Rosetta Stone LTD v. Google Inc.
Filing
62
TRANSCRIPT of Proceedings held on February 4, 2010, before Judge Theresa Buchanan. Court Reporter/Transcriber Renecia A. 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 3/22/2010. Redacted Transcript Deadline set for 4/20/2010. Release of Transcript Restriction set for 5/19/2010.(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 4, 2010
REPORTER'S TRANSCRIPT
MOTIONS HEARING
BEFORE:
THE HONORABLE THERESA BUCHANAN
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
FOR THE PLAINTIFF:
FOR THE DEFENDANT:
SKADDEN ARPS SLATE MEAGHER & FLOM
BY: WARREN THOMAS ALLEN, ESQ.
JENNIFER LYNN SPAZIANO, ESQ.
CLIFFORD MYER SLOAN, ESQ.
QUINN, EMANUEL, URQUHART OLIVER
BY: MARGARET CARUSO, ESQ.
ODIN FEKLMAN & PIDDLEMAN
BY: JONATHAN FRIEDEN, ESQ.
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OFFICIAL COURT REPORTER: RENECIA A. SMITH-WILSON, RMR
U.S. District Court
401 Courthouse Square
Alexandria, VA 22314
(703)501-1580
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(Thereupon, the following was heard in open
court at 2:00 p.m.)
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THE CLERK:
Rosetta Stone versus Google,
civil action 09cv736.
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THE COURT:
Good morning.
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MR. ALLEN:
Good morning, Your Honor.
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Warren Allen on behalf of plaintiff, Rosetta Stone.
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here with Jennifer Spaziano and Clifford Sloan from
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Skadden Arps.
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THE COURT:
All right, good morning.
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MR. ALLEN:
Ms. Spaziano will be arguing.
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THE COURT:
Good morning.
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MS. CARUSO:
I'm
Hi, Your Honor.
I'm Margaret
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Caruso from Quinn, Emanuel, Urquhart, Oliver & Hedges
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for Google, Inc, the defendant.
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THE COURT:
17
MS. CARUSO:
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That's all right.
Good morning.
And this is Mr. Jonathan
Frieden.
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THE COURT:
All right.
Thank you all for
20
coming in today, but I won't be here tomorrow.
21
an 8 a.m. flight to Florida.
22
make it.
23
everything, and I've read all of the discovery requests.
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25
Ha, ha, ha.
I've got
So, hope I
Not to rub it in, but anyway, I've read
Do you have anything to add to your motion
to compel?
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MS. SPAZIANO:
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Jen Spaziano on behalf of plaintiff, the
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Yes, Your Honor.
movant, Rosetta Stone.
4
You've read all the pleadings --
5
THE COURT:
6
MS. SPAZIANO:
I have.
You can basically see that we
7
have reached agreement on a lot of the document requests
8
that were at issue in the opening brief.
9
But, that there's really an impasse between
10
the parties with respect to what's left in issue and I
11
think irrespective of the number of requests that remain
12
outstanding, it really boils down to one thing which is
13
whether Google made the pool from discovery in this case
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documents relating to similar issues raised regarding
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Google's advertising program.
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question that we're addressing here today.
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That's really the
And for many reasons, the simple answer to
the question is no.
I've got some background that I'm happy to
20
tell you about regarding Rosetta Stone and what it does
21
and how important its marks are to it.
22
It's the leader in language education in the
23
United States.
And it owns numerous federally
24
registered trademarks that it has worked very hard to
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market and protect.
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THE COURT:
2
MS. SPAZIANO:
3
And, I'm aware of that.
I know you are.
You hear
Rosetta Stone, you know what it means.
4
THE COURT:
Right.
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MS. SPAZIANO:
It doesn't mean the artifact.
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It means the language learning software.
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Google.
8
And what's at issue here is their sale of
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advertisements -- their sale of trademarks for the
10
And you know
Google operates the Internet search engine.
advertisement.
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THE COURT:
Right.
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MS. SPAZIANO:
Basically, Google takes the
13
position here that essentially information arising or
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discussed or communications, documents relating to
15
either litigation involving Google's practice of selling
16
trademarks or challenges that don't rise to the level of
17
litigation where somebody writes them a letter, a cease
18
and desist letter or asks them not to sell their
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trademark, not information that we're entitled to
20
discover.
21
And they base that position on the argument
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that this involves likelihood of confusion and whether
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Google's practices resulted in a likelihood of confusion
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with respect to other trademarks is not relevant to the
25
question of whether Google's practices results in
5
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likelihood of confusion with respect to Rosetta Stone's
2
trademarks.
3
And focusing on this very narrow issue of
4
customer confusion, Google asked the Court basically to
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ignore the forest for the trees.
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other challenges to Google's practices are not going to
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address only the particular marks at issue in those
8
cases, the trees that Google asks the Court to focus on.
9
They also will address Google's advertising practices
Documents relating to
10
generally, the forest that's really at issue in this
11
case.
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THE COURT:
I do have a couple of specific
questions if I could.
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MS. SPAZIANO:
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THE COURT:
Please.
Requests number five and 113
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concern me because the apparent breadth of the request,
17
and I'm not quite sure what you're aiming for in those
18
requests.
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Could you explain those to me and why you
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need such -- or have you thought about narrowing that --
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those two requests?
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MS. SPAZIANO:
The issue of narrowing the
23
requests I think is something that we're willing to work
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with Google on.
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actually quite effectively --
I think the parties have worked
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THE COURT:
Well, have you talked about
2
these two requests specifically in terms of narrowing
3
them?
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5
MS. SPAZIANO:
In -- the answer is I have
not because we just got involved in the case recently.
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THE COURT:
Uh-huh.
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MS. SPAZIANO:
My understanding is that
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there have been discussions with respect to narrowing
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the requests and that the parties have worked rather
10
well in narrowing requests.
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THE COURT:
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MS. SPAZIANO:
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Uh-huh.
But the concern here is that
Google has simply taken the blanket position that -THE COURT:
I understand that, but I'm
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trying to figure out is -- because my specific concern
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with regard to five and 113 is that I think by looking
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at them that they're too broad.
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MS. SPAZIANO:
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THE COURT:
They're too broad.
Even if I were to grant them to
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you, they seem broad to me.
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what it is you want, really want in five and 113.
