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

Filing 925

Declaration re 924 Memorandum in Support, (Declaration of David Perlson in Support of Defendants' Renewed Motion to Compel Deposition of Dr. Becker and for Enlargement of Time to Oppose Plaintiff's Motion for Post-Judgment Royalties) by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Noona, Stephen)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION I/P ENGINE, INC. Plaintiff, Civil Action No. 2:11-cv-512 v. AOL, INC., et al., Defendants. DECLARATION OF DAVID PERLSON IN SUPPORT OF DEFENDANTS’ RENEWED MOTION TO COMPEL DEPOSITION OF DR. BECKER AND FOR ENLARGEMENT OF TIME TO OPPOSE PLAINTIFF’S MOTION FOR POST-JUDGMENT ROYALTIES I, David A. Perlson, declare as follows: 1. I am an attorney in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP and am counsel for Defendants in the above-captioned case. I provide this declaration upon personal knowledge and, if called upon as a witness, would testify competently as to the matters recited herein. 2. On April 9, 2013, the parties met and conferred about the possibility of postponing briefing of the Motion for an Award of Post-Judgment Royalties and conducting additional related discovery. Defendants’ counsel reiterated its position that Plaintiff should make Dr. Becker available for deposition to give Defendants the opportunity to question Dr. Becker about his new theories and then respond to Plaintiff’s motion for post-judgment royalties. Plaintiff’s counsel said that such deposition was unnecessary, but did not elaborate. Defendants’ counsel also offered Plaintiff the opportunity to investigate Google’s scheduled launch of an 01980.51928/5267870.1 admittedly non-infringing alternative functionality in AdWords. Defendants’ counsel noted that such an extended period of discovery would be sensible given that the change in operation could impact post-trial damages both before and after this change was implemented. Plaintiff’s counsel said Plaintiff would consider this option and asked that Defendants provide a proposal. 3. On April 15, 2013, the parties again discussed, among other things, extending the time for briefing on Plaintiff’s Motion for an Award of Post-Judgment Royalties in order to give the parties time to depose the opposing party’s experts. Plaintiff’s counsel proposed the following alternative potential discovery schedule during the parties’ meet and confer of April 15: Dr. Ugone to provide his declaration in rebuttal to Dr. Becker’s declaration in support of Plaintiff’s motion, Plaintiff to provide Dr. Becker for deposition, Defendants to provide Dr. Ugone for deposition, Defendants to thereafter file their opposition brief, followed by Plaintiff filing its reply brief. 4. As a result of their meet and confer efforts, on April 15 the parties agreed to a two week extension for Defendants’ Opposition to Plaintiff’s Motion for an Award of Post-Judgment Royalties, and a one week extension for Plaintiff’s Reply in Support of its Motion for an Award of Post-Judgment Royalties, in order to give the parties time to discuss their proposed discovery and briefing schedules, pending approval by the Court. 5. Attached hereto as Exhibit 1 is a true and correct copy of an email exchange between counsel for Plaintiff and counsel for Defendants discussing, amount other things, meeting and conferring about the briefing schedule concerning post-judgment royalties. 6. Attached hereto as Exhibit 2 is a true and correct copy of an email exchange between counsel for Plaintiff and counsel for Defendants discussing, among other things, 01980.51928/5267870.1 extending the time for briefing on Plaintiff’s Motion for an Award of Post-Judgment Royalties and making Dr. Becker available for deposition. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Dated: April 16, 2013 David A Perlson 01980.51928/5267870.1 DATED: April 16, 2013 /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624.3000 Facsimile: (757) 624.3169 senoona@kaufcan.com David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 Facsimile: (202) 408-4400 01980.51928/5267870.1 Cortney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Telephone: (404) 653-6400 Facsimile: (415) 653-6444 Counsel for Defendant AOL, Inc. 01980.51928/5267870.1 CERTIFICATE OF SERVICE I hereby certify that on April 16, 2013, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Jeffrey K. Sherwood Kenneth W. Brothers DICKSTEIN SHAPIRO LLP 1825 Eye Street NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 sherwoodj@dicksteinshapiro.com brothersk@dicksteinshapiro.com Donald C. Schultz W. Ryan Snow Steven Stancliff CRENSHAW, WARE & MARTIN, P.L.C. 150 West Main Street, Suite 1500 Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 dschultz@cwm-law.cm wrsnow@cwm-law.com sstancliff@cwm-law.com Counsel for Plaintiff, I/P Engine, Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624.3000 Facsimile: (757) 624.3169 senoona@kaufcan.com 12331593v1 01980.51928/5267870.1