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

Filing 1006

MOTION to Strike 998 Memorandum in Support,,, of Plaintiff's Supplemental Memorandum by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
I/P ENGINE, INC.

Plaintiff,

v.
AOL, INC., et al.,

Civil Action No. 2:11-cv-512
Defendants.

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

Introduction
The facts underlying Plaintiff's claim that Google's "New AdWords" system is no more
than a colorable variation from the "Old AdWords" system are not in dispute. This is because
Plaintiff and its expert Dr. Frieder received all the information they needed through the
voluminous source code and technical documents that Google produced by August 25, 2013, the
end of the ten day period1 the Court gave the parties to produce the documents relevant to
determining whether New AdWords is no more than a colorable variation of Old AdWords, and
in conjunction with the deposition of Bartholomew Furrow, whom Google made available also
pursuant to the Court's Order. Indeed, in his report, Dr. Frieder does not cite to a single
document that Google had not produced by the August 25 deadline for production of relevant
documents. And neither he nor Plaintiff point to any fact regarding New AdWords that Plaintiff
or he could not ascertain from this initial production. In other words, Google's production of
documents that were actually relevant to whether New AdWords is no more than a colorable
variation of the old AdWords was spot-on.
Rather than focus on the substance of whether New AdWords is more than a colorable
variation of Old AdWords, Plaintiff yet again seeks to falsely cast aspersions on Google in
support of its fourth motion for sanctions in this case.2 (See Dkts. 200, 277, 282 (Plaintiff's first
three sanctions motions); Dkts. 275, 697 (denying all three motions)). Google already
demonstrated why, like Plaintiff's prior three motions, this one also should be denied. As
discussed more fully in Google's Opposition to Plaintiff's underlying Motion to Show Cause
1

The Court gave Google ten days, but the 10th day fell on a Sunday – August 25, 2013.

2

Plaintiff’s first and third sanctions motions were denied in their entirety, while for the
second sanctions motion the Court denied Plaintiff’s actual sanctions requests and merely
ordered Google to update certain U.S. revenue figures, as Google had already agreed to do.
(Dkt. 697).
1

(Dkt. 982), Google first produced 986 highly-confidential source code files (two million lines of
code) as well as other technical documents showing the changes to the accused systems. After
Plaintiff complained that it was also entitled to custodial emails – even though the parties agreed
earlier that there was no obligation to preserve emails after the start of the litigation – Google
then undertook a time-intensive email pull and produced roughly 9,000 pages of custodial emails
as well. After its deposition of Google engineer Bartholomew Furrow, Plaintiff requested
additional categories of documents, and – continuing its efforts to work with Plaintiff in good
faith to avoid unnecessary disputes before the Court – Google worked quickly to produce these
newly-requested documents in time for Plaintiff's expert reports. Google's actions do not
remotely show a party who is disregarding its discovery obligations and/or deserves sanctions.
Rather, Google's actions show a party who is working hard to accommodate Plaintiff's serial
discovery requests in good faith to avoid unnecessary disputes and motion practice. Despite
Google's good-faith efforts, Plaintiff rushed to the Court raising its baseless request for sanctions.
Plaintiff now seeks to buttress its sanctions request with a series of new accusations raised in the
supplemental memorandum, which it filed at the same time it sought leave to file – essentially
granting its own relief. Plaintiff's self-help alone warrants denial of Plaintiff's motion for leave.
But even if considered, Plaintiff's new accusations are just as baseless as its prior ones.
First, Plaintiff alleges that Google improperly deleted instant message chats about New
AdWords. But the parties had agreed long ago that instant messages occurring after the filing
date of the litigation need not be preserved or produced. In any event, Google's company-wide
policy since 2008 has been not to record IMs in the first place. Google did not "delete" anything;
it simply followed its long-time corporate policy in not recording these communications.

