Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 1 of 18 PageID #: 52399
`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 1 of 18 PagelD #: 52399
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 2 of 18 PageID #: 52400
`
`Kemper Diehl
`From:
`Sent:
`To:
`
`Cc:
`
`Subject:
`Attachments:
`
`John Lahad
`Friday, April 21, 2023 10:53 PM
`Unikel, Robert; Failla, Melissa J.; Kalpana Srinivasan; Max Straus; Seth Ard; Rachel Solis; Kemper Diehl;
`Richard Wojtczak; dtaylor@skjlaw.com; nbelgam@skjlaw.com; smb@skjlaw.com
`shamlin@Potteranderson.com; vinny.ling@mto.com; bpalapura@potteranderson.com;
`dmoore@potteranderson.com; ginger.anders@mto.com; Google-Arendi; Susan M. Betts; Neal C.
`Belgam
`RE: Meet and Confer Concerning IPR Proceedings Issue
`Weinstein - Supp Reply Exhibits (Highlighted).pdf
`
`Rob-
`Confirmed as to CD and CSQA.
`
`Arendi will present a total damages figure of $45.5 million at trial.
`
`
`This is reached by taking Exhibits 1B and 2B to Mr. Weinstein’s supplemental reply report and
`excluding (i) all units of the News app; (ii) units of the Chrome app from before August 21, 2017;
`and (iii) all Pixel 1 / Pixel XL units.
`
`
`These exhibits are re-attached here for convenience. The units now being excluded from the
`damages figure are highlighted. The Chrome units for 2017 are pro-rated in the same manner as
`the other apps, such that the accused Chrome units in 2017 are now
`.
`
`Thank you.
`
`John P. Lahad
`Partner |Susman Godfrey LLP
`Houston | New York | Los Angeles |Seattle
`713.653.7859 (o) 713.725.3557 (m)
`
`From: Unikel, Robert <robertunikel@paulhastings.com>  
`Sent: Friday, April 21, 2023 8:03 PM 
`To: John Lahad <jlahad@SusmanGodfrey.com>; Failla, Melissa J. <melissafailla@paulhastings.com>; Kalpana Srinivasan 
`<ksrinivasan@SusmanGodfrey.com>; Max Straus <MStraus@susmangodfrey.com>; Seth Ard 
`<sard@susmangodfrey.com>; Rachel Solis <RSolis@susmangodfrey.com>; Kemper Diehl 
`<KDiehl@susmangodfrey.com>; Richard Wojtczak <rwojtczak@susmangodfrey.com>; dtaylor@skjlaw.com; 
`nbelgam@skjlaw.com; smb@skjlaw.com 
`Cc: shamlin@Potteranderson.com; vinny.ling@mto.com; bpalapura@potteranderson.com; 
`dmoore@potteranderson.com; ginger.anders@mto.com; Google‐Arendi <Google‐Arendi@paulhastings.com>; Susan M. 
`Betts <SMB@skjlaw.com>; Neal C. Belgam <NCB@skjlaw.com> 
`Subject: RE: Meet and Confer Concerning IPR Proceedings Issue 
` 
`EXTERNAL Email  
`John, 
`
`1
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 3 of 18 PageID #: 52401
`
`At the end of our call a bit ago, you stated that Arendi is dropping it infringement claim against Chrome using Content 
`Detectors and Contextual Search Quick Actions.  Please confirm that this is correct by reply email ASAP. 
`
`When I asked you what Arendi’s new damages demand is, you did not have a number readily available, but promised to 
`send that number, along with your method of calculating that number, tonight so that we can consider the impact of 
`this withdrawal on the case. 
`
`Rob 
`
`From: John Lahad <jlahad@SusmanGodfrey.com>  
`Sent: Friday, April 21, 2023 6:33 PM 
`To: Unikel, Robert <robertunikel@paulhastings.com>; Failla, Melissa J. <melissafailla@paulhastings.com>; Kalpana 
`Srinivasan <ksrinivasan@SusmanGodfrey.com>; Max Straus <MStraus@susmangodfrey.com>; Seth Ard 
`<sard@susmangodfrey.com>; Rachel Solis <RSolis@susmangodfrey.com>; Kemper Diehl 
`<KDiehl@susmangodfrey.com>; Richard Wojtczak <rwojtczak@susmangodfrey.com>; dtaylor@skjlaw.com; 
`nbelgam@skjlaw.com; smb@skjlaw.com 
`Cc: shamlin@Potteranderson.com; vinny.ling@mto.com; bpalapura@potteranderson.com; 
`dmoore@potteranderson.com; ginger.anders@mto.com; Google‐Arendi <Google‐Arendi@paulhastings.com>; Susan M. 
