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 K

Jen Ghaussy
From:
Sent:
To:
Cc:
Subject:

Albert, Dawn Rudenko [[e-mail]]
Thursday, June 14, 2012 2:52 AM
Emily O'Brien; Monterio, Charles; QE-IP Engine; '[e-mail]'
zz-IPEngine; '[e-mail]'; '[e-mail]'
RE: I/P Engine: Deposition of J. Alferness

Hi Emily,
We do not believe that it is necessary to meet and confer on these issues yet again, but we are of course willing to do so
if Defendants believe that it would be helpful. Because these issues directly impact the depositions scheduled for next
week, as well as the amended notice issues, we would like to meet and confer at 11:30 Pacific to either finally resolve
these issues or contact the court at that time for guidance.
As Defendants' position as set forth below is unclear, we again will clarify I/P Engine's position on the number of
depositions issue and Mr. Alferness's 30(b)(6) deposition. I/P Engine would be permitted to take a total of 5 depositions
of Google under the Federal Rules, without having to seek leave of Court for additional depositions. These depositions
would include: 1 Liability 30(b)(6) deposition (7 hours), 1 Damages 30(b)(6) deposition (7 hours) as currently scheduled,
and three 30(b)(1) depositions (the number corresponding to the number of witnesses identified in Google's initial
disclosures). Based upon the complexities of this case, a total of five depositions of Google is reasonable. It appears that
Google's position is that I/P Engine should be entitled to a total of 3 depositions, Mr. Alferness under 30(b)(1) and
30(b)(6), Mr. Furrow under 30(b)(1) and 30(b)(6) and Mr. Cook under 30(b)(1). Again, we simply cannot agree to this
restriction, particularly as previously stated, we do not have an intention to depose Mr. Alferness or Mr. Furrow in their
individual capacity at this time.
Because of this impasse, is Google no longer offering Mr. Furrow for the topics identified in your email of June 13 at 7:00
p.m.? If this is incorrect, please provide us with Mr. Furrow's availability for deposition as previously requested.
We will call you at 11:30 Pacific for the meet and confer.
Regards,
Dawn Rudenko Albert

From: Emily O'Brien [[e-mail]]
Sent: Thursday, June 14, 2012 12:07 AM
To: Albert, Dawn Rudenko; Monterio, Charles; QE-IP Engine; '[e-mail]'
Cc: zz-IPEngine; '[e-mail]'; '[e-mail]'
Subject: RE: I/P Engine: Deposition of J. Alferness

Dawn,
The default rule is 10 depositions. We are happy to follow this rule.
As a compromise, however, the parties previously agreed to the followsing:
“The parties agree that Plaintiff shall have the right to a Rule 30(b)(6) deposition on liability issues lasting no
longer than 7 hours, a Rule 30(b)