Digital Envoy Inc., v. Google Inc., Doc.

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Case 5:04-cv-01497-RS Document 143 Filed 04/29/2005 Page 1 of 4

1 P. CRAIG CARDON, Cal. Bar No. 168646

BRIAN R. BLACKMAN, Cal. Bar No. 196996
2 KENDALL M. BURTON, Cal. Bar No. 228720
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
3 Four Embarcadero Center, 17th Floor
San Francisco, California 94111-4106
4 Telephone: 415-434-9100
Facsimile: 415-434-3947
5
6 TIMOTHY H. KRATZ (Admitted Pro Hac Vice)
LUKE ANDERSON (Admitted Pro Hac Vice)
7 MCGUIRE WOODS, L.L.P
1170 Peachtree Street, N.E., Suite 2100
8 Atlanta, Georgia 30309
Telephone: 404.443.5500
9 Facsimile: 404.443.5751
10 Attorneys for DIGITAL ENVOY, INC.
11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN JOSE DIVISION

14 DIGITAL ENVOY, INC., Case No. C 04 01497 RS

15 Plaintiff/Counterdefendant, NOTICE OF MOTION AND MOTION

FOR SANCTIONS AGAINST GOOGLE,
16 v. INC.

17 GOOGLE, INC., Date: June 15, 2005

Time: 9:30 a.m.
18 Defendant/Counterclaimant. Courtroom: 4, 5th Floor

19 The Honorable Richard Seeborg

20
21 Notice Of Motion And Motion

22 PLEASE TAKE NOTICE that on June 15, 2005 at 9:30 a.m. in Courtroom 4, Fifth Floor

23 of the United States District Court for the Northern District of California, United States
24 Courthouse, 280 South First Street, San Jose, California, plaintiff/counterdefendant Digital Envoy,
25 Inc. (“Digital Envoy") shall move the court pursuant to Fed. R. Civ. P. 37(a) and Civil Local Rules
26 7-8 and 37-3 for an order sanctioning Google, Inc. in the amount of $4,758.50, representing the
27 total amount of attorney's fees Digital Envoy incurred as a result of Google's failure and refusal to
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1 provide complete and adequate responses to Digital Envoy's first and second sets of Request for
2 Production of Documents and Interrogatories.
3 Digital Envoy certifies that it has in good faith conferred with Google, Inc. in an effort to

4 secure further responses and disclosures without court action, and that those efforts were
5 unsuccessful. Digital Envoy respectfully requests that this court enter an order sanctioning
6 Google in the amount of $4,758.50 pursuant to Fed. R. Civ. P. 37(a)(4) for the costs and expenses
7 Digital Envoy incurred in filing its motion to compel.
8 This motion is based upon these moving papers, the Declaration of Timothy H. Kratz, the

9 pleadings on file herein, matters of which the court may take judicial notice, and upon such other
10 and further oral and documentary argument and evidence as the Court may permit at the hearing of
11 this motion.
12 DATED: April 29, 2005

13 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

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15 By /s/ Brian Blackman
P. CRAIG CARDON
16 BRIAN R. BLACKMAN
17 TIMOTHY H. KRATZ (Pro Hac Vice To Be Applied For)
LUKE ANDERSON (Pro Hac Vice To Be Applied For)
18 MCGUIRE WOODS, L.L.P
1170 Peachtree Street, N.E., Suite 2100
19 Atlanta, Georgia 30309
Telephone: 404.443.5706
20 Facsimile: 404.443.5751
21 Attorneys for DIGITAL ENVOY, INC.
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Fed. R. Civ. P. 33 and 34 obligate a party responding to interrogatories or requests for

3 production of documents to answer each request and interrogatory fully and completely. If the
4 responding party objects to all or any part of a request or interrogatory, then the propounding party
5 may move under Fed. R. Civ. P. 37(a) for an order compelling a complete response. Fed. R. Civ.
6 P. 33(b)(5) and 34(b).
7 Digital Envoy propounded its first and second sets of Interrogatories and Requests for

8 Production of Documents on Google in January and December 2004, respectively. Google served
9 timely responses. (Declaration of Timothy Kratz ("Kratz Dec.") at ¶ 2.) Several of Google's
10 responses, however, were incomplete, based on boilerplate and improper objections. (Kratz Dec.
11 at ¶ 3.) Following Google's second set of deficient responses, Digital Envoy repeatedly
12 communicated with Google's counsel regarding those deficiencies, but Google refused to amend
13 its responses adequately. (Id. at ¶¶ 4-5.) Digital Envoy, therefore, was left with no choice but to
14 prepare and file a motion to compel – which motion was filed in conjunction with this motion and
15 set for hearing on the same day.
16 If Digital Envoy's motion to compel is successful, then under Fed. R. Civ. P. 37(a)(4) the

17 Court may require the party whose conduct necessitated a motion to compel [Google] to pay to the
18 moving party [Digital Envoy] the reasonable expenses incurred in making the motion, including
19 attorney's fees. Digital Envoy has incurred $4,758.50 in attorney's fees in meeting and conferring
20 over Google's incomplete responses, and preparing and filing its motion to compel. (Id. at 6-10.)
21 These costs and expenses would not have been incurred had Google satisifed its obligations under
22 Fed. R. Civ. P. 33 and 34 to provide full and complete responses to Digital Envoy's first and
23 second sets of Interrogatories and Requests for Production of Documents.
24 The Court, therefore, should sanction Google in an amount equal to the fees and costs

25 incurred by Digital Envoy in bring the accompanying motion to compel pursuant to Fed. R. Civ. P
26 37(a)(4).
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1 I. CONCLUSION

2 Digital Envoy respectfully requests that this Court grant Digital Envoy’s motion and award

3 sanction to Digital Envoy in the amount of $4,758.50.

4
5 DATED: April 29, 2005
6 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

7
8 By /s/ Brian Blackman
P. CRAIG CARDON
9 BRIAN R. BLACKMAN
10 TIMOTHY H. KRATZ (Pro Hac Vice To Be Applied For)
LUKE ANDERSON (Pro Hac Vice To Be Applied For)
11 MCGUIRE WOODS, L.L.P
1170 Peachtree Street, N.E., Suite 2100
12 Atlanta, Georgia 30309
Telephone: 404.443.5706
13 Facsimile: 404.443.5751
14 Attorneys for DIGITAL ENVOY, INC.
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