I/P Engine, Inc. v. AOL, Inc. et al
Filing
180
Declaration re 179 Opposition, of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiff's Motion for Leave to Take 30(b)(1) Depositions by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (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)(Noona, Stephen)
EXHIBIT A
Jen Ghaussy
From:
Sent:
To:
Cc:
Subject:
David Perlson
Tuesday, January 31, 2012 9:23 AM
Brothers, Kenneth
zz-IPEngine; Noona, Stephen E.; QE-IP Engine; Margaret P. Kammerud
RE: I/P Engine v. AOL, et al.
Ken, since it seems to be your central concern, if there are witnesses Plaintiff needs beyond
those in the Rule 26(a) disclosures, please let us know. We should integrate that into the
discussion, as perhaps it could eliminate or at least narrow any dispute we may have.
Additionally, all this is somewhat difficult to address without a specific proposal. Please
send us the draft joint motion you would propose filing so that we may review and comment as
needed.
Thanks
‐‐‐‐‐Original Message‐‐‐‐‐
From: Brothers, Kenneth [mailto:BrothersK@dicksteinshapiro.com]
Sent: Tuesday, January 31, 2012 7:32 AM
To: David Perlson
Cc: zz‐IPEngine; Noona, Stephen E.; QE‐IP Engine; Margaret P. Kammerud
Subject: RE: I/P Engine v. AOL, et al.
The fact that down the road defendants say they would not object to a modification of the
order if they all agree that certain conditions are met. I cannot eliminate the possibility
that Plaintiff may seek a deposition of a witness not on the 26(a) disclosures, and that is
an explicit basis in your proposal for defendants objecting if Plaintiff notices an 11th
deposition. I don't want to risk a specious defense objection down the line that threatens
the entire discovery plan. The time do this is now not later.
________________________________________
From: David Perlson [davidperlson@quinnemanuel.com]
Sent: Tuesday, January 31, 2012 10:16 AM
To: Brothers, Kenneth
Cc: zz‐IPEngine; Noona, Stephen E.; QE‐IP Engine; Margaret P. Kammerud
Subject: Re: I/P Engine v. AOL, et al.
Ken, What discretion are you referring to that you seek to remove from our proposal?
On Jan 30, 2012, at 7:33 PM, "Brothers, Kenneth" wrote:
> We agree now, now later, to the numbers We take the issue out of defendants' discretion at
the latter part of discovery. We request the court amend the order up front instead of
waiting until the end. Local counsel advise this should be raised up front. If there is no
difference to defendants, then we will prepare either a joint or an unopposed motion to this
effect. Please advise re defendants' preference.
> ________________________________________
> From: David Perlson [davidperlson@quinnemanuel.com]
> Sent: Monday, January 30, 2012 6:44 PM
> To: Brothers, Kenneth
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine; Margaret P. Kammerud
> Subject: RE: I/P Engine v. AOL, et al.
>
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> Ken, can you please explain the difference between what you have proposed and what we have
represented to you?
>
> David
>
> From: Brothers, Kenneth [mailto:BrothersK@dicksteinshapiro.com]
> Sent: Friday, January 27, 2012 1:59 PM
> To: David Perlson
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine; Margaret P. Kammerud&
> Subject: RE: I/P Engine v. AOL, et al.
>
> David:
>
> Thank you for this clarification. We believe that a motion seeking to modify the federal
rules is necessary. Hopefully, we can agree on a joint motion. Please advise whether
defendants will agree to the following; if not we will file a motion on just the first three
points:
>
>
> • one 30(b)(6) deposition on liability issues for each defendant,
>
> • one 30(b)(6) deposition on damages issues for each defendant, and
>
> • 30(b)(1) depositions equal to the number of individuals that each defendant
disclosed in its Rule 26(a)(1) disclosures as individuals likely to have discoverable
information .
>
> • 14 hours of deposition time of each of the inventors, which would include both
30(b)(6) and 30(b)(1) deposition time.
>
> ________________________________
>
> From: David Perlson [mailto:davidperlson@quinnemanuel.com]
> Sent: Friday, January 27, 2012 3:57 PM
> To: David Perlson; Brothers, Kenneth; Margaret P. Kammerud
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: RE: I/P Engine v. AOL, et al.
> Ken, this is the email I was referring to today when I suggested that there should be no
need for Plaintiff to file any motion on the deposition point.
>
> From: David Perlson
> Sent: Monday, December 19, 2011 4:02 PM
> To: David Perlson; Brothers, Kenneth; Margaret P. Kammerud
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: RE: I/P Engine v. AOL, et al.
>
> Ken, based on our prior communications, it seems unlikely that we would be able to reach
agreement on any firm limits apart of the default in the Federal Rules. However, in order to
demonstrate that Defendants intend to proceed in a good faith and reasonable manner regarding
depositions, Defendants can represent that they would not object, on the basis of it being
over the 10 deposition limit, should Plaintiff seek one Rule 30(b)(6) deposition of
reasonable scope (e.g. 7 hrs) for each Defendant and to depose the witnesses currently on
each Defendants initial disclosures (may of which would likely be Rule 30(b)(6) designees).
