Rosetta Stone LTD v. Google Inc.

Filing 224

TRANSCRIPT of Proceedings held on April 23, 2010, before Judge Theresa C. 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 6/11/2010. Redacted Transcript Deadline set for 7/12/2010. Release of Transcript Restriction set for 8/10/2010.(wilson, renecia)

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

Civil No. 09-736
April 23, 2010

REPORTER'S TRANSCRIPT
MOTIONS HEARING

BEFORE:

THE HONORABLE THERESA CARROLL BUCHANAN
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:
FOR THE PLAINTIFF:

SKADDEN ARPS SLATE MEAGHER & FLOM LLP
BY: JENNIFER SPAZIANO, ESQ.

FOR THE DEFENDANT:

ODIN FELDMAN & PITTLEMAN PC
BY: STEPHEN COBB, ESQ.
QUINN EMANUEL URQUHART OLIVER
BY: JONATHAN OBLAK, 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 10:02 a.m.)
THE CLERK:

Rosetta Stone versus Google,

civil action 09CV736.

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THE COURT:

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MS. SPAZIANO:

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Good morning.
Good morning, Your Honor.

Jen Spaziano, Skadden Arps on behalf of Rosetta Stone.
My local counsel is upstairs in Judge Lee's
courtroom because we've got parallel arguments going on.
THE COURT:

That's all right.

We can

proceed without him.

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MS. SPAZIANO:

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MR. COBB:

Thank you.

Good morning, Your Honor.

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Stephen Cobb, Odin Feldman.

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Jonathan Oblak has been

admitted pro hac vice.

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MR. OBLAK:

Good morning.

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THE COURT:

All right.

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Did you have

anything to add to your motions for sanctions?
MS. SPAZIANO:

I do, Your Honor.

Yesterday

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we received additional documents from Google.

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have indicated in their responsive papers, and I've

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actually got them with me and can bring them out and just

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want to highlight the importance of these documents to the

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issues that we're dealing with in this case.

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And as they

Google says in its opposition papers that

RENECIA A. SMITH-WILSON, RMR, CRR

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they're less than 20 documents.

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thousand pages, and they are -- I'm going to be very

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general in describing the documents because they've been

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marked attorney's eyes only and confidential subject to

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the protective order in this case.

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But they're very important documents
underlying the conclusions --

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They're in excess of a

THE COURT:

Ms. Spaziano, I'm having trouble

understanding why these documents are so earth shattering
when you have the survey results.

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MS. SPAZIANO:

Okay.

The reason that

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they're important is -- is because number one, they

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support the conclusions that we have advanced in our

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summary judgment papers.

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we basically said undisputed facts number 20.

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undisputed fact 20 reads what it reads, and we've asked

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for that finding as a sanction for this.

In our summary judgment papers

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THE COURT:

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MS. SPAZIANO:

And

Right.
In response to that

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undisputed fact, Google went back to its client and said

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we need some documents in order to refute this undisputed

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fact, and they advanced these documents in response to

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that --

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THE COURT:

Right.

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MS. SPAZIANO:

-- three pages of it.

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THE COURT:

Right.

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MS. SPAZIANO:

And so we -- basically we

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think those documents actually support the position that

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we're advancing, but it's certainly not appropriate for

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Google to rely on those documents in opposing our motion

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for summary judgment.

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Google to then provide to us 126 pages of documents

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relating to those same conclusions.

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the -- they're basically the surveys that underlie the

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It certainly isn't appropriate for

They're basically

conclusions.

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THE COURT:

Uh-huh, right.

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MS. SPAZIANO:

And if you look through the

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surveys, you'll get a real good feel for how the testing

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was done.

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THE COURT:

Right.

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MS. SPAZIANO:

And it allows us to explain

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why it is that those conclusions support our burden of

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proof here.

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THE COURT:

So you though have, I assume,

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included those documents that have now been disclosed to

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you in any supplemental brief that you file with regard to

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motion for summary judgment?

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MS. SPAZIANO:

We did not, Your Honor.

We

did not get them until the day the reply briefs were due.
THE COURT:

And when do you have the hearing

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on that?

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MS. SPAZIANO:
before Judge Lee.

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This morning, 10 o'clock

THE COURT:

All right.

But you've told

Judge Lee that you have these now, have you not?

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MS. SPAZIANO:

We -- no, we've told them

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through this motion which is one of the reasons that we

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highlighted in our notice in our cover letter that this

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motion pertains to the matter that's scheduled for hearing

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before him.

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THE COURT:

Uh-huh.

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MS. SPAZIANO:

Obviously, it's a little bit

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complicated because of the scheduling.

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THE COURT:

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MS. SPAZIANO:

Uh-huh.
But basically, you know, the

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issue is that these documents came up in the context of

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summary judgment briefing.

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summary judgment motion.

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THE COURT:

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MS. SPAZIANO:

They used them to oppose our

Right.
And then when we raised our

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motion for sanctions, they go back to try to figure out

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how this happened and say, oh, there was a mistake in our

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vendor.

We have a thousand more pages of documents.

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THE COURT:

Right.

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MS. SPAZIANO:

Those documents actually

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include other documents that we think are very important

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to us, a couple of them dealing with other issues, the

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2009 policy change and some of the things that Google did

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before it implemented the 2009 policy change.

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And what's prejudicial to Rosetta Stone is

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we haven't had an opportunity to cross-examine witnesses

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on it.

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to you but would be uncomfortable doing so in an open

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court in light of the confidentiality issues.

And again I have the documents and I can show them

But I can

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look at them and say, boy, I would have liked to have

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asked Dan Dulitz, the 30(b)(6) witness about this or Baris

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Gultekin, the 30(b)(6) witness on another topic about

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this.

