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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SKYHOOK WIRELESS, INC., Plaintiff, v. GOOGLE INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Civil Action No. 1:10-cv-11571-RWZ and Civil Action No. 1:13-cv-10153-RWZ
SKYHOOK WIRELESS, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO COMPEL GOOGLE INC. TO PRODUCE MR. PATRICK BRADY FOR A DEPOSITION AND TO PRODUCE CERTAIN DOCUMENTS RESPONSIVE TO SKYHOOK’S DOCUMENT REQUESTS
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TABLE OF CONTENTS I.
INTRODUCTION ................................................................................................................... 1
GOOGLE’S ATTEMPT TO BLOCK THE DEPOSITION OF MR BRADY, WHO GOOGLE DESIGNATED AS ONE OF THE TWO MOST KNOWLEDGEABLE PEOPLE ABOUT MARKETING OF THE ACCUSED PRODUCTS, IS IMPROPER ............................................................................................ 3
GOOGLE MUST PRODUCE MR. SERGEY BRIN’S DOCUMENTS RESPONSIVE TO THE NARROW, TARGETED SEARCH SKYHOOK HAS REQUESTED .................................................................................................................... 5
SKYHOOK REQUESTED A FOCUSED ELECTRONIC SEARCH OF MR. BRIN’S FILES FOR HIGHLY RELEVANT SUBJECT MATTER .................... 5
GOOGLE’S UNSUPPORTED “RELEVANCE” ASSERTIONS ARE IMPROPER ATTEMPTS TO UNILATERALLY PREJUDGE THE MERITS OF SKYHOOK’S CASE ..................................................................... 10
GOOGLE MUST PRODUCE ALL DEPOSITION TRANSCRIPTS AND DISCOVERY RESPONSES FROM TRACBEAM LITIGATION ................................ 12
FACTUAL BACKGROUND .................................................................................. 12
GOOGLE’S BURDEN AND RELEVANCE ARGUMENTS FAIL IN LIGHT OF ITS OWN CONDUCT AND ADMISSIONS .................................. 14
GOOGLE MUST PRODUCE ITS AGREEMENTS RELATED TO ACCUSED PRODUCTS AND NEGOTIATIONS RELATING TO THEM OR PROVE THAT ITS PRODUCTION IS COMPLETE .................................................................. 15
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TABLE OF AUTHORITES Cases
In re Google Litig. 2011 U.S. Dist. LEXIS 125732 (N.D. Cal. Oct. 31, 2011)....................................................... 14 TracBeam v. AT&T et al. Case No. 6:11-CV-96, Dkt. No. 352 (E.D Tex. Jan. 23, 2013 Mem. Opinion and Order) ...... 13 Trackbeam v. AT&T et al. Case No. 6:11-cv-96, Dkt No. 57 (TracBeam’s 1st Supp. Amd. Complaint) .......................... 15 Trackbeam v. AT&T et al. Case No. 6:11-cv-96, Dkt. No. 353 (Order to Mot. to Sever) .................................................. 15 Vasudevan Software, Inc. v. Microstrategy Inc. No. 11-cv-06637-RS-PSG, 2012 U.S. Dist. LEXIS 163654 (N.D. Cal. Nov. 15, 2012) ......... 12
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INTRODUCTION Google’s representations in its latest submission to this Court that it “intend[s] to keep
this 11-patent case moving forward expeditiously” (Dkt No. 189 at 1, 2) ring hollow. Google’s actions speak louder and clearer than its unsupported assertions: Google has sought on multiple fronts to slow down Skyhook’s case in nearly every possible way. A few particularly important examples from Skyhook’s pending motions to compel are the following: (a) Google’s continued refusal to produce the full Wi-Fi Location Database, one of the key accused products in this case (see Dkt. No. 126 at 3); (b) Google’s refusal to provide interrogatory responses relating to the very identification of Google Location accused products, including their models and versions; and licensing and monetary and other benefits Google receives from its accused products (see Dkt. No. 167 at 15-18); and (c) any testimony relating to the parties’ communications about, and Google’s internal valuations of, Skyhook’s technology that are relevant to Skyhook’s willful infringement and damages allegations (see Dkt. No. 173 at 13-16). Skyhook’s three pending motions to compel and the instant motion reflect a lengthy list of instances where Google’s intransigence has wasted significant resources—both of the parties and this Court—and wasted precious time—both of the parties and this Court—that should instead be devoted to the merits of this case. As a result of Google’s continuing efforts to deny Skyhook appropriate and timely discovery—in a case now pending for over two and a half years—Skyhook is forced reluctantly to bring yet another motion to compel. This motion concerns several additional aspects in which Google’s discovery responses are unacceptable. First, nearly a month after Skyhook served seven deposition notices for Google’s employees, Google finally just last week—under a threat of a motion to compel—provided availability for only three of those witnesses. But it is refusing to offer one of them—Mr. Patrick Brady—for deposition at all. Mr. Brady is one of only two 1