`Betts <SMB@skjlaw.com>; Neal C. Belgam <NCB@skjlaw.com> 
`Subject: [EXT] RE: Meet and Confer Concerning IPR Proceedings Issue 
`
`‐‐‐ External Email ‐‐‐ 
`
`How about 8 pm eastern? Can you circulate a dial-in please?
`
`John P. Lahad
`Partner |Susman Godfrey LLP
`Houston | New York | Los Angeles |Seattle
`713.653.7859 (o) 713.725.3557 (m)
`
`From: Unikel, Robert <robertunikel@paulhastings.com>  
`Sent: Friday, April 21, 2023 4:42 PM 
`To: John Lahad <jlahad@SusmanGodfrey.com>; Failla, Melissa J. <melissafailla@paulhastings.com>; Kalpana Srinivasan 
`<ksrinivasan@SusmanGodfrey.com>; Max Straus <MStraus@susmangodfrey.com>; Seth Ard 
`<sard@susmangodfrey.com>; Rachel Solis <RSolis@susmangodfrey.com>; Kemper Diehl 
`<KDiehl@susmangodfrey.com>; Richard Wojtczak <rwojtczak@susmangodfrey.com>; dtaylor@skjlaw.com; 
`nbelgam@skjlaw.com; smb@skjlaw.com 
`Cc: shamlin@Potteranderson.com; vinny.ling@mto.com; bpalapura@potteranderson.com; 
`dmoore@potteranderson.com; ginger.anders@mto.com; Google‐Arendi <Google‐Arendi@paulhastings.com>; Susan M. 
`Betts <SMB@skjlaw.com>; Neal C. Belgam <NCB@skjlaw.com> 
`Subject: Meet and Confer Concerning IPR Proceedings Issue 
`
`EXTERNAL Email  
`
`2
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 4 of 18 PageID #: 52402
`
`Arendi team,
`
`Per the Court’s instruction, we would like to schedule a meet and confer call with you tonight to discuss
`potential paths to resolve the IPR proceedings issue. Please let us know when you are available.
`
`Thanks,
`
`Rob
`
`******************************************************************************************
`This message is sent by a law firm and may contain information that is privileged or confidential. If you received
`this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
`If you reply to this message, Paul Hastings may collect personal information including your name, business name
`and other contact details, and IP address. For more information about Paul Hastings' information collection, privacy
`and security principles please click HERE. If you have any questions, please contact Privacy@paulhastings.com.
`
`******************************************************************************************
`This message is sent by a law firm and may contain information that is privileged or confidential. If you received
`this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
`If you reply to this message, Paul Hastings may collect personal information including your name, business name
`and other contact details, and IP address. For more information about Paul Hastings' information collection, privacy
`and security principles please click HERE. If you have any questions, please contact Privacy@paulhastings.com.
`
`3
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 5 of 18 PageID #: 52403
`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 5 of 18 PagelD #: 52403
`REDACTED
`REDACTED
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`

`

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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 6 of 18 PagelD #: 52404
`REDACTED
`REDACTED
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`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 7 of 18 PageID #: 52405
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`EXHIBIT B
`Redacted in its Entirety
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 8 of 18 PageID #: 52406
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`EXHIBIT C
`Redacted in its Entirety
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 9 of 18 PageID #: 52407
`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 9 of 18 PagelD #: 52407
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`EXHIBIT D
`EXHIBIT D
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`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 10 of 18 PageID #: 52408
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`HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
`
`Page 271
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
` _____________________________
`
`)
` ARENDI S.A.R.L., )
`)
`Plaintiff, ) Case No: 12-1601 LPS
`)
`vs. )
`)
` MOTOROLA MOBILITY LLC, )
`)
`Defendant. )
` _____________________________)
` ARENDI S.A.R.L.,
`
`) )
`
`Plaintiff,
`
`) Case No: 13-919-LPS
`)
`
`) )
`
`) )
`
`)
`
`vs.
`
` GOOGLE LLC,
`
`Defendant.
