I/P Engine, Inc. v. AOL, Inc. et al

Filing 177

MOTION to Take Deposition from Google 30(b)(1) et al. , Plaintiff I/P Engine's Motion for Leave to Take 30(b)(1) Depositions of Defendants, by I/P Engine, Inc.. (Attachments: # 1 Proposed Order Proposed Order)(Sherwood, Jeffrey)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) I/P ENGINE, INC., Civ. Action No. 2:11-cv-512 PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS Plaintiff I/P Engine, Inc. (“I/P Engine”) moves this Court for leave to take the following number of individual 30(b)(1) depositions from each Defendant:  Three 30(b)(1) depositions each of Google and AOL employees; and  Two 30(b)(1) depositions each of IAC, Target, and Gannett employees. Because this case involves multiple defendants and a complex technology, the parties have been attempting to negotiate a reasonable number of depositions – in addition to the ten permitted under the Federal Rules – that I/P Engine would be permitted to take of the Defendants without seeking leave of Court. Although the parties have negotiated and agreed to many discovery issues, one of the remaining issues is the number of Rule 30(b)(1) depositions that I/P Engine should be permitted to take. For the reasons set forth in the accompanying DSMDB-3073927 Memorandum of Law, I/P Engine asks this Court for leave to take the following number of individual 30(b)(1) depositions from each Defendant:  Three 30(b)(1) depositions each of Google and AOL employees; and  Two 30(b)(1) depositions each of IAC, Target, and Gannett employees. Dated: June 25, 2012 By: /s/ Jeffrey K. Sherwood Donald C. Schultz (Virginia Bar No. 30531) W. Ryan Snow (Virginia Bar No. 47423) CRENSHAW, WARE & MARTIN PLC 150 West Main Street Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 Jeffrey K. Sherwood (Virginia Bar No. 19222) Frank C. Cimino, Jr. Kenneth W. Brothers DeAnna Allen Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Counsel for Plaintiff I/P Engine, Inc. 2 DSMDB-3073927 CERTIFICATE OF GOOD FAITH In accordance with Local Rule 37(E), I certify that counsel conferred in good faith to resolve this dispute prior to the filing of the present Motion. Counsel’s meet-and-confer efforts included multiple correspondence and telephonic meet-and-confers. /s/ Charles J. Monterio, Jr. Charles J. Monterio, Jr. 3 DSMDB-3073927 CERTIFICATE OF SERVICE I hereby certify that on this 25th day of June, 2012, the foregoing PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS, was served via the Court’s CM/ECF system, on the following: Stephen Edward Noona Kaufman & Canoles, P.C. 150 W Main St Suite 2100 Norfolk, VA 23510 senoona@kaufcan.com David Bilsker David Perlson Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Robert L. Burns Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 robert.burns@finnegan.com Cortney S. Alexander Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 cortney.alexander@finnegan.com /s/ Jeffrey K. Sherwood 4 DSMDB-3073927 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) I/P ENGINE, INC., Civ. Action No. 2:11-cv-512 MEMORANDUM IN SUPPORT OF PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS I. INTRODUCTION AND SUMMARY Although the parties have negotiated and agreed to many discovery issues, one of the remaining sticking points is the number of Rule 30(b)(1) depositions that I/P Engine should be permitted to take of each Defendant without having to seek leave of Court. I/P Engine respectfully requests for leave to take the following number of individual 30(b)(1) depositions from each Defendant:  Three 30(b)(1) depositions each of Google and AOL employees; and  Two 30(b)(1) depositions each of IAC, Target, and Gannett employees. Although Defendants have not provided any counter-proposal since the June 15 telephonic hearing before the Court, it appears that they want to either (1) restrict I/P Engine to taking the depositions of only those persons that Defendants specifically identify in their Initial Disclosures, or (2) restrict I/P Engine to taking only the ten depositions initially permitted under the Federal Rules of Civil Procedure. Because of the nature of this litigation, the discovery DSMDB-3073802 already produced, and the number of persons identified by Defendants in their Initial Disclosures and during their 30(b)(6) depositions, I/P Engine’s request is reasonable and necessary. If I/P Engine is foreclosed from being able to take the twelve additional depositions, it will be significantly prejudiced. II. APPLICABLE LAW Fed. R. Civ. P. 26(b)(1) governs the scope of discovery, providing that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense” or “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Rule 26(b) provides “very broad boundaries.” Gutshall v. New Prime, Inc. (W.D. Va. 2000). This is because, “[i]n practice, a party cannot pursue its claims or defenses without an adequate opportunity to obtain evidence through the broad discovery contemplated by the Federal Rules.” Steward