Rosetta Stone LTD v. Google Inc.

Filing 204

TRANSCRIPT of Proceedings held on February 19, 2010, before Judge Theresa Buchanan. Court Reporter/Transcriber Renecia Wilson, Telephone number,703 501-1580. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/26/2010. Redacted Transcript Deadline set for 6/28/2010. Release of Transcript Restriction set for 7/26/2010.(wilson, renecia)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ROSETTA STONE, LTD,
Plaintiff,
VS.
GOOGLE, INC.,
Defendant.

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Civil No. 09-736
February 19, 2010

MOTIONS HEARING

BEFORE:

THE HONORABLE THERESA C. BUCHANAN
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:
FOR THE PLAINTIFF:
FOR THE DEFENDANT:

SKADDEN ARPS SLATE MEAGHER & FLOM
BY: WARREN THOMAS ALLEN, II, ESQ.
JENNIFER SPAZIANO, ESQ.
QUINN, EMANUEL, URQUHART, OLIVER
BY: MARGRET M. CARUSO, ESQ.
ODIN, FELDMAN & PITTLEMAN
JONATHAN FRIEDEN, ESQ.
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OFFICIAL COURT REPORTER: RENECIA A. SMITH-WILSON,RMR,CRR
U.S. District Court
401 Courthouse Square, 5th Floor
Alexandria, VA 22314

RENECIA A. SMITH-WILSON, RMR, CRR

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(Thereupon, the following was heard in open
court at 9:57 a.m.)
THE CLERK:

Rosetta Stone versus Google,

civil action number 09CV736.
THE COURT:

Good morning.

Would you all identify yourself for the
record, please.
MR. ALLEN:

Good morning, Your Honor.

Warren Allen for plaintiff respondent, Rosetta Stone -THE COURT:

Good morning.

MR. ALLEN:

-- along with Jennifer Spaziano.

Jennifer Spaziano will be arguing today.
THE COURT:

All right.

In the back, Google.

Good morning.
MS. CARUSO:

Good morning, Your Honor.

Margaret Caruso, Quinn Emanuel for Google, Inc.

And with

me is Jonathan Frieden.
THE COURT:

All right.

This is on the

defendant's motion for protective order to preclude the
depositions, and I've read the memoranda.
Do you have anything to add to your motion?
MS. CARUSO:
things.

Yes, Your Honor, just a few

One is that I didn't have the chance to respond

to the briefing of the plaintiffs, but I did provide them
yesterday with declarations of Alana Karen and Baris

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Gultekin.

Those are two Google employees who represent

that they were very involved in the trademark policy
changes of 2004-2009, that they along with Rose Hagan are
the people with the most knowledge about those policies.
All of those three witnesses are going to be
deposed or on the schedule to be deposed in this case, and
with the Court's permission I would hand this up.
THE COURT:

All right.

MS. CARUSO:

I also note that the plaintiff

takes the position that unique personal -- unique
knowledge is not required in order to depose a CEO or a
top-ranked executive of the company right off the bat in
discovery.
And if the Court were to accept that
standard, it would be a stunning departure from nationwide
law.

It would make this district very hostile to

corporations because based on the plaintiff's reasoning,
as long as the CEO or the other top-ranking executive
president had been copied on an e-mail that was addressed
to many other people or had approved a policy and
undisputably (sic), we're here about policies that were
approved, that would provide sufficient justification to
take that CEO's deposition.
And if it were to happen, for Google alone,
Google's involved in about 80 cases right now, just

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dealing with patent, copyright and trademark issues, and
if Google's top three executives could be deposed in every
one of those cases where willfulness is an issue, then
that's what they would spend their time doing and they
would not be running the company.
I also would like to point out it's very
interesting that they attached the deposition of Larry
Page that was taken in the American Blind case because
that deposition makes clear how very limited his knowledge
was.

He repeatedly says he doesn't know what the details

of the trademark policy were.

But what they really point

to about that testimony is a statement that they say
reflects his commentary on what became the 2009 trademark
policy, what was implemented as the 2009 trademark policy
of Google.
And I want to clarify for Your Honor that
that is not what became the 2009 trademark policy of
Google.

