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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION

 CASE NO.: 2:20-cv-14159-RLR 

DJ LINCOLN ENTERPRISES, INC. 

Plaintiff, 

v. 

GOOGLE, LLC, 

Defendant. 

JOINT SCHEDULING REPORT 

Meeting of the Parties

Pursuant to Federal Rules of Civil Procedure 26(f) and Southern District of Florida 

Local Rule 16.1, the parties conducted a telephone conference on July 7, 2020, which was 

attended by Steven S. Biss, counsel for Plaintiff DJ Lincoln Enterprises, Inc. (“Lincoln”), as well 

as Brian Willen, Alexander Zbrozek, and Nathan M. Berman, counsel for Defendant Google 

LLC (“Google”). The parties submit this Joint Scheduling Report and Joint Proposed Scheduling 

Order, pursuant to Federal Rule 26(f) and Local Rule 16.1(b)(2)-(3), to supplement the Court’s 

June 29, 2020 Scheduling Order (Dkt. 15). 

Likelihood of Settlement

Lincoln’s Position. It is incumbent on the parties in every case to explore the possibility 

of an early resolution. There are financial, reputational and enterprise risks inherent in litigation, 

and this case presents no exception. For the reasons stated in Lincoln’s Complaint and in its 

opposition (to be filed) to Google’s motion to dismiss, Lincoln has stated viable claims against 

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Google under both RICO and Florida law. Lincoln recognizes that it takes a willingness on the 

part of both sides to resolve matters, and is aware of Google’s position concerning settlement at 

this time. 

Google’s Position. For the reasons discussed in its pending motion to dismiss (Dkt. 

16), Google believes that Plaintiff’s claims are entirely without legal or factual merit. While 

Google will of course comply with the Court’s mediation process, Google believes that there 

is no realistic chance of settlement at this time. 

Likelihood of Appearance of Additional Parties 

The parties agree that no additional parties will be joined. 

Proposed Time Limits 

The Court’s June 29, 2020 Scheduling Order set deadlines to (i) join other parties and to 

amend the pleadings; (ii) file and hear motions; and (iii) complete discovery. Should Plaintiff 

amend its Complaint in response to Google’s pending motion to dismiss, the parties reserve the 

right to seek an amendment of the Scheduling Order to accommodate Google’s anticipated 

motion to dismiss an amended complaint. 

Proposals for the Formulation and Simplification of Issues 

Lincoln’s Position. The First Amendment does not protect Google from the 

wrongdoing alleged in this action. Lincoln believes that best way to formulate and simplify 

issues is to stipulate to material facts whenever possible. Discovery, including disclosure of 

Google’s use and manipulation of Search, affords the best opportunity to narrow issues that are 

central to Plaintiff’s claims. 

Google’s Position. As set forth in its Motion to Dismiss, Google believes that Plaintiff’s 

Complaint fails as a matter of law and is barred by the First Amendment, and that the Complaint 

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should accordingly be dismissed with prejudice. Should some part of the case proceed beyond 

the pleadings, it may be appropriate at that point for the parties to discuss whether there are ways 

to simplify any remaining issues. 

Necessity or Desirability of Amendments to the Pleadings 

Lincoln’s Position. Lincoln is reviewing Google’s motion to dismiss, and may file an 

amended complaint pursuant to Rule 15(a)(1)(B). 

Google’s Position. Google understands that Plaintiff may amend its Complaint in 

response to Google’s pending motion to dismiss. Nevertheless, as set forth in its motion to 

dismiss, Google believes that any amendment would be futile because the core theory underlying 

all of Plaintiff’s claims fails as a matter of law and is barred by the First Amendment. 