2

Second, Plaintiff alleges that Google did not create launch documents about New
AdWords. But litigants have no obligation to create new documents just because their opponents
would like to discover them. Google's decision not to create certain launch documents cannot be
deemed improper as a matter of law.
Third, Plaintiff alleges that Google withheld calendaring documents and textual notes
about its source code changes. These ministerial documents about the source code changes have
little if any relevance to determining whether New AdWords is no more than a colorable
variation of Old AdWords, particularly compared to the source code itself. But when Plaintiff
stated that it believed these ministerial documents were relevant and asked that they be produced,
Google promptly did so. Tellingly, Plaintiff did not cite any of these documents in its expert
reports either, thus confirming that these ministerial documents about the source code (as
opposed to the source code itself) are not relevant.
Plaintiff's Motion for Leave, like its underlying Motion to Show Cause, is nothing more
than an unjustified attempt to win its post-judgment royalty case by default. Plaintiff seeks a
default "death penalty" sanction – namely, an order that New AdWords is no more than a
colorable variation of Old AdWords. Yet, as explained in Defendants' Opposition to the
underlying Motion to Show Cause, such sanctions are reserved for "flagrant" behavior that is
materially prejudicial to the opposing party. (Dkt. 982 at 14 (citing Wilson v. Volkswagen of
Am., 561 F.2d 494, 504 (4th Cir. 1977)). Plaintiff cannot show flagrantly improper behavior by
Google. To the contrary, Google has worked hard to accommodate Plaintiff's serial discovery
requests, even after Plaintiff cast its net wider and wider by deeming more and more documents
supposedly relevant to its case. And Plaintiff cannot show prejudice, as the only documents that

3

Plaintiff's expert actually cited in his report are the source code and technical documents that
Google originally produced by the Court's August 25 deadline.
Likewise, civil contempt sanctions of any kind are designed "to coerce the contemnor
into compliance with court orders or to compensate the complainant for losses sustained."
Bradley v. Am. Household Inc., 378 F.3d 373, 378 (4th Cir. 2004). But Google has complied
even with Plaintiff's serial, seemingly never-ending document requests. There is nothing to
"coerce." And Plaintiff has suffered no prejudice, so there are no "losses" that require
compensation. Accordingly, contempt sanctions of any kind are inappropriate, much less the
death penalty sanction of a default judgment.
Thus, like the underlying Motion to Show Cause, the supplemental memorandum is
without merit. The Court should disregard the supplemental memorandum and deny the Motion
for Leave to file the supplemental memorandum.
Background
I.

DEFENDANTS PRODUCED THE DOCUMENTS RELEVANT TO
DETERMINING WHETHER NEW ADWORDS IS NO MORE THAN A
COLORABLE VARIATION BEFORE THEY WERE DUE.
On August 14, 2013, the Court ordered Defendants to produce "any documents relevant

for determining whether New AdWords is no more than a colorable variation of the adjudicated
product." (Dkt. 963 at 8.) The Court ordered this production by Sunday, August 25. (Id.)
Google diligently searched for the documents relevant to making this determination, and
produced them in advance of the deadline, on August 23: 986 source code files (two million
lines of code) relating to New AdWords, as well as technical design documents about the new
system.3 (See Dkt. 982 at 3.) These documents would turn out to be the only Google-produced
3

As early as this Spring, Google had offered Plaintiff discovery into New AdWords –
including these technical documents and a deposition – in conjunction with the briefing over
4

documents that Plaintiff's technical expert, Dr. Frieder, would cite in his expert report on whether
New AdWords is no more than a colorable variation of Old AdWords.
Not only did Google produce the source code, but it went to great lengths to make this
code as accessible and digestible as possible. For example, rather than dumping irrelevant code
on Plaintiff and forcing Plaintiff to "go fish" for the relevant portions, Google carefully targeted
its production to the source code files that show the changes between Old AdWords and New
AdWords. As Google engineer Bartholomew Furrow explained at his deposition:
So what happened is I – I looked for changes to the code that were relevant in my
opinion to the changes between old AdWords and new AdWords. And what I did
is I identified particular change lists that corresponded to changes – relevant
changes. And each change list corresponds to a certain set of files.
(Sohn. Decl.,4 Ex. 8 (Furrow Dep. 224:1-7).) Google then produced "before" and "after"
versions of this code, since this would be the easiest way for Plaintiff to identify and review the
changes that were made to the code. (Id., 224:18-21 ("And so I thought it would be most helpful
to you if we – if I provided a version that – or both versions that would highlight the changes that
took place . . . .").) Google even instructed Plaintiff on how to make a "diff" or redline copy to
specifically show these changes between the "before" and "after" versions of the code. (Dkt. 983
(Sistos Decl.) at ¶ 7.)
II.