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MS. SPAZIANO:
And I'm trying to find out
Sure.
What we're looking for
are communications between Google and its customers.
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THE COURT:
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mean paying customers?
Now when you say customers, you
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MS. SPAZIANO:
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THE COURT:
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MS. SPAZIANO:
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what we're looking for --
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THE COURT:
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Advertisers.
-- advertisers, exactly.
And
And then you say or with users
of their Internet search engine.
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We mean --
MS. SPAZIANO:
If a customer, if a user, you
or me -THE COURT:
Right.
MS. SPAZIANO:
-- who runs the Google search
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complains about the advertisements, word is sent, a note
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to Google saying I don't understand how you're ad --
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what it means for something to be a sponsored ad.
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So users could communicate with Google in a
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way that could give rise to communications that are
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relevant to the claims at issue in this case.
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THE COURT:
Well, except the way you worded
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this is not so clear or specific.
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the sale -- just generally.
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MS. SPAZIANO:
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THE COURT:
It says relating to
Sure.
Relating to the sale, marketing,
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promotion, offering, designation, use or inclusion of
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the trademarks.
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That's awfully still broad, I think.
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MS. SPAZIANO:
Broad for you.
What we're
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trying to get at through this request are basically
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communications that Google received from its advertisers
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or from users that basically question or raise issues
4
with respect to the use of trademarks in sponsored ads.
5
So, for example, if a -- if I were to sent
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an e-mail to Google that says I just searched for
7
Rosetta Stone, and I was brought to a website that I
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purchased pirate software on, and I don't understand how
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that could have happened because I thought I was getting
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to a Rosetta Stone site.
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That's the type of --
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THE COURT:
Well, is your question really as
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far as users are concerned relating to confusion and
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sponsored ads?
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MS. SPAZIANO:
Relating to confusion and
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sponsored ads but not specifically the Rosetta Stone
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mark.
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THE COURT:
Okay.
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MS. SPAZIANO:
The idea that Google's
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practice of using trademarks in sponsored ads creates
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confusion.
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THE COURT:
Okay.
And in regards to 113, do
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you have any reason to believe that there is a rankings
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that's already created by Google or is this something
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that you're asking them to create?
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MS. SPAZIANO:
In request numbers 107 to
2
112, there were requests that certain information be
3
created.
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have to look to Margaret for some assistance in why it
5
is that 107 to 112 are off the table but 113 remains on
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the table, as I was not involved in those discussions
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and 113 builds on 107 to 112.
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9
10
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And on this one, quite frankly, I'm going to
THE COURT:
Well, let me look back at those
because I really wasn't focusing on those.
Hold on a
second.
MS. SPAZIANO:
May I invite Ms. Caruso to
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try to respond to that to help us?
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THE COURT:
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MS. CARUSO:
Sure.
Well, I can't explain why 113
15
remains on the table, but I can say that 107 and 112
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Rosetta Stone's prior counsel agreed to withdraw on the
17
grounds that those were overly burdensome because they
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would require Google to --
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THE COURT:
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MS. CARUSO:
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THE COURT:
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Okay.
-- create because these -So, is 113 -- does Google have
any kind of document that already exists?
MS. CARUSO:
No, Your Honor.
It would have
to create all of those multiple, multiple documents.
THE COURT:
Okay, all right.
Then let me go
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back to Google -- I mean Rosetta Stone.
2
All right.
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agreed to?
4
And what temporal limits have
your requests?
5
Is it back to 2002 with regard to all of
MS. SPAZIANO:
I believe that Google has
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agreed to produce back to 2004.
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we're entitled to documents that go back further than
8
that because obviously, documents outside the statute of
9
limitations would be relevant to documents within the
10
Our position is that
statute of limitations.
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My understanding is that there have been
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certain categories of documents with respect to which
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Google has agreed to produce documents predating 2004,
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presumably in recognition of the position that those
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documents do, in fact, bear on issues occurring during
16
the relevant timeframe, the statute of limitations
17
timeframe.
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So, our position is that to the extent that
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documents are discoverable with respect to particular
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topics, challenges to the add words program, litigation
21
involving the add words program, we would be entitled to
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documents that predate 2004 as well.
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THE COURT:
Okay.
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settlement agreements?
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would show, I mean, or prove.
And, what about the
I really don't know what those
Settlement agreements
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involve so many factors.
2
MS. SPAZIANO:
They do involve so many
3
factors.
4
say, and that's the struggle for being in the position
5
of asking for documents.
6
But the issue is that we don't know what they
I can look at the fact that there's been a
7
litigation and I can say, well, your depositions are
8
certainly going to have information and interrogatories
9
are certainly going to be information, and request for
10
admissions are certainly going to have information.
11
Expert reports are certainly going to have information.
12
I don't know what --
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THE COURT:
would you have from a settlement agreement, though?
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MS. SPAZIANO:
THE COURT:
Whereas Google does not admit
liability.
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MS. SPAZIANO:
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THE COURT:
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Whereas clause, whereas
Google --
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What kind of useable information
Well --
I mean I guarantee you that's in
there, so are you -MS. SPAZIANO:
That's assuming that that's
what it says.
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THE COURT:
Right.
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MS. SPAZIANO:
I mean you guarantee me that
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it's in there.
I suspect that it's in there.
2
THE COURT:
Yeah.
3
MS. SPAZIANO:
But taking it on face value
4
that in there, but not asking for the documents that
5
could contain a damning admission that's relevant to
6
what they say.
7
requested, they demonstrate that they can engage in some
8
kind of a practice that would, you know, stop the
9
trademark infringement and still allow for certain, you
Or it could be in the relief that's
10
know, certain practices to continue without trademark
11
infringement.
I don't know what's in them.
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THE COURT:
Okay.
13
MS. SPAZIANO:
I understand the fact that if
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there are standard settlement agreement that just denies
15
all liability and agrees on some kind of a settlement
16
payment and results, it might not have information, but
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it very well could.
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THE COURT:
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MS. SPAZIANO:
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Okay.
And it is reasonably likely
to lead to the discoverable of admissible evidence.
THE COURT:
All right.
Let me hear from
counsel for Google.
MS. CARUSO:
Thank you, Your Honor.
I'd
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like to pick up with the settlement agreement point
25
because I think it's illuminating on a number of these
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issues.
