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 7

Amanda Bonn
From:
Sent:
To:

Cc:
Subject:

Amanda Bonn
Friday, July 25, 2014 4:58 PM
'Andrea P Roberts'; John Lahad; Justin A. Nelson; Shawn Blackburn; Alexander L.
Kaplan; Cyndi Obuz; John Dolan; Kristin Malone; Max L. Tribble; Parker Folse; Stacy
Schulze; Tammie J. DeNio; '[e-mail]'; '[e-mail]';
'[e-mail]'; '[e-mail]'; '[e-mail]'
QE-Google-Rockstar; 'James Mark Mann'; 'Gregory Blake Thompson'; 'Andy Tindel'
Rockstar v. Google: Outstanding Meet-and-Confer Issues

Andrea,
I write in response to your July 17 letter in the hopes of resolving outstanding issues that we have been meeting-andconferring about over the past month or so. We request that Google send us any response by Tuesday afternoon and
agree to have a follow-up call on Thursday as necessary. We hope that we can work cooperatively toward resolving any
outstanding issues. But given that we have now met-and-conferred for over a month—including our in-person meetand-confer—we intend to move to compel on any issues we can’t resolve by next Thursday.
ESI:
Please let us know whether Google will agree to produce the additional metadata fields that we have exchanged emails
about.
In addition, it appears that Google is taking the position that the ESI Order exempts both parties from producing any
post-Complaint documents. We do not think our agreement was so broad. Rather, while we agreed that neither party
had an obligation to conduct a general post-Complaint ESI search, it is clear that there are certain categories of postComplaint documents that are highly relevant and ought to be produced. One example is communications with third
parties regarding the lawsuit. Another is financial data. Please confirm that Google is not refusing to produce documents
in these categories based on the ESI Order.
Email Custodians:
We will send you a list of proposed additional custodians by Tuesday.
Interrogatories:
Interrogatory No. 2—As you mentioned, we provided our good faith list of specific functionalities on July 10. If not on
July 25, please provide a date by which you intend to supplement.
Interrogatory No. 7—You appear to be agreeing to supplement Google’s response. Please confirm and provide a date by
which you intend to supplement.
Interrogatory No. 8—You appear to be excluding non-accused products that use search or ads or user profile data from
your supplementation. Your stated basis appears to be relevance, but as you are well aware, the claims directly involved
search, ads, and user profile data. We will move to compel.
Interrogatory No. 9— Google has agreed to supplement by July 25.
Interrogatory No. 10—You mentioned that you are looking into whether Google will supplement its response. Please
confirm and provide a date by which you intend to supplement.
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Interrogatory No. 12— Google has agreed to supplement by July 25.
Document Requests:
Request Nos. 9-11—You appear to be limiting your response to technical design documents about how the system
works. We made clear in our meet-and-confer that we also expected Google to produce testing or development
documents, marketing or other business strategy documents, and other documents regarding the importance of such
systems to Google. Please confirm that Google will search for and produce the full scope of what we are seeking, and
not limit its response to technical documents that show the systems’ operation.
Request No. 12—You appear to be limiting your response to documents related to the creation of the Accused
Instrumentalities “which talk about the importance of them.” That is much narrower than what we explained in our
meet-and-confer and July 10 email. Please confirm that Google will search for and produce the full scope of what we are
asking for.
Request No. 13—Google is agreeing to produce documents regarding how such data is used in Accused
Instrumentalities, but not documents about how data collected through Accused Instrumentalities is used in other
products. We will move to compel on the latter category.
Request No. 14—Google is refusing to produce responsive documents, apparently based on the same rationale as to
Request No. 13. We will move to compel.
Request Nos. 15 and 16—You have asserted that documents requested here are covered by earlier requests. Yet you
have limited your response to earlier requests and as such we can’t tell what you’re actually agreeing to produce. Please
confirm that Google will produce the requested documents, which we expect would include technical design documents
and specifications showing how the systems work; testing or development documents; marketing or other business
strategy documents; documents showing why these systems are important to Google; and documents relating to the
creation of these products and their benefits.
Request No. 17—We have requested documents, suggested the types of documents we expect to be responsive to our
request, and proposed a way of limiting the search (i.e., to members of the EMG-group or equivalent and group lead
managers). You have not agreed to our proposal, or made a counter-proposal, and have simply said you will
“investigate” whether you will agree to produce responsive documents. Please let us know by Tuesday whether you will
agree to our proposal, or we will move to compel.
Request No. 18—Again, it appears that Google is refusing to produce responsive documents, as with request No. 14. We
will move to compel.
Request No. 19—You have said you will investigate issues relating to Dashboard documents. But you have not
responded in any way as to whether Google is agreeing to produce other responsive, non-privileged documents set forth
in our July 10 email. In addition, we expect a response regarding Google’s production of Dashboard information by
Tuesday.
Request No. 22—You have apparently limited our request to “presentations or documents provided to the Board” or
EMG or officers. That is not what we asked for. We asked for documents “presented to, created by, or in the possession
of the Board of directors, members of the EMG (or equivalent), or officers . . . .” Moreover, you haven’t responded to
