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)
quinn emanuel
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WRITER'S INTERNET ADDRESS
davidperlson@quinnemanuel.com
January 23, 2012
VIA E-MAIL
Kenneth Brothers
BrothersK@dicksteinshapiro.com
Re:
January 17, 2012 Meet and Confer Telephone Conference
Dear Ken:
I write to confirm our meet and confer telephone conference on January 17, 2012.
As an initial matter, we were concerned that your questions about Google's search term proposal
suggested that you had not read our letter dated January 13. As we told you on the call, Google
explained in that letter our position that Google's proposed search terms are not limited to its
knowledge of the asserted patents; you have yet to respond to the points in this letter or our
related January 9 letter. It also appeared that you were unprepared to discuss the search term
issue, as you did not realize that "AdWords" was among the overly broad search terms proposed
in I/P Engine's December 23 email, a problem we detailed in our January 9 letter. This was
particularly disappointing given the supposed urgency to meet and confer which you had
expressed prior to the call.
During the call, we confirmed that Google has agreed to the list of terms included on page 1 of
your January 10 letter.
After you left the call, we further discussed the search term issue with your associate Charles
Monterio. Charles agreed that I/P Engine will draft a revised list of terms, more narrowly
tailored to target the documents you actually need, rather than return an avalanche of irrelevant
quinn emanuel urquhart & sullivan, llp
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Kenneth Brothers
January 23, 2012
documents. We look forward to receiving your revised proposal. We in turn agreed to review
your search queries based on document requests targeted at evaluating the accused product’s
competitiveness.
Before you left the call, we also discussed the issue of which custodians Google will include in
its document search. In our January 13 letter we proposed that, on the condition that I/P Engine
agree not to seek documents from any additional Google custodians, Google would produce
custodial documents from Jeff Huber (limited as to the time period before April 2011) and Hal
Varian, as well as the seven custodians we have previously identified. You stated on the call that
you would agree to Google's proposed custodians, but that you were unwilling to agree not to
seek documents from additional Google custodians. Google's willingness to produce documents
from nine custodians represents a significant concession, as Google had originally proposed in
the draft ESI plan that each side limit its request to five custodians, while I/P Engine had
proposed ten Google custodians. Google will agree to this concession only if I/P Engine agrees,
consistent with the parties' earlier proposals, that if it seeks custodial production from additional
Google custodians, it must petition the Court, upon a showing of distinct need.
With respect to I/P Engine's inappropriate delay in supplementing its response to Interrogatory
No. 1 until it reviews the third-party production by Lycos, you stated that you had nothing to add
in response to our January 13 letter. As we have repeatedly told you, Google is entitled to firm
dates of conception and reduction to practice, and we reserve our rights.
We discussed I/P Engine's failure to supplement its infringement contentions in response to
Interrogatory No. 7. You agreed that, now that the court has entered a scheduling order, you will
propose dates for various discovery deadlines, including a date by which I/P Engine will provide
supplementary infringement contentions.
We also discussed Google's production of certain documents from prior AdWords litigations.
Again, your lack of familiarity with our response to your demand in our January 13 letter raises
concerns about your preparation for these supposedly urgent meet-and-confer calls that you
demand. After threatening to go to the court in lieu of providing a response, you ultimately
agreed that before you file any motion to compel, you will send a response to our letter.
Your questions about Google's upcoming dates of production further suggest that you failed to
read our January 13 letter, in which we explained that your reference to "all requested
documents" was unclear. Once you clarified your request, we explained that we would send a
significant production from IAC, regarding Ask Sponsored Listings, which we did Tuesday
afternoon; we have sent notice letters to third parties so that we can begin to produce licensing
agreements; and we will produce in the upcoming weeks deposition transcripts from current and
former Google employees from AdWords litigations regarding aspects of the technology similar
to those accused in this case. In addition, we can now confirm that we will also produce Google
revenue data this week.
01980.51928/4555045.2
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Kenneth Brothers
January 23, 2012
Regarding your proposed deposition limits, we are inclined to reject, after we speak to our
clients. The parties should abide by the Federal Rules of Civil Procedure, but if I/P Engine is
reasonable in its selection of deponents, we will be flexible on this issue as we have previously
expressed.
We discussed the letter we received Tuesday, dated January 10, from Lycos' general counsel,
Mark Blais. Mr. Blais' assertion that Lycos provided Donald Kosak with certain relevant
electronic files on a CD a few months ago directly contradicts your previous statements to us that
Mr. Kosak is not in possession of any documents. You confirmed that it is your present
understanding that Mr. Kosak does not possess this CD, and that he never received it. You have
agreed to ask Mr. Kosak if he has or received any such files, and you also plan to discuss the
issue with Mr. Blais.
We also noted that the Lycos letter states that Lycos transferred all internal files relating to the
patents-in-suit and other patents in the same family to the buyer of the patents at the time of the
sale. You confirmed that I/P Engine is not withholding any such documents.
Sincerely,
David A. Perlson
DAP:JG
cc:
IPEngine@dicksteinshapiro.com
QE-IPEngine@quinnemanuel.com
01980.51928/4555045.2
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