PLAINTIFF FILES ITS UNNECESSARY MOTION TO SHOW CAUSE
On August 27, 2013, Plaintiff demanded that Google also produce custodial emails

discussing the new system. Google did not agree that custodial emails were relevant to
determining whether New AdWords is no more than a colorable variation of Old AdWords; that
is shown in the source code. As Plaintiff's technical expert testified at trial, source code is "as
Plaintiff's original motion for post-judgment royalties. (See Dkt. 925). Plaintiff refused to take
discovery at that time. (Dkt. 925-2.)
4

The Declaration of Joshua L. Sohn ("Sohn Decl.") is filed concurrently herewith.
5

detailed as you get" regarding the operation of AdWords. (Trial Tr. 593:2-3.) Moreover, the
parties had agreed during pre-trial discovery that there was no obligation to preserve emails after
the start of the litigation. (Sohn. Decl., Ex. 3 and ¶ 2.) Furthermore, as explained in Google's
Opposition to the underlying Motion to Show Cause, it was entirely reasonable for Google to
read the Court's August 14 Order to implicate source code and technical documents rather than
custodial emails, given that custodial emails are extremely voluminous and could not practically
be collected and produced in just 10 days. (Dkt. 982 at 5-6.) In the pre-trial discovery phase,
review and production of custodial emails took two months. (See id.) The Court explicitly
blessed that two-month timetable, finding it reasonable. (See id.) Thus, it was reasonable for
Google to conclude that the Court's August 14 Order did not require a custodial email pull in just
10 days, particularly when source code and technical documents (not custodial emails) were the
documents actually relevant to determining whether New AdWords is no more than a colorable
variation of Old AdWords. And Plaintiff certainly did nothing to reflect a contrary
understanding. Indeed, when the parties discussed custodial emails in the pre-trial discovery
period, there were lengthy and prolonged discussions regarding custodians and search terms.
Plaintiff made no effort to engage in similar discussions in the post-judgment phase, either
before or even after the August 25 deadline for production of relevant documents. This was
entirely consistent with Plaintiff's conduct earlier in the case, in which Plaintiff sought
production of emails only after Google’s technical documents had been produced. (See Dkt. 982
at 6 n.3).
Nonetheless, in the interest of compromise and to avoid motion practice, Google agreed
on August 28 to collect and produce custodial emails. (Dkt. 982 at 4.) Google completed this
production by September 13, 2013, producing over 9,000 pages of custodial emails to Plaintiff.

6

Rather than meeting and conferring with Google about the scope of this production, the
timing of this production, or anything else, Plaintiff abruptly filed its Motion to Show Cause on
August 29, the day after Google had agreed to produce the emails in question. (Dkt. 978.)
Plaintiff thus sought sanctions over an issue on which the parties had already reached agreement.
III.

PLAINTIFF REQUESTS ADDITIONAL DOCUMENTS
On September 20, 2013, Plaintiff took the deposition of Google engineer Bartholomew

Furrow. Plaintiff did not question Mr. Furrow on any of the 9,000 pages of custodial emails at
his deposition, despite Plaintiff's prior insistence that they be produced in time for the deposition
and Plaintiff's prior representations in briefing that custodial emails were supposedly critical to
its post-judgment royalties case. (See Dkt. 979 at 5 ("The communications between Google
personnel, especially its engineers, and other custodial documents describing Google's efforts
regarding the relevant changes serves as a necessary tool in efficiently mapping out what
changes Google actually implemented. . . .").)
After the deposition, Plaintiff requested the production of additional documents.
Specifically, Plaintiff requested the production of: (1) textual notes about the source code
changes that Google had made to the accused systems; and (2) "Launch Cal" documents for
certain aspects of the changes that Google had made to the accused systems.5 (Sohn Decl., Ex.
4.) Google produced these documents barely 24 hours later, on the night of September 24.
(Sohn Decl., Ex. 5.)
5

As Mr. Furrow explained, "Launch Cal" is "short for Launch Calendar, and the basic
notion is it contains a list of upcoming and past and current launches, thus the calendar aspect."
(Sohn Decl., Ex. 8 (Furrow Dep. 201:8-12).) Because Launch Cal documents are ministerial
calendaring documents, they typically do not have significant notes on the substance of the
various launches. (Id. at 201:25-202:23.) The one additional Launch Cal document that Google
was able to find and produce after the Furrow deposition is attached hereto as Sohn Decl., Ex. 9.
The Launch Cal document that Google had produced with its previous production is attached
hereto as Sohn Decl., Ex. 10.
7

IV.

PLAINTIFF'S EXPERT REPORT DOES NOT CITE ANY OF THE
DOCUMENTS THAT FORM THE BASIS OF PLAINTIFF'S MOTION
Plaintiff served the expert report of its technical expert, Dr. Frieder, on September 25.