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witnesses Google has identified as knowledgeable about sales and marketing of the accused products, and the only person Google has identified as knowledgeable about Android relationships, the relationships with its original equipment manufacturing partners to whom Google distributes and who use Google’s accused Google Location products and services. Mr. Brady’s deposition in Google’s state case, the one that Google wishes to rely on, cannot fulfill Google’s obligation to provide discovery on the important issues of sales, marketing and distribution of the accused products, as well as acts Google performs to induce or contribute to its Android partners’ direct infringement. The state case related to Skyhook’s state law tortious interference claims. The present case is about Skyhook’s patent infringement claims, which raise different issues than those at play in the state case, including issues relating to indirect infringement and to damages, such as lost profits and reasonable royalty, where Mr. Brady’s testimony is expected to be highly relevant. There was no agreement that the state case
depositions would preclude depositions of the same witnesses in this case, and indeed, Google has noticed the depositions of several Skyhook witnesses that it deposed in the state case (i.e., Messrs. Ted Morgan, George Rice, Michael Shean and Nick Brachet). Second, Google continues to refuse to comply with its document production obligations. Skyhook’s two previously filed motions concern numerous deficiencies in Google’s production, and this motion addresses additional such deficiencies. First, Google is refusing to produce Mr. Sergey Brin’s documents, pursuant to a narrow, targeted search Skyhook has requested, because Google unilaterally believes they are irrelevant but refuses to show Skyhook any of those documents. Google has failed to show any burden, has failed to show Mr. Brin’s documents would be duplicative of its prior production, and has failed to show that those documents would be less likely than not to lead to admissible evidence. Second, Google is also refusing to produce
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discovery responses and depositions from another patent infringement case also involving Google’s location products and services, which Google has represented—to a different court—is relevant to this case. Finally, by its own admission, Google has produced less than two hundred pages evidencing its negotiations with third parties regarding Google Location products for nearly a half-dozen years covered by Skyhook’s requests and appears not to have produced any direct communications with any of these third parties. Pursuant to Skyhook’s document
requests, Google must complete its production of agreements relating to Google Location including its negotiations of those agreements. Therefore, Skyhook respectfully requests the Court’s assistance in compelling Google to produce Mr. Patrick Brady for his deposition and to produce the documents Skyhook seeks. II. GOOGLE’S ATTEMPT TO BLOCK THE DEPOSITION OF MR BRADY, WHO GOOGLE DESIGNATED AS ONE OF THE TWO MOST KNOWLEDGEABLE PEOPLE ABOUT MARKETING OF THE ACCUSED PRODUCTS, IS IMPROPER On May 23, 2013, Skyhook noticed a deposition of Mr. Patrick Brady, a Google employee identified by Google in its initial disclosures as knowledgeable about Google's Android Platform. Mr. Brady is also one of only eighteen Google employees from whom Google produced files and emails in this litigation, and is also the only person on Google’s initial disclosures identified as knowledgeable about relationships with Android Partners. Moreover, Mr. Brady is one of only two Google employees Google identified as knowledgeable about “sales and marketing in the United States of Google Location,” the accused instrumentality. Ex. 1 (Jan. 6, 2011 Google’s Resp. to Interrog. No. 1) at 6. Nearly one month after Skyhook’s notice issued, Google for the first time refused to offer Mr. Brady for a deposition, arguing that his corporate and individual depositions in Skyhook’s state case suffice for this case as well. Ex. 2 (June 18, 2013 T. Lundin Email) at 2. Skyhook
