Rockstar Consortium US LP et al v. Google Inc

Filing 243

RESPONSE in Opposition re 234 Unopposed MOTION for Hearing on Outstanding Issues Google's Response to Rockstar's Motion to Set Hearing on Outstanding Issues filed by Google Inc. (Attachments: # 1 Exhibit A)(Perlson, David)

EXHIBIT A

Andrea P Roberts
From:
Sent:
To:
Cc:

Subject:

Justin A. Nelson [[e-mail]]
Friday, October 31, 2014 11:48 AM
David Perlson
Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C. Olson; Eugene
Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-Google-Rockstar;
Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak; Alexander L. Kaplan; Amanda
Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad; Max L. Tribble; Meng Xi;
Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Re: Upcoming Rockstar/Google motions and proposed hearing date

We will not withdraw. The motion accurately reflects our discussions. Please make sure to
include the email string should you file something. If you wish any clarifications we
continue to believe the best approach is a joint filing on a date plus agreed motions to
expedite.

On Oct 31, 2014, at 11:37 AM, David Perlson
<[e-mail]<mailto:[e-mail]>> wrote:
Justin, please withdraw your motion and we can have these discussions. It is unfair for you
to file a motion as unopposed that does not accurately reflect the record, and then try to
negotiate of that later.
And yes, we do oppose having a hearing before briefing is done on
these issues, as I pointed out, which is entirely possible under your request as written.
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Friday, October 31, 2014 11:33 AM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
The only thing we did not explicitly discuss was whether the hearing would include the senior
executive non-email issue, a point that should be obvious goes on any hearing for outstanding
issues. Do you actually oppose having a hearing on that issue? With respect to a hearing
date, are you opposed to having a hearing within the next few weeks? And do you oppose a
hearing on the 21st?
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
From: David Perlson [mailto:[e-mail]]
Sent: Friday, October 31, 2014 11:29 AM
1

To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Justin, at no point did we agreed to a hearing within the next 2-3 weeks. And, as you
acknowledge, you added things we did not discuss. We ask again that you withdraw your motion.
If you do not, we will file our own response.
David
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Friday, October 31, 2014 11:18 AM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
David – Check the email string. We told you that we wanted a hearing on the fact discovery
deadline in the very first email. You told us twice that you would not oppose our request
for a hearing and did not make any caveats. With respect to a hearing date, we also
specifically discussed it and affirmatively decided not to put a date in at your suggestion.
You knew we wanted a date within the next few weeks (hence the proposed dates), so I am not
sure of the issue. We remain happy to suggest November 21 as a suggested agreed date, but
you suggested not proposing a particular date and instead dealing with any conflict after the
court sets a date. With respect to the senior executive issue, I should have been more
explicit but assumed (wrongly it appears) that the hearing would cover any fully-briefed
issues. Do you oppose having the court hear that at the same time? Note that I also
included your motion to amend invalidity contentions. Finally, the motion simply listed the
issues that are or will be fully briefed, which included the senior executive non-email issue.
With respect to briefing schedules, if you would like to prepare any motion to expedite for
filing along the lines we discussed, we will take a look and will likely agree. With respect
to replies and surreplies on the discovery issues, I suggested a reply and surreply and you
asked to defer the issue. It is completely correct to say that briefing will be complete by
next week, although given that the Court denied your motion for extension today, we may need
to revisit our due date depending on when you file your brief. If you do oppose or file
something, make sure to include this entire email string. The record speaks for itself. It
seems like the best course, however, is to file our motions to expedite and, if you prefer,
to file a date suggesting the 21st. Regardless, we need to give the court the flexibility to
set a date when it is available.
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
From: David Perlson [mailto:[e-mail]]
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Sent: Friday, October 31, 2014 10:56 AM
To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Justin, Rockstar’s “unopposed” motion to set a hearing on outstanding issues, filed yesterday,
does not accurately reflect what Google did not oppose and we ask Rockstar promptly withdraw
it and file a corrected document that accurately indicates what we did not oppose.

Specifically, Google indicated it would not oppose Rockstar’s request for the Court to set a
hearing date on the issues covered in the expedited motions to compel the parties filed on
October 24, 2014 (Dkt. Nos. 222, 228), Google’s Motion for Leave to Amend Invalidity
Contentions (Dkt. No. 220), and Rockstar’s Motion for Extension of Time to Complete Discovery
(Dkt. 233). Google did not indicate that it would not oppose a request that the hearing be
scheduled “in the next 2-3 weeks,” as Rockstar’s motion claims. Rockstar did not even
propose any hearing dates for next week (which we would have opposed), and we explicitly told
you that we did not think a hearing the week of November 10 would work. Indeed, without an
expedited schedule, which the parties have not yet agreed on, our opposition, would not even
be due until November 17, much less the remaining briefing on this motion.

Additionally, in our discussions, Rockstar did not propose to Google that the requested
hearing cover the scope of Google’s search for senior executive custodial non-email. (Dkt.
Nos. 202-203.) Thus, Google’s statement of non-opposition with respect to setting a hearing
date did not even cover this issue. And, it is incomplete to say that the parties have
agreed that all briefing will be complete on the October 24 discovery motions by “next week,”
as Rockstar states. Rather, the parties agreed that responsive briefs will be filed by
November 5. It is our understanding that we will separately file something with the Court
indicating as much. But, the parties explicitly agreed to defer discussions on whether
replies and surreplies will be filed and if so, by when.