our request other than to say you have “concern[s] that remain[].” Please let us know by Tuesday whether you will
produce responsive documents or we will move to compel.
Request Nos. 23-24—You failed to respond to the issues in our letter by arguing that it is covered by Request No. 19.
These request call for documents relating to holdback studies or A/B testing. You have not addressed that issue in
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response to No. 19 or otherwise. Please confirm that you will produce what we are requesting by Tuesday, or we will
move to compel.
Request No. 25—You appear to be relying on your Rule 3.4 production to satisfy your discovery obligations. We have
been clear about what this request is seeking and a “sufficient to show” production—which also excludes searches of
custodial data—does not suffice. We will move to compel.
Request Nos. 26-27—You are refusing to produce documents. We will move to compel.
Request No. 28—You have stated you are considering this request. Please let us know your position by Tuesday, or we
will move to compel.
Request No. 29—Please confirm that Google is agreeing to search for and produce documents or presentations
sufficient to show the largest 50 publisher affiliates. We understand that you are investigating whether such documents
exist. But what we are asking for is a confirmation that Google will produce such documents if they do.
Request No. 31—As we proposed during our meet-and-confer, and as Google indicated it would consider, we think it
makes sense for Google to at least preliminary tell us what data it maintains in Dashboard so we can determine a nonburdensome way for Google to produce the necessary data (rather than, as you stated, all underlying log data). Please
give us an answer on whether you will do so by Tuesday.
Request No. 32—You indicated you have completed your search for responsive documents. Please confirm that Google
has produced all responsive, non-privileged documents.
Request No. 34—You seemed to understand this request in your June 18 letter. We simply asked for clarification
whether you were actually agreeing to produce responsive, non-privileged documents located in an ESI search (your
letter was vague as to your intent regarding future ESI searching). Now, however, you are claiming you don’t understand
the request and need further clarification. With all due respect, we think the request is clear and are not sure what
clarification you could possibly need. Moreover, as you pointed out, it appears that Google has now taken down the
language at issue from its website, which indeed appeared in prior versions. We expect documents responsive to this
request to include any documentation about the circumstances regarding Google’s decision to remove this language
from its website, and documents reflecting prior versions of Google’s website that did contain such language, among
others. Please advise whether you will produce such documents or we will move to compel.
Request Nos. 35-37—Same as above. You initially objected that you did not know the source of the statements, and we
have since provided the source. You now indicate that you don’t understand what the requests are searching for. We
are asking for any documents relating to the identified statements, whether technical documents, marketing
documents, or otherwise. Please let us know whether you are agreeing to produce responsive, non-privileged
documents by Tuesday, or we will move to compel.
Request No. 38—You have misstated our position as being limited to GPS data. My July 10 email stated that “device
location could refer to things other than an IP address, for example, GPS coordinates, etc.” Please confirm that you are
agreeing to produce documents responsive to the full scope of our request—whether IP addresses, GPS coordinates, or
any other “device location”—and are not artificially limiting it only to GPS data.
Request No. 39—You have suggested that we indicated the “user-selected location” refers to a specified “location to
search.” We are not sure what you mean by “location to search”—that is not what we said. We indicated that “userselected location” means precisely what it says—a location that the user selects. Please confirm that you are not
somehow limiting your response to “location to search.”
Request No. 44—We have requested certain documents relating to “prior purchasing information.” Your response limits
this to what you call “user-specific prior purchasing information” and indicates you don’t have any such “user-specific”
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related documents. If you can give us a high-level overview of how Google uses any prior purchasing information
through Google Wallet or otherwise (as we requested) and provide documents sufficient to allow us to verify that, we
may be able to resolve this request. As it stands, however, it seems Google is artificially limiting its response to what it
calls “user-specific” prior purchasing information. Please advise us of your position by Tuesday.
Request No. 45—Our request seeks documents relating to AdWords “language targeting” feature, whether summarized
in Google’s support pages or not. As you stated, those support pages can’t always be relied on to show exactly how the
product works. So we are unwilling to limit our request to functionalities outlined in the support website. Please confirm
you will produce responsive documents regarding “language targeting,” and not artificially limit based on whether they
relate to Google’s support website.
Request No. 49—Please confirm that you will actually produce all responsive source code for search and search plus ads.
Request No. 51—You have said our request is limited to test results, but that is not the case. You also have still not let us
know whether you will produce responsive documents. Please let us know whether you will do so by Tuesday, or we will
move to compel.
Request Nos. 53-54-- You have indicated we are limiting these requests to their connection to user profile data. My
email indicated we also think they are relevant to search refinement. You have not told us whether you will produce