However, Defendants reserve their right to raise the 10 deposition limit in the federal rules
as to these witnesses and others, should Plaintiff seek to depose additional witnesses (i.e.
if Plaintiff seeks 5 individual depositions of IAC witnesses not in the initial disclosures).
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Additionally, Plaintiff would agree to 14 hours of deposition testimony of each inventor in
their personal capacity.
> Please let us know if this is acceptable to Plaintiff.
> David
>
>
> From: David Perlson
> Sent: Thursday, December 15, 2011 4:16 PM
> To: Brothers, Kenneth; Margaret P. Kammerud
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: RE: I/P Engine v. AOL, et al.
>
> Ken, I think we are close.
>
> Please see redlines attached which should hopefully be self explanatory. If not, we can
discuss on our call tomorrow.
>
> David
>
> From: Brothers, Kenneth [mailto:BrothersK@dicksteinshapiro.com]
> Sent: Thursday, December 15, 2011 10:24 AM
> To: Margaret P. Kammerud
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: RE: I/P Engine v. AOL, et al.
>
> Meg:
>
> Per our meet and confer yesterday, enclosed are redline markups of the protective order and
discovery agreements. I accepted your edits first. I have highlighted the areas where we
have competing proposals. I also have included a couple of last‐ditch compromise proposals
that will be withdrawn if not accepted during our meet and confer scheduled for tomorrow
afternoon.
>
> Ken
>
>
>
>
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> From: Margaret P. Kammerud [mailto:megkammerud@quinnemanuel.com]
> Sent: Tuesday, December 13, 2011 5:22 PM
> To: Brothers, Kenneth
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: RE: I/P Engine v. AOL, et al.
> Ken,
>
> When can we expect Plaintiff’s feedback on the latest drafts of the protective order and
discovery agreements?
>
> Thanks,
> Meg
>
> From: Margaret P. Kammerud
> Sent: Wednesday, December 07, 2011 12:53 PM
> To: 'Brothers, Kenneth'
> Cc: zz‐IPEngine; 'Noona, Stephen E.'; QE‐IP Engine
> Subject: I/P Engine v. AOL, et al.
>
> Ken,
>
> Attached are the most recent drafts of the protective order, discovery plan, and document
production agreement. Our changes are redlined and highlighted in yellow. Plaintiff’s last
edits also remain redlined in the document, but are not highlighted except for the two
sections in the PO that we may have to raise with the Court.
>
> Our changes are explained below.
>
> Protective Order
>
> On page 3, we removed the provision allowing confidential information to be shared with
Plaintiff’s Chief Operations Officer. It is unfounded for a company leader who engages in
competitive business decisions to have access to highly sensitive, confidential business
information produced in a litigation.
>
> On page 5, we put back in the provision granting the producing party the discretion to
select the location at which source code is produced. The protective order ensures that the
parties will cooperate in good faith in determining a location for source code production,
but in the end, each party must have the ability to best protect its source code.
>
> On page 10, we fixed a minor nit concerning the number of experts or consultants who may
access source code. We agree with your proposal to allow four outside experts or consultants
access.
>
> On page 15, we removed the language stating that limits on patent prosecution do not apply
to reexaminations. This does not add anything to the agreement due to the fact that
reexaminations already are not included in the prosecution limits.
>
> On pages 16 and 17 we adjusted the limitations on objecting to experts in order to clarify
the reasonableness requirements.
>
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> On page 18 you added the phrase “or otherwise provided by the Federal Rules of Civil
Procedure or Federal Rules of Evidence.” Could you please explain why you believe this is
necessary?
>
>
> Discovery Plan
>
> On page 6 we have added the phrase “endeavor in good faith to” in regards to providing an
initial privilege log on or before January 30, 2012. Although we do not foresee any delay
in the preparation and service of the initial privilege logs, this allows the parties to deal
with any unforeseen delays that arise without inconveniencing the Court.
>
>
> Document Production Agreement
>
> On pages 7 and 8 we adjusted the limitations on custodians. Our proposal allows the
receiving party to seek production from five custodians from each producing party with the
option of seeking production from another three custodians in the event the requesting party
believes in good faith that such additional custodians are necessary. The receiving party
must go to the court to seek discovery from more than eight custodians per producing party.
>
> The cost shifting provision will apply if the receiving party seeks production from more
than ten custodians from any one producing party. This change makes the cost‐shifting
provision party‐specific. It also ensures that no party will harass another party of
unnecessarily seek excessive custodial information.
>
> On page 9, we reverted to the language previously included in regarding to PDAs, voicemails
and instant messages. We believe that the language you had proposed was both confusing and
overbroad.
>
> Best,
> Meg
>
>
> Margaret P. Kammerud
> Quinn Emanuel Urquhart & Sullivan, LLP
>
> 50 California Street, 22nd Floor
> San Francisco, CA 94111
> 415‐875‐6316 Direct
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> 415.875.6700 FAX
> megkammerud@quinnemanuel.com
> www.quinnemanuel.com
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> ________________________________
>
> ________________________________
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