Rosetta Stone LTD v. Google Inc.

Filing 188

Declaration of Jonathan B. Oblak re 190 Brief in support to 189 Motion in Limine (Omnibus) by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 (portions filed under seal), # 6 Exhibit 6, # 7 Exhibit 7 (portions filed under seal), # 8 Exhibit 8 (portions filed under seal), # 9 Exhibit 9 (portions filed under seal), # 10 Exhibit 10 (filed under seal), # 11 Exhibit 11 (filed under seal), # 12 Exhibit 12 (filed under seal), # 13 Exhibit 13 (filed under seal), # 14 Exhibit 14 (filed under seal), # 15 Exhibit 15 (filed under seal), # 16 Exhibit 16 (filed under seal), # 17 Exhibit 17 (filed under seal), # 18 Exhibit 18 (filed under seal), # 19 Exhibit 19 (filed under seal), # 20 Exhibit 20 (filed under seal), # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24 (filed under seal), # 25 Exhibit 25 (filed under seal), # 26 Exhibit 26 (filed under seal), # 27 Exhibit 27 (filed under seal), # 28 Exhibit 28 (filed under seal), # 29 Exhibit 29 (filed under seal), # 30 Exhibit 30 (filed under seal), # 31 Exhibit 31 (filed under seal), # 32 Exhibit 32 (filed under seal), # 33 Exhibit 33)(Cobb, Stephen) Modified text on 4/21/2010 (klau, ). Modified on 4/21/2010 (clar, ). (Received UNDER SEAL exhibits on 4/21/10 and placed in vault)

EXHIBIT 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ROSETTA STONE LTD.,

Plaintiff,

-v-

Civil Action No. 1:09cv736(GBL/TCB)

GOOGLE INC.,

Defendant.

PLAINTIFF ROSETTA STONE LTD.’S
SUPPLEMENTAL RULE 26(a)(1) DISCLOSURES
Plaintiff Rosetta Stone Ltd. (“Rosetta Stone”), by and through counsel, respectfully
submits these supplemental disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil
Procedure. These disclosures reflect information identified, obtained and/or discovered since
Rosetta Stone’s service of its initial disclosures on October 26, 2009. These supplemental
disclosures are made without waiver of the attorney-client privilege, attorney work product
doctrine or any other applicable privilege. Rosetta Stone reserves the right to object to the
production and/or introduction into evidence of any document or evidence described herein or
testimony by any of the disclosed witnesses on the basis of privilege, relevance or otherwise, as
appropriate. Rosetta Stone also reserves the right to add to, or amend, this disclosure, as
appropriate and necessary.

I.

Individuals Likely To Have Discoverable Information

The individuals listed below are likely to have discoverable information relevant to this
lawsuit.


Tom Adams (Rosetta Stone Chief Executive Officer): information relating to
Rosetta Stone’s history; information relating to the infringement of Rosetta
Stone’s trademarks; information relating to harm to Rosetta Stone’s brand caused
by trademark infringement; information relating to Rosetta Stone’s damages.



Simon Berriochoa (Rosetta Stone Vice President Operations): information
relating to the infringement of Rosetta Stone’s trademarks; information relating to
customer confusion; information relating to Rosetta Stone’s damages.



Jason Calhoun (Rosetta Stone Enforcement Manager): information relating to the
infringement of Rosetta Stone’s trademarks; information relating to pirating and
counterfeiting of Rosetta Stone product; information relating to trademark
policing and anti-piracy efforts; information relating to customer confusion;
information relating to communications with Google.



Eric Deuhring (Rosetta Stone Vice President I): information relating to the
infringement of Rosetta Stone’s trademarks; information relating to harm to
Rosetta Stone’s brand caused by trademark infringement; information relating to
marketing/advertising strategy.



Eric Eichmann (Rosetta Stone Chief Operating Officer): information relating to
marketing/advertising strategy; information relating to the infringement of Rosetta
Stone’s trademarks; information relating to harm to Rosetta Stone’s brand caused
by trademark infringement; information relating to Rosetta Stone’s damages.



Mike Hill (Rosetta Stone Enforcement Specialist): information relating to the
infringement of Rosetta Stone’s trademarks; information relating to pirating and
counterfeiting of Rosetta Stone product; information relating to trademark
policing and anti-piracy efforts; information relating to customer confusion.



Heather Ingram (Rosetta Stone Senior Product Manager): information relating to
Rosetta Stone’s damages.



Van Leigh (Rosetta Stone Director 1): information relating to the infringement of
Rosetta Stone’s trademarks; information relating to harm to Rosetta Stone’s brand
caused by trademark infringement; information relating to customer confusion;
information relating to Rosetta Stone’s damages; information relating to
communications with Google.



Nino Ninov (Rosetta Stone Vice President II): information relating to consumer
behavior and Rosetta Stone products and trademarks.
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

Tom Nowaczyk (Rosetta Stone Marketing Analytics Manager): information
relating to the infringement of Rosetta Stone’s trademarks; information relating to
Rosetta Stone’s damages.



John Ramsey (Rosetta Stone Corporate Counsel): information relating to the
infringement of Rosetta Stone’s trademarks; information relating to trademark
policing and anti-piracy efforts; information relating to communications with
Google; information relating to harm to Rosetta Stone’s brand caused by
trademark infringement.