v. VCU Health System Authority, 2011 WL 7281603 at *8 (E.D. Va. Nov. 22, 2011). “The provisions of Fed. R Civ. P. 26 afford district courts broad discretion over discovery matters.” Scott & Stringfellow, LLC v. AIG Commercial Equipment Finance, Inc., 2011 WL 1827900 at *2 (E.D. Va. May 12, 2011) (citing Crawford-El v. Britton, 523 U.S. 574, 598-99 (1998)). III. ARGUMENT I/P Engine’s request to take twelve additional depositions over what is permitted under the Federal Rules is reasonable and necessary. As noted above, this case involves multiple defendants and very complex technology. Defendants have identified fourteen separate individuals in their respective Initial Disclosures who they may rely upon at trial. Defendants identified numerous other individuals during their 30(b)(6) depositions last week—significantly, many of whom were not identified in Defendants’ Initial Disclosures. I/P Engine’s request to have the ability to depose a total of twelve additional witnesses because of these facts (three 2 DSMDB-3073802 30(b)(1) depositions each of Google1 and AOL employees; and two 30(b)(1) depositions each of IAC, Target, and Gannett employees) is therefore not only reasonable, but necessary for I/P Engine to be ensured sufficient discovery to prove its claims and defend against Defendants’ positions. Defendants have rejected each of I/P Engine’s proposals without explanation. Indeed, Defendants have not proposed any compromise since its May 31 proposal. Instead, they have only refused I/P Engine’s many proposals without explanation, and continuously repeat that I/P Engine should be limited to deposing only those persons specifically identified in their respective Initial Disclosures – referencing an agreement between the parties made in February. Notably, Defendants would agree to permitting I/P Engine to depose the fourteen persons that they have specifically identified, but will not agree to permit I/P Engine to depose up to twelve persons who it believes are necessary in this case. Contrary to the Court’s cautions during the June 15 teleconference, Defendants maintain that such a proposal and arrangement is fair. I/P Engine has identified, and is in the process of identifying, individuals who have more relevant knowledge of the issues in this case than the individuals identified in Defendants’ Initial Disclosures. I/P Engine is simply seeking permission to take a reasonable number of 30(b)(1) depositions beyond the ten that are initially permitted under Rule 26, as it deems necessary through the discovery process, without being restricted to only those persons that Defendants identify and without having to seek leave of Court to do so. Plaintiffs are commonly permitted 1 For example, with respect to Google, I/P Engine would be permitted to take a total of five depositions of Google, without having to seek leave of this Court for additional depositions. These depositions would include: one Liability 30(b)(6) deposition and one Damages Rule 30(b)(6) deposition, which have already been taken, and three Rule 30(b)(1) depositions. Google is the main defendant in this litigation. All non-Google defendants (except AOL and Gannett, whom will likely testify similarly) have testified during their respective 30(b)(6) depositions that Google is the only entity with knowledge of the AdWords and AdSense for Search accused systems. I/P Engine’s request for five depositions is not unreasonable. 3 DSMDB-3073802 to take depositions beyond the ten under Rule 26 in multiple defendant litigations and when the facts, as they do here, warrant. IV. CONCLUSION For the foregoing reasons, I/P Engine respectfully requests this Court for leave to take the following number of individual 30(b)(1) depositions from each Defendant:  Three 30(b)(1) depositions each of Google and AOL employees; and  Two 30(b)(1) depositions each of IAC, Target, and Gannett employees. Dated: June 25, 2012 By: /s/ Jeffrey K. Sherwood Donald C. Schultz (Virginia Bar No. 30531) W. Ryan Snow (Virginia Bar No. 47423) CRENSHAW, WARE & MARTIN PLC 150 West Main Street Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 Jeffrey K. Sherwood (Virginia Bar No. 19222) Frank C. Cimino, Jr. Kenneth W. Brothers DeAnna Allen Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Counsel for Plaintiff I/P Engine, Inc. 4 DSMDB-3073802 CERTIFICATE OF SERVICE I hereby certify that on this 25th day of June, 2012, the foregoing MEMORANDUM IN SUPPORT OF PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS, was served via the Court’s CM/ECF system, on the following: Stephen Edward Noona Kaufman & Canoles, P.C. 150 W Main St Suite 2100 Norfolk, VA 23510 senoona@kaufcan.com David Bilsker David Perlson Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Robert L. Burns Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 robert.burns@finnegan.com Cortney S. Alexander Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 cortney.alexander@finnegan.com /s/ Jeffrey K. Sherwood 5 DSMDB-3073802