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

Filing 447

Opposition to 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Sherwood, Jeffrey)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) I/P ENGINE, INC., ) ) Plaintiff, ) v. ) Civ. Action No. 2:11-cv-512 ) AOL, INC. et al., ) REDACTED VERSION ) Defendants. ) __________________________________________) PLAINTIFF I/P ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS RELATED TO HISTORICAL CLICK-THROUGH RATE I. INTRODUCTION It is axiomatic that evidence must be relevant to be admissible. And a hallmark of admissibility is reliability or trustworthiness. Historically, a litigant’s own statements, when asserted against that litigant, have been accorded the highest degree of reliability because it is widely accepted that statements against interest are likely to be very reliable. Such statements are almost always admissible. 1 which is a central issue in this case. Google’s proposed exclusion based on its own misstatement is so broad that it includes not only public documents, but technical documents that are provided to Google engineers and other technical staff. In fact, Google’s technical expert relied on at least one of the documents that Google apparently seeks to exclude. And Google cited these documents pursuant to FRCP 33(d) in its sworn responses to I/P Engine’s interrogatories, which Google has not sought to withdraw or amend in any respect and which are on I/P Engine’s trial exhibit list. Nor should Google be allowed to change those answers now, after the close of fact discovery. 2 Google’s motion is also utterly unfair and impracticable. Google never identifies the documents that are subject to the motion; what is “high-level” or “non-technical?” Presumably, Google does not seek to exclude documents upon which its expert relied, nor the documents that it uses to pursue summary judgment, but its standard for implementing any such ruling seems to be that whatever might hurt Google should be excluded.1 Google’s motion plainly has one goal – to protect it from relevant, reliable, but harmful evidence. II. DISCUSSION 1 Because I/P Engine believes certain of Google’s summary judgment documents accurately, though incompletely, reflect how the Google system operates, I/P Engine has not disputed their admissibility for summary judgment purposes. They are therefore part of the admissible evidence in this case, which may moot this motion without further consideration. I/P Engine will use those exhibits at trial in support of its proof of infringement. 3 . For years Google relied on those documents to explain the operation of its products to its customers, and to generate revenue from these features. 4 Both I/P Engine and Defendants conducted substantial discovery on the operation of SmartAds, and retained experts to analyze the documents that Google did produce in this case. I/P Engine’s expert, Dr. Ophir Frieder (Chair of the Georgetown Univ. Computer Science Dept.) concluded that the documents prepared by Google over many years, which were produced in this case and cited in his report were consistent with what is shown in the source code. 5 6 The disagreement over how Google’s products work is a classic fact dispute that will be addressed by both fact and expert witnesses, and will be for the jury to resolve. In resolving this factual dispute, Google's own documents and statements, both internal and external, about how the accused system works, are highly relevant and reliable. I/P Engine will offer evidence that these documents are in fact accurate descriptions of the underlying functionality in Google’s systems. Google claims it is prepared to put on its own competing testimony about its documents and how its products work. That is exactly how the trial should proceed. 7 8 3. Google Cites No Applicable Case Law to Support its Motion Google cites a single case in support of its motion, Bradley v. Cooper Tire & Rubber Co., Case No. 4:03-cv-00094, 2007 WL 4624613 (S.D. Miss. Aug. 3, 2007). To the extent that a single unreported products liability case from Mississippi district court is even relevant to this Court’s consideration, the Bradley case does not suggest that Google’s own documents, which Google admits are the “best” non-technical description, are irrelevant. Google relies on the Bradley court’s exclusion of Ford “advertisements regarding offroad capabilities” of the Ford Explorer. Motion at 3. The Bradley court excluded advertisements regarding Ford’s off-road capability because “the mere fact that Ford marketed the vehicle as safe for off-road use does not equate to a claim that it was safe for off-road use when the vehicle leaves the highway in an unintended manner.” Bradley, 2007 WL 4624613 at *5 (emphasis added). In the same order, the Bradley court held that “a witness may be allowed to testify about conclusions Ford reached or what Ford should have known based on its own documents and data.” Id. at *3 (emphasis added). The 9 court also denied Ford’s other motion in limine to exclude documents that were “relevant to the issues as discussed regarding the off-road advertisements.” Id. at *6. In contrast to Bradley, where the statements bore no relation to a products liability claim, in patent cases, the Federal Circuit and other district courts have admitted and relied upon defendants’ own advertising materials. See, e.g., Howmedica Osteonics Corp. v. Wright Medical Technology, Inc., 540 F.3d 1337, 1345 (Fed. Cir. 2008) (citing defendants’ own advertising for its accused product as contradicting defendants’ arguments against infringement); Arista Records, Inc. v. Flea World, Inc., Case No. 03-cv-002670 (JBS), 2006 WL 842883, *13 n.14 (D.N.J. Mar. 31, 2006) (upholding expert report under Daubert challenge where expert relied, in part, on defendants’ own advertising). B. Google’s Fear of Contradicting Its Own Statements Does Not Substantially Outweigh The Documents’ Probative Value Under Fed. R. Evid. 403 Federal Rule of Evidence 403 allows this Court to exclude relevant evidence if its probative value is “substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Google does not make a colorable showing of any of these dangers. First, Google repeats its argument that there is nothing in dispute, and thus discussion of the operation of its products would serve “only to confuse the jury.” Motion at 3. As discussed above in Section II.A, Google plainly mischaracterizes Dr. Frieder’s testimony in an 10 attempt to make its argument. Google also argues that, were its witnesses confronted with its own documents, Google would be prejudiced by the resulting “sideshow.” Motion at 3. The only “prejudice” would be the jury’s rightful skepticism when Google’s witnesses make self-serving statements that contradict their own documents (and prior testimony) explaining how these systems work. “It is well established that a defendant who voluntarily offers himself as a witness and testifies in his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility.” U.S. v. Dike, App. No. 98-4136, 166 F.3d 335 (Table), 1998 WL 879732, *4 (4th Cir. Dec. 17, 1998) (upholding impeachment of defendant with his own documents that were excluded for other purposes). Google suggests that I/P Engine intends to waste its own time at trial making a case about Google’s deceptive advertising. Motion at 3. I/P Engine has no such intention; instead, these documents will be offered to illustrate the operation of the accused system, will show Google’s infringement, and also prove its inducement to others to infringe. 11 I/P Engine will prove that Google’s public statements have been, and continue to be, substantially accurate and will be helpful to the jury’s understanding of the operation of the system. After all, these are documents that Google witnesses have admitted provide an accurate lay description of complex technical topics. What better evidence is there to explain the system to the jury than Google’s own attempts to summarize the underlying functionality to the nontechnical audience that has made it so successful? C. Google’s Proposed Relief is Unworkable 12 III. CONCLUSION For the reasons discussed above, Defendants’ Motion In Limine #3 should be DENIED. Dated: September 27, 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 Dawn Rudenko Albert 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. 13 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of September, 2012, the foregoing PLAINTIFF I/P ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS RELATED TO HISTORICAL CLICK-THROUGH RATE, was served via the Court’s CM/ECF system and via Hand Delivery, 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 14