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promptly explained that the infringement, willfulness, and the damages issues in the patent case are specific to this case and that all of Mr. Brady’s custodian files and the bulk of federal-case production occurred after Mr. Brady was deposed in the state case. Ex. 3 (June 19, 2013 A. Hadzimehmedovic Email) at 5. Google, however, persists in its refusal to offer Mr. Brady for his deposition. Id. (June 24, 2013 S. Dutta Email) at 2. Google’s refusal to produce Mr. Brady for deposition in reliance on his deposition testimony in the state case has no merit. First, the state case involved Skyhook’s state law claims that Google, which controls Android, interfered with Skyhook’s contracts with Samsung and then-independent Motorola concerning its location-positioning software. That case did not
involve the patent infringement or damages issues, such as lost profits and reasonable royalty. For example, the state case did not involve issues relating to indirect infringement, such as Google’s inducement or acts contributing to patent infringement by its Android partners. Given Mr. Brady’s involvement in relationships with Google’s Android partners and his knowledge regarding sales and marketing of the accused products, damages and indirect infringement issues are areas where Mr. Brady’s testimony is expected to be highly relevant. Further, it is not even clear that the attorneys representing Skyhook at the time could have affirmatively sought information relevant to this case through Mr. Brady’s state-court testimony, given that the Protective Order in this case specifically provides that “Protected Material disclosed or produced only in this Federal Action is not deemed disclosed or produced in the State Action.” Section 7.1 of the Protective Order. Second, Google has produced documents clearly relevant to Mr. Brady’s deposition only after his state court corporate and individual depositions. Mr. Brady is one of only two individuals that Google has willingly identified in its interrogatory responses as knowledgeable
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about sales and marketing of the accused products, and is the only one Google has identified as involved in Android relationships. Google named him a custodian in the federal litigation and produced all of his documents in the federal case—a total of over 6,600 documents from his files—after Mr. Brady’s state depositions were completed. A. Hadzimehmedovic Aff. ¶ 2. Finally, Google has also refused to provide complete written discovery responses or document production that would allow Skyhook to streamline Mr. Brady’s deposition. Google only recently produced the first financial spreadsheets relating to the revenue received from the accused products or from their advertising, and it has admitted that it has not yet completed its financial and licensing productions. Google also continues to refuse to produce a complete supplemental interrogatory response that would include information about licenses, sales, and distribution to its Android partners of the Google Location accused products and products that use the accused products’ location estimates to generate significant advertising revenue for Google. Dkt. No. 182 (June 14, 2013 Google’s Opp. to Skyhook’s Mot. to Compel) at 13. Complete written interrogatory responses and document production from Google would allow Skyhook to further focus Mr. Brady’s deposition, but Google is unwilling to cooperate. Skyhook respectfully requests that the Court compel Google to provide Mr. Brady for a deposition within one week of the Court’s order compelling his deposition. III. GOOGLE MUST PRODUCE MR. SERGEY BRIN’S DOCUMENTS RESPONSIVE TO THE NARROW, TARGETED SEARCH SKYHOOK HAS REQUESTED A. SKYHOOK REQUESTED A FOCUSED ELECTRONIC SEARCH OF MR. BRIN’S FILES FOR HIGHLY RELEVANT SUBJECT MATTER
In February 2013, Skyhook noticed a deposition of Mr. Sergey Brin, one of Google’s cofounders, based on its belief that he would have information relevant to Skyhook’s case, in particular in the areas of willful infringement and damages. Ex. 4 (Feb. 6, 2013 A.