The 2009 trademark policy of Google does not

allow competitors to use a trademark of another of their
competitor in the text of their ads.
And what it does allow is for resellers to
use that.

So, for example, Amazon can say I'm offering

Rosetta Stone products or companies that manufacture
replacement parts or offer service on that particular
thing.

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I'll pull out a copy of the policy as it
exists right now.

It's available on Google's website.

THE COURT:

You know, I think it might be

helpful if I heard from plaintiff's counsel next and then
I'll come back to you if I have any questions.

All right.

Thank you.
Did you have anything to add to your
opposition?
MS. SPAZIANO:

I do, Your Honor.

First

starting with the declarations that were submitted, the
declarations are from the individuals who claim to have
the most knowledge about these policies.
Alana Karen with respect to the 2004 policy
basically says that she has the most knowledge of the
details of how the policy was changed, options that were
considered and the reasons for that change.
What she doesn't say is the knowledge that
she has regarding why the decision was made to implement
the policy, notwithstanding its known risks.

And that's

the information that executives are going to have.
She also does not say that the individuals
whose depositions we're seeking do not have personal
knowledge of the policies underlying this case.

She says

that they do not have unique knowledge.
The second declaration is from Baris

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Gultekin.

I'm not sure how it's pronounced, and he says

basically the same thing with respect to the 2009
trademark policy, that he's the person most knowledgeable.
He doesn't say that he's the person most
knowledgeable with respect to why the decision was made
and the risk factors that were considered by the company
in making the decision, but basically says the same thing
as Ms. Karen does that they're the person most
knowledgeable.
And what's happening here is Google is
basically trying to tell us what discovery we can take.
And they're trying to say that this case is about the
trademark policies and the development of the policies and
in part, it is, and that's why we wanted to depose these
individuals.

But it's also about the willfulness of the

company in deciding to embark on a policy that the company
recognized could lead to lawsuits regarding the
trademark -THE COURT:

Well, what is it that you think

that you're going to get out of the cofounders and the CEO
of Google that you wouldn't be able to get out of a
30(b)(6) deposition or depositions of other employees such
as those who've submitted the declarations?
MS. SPAZIANO:

Why the decision was made,

how the company decided that it would change its policy in

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2004, notwithstanding the risks associated with that
policy.
THE COURT:

Why do you think that they would

have this knowledge as opposed to the other employees?
MS. SPAZIANO:

The -- first of all, there is

suggestion in the American Blind pleadings that we've
submitted to the Court that Rose Hagan who is referenced
in Google's pleadings and who they've agreed to make
available to us, had a deposition in that case where she
said that the 2004 decision -- the 2004 trademark policy
was implemented as a result of some concerns that Larry
Page had.

And so we'd like to explore with Larry Page

what concerns he had and how they were resolved by that
policy.
This case turns in part on willfulness and
the company's affirmative decision to embark on this
policy, and 30(b)(6) witnesses are not going able to tell
why it was that the company decided to do this and what it
was that the individuals who actually made that decision,
what they considered when they decided to move forward.
Also, the deposition testimony from Larry
Page that is under seal so I won't describe it in any kind
of detail here, but he suggests in that deposition that
the practices that were agreed upon in 2009 could be
confusing.

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And while I recognize the stated policy that
was implemented in 2009, Mr. Page's views that the use of
marks in advertisements could be confusing in 2007
certainly is relevant to whether they, in fact, are
confusing in 2009, whether they're from competitors,
whether they're from pirates, whether they're from
somebody else.
If Mr. Page thought in 2007 that it could be
confusing to use names in ads, certainly that's relevant
to the question whether they are confusing today.

And

Mr. Page's understanding and thoughts with respect to that
in 2007 is relevant to his willfulness in allowing the
policy to be implemented in 2009.
So, that's the kind of information that
these individuals have.

We have reason to believe that

Mr. Page was involved in minute details with respect to
how the policies were implemented and again because of the
confidentialities I won't be specific as to them but they
are in our pleadings.

And it's obvious that these

gentlemen are involved in the day-to-day decisions for the
company.
They have publicly announced in 2004 that
they are going to continue to run the company.