responsive documents. Please do so by Tuesday, or we will move to compel.
Request No. 55—Respectfully, it’s tough for us to credit that you don’t understand the relevance of documents
regarding Google’s Ads Preference manager in a case all about correlating ads based on search arguments, search
results and/or user profile data (among other issues). If you’re really having difficulty, we suggest you look at Google’s
own videos about the purpose of the “Ads Preference Manager,” and numerous terms both parties asked to be
construed (including but not limited to “user profile data,” “user-preference edit input,” “search refinement input,”
“user preference re-prioritization input” and others). Unless you confirm by Tuesday that you will produce responsive
documents, we will move to compel.
Request No. 57—To clarify, we are looking for (1) documents regarding how ads are returned on YouTube in connection
with searches run on YouTube and (2) any use of user profile data (whether collected through YouTube or otherwise
through search plus ads) to return ads on YouTube. Please let us know your position by Tuesday.
Request No. 58—If you can give us an assurance of your representation regarding how AdWords for video works and
sufficient documentation to allow us to verify that, we may be able to resolve this request. In addition, please give us an
assurance and sufficient documentation to show that Google doesn’t use user profile data collected from search plus
ads (including, but not limited to, data regarding success, previous search arguments, quality score, etc.) in AdWords for
Video. If you can give us a high-level description of how AdWords for video works and enough documents for us to
verify, that may initially suffice.
Request No. 59—Please confirm that you are agreeing to produce documents.
Request No. 60—You asked if we are seeking documents relating to historical click-through rates. The answer is yes.
Please let us know your position on this request by Tuesday.
Request No. 61—We understood you were agreeing to produce responsive, non-privileged documents. You have
disputed that, and responded that you are only agreeing to “look[] for” such documents. Please confirm that you will not
only look for documents, but produce them to the extent they are located after a reasonably diligent search.
Request No. 67—During our meet-and-confer, we agreed that Rockstar would, in good faith, provide a list of accused
functionalities and that Google would re-consider its position on various document requests to the extent that the list
helped Google identify responsive documents. We can agree that the presentations we are seeking via this request
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would be those that relate to the functionalities described in our list. We expect, in fact, that the vast majority of
presentations about these products would necessarily include accused functionalities. If you can explain to us what sorts
of presentations about these products you think would be unrelated to accused functionalities, we are certainly willing
to consider that issue. Please let us know your position by Tuesday.
Request No. 68—You have misstated our position. We said that this request relates to Google’s testing group, which we
have “discussed” in relation to other requests. We did not say it was duplicative of other requests, or agree that Google
need not respond to it. You also said you would check with your client on whether you will produce responsive
documents. Google has also refused to tell us in response to other requests, or this one, whether it will actually produce
such testing documents. Please let us know by Tuesday whether you will do so.
Request Nos. 69-70—Whose custodial files are you planning to search? Please let us know by Tuesday so we can have a
productive discussion.
Request No. 71—Please confirm that you are agreeing to actually produce responsive documents that “may be located.”
Request No. 72-- Whether the documents are in a “central repository” or in “custodial files”—i.e., legal department
files, one would think, or otherwise—we think they are relevant, responsive, and should be produced. Please let us
know by Tuesday whether you will do so.
Request Nos. 82-83—You have said you are still looking into these requests. Please let us know by Tuesday whether you
will produce responsive documents.
Request No. 85—Whether we can get similar information from a 30(b)(6) deposition in this case doesn’t negate our right
to know what, for example, your 30(b)(6) witnesses have said about these issues in the past. Nor does it negate our right
to receive other responsive, non-privileged documents on the subject. You have still not told us whether you will
produce responsive documents. Please do so by Tuesday.
Request No. 87—There may be some documents responsive to this request that Google intends to rely on for its defense
against willfulness. There may be others that are responsive, but that Google does not intend to use for that purpose.
That Google might be entitled to defer some production until November does not negate Google’s obligation to produce
other responsive documents earlier. Discussions about whether or not this is covered by other requests are unhelpful,
especially given that the request is clear on its face. What would be helpful is for Google to let us know its position on
this request and whether it will produce responsive documents. Please confirm that Google will do so.
Request Nos. 88-89—Your letter didn’t address these request. Please confirm you are producing responsive documents
as set forth in my last email.
Request No. 90—You have still not told us whether you will produce responsive, non-privileged documents. Please do
so.
Request No. 92—You are apparently refusing to produce responsive, non-privileged documents. We will move to
compel.
Request No. 93—Rockstar will agree to the claw-back agreement you propose, subject to ironing out the specifics.
Please let us know what documents you are agreeing to produce.
Request No. 94—Please confirm that you are agreeing to search for and produce responsive, non-privileged documents.
Request No. 95—We will move to compel.