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Hadzimehmedovic Email) at 1. Skyhook also initially requested Mr. Brin’s documents based on its general document requests that covered subject areas for which Skyhook believed Mr. Brin would have responsive documents. Id. Google refused to produce any documents from Mr. Brin’s possession or to offer him for a deposition, threatening sanctions. Ex. 5 (Feb. 25, 2013 W. Abrams Email) at 2. Although Skyhook asked repeatedly that Google provide Mr. Brin’s declaration confirming that he has not participated in the activities Skyhook has outlined as relevant to its case and does not have any firsthand knowledge in these areas, Google refused to do so. Id. at 1 (Mar. 6, 2013 A. Hadzimehmedovic Email); id. at 3 (Feb. 19, 2013 A. Google merely asserted that Mr. Brin did not have relevant
Hadzimehmedovic Email). knowledge.
Skyhook agreed to postpone Mr. Brin’s deposition until it had an opportunity to take further discovery, including reviewing documents from his production. Skyhook then served a document request to allow it to test Google’s assertion regarding Mr. Brin’s knowledge and involvement in relevant subject matter; and to streamline Google’s search for relevant documents, Skyhook asked Google to perform an electronic search of Mr. Brin’s files pursuant to Google’s own search terms applied to other Google employees and a set of additional targeted search terms. Ex. 6 (Google’s Resps. to Skyhook’s Third Set of RFPs, RFP. No. 316) at 130-131. Google again refused. Id. at 131. In the meet-and-confer process, Skyhook further focused and significantly narrowed its request by targeting areas of most relevance to Skyhook’s case and thus arrived at the six search strings that form the basis of its current motion: i ii iii iv Skyhook (Ted or Edward) w/3 Morgan (Mike or Michael) w/3 Shean (“MacWorld” or “Mac World”) and (Apple or Jobs or location or driv* or beacons or triangulat*) 6
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“Location-based services” or LBS or GLS (“Location” or Wi-Fi or WiFi or Wi?Fi or wireless or WLAN) and (advert* or revenue or value).
Ex. 7 (June 3, 2013 A. Hadzimehmedovic Email re: ESI and Mr. Brin’s Documents) at 3. Skyhook chose these six search strings because it has reason to believe that Mr. Brin has specific information in his possession, custody and/or control that relate to issues in this case. Merely as an example, regarding the Macworld search string Skyhook has requested, Skyhook has told Google repeatedly that it has a reasonable belief that Mr. Brin has unique knowledge about the Macworld January 2008 event relevant to Skyhook’s case. In particular, at the
Macworld 2008 event, Apple’s Steve Jobs not only revealed that Apple was using Skyhook’s Wi-Fi location technology in maps for its then-nascent iPhone, but described it with admiration: Let’s take maps. There is no GPS inside the iPhone. We got this great new user interface, but how do we actually arrive at the location? Well, we’re working with two companies to do that, Google, and a company called Skyhook Wireless. Let me start with Skyhook. What they have done is they’ve driven the US and Canada in little cars with antennas on them and GPS receivers in them, and they’ve mapped WiFi hot spots. They are now doing Europe and starting in Asia, and they got 23 million WiFi hot spots in their database, and so, when we go to find a location, it turns out you pick up beacons from these hot spots, even if you are not connected to them, and then you pick up the beacons, we triangulate the beacons, look in their database, and it tells us where you are. Isn’t that cool? It’s really cool. Excerpt from Steve Jobs’s Macworld 2008 Presentation that also can be found at at
SKYFED5_000187924 (MP4 video)]. This screen accompanied Mr. Jobs’s presentation about Skyhook:
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Mr. Jobs then also mentioned that Apple was also using Google’s cell triangulation technique: And Google is doing basically the same thing with triangulating cell tower information off the cellular network, and we’re using both of them, and it works pretty doggone well. So that is how we find location on the iPhone. Id. Skyhook has told Google that it has a reasonable belief Mr. Brin had discussions with Apple representatives about Apple’s announcement regarding Skyhook’s location technology and Google's displeasure with it. Ex. 5 (March 6, 2013 A. Hadzimehmedovic Email). Having apparently disparaged Skyhook’s technology to Apple, Google proceeded to then launch the same Wi-Fi based location technology by infringing Skyhook’s patents. Thus, Mr. Brin’s
