Case 1:13-cv-00919-LPS Document 194 Filed 12/13/19 Page 1 of 5 PageID #: 6044
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-LPS
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`JURY TRIAL DEMANDED
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`PUBLIC VERSION
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`)))))))))
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`ARENDI S.A.R.L.,
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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`Defendant.
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`LETTER TO THE HONORABLE LEONARD P. STARK
`FROM BINDU A. PALAPURA
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
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`Attorneys for Defendant Google LLC
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`OF COUNSEL:
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`Robert W. Unikel
`Michelle Marek Figueiredo
`John Cotiguala
`Matt Lind
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Tel: (312) 449-6000
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`Robert R. Laurenzi
`Chad J. Peterman
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
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`Ariell Bratton
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Tel: (858) 458-3000
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`Dated: December 6, 2019
`Public Version Dated: December 13, 2019
`6508528 / 40549
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`Case 1:13-cv-00919-LPS Document 194 Filed 12/13/19 Page 2 of 5 PageID #: 6045
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`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
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`December 6, 2019; Public Version Dated: December 13, 2019
`VIA ELECTRONIC-FILING
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`Bindu A. Palapura
`Attorney at Law
`bpalapura@potteranderson.com
`302 984-6092 Direct Phone
`302 658-1192 Fax
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`PUBLIC VERSION
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`The Honorable Leonard P. Stark
`U.S. District Court for the District of Delaware
`J. Caleb Boggs Federal Building
`844 N. King Street
`Wilmington, DE 19801-3556
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`Re:
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`Arendi S.A.R.L. v. Google LLC, C.A. No. 13-919-LPS
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`Dear Chief Judge Stark:
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`Defendant Google LLC (“Google”) submits this letter brief in response to Plaintiff Arendi
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`S.à.r.l.’s (“Arendi”) motion to compel certain 30(b)(6) testimony (D.I. 190). Google has met its
`obligations in responding to Arendi’s overly broad 30(b)(6) topics and, with the one exception set
`forth below, believes that further testimony is unwarranted. Google designated at least six 30(b)(6)
`witnesses capable of providing detailed financial and/or use and metrics testimony. While Arendi
`complains about Mr. Sai Marri’s inability to answer questions concerning five non-financial
`spreadsheets relating to the use and downloads/installation of the accused products, it fails to
`mention that it also took the deposition of no less than five other Google 30(b)(6) witnesses who
`were designated on topics concerning use and/or downloads/installation. Shockingly, Arendi did
`not ask any of these witnesses about the spreadsheets. Arendi’s failure to do so is its own fault
`and cannot be cured by a motion to compel.
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`Arendi’s motion does raise a request for testimony regarding additional “unit sales” data
`that Google is producing. While Google believes that this data is self-explanatory, it is willing to
`provide a witness for deposition on the newly produced data on December 13, 2019 to resolve this
`dispute. Arendi’s motion should otherwise be denied.
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`A. History of the Parties’ Dispute
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`As reflected in the discovery dispute letter to the Court, the discovery issues that Arendi
`initially raised were broad: “Whether Google LLC’s corporate representatives designated to testify
`on topics 1-6, 13, 15-17, 19, and 21 of Arendi’s 30(b)(6) Notice were properly limited in their
`testimony.” (D.I. 182.) During the meet and confer process leading to Arendi’s motion, Arendi
`continued to demand testimony on the full scope of these 12 topics, which concern finance, use,
`and related topics. (D.I. 190, Ex. A.) These 12 topics are facially overbroad and would have been
`very difficult for Google to prepare a witness on.
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`Case 1:13-cv-00919-LPS Document 194 Filed 12/13/19 Page 3 of 5 PageID #: 6046
`The Honorable Leonard P. Stark
`December 6, 2019
`Page 2
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`In its written objections served on September 17, 2019, Google was very clear that its
`testimony on these topics would be limited to witnesses to “testify generally about the Google
`financial documents relating to the Accused Products that are produced by Google in this case.”
`(D.I. 190, Ex. A at 8-13). Google subsequently confirmed the scope of its testimony in an email
`dated October 22, 2019, noting: “Neither Google nor Motorola will be producing a witness to
`testify ‘broadly concerning financial topics.’” (Ex. E, 10/22/2019 email from M. Marek
`Figueiredo.) Arendi did not object to the reasonable testimony limitations placed by Google or
`request additional documents prior to Mr. Marri’s deposition on October 30, 2019.1
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`Perhaps realizing that the 12 topics were overly broad, Arendi’s present motion only
`requests testimony regarding “amount of sales and use of the accused products.” (D.I. 190 at 3).
`At his deposition, Mr. Marri testified in detail about numerous financial documents concerning the
`amount of sales of the accused products. Arendi only takes issue with Mr. Marri’s inability to
`testify regarding five, non-financial spreadsheets concerning use and downloads/installations and
`his response to questions about “unit sales.” It requests an additional witness on these two topics
`only.