Possibility of Obtaining Admissions of Fact and of Documents 

Lincoln’s Position. Google maintains exclusive possession and control of the means and 

methods by which it uses Search and, as alleged in Lincoln’s Complaint, by which it 

manipulated Search to injure Lincoln’s business. Lincoln intends to serve requests for 

production of documents and requests for admissions in order to obtain agreement concerning 

the core facts at issue in this action. Lincoln also intends to serve interrogatories to obtain the 

identity of Google’s engineers who are responsible for the implementation of Google’s corporate 

policies and the creation and use of Google’s algorithms. Lincoln expects that Google will resist 

any and all discovery. The purpose of the Federal Rules of Civil Procedure is to provide for a 

speedy, just and inexpensive determination of every case. Lincoln intends to proceed with 

diligence to develop facts to support its claims against Google. Lincoln will oppose any effort 

by Google to defer and delay. 

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Google’s Position. Google believes that it is premature to agree to detailed discovery 

procedures while its motion to dismiss is pending, particularly in light of Plaintiff’s failure to 

offer any particularized allegations of fraud, as required by Rule 9(b), and because Plaintiff’s 

claims are barred by the First Amendment. Google further believes that the parties should hold 

off exchanging discovery requests until its motion to dismiss is resolved. Google further reserves 

its right to seek a stay of discovery pending the resolution of its motion to dismiss. Such a stay is 

warranted because all of Plaintiff’s claims fail as a matter of law and are constitutionally 

precluded. 

If discovery proceeds, the parties anticipate filing a joint protective order and a 

stipulation governing electronically stored information (“ESI”). 

Avoidance of Unnecessary Proof of Cumulative Evidence 

Lincoln’s Position. Consistent with Rule 26, Lincoln intends to take care to avoid 

unnecessary discovery requests. Lincoln will also avoid the presentation of cumulative evidence 

at trial by, for instance, the presentation of one expert regarding Google’s manipulation of 

Search. 

Google’s Position. Google believes that it is premature to agree to evidentiary 

procedures while its Motion to Dismiss is pending, particularly in light of Plaintiff’s failure to 

offer any particularized fraud allegations, as required by Rule 9(b), and because Plaintiff’s 

claims are barred by the First Amendment. As discussed above, Google further believes that, at a 

minimum, the parties should refrain from exchanging discovery requests until its motion to 

dismiss is resolved, and Google reserves its right to move to stay discovery in light of its motion 

to dismiss. 

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If discovery proceeds, the parties anticipate filing joint protective order and ESI 

stipulation. 

Suggestions on the Advisability of Referring Matters to a Magistrate Judge or Master 

The parties understand that the Court has referred discovery issues to Magistrate Judge 

Maynard, but they have not consented to trial before a United States Magistrate Judge at this 

time. 

Preliminary Estimate of the Time Required for Trial 

The parties anticipate any trial to last 5 to 7 days. 

Electronic Discovery Issues and Checklist 

Lincoln’s Position. Lincoln expects that counsel for the parties will work together on 

the development of an ESI protocol that will facilitate the search for discoverable information. 

Google’s Position. Google believes that it is premature to agree to discovery procedures 

while its motion to dismiss is pending, particularly in light of Plaintiff’s failure to offer any 

particularized fraud allegations, as required by Rule 9(b), and because Plaintiff’s claims are 

barred by the First Amendment. As discussed above, Google further believes that, at a minimum, 

the parties should refrain from exchanging discovery requests until its motion to dismiss is 

resolved, and Google reserves its right to move to stay discovery in light of its motion to dismiss. 

If discovery proceeds, the parties anticipate filing a joint ESI stipulation in lieu of the 

Court’s ESI Checklist. 

Privilege Issues 

Lincoln’s Position. Lincoln does not expect any issues regarding privilege. 

Google’s Position. Google believes that it is premature to agree to discovery procedures 

while its motion to dismiss is pending, particularly in light of Plaintiff’s failure to offer any 

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particularized fraud allegations, as required by Rule 9(b), and because Plaintiff’s claims are 

barred by the First Amendment. As discussed above, Google further believes that, at a minimum, 

the parties should refrain from exchanging discovery requests until its Motion to Dismiss is 

resolved, and Google reserves its right to move to stay discovery in light of its Motion to 

Dismiss. 

