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
[phone]

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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:

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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

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coming in today, but I won't be here tomorrow.

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an 8 a.m. flight to Florida.

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make it.

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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.

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You've read all the pleadings --

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THE COURT:

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MS. SPAZIANO:

I have.
You can basically see that we

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have reached agreement on a lot of the document requests

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that were at issue in the opening brief.

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But, that there's really an impasse between

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the parties with respect to what's left in issue and I

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think irrespective of the number of requests that remain

12

outstanding, it really boils down to one thing which is

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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

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tell you about regarding Rosetta Stone and what it does

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and how important its marks are to it.

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It's the leader in language education in the

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United States.

And it owns numerous federally

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registered trademarks that it has worked very hard to

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market and protect.

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THE COURT:

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MS. SPAZIANO:

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And, I'm aware of that.
I know you are.

You hear

Rosetta Stone, you know what it means.

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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.

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And what's at issue here is their sale of

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advertisements -- their sale of trademarks for the

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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

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position here that essentially information arising or

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discussed or communications, documents relating to

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either litigation involving Google's practice of selling

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trademarks or challenges that don't rise to the level of

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litigation where somebody writes them a letter, a cease

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and desist letter or asks them not to sell their

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trademark, not information that we're entitled to

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discover.

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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

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question of whether Google's practices results in

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likelihood of confusion with respect to Rosetta Stone's

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trademarks.

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And focusing on this very narrow issue of

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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

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cases, the trees that Google asks the Court to focus on.

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They also will address Google's advertising practices

Documents relating to

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generally, the forest that's really at issue in this

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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,

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and I'm not quite sure what you're aiming for in those

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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

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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

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these two requests specifically in terms of narrowing

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them?

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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

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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

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with respect to the use of trademarks in sponsored ads.

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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

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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

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112, there were requests that certain information be

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created.

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have to look to Margaret for some assistance in why it

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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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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

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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

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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.

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All right.

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agreed to?

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And what temporal limits have

your requests?

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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

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that because obviously, documents outside the statute of

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limitations would be relevant to documents within the

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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

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the relevant timeframe, the statute of limitations

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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

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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.

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MS. SPAZIANO:

They do involve so many

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factors.

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say, and that's the struggle for being in the position

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of asking for documents.

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But the issue is that we don't know what they

I can look at the fact that there's been a

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litigation and I can say, well, your depositions are

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certainly going to have information and interrogatories

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are certainly going to be information, and request for

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admissions are certainly going to have information.

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Expert reports are certainly going to have information.

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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.

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THE COURT:

Yeah.

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MS. SPAZIANO:

But taking it on face value

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that in there, but not asking for the documents that

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could contain a damning admission that's relevant to

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what they say.

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requested, they demonstrate that they can engage in some

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kind of a practice that would, you know, stop the

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trademark infringement and still allow for certain, you

Or it could be in the relief that's

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know, certain practices to continue without trademark

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infringement.

I don't know what's in them.

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THE COURT:

Okay.

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MS. SPAZIANO:

I understand the fact that if

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there are standard settlement agreement that just denies

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all liability and agrees on some kind of a settlement

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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

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because I think it's illuminating on a number of these

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issues.

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Even if the settlement agreements did say

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the very unlikely event they said whereas Google admits

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infringement, Rule 408 tells us that's not admissible to

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prove infringement.

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THE COURT:

Uh-huh.

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MS. CARUSO:

And given that it's not

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admissible to prove infringement, it has no relevance on

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the issue of intent.

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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:

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THE COURT: -- as to the settlement

Okay.

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agreement, so why don't you address any other issue

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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

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types of issues.

All of the -- any one cease and desist

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letters, any e-mail that we've gotten from a third party

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saying Google, we don't like your policy, any consumer

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who said Google, I bought this product from a website

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that was advertised on your site and I don't like it.

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It's not what I thought it would be, all of those in

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order to be relevant to the issue of intent which is

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what Rosetta Stone has identified are only going to be

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relevant to the extent that those prove or there's proof

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that there was infringement.

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that there was ever infringement.

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held liable for infringing trademarks in any

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circumstances, especially the advertising circumstance.

And there's no proof here
Google has never been

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And so, this would require trials and I

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can't say mini trials because they would be just as

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expensive on this trial on every single one of these

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things.

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us from the limited time we have left in discovery to

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focus on the issues that matter here which are Rosetta

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Stone's trademarks.

And it's just going to take us -- really divert

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It's important, I think, to understand when

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we say we're not using these third party-type documents

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it doesn't mean they're not getting any general studies,

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any general policy, reasoning, any policies.