2
Even if the settlement agreements did say
3
the very unlikely event they said whereas Google admits
4
infringement, Rule 408 tells us that's not admissible to
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prove infringement.
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THE COURT:
Uh-huh.
7
MS. CARUSO:
And given that it's not
8
admissible to prove infringement, it has no relevance on
9
the issue of intent.
10
of our opening brief.
And we cited a case on page eleven
It's a --
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THE COURT:
I'm satisfied as to those --
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MS. CARUSO:
13
THE COURT: -- as to the settlement
Okay.
14
agreement, so why don't you address any other issue
15
you'd like.
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MS. CARUSO:
Sure.
I'll continue on from
there --
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THE COURT:
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MS. CARUSO:
Uh-huh.
-- because it raises the same
20
types of issues.
All of the -- any one cease and desist
21
letters, any e-mail that we've gotten from a third party
22
saying Google, we don't like your policy, any consumer
23
who said Google, I bought this product from a website
24
that was advertised on your site and I don't like it.
25
It's not what I thought it would be, all of those in
14
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order to be relevant to the issue of intent which is
2
what Rosetta Stone has identified are only going to be
3
relevant to the extent that those prove or there's proof
4
that there was infringement.
5
that there was ever infringement.
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held liable for infringing trademarks in any
7
circumstances, especially the advertising circumstance.
And there's no proof here
Google has never been
8
And so, this would require trials and I
9
can't say mini trials because they would be just as
10
expensive on this trial on every single one of these
11
things.
12
us from the limited time we have left in discovery to
13
focus on the issues that matter here which are Rosetta
14
Stone's trademarks.
And it's just going to take us -- really divert
15
It's important, I think, to understand when
16
we say we're not using these third party-type documents
17
it doesn't mean they're not getting any general studies,
18
any general policy, reasoning, any policies.
19
these things that Google has done with respect to
20
trademarks generally speaking, it has agreed to provide
21
and has provided mostly, still in the process of
22
production.
23
But, these are very far afield.
All of
And I can
24
come back to the issue of relevance because I think it
25
really -- it's a show stopper.
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But the issue of burden I think is equally a
2
show stopper, because in order to collect type of
3
information they're talking about, there is no
4
formulated search.
5
trademarks to look for.
6
There's not even a list of
We would have to -- Google would have to
7
manually review all of the documents at a minimum in its
8
Trax database which keeps all communications with
9
advertisers and with consumers about advertising.
10
And
those -- those databases contains ten terabytes of data.
11
THE COURT:
How are they collated or
12
categorized?
13
together with no organization, is it?
14
15
I mean, it isn't just all dumped in there
MS. CARUSO:
If you
looked by advertiser, advertising campaign --
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THE COURT:
17
MS. CARUSO:
18
I don't think so.
Uh-huh.
-- you can kind of go into it
that way.
19
THE COURT:
20
MS. CARUSO:
Uh-huh.
But, there's nothing about
21
their request that enables it to be narrowed in that
22
way.
23
thing for anything with Rosetta Stone in it.
We have given them -- we've searched the whole
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THE COURT:
25
MS. CARUSO:
Uh-huh.
That -- they have all of that.
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THE COURT:
2
MS. CARUSO:
Uh-huh.
But, you know, in terms of some
3
customer saying I purchased what I thought was a Nike
4
shoe and it's not a Nike shoe, what are the search terms
5
that we can use to find that e-mail?
6
7
8
9
THE COURT:
So, the only thing they're
organized as to is marketing campaigns?
MS. CARUSO:
The advertiser -- you can look
by advertiser and then you can look by their advertising
10
ID number and then by their sub campaigns because
11
advertisers run -- Amazon, for example, runs numerous
12
different campaigns at any given point in time.
13
THE COURT:
14
MS. CARUSO:
Okay.
So, on this issue of, you know,
15
all these communications with third parties and
16
communications with consumers, ten terabytes of data,
17
it's something that's really hard to even conceive of,
18
but I'm told that it would equivalent -- come out to
19
greater than two billion pages of text which if you
20
assumed one second to review every one of those pages
21
would take someone 74 years, 24/7 review.
22
23
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25
We certainly don't think that whatever
relevance they may have justifies that burden.
THE COURT:
request number five?
But, would that relate just to
17
1
2
MS. CARUSO:
only one.
3
4
5
Request number five is not the
THE COURT: -- or is that -- would it be ten
as well?
MS. CARUSO:
Ten is one that's very broad.
6
It would require the same thing.
7
79 also would go to that same extent.
8
broad in calling for all --
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10
11
12
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THE COURT:
23, the same thing.
They're extremely
23 is guidelines and policies,
not letters of complaint.
MS. CARUSO:
23.
It's -- if I recall
correctly, I just -THE COURT:
Actually, ten would not relate
14
because that's really just with regard to third parties
15
whose trademarks are used, not just general consumers.
16
17
18
I don't see anything else that would relate
to consumer letters.
MS. CARUSO:
Well, this one reads all
19
documents relating to any Google policies relating to
20
the sale, marketing, promotion, offering, designation,
21
use or inclusion of trademarks owned by third parties is
22
the key words.
23
So if we just stop right there, I'd be
24
surprised if Rosetta Stone takes the position that, for
25
example, a consumer's statement, Google, your trademark
18
1
policy winds up with me but --
2
THE COURT:
3
if we delete the consumer letters?
4
Well, what are we talking about
MS. CARUSO:
We're still talking about a
5
whole lot of trouble because trademarks owned by third
6
parties as key words is not a separate and defined
7
category within Google.
8
things.
9
We don't have a list of those
We don't have -THE COURT:
You mean to tell me that the
10
consumer who complains about what they got linked to
11
when they clicked on Google is kept with the same
12
letters from a corporation that complains about how
13
you're using its trademark?
14
MS. CARUSO:
It depends on what exactly that
15
letter from the corporation says, but in some instances,
16
yes.
17
18
THE COURT:
Well, how would they normally be
kept if it's a --
19
MS. CARUSO:
20
THE COURT: -- big letter from a big company?
21
MS. CARUSO:
22
Is -- a letter that raises a
violation of Google's trademark policies --
23
THE COURT:
24
MS. CARUSO:
25
So a --
Uh-huh.
-- would be kept in one place.