`
`** OUTSIDE ATTORNEYS' EYES ONLY **
` HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
`REMOTE VIDEOTAPED DEPOSITION OF
`ROY WEINSTEIN
`Tuesday, October 18, 2022
`Volume III
`
` Reported by:
` NADIA NEWHART
` CSR No. 8714
` Job No. 5516598
` PAGES 271 - 439
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`800-567-8658
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`Veritext Legal Solutions
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`

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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 11 of 18 PageID #: 52409
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`HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
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`Page 414
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` part of what you just said is true; that is, the
`
` Court found that Linkify and Smart Linkify do not
`
` infringe, that much is true.
`
` Q So when do you believe that the hypothetical
`
` negotiation would have occurred --
`
` A Well --
`
` Q -- now in light of the Court's rulings?
`
` A You -- you noted that I don't address that in
`
` my reports, and as far as -- as far as I'm
`
` concerned, the hypothetical negotiation date is the
`
` same for Google given -- given Chrome and
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` infringement of Chrome.
`
` Or for Motorola, in my original report, the
`
` hypothetical negotiation was around March of 2011.
`
` Given the Court's -- the Court's ruling on Linkify
`
` and Smart Linkify, it -- it could be -- it could be
`
` later.
`
` But even if it were later, such as in 2017,
`
` I -- I don't believe that -- that change of the date
`
` would change the results of my analysis insofar as
`
` the damages that I've calculated are concerned.
`
` Q Do you have an opinion, sitting here today,
`
` as to when the hypothetical negotiations would have
`
` occurred with respect to Google?
`
` A Yes. It would be in -- in -- in
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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 12 of 18 PageID #: 52410
`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 12 of 18 PagelD #: 52410
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`EXHIBIT E
`EXHIBIT E
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 13 of 18 PageID #: 52411
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`
`CIVIL ACTION
`
`NO. 12-1601-LPS
`
`:::::::::
`
`ARENDI S.A.R.L.,
`Plaintiff,
`
`vs.
`GOOGLE LLC,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- - -
`Wilmington, Delaware
`Monday, December 9, 2019
`11:30 o'clock, a.m.
`***Telephone conference
`- - -
`BEFORE: HONORABLE LEONARD P. STARK, Chief Judge
`- - -
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`APPEARANCES:
`
`SMITH KATZENSTEIN & JENKINS LLP
`BY: EVE H. ORMEROD, ESQ.
`
`-and-
`
`Valerie J. Gunning
`Official Court Reporter
`
`1 of 10 sheets
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`Page 1 to 1 of 21
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`12/09/2019 08:25:34 PM
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 14 of 18 PageID #: 52412
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`Your Honor, this motion is about obtaining
`
`discovery from Google that should not be controversial.
`We're moving to compel an answer to the question of how many
`units of the accused products Google sold. Without that
`number, we can't calculate damages as accurately as we would
`like.
`
`For background, there are two categories of
`accused products in this case. The first are Google's
`devices, like the Pixel and Nexus smartphones. After we
`filed this motion to compel, Google had agreed to produce
`unit sales data for all of the devices by today and to
`
`provide a witness to testify about the newly produced
`documents on Friday. We're glad this motion prompted Google
`to do that, but that only gets us part of the way there. We
`also need a number of units for the second category of
`
`accused products, which are various Google applications like
`Gmail, Google Chrome, Google Docs and Google Hangouts.
`Google has refused to present a witness to
`testify about the number of units of those applications that
`it has sold or distributed. Arendi sought 30(b)(6)
`
`testimony in order to pin down the unit sales and revenues
`of the accused products. Those were topics 1 through 6 of
`Arendi's deposition notice. These are typically not
`controversial topics.
`Google said in its responses and objections that
`
`5
`
`APPEARANCES (Continued):
`
`SUSMAN GODFREY, LLP
`BY: JOHN LAHAD, ESQ., ESQ.
`(Houston, Texas)
`
`-and-
`
`SUSMAN GODFREY, LLP
`BY: KEMPER DIEHL, ESQ. ESQ.
`(Seattle, Washington)
`
`Counsel for Plaintiff
`
`POTTER, ANDERSON & CORROON LLP
`BY: DAVID E. MOORE, ESQ.
`
`-and-
`
`PAUL HASTINGS LLP
`BY: MICHELLE MAREK FIGUEIREDO, ESQ.
`(Chicago, Illinois)
`
`-and-
`
`PAUL HASTINGS LLP
`BY: CHAD J. PETERMAN, ESQ.