statements and documents may be relevant to Google’s willful infringement because they would show Google’s awareness of Skyhook’s technology at the highest echelons of the company. Mr. Brin’s statements and actions may also be relevant to nonobviousness of Skyhook’s patents if in fact Mr. Brin disparaged the same methodology that Google soon after employed and monetized. 8
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In any event, these issues should be left for later—when and if Skyhook moves to compel Mr. Brin’s deposition. For the moment, Skyhook is merely seeking Mr. Brin’s documents relevant to this event and his participation in discussions about the value and inventiveness of Skyhook’s technology. As to the other proposed search strings, Ted Morgan and Mike Shean are two of Skyhook’s founders and they have also both been active in Skyhook’s negotiations with Google and with Apple. Finally, by means of the last two search strings V and VI, Skyhook is seeking documents from Mr. Brin’s possession that link him to the development of the accused Google Location products, the approaches Google has employed to monetize the use of accused products, and the value Google places on location data, which is data obtained from the mobile devices by means relating to Google’s accused location services. As Skyhook told Google, based on Skyhook’s review of Google’s production, for example, Google’s Location-Based Services meeting notes reveal that both Mr. Brin and Mr. Page, the other Google founder, received briefings about the development of Google's Location-Based Services, and that they participated in product reviews and “sales readiness” evaluations. Ex. 5 at 1. Further, among those briefings, Mr. Brin appears to have received briefings about Google's effort to place Google’s location services in the iPhone (instead of Skyhook or other third parties) so that Google could collect the users’ Wi-Fi information. Id. Therefore, it is far more likely than not that Mr. Brin has documents about the development of the accused products and the strategic value of those services to Google, which are not only responsive to Skyhook’s requested searches but highly relevant to Skyhook’s case and more persuasive by their virtue of being the files from a person at the helm of the company.
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Google alleges that it has performed an in-house search of Mr. Brin’s files for the terms Skyhook, “Ted Morgan” and MacWorld, the first being Skyhook’s requested term I and the other two being similar to Skyhook’s requests II and IV. Ex. 3 (June 24, 2013 S. Dutta Email) at 1. In a previous email, Google had asserted that Google had searched for a different set of terms: Skyhook, Morgan, Shean and MacWorld. Ex. 2 (June 18, 2013 T. Lundin Email) at 4.
Whatever the correct scope of Google’s actual search, Google has refused to search Mr. Brin’s files in any form for strings V and VI, both of which relate to the accused products and services and the ways in which Google obtains revenue related to those accused products and services. Google has also refused to explain its refusal to even perform those searches. Moreover, in an effort to make sure that Skyhook’s request was not at all burdensome, Skyhook asked how many hits each of Skyhook’s requested search strings returned, but Google refused to tell Skyhook. Ex. 3 (June 19, 2013 A. Hadzimehmedovic Email) at 5. And although Google has repeatedly admitted that its searches returned responsive information, Google asserted that its own in-house persons determined that these responsive documents were not relevant. Id. (June 24, 2013 S. Dutta Email) at 1. Google refused to produce any of these responsive documents and threatened sanctions again. Id. This refusal improperly blocks Skyhook’s attempt to review Mr. Brin’s documents to confirm his relevance to its case before moving forward with his deposition. B. GOOGLE’S UNSUPPORTED “RELEVANCE” ASSERTIONS ARE IMPROPER ATTEMPTS TO UNILATERALLY PREJUDGE THE MERITS OF SKYHOOK’S CASE