And that would be, for example, under a Google's current
19
1
policy if someone said so -- you know, party X is
2
advertising and my trademark name shows up in the text
3
of their advertisement.
4
THE COURT:
5
MS. CARUSO:
Uh-huh.
And they're not an authorized
6
reseller and they're not a third party opinion site.
7
They don't fit into the terms of what Google says you
8
can use my --
9
THE COURT:
10
11
MS. CARUSO:
Uh-huh.
-- trademark for in a text of
the ad.
12
If that is the complaint, then it would go
13
to Google's trademark team and be processed as a
14
trademark complaint, and it would be in that batch of
15
documents.
16
THE COURT:
17
MS. CARUSO:
Uh-huh.
-- which is a large batch of
18
documents.
But letters that say, it looks like this
19
person is bidding on my key word and I don't like --
20
THE COURT:
21
MS. CARUSO:
22
THE COURT:
23
MS. CARUSO:
This person is doing what?
Bidding.
Oh.
Trying to have their ad
24
displayed in response to that trademark being entered as
25
a search query, then those would -- those don't violate
20
1
Google's current trademark policy and wouldn't go to
2
that database group.
3
Trax database.
4
They would remain in the general
THE COURT:
So, it sounds as though you have
5
easier access to things that are not in the Trax
6
database?
7
MS. CARUSO:
I -- there are fewer things,
8
but still a very large magnitude of things in terms of
9
those types of complaints.
10
And, again, that doesn't seem to me to be
11
what Rosetta Stone is looking for, or certainly not the
12
limit of what they're looking for.
13
Again, I'm just talking about complaints
14
that others are in violation of Google's trademark
15
policies.
16
THE COURT:
But, what if they're not saying
17
it's Google's trademark policy that I'm complaining
18
about, just complaining about what I perceive to be your
19
infringement of my trademark.
20
trademark policy?
21
office?
22
23
Where does that go, legal counsel's
MS. CARUSO:
general database.
Does that go into this
That -- it's filed in this
And --
24
THE COURT:
25
MS. CARUSO:
Trax.
Yes, in Trax.
21
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2
3
4
5
6
7
THE COURT:
But is it also filed somewhere
else then?
MS. CARUSO:
Not that I'm aware of, Your
Honor and I've spoken to Google about this.
THE COURT:
Where else could such a letter
be filed besides in the trademarks policy group?
MS. CARUSO:
I'm not aware of -- such a
8
letter as you've just described basically saying this
9
violates my trademark separate and apart from Google's
10
trademark policies --
11
THE COURT:
12
MS. CARUSO:
13
14
Uh-huh.
-- would just remain in Trax
database because -THE COURT:
15
office or this as well?
16
MS. CARUSO:
They wouldn't go to counsel's
Google wouldn't take further
17
action on it because it wouldn't -- it doesn't rise to
18
the level of something that Google has determined it
19
will take action on.
20
THE COURT:
Well, how does Google determine
21
it will take action on something, only if somebody says
22
it violates Google's trademark policy?
23
24
25
MS. CARUSO:
Well, they don't have to use
those magic words.
THE COURT:
Okay.
That's what I'm trying to
22
1
2
figure out.
MS. CARUSO:
Someone would view the
3
communication as it comes in and make that
4
determination.
5
6
7
THE COURT:
I see, okay.
I understand.
Anything else?
MS. CARUSO:
Yes, Your Honor.
So, the
8
trademark infringement and -- the real -- the root issue
9
here is going to be likelihood of confusion.
And
10
there's no general holding out there in the law that the
11
sale of -- the use of a trademark as a key word, that in
12
and of itself is infringing.
13
All the cases say you have to look at the
14
facts of the case.
15
advertising, what is the content of the ad, what is the
16
website that it's linked to.
17
You have to look at who's doing the
And those very dramatically -- in the case
18
of Rosetta Stone, if you've done a recent search on
19
them, the main non-Rosetta Stone sponsored link that
20
shows up is Amazon.com, an authorized reseller of
21
Rosetta Stone.
22
That's very different from if you have
23
mostly counterfeiters who are bidding.
And of course,
24
that violates Google trademark policy and they would
25
take those down upon notice, or if you have competitors,
23
1
or if you have parties who are bidding on the word
2
because the word has a separate and independent meaning.
3
For example if someone was advertising
4
British museum tours to see the Rosetta Stone, or Apple
5
if someone was bidding because they had some other Apple
6
product not related to the company.
7
8
So, to take those collectively just doesn't
say very much in this case about these facts.
9
And if what they --
10
THE COURT:
Well, how is it really?
I mean,
11
this is a very different type of trademark infringement
12
case.
13
know, how close a violation it is and so forth and so
14
on.
And normally you really would be looking at, you
It would be unique as to each particular trademark.
15
I really don't see how the trademark holders
16
in these cases are different from Rosetta Stone.
17
They're not trying to invade the actual trademark in
18
terms of making something sound similar to Rosetta
19
Stone.
20
the Geico name, and you're using the Rosetta Stone name
21
and the -- you know, I forget who the others were,
22
American Airlines name specifically when it's put into
23
the search engine to use that to link to advertisers.
24
25
They're -- you're using the name.
You're using
So I don't know how you have -- there may be
to some degree that they can be differentiated and
24
1
perhaps that would arise when evidence of the other
2
manufacturer -- the other companies's trademarks might
3
be introduced into evidence at trial.
4
5
But for discovery purposes, I really don't
see how they're very different.
6
MS. CARUSO:
Well, let me talk about that a
7
little bit.
I mean in the Geico case, the Court drew a
8
distinction between links that were just triggered by
9
the key word which it found no problem with and found
10
that Google hadn't produced any evidence that consumers
11
were not confused if it used the name.
12
THE COURT:
Well, that's not necessarily the
13
case.
14
necessarily it says what you're saying it says or that
15
it goes as far as you'd like to think it does.
16
also don't think that it really is relevant to this case
17
because it was not an ultimate determination of the
18
case.
19
and it was settled.
20
I've read the opinion, and I really don't think
But I
That was just for, you know, injunctive purposes,
I mean all of these cases have been settled,
21
and I find that very interesting.
And I don't think
22
that there's a definitive opinion on here, and I don't
23
think that you can rely on the Geico case to the extent
24
that you'd like to.
25
certainly on Judge Lee.