If discovery proceeds, the parties anticipate filing a joint protective order and an ESI 

stipulation that will address Federal Rule of Evidence 502. 

Initial Disclosures 

The Court’s Scheduling Order set the deadline for the exchange of Rule 26(a) Initial 

Disclosures, and the parties do not believe any modifications to form are required. As noted 

above, should Plaintiff elect to amend its Complaint, the parties reserve the right to seek to 

amend the scheduled deadline. 

Subjects and Phasing of Discovery

Lincoln’s Position. Lincoln believes that discovery should be had on all matters related 

to Lincoln’s claims and Google’s defenses, and that there is no need for any phasing of 

discovery. 

Google’s Position. Google believes that it is premature to agree to discovery procedures 

while its motion to dismiss is pending, particularly in light of Plaintiff’s failure to offer any 

particularized fraud allegations, as required by Rule 9(b), and because Plaintiff’s claims are 

barred by the First Amendment. As discussed above, Google further believes that, at a 

minimum, the parties should refrain from exchanging discovery requests until its motion to 

dismiss is resolved, and Google reserves its right to move to stay discovery in light of its motion 

to dismiss. 

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Resolution of All Pre-Trial Motions 

If Plaintiff does not amend its Complaint, the parties believe that Google’s pending 

motion to dismiss should be resolved by no later than August 17, 2020. All other pre-trial 

motions should be resolved by March 15, 2021. 

Limitations on Discovery 

Lincoln’s Position. Except for the limitations imposed on discovery under the Federal 

Rules, the Court’s Local Civil Rules and the Court’s Orders entered in this case, Lincoln believes 

there should be no further limitations on discovery. Each party have a full and fair opportunity 

to develop evidence to support its claims and contentions. 

Google’s Position. Google proposes that each party be limited to 25 Requests for 

Admission (except for RFAs regarding document authentication) and 40 Requests for 

Production. 

The parties do not anticipate any modifications to the standard limits on depositions or 

interrogatories as set forth in the Federal Rules of Civil Procedure. 

Dated: July 14, 2020 Respectfully submitted, 

/s/ John C. Smith 

John C. Smith, Esquire 

John C. Smith, P.A. 

2385 NW Executive Center Drive, 

Suite 100 

Boca Raton, FL 33431 

561-394-4666 Voice 

561-962-2710 Fax 

jsmith@bocaiplaw.com

www.boaciplaw.com 

Steven S. Biss (VSB # 32972) 

300 West Main Street, Suite 102 

Charlottesville, Virginia 22903

s/ Nathan M. Berman 

NATHAN M. BERMAN 

Florida Bar No.: 0329230 

Email: nberman@zuckerman.com 

Zuckerman Spaeder LLP 

101 E. Kennedy Blvd., Suite 1200 

Tampa, Florida 33602 

Telephone: (813) 221-1010 

Facsimile: (813) 223-7961 

BRIAN M. WILLEN (pro hac vice pending) 

Email: bwillen@wsgr.com 

ALEXANDER S. ZBROZEK (pro hac vice 

pending)

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Telephone: (804) 501-8272 

Facsimile: (202) 318-4098 

 Email: stevenbiss@earthlink.net 

Counsel for the Plaintiff

(Application for Admission Pro Hac Vice

To be Filed) 

Attorneys for Plaintiff 

DJ LINCOLN ENTERPRISES, INC. 

Email: azbrozek@wsgr.com 

WILSON SONSINI GOODRICH & ROSATI, P.C. 

1301 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 999-5800 

Facsimile: (212) 999-5899 

LAUREN GALLO WHITE (pro hac vice pending) 

Email: lwhite@wsgr.com 

WILSON SONSINI GOODRICH & ROSATI, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 493-9300 

Facsimile: (650) 565-5100 

Attorneys for Defendant 

GOOGLE LLC

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