Nicole Tabatabai (Rosetta Stone Marketing Specialist): information relating to
the infringement of Rosetta Stone trademarks; information relating to Rosetta
Stone’s damages; information relating to communications with Google.



Michael Wu (Rosetta Stone General Counsel): information relating to the
infringement of Rosetta Stone’s trademarks; information relating to trademark
policing and anti-piracy efforts; information relating to harm to Rosetta Stone’s
brand caused by trademark infringement.



Raymond Yau (Rosetta Stone Project Manager III): information relating to
consumer behavior and Rosetta Stone products and trademarks.



Steve DuBow (26500 Long View Drive, Conifer, CO 80433): information
relating to confusion caused by Google sponsored links and Google's trademark
policies.



Deborah Jeffries (3800 North Delta Highway, Eugene, OR 97408): information
relating to confusion caused by Google sponsored links and Google's trademark
policies.



Rita Kay Porter (10801 West 99th Street, Overland Park, KS 66214): information
relating to confusion caused by Google sponsored links and Google's trademark
policies.



Denis Doyle (110 Summerfield Road, Chevy Chase, MD 20815): information
relating to confusion caused by Google sponsored links and Google's trademark
policies.



Diana Stanley Thomas (12 Smith Road, Cornwall, NY 12518): information
relating to confusion caused by Google sponsored links and Google's trademark
policies.

3



Former and current Google employees, including Christina Aguiar, Jonathan
Alferness, David Baker, Terri Chen, Edward Chiang, Sanjay Datta, Daniel Dulitz,
Baris Gultekin, Rose Hagan, Richard Holden, Alana Karen, William Lloyd,
Edward (Cory) Louie, John Ploumitsakos, Mickey Rider, Nitin Sharma, Ashish
Vij and Susan Wojcicki: information relating to Google’s trademark policies;
information relating to customer confusion; information relating to Google's
marketing/advertising strategy.

Google and/or its counsel should contact current employees of Rosetta Stone only through
Rosetta Stone’s counsel.

The address for current and/or former employees of Google are

presumed known to Google and not included herein. In accordance with the schedule set by the
Court, Rosetta Stone will identify on April 1, 2010, the name of each witness that it may present
at trial other than solely for impeachment.
II.

Documents

Rosetta Stone may use the following documents to support its claims in this lawsuit:


Documents produced by Rosetta Stone to Google



Documents produced by Google to Rosetta Stone



Transcripts and exhibits of the depositions taken by Rosetta Stone



Transcripts and exhibits of the depositions taken by Google



Rosetta Stone’s Responses to Google’s Interrogatories



Google’s Responses to Rosetta Stone’s Interrogatories



Publicly available trademark applications and registrations



Publicly available materials posted on Google and Google affiliate websites

Rosetta Stone reserves the right to object to the production of any document on any basis
permitted by the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the Local
Rules of this Court, and/or common law. In accordance with the schedule set by the Court,
Rosetta Stone will identify on April 1, 2010, each document or other exhibit, including
summaries of other evidence, that it may present at trial other than solely for impeachment.
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III. Damages
Among the categories of damages that Rosetta Stone seeks are:
1.

all profits reaped by Google from its unlawful actions;

2.

all damages sustained by Rosetta Stone as a result of Google’s unlawful actions;

3.

all damages to the Rosetta Stone trademarks caused by Google’s unlawful actions;

4.

the cost of corrective advertising, or other actions taken to monitor, address and
repair the damage to Rosetta Stone’s trademarks resulting from Google’s
unlawful actions;

5.

the return of all monies paid by Rosetta Stone to Google that Rosetta Stone
incurred in attempting to mitigate the damage caused by Google’s unlawful
actions;

6.

a reasonable royalty for the unlawful use of Rosetta Stone’s trademarks; and

7.

all costs, including attorneys’ fees, incurred by Rosetta Stone to stop Google’s
unlawful actions.

The calculations of some of these categories of damages are set forth in the Supplemental Expert
Report of James E. Malackowski, dated February 4, 2010. Given that Google’s unlawful actions
are ongoing, however, these calculations are based, in part, on outdated data from Google.
Moreover, other elements of damages, such as attorneys’ fees, cannot be fully quantified at
present time. Thus, the computation of certain elements of Rosetta Stone’s damages will have to
await an accounting upon completion of this litigation. The foregoing list of damages does not
constitute a waiver by Rosetta Stone of its right to pursue any remedy available at law or in
equity.

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IV. Insurance
Rosetta Stone is not aware of any insurance agreement under which any person carrying
on an insurance business may be liable to satisfy part or all of a judgment which may be entered
in this action or to indemnify or reimburse for payments made to satisfy the judgment.

Respectfully submitted

Dated: March 18, 2010

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that this document is being served on March 18, 2010, by
electronic mail to:
Jonathan D. Frieden
ODIN, FELDMAN & PETTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
[e-mail]
Margret M. Caruso
QUINN EMANUEL URQUHART & SULLIVAN, LLP
555 Twin Dolphin Drive, Fifth Floor
Redwood Shores, CA 94065
[e-mail]
Counsel for Defendant, Google Inc.
Dated: March 18, 2010

Respectfully submitted,

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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