Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 1 of 4 PageID #: 5934
`Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 1 of 4 PageID #: 5934
`SMIT
`TZENSTEIN
`ENKINS LLP
`
`December 5, 2019
`
`BY ECF AND HAM DELIVERY
`The Honorable Leonard P. Stark
`
`844 N. King Street; Room 6124, Unit 26
`Wilmington, DE 19801-3555
`
`PUBLIC VERSION
`
`Re:
`
`Arendi S.A.R.L v. Google, LLC; CA. No. 13-0919 LPS
`
`Dear Chief Judge Stark:
`
`testimony from Google, LLC
`(“Arendi”) moves to compel
`Plaintiff Arendi S.a.r.l.
`(“Google”) on an issue fundamental to calculating damages in this case: the number ofunits of the
`accused products that Google sold or distributed Google has denied Arendi corporate testimony
`on this issue, and it should be compelled.
`
`1. Google has failed and refused to provide 30(b)(6) testimony regarding the unit
`sales of the accused products.
`
`On August 26, 2019, Arendi noticed a 30(b)(6) deposition of Google. D.I. 150. The notice
`included various topics related to the sales and use of the Google products which Arendi has
`accused of patent infringement. Topic 5 requested corporate testimony on the “amormt of sales,
`use, subscriptions, monetization, costs, or revenues related to the Accused Products purportedly
`occurring within the United States.” Id.
`
`On September 17, 2019, Google served objections and responses to Arendi’s 30(b)(6)
`notice. After reciting boilerplate objections, Google agreed to produce a witness on Topic 5, stating
`in relevant part that “Google will designate one or more corporate witnesses to testify generally
`about the Google financial documents relating to the Accused Products that are produced by
`Google in this case.” Ex. A at 12. Google did not define the docrunents that it considered to be
`“Google financial docrunents” or make any specific indication that it objected to providing
`corporate testimony on the amormt of sales and use of the accused products. See id. In a meet and
`confer call on October 1, 2019, Google’s cormsel represented that its statement that Google would
`testify “generally about the Google financial docrunents” would not limit its testimony to content
`within the forn‘ corners of specific docrunents.
`
`Despite Google’s agreement to produce "unit sales” and other financial information related
`to the accused products in 2013 (Ex. B at 4-5), Google did not produce this information in
`recognizable form rmtil September 26, 2019. On that date, Google made a production of 38 files
`providingvarious fragments of financial information. A nrunber of the files included—
`while others included—
`
`_ Also included in the production were various files that appear to show -
`
`Allomeysat l aw | Brandywme BU‘dIng
`
`1000Wesr$rreel Sunle150‘ RO.Box 410 l
`
`\Mlmlnglon. DE 19899-0410 302.652.8400
`
`sijaw.com
`
`

`

`Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 2 of 4 PageID #: 5935
`Case 1:13-cv-OO919-LPS Document 193 Filed 12/12/19 Page 2 of 4 PageID #: 5935
`
`On October 30, 2019, Arendi deposed Sai Marri, whom Google designated as its corporate
`witness on Topic 5 and other financial topics, seeking to 1mderstand the various documents
`quantifying the extent of the accused products’ sales and use during the relevant time period. Yet
`when Arendi’s counsel asked uestions about the writ sales of the accused roducts, Mr. Marri
`stated
`
`
`
`
`
`Arendi’s counsel left the deposition open and requested additional corporate testimony
`because Mr. Mairi “could not testify about numerous documents that I presented to him even
`though they directly relate to the amormt of sales and use of the Accused Products, Topics 4-5, for
`which Mr. Mairi was Google’s corporate witness.
`.
`.
`. Without 30(b)(6) testimony on these
`docmnents, Arendi has no way of understanding them.” Ex. D. In a subsequent meet and confer
`conference call on November 6, 2019, Google’s cormsel acknowledged that Google’s production
`of unit sales information related to the accused products was deficient, and agreed to supplement
`it. Nonetheless, Google refused to present a witness to provide testimony that would explain the
`unit sales or download and installation data that Google has produced or will produce.
`
`Last week, on November 25, 2019, Google fmally produced
`It has still not produced unit sales information for the accused Nexus,
`Chromebook, or Pixelbook products, however, nor has it produced unit sales infonnation related
`to the accused applications (Gmail, Docs, Slides, Sheets, Hangouts, Tasks, etc. . Goo le has still
`I]
`ot offered an ex lanation of the files it
`roduced that appear to show
`
`H Without ttttmtmy ttttt
`
`Geog
`
`1mit sales or explains produced doc1unents that include unit sales information, Arendi has no way
`of calculating damages in this case. Arendi simply does not know how many infringing units of
`the accused products Google has sold or otherwise distributed.
`
`2. Arendi is entitled to testimony identifying and explaining the amount of sales and
`
`use of the accused Google products, as requested in Topic 5.
`
`1 GOOGOOIS6365, GOOG00156351 and GOOG00156834.
`
`2
`
`

