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CLRB Hanson Industries, LLC et al v. Google Inc. Doc.

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Case 5:05-cv-03649-JW Document 111 Filed 02/08/2007 Page 1 of 3

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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9 SAN JOSE DIVISION
10 CLRB Hanson Industries, LLC d/b/a Industrial NO. C 05-03649 JW
Printing, et al.,
United States District Court

11 ORDER FOLLOWING HEARING ON


Plaintiffs, PLAINTIFFS’ MOTION FOR PARTIAL
For the Northern District of California

12 v. SUMMARY JUDGMENT AND


DEFENDANT’S MOTION FOR
13 Google Inc., SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, FOR SUMMARY
14 Defendant. ADJUDICATION
/
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On January 22, 2007, the Court conducted a hearing on Plaintiffs’ Motion for Partial
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Summary Judgment and Defendant’s Motion for Summary Judgment. (See Docket Item Nos. 80,
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85.) During the hearing, Defendant’s counsel referred to the declaration of Michael Schulman
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(“Schulman”), a Google engineer, as evidence of how Google’s AdWords system compensates for
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fluctuations in Internet traffic over a period of time.1 Plaintiffs’ counsel indicated that they had not
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have an opportunity to take Schulman’s deposition, or the deposition of any other Google employee
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with knowledge of how the AdWords system delivers advertisements.
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Presently, there is insufficient evidence describing how the AdWords system accounts for
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fluctuations in Internet traffic and offsets prior shortfalls in advertising hits. For instance, there is
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26 In his declaration, Schulman states, inter alia, “Recognizing that the daily budget is an
advertiser’s target, as opposed to its maximum, daily advertising spending, the AdWords system was
27 designed to average out natural fluctuations in daily charges by permitting accrual of charges up to
120% of the daily budget in a day if it is necessary to offset prior shortfalls within that monthly
28 billing period.” (Declaration of Michael Schulman ¶ 9, Docket Item No. 88.)

Dockets.Justia.com
Case 5:05-cv-03649-JW Document 111 Filed 02/08/2007 Page 2 of 3

1 insufficient evidence in the record establishing that overdelivery by up to 120 percent will actually
2 occur on the first day that an advertising campaign is commenced.
3 Accordingly, Defendant is ORDERED to deliver Michael Schulman for deposition by
4 Plaintiffs. Plaintiffs shall also be permitted to depose one to two additional Google employees with
5 knowledge of how the AdWords system compensates for fluctuations in Internet traffic. The
6 depositions will occur within thirty days of this Order. The Court continues the hearing on
7 Plaintiffs’ Motion for Partial Summary Judgment and Defendant’s Motion for Summary Judgment
8 to April 2, 2007 at 9 AM. The parties will comply with the Local Rules for supplemental briefing,
9 if any.
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United States District Court

11 Dated: February 8, 2007


JAMES WARE
For the Northern District of California

12 United States District Judge


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Case 5:05-cv-03649-JW Document 111 Filed 02/08/2007 Page 3 of 3

1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:
2 Christopher M. Jhang cjhang@perkinscoie.com
David T. Biderman dbiderman@perkinscoie.com
3 Judith B. Gitterman gittj@perkinscoie.com
Lester L Levy llevy@wolfpopper.com
4 Lisa Delehunt ldelehunt@perkinscoie.com
Michele Fried Raphael mraphael@wolfpopper.com
5 Ryan M. Hagan rhagan@alexanderlaw.com
William M. Audet waudet@alexanderlaw.com
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7 Dated: February 8, 2007 Richard W. Wieking, Clerk
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By: /s/ JW Chambers
9 Elizabeth Garcia
Courtroom Deputy
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United States District Court

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For the Northern District of California

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