`(New York, New York)
`
`Counsel for Defendant
`Google LLC
`
`- - -
`
`P R O C E E D I N G S
`
`2
`
`3
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`(REPORTER'S NOTE: The following telephone
`conference was held in chambers, beginning at 11:30 a.m.)
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`it would present a witness on them and the witness would
`2
`"testify generally about the Google financial documents
`3
`produced in this case."
`4
`Google did not impose any restrictions limiting
`5
`the testimony to any specifically identified documents.
`6
`About ten days after Google agreed to testify about its
`7
`financial documents, it produced a set of financial
`8
`documents for the first time in this case. There were 38
`9
`files in the production. Most of them were spreadsheets.
`10
`They had different pieces of Google financial data across
`11
`them. Some of the files appeared to include unit numbers
`12
`for the accused applications like Gmail and Chrome. Those
`13
`files seem to show how many installations and downloads some
`14
`of the accused applications had, but it's not clear from
`15
`just looking at them.
`16
`Google put up a single witness on topics 1
`17
`through 6. That was Mr. Sai Marri. He could not testify
`18
`about how many units of the accused products Google sold or
`19
`distributed. He made that clear in his testimony and he
`20
`admitted he could not testify about the files that Google
`21
`had produced that seemed to show downloads for the accused
`22
`applications. The upshot is that at the end of the
`23
`deposition of the only witness Google has put up on topics 1
`24
`through 6, Arendi was still in the dark about the number of
`25
`units at issue in this case.
`Page 2 to 5 of 21
`
`THE COURT: This is Judge Stark's chambers. Are
`counsel all there?
`MS. ORMEROD: Good morning, Your Honor. Yes.
`This is Eve Ormerod with Smith, Katzenstein & Jenkins.
`I am calling on behalf of plaintiff, Arendi, and I have
`with me on the line John Lahad and Kemper Diehl from Susman
`Godfrey.
`
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`THE COURT: Okay.
`14
`MR. MOORE: And for Google, your Honor, it's
`15
`David Moore at Potter Anderson, and with me on the line from
`16
`Paul Hastings are Chad Peterman and Michelle Marek.
`17
`THE COURT: All right. Thank you.
`18
`And we have our court reporter here with us, and
`19
`for the record it's our case of Arendi S.A.R.L. versus
`20
`Google LLC, Civil Action No. 13-919-LPS, and this is the
`21
`time we set for a discovery dispute teleconference. It's
`22
`Arendi who is the moving party, and so let's hear from
`23
`Arendi first.
`24
`MR. DIEHL: Good morning, Your Honor. This is
`25
`Kemper Diehl speaking on behalf of Arendi.
`12/09/2019 08:25:34 PM
`
`2 of 10 sheets
`
`

`

`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 15 of 18 PageID #: 52413
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`Google has now agreed to produce documents and
`testimony identifying the units of the accused devices but
`still refuses to present testimony on the number of units at
`issue for the accused applications.
`Google's opposition letter does not dispute
`the fundamental relevance of this information. There's not
`much to debate there. It's clearly relevant. Google has
`also not brought up any burden argument. Instead its
`opposition letter lists reasons why Google thinks Arendi was
`neglectful in pursuing this testimony. Each of those is a
`red herring.
`First, Google's letter points to an e-mail that
`counsel sent on Arendi on October 22nd. That's Exhibit E to
`Google's letter. Paul Hastings represents both Google and
`Motorola here, and the exhibit shows that Paul Hastings
`wrote, "Neither Google nor Motorola will be producing a
`witness to testify broadly concerning financial topics."
`Google wants the quote to stop reading there,
`but the next two sentences are crucial. The e-mail goes on
`to say that even though Paul Hastings said it would limit
`Google's and Motorola's witnesses to testifying on their
`produced financial documents, Motorola's witness would still
`testify to any questions that relate to the produced
`financial documents which include information regarding the
`units sold. This is a clear indication that the parties
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`That is categorically not an indication that he would
`testify about unit sales for Gmail or about unit sales to
`the rest of the accused applications. The same is true for
`each of the other witnesses that Google says Arendi should
`have asked for unit information after Mr. Marri didn't have
`it.
`
`Despite the narrow designations that are shown
`in Exhibit C to Google's letter, Google now says Arendi was
`neglectful for not asking each of these witnesses whether
`they could testify about unit sales. That is not how
`30(b)(6) depositions work. Google should put up a single
`witness on a topic and prepare them to testify on it.