`

`Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 3 of 4 PageID #: 5936
`Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 3 of 4 PageID #: 5936
`
`The amount of sales and use of the accused products is not only relevant, but integral to
`Arendi’s damages case. Arendi squarely requested the information, noticing Topic 5 on the
`“amount of sales, use, subscriptions, monetization, costs, or revenues related to the Accused
`Products purportedly occurring within the United States.” Ex. A.
`
`“It is beyond dispute that a Rule 30(b)(6) ‘deponent has a duty of being knowledgeable on
`the subject matter identified as the area of inquiry.’” Penn Mm. Life Ins. Co. v. Rodney Reed 2006
`Ins. Tr., N0. 09-CV-0663 JCJ, 2011 WL 1636985, at *3 (D. Del. Apr. 29, 2011). The “duty of
`preparation goes beyond matters personally known to the designee or to matters in which the
`designee was personally involved, and if necessary the deponent must use documents, past
`employees or other sources to obtain responsive information.” Id.
`
`To the extent Google argues that its formal objections to Topic 5 made clear that it would
`not provide testimony on the unit sales of the accused products, that is untrue. Google’s objections
`broadly stated that its witness would “testify generally about the Google financial documents
`relating to the Accused Products” and did not identify any particular “financial documents” so as
`to limit its testimony to some spreadsheets but not others. Ex. A at 12. Moreover, if Google
`believed that Arendi was not entitled to testimony as to the amount of sales and use of the accused
`products, it should have objected explicitly. See Inventio AG v. vassenkrzwp Elevator Americas
`Corp, No. CV 08-874—RGA, 2013 WL 12133902, at *9 (D. Del. July 29, 2013) (compelling
`supplemental 30(b)(6) testimony where defendant “took the position that the deposition would be
`limited to the spreadsheets” it produced instead of the information requested). Google told Arendi
`it would “testify generally about the G00 le financial documents” and proceeded to roduce, in
`the same 38-file roduction with
`information, various files showing
`
`It then refused to testr
`
`as to t e
`
`latter files, and its witness could not testify about unit sales. This unfairly denied Arendi critical
`testimony as to how many units of the accused products Google has sold or otherwise distributed.
`
`Arendi raised these issues following Mr. Maui’s deposition, and Google agreed to rovide
`the unit sales information that it did not produce previously. It has now done so for
`- products (but not the others),2 yet maintains its refusal to present additional 30(b)(6)
`testimony on the newly produced documents (as well as on the previously-produced files regarding
`installations and downloads). It is not Arendi’s fault that Google neglected to produce the unit
`sales data before Mr. Marri’s deposition, even though it agreed to do so in 2013, and Arendi should
`not have to forego testimony on these documents as a result of Google’s neglect. Unit sales
`information as to accused products in a patent suit is basic and highly relevant. Google should not
`be allowed to withhold it from its production and deny 30(b)(6) testimony on it, but then produce
`fragments of it without explanatory testimony.
`
`For these reasons, Arendi respectfully requests that the Court compel Google to provide
`knowledgeable testimony on the amount of sales and use of the accused products.
`
`2 Google has stated in correspondence with Arendi that it is “continuing to investigate unit sales
`information.” Ex. D.
`
`

`

`Case 1:13-cv-00919-LPS Document 193 Filed 12/12/19 Page 4 of 4 PageID #: 5937
`
`Respectfully submitted,
`
`/s/ Eve H. Ormerod
`
`Eve H. Ormerod (No. 5369)
`
`Enclosures
`
`cc:
`
`Clerk of Court (via CM/ECF)
`All Counsel of Record (via CM/ECF)
`
`4
`
`