I/P Engine, Inc. v. AOL, Inc. et al

Filing 348

Declaration re 347 Memorandum in Support, of Margaret P. Kammerud in Support of Defendants' Motion to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A)(Noona, Stephen)

EXHIBIT A

Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
FUNCTION MEDIA, L.L.C.,

)(
)(
)(

2:07-CV-279-CE

)(

VS.

CIVIL DOCKET NO.

MARSHALL, TEXAS

)(
GOOGLE, INC., AND

)(

JANUARY 12, 2010

YAHOO, INC.

)(

1:30 P.M.

MOTIONS HEARING
BEFORE THE HONORABLE JUDGE CHAD EVERINGHAM
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

FOR THE PLAINTIFFS:

(See Attorney Sign-In Sheet)

FOR THE DEFENDANTS:

(See Attorney Sign-In Sheet)

COURT REPORTER:

MS. SHELLY HOLMES, CSR
Deputy Official Court Reporter
2593 Myrtle Road
Diana, Texas 75640
[phone]

(Proceedings recorded by mechanical stenography,
transcript produced on a CAT system.)

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COURT SECURITY OFFICER: All rise.
THE COURT: Please be seated.
I've got a motions hearing set in Function
Media versus Google. It's 2:07-CV-279.
What says the plaintiff?
MR. TRIBBLE: Your Honor -- Your Honor, good
afternoon, Max Tribble for the plaintiff. Plaintiff is
ready.
THE COURT: For the defendant?
MR. GILLAM: Gil Gillam, Charlie Verhoeven,
and Amy Candido for Google. We're ready.
THE COURT: All right. Several matters to
take up today. The first one is the motion to seal and
close the courtroom. Tell me -- the way this is
ordinarily handled is that if there's some portion that
comes up during the trial of the case that is -- you
feel is necessary to close the courtroom, bring it to my
attention, I'll do it. I'll give you a certain amount
of time to, you know, identify those portions of the
record that need to be maintained under seal once -once you get your copies of the record, as well as
whatever exhibits. I'll have the clerk, you know, hold
the exhibits and not release the exhibits to the public
for a certain after the trial, but what's the matter
with that procedure?

MR. VERHOEVEN: That procedure is perfect,
Your Honor. That's all we -- that's all we seek, and I
will point out that the parties have agreed for direct
examination purposes to provide each other with a notice
the day before of the exhibits that they intend to use.
And we -- hopefully we can meet and confer that evening,
next morning and -- and if there is an issue, present it
to you with the most efficient and nondestructive manner
possible.
THE COURT: I mean, I've -- I've read the
papers. My -- my concern is that -- my real concern is
that my experience with this procedure has resulted in
very limited periods of time that the courtroom has been
closed because the courtroom is presumptively open. And
what I don't want to have happen is every third
question, we have an interrupt the flow of the
proceedings and -MR. VERHOEVEN: I hear you, Your Honor. We
have no intent to do that, and we're perfectly happy
with the procedures you've outlined and, you know, we
filed -- we filed our motion, just by way of
explanation, Your Honor, a few months -- a couple of
months ago, I think. Hadn't exchanged exhibit lists.
We just wanted to make sure that we had on the record
this is a concern of ours. As long as we can work
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together with the other side, I don't anticipate any
problem with -- the procedure Your Honor has outlined
works fine for us.
MR. TRIBBLE: Your Honor, I have to correct
something that -- that counsel said. There is no
agreement that we're going to identify which exhibits
we're going to use on direct examination. The agreement
is that we will disclose the night before demonstratives
that would be used on direct examination. But there's
no agreement that the parties identify either direct or
cross real exhibits that have been admitted into
evidence or otherwise.
But we're perfectly in agreement with the
procedures that the Court has outlined.
THE COURT: Well -MR. VERHOEVEN: I thought I was looking at
an e-mail just today that said that that was agreed,
Your Honor. I can double check that if you'd like. But
in principle, Your Honor, the notion that we would work
together and if there's something specific, we have no
intention of broad objections. But if there's something
specific and Your Honor will take it up and we can make
a showing, then that would satisfy us.
MR. TRIBBLE: I -- I have the e-mail printed
right here, and I can -- it says -- specifically the