(Sohn Decl., Ex. 6.) Again, this report did not cite any of the 9,000 pages of emails that Google
had produced (at Plaintiff's insistence) before the Furrow deposition or any of the textual notes or
Launch Cal documents that Google had produced after the Furrow deposition and that Plaintiff
now complains so bitterly about. Nor did Plaintiff request any extension of its report on the
ground that it needed additional time to digest these recently-requested and recently-produced
documents. (Sohn Decl., ¶ 10.) Instead, Plaintiff served its expert report on September 25,
citing exclusively to the source code and technical documents that Google had produced on
August 23, the Furrow deposition testimony, a Furrow Declaration from May 2013, and
Plaintiff's own documents. (Sohn Decl., Ex. 6 at ¶ 4.)
V.

PLAINTIFF FILES THE PRESENT MOTION WITH NO MEET AND CONFER
On October 7 Plaintiff filed the present Motion for Leave to file a supplemental

memorandum (Dkts. 993 & 994) as well as the supplemental memorandum that it sought leave to
file. (Dkt. 998). Plaintiff did not request any meet-and-confer before filing the Motion for
Leave. (Sohn Decl., ¶ 9.) Plaintiff filed it without notifying Defendants in any way. As noted
above, Plaintiff also filed the underlying Motion to Show Cause without meeting and conferring.
Argument
I.

PLAINTIFF'S SUPPLEMENTAL MEMORANDUM SHOULD BE STRICKEN
Rather than waiting for the Court to rule on Plaintiff's Motion for Leave to file a

supplemental memorandum (Dkt. 993), Plaintiff actually filed the supplemental memorandum

8

(Dkt. 998) concurrently with the Motion for Leave.6 Plaintiff thus granted itself the very relief
(filing of the supplemental memorandum) that it purports to seek through the Motion for Leave.
This self-help is improper, and the Motion for Leave should be denied for this threshold reason
alone. For the same reason, the supplemental memorandum (Dkt. 998) should be stricken from
the record, as Plaintiff filed this document without being granted leave to do so.
II.

PLAINTIFF'S ALLEGATIONS OF DISCOVERY MALFEASANCE ARE
MERITLESS
Plaintiff alleges that the Furrow deposition revealed additional discovery malfeasance by

Google. (Dkt. 994 at 2.) Plaintiff does not explain this alleged malfeasance in any detail in the
Motion for Leave, instead doing so through the supplemental memorandum it filed at the same
time it asked leave to file it. But however Plaintiff divides its accusations between these two
documents, the accusations are meritless.
A.

Google Did Not Delete Electronic Records

Plaintiff first argues in its motion for leave that Google "deleted relevant electronic
records." (Dkt. 994 at 2.) This allegation is presumably referring to its argument in its
supplemental memorandum concerning "chats" conducted over Google's instant messaging
services, Google Talk or Google Hangouts. (Dkt. 998 at 2.) But the parties explicitly agreed
that neither party had an obligation to preserve corporate instant messages created after
September 15, 2011. (Sohn Decl. Exs. 1-2.) Here, Google's internal electronic chats certainly
qualify as "corporate instant messages" that Google had no obligation to preserve, per the parties'
agreement. That Plaintiff would seek a default judgment for Google's following the parties'
agreement shows how meritless Plaintiff's request is.
6

Rather than attaching the supplemental memorandum as an exhibit to the Motion for
Leave, as required by the Local Rules, Plaintiff actually filed these documents under entirely
different docket entries. (See Dkts. 993, 998.)
9

And to be clear, Google did not "delete" anything. Nor did Google, as Plaintiff implies,
alter its practices with respect to the chats at issue here. At Google, chats are not recorded as a
matter of course. Google's company-wide corporate policy since 2008 has been by default to
conduct all intra-company chats in "off-the-record" mode, meaning that such chats are not stored
or recorded.7 (Zmrhal Decl., ¶ 8.) This policy is consistent with the caselaw, which recognizes
that parties have no obligation to preserve or record ephemeral, real-time conversations such as
instant message chats. As one court noted, demanding that a defendant log every chat would be
"akin to a demand that a party to a litigation install a system to monitor and record phone calls
coming in to its office on the hypothesis that some of them may contain relevant information.
There is no such requirement . . . ." Malletier v. Dooney & Burke, No. 04-5316, 2006 WL
3851151, at *2 (S.D.N.Y. Dec. 22, 2006). While Plaintiff's allegations may have some
superficial rhetorical appeal, Google's engineers did nothing untoward here. Rather, they
followed the parties' agreement in the case and the policy in place at Google since 2008.
B.