Google’s unilateral assertions that Mr. Brin’s documents which “hit” on Skyhook’s search terms—documents which only its in-house persons have seen—are irrelevant to Skyhook’s case can provide no basis to withhold them. Google failed to support those assertions with any evidence or any reason why its unilateral relevance determinations should be the metric
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at this stage where Skyhook is simply asking for production of responsive documents that must only be likely to lead to admissible evidence. That is the standard set by Rule 26 of the Federal Rules of Civil Procedure and Google may not unilaterally elect to ignore it in favor of its own amorphous “relevance” standard. Google has refused repeatedly to provide any evidence that the production of Mr. Brin’s documents would in fact yield material that would not be likely to lead to admissible evidence. It has flatly refused to provide Skyhook with even the mere counts of the number of responsive hits to each of Skyhook’s requested six search strings. Google
similarly refused to provide confirmation from Mr. Brin that he has no knowledge relevant in the areas that Skyhook has been interested in. Instead of speaking with him about his participation at Macworld, for example, Google repeatedly insisted that he was one of “roughly 50,000 persons [who] attended MacWorld 2008.” Ex. 3 (June 24, 2013 S. Dutta Email) at 1. But that is beside the point: very few if any of those 50,000 persons had a picture of their conversation with Apple’s Steve Jobs taken at the very same event and preserved for posterity. Ex. 8. This picture at minimum shows that at the time Mr. Brin had unprecedented access to Apple’s high-level executives, and makes it at least more likely that he in fact engaged in the discussions with Apple that Skyhook understands related to its technology. Finally, Google has failed to even attempt to prove that any responsive documents found in Mr. Brin’s files are duplicative of files already produced to Skyhook. And it likely cannot provide such proof because Google has so far carefully guarded its high-level executives from this litigation and none of those executives is a custodian in this case so far. Google’s repeated unsupported statements about Mr. Brin’s lack of any relevant involvement and alleged “harassment” by Skyhook are almost exactly like the arguments Microstrategy advanced recently when trying to prevent production of documents from its
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founder and CEO, Michael Saylor. Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv06637-RS-PSG, 2012 U.S. Dist. LEXIS 163654, at *17-18 (N.D. Cal. Nov. 15, 2012). (The Court may recall that Mr. Saylor is famous as the person who lost 6 billion in personal worth in a single day in 2000.) The plaintiff sought Mr. Saylor’s documents in part because as the founder and CEO he would be more knowledgeable than anyone else at Microstrategy about “’big picture subjects’ including patent licensing and avoiding infringement.” Id. at *17. The Court ordered production, stating in words that equally apply to this case: Other than pointing to Saylor’s position and stating – without evidence – that he is not involved, Microstrategy provides no argument beyond reciting that VSI’s request is “harassing.” Especially in light of the broad interpretation of “relevance” under Fed. R. Civ. P. 26, VSI has made a persuasive showing that Saylor’s emails may be relevant and may lead to admissible evidence if not admissible themselves. Saylor is the founder and CEO of the company; he would most likely have information lower-level employees do not. Id. at *18. Having failed to offer any evidence that the production of Mr. Brin’s documents would duplicate the documents Google has previously produced in this litigation or would present any, let alone undue, burden, Google must now produce those documents. The arguments about Mr. Brin’s unique knowledge about matters relevant to this litigation must be left for another day— certainly for days after Skyhook has received and reviewed Mr. Brin’s documents itself for relevance and to the extent Skyhook decides to proceed with Mr. Brin’s deposition. IV. GOOGLE MUST PRODUCE ALL DEPOSITION TRANSCRIPTS AND DISCOVERY RESPONSES FROM TRACBEAM LITIGATION A. FACTUAL BACKGROUND
Google is a defendant in a case involving patents that allegedly “relate to methods and systems for determining the location of mobile devices using multiple location techniques.” TracBeam v. AT&T et al., Case No. 6:11-CV-96, Dkt. No. 352 (E.D Tex. Jan. 23, 2013 Mem.
