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

Filing 928

REPLY to Response to Motion re 926 MOTION to Expedite and Memorandum in Support of Motion to Expedite the Briefing on Defendants' Renewed Motion to Compel Deposition of Dr. Becker and for Enlargement of Time to Oppose Plaintiff's Motion for Post-Judgment Royalties filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (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. DEFENDANTS’ REPLY IN SUPPORT OF EXPEDITING THE BRIEFING ON DEFENDANTS’ RENEWED MOTION TO COMPEL DEPOSITION OF DR. BECKER AND FOR ENLARGEMENT OF TIME TO OPPOSE PLAINTIFF’S MOTION FOR POST-JUDGMENT ROYALTIES Defendants file this brief reply in order to address several misrepresentations to the Court made in Plaintiff’s Opposition brief. Plaintiff states that during the meet and confer Defendants “did not pursue their request to depose Dr. Becker,” but instead were “preoccupied” with their proposal regarding discovery related to Google’s imminent change to Google’s system. (D.N. 927, 1-2.) This is flatly untrue. During the April 9 call, Defendants reiterated their 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 postjudgment royalties. (Declaration of Margaret Kammerud (“Kammerud Dec.,”), ¶ 2.) Defendants further noted that a deposition may further be appropriate should Dr. Becker consider Google’s offered discovery on its new system in his new opinion. (Id.) Plaintiff’s opposition states that “Defendants made no proposal” during the meet and confer regarding postponement of briefing. (D.N. 927, 2.) This is also flatly untrue. Specifically, during the conference, Defendants’ counsel suggested that the parties 01980.51928/5270574.1 1 consider an interim extension while negotiating a final agreement on any discovery concerning the Motion for an Award of Post-Judgment Royalties. (Id.) In particular, Defendants suggested a two week extension on Defendants’ Opposition to Plaintiff’s Motion for an Award of PostJudgment Royalties, and a comparable extension for Plaintiff’s Reply in Support of its Motion for Post-Judgment Royalties. (Id.) Defendants’ counsel agreed that they also would send Plaintiff’s counsel a proposal for a further extension in order to accommodate additional discovery, which they did on April 12, 2013. (See D.N. 925, Perlson Declaration, Ex. 2.) Further, Plaintiff states that after receiving Defendant’s proposal on April 12, “I/P Engine immediately asked for clarification regarding the proposal.” (D.N. 927, 2.) Yet, Plaintiff omits that three minutes later, Defendants’ counsel responded, offering to speak by telephone to clarify any confusion. (See D.N. 925, Perlson Declaration, Ex. 2.) It was Plaintiff that did not respond to this inquiry. Instead, only after Defendants followed up the morning of April 15 by email, Plaintiff engaged Defendants on the issue. But Plaintiff’s assertion that “I/P Engine did not respond to, much less accept, Defendants’ request during” the parties’ telephone conference on April 15 (D.N. 927, 2) is once again flatly untrue. Plaintiff did agree to this extension. (D.N. 925, Perlson Declaration, ¶ 4.) Plaintiff then reneged this agreement a few hours later by email. (See D.N. 925, Perlson Declaration, Ex. 2.) It is telling that, unlike Defendants, Plaintiff did not back up its statements with a declaration from either of Plaintiff’s counsel on these calls to support its representations of the parties’ meet and confer in its brief. DATED: April 17, 2013 01980.51928/5270574.1 /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 2 150 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 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. 01980.51928/5270574.1 3 CERTIFICATE OF SERVICE I hereby certify that on April 17, 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 12335640v1 01980.51928/5270574.1 4