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

Filing 177

MOTION to Take Deposition from Google 30(b)(1) et al. , Plaintiff I/P Engine's Motion for Leave to Take 30(b)(1) Depositions of Defendants, by I/P Engine, Inc.. (Attachments: # 1 Proposed Order Proposed Order)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE
TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS

Plaintiff I/P Engine, Inc. (“I/P Engine”) moves this Court for leave to take the following
number of individual 30(b)(1) depositions from each Defendant:


Three 30(b)(1) depositions each of Google and AOL employees; and



Two 30(b)(1) depositions each of IAC, Target, and Gannett employees.

Because this case involves multiple defendants and a complex technology, the parties
have been attempting to negotiate a reasonable number of depositions – in addition to the ten
permitted under the Federal Rules – that I/P Engine would be permitted to take of the Defendants
without seeking leave of Court. Although the parties have negotiated and agreed to many
discovery issues, one of the remaining issues is the number of Rule 30(b)(1) depositions that I/P
Engine should be permitted to take. For the reasons set forth in the accompanying

DSMDB-3073927

Memorandum of Law, I/P Engine asks this Court for leave to take the following number of
individual 30(b)(1) depositions from each Defendant:


Three 30(b)(1) depositions each of Google and AOL employees; and



Two 30(b)(1) depositions each of IAC, Target, and Gannett employees.

Dated: June 25, 2012

By: /s/ Jeffrey K. Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAnna Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF GOOD FAITH

In accordance with Local Rule 37(E), I certify that counsel conferred in good faith to
resolve this dispute prior to the filing of the present Motion. Counsel’s meet-and-confer efforts
included multiple correspondence and telephonic meet-and-confers.

/s/ Charles J. Monterio, Jr.
Charles J. Monterio, Jr.

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CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of June, 2012, the foregoing PLAINTIFF I/P
ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1) DEPOSITIONS OF
DEFENDANTS, was served via the Court’s CM/ECF system, on the following:

Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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DSMDB-3073927

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

MEMORANDUM IN SUPPORT OF PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE
TO TAKE 30(B)(1) DEPOSITIONS OF DEFENDANTS

I.

INTRODUCTION AND SUMMARY
Although the parties have negotiated and agreed to many discovery issues, one of the

remaining sticking points is the number of Rule 30(b)(1) depositions that I/P Engine should be
permitted to take of each Defendant without having to seek leave of Court. I/P Engine
respectfully requests for leave to take the following number of individual 30(b)(1) depositions
from each Defendant:


Three 30(b)(1) depositions each of Google and AOL employees; and



Two 30(b)(1) depositions each of IAC, Target, and Gannett employees.

Although Defendants have not provided any counter-proposal since the June 15 telephonic
hearing before the Court, it appears that they want to either (1) restrict I/P Engine to taking the
depositions of only those persons that Defendants specifically identify in their Initial
Disclosures, or (2) restrict I/P Engine to taking only the ten depositions initially permitted under
the Federal Rules of Civil Procedure. Because of the nature of this litigation, the discovery

DSMDB-3073802

already produced, and the number of persons identified by Defendants in their Initial Disclosures
and during their 30(b)(6) depositions, I/P Engine’s request is reasonable and necessary. If
I/P Engine is foreclosed from being able to take the twelve additional depositions, it will be
significantly prejudiced.
II.

APPLICABLE LAW
Fed. R. Civ. P. 26(b)(1) governs the scope of discovery, providing that “[p]arties may

obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense” or “appears reasonably calculated to lead to the discovery of admissible evidence.”
Fed. R. Civ. P. 26(b)(1). Rule 26(b) provides “very broad boundaries.” Gutshall v. New Prime,
Inc. (W.D. Va. 2000). This is because, “[i]n practice, a party cannot pursue its claims or
defenses without an adequate opportunity to obtain evidence through the broad discovery
contemplated by the Federal Rules.” Steward v. VCU Health System Authority, 2011 WL
7281603 at *8 (E.D. Va. Nov. 22, 2011). “The provisions of Fed. R Civ. P. 26 afford district
courts broad discretion over discovery matters.” Scott & Stringfellow, LLC v. AIG Commercial
Equipment Finance, Inc., 2011 WL 1827900 at *2 (E.D. Va. May 12, 2011) (citing Crawford-El
v. Britton, 523 U.S. 574, 598-99 (1998)).
III.