`It's not fair for Google to put up Mr. Marri on
`topics 1 through 6, have him fail to testify about unit
`sales, and then claim without ever telling Arendi that
`Arendi should have asked every subsequent witness the same
`question until it found someone who could answer.
`Google says in its letter that it "expressly
`told Arendi that Mr. Elbouchikhi could testify about unit
`sales," but that was never communicated to Arendi." Google
`rests that finding on citations to page 73 of the transcript
`from Mr. Elbouchikhi's deposition.
`In the middle of the deposition, Google's
`counsel said there was one spreadsheet which Mr. Elbouchikhi
`was prepared on and did not even identify the spreadsheet
`
`7
`
`9
`
`1
`1
`for Arendi's counsel. If Google will actually intending for
`understood that an agreement to testify about financial
`2
`2
`Mr. Elbouchikhi to testify about the unit sales of Google's
`documents does not exclude testimony about unit sales.
`3
`3
`accused applications or about a spreadsheet that presents
`The second thing Google says in its letter is
`4
`4
`that information, they should have told Arendi before the
`that five other witnesses could have provided unit sales
`5
`5
`deposition in clear terms so Arendi could have prepared to
`information if only Arendi had asked them. There are two
`6
`6
`ask questions, not in the middle of a deposition.
`problems with that argument.
`7
`7
`The same is true for Mr. Toki. Google says at
`First, Google did not designate those witnesses
`8
`8
`the outset of his deposition that he was prepared to testify
`on topics 1 through 6. Those five witnesses were all
`9
`9
`regarding "methods relating to testing and usage of Linkify,
`designated on a variety of technical and marketing topics.
`10
`10
`Smart Tech Selection and Smart Linkify." That is again not
`It also makes no sense for Google to put up a
`11
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`a statement that Mr. Toki was ready to testify about unit
`witness on topics 1 through 6 which are the actual topics
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`sales of the accused applications like Gmail and Chrome.
`related to the sales and use of the accused products and
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`Testimony about the usage of Linkify is totally different
`then argue that that wasn't the right witness to testify
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`from testifying to a number of the units of the accused
`about unit sales.
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`applications that Google has distributed and, again, it came
`Second, Google sliced and diced its 30(b)(6)
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`during the deposition.
`witnesses so that each one is only testifying as to a
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`Google's whole defense to this motion is
`specific accused product or functionality. This is shown in
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`literally the argument that it was hiding the ball among
`Exhibit C to Google's letter, which is an e-mail that
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`various technical witnesses and Arendi never found it.
`Google's counsel sent to Arendi. Google designated each
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`There's no reason why Google should not be compelled to
`witness on narrow slices of the topics.
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`present a witness on the unit sales of the accused
`For example, Syed Albiz, who is one of the
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`applications. It's highly relevant information. There's
`witnesses Google says Arendi should have asked for detailed
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`no apparent burden to doing it. Google has already agreed
`information, was designated to testify only on "the
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`in response to this motion to present a witness about the
`functionality of WinView and Smart Tech Selection in
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`connection with the Gmail, web and mobile application."
`unit sales information it is producing to the accused
`3 of 10 sheets
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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 16 of 18 PageID #: 52414
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`devices. It should simply prepare that same witness to
`testify about the number of units at issue for the accused
`application. Thank you.
`THE COURT: All right. Mr. Diehl, is the relief
`you're seeking limited to a witness on topic 5 or is it now
`topics 1 through 6 or is it something different, i.e., unit
`sales of the application?
`MR. DIEHL: Yes. It's really unit sales of the
`application. Topic 5 is a topic that specifically goes to
`that issue, so really we would say it is topic 5 that we're
`seeking.
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`I referenced topics 1 through 6 because
`Mr. Marri was put up on those topics, but topic 5 is the one
`that goes to the amount of sales and use of the accused
`products, and what we're really looking for is numbers that
`go to that and unit sales or proxy for them, such as
`downloads or installations or the number of users for the
`accused applications.
`THE COURT: All right. So if I were persuaded
`by you to grant the relief you're seeking, is it anything
`more than hold Google to what they've represented they'll
`give you this week and, further, prepare a witness to give
`testimony on topic 5 with respect to the accused
`application? Is it something more than that?
`MR. DIEHL: No. That was it.