Google Had No Obligation to Create Launch Documents

Plaintiff next argues in its Motion for Leave that Google "purposefully avoided
producing relevant launch documents" about changes to the accused systems. (Dkt. 994 at 2.)
This allegation is also false. As Plaintiff indicates in its supplemental memorandum, Plaintiff's
real complaint is that Google did not "create" documents, not that Google failed to produce
documents that it had created. (Dkt. 998 at 4 ("Google changed its general business practices to
avoid creating relevant documents. . . . ").) So Plaintiff's real allegation is that Google somehow
engaged in impropriety by not creating launch documents. This allegation also fails as a matter
of law. It is a basic rule of civil discovery that parties have a duty to produce documents within

7

The Declaration of Kristin Zmrhal is filed concurrently herewith.
10

their possession, but have no duty to create new documents. See, e.g., Washington v. Garrett, 10
F.3d 1421, 1437 (9th Cir. 1993) (affirming ruling "that the defendant was not required to create
documents to satisfy [plaintiff's] discovery requests"); Brown v. Warden Ross Correctional Inst.,
No. 2:10-cv-822, 2011 WL 1877706, at *5 (S.D. Ohio May 16, 2011) (similar). Thus, Google's
decision not to create launch documents cannot be deemed improper or sanctionable as a matter
of law. Here too, Plaintiff has made spurious allegations of malfeasance with superficial
rhetorical appeal, but devoid of any substance.
C.

Google Promptly Produced the Textual Source Code Notes and Launch Cal
Documents That Plaintiff Requested After the Furrow Deposition

Plaintiff finally enumerates other categories of documents that Google supposedly
withheld – namely, a single Launch Cal document and textual notes about Google's source code
changes. (Dkt. 994 at 2.) The former is one ministerial calendaring document (see footnote 5,
supra), while the latter are "vague" and "brief" notes on the source code changes. (Sohn Decl.,
Ex. 8 (Furrow Dep. 230:17-22).) Notably, Plaintiff had one Launch Cal document in its
possession before the Furrow deposition (Sohn Decl. Ex. 10 and ¶ 15), yet Plaintiff gave no
indication before the Furrow deposition that these Launch Cal documents had any relevance or
that additional Launch Cal documents should be produced. Likewise, it is hardly uncommon for
Google or any other software company to have a change list with textual notes of source code
changes, yet Plaintiff expressed no desire for such textual notes before the Furrow deposition.
Only three days after the Furrow deposition did Plaintiff first say anything about desiring these
documents. The fact that Plaintiff waited until three days after the deposition before uttering a
word about these ministerial documents shows that Plaintiff's demands are driven more by
gamesmanship than a legitimate need for relevant documents.

11

Google did not focus on these ministerial documents in its initial production because
Google was focusing on producing the actual source code changes that these documents relate to.
Google's focus on the source code, rather than additional ministerial documents about the source
code, was borne out by the fact that Plaintiff's technical expert did not ultimately cite any of
these additional ministerial documents in his expert report. Yet Plaintiff seeks the death penalty
sanction of a default judgment simply because Google did not produce these ministerial
documents before Plaintiff specifically asked for them.
In any event, Plaintiff admits that it first asked for these ministerial documents after the
Furrow deposition and that Google promptly produced them at that time. (Dkt. 998 at 4-5.)
Indeed, the parties' email correspondence shows that Plaintiff first asked for these documents the
evening of September 23 and that Google produced them just 30 hours later. (Sohn Decl., Exs.
4-5.) Thus, Plaintiff's allegation that Google engaged in malfeasance with respect to these
documents should be rejected too. Rather, Google's production of these documents immediately
after Plaintiff requested them shows Google's good-faith efforts to promptly produce all
documents that Plaintiff deems relevant and asks to be produced.
Indeed, all Plaintiff has demonstrated is that working with Plaintiff in good faith is
useless. Unfortunately, good-faith efforts to deal with Plaintiff's concerns (legitimate or not)
only spur further motion practice from Plaintiff. Google respectfully submits that entertaining
Plaintiff's empty complaints only further encourages the parties not to cooperate, and to further
waste party and Court resources with unnecessary motion practice as here.
D.

