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

Filing 147

Declaration re 145 Opposition (of Emily O'Brien) in Support of Google Inc.'s Opposition to Plaintiff's Motion to Compel Google's Custodial Document Production by Google Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(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 EMILY O'BRIEN IN SUPPORT OF GOOGLE INC.'S
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL GOOGLE'S CUSTODIAL
DOCUMENT PRODUCTION
I, Emily O'Brien, declare as follows:
1.

I am an attorney in the law firm of Quinn Emanuel Urquhart & Sullivan, LLP and

am counsel for Defendant Google Inc. 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.

Attached hereto as Exhibit A is a true and correct copy of the stipulation entered

into between the parties on November 4, 2011.
3.

On December 7, 2011, Google produced 217,614 pages of technical documents

related to Search, AdWords, and AdSense for Search. These documents included technical
specifications, design requirements and other technical documentation. On December 16,

Google produced additional documents related to prior art. Google produced data about
Google’s revenue from AdWords and AdSense for Search and license agreements related to
these products in late January and early February. From January to April, Google has produced
and is continuing to produce other documents in response to Plaintiff’s requests, including but
not limited to documents related to previous Google litigations and documents related to the
reexamination of one of the patents-at-issue. Google’s production is on going. Thus far, Google
has already produced over 220,000 pages of documents in this litigation.
4.

Attached hereto as Exhibit B is a true and correct copy of an email from Kenneth

Brothers to David Perlson dated December 16, 2011.
5.

Attached hereto as Exhibit C is a true and correct copy of two emails from David

Perlson dated December 16 and December 20, 2011.
6.

Attached hereto as Exhibit D is a true and correct copy of a letter from Margaret

Kammerud to Charles Monterio dated February 13, 2012.
7.

Attached hereto as Exhibit E is a true and correct copy of an email from Margaret

Kammerud to Kenneth Brothers dated December 7, 2011. Attachments to the original email are
not included in Exhibit E.
8.

Attached hereto as Exhibit F is a true and correct copy of an email from Charles

Monterio dated December 23, 2011, along with its attachment.
9.

Attached hereto as Exhibit G is a true and correct copy of a letter from Margaret

Kammerud to Charles Monterio dated January 13, 2012.
10.

Attached hereto as Exhibit H is a true and correct copy of a letter from Jen

Ghaussy to Charles Monterio dated March 28, 2012.

11.

Attached hereto as Exhibit I is a true and correct copy of a letter from Margaret

Kammerud to Charles Monterio dated January 9, 2012.
12.

Attached hereto as Exhibit J is a true and correct copy of a letter from Charles

Monterio to Margaret Kammerud dated January 10, 2012.
13.

Attached hereto as Exhibit K is a true and correct copy of a letter from David

Perlson to Kenneth Brothers dated January 23, 2012.
14.

Attached hereto as Exhibit L is a true and correct copy of a letter from Charles

Monterio to David Perlson dated January 24, 2012.
15.

As part of its negotiations with Plaintiff regarding search terms, Google ran test

searches on the collected documents of two custodians to determine which terms resulted in a
reasonable number of hits.
16.

Attached hereto as Exhibit M is a true and correct copy of a letter from Margaret

Kammerud to Charles Monterio dated March 1, 2012.
17.

Attached hereto as Exhibit N is a true and correct copy of a letter from Margaret

Kammerud to Kenneth Brothers dated March 2, 2012.
18.

Attached hereto as Exhibit O is a true and correct copy of a letter from Charles

Monterio to David Perlson dated March 9, 2012.
19.

Attached hereto as Exhibit P is a true and correct copy of a letter from Emily

O'Brien to Charles Monterio dated March 16, 2012.
20.

Attached hereto as Exhibit Q is a true and correct copy of a letter from Charles

Monterio to Emily O'Brien dated March 18, 2012.
21.

Attached hereto as Exhibit R is a true and correct copy of a letter from Jen

Ghaussy to Charles Monterio dated March 26, 2012.

22.

Attached hereto as Exhibit S is a true and correct copy of a letter from Charles

Monterio to Jen Ghaussy dated March 27, 2012.
23.

Attached hereto as Exhibit T is a true and correct copy of a letter from Jen

Ghaussy to Charles Monterio dated April 6, 2012.
24.

Attached hereto as Exhibit U is a true and correct copy of a letter from Jen

Ghaussy to Charles Monterio dated April 10, 2012.
25.

On April 9, 2012, the parties met and conferred via telephone. During that meet

and confer, Google indicated that preliminary search results for the final search term list across
all nine custodians pulled approximately 250,000 documents, excluding the overbroad and
burdensome “Ads Quality” term. When Plaintiff referred to these hits as “relevant documents,”
Google disputed the characterization and stated that the documents would need to be reviewed
for responsiveness and privilege. In response to Plaintiff’s prior request, Google estimated a
final production date of June 15, with rolling production and prioritization of custodians
according to Plaintiff’s request. Plaintiff informed Google that it intended to move to compel
production of custodial documents. Plaintiff repeatedly insisted that it needed production of all
custodial documents by April 30, without any explanation of why or how this demand was
possible to meet. Google pointed out that it had agreed to produce custodial documents on a
rolling basis, and had offered to produce documents from the three employees listed in Google’s
initial disclosures first. Plaintiff stated that it intended to move forward with a motion to compel.
26.

In an effort for further compromise, Google suggested and the parties discussed

the possibility of providing Plaintiff with a series of “tiered dates” for production, given that
Google had committed to rolling the production by custodian. Google stated that it did not know
by what date it could begin to produce custodial documents, as Plaintiff had not previously asked

for that information. However, Google agreed to look into that issue and get back to Plaintiff as
soon as possible.
27.

Attached hereto as Exhibit V is a true and correct copy of an email from Charles

Monterio dated April 9, 2012.
28.

Attached hereto as Exhibit W is a true and correct copy of a letter from Charles

Monterio to Jen Ghaussy dated April 11, 2012. Google received this letter via email
approximately three hours before it received electronic notice that Plaintiff had filed its motion to
compel.
29.

Attached hereto as Exhibit X is a true and correct copy of a letter from Jen

Ghaussy to Charles Monterio dated April 3, 2012.
30.

Attached hereto as Exhibit Y is a true and correct copy of a letter from Charles

Monterio to Jen Ghaussy dated April 5, 2012.
31.

The parties’ draft ESI agreement includes the following provision regarding

deduplication:
DEDUPLICATION A party is only required to produce a single copy of a responsive
document and a party may de-duplicate responsive ESI across Custodians. A party may
also de-duplicate “near-duplicate” email threads as follows: In an email thread, only the
final-in-time document need be produced, assuming that all previous emails in the thread
are contained within the final message. Where a prior email contains an attachment, that
email and attachment shall not be removed as a “near-duplicate.” In an email thread, the
parent/child relationship between communications shall be preserved and the attachments
shall follow the email thread.

32.

Google has 115,000 custodial documents that need to be reviewed for privilege

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

Dated: April 20, 2012
Emily O'Brien

DATED: April 20, 2012

/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]
Counsel for Google Inc.,
Target Corporation,
IAC Search & Media, Inc.,
Gannet Co., Inc. and AOL, Inc.
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.,
Gannet Co., Inc.

CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2012, 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.

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]
Counsel for Google Inc.,
Target Corporation,
IAC Search & Media, Inc.,
Gannet Co., Inc. and AOL, 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]
11662894_1.DOC