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

Filing 897

Declaration re 896 Response in Support of Motion for a New Trial on the Dollar Amount of Past Damages by I/P Engine, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwood, Jeffrey)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) I/P ENGINE, INC., ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) Civ. Action No. 2:11-cv-512 DECLARATION OF KENNETH W. BROTHERS IN SUPPORT OF I/P ENGINE INC.’S REPLY REGARDING ITS MOTION FOR A NEW TRIAL ON THE DOLLAR AMOUNT OF PAST DAMAGES I, Kenneth W. Brothers, declare as follows: 1. I am a partner with the law firm of Dickstein Shapiro LLP, 1825 Eye Street N.W., Washington, DC 20006 and am counsel for Plaintiff I/P Engine, Inc. (“I/P Engine”) in the abovecaptioned litigation. I have personal knowledge of the facts stated herein. 2. Attached hereto as Exhibit A is a true and correct copy of PDX-083, which was shown at trial. 3. Counsel for both I/P Engine and the Defendants exchanged demonstrative exhibits prior to closing arguments. Exhibit B, attached hereto, is a true and correct copy of one of the demonstratives provided by Defendants’ counsel. Defendants counsel indicated his intent to use Exhibit B at closing during the un-transcribed instruction conference. 4. shown at trial. Attached hereto as Exhibit C is a true and correct copy of PDX-077, which was 5. Defendants submitted a declaration from Mr. Nelson, which they rely on in their opposition brief, in which Mr. Nelson states, “As soon as Defendants’ counsel located [Odetics], we immediately presented it (by hand) to both the Court and Plaintiff’s counsel.” (D.I. 865, ¶ 4.) This statement is false. I am now aware that, during the recess following I/P Engine’s initial closing statement, Defendants’ counsel (Mr. Noona and Mr. Bilsker) provided a copy of the Odetics case to the Court. Neither Mr. Noona, Mr Bilsker, nor any other counsel for Defendants, disclosed that fact to me or any other attorney for I/P Engine. During that recess, the Court considered the case, and decided to change its laches ruling. After the Court announced its decision, I noted that I had not received a copy of the case (Trial Tr. at 2018:3-6) nor was I aware that Defendants had provided it to the Court. The Court inquired about why I was not provided a copy, and Mr. Nelson responded, “I didn’t have a copy of the case. I had a citation.” (Trial Tr. at 2018:7-10.) At that point Mr. Nelson’s co-counsel, Mr. Bilsker, stood up and handed me a copy of the Odetics case. I declare under penalty of perjury that the foregoing is true and correct. Dated: February 15, 2013 By: ___/s/ Kenneth W. Brothers______ Kenneth W. Brothers 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 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of February, 2013, the foregoing DECLARATION OF KENNETH W. BROTHERS IN SUPPORT OF I/P ENGINE INC.’S REPLY REGARDING ITS MOTION FOR A NEW TRIAL ON THE DOLLAR AMOUNT OF PAST DAMAGES, 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 3

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