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`Within each of those witnesses, we believe that
`the topics that those witnesses were designated for covered
`the use of the various applications, and we think that was
`very clear within the topics themselves and also express
`statements that were made during the deposition as
`particular witnesses were prepared to testify regarding
`particular spreadsheets.
`So just for instance, there are topics, for
`example, topic number 25, which we cite in our letter, which
`asks for all accused products that were sold since 2010, the
`extent to which the customers use any of the functionality
`depicted in plaintiff's infringement contentions. To us,
`that's very clear that that is talking about usage
`information with respect to the accused products.
`Mr. Brahim Elbouchikhi was designated on topic
`number 25.
`THE COURT: All right. Mr. Peterman,
`Mr. Peterman, we may be able to shortcut this. Do you agree
`that Mr. Marri is the only witness that you put up expressly
`to testify about topic 5?
`MR. PETERMAN: Mr. Marri was the only witness
`expressly to talk about topic 5.
`THE COURT: Hold on.
`MR. PETERMAN: We believe that portions --
`THE COURT: Hold on, hold on. Do you agree
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`THE COURT: Okay. All right. So let me hear
`from Google.
`MR. PETERMAN: Thank you, Your Honor. It's Chad
`Peterman on behalf of Paul Hastings on behalf of Google.
`Just responding to a number of points that Mr.
`Diehl made, we produced the spreadsheets as best as we
`could, which included our numbers regarding installation and
`download of Google applications, a number of users of Google
`applications.
`There's no such, you know, metric, no such
`document which covers unit sales for Google applications
`because our applications are not sold. They are given away
`for free.
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`The spreadsheets were produced in September.
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`They were -- we believe that they're self-explanatory. When
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`Mr. Marri was offered as a deponent, he wasn't offered to
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`cover all of the spreadsheets that were downloaded and other
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`information.
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`The way that Google is organized is that all of
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`the different divisions, different apps, they are very, you
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`know, spread out. You know, no one person is going to know
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`what's happening in Gmail as well as all of the other
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`applications, so that's why we had to produce multiple
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`witnesses for topics regarding use and all of the different
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`applications.
`12/09/2019 08:25:34 PM
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`THE COURT: So --
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`MR. PETERMAN: So topic number 5 is not clear.
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`THE COURT: All right. If I think that what
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`they are now calling unit sales is within the scope of topic
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`5, it may also be within the scope of other topics, but I
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`guess the question is, what is unreasonable or that I should
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`find unpersuasive about a party relying on the witness who
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`was designated for a particular topic to be the source for
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`the responsive information on that topic, even if there may
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`be other witnesses designated on other topics that overlap?
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`I mean, what's unreasonable -- absent clear notice to the
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`contrary from you, what's unreasonable about, you know,
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`expecting they would get this information responsive to
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`topic 5 from the witness and the only witness you designated
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`on topic 5?
`Page 10 to 13 of 21
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`that topic 5 covers the unit sales for which a proxy may
`well be downloads or installations, unit sales of the
`application?
`MR. PETERMAN: Yes. I don't see unit sales
`within the scope of topic 5. It's sales, use,
`subscriptions. This concept of unit sales is something that
`Arendi, you know, brought up at the deposition. It's not in
`any of the topics expressly. They use use. Use is also
`included within several other topics, including topic 24 and
`25, 31.
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`4 of 10 sheets
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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 17 of 18 PageID #: 52415
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`MR. PETERMAN: Your Honor, with respect to topic
`5, we are very clear in limiting the testimony that the
`witness was going to testify about. We made it very clear
`within the objections that the witness would testify
`generally about Google financial documents relating to the
`accused products. That witness testified regarding
`financial documents, regarding revenues.
`Now Arendi is making an argument that a
`spreadsheet regarding downloads and installations somehow
`fits within the definition of financial documents, and
`that's not something we agree with and, you know, something
`that we actually dispute directly.
`There were other witnesses who were specifically
`on the record identified as being prepared to talk about the
`spreadsheet that Arendi now complains about. Mr.
`Elbouchikhi was specifically identified during his
`deposition that he was prepared to talk about installs and
`downloads of the accused apps. The normal course of things
`is that Arendi would have been asked questions regarding Mr.
`Elbouchikhi regarding that spreadsheet because he was -- he
`was designated on topic 24, for instance, which included use
`of the accused apps.