But we didn't have that opportunity.

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So now we have these documents and no

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opportunity to effectively conduct discovery with them, no

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opportunity to use them in connection with summary

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judgment and that's where we are.

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I mean there's no question that's not
disputed.

They've acknowledged the error.

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THE COURT:

Right.

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MS. SPAZIANO:

And on the error, I mean, we

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look at their papers and there's still all sorts of

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questions about the production here.

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sanctions, we identified an e-mail that we received dated

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May of 2008 that refers to a particular study.

In our motion for

RENECIA A. SMITH-WILSON, RMR, CRR

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e-mail has a link where the final report on that study is

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supposed to appear.

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can be found at www.Googlesites.com and then the following

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link.

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The e-mail basically says the study

We don't have that study.

And if you read

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the Brewer declaration that was submitted in support of

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the motion -- the opposition to the motion for sanctions,

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it doesn't address that anywhere.

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And if you read the Brewer declaration --

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I'm not sure if Kris Brewer is a he or a she, but

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basically Brewer says when we got the Court's ruling on

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the motion to compel, we went back and we looked for

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basically three categories of documents.

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But your order was much boarder than that.

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So, they didn't even go back and look for more documents.

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We raised issues in correspondence that said well what

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about these documents referenced in this index to Chrisant

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Fullery's (phonetic) deposition and that index is in the

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papers and again, I'm not going to say what they'd asked

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for.

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But, there were certain very specific

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experiments identified there, and we've asked for

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documents about that.

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went back and we checked the links and the links are

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basically dead and we couldn't find any documents.

And in response, they say, well we

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Well, how could it be that there were no
documents anywhere regarding these particular experiments?

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We've got the testimony of their 30(b)(6)

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witness on studies, and I believe the testimony has all

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been marked attorney's eyes only.

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confirms that all such documents should have been

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maintained.

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he basically says how you would find them if you wanted to

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find them.

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But basically, he

He says where they should be at Google, and

And the Brewer declaration doesn't suggest

that Google did any of that to give us these documents.

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So we find ourselves in a position of, one,

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knowing we didn't get I guess it's 1,126 pages of

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documents that Google concedes were responsive to the

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request and should have been produced under this Court's

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order.

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And we have reason to believe that there are

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other documents out there that we don't have.

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a trial date coming up of May 3rd.

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And we have

So, in light of all of that we think that

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the request that we're seeking, the relief that we're

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seeking really is appropriate to address the prejudice to

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Rosetta Stone.

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We're basically saying give us as a factual

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finding what we say is undisputed.

And I'm a little bit

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surprised by Google's reaction to that because what we're

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asking the Court to find is basically what their document

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state.

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exhibits, I think, four, five, six, and seven and they

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basically say what our factual finding said, we had

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documents to support it.

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Those documents are attached to my declaration as

So the only argument Google has in response

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to that is, well, the surveys or the studies or whatever

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was done don't really support that.

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is, look, we didn't have the survey of those studies.

But what we're saying
So,

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you can't just that to refute that fact.

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factual finding, hardly addressed at sanction when their

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documents say exactly that.

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So give us that

We're asking for them to certify that they

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have complied with your order in all respects and

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basically say what they've done to comply with it.

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I think Kris Brewer's declaration tries to

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do that.

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to your order, it falls far short of undertaking efforts

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to identify the documents responsive.

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looking for the costs associated with bringing this motion

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and basically dealing with this issue.

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But when you look at what Google did in response

And then we're

And given the May 3rd trial date we think
that's totally appropriate under these circumstances.
THE COURT:

All right, thank you.

You know,

I reviewed this and I reviewed the documents that were

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submitted to me and all of the representations, the

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affidavits.

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results, the report on the surveys.

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completely that you think that the actual surveys

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themselves don't support their position, that they support

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your position instead.

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any problem having your experts testify as to that at

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trial.

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this issue with Judge Lee now in terms of the motion for

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And Rosetta Stone as I said had the survey
And I understand

But I'm sure that you won't have

I'm sure that your co-counsel upstairs is raising

summary judgment.

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I'm actually satisfied that their production

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is complete, that they've done what was required in terms

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of their search and their production.

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the failure to produce these documents was inadvertent.

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don't believe that it was intentional.

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And I think that
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And, although it was late, obviously, I

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don't think that the kind of sanctions that you're seeking

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here are called for.

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anything else that can be done at this point.

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I don't think that really there's

The documents have been produced, and I

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don't think that sanctions in this instance are

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appropriate.

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Sometimes production is not perfect.

And we

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try to take care of ones where they are really negligent,

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really purposefully deceitful.

I don't think that that

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was this case, and I don't think that there's any real

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prejudice here to Rosetta Stone.

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So the motion for sanctions is denied.

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motion to seal is going to be granted.

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Thank you.

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MR. COBB:

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(Proceeding concluded at 10:12 a.m.)

Thank you, Your Honor.

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RENECIA A. SMITH-WILSON, RMR, CRR

The

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CERTIFICATE OF TRANSCRIPTION

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I, Renecia Wilson, hereby certify that the

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foregoing is a true and accurate transcript that was typed

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by me from the recording provided by the court.

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errors or omissions are due to the inability of the

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undersigned to hear or understand said recording.

Any

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Further, that I am neither counsel for,

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related to, nor employed by any of the parties to the

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above-styled action, and that I am not financially or

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otherwise interested in the outcome of the above-styled

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action.

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IN WITNESS WHEREOF, I have hereto subscribed
my name this 12th day of May , 2010.

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

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RENECIA A. SMITH-WILSON, RMR, CRR