Please immediately confirm that Rockstar will contact the Court clerk to advise that Rockstar
will be filing a corrected unopposed motion, and that Rockstar will complete that filing by
noon PT today. We ask that Rockstar send us what it proposes to file as unopposed before it
files. If Rockstar refuses to do so, we will file a separate response to provide an accurate
record.
David
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 3:58 PM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
3

Ok. We will leave it up to the Court to set a hearing date and not suggest a date. Our
motion to extend fact discovery is about a page and a half of text, plus an illustrative
proposed schedule of a little more than a page and a half. Even with the proposed schedule,
it goes to the top of page 4.
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
From: David Perlson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 3:50 PM
To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Justin, it looks like presently our team does not have a conflict on November 21, although
that can change. I don’t think the previous week (11/10) would work for us. In all events,
your other suggestion of not noting a particular date might make most sense if Rockstar is
going to request a hearing date. Then if either party has a conflict with the date that is
set, we can address it at that time.
As for Rockstar’s motion to extend fact discovery, can you let us know how long Rockstar’s
brief will be?
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 10:32 AM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Ok. The other alternative is not to request a date and let the Court pick one but seems like
we should suggest one that works for both of us is possible.
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
4

From: David Perlson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 10:29 AM
To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Ok, as you can understand, I will need to discuss with members on the team.
be able to do that in a couple hours but we will get back to you today.

Not sure I will

From: Justin A. Nelson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 10:24 AM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Ok. Please let us know shortly because we would like to file the request for a hearing in a
couple hours. Also let us know if other dates the week of the 10th work.
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
From: David Perlson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 10:20 AM
To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Justin, sorry if it appeared otherwise, but I did not mean to suggest we were available on
both November 14 and 21. I was just indicating we did not oppose a request for hearing. I
know November 14 wont work. I will need to check on the other date. We will get back to you
today. We will also get back to you today on your request for an expedited schedule,
although I am not sure the issue is necessarily as straightforward as you suggest.
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Thursday, October 30, 2014 10:07 AM
To: David Perlson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
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Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
David – November 5 is fine for the responses. Your suggestion on deferring the issue of
replies/surreplies is fine. Your proposal for the schedule on the motion to amend the
invalidity contentions also is fine, with the caveat that if the hearing we request is after
the 14th, we may ask for additional time until early the following week. My suggestion is
that we deal with that eventuality if we need another day or two on the surreply. With
respect to the motion for hearing, we will mark you down as unopposed to the request and
available on both the 14th and the 21st. Understood that you oppose the motion to extend
fact discovery. Would you agree on an expedited schedule for this? The issue is
straightforward. We would file by today. Your response would be due on the 6th. Any reply
would be due on the 10th, and any surreply on the 14th.
Best Regards,
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.
From: David Perlson [mailto:[e-mail]]
Sent: Wednesday, October 29, 2014 4:15 PM
To: Justin A. Nelson; Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze; Tammie J. DeNio
Subject: RE: Upcoming Rockstar/Google motions and proposed hearing date
Justin,
We agree to an expedited briefing schedule for the motions filed on Friday. Although you and
I discussed a November 4 deadline for responses, I’ve discussed with my team further and we
propose November 5.
Unfortunately, we have some scheduling issues (including some medical
appointments I was not aware of) that make November 4 difficult. Hopefully, this additional
day should not be an issue. We do not believe we need to include in this schedule replies or
surreplies for these briefs, as we had originally discussed.
If either party feels it
necessary having an additional brief I think we can discuss it at that time.
As for a
hearing, we would not oppose a request for a hearing, but do not intend to affirmatively
request one.
Regarding briefing on the motion for leave to amend invalidity contentions, we propose:
·

Response due Nov. 5

·

Reply due Nov. 10

·

Sur-reply due Nov. 14
6

As for Rockstar’s planned motion to extend the fact discovery deadline, we will oppose such a
request that does not also include a corresponding extension of the trial date. As we’ve
explained before, moving the fact discovery deadline without moving the trial date will
compress the later dates in the schedule, including summary judgment, which is unfairly
prejudicial to us.
David
From: Justin A. Nelson [mailto:[e-mail]]
Sent: Wednesday, October 29, 2014 2:08 PM
To: Andy Tindel; Antonio Sistos; Carl Anderson; Charles K Verhoeven; David Perlson; Erik C.
Olson; Eugene Mar; Gregory Blake Thompson; James Mark Mann; Michelle Ernst; QE-GoogleRockstar; Robert Wilson; Roderick Thompson; Sam Stake; Sean Pak
Cc: Alexander L. Kaplan; Amanda Bonn; Bryce T. Barcelo; Cyndi Obuz; John Dolan; John Lahad;
Justin A. Nelson; Max L. Tribble; Meng Xi; Parker Folse; Shawn Blackburn; Stacy Schulze;
Tammie J. DeNio
Subject: Upcoming Rockstar/Google motions and proposed hearing date
David – I hope you and your team had safe travels home. We plan on filing a couple motions
tomorrow which we hope will be unopposed. The first is setting an expedited briefing
schedule for the issues we filed on last Friday. We agreed to a response on Tuesday the 4th.
We would also want to agree on a briefing schedule for any replies or surreplies, or to waive
them. Relatedly, as part of the same motion, we propose a hearing date on these issues next
month. We would suggest either November 14 or 21 as an agreed date. Separately, we intend
to file a motion to extend fact discovery by one month and keep the trial date the same.
Please let us know whether you oppose. Hopefully you are not opposed, but if you are, we’d
like to make sure the issue is addressed at the hearing we propose. Finally, as discussed
before, we are amenable on a briefing schedule that makes sure your motion to amend the
invalidity contentions is ripe for the hearing as well.
Best Regards,
Justin A. Nelson
Susman Godfrey
1201 Third Avenue
Suite 3800
Seattle, WA 98101
206-516-3867
This message is intended only for the people to whom it is addressed and is intended to be a
confidential attorney-client communication. If this message is not addressed to you, please
delete it and notify me.

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