And I think that it's not binding
So --
25
1
MS. CARUSO:
2
THE COURT:
I think that -I think we're starting really
3
from ground zero again, and I don't think even Judge
4
Brinkema would say her opinion in the Geico case would
5
necessarily affect the discovery rulings in this case or
6
any other case.
7
MS. CARUSO:
Well, I think -- what she
8
clearly said in the opinion was that it was her ruling
9
which was --
10
THE COURT:
It was confined to Geico and the
11
Geico fact, and they had a problem with their expert
12
report, clearly.
13
14
15
MS. CARUSO:
Right, exactly.
And again, she
said it was on the facts of that case.
THE COURT:
Right.
And I don't think it's
16
the same thing.
17
problem with their expert report.
18
19
20
21
I really don't because they had a big
MS. CARUSO:
there's a big problem with the expert report here, too.
THE COURT:
MS. CARUSO:
23
THE COURT:
25
Well, I haven't seen that, yet.
I haven't seen that yet.
22
24
Well, Your Honor, I think
But -She still found that there was
actual confusion.
MS. CARUSO:
She found that Google had not
26
1
rebutted it as the use of the name in the ads.
2
THE COURT:
3
MS. CARUSO:
Right, right.
But that's a distinction right
4
there, use of the name in the ad versus not using the
5
name in the ad.
6
And the cases all, even though they aren't
7
the traditional, you know, Starbucks versus Starchucks
8
kind of trademark case, all come down to the same
9
likelihood of confusion analysis.
10
And here, you know, all of these survey
11
reports and the other cases, they're different types of
12
advertisers, different types of advertisements,
13
different types of natural results that are being looked
14
at.
15
And in deposing the plaintiff's expert on
16
the likelihood of confusion issue, he admitted -- you
17
can't talk about how things would be with other
18
different types of advertisements and different types of
19
natural links because --
20
THE COURT:
21
MS. CARUSO:
22
You're talking about the Geico?
I'm talking about this Rosetta
Stone's expert.
23
THE COURT:
24
MS. CARUSO:
25
THE COURT:
Well, I haven't seen that.
I understand.
And I don't know how that's
27
1
relevant to the discovery request.
2
MS. CARUSO:
Well, it goes to the fact that
3
whatever Google has done with regard to other companies
4
doesn't have bearing on whether consumers are likely
5
to --
6
THE COURT:
7
MS. CARUSO:
Doesn't it go to willfulness?
It only goes to willfulness if
8
there is evidence -- if there's proof of intent like
9
the --
10
THE COURT:
Yeah, well what do they mean to
11
do when they're using -- I don't understand how you can
12
say that it's not relevant when what we're talking about
13
is really the exact same act, someone using -- you using
14
the actual trademark of a company.
15
MS. CARUSO:
16
THE COURT:
Your Honor, I appreciate that.
And I'm having trouble.
Maybe
17
you think you can convince me somehow, go ahead and give
18
it a try.
19
MS. CARUSO:
The likelihood of confusion
20
factors don't only focus on the similarity of the marks
21
at issue.
They also --
22
THE COURT:
23
You're using the mark.
24
MS. CARUSO:
25
THE COURT:
There's no similarity of marks.
That's correct.
Okay.
28
1
2
MS. CARUSO:
Their
case goes beyond just --
3
4
Well, it is being used.
THE COURT:
I understand that, but the main
issue here is you're using their mark.
5
MS. CARUSO:
Right.
But that's not the only
6
factor in likelihood of confusion.
7
factors --
8
THE COURT:
9
MS. CARUSO:
10
THE COURT:
MS. CARUSO:
I'd say it's pretty strong.
And there's that one mark that
that Rosetta Stone that's pretty strong.
15
THE COURT:
16
MS. CARUSO:
17
-- which include the strength
Let's go ahead.
13
14
Right.
of the mark.
11
12
There are other
Right.
They have other marks like
audio companion.
18
THE COURT:
19
Rosetta Stone for now.
20
MS. CARUSO:
I know.
Let's just deal with
Let's assume that it's strong.
All right.
All these other
21
complaints that exist out there, we don't have any
22
evidence about the strength of their marks.
23
24
25
THE COURT:
So --
American Airlines, or Geico
or -MS. CARUSO:
For cases that actually
29
1
existed.
So if you want me just to focus on litigation
2
versus any person's complaint to Google, then I'll do
3
that.
4
5
THE COURT:
person.
I'm talking about corporations.
6
MS. CARUSO:
7
THE COURT:
8
MS. CARUSO:
9
10
11
12
Well, I'm not talking about any
proceedings.
Any company's complaint -Right.
-- versus an actual legal
That's the distinction that I'm saying do
you want me to -THE COURT:
I'm sorry.
I think they're all
the same thing.
13
MS. CARUSO:
14
THE COURT:
Okay.
And I agree that there might be
15
some complaints by some companies that perhaps don't
16
have the same strength as Rosetta Stone or that, but
17
we're still talking about at least for discovery
18
purposes now and what we put into evidence at trial, but
19
we're still talking about what amounts to the same
20
issue, that a company complains that they used their
21
actual trademark.
22
MS. CARUSO:
And, Your Honor, if you think
23
about that, think about every comparative advertisement
24
that exists, they all use the actual trademark.
25
they don't all turn out the same way.
But
30
1
THE COURT:
2
MS. CARUSO:
3
Uh-huh.
They're very different because
it depends on the question of confusion.
4
THE COURT:
5
MS. CARUSO:
And so --
Right, exactly.
Take, for example, Time
6
Magazine has been sued in the past for running a
7
comparative ad that a company said infringed its
8
trademark.
9
ad, what happened in that first lawsuit is not relevant
If it's sued again for running a different
10
to the second lawsuit.
11
THE COURT:
12
MS. CARUSO:
Okay, I understand.
I think it really is going to
13
open up, especially on the issue of expert reports.
14
experts that Google has in this case are not the experts
15
that it's had before.
16
cases are not the facts that we have here.
17
THE COURT:
18
MS. CARUSO:
The
The facts that it had in other
Uh-huh.
If we're going to bring those
19
experts reports in on damages, I don't see how, you
20
know, what American Airlines' usage was has anything to
21
do with what the usage is here in Rosetta Stone.
22
But also on the question of confusion, then
23
you really are inviting a whole new trial of those
24
issues that were never tried before.
