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

Filing 163

NOTICE by Google Inc., IAC Search & Media, Inc. re 106 Declaration,, 161 Order to Show Cause,,, 105 Memorandum in Support of Filing of Certain Unredacted and Further Redacted Materials in Response to Order to Show Cause (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit K, # 4 Exhibit L, # 5 Exhibit M, # 6 Exhibit N)(Noona, Stephen) Modified on 5/18/2012 to indicate that Exhibit 2 was previously removed on 5/11/12 by clerk due to personal identifiers contained therein) (ecav, ).

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EXHIBIT L quinn emanuel trial lawyers | san francisco 50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL: (415) 875-6600 FAX: (415) 875-6700 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 LOS ANGELES | 865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL (213) 443-3000 FAX (213) 443-3100 51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL (212) 849-7000 FAX (212) 849-7100 SILICON VALLEY | 555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065-2139 | TEL (650) 801-5000 FAX (650) 801-5100 CHICAGO | 500 W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL (312) 705-7400 FAX (312) 705-7401 WASHINGTON, DC | 1299 Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL (202) 538-8000 FAX (202) 538-8100 LONDON | 16 Old Bailey, London EC4M 7EG, United Kingdom | TEL +44(0) 20 7653 2000 FAX +44(0) 20 7653 2100 TOKYO | NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL +81 3 5510 1711 FAX +81 3 5510 1712 MANNHEIM | Erzbergerstraße 5, 68165 Mannheim, Germany | TEL +49(0) 621 43298 6000 FAX +49(0) 621 43298 6100 01980.51928/4555045.2 MOSCOW | Voentorg Building, 3rd Floor, 10 Vozdvizhenka Street, Moscow 125009, Russia | TEL +7 495 797 3666 FAX +7 495 797 3667 NEW YORK | 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 2 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 3

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