenue New York, New York 10022-6828 (212) 336-8330 __________ 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 July 1, 2014 Page 3 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 July 1, 2014 Page 4 “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 July 1, 2014 Page 5 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

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