They --

let me see if I've got the most recent quote from them
where they basically say that they are integrally involved

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in the day-to-day management of the company.
These are not individuals who are not
involved in this.

And I think, Your Honor, that's why we

don't have declarations from them.
In all of the cases that Google cites in its
pleadings, the Court has declarations -- and I shouldn't
say all of them because there are a couple of exceptions.
But in most of the cases, the individuals sought to be
deposed submit declarations to the Court can say I don't
have personal knowledge of this.

This is a case for

wrongful discharge, and I don't know this person.

I don't

know why this person was terminated, and I have no
personal knowledge of the matter.
Here these individuals can't say that.
do have personal knowledge.
his 2007 deposition.

They

Mr. Page testified as much in

And he doesn't testify that he

doesn't have knowledge of what happened with respect to
the implementation of the policy in 2004.

He testifies

that he doesn't remember.
Throughout that deposition transcript,
you'll see I don't remember, I don't remember, I don't
remember.
THE COURT:

And what you makes think that

you're going to get any better information out of him this
time?

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MS. SPAZIANO:

Well couple of things, number

one, we have documents that we think we could use to
refresh his recollection that we've seen.

You know, we

shouldn't be bound by what other counsel did in 2007.
Maybe we could take a better deposition and can try to
elicit more information from him.
Number two, it's one of the reasons that
we'd like to talk to the other individuals.

These

individuals tell the public that they make all the
decisions jointly.

So, if Mr. Page didn't remember things

in 2007, perhaps Mr. Schmidt does, or perhaps Mr. Brin
does.

That's why we want to talk to all of them because

he's obviously got some recollection issues as suggested
by his deposition transcript.

Maybe the other gentlemen

recollect their conversations better than he does.
But we also think that we're also entitled
to explore with him 2009.

And the 2007 deposition doesn't

speak to the policy change in 2009, and it doesn't speak
to this issue of confusion that's raised by his transcript
in 2007.
THE COURT:

All right, thank you.

You know, I've reviewed everything here and
the Court's always loath to allow a party to depose the
CPO -- CEO of a big corporation unless there's reason to
think that that executive may have some specific

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knowledge.
And, in this case, I think that there is no
reason to think that the cofounders and the CEO of Google
would have any substantive knowledge as to this decision.
I think quite frankly that the Page
deposition illustrates more that Mr. Page didn't have
substantial involvement, rather than -- that he had any
kind of unique knowledge.
When I'm looking at the size of this
corporation versus the cases that you've cited, the
plaintiffs cited in their opposition, I have to tell you
that with all due respect, there's a huge difference
between the responsibilities and the size of a corporation
of the CEO such as Google and that of the CEO of Long and
Foster or even Rosetta Stone.
And so I find that there is no indication
that these corporate officers, these three corporate
officers had any knowledge that is unique or that is
necessary to be discovered in -- through deposition or
that cannot be most importantly obtained by other means.
And in this case, it seems to me that your best
information is going to come from the persons who you were
set to depose, the ones who submitted the declaration and
any others that you're going to encounter in the 30(b)(6)
deposition.

You can always come back and after you've

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finished all of your depositions if you find that there's
something that's lacking and you have knowledge, if you
have specific indications that the only people who would
know this are the CEO and the cofounders of Google, then
by all means bring your motion back, but I doubt that
would be the case.

So, the motion is granted.

(Proceeding concluded at 10:11 a.m.)

RENECIA A. SMITH-WILSON, RMR, CRR

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CERTIFICATE OF TRANSCRIPTION

I, Renecia Wilson, hereby certify that the
foregoing is a true and accurate transcript that was typed
by me from the recording provided by the court.

Any

errors or omissions are due to the inability of the
undersigned to hear or understand said recording.
Further, that I am neither counsel for,
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above-styled action, and that I am not financially or
otherwise interested in the outcome of the above-styled
action.
IN WITNESS WHEREOF, I have hereto subscribed
my name this 26th day of April , 2010.

/s/
Renecia Wilson, RMR, CRR
Official Court Reporter

RENECIA A. SMITH-WILSON, RMR, CRR