25
THE COURT:
Uh-huh.
31
1
MS. CARUSO:
Rosetta Stone didn't bring this
2
case as a class action or seek to resurrect all those
3
past cases.
It's just bringing this on its own behalf.
4
THE COURT:
5
MS. CARUSO:
6
THE COURT:
8
MS. CARUSO:
10
11
And, the volume of these
documents is quite a lot.
7
9
Uh-huh.
Okay.
Given -- you know, if they want
a stipulation that other people have complained about
Google's trademark policy, Google will provide that.
I don't see how having, you know, a stack of
12
complaints without all -- having full trials on all of
13
them to present to the jury how it is that all of those
14
aren't relevant either in addition to this one not
15
winding up with confusion.
16
THE COURT:
It --
Well, that's interesting.
Would
17
Google be willing to stipulate that it had X thousands
18
of complaints about its trademark policy and the way
19
it's used -- the same issue that Rosetta Stone is
20
complaining of?
21
Are you willing to stipulate to that?
MS. CARUSO:
Well, not right here, right now
22
for one reason because I don't know what the extent of
23
those numbers are because --
24
THE COURT:
25
MS. CARUSO:
Uh-huh.
-- it's so burdensome to do.
32
1
We haven't undertaken it.
2
3
THE COURT:
I wonder how many you'd be
willing to stipulate to.
4
MS. CARUSO:
For purposes of discovery, we
5
probably would be willing to stipulate to some number.
6
I should check with my client as to what they're
7
comfortable with on that.
8
THE COURT:
9
Did you have anything to add?
10
Okay.
MS. SPAZIANO:
Thank you.
Just a couple of comments if
11
I might on the issue of expert reports and the other
12
litigation and why those documents would be relevant
13
here or other deposition transcripts.
14
Let's start with the 30(b)(6) deposition.
15
30(b)(6) deposition of Google in the American Airlines
16
case, I don't know if one took place because I don't
17
know what was there.
18
But if one did, Google testifying about the
19
practices that are on issue here, clearly relevant.
20
We're going to take a 30(b)(6) deposition of a Google
21
person.
22
the past about these same issues.
23
We're entitled to know what Google has said in
The same thing goes for interrogatory
24
responses if they exist, request for admission which we
25
specifically asked for, damages expert reports which was
33
1
something that was specifically commented as can't see
2
how it could possibly be relevant.
3
Well, putting aside the separateness of the
4
mark, the damages that are recoverable in these cases
5
are very similar.
6
American Airlines case that damages should be A, B, C or
7
D and I don't mean the numbers, I mean --
And if Google's expert says in the
8
THE COURT:
How their calculated, uh-huh.
9
MS. SPAZIANO:
Or they should exclude X or
10
Y, and Google's expert here is taking a very different
11
position, we're entitled to know that.
12
interesting is you've got case after case that has been
13
settled as Your Honor noted.
14
settled, we're not entitled to see that information.
15
And Google in fact is able, therefore, to -- or
16
attempting to try to shelter, you know, that
17
discoverable information from us.
18
And what is
And because it's been
So, I -- I believe that all of that
19
information could be very relevant to the issues that
20
we're dealing with right here as we proceed down the
21
path of taking some of these depositions and dealing
22
with the experts.
23
As for the burden argument associated with
24
these documents because Google chooses to dump all of
25
its documents in a Trax system, that's not a basis to
34
1
say you don't get any of it.
2
And if that information is relevant to this
3
case and discoverable and we believe for all the reasons
4
we've talked about today and all the reasons Your Honor
5
has raised it is discoverable, you can't just say, well,
6
it's in a ten terabyte database and we can't get it.
7
And such an assertion coming from Google
8
which is the greatest search engine in the world is even
9
less -- less realistic.
10
THE COURT:
Okay.
11
MS. SPAZIANO:
So I just raise those points,
12
and I think that if this information is discoverable,
13
there are many ways to figure out how to get that
14
information without imposing undue burden.
15
And we all work through those issues on a
16
daily basis.
17
relevant and it won't be produced.
18
THE COURT:
19
I mean, as I said this is a really unique
20
sort of trademark infringement case, well, aside from
21
Geico and American Airlines.
22
But to date, we've been told it's not
Okay, thank you very much.
But normally the Court would be pretty
23
skeptical of requests relating to third party trademark
24
infringement.
25
issue in this case in terms of willfulness and intent.
But I think to a great extent it's an
35
1
And some of the requests that I think relate to third
2
parties are discoverable, but not everything.
3
me just kind of go through this.
4
And let
As for request number five, I think that
5
it's still too broad.
If they're going to have to do a
6
search in the Trax system, again, I have to agree with
7
defendant's counsel that I don't even know how you go
8
about searching for that.
9
If you want to search the Trax system and
10
this actually holds true with regard to anything else
11
that I grant in your motion to compel, as far as --
12
because you've already agreed to produce and you have
13
produced everything that's related to Rosetta Stone from
14
the Trax system.
15
wanted out of the Trax system, you're going to have to
16
pay for the search.
17
If there's anything else that you
So if you want number five as you have
18
defined it orally here during argument, I don't have a
19
problem with that if the plaintiff pays for the search.
20
So you have to decide how much it's worth to you.
21
As to numbers 6 -- 6, 7, 10, 12, I'm going
22
to grant those as well.
23
burdensome enough to -- too burdensome, rather, to have
24
to produce any documents that aren't in the Trax system.
25
I think -- I don't think it's
So I'm going to grant that, and I think it
36
1
is relevant as to 6, 7, 10 and 12.
2
As to 13, 14, and 15, as I said before, I
3
think settlement agreements are just so -- involve so
4
many factors.
5
relevant nor would it be admissible, and I'm going to
6
deny that.
7
I just don't think that it's going to be
As to 18, 19, 20, 21, 22, 23, 26, 27, 28,
8
29, 67, 68, 69, 76, 77, 78, 79, 93, and 9 -- excuse me,
9
93 and then 106, I'm going to grant all of those.
I'm
10
going to limit it to 2002, go back that far.
11
said, if it relates to the Trax system, I'm not going to
12
require them to search that any further.
13
everything else I think is reasonably related to
14
information here that might be relevant at trial.
15
I'm going to allow those.
16
And as I
But,
So
As to request number 96, I'm not going to
17
allow the payments again for the same reason I'm not
18
going to allow the settlement agreement.