ARGUMENT
I/P Engine’s request to take twelve additional depositions over what is permitted under

the Federal Rules is reasonable and necessary. As noted above, this case involves multiple
defendants and very complex technology. Defendants have identified fourteen separate
individuals in their respective Initial Disclosures who they may rely upon at trial. Defendants
identified numerous other individuals during their 30(b)(6) depositions last week—significantly,
many of whom were not identified in Defendants’ Initial Disclosures. I/P Engine’s request to
have the ability to depose a total of twelve additional witnesses because of these facts (three
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30(b)(1) depositions each of Google1 and AOL employees; and two 30(b)(1) depositions each of
IAC, Target, and Gannett employees) is therefore not only reasonable, but necessary for I/P
Engine to be ensured sufficient discovery to prove its claims and defend against Defendants’
positions.
Defendants have rejected each of I/P Engine’s proposals without explanation. Indeed,
Defendants have not proposed any compromise since its May 31 proposal. Instead, they have
only refused I/P Engine’s many proposals without explanation, and continuously repeat that I/P
Engine should be limited to deposing only those persons specifically identified in their respective
Initial Disclosures – referencing an agreement between the parties made in February. Notably,
Defendants would agree to permitting I/P Engine to depose the fourteen persons that they have
specifically identified, but will not agree to permit I/P Engine to depose up to twelve persons
who it believes are necessary in this case. Contrary to the Court’s cautions during the June 15
teleconference, Defendants maintain that such a proposal and arrangement is fair.
I/P Engine has identified, and is in the process of identifying, individuals who have more
relevant knowledge of the issues in this case than the individuals identified in Defendants’ Initial
Disclosures. I/P Engine is simply seeking permission to take a reasonable number of 30(b)(1)
depositions beyond the ten that are initially permitted under Rule 26, as it deems necessary
through the discovery process, without being restricted to only those persons that Defendants
identify and without having to seek leave of Court to do so. Plaintiffs are commonly permitted
1

For example, with respect to Google, I/P Engine would be permitted to take a total of five
depositions of Google, without having to seek leave of this Court for additional depositions.
These depositions would include: one Liability 30(b)(6) deposition and one Damages Rule
30(b)(6) deposition, which have already been taken, and three Rule 30(b)(1) depositions. Google
is the main defendant in this litigation. All non-Google defendants (except AOL and Gannett,
whom will likely testify similarly) have testified during their respective 30(b)(6) depositions that
Google is the only entity with knowledge of the AdWords and AdSense for Search accused
systems. I/P Engine’s request for five depositions is not unreasonable.
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to take depositions beyond the ten under Rule 26 in multiple defendant litigations and when the
facts, as they do here, warrant.
IV.

CONCLUSION
For the foregoing reasons, I/P Engine respectfully requests this Court for leave to take the

following number of individual 30(b)(1) depositions from each Defendant:


Three 30(b)(1) depositions each of Google and AOL employees; and



Two 30(b)(1) depositions each of IAC, Target, and Gannett employees.

Dated: June 25, 2012

By: /s/ Jeffrey K. Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAnna Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of June, 2012, the foregoing MEMORANDUM IN
SUPPORT OF PLAINTIFF I/P ENGINE’S MOTION FOR LEAVE TO TAKE 30(B)(1)
DEPOSITIONS OF DEFENDANTS, was served via the Court’s CM/ECF system, on the
following:

Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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