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

Filing 1005

Declaration re 1003 Opposition, (of Joshua L. Sohn) in Support of Defendants' Opposition to Plaintiff's Motion for Leave to File Supplemental Memorandum Regarding Motion to Show Cause and Motion to Strike Plaintiff's Supplemental Memorandum by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (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, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
v.

Civil Action No. 2:11-cv-512

AOL, INC., et al.,
Defendants.
DECLARATION OF JOSHUA L. SOHN IN SUPPORT OF DEFENDANTS’
OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL
MEMORANDUM REGARDING MOTION TO SHOW CAUSE AND MOTION TO
STRIKE PLAINTIFF’S SUPPLEMENTAL MEMORANDUM

I, Joshua L. Sohn, 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.

During the pre-trial discovery phase, the parties agreed that they had no obligation to

retain, collect, or produce custodial documents created after the filing date of the Complaint in
this lawsuit. This agreement included post-Complaint emails, and throughout pre-trial discovery,
the parties consistently operated under the principle that post-Complaint emails were exempt
from discovery. This agreement was reconfirmed in correspondence sent from Defendants’
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counsel Jennifer Ghaussy to Plaintiff’s counsel Charles Monterio, dated April 27, 2012, a true
and correct copy of which is attached hereto as Exhibit 3.
3.

In addition to discussion of post-Complaint custodial documents, the parties also

discussed discovery of instant messages and voice mails as part of their discussion of procedures
for electronic discovery. They prepared a draft Stipulation Regarding the Format of Document
Productions detailing the parties’ positions on such procedures, then negotiated over the limited
areas of disagreement.
4.

On December 15, 2011, during the parties’ negotiation about the stipulation, Plaintiff’s

counsel proposed including a limitation reading, “No party has an obligation to preserve
corporate voicemails or corporate instant messages created after September 17, 2011.”
Defendants’ counsel agreed to the inclusion of this language in an email that same day,
December 15, 2011. A true and correct copy of this email from Defendants’ counsel David
Perlson to Plaintiff’s counsel Kenneth Brothers is attached hereto as Exhibit 15.
5.

During a meet and confer conference on March 1, 2012, Plaintiff’s counsel stated that he

believed that the parties had not reached an agreement concerning instant messages. In
correspondence on March 7, 2012, Defendants’ counsel pointed to the parties’ December 15,
2011 agreement that the parties have no obligation to preserve corporate instant messages
created after September 17, 2011. Attached hereto as Exhibit 1 is a true and correct copy of this
correspondence from Defendants’ counsel Margaret Kammerud to Plaintiff’s counsel Kenneth
Brothers.
6.

Then, on March 29, 2012, Defendants’ counsel circulated the Proposed Stipulation

Regarding the Format of Document Productions, which included the previously agreed language
concerning instant messages: “No party has an obligation to preserve corporate voicemails or

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corporate instant messages created after September 17, 2011.” Attached hereto as Exhibit 2 is a
true and correct copy of the email from Defendants’ counsel Emily O’Brien to Plaintiff’s counsel
Charles Monterio attaching this stipulation. While the parties continued to negotiate concerning
other, unrelated aspects of the stipulation during April 2012, Defendants’ counsel noted that the
date after which voicemails and instant messages need not be preserved should coincide with the
filing of the litigation, September 15, 2011. Attached hereto as Exhibit 3 is a true and correct
copy of the correspondence sent from Defendants’ counsel Jennifer Ghaussy to Plaintiff’s
counsel Charles Monterio, dated April 27, 2012, in which the September 15, 2011 date was
proposed. Plaintiff agreed to this proposal on May 7, 2012 in a letter from Plaintiff’s counsel
Charles Monterio to Defendants’ counsel Jennifer Ghaussy, attached hereto as Exhibit 13. As of
that date, the only remaining dispute about the Proposed Stipulation Regarding the Format of
Document Productions concerned unsent draft emails. Defendants agreed to Plaintiff’s demands
about the issue of draft emails to reach full resolution as to the stipulation on May 8, 2012. This
agreement is memorialized in a letter from Defendants’ counsel Jennifer Ghaussy to Plaintiff’s
counsel Charles Monterio, a true and correct copy of which is attached hereto as Exhibit 14.
7.

Attached hereto as Exhibit 4 is a true and correct copy of an email from Plaintiff’s

counsel Charles Monterio to Defendants’ counsel, dated September 23, 2013.
8.

Attached hereto as Exhibit 5 is a true and correct copy of an email from Defendants’

counsel Margaret Kammerud to Plaintiff’s counsel, dated September 25, 2013.
9.

Plaintiff filed its Motion for Leave to file a supplemental memorandum (Dkts. 993 &

994) and the supplemental memorandum itself (Dkt. 998) on October 7, 2013. Plaintiff never
requested any meet-and-confer before filing these documents.

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10.

After Google’s September 25 production of a Launch Cal document and textual notes on

its source code changes, Plaintiff never requested any extension of its expert report deadline in
order to adequately digest these documents.
11.

Attached hereto as Exhibit 6 is a true and correct copy of the expert report of Plaintiff’s

technical expert, Dr. Frieder, served on September 25, 2013.
12.

Attached hereto as Exhibit 7 is a true and correct copy of the expert report of Defendants’

technical expert, Dr. Ungar, served on October 15, 2013.
13.

Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the deposition of

Google engineer Bartholomew Furrow, dated September 20, 2013.
14.

Attached hereto as Exhibit 9 is a true and correct copy of a “Launch Cal” document,

bearing Bates Number G-IPE-0901993, that Google produced to Plaintiff just after midnight on
September 25, 2013.
15.

Attached hereto as Exhibit 10 is another Launch Cal document, bearing Bates Number G-

IPE0892429, that Google produced to Plaintiff just after midnight on August 26, 2013.
16.

Attached hereto as Exhibit 11 is a true and correct copy of an email string between

Plaintiff’s counsel and Defendants’ counsel, dated September 10-12, 2013.
17.

Attached hereto as Exhibit 12 is a proposed Agreed Order that Plaintiff sent to

Defendants on September 10, 2013, laying out the terms under which Plaintiff would agree to
withdraw its Motion to Show Cause. Defendants did not agree to these terms.
18.

Attached hereto as Exhibit 13 is a true and correct copy of a letter from Plaintiff’s

counsel Charles Monterio to Defendants’ counsel Jennifer Ghaussy, dated May 7, 2012.

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I declare under penalty of perjury of the laws of the United States that the foregoing is
true and correct.

Dated: October 21, 2013
Joshua L. Sohn

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DATED: October 21, 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: [phone]
Facsimile: [phone]
[e-mail]
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and
Gannett Co., Inc.
By: /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: [phone]
Facsimile: [phone]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]

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Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on October 21, 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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
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: [phone]
Facsimile: [phone]
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[e-mail]

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