19
And as to request number 13, they've made a
20
representation they don't have such documents.
21
not going to grant the request with regard to that.
22
So I'm
So basically, I'm granting everything except
23
for -- let's go over it again and make sure I've got it
24
correct, except for five.
25
denied.
14 is denied.
Five is denied.
15 is denied.
13 is
96 is denied, and
37
1
113 is denied, except as I said to the extent that
2
plaintiff wants to pay to go to the Trax system.
3
Now --
4
MS. CARUSO:
5
THE COURT:
6
MS. CARUSO:
Your Honor -I'm sorry, go ahead.
I wanted to just seek
7
clarification on one thing.
8
within them is a huge amount of attorney work product
9
information.
10
THE COURT:
Those requests, encompassed
Well, you're just going to have
11
to file a privilege log with regard to anything that you
12
claim is privilege.
13
privileged documents must be produced.
14
privilege log.
15
I'm not saying that non -- that
MS. CARUSO:
You have to do a
Okay, but privilege log itself
16
is going to be pretty burdensome going back to 2002 to
17
collect those things.
18
19
20
THE COURT:
I don't think a lot of this is
privileged.
MS. CARUSO:
Well, one of these request all
21
analysis about, you know, considering removing anything,
22
all -- all communications relating to the presence or
23
absence of it, all documents relating to Google's
24
policies concerning which I think --
25
THE COURT:
Uh-huh.
38
1
MS. CARUSO:
-- picks up literally every
2
single document relating to a lawsuit.
3
summary judgment briefs and, you know, it just is a
4
huge amount of --
5
THE COURT:
All right.
And so drafts of
Well, tell me which
6
ones specifically you're concerned about because I don't
7
mean it to be quite that far.
8
9
10
MS. CARUSO:
them.
You're talking about 18?
18 would definitely be one of
19 and 20 are basically the same except they
changed "removing" to "limiting" and "prohibiting".
11
THE COURT:
12
MS. CARUSO:
How many suits have you had?
It's fewer than ten, but they
13
do go back for -- well, I shouldn't say fewer than ten.
14
I think that it's fewer than ten.
15
quite some time.
16
But they go back
And, you know, it -- finding these -- sort
17
of tracking down the privileged information in order to
18
log it is going to be a -- quite an undertaking given
19
the amount of time that has passed in the past eight
20
years for all of these things that are theoretically
21
responsive.
22
So if, Your Honor, you could limit it to
23
anything that was exchanged, production with counsel or
24
filed with Court or depositions --
25
THE COURT:
I don't think we can do that
39
1
because, I mean, it may be privileged; it may not.
2
Well, let's see.
Number 18 says -- all
3
right.
I see what you're saying.
4
to a lawsuit that if it was not privileged -- I mean,
5
well certainly, if you'd communicated to somebody else
6
that -- to the other party that it would not be
7
privileged.
8
MS. CARUSO:
9
THE COURT:
I guess if it related
Right.
If you did not communicate it,
10
then I'm assuming that at some point a privilege issue
11
would have come up with regard to those documents, that
12
they would have been privileged to begin with.
13
Wouldn't you agree?
14
MS. SPAZIANO:
May I speak to this?
One
15
thing we have talked about is trying to reach an
16
agreement and not logging the documents that are clearly
17
privileged.
18
consideration.
19
that would, you know, not require us to log things that
20
are clearly privileged --
And it's one thing that's under
We sent a proposal to Google's counsel
21
THE COURT:
22
MS. SPAZIANO:
23
24
25
Right.
-- such as to, you know,
client seeking legal advice or conveying legal advice.
And so we're happy to work through that.
have got a proposal on the table.
We
My concern about the
40
1
concern raised by counsel is she said that it would be
2
very burdensome to go back and try to find all of those
3
things that are privileged.
4
And what worries me is that if you say you
5
don't have to log any of those things, and they don't go
6
out and search for those things, they may miss things
7
that are not privileged and responsive.
8
And so I'm happy to work on minimizing the
9
burden of the privileged log because we're not going to
10
come to in and fight over draft summary judgment briefs
11
and whether or not they should be produced.
12
But I think that the burden to search for
13
the documents needs to exist.
14
that we're happy to work through.
15
THE COURT:
The logging is something
Well, let me ask you something.
16
I mean wouldn't most -- I mean, Google doesn't usually
17
represent itself.
It has outside counsel, correct?
18
MS. SPAZIANO:
19
THE COURT:
Yes.
So, most of what you're
20
concerned about would be in the possession of outside
21
counsel, would it not, not inhouse?
22
MS. CARUSO:
Except to the extent that
23
drafts were sent to inside counsel and e-mails were
24
exchanged with inside counsel which I believe happens
25
fairly frequently.
41
1
THE COURT:
Well, what if -- I mean, what if
2
we accepted anything that was -- you know, I don't know
3
how you're going to do this, though.
4
What I'm wondering about is general reviews
5
and analysis rather than ones that are specific to
6
litigation with regard to 18, 19, and 20, and 21, 22.
7
MS. CARUSO:
Your Honor, with respect to
8
general ones that are not specific given litigation,
9
we've already agreed to produce those.
10
THE COURT:
Because when I was looking at
11
those, I was really thinking of general studies not
12
specific to certain litigation.
13
MS. CARUSO:
Right, and we agreed that
14
that's relevant, general studies, and that's why we have
15
agreed to produce them.
16
THE COURT:
Okay, but I am letting them
17
have -- okay, so why do you think that that would -- let
18
me ask plaintiff's counsel again why -- I understand
19
that you think that there might be something in there.
20
But if they're agreeing to give you the general ones and
21
if they're agreeing to give you the specific documents
22
that you asked for with regard to American Airlines
23
and -- let's see, contrast for somebody else as well.
24
But you asked specifically --
25
MS. CARUSO:
Asked specifically for --
42
1
MS. SPAZIANO:
About American Airlines, and
2
that's part of the issue, we don't know what other
3
litigation out there exists or what other resolutions
4
existed before matters went to litigation.
5
exactly the issue.
6
And that's
To the extent that there were communications
7
like those that were provided in the American Airlines
8
litigation that exist with respect to matters that
9
didn't need litigation, they're likely to have the same
10
11
kind of -THE COURT:
You've got the American
12
Airlines, though, already.