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Request Nos. 96-109—I think you have overstated our position by suggesting we do not need to know “where Google’s
servers are located.” What my email said is that we do not need documents showing “the exact location of the data
centers,” but that we would need documents to show how data flows (as explained further on our call and in my email).
Please let us know your position on these requests by Tuesday.
Request No. 111—While the ESI Order makes clear that the parties need not conduct a general ESI search for postComplaint documents, we think there are clearly categories of documents that were not meant to be covered by that
statement and should be produced including, among other things, communications with third parties post-litigation
(including, for example, Google’s communications with any party it subpoenas, any prior art inventor, etc.). These
documents are highly relevant and go to issues regarding, potentially, witness credibility, among other things. If Google
does not agree to produce these documents, we will move to compel. In addition, you have not confirmed that you will
search custodial data for pre-Complaint documents. Please confirm that you will do so.
Request No. 113—Are you agreeing to search for and produce responsive documents to this request? We believe many
of the documents requested are likely covered by other requests, but need an answer as to what you are doing about
this request. Please let us know.
Request No. 115—It seems we both understand what this request is seeking. Discussions about whether or not it is
duplicative of other requests is distracting and unhelpful. Please advise whether Google is agreeing to produce
responsive, non-privileged documents.
Request No. 116—For now, summary form of financial data is acceptable, but we reserve the right to ask for more
documents after we see it. We do want high-level financial data relating to cost, revenue, and profit information (gross
and net) on a quarterly basis since the introduction of these products (and we are asking for it now). Moreover, in light
of your indication in response to other requests that you do not believe you have an obligation to produce any postComplaint documents, please confirm that Google intends to produce post-Complaint financial data.
Request No. 117—Please let us know your position by Tuesday.
Request Nos. 119-22—You offered a clarification regarding No. 119. But that request calls only for documents
concerning the policies or practices for authorization to use and technology transfer agreements, not the underlying
agreements themselves. Please confirm that Google will produce the responsive documents regarding policies or
practices.
Request Nos. 125-126—Are you agreeing to search custodial data other than email and produce responsive documents?
Request No. 142—Please confirm that your response is not limited to “prior art systems,” but all prior art Google is
asserting.
Request No. 143-145-- Google is refusing to produce documents. We will move to compel.
Request Nos. 146 & 148—You asked if we wanted Google to generate these directory reports for persons listed in
Google’s initial disclosures. Please do so. Please also do not limit your search to people you have listed on your Initial
Disclosures, but do so for the specific categories of employees we have requested. You indicated my email “skipped”
request No. 148. It didn’t. Please produce responsive documents from the directory regarding Request No. 148 as well.
Request No. 150—You are limiting your response to our request for documents concerning interrogatories to
documents that Google either (1) relies on under Rule 33(d) or (2) is within the scope of an interrogatory asking for
document identification. We disagree with Google’s position that this is a sufficient response, and will move to compel.

Amanda Bonn | Susman Godfrey LLP
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1901 Ave. of the Stars, Suite 950 | Los Angeles, CA 90067
(T) 310-789-3131 | (M) 408-832-5193 [e-mail]

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