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agreement says no exchange of exhibits for any witness
or demonstratives for cross witnesses.
THE COURT: Well...
MR. VERHOEVEN: I'm going to have to read
this, Your Honor. I -- there may be a mistake. I
thought we had reached agreement on that, but I think
that's sort of a side issue -THE COURT: Well -MR. VERHOEVEN: Don't need to take Your
Honor's time on that. If we need to, we can address the
efficient handling of exhibits -- hopefully the parties
can work out an arrangement there. But what Your Honor
has suggested in terms of handling what we believe to be
trade secret information -- to protect Google's trade
secret information, we would suggest would work.
THE COURT: Well, that's -- that's the
procedure I'm going to adopt. And if it for some reason
becomes unworkable during the course of the trial for
whatever reason, lack of agreement as to how to
implement it or whatever, I'll deal with that during the
course of the trial.
So I guess for the purposes of the record,
the motion is granted in part and denied in part to the
extent I've just outlined.
Next issue that I've got on my plate is

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the -- let's take up this -- the motion to strike the
errata sheets and supplement to that. I -- I've read
the papers. I need to know from Google what authority
exists that I can extend this deadline in -- in the
manner that you've wanted me -- that you want me to
extend it. Okay. I -- I've read your papers, and I've
got a Fifth Circuit case that's staring me in the face
that says that the rule is to be strictly enforced.
I've read Judge Schell's opinion as well in
which he said under certain circumstances, namely where
you disclosed what the errata was going to be and the
other side didn't have an objection to it under those
circumstances, that it would be inequitable not to
extend the time under those circumstances. I don't have
those circumstances here, so I need to know what -- what
authority do you have that I can extend the -- the
deadline?
MS. CANDIDO: Your Honor, I don't think we
have an authority that is directly on point to this
situation. However, as we -- we read the case that
plaintiff has cited, it's not a hard and fast rule that
there can never be extensions. And we believe in this
case that it's -- with respect to Mireya Bravomalo's
errata, it's essentially one business day extension
because we were unable to obtain her physical signature

because it was the holiday, December 31st, and we
provided Function Media with the errata in question that
were relevant to the hearing on January 5th, on the
31st. And they're not prejudiced by that -- that
one-day delay.
THE COURT: Well...
MS. CANDIDO: So I don't have a case
directly on point, but I believe that the equities of
the situation support Google's position.
THE COURT: Okay. What -- here -- here's my
biggest concern is that you did -- you did supply them
with certain erratas that you intended to make to her
deposition testimony. I'm inclined to allow you to -to use those in the case -- I mean, those that you had
identified to them. But, you know, absent some
authority where I can go beyond that and allow her to -to then change other portions of -- of her testimony,
that's what I'm -- that's -- that's my real concern
here, so it's -- and I've got a -- like I said at the
outset, I've got this Circuit decision. It's a
published decision, but it says what it says.
And so I mean, I don't -- I feel I'm bumping
up against the line allowing you to use the erratas -those portions of the testimony that you did outline to
the plaintiff even though they had an objection to, you
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know, providing the signature page. That's -- I mean, I
feel I'm pushing the envelope -MS. CANDIDO: Yeah.
THE COURT: -- doing that and I need you to
tell me what case authority there is out there that
would let me go farther than that.
MS. CANDIDO: Your Honor, I -- I believe the
authority or the principle that we would appeal to is -is the fact that these sort of discovery matters are in
Your Honor's discretion.
THE COURT: Which is my innate sense of
fairness, right? I -- I -MS. CANDIDO: You're right. I mean, on the
31st, we provided the errata that were within the
portions of the deposition that plaintiff has designated
from. We would have gladly provided them all of them,
but we provided them the portion that they said was the
reason why they would not grant the additional extension
which was that they needed to know what they were for
the hearing on January 5th.
And in truth this all in a sense boils down
to much ado about nothing insofar as the issue here
is -- I have a copy of it. It's a giant spreadsheet
that was shown to Mireya. I'll grab it for a second.
It's this gigantic spreadsheet with line

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