13
I mean I'm telling them to produce it.
14
anything on that.
15
MS. SPAZIANO:
16
THE COURT:
17
I mean, you don't have that.
You don't have
Right.
We're going to have to take this
one step at a time I think.
18
MS. SPAZIANO:
19
THE COURT:
Sure.
You're going to have to produce
20
the American Airlines as I ordered.
21
think that was only one that was a specific suit.
22
Okay.
And I think you
Then, as far as 18, 19, 20, 21, I'm
23
going to -- and 22, and 23, then I'll relate that to
24
just general analysis and policies and so forth, not
25
specific to specific litigation.
43
1
2
MS. SPAZIANO:
Can I ask for one
clarification for that?
3
THE COURT:
Uh-huh.
4
MS. SPAZIANO:
If there's a litigation or
5
you know, say like pick Geico because Geico wasn't
6
specifically mentioned here where there was a general
7
analysis and an expert report, is that something that is
8
being produced or is that being excluded from production
9
because it was general analysis in the context of a
10
11
specific litigation?
That's really what --
THE COURT:
What I'm asking them -- what I'm
12
telling them to do is to not have to look into specific
13
litigation files.
14
MS. SPAZIANO:
15
THE COURT:
Uh-huh.
That they're going to have -- I
16
mean if they have a general analysis that -- or review
17
that they conducted and perhaps it was sparked by a
18
suit, that's fine.
19
process then they don't have to produce it.
20
But if it's not part of a litigation
Now, what I think should happen is, you
21
should get the American Airlines stuff.
22
think that there may be additional specific documents
23
that you might need from another specific suit, then
24
maybe address that.
25
And if you
But I don't think -- you know, and come back
44
1
and ask me about that.
2
that they go through what I'm sure are boxes and boxes
3
of litigation files.
4
But I don't think I can require
MS. SPAZIANO:
Understood.
Would it be
5
possible for them to create a list of those litigation
6
matters or those challenges that didn't result in
7
litigation so we could know what exists that we're not
8
getting so that we could come to you --
9
THE COURT:
You're saying they're list than
10
ten?
11
that what you're asking me?
12
public --
13
14
You just want to know the names of the suits?
MS. SPAZIANO:
Is
They're a matter of
Well, to the extent that
they're public, we're aware of them.
15
THE COURT:
Right.
16
MS. SPAZIANO:
But to the extent that there
17
are litigation files before a matter goes to litigation,
18
I mean, there could very well be and likely are
19
situations where somebody threatened litigation, and it
20
was resolved in light --
21
THE COURT:
Well, I doubt that any of that
22
analysis is in there if it never even went to trial, if
23
it never even went to suit.
24
MS. SPAZIANO:
25
how those negotiations --
It would certainly depend on
45
1
THE COURT:
2
little too deep there.
3
to just general analysis and reviews and then deal with
4
the American Airlines and we'll go from there, okay.
5
Right.
I think we're digging a
I'm going to limit it as I said
Now, as to producing these documents, when
6
is Google going to be able to produce them?
7
be able to produce everything up to now already because
8
you said you were going to do that by February -- excuse
9
me, January 29th or something.
10
MS. CARUSO:
That was our intent.
You should
There are
11
a few stragglers out there.
12
correction there have been more requests served on us,
13
so fewer I think that 200 documents outstanding for us
14
to produce from what we'd already agreed to.
15
Only since making that
As far as when we can produce these, I
16
frankly don't know.
17
work to get it done as quickly as possible.
18
searching for all of this could take some time, so I
19
just think that --
20
21
22
23
24
25
I can represent that Google will
THE COURT:
But,
What do you think about by the
19th, a little over two weeks?
MS. CARUSO:
We will certainly attempt to do
that and make every effort.
THE COURT:
All right.
Then I'll assume
that you're going to produce them by February 19th and
46
1
I'll extend discovery a little bit then to deal with
2
that.
3
I'm going to keep the final pretrial
4
conference on for February 18th.
5
and pick a trial date, okay.
6
You'll have to just go
And then what I'll do is give you until --
7
how about then until, assuming they produced everything
8
which I'm -- which I'm strongly encouraging you to
9
comply with, then let's have the close of discovery by
10
11
March 12th, all right.
Then you can exchange your pretrial
12
submissions by the 24th with objections to the pretrial
13
submissions by the 31st.
14
15
MS. SPAZIANO:
May I ask one question about
the Court's ruling with respect to the Trax system?
16
THE COURT:
Uh-huh.
17
MS. SPAZIANO:
I think your ruling suggested
18
that if we want the Trax system to be searched, we'd
19
have to pay for the search and my question --
20
THE COURT:
21
searched for.
22
Beyond what they've already
Rosetta Stone searches.
23
As I understand they've been all for
MS. SPAZIANO:
Understood completely.
24
Would -- does your order contemplate that we would be
25
preparing the search that would be done based on the
47
1
requests that are at issue here such that we can try to
2
narrow the scope of that and the cost associated with
3
that?
4
THE COURT:
Yes, you can do that.
You can
5
narrow it, and I'd like you all to communicate back and
6
forth.
7
search --
And if you want to pay for a limited Trax
8
MS. SPAZIANO:
Uh-huh.
9
THE COURT: -- then that's all right.
10
MS. SPAZIANO:
11
THE COURT:
12
Is there anything else that we need to deal
13
with?
Understood.
Thank you.
Okay, all right.
No.
14
Okay, thank you.
15
(Proceeding concluded at 2:51 p.m.)
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17
18
19
20
21
22
23
24
25
Court's adjourned.
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CERTIFICATE OF TRANSCRIPTION
2
3
I, Renecia Wilson, hereby certify that the
4
foregoing is a true and accurate transcript that was
5
typed by me from the recording provided by the court.
6
Any errors or omissions are due to the inability of the
7
undersigned to hear or understand said recording.
8
Further, that I am neither counsel for, related to, nor
9
employed by any of the parties to the above-styled
10
action, and that I am not financially or otherwise
11
interested in the outcome of the above-styled action.
12
13
IN WITNESS WHEREOF, I have hereto
subscribed my name this 18th day of February, 2010.
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15
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17
18
19
20
21
22
23
24
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/s/
Renecia Wilson, RMR, CRR
Official Court Reporter
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