`The same thing with Mr. Toki. Mr. Toki at the
`very beginning of his deposition, there was an express
`statement on page 6 saying that he's here to testify
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`first.
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`Just with respect to topic 5, we were very
`narrow in what we agreed to produce the witness for, and
`that was on financial documents relating to the accused
`products. There was no -- Arendi didn't raise any issue
`with the scope of what we were producing the witness for
`prior to the deposition. When we were at the deposition,
`they started asking about the spreadsheets, which were not
`financial documents.
`So we believe that Mr. Marri, who was designated
`on topic 5, testified to the full scope of what we said he
`was going to be testifying to, and that is how the witnesses
`covered the usage and download, installation information.
`With respect to the second question that Your
`Honor had, I don't believe that we're actually going to be
`able to prepare this witness to testify regarding all of
`these disparate topics. I mean, it's something we can
`certainly try to do, but the knowledge within Google is
`really just spread out amongst a variety of different, a
`variety of different witnesses, and so it's very difficult
`to testify, it's very difficult to prepare one witness to
`testify regarding apps, you know, that are housed in a
`variety of different centers within Google. And so that's
`one of the reasons that we had to provide so many witnesses
`to Arendi in the first place, and, you know, why we tried to
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`take care of making sure that each of those witnesses was
`prepared to testify and, in fact, you know, mentioned on the
`record that they were prepared to testify regarding these
`different, these different spreadsheets.
`So we think Arendi had the opportunity to ask
`questions about the spreadsheets when those witnesses
`specifically said they were prepared to testify regarding
`those spreadsheets. And these were all after -- all but one
`was after the deposition of Mr. Marri.
`So if Arendi didn't believe that they got the
`information that they needed to get from Mr. Marri, they had
`ample express opportunity to get this information from these
`other witnesses as we cited in our letter.
`THE COURT: Is your burden argument in your
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`letter?
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`regarding the metrics relating to the testing and usage of
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`the Linkify. You know, that as we understand it is, you
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`know, the sales, you know, units, you know, data that Arendi
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`is now looking for.
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`So we think that Arendi was just very deficient
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`when there were express statements made during the
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`deposition that these witnesses were prepared to testify
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`regarding these spreadsheets.
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`THE COURT: All right.
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`MR. PETERMAN: This was after --
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`THE COURT: Let me stop you. I guess I'm not
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`clearly understanding where the deficiency is. I can see
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`maybe there was a reasonable disagreement, but if topic 5
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`includes the information that they're now asking for a
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`witness for and you disclosed only one witness to testify
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`about topic 5, it's hard for me to see what per se or in
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`this case is deficient about them seeking that information
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`only from the witness you designated for that topic.
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`And I will give you one more chance to address
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`that, but I guess the other question that follows is: At
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`this point when you've agreed to prepare a witness I guess
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`on the accused products, why shouldn't I go ahead and order
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`you to prepare a witness, perhaps the same one, on the
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`accused apps as well?
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`MR. PETERMAN: I will take the first question
`Page 14 to 17 of 21
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`MR. PETERMAN: We have not -- we didn't make a
`burden argument in the letter, Your Honor.
`THE COURT: Okay. Anything else you want to
`add, Mr. Peterman?
`MR. PETERMAN: No, Your Honor.
`THE COURT: All right. Mr. Diehl, do you want
`to respond to anything?
`MR. DIEHL: Yes. I will just take a quick
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`moment.
`
`In response to topic 5, Google never identified
`12/09/2019 08:25:34 PM
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`

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`Case 1:13-cv-00919-JLH Document 517-1 Filed 05/01/23 Page 18 of 18 PageID #: 52416
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`any specific financial documents that they limited his
`testimony to, and the spreadsheets that Mr. Peterman
`referenced that shares download installation information
`were produced in the same production of 35 files that had
`substantial documents. Arendi had no way of knowing that
`those were not documents that Google considered to be
`financial documents it would testify on and it clearly put
`Mr. Marri up on topic 5, which goes to the amount of sales
`and use of the products.
`The other topics that the technical and
`marketing witnesses were designated on, Mr. Peterman
`referenced topics 24 and 25, do not go to units or overall
`use of the accused products or applications. They are much
`more specific.
`Topic 25 specifically goes to the extent to
`which your customers use any of the functionality depicted
`or described in plaintiff's supplemental infringement
`contentions. That is about use of the actual infringing
`functionality, not how many units that the products are out