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these things that Google has done with respect to

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trademarks generally speaking, it has agreed to provide

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and has provided mostly, still in the process of

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production.

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But, these are very far afield.

All of

And I can

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come back to the issue of relevance because I think it

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really -- it's a show stopper.

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But the issue of burden I think is equally a

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show stopper, because in order to collect type of

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information they're talking about, there is no

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formulated search.

5

trademarks to look for.

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There's not even a list of

We would have to -- Google would have to

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manually review all of the documents at a minimum in its

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Trax database which keeps all communications with

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advertisers and with consumers about advertising.

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And

those -- those databases contains ten terabytes of data.

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THE COURT:

How are they collated or

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categorized?

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together with no organization, is it?

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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:

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MS. CARUSO:

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I don't think so.

Uh-huh.
-- you can kind of go into it

that way.

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THE COURT:

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MS. CARUSO:

Uh-huh.
But, there's nothing about

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their request that enables it to be narrowed in that

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way.

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thing for anything with Rosetta Stone in it.

We have given them -- we've searched the whole

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THE COURT:

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MS. CARUSO:

Uh-huh.
That -- they have all of that.

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THE COURT:

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MS. CARUSO:

Uh-huh.
But, you know, in terms of some

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customer saying I purchased what I thought was a Nike

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shoe and it's not a Nike shoe, what are the search terms

5

that we can use to find that e-mail?

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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

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ID number and then by their sub campaigns because

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advertisers run -- Amazon, for example, runs numerous

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different campaigns at any given point in time.

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THE COURT:

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MS. CARUSO:

Okay.
So, on this issue of, you know,

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all these communications with third parties and

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communications with consumers, ten terabytes of data,

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it's something that's really hard to even conceive of,

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but I'm told that it would equivalent -- come out to

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greater than two billion pages of text which if you

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assumed one second to review every one of those pages

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would take someone 74 years, 24/7 review.

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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

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MS. CARUSO:
only one.

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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.

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It would require the same thing.

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79 also would go to that same extent.

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broad in calling for all --

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10
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THE COURT:

23, the same thing.
They're extremely

23 is guidelines and policies,

not letters of complaint.
MS. CARUSO:

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It's -- if I recall

correctly, I just -THE COURT:

Actually, ten would not relate

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because that's really just with regard to third parties

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whose trademarks are used, not just general consumers.

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I don't see anything else that would relate
to consumer letters.
MS. CARUSO:

Well, this one reads all

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documents relating to any Google policies relating to

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the sale, marketing, promotion, offering, designation,

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use or inclusion of trademarks owned by third parties is

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the key words.

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So if we just stop right there, I'd be

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surprised if Rosetta Stone takes the position that, for

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example, a consumer's statement, Google, your trademark

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policy winds up with me but --

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THE COURT:

3

if we delete the consumer letters?

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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.

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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?

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MS. CARUSO:

It depends on what exactly that

15

letter from the corporation says, but in some instances,

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yes.

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THE COURT:

Well, how would they normally be

kept if it's a --

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MS. CARUSO:

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THE COURT: -- big letter from a big company?

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MS. CARUSO:

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Is -- a letter that raises a

violation of Google's trademark policies --

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THE COURT:

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MS. CARUSO:

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So a --

Uh-huh.
-- would be kept in one place.

And that would be, for example, under a Google's current

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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.

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THE COURT:

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MS. CARUSO:

Uh-huh.
And they're not an authorized

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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 --

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THE COURT:

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11

MS. CARUSO:

Uh-huh.
-- trademark for in a text of

the ad.

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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.

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THE COURT:

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MS. CARUSO:

Uh-huh.
-- which is a large batch of

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documents.

But letters that say, it looks like this

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person is bidding on my key word and I don't like --

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THE COURT:

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MS. CARUSO:

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THE COURT:

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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

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Google's current trademark policy and wouldn't go to

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that database group.

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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

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policies.

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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

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infringement of my trademark.

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trademark policy?

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office?

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Where does that go, legal counsel's

MS. CARUSO:
general database.

Does that go into this

That -- it's filed in this

And --

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THE COURT:

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MS. CARUSO:

Trax.
Yes, in Trax.

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5
6
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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 --

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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

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the level of something that Google has determined it

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will take action on.

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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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20
21
22
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Court's adjourned.

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CERTIFICATE OF TRANSCRIPTION

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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.

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Any errors or omissions are due to the inability of the

7

undersigned to hear or understand said recording.

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Further, that I am neither counsel for, related to, nor

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