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`B. Arendi Inexplicably Failed to Ask the Appropriate Witnesses About Usage and
`Download/Installation Data
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`Mr. Marri was never designated to testify regarding the non-financial spreadsheets
`concerning use and downloads/installations. Google presented another 30(b)(6) witness – Brahim
`Elbouchikhi – who was prepared to testify regarding GOOG00156349 (which includes the number
`of downloads or installations of the accused applications) and on usage information as it relates to
`the Android operating system. Despite being expressly told by Google that Mr. Elbouchikhi was
`prepared to testify regarding GOOG00156349, Arendi failed to ask him a single question about
`it.2
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`Likewise, Google designated Abodunrinwa Toki to testify regarding Android usage data.
`Indeed, Google’s stated at the very beginning of the deposition that Mr. Toki was “here to testify
`regarding metrics relating to testing and usage of Linkify, Smart Text Selection, and Smart Linkify
`to the extent that such metrics are kept by Google” (Ex. B, Toki Dep. 6:6-9, Nov. 22, 2019.)
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`1 Arendi admitted that Google produced financial information “in recognizable form” over a month
`before Mr. Marri’s deposition. (D.I. 190 at 1). Thus, Arendi had ample opportunity to ask for
`supplementation in advance of the deposition if it saw any issues with the information.
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` 2
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` Prior to and during Mr. Elbouchikhi’s deposition, Google made it expressly clear that he was
`prepared to testify regarding downloads/installations, including at least one of the documents that
`Arendi cites in its motion. Google’s counsel stated on the record, “just to be clear, John [Arendi’s
`counsel], there was a spreadsheet [GOOG00156349] that was provided that had installs for
`accused apps, and that’s the one spreadsheet that Mr. Elbouchikhi is prepared to testify on and sort
`of explain what’s shown in that.” (Ex. A, Elbouchikhi Dep. 73:2-7, Nov. 20, 2019.) Google also
`designated Mr. Elbouchikhi on Topic 24 concerning “how customers use and configure the
`Accused Applications” as it relates to the Android operating system. (Ex. C, 10/3/2019 email from
`R. Unikel regarding 30(b)(6) designations.)
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`Case 1:13-cv-00919-LPS Document 194 Filed 12/13/19 Page 4 of 5 PageID #: 6047
`The Honorable Leonard P. Stark
`December 6, 2019
`Page 3
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`Despite this clear invitation, Arendi did not ask Mr. Toki about any of the spreadsheets it cites in
`its motion.
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`Arendi’s pattern of neglect with respect to the cited spreadsheets is also evident in the
`depositions of at least three other 30(b)(6) witnesses (Brian Kravitz, Kishore Papineni, and Syed
`Albiz,) who were designated on topics in their respective product areas that included use of the
`accused products, including Topics 16, 25, and 31. (Ex. C.)3 Arendi did not ask any of those
`witnesses about the spreadsheets.4
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`In sum, Arendi had no less than five witnesses apart from Mr. Marri through which it could
`have pursued testimony regarding the spreadsheets. Its failure to do so is a result of its own
`strategy or inexcusable neglect. In either event, it is not Google’s fault. At least five Google
`witnesses were ready, willing, and able to provide testimony if they had been asked. Google met
`its obligations to have witnesses ready, and should not be compelled to produce yet another witness
`because of Arendi’s failure to ask the appropriate questions.
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`C. Google has Agreed to Produce Additional “Unit Sales” Data and Will Provide an
`Additional 30(b)(6) Witness for the Additional Data
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`Mr. Marri testified at length regarding sales of the accused products. He was able to testify
`fully regarding the financial documents that Google produced. During the course of his deposition,
`Arendi asked some questions about sales-related data beyond the scope of Google’s production.
`Given the complexity of Google’s financial systems and division of labor within Google, and the
`numerous accused products in the case, Mr. Marri was not aware whether such data existed.
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`Following the deposition, Google agreed to conduct a further search and produce historical
`unit sales information for the accused devices, supplemental financial information for the accused
`products back to 2011 to the extent not previously produced, and a breakout of revenues for the
`Pixel and Nexus products by model/version to the extent that such data was reasonably available
`to it. Google determined that only additional “unit sales” information for the accused devices was
`reasonably available. It produced some of this additional data on November 25, 2019 and expects
`to complete production of the additional data by December 9, 2019.
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`The additional data is self-explanatory, but to the extent that Arendi wants a 30(b)(6)
`witness to explain the new data only, Google will make a witness available on December 13, 2019.
`Alternatively, Google would be willing to answer written questions on these documents. As best
`as Google understands Arendi’s complaints on this issue, Google’s offer should moot the issue.
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`For the reasons set forth above, Arendi’s motion should be denied.
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`3 Mr. Albiz even testified that he reviewed some usage metrics/spreadsheets as part of his
`deposition prep and described some of the data from memory. (Ex. D, Albiz Dep. 73:8-75:24, Oct.
`24, 2019.)
`4 The depositions of Messrs. Elbouchikhi, Toki, Kravitz, and Papineni all occurred after the
`deposition of Mr. Marri.
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`Case 1:13-cv-00919-LPS Document 194 Filed 12/13/19 Page 5 of 5 PageID #: 6048
`The Honorable Leonard P. Stark
`December 6, 2019
`Page 4
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`Sincerely yours,
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`/s/ Bindu A. Palapura
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`Bindu A. Palapura
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`BAP/msb/6508528 /40549
`Enclosures
`cc:
`Clerk of the Court (via hand delivery) (w/encs.)
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`Counsel of Record (via electronic mail) (w/encs.)
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