Plaintiff Has Suffered No Prejudice

Even if the Court somehow found any impropriety in Google's good-faith initial
production and its continued good faith in dealing with Plaintiff's subsequent requests, Plaintiff
shows no prejudice from anything Google has done. Plaintiff points to no relevant fact as to
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whether New AdWords is more than a colorable variation from Old AdWords that it does not
have or could not have discovered from Google's initial production of documents pursuant to the
Court's August 14 Order. Indeed, Plaintiff's technical expert cited nothing other than the
documents Google produced before the Court's deadline for production of documents regarding
whether New AdWords is more than a colorable variation from Old AdWords. Nor did he state
that he was unable to determine any of the relevant facts about New AdWords from Google's
document production. And to the extent Plaintiff needed more time to digest any of the
documents subsequently produced in good faith in response to Plaintiff's serial requests, Plaintiff
did not seek any extension of its expert report deadline in order to digest these documents (Sohn
Decl., ¶ 10) – an extension that Defendants would have gladly granted, had Plaintiff requested it.
In fact, Defendants had previously offered up to a one-month extension of Plaintiff's expert
report deadline in exchange for Plaintiff withdrawing its Motion to Show Cause. Yet Plaintiff,
far from agreeing to an extension to moot the Motion to Show Cause, demanded that Google
present Mr. Furrow for 14 hours of deposition (even thought it ultimately ended up taking less
than a seven hour deposition of Mr. Furrow), and, even though not called for under the Court’s
Order, answer an interrogatory before Plaintiff would withdraw this Motion. (See Sohn Decl.,
Ex. 11 at 2 & Ex. 12.) Moreover, Plaintiff's demanded interrogatory had numerous sub-parts,
requiring "a narrative identifying what features have been modified or removed from the
adjudged infringing systems, identifying and describing the 'new' features and/or functionality
that replaced the modified or removed features, providing an overview of how the New
AdWords system having the 'new' features generally works (from receiving a user's search query
to displaying the relevant advertisements), and describing any features that enabled the removal
of those features or now perform any function(s) of those features." (Sohn Decl., Ex. 12.)

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In reality, the operation of New AdWords is undisputed. The expert reports of Plaintiff's
technical expert (Dr. Frieder) and Defendants' expert (Dr. Ungar) do not conflict at all in their
descriptions of how New AdWords actually operates. (Compare Sohn Decl. Ex. 6 with Sohn
Decl. Ex. 7.) They merely conflict in their opinions on whether this undisputed functionality
represents more than a colorable difference from Old AdWords. But that, of course,
demonstrates no prejudice.8
In sum, Plaintiff presents no evidence that it suffered any prejudice from Google's
document production, including its source code production. Indeed, as detailed above, the facts
show just the opposite. Plaintiff is simply ginning up meritless accusations in an attempt to win
its post-judgment royalty case by default. (See Dkt. 998 at 5 ("This Court should impose
sanctions against Google by entering default judgment against Google that the alleged changes to
New AdWords are no more than colorably different than Old AdWords. . . .").) The Court
should not indulge these tactics. As noted above, default sanctions are limited to flagrantly
improper behavior that materially prejudices the rights of the opposing party,9 and Plaintiff has
shown neither flagrantly improper behavior nor prejudice. Nor are contempt sanctions of any
kind appropriate, as there is no need to coerce Google into compliance with the Court's Order or
compensate Plaintiff for any losses that Plaintiff sustained (because Plaintiff sustained no losses).

8

On the issue of prejudice, Plaintiff also argues that Google's allegedly untimely
production of English-language source code descriptions prejudiced Plaintiff because it "le[ft]
I/P Engine to sort through the underlying code (968 source code files and almost two million
lines of code (D.I. 982 at 3)) without the aid of these descriptions." (Dkt. 998 at 4.) If Plaintiff
is trying to insinuate that Google dumped source code on Plaintiff without giving Plaintiff the
tools to properly analyze it, this insinuation is meritless. As discussed in the Statement of Facts,
supra, Google carefully targeted its source code production to the files showing the changes
between Old AdWords and New AdWords, and even instructed Plaintiff how to make a redline
copy to highlight those changes.
9

Wilson, 561 F.2d at 504.
14

Thus, Plaintiff's Motion for Leave, like its underlying Motion to Show Cause, should be
denied.
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.
/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]
[e-mail]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
15

Facsimile: [phone]
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]
[e-mail]

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