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Opinion and Order) at 1. Skyhook had also been sued by the same plaintiff but it has since settled the case. In March 2013, Skyhook requested Google’s documents from the TracBeam litigation, as Google requested the same from Skyhook. Ex. 9 (Mar. 6, 2013 Email from A. Hadzimehmedovic). Skyhook produced information relevant to Google’s request, but Google failed to reciprocate. Id. Skyhook then served a targeted request for production of documents Google has produced in that litigation: All Documents or Things produced or made available for inspection in TracBeam, L.L.C. v. Google, Inc., Case No. 6:13-cv-00093, including without limitation depositions and discovery responses Ex. 6 (May 2, 2013 Google’s Resps. To Skyhook’s 3rd Set of RFPs, RFP 303) at 120 (emphasis added). Google did not initially agree to produce documents but agreed to meet and confer about the scope of a potential production. Id. at 121. During the meet and confers, Skyhook told Google that it was particularly interested in Google’s depositions and discovery responses from that litigation (as its request specifically stated), and the burden of turning over those limited documents must be negligible. A. Hadzimehmedovic Aff. ¶ 3. Skyhook explained that the apparent overlap in the accused products and potentially also in damages issues warranted production of corporate and individual depositions of all witnesses. Id. Skyhook also
underscored its continued concern with Google’s unwillingness to provide discovery into its marketing, distribution and sales of the accused products, including the identification of persons involved in those activities. Id.; Dkt. No. 173 (Skyhook’s Mot. to Compel) at 19-20 As a result of the meet-and-confer process, Google agreed to produce: “(1) documents produced in Tracbeam that have not been produced in this action and (2) transcripts of depositions taken in the Tracbeam action for witnesses who are common to both actions.” Ex. 2 (June 18, 2013 Email from T. Lundin) at 3. When asked to confirm specifically whether
category (1) included Google’s discovery responses in that case, Google confirmed that it did not 13
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and that it was in fact refusing to produce its discovery responses from that litigation. Ex. 3 (June 24, 2013 Email from S. Dutta) at 2. Google also refused to produce all individual and corporate depositions, or to even identify the witnesses whose depositions it was not willing to produce. Id. B. GOOGLE’S BURDEN AND RELEVANCE ARGUMENTS FAIL IN LIGHT OF ITS OWN CONDUCT AND ADMISSIONS
Google’s claim that it is unduly burdensome to produce the discovery responses and all depositions, Ex. 3 (June 24, 2013 S. Dutta Email) at 2, is not credible. It is significantly less burdensome to produce these sorts of documents than to engage in the analysis Google already agreed to engage in, which is to sort through the production in that case to identify documents not produced in the present case and reproduce them here. Moreover, Google’s Bingham McCutchen lawyers representing it in that case—Susan B. Manning and Robert C. Burtin— represent Google in this case as well. All they need to do is look at their files and produce deposition transcripts and discovery responses in this case. Moreover, these sorts of discovery documents are more likely to focus Skyhook’s review of the TracBeam litigation documents and may contain information that Google has been refusing to provide in interrogatory responses and depositions in this case. The SRA case, which Skyhook brought up at the last hearing, shows that Google has produced documents in at least one other litigation that it refuses to produce here. See In re Google Litig., 2011 U.S. Dist. LEXIS 125732, at *19 (N.D. Cal. Oct. 31, 2011); compare, e.g., Skyhook’s RFP 55 (“All Documents Relating To Your corporate licensing policy or procedures”) with SRA’s RFP 126 in that case (“Documents concerning Google's licensing policies regarding in-bound and outbound licensing practices”); compare also Skyhooks RFPs 51-53 with SRA’s RFP No. 161 and Skyhook’s RFPs 90 and 91 with SRA’s RFP 125.
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Google’s relevance arguments are equally misplaced. Google argues that the discovery responses and depositions of individuals it refuses to identify are not relevant to this case, and then asks Skyhook to prove how those unidentified depositions and discovery responses Skyhook has never seen are relevant. First, TracBeam’s Complaint alleges that “Google’s infringing products and services include, without limitation, its products and services for determining the locations of wireless mobile devices, including its My Location product.” See Case No. 6:11-cv-96, Dkt No. 57 (TracBeam’s 1st Supp. Amd. Complaint), ¶ 39. The same products are accused here. Second, Google’s own statements in the TracBeam case support the overlap in subject matter and accused products between the two cases. In that case, when moving to sever its case from that of Skyhook, Google argued that if Google had to cooperate with its then co-defendant Skyhook in TracBeam case, Skyhook’s counsel in that case could potentially provide Skyhook insight into Google’s products and confidential technical information that may be used against it in this case. Id., Dkt. No. 353 (Order to Mot. to Sever) at 3. If there was no significant overlap in accused products and technical information, Google could not have credibly made that representation to the court in Texas. Finally, Google’s agreement to produce other materials from the TracBeam litigation is itself a concession about the relevance of the litigation materials from that case to this case. For all of the above reasons, Google should be compelled to produce all documents produced in the TracBeam litigation, including specifically all deposition transcripts and discovery responses. V. GOOGLE MUST PRODUCE ITS AGREEMENTS RELATED TO ACCUSED PRODUCTS AND NEGOTIATIONS RELATING TO THEM OR PROVE THAT ITS PRODUCTION IS COMPLETE Skyhook’s Request for Production No. 199 reads:
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All Documents Relating To any agreements with Motorola, Samsung, LG, HTC, any other OEM, or any Person Concerning Google Location, including all documents reflecting negotiations concerning any such agreement. Ex. 6 (May 2, 2013 Google’s Resps. to Skyhook’s 3rd Set of RFPs) at 24. Google responded, in substantive part as follows: Subject to and without waiving the foregoing and all General Objections set forth above and in Exhibit A, and to the extent Google understands this request, Google states that it has produced such non-privileged documents as exist in its possession, custody, or control, as have been located after a reasonable and good faith search that are responsive to this Request. Id. at 25 (emphasis added). During the meet-and-confers, however, Google has been unwilling or unable to explain why it believes that it has completed its production of documents responsive to this request, in particular why it believes that its electronic search terms covered the production of negotiations for any agreements with its OEM partners. Ex. 3 (June 23, 2013 Email from A. Hadzimehmedovic). In fact, Google’s identification of documents it believes are responsive to this request evidences the incompleteness of Google’s production. Ex. 10 (June 27, 2013 Email from S. Dutta) at 2-3. Among those documents Google identified in its production, only a handful of documents reflect Google’s negotiations with third parties. These documents, which Google apparently would have Skyhook and the Court believe is the entirety of its negotiations with any third parties relating to Google Location over at least half-dozen years that Skyhook’s requests cover, total less than two hundred pages, which is less than a drop in Google’s production bucket. But Google’s negotiations with its Android partners form a
significant part of its business and thus its minuscule negotiations production does not fairly reflect its interactions relating to Google Location. Further, notably absent from this collection are any direct communications with any third parties relating to Google Location. Skyhook’s request is simple: Google must complete its production of documents responsive to this request, in particular direct negotiations with third parties regarding Google Location, or in the alternative 16
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must certify in a sworn declaration that its production is complete and include production (Bates) number identification of the produced Google Location agreements and negotiation documents related to each of those agreements. For the foregoing reasons, Skyhook respectfully requests that this Court compel Google to provide Mr. Patrick Brady for a deposition and produce documents responsive to Skyhook’s Request for Production Nos. 199, 303, and 316 as detailed in this Memorandum and specified in the Proposed Order (attached to Skyhook’s Motion).
Dated: July 1, 2013
Respectfully submitted: /s/ Azra M. Hadzimehmedovic Matthew D. Powers (pro hac vice) Steven S. Cherensky (pro hac vice) Paul T. Ehrlich (pro hac vice) William P. Nelson (pro hac vice) Azra M. Hadzimehmedovic (pro hac vice) Aaron M. Nathan (pro hac vice) TENSEGRITY LAW GROUP LLP 555 Twin Dolphin Drive, Suite 360 Redwood Shores, CA 94065 (650) 802-6000 firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com Thomas F. Maffei (BBO 313220) Douglas R. Tillberg (BBO 661573) GRIESINGER, TIGHE & MAFFEI, LLP 176 Federal Street Boston, Massachusetts 02110 (617) 542-9900 firstname.lastname@example.org email@example.com
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Attorneys for Skyhook Wireless, Inc.
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CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing to be served via the ECF system of the District of Massachusetts this 1st day of July 2013, on all counsel of record.
/s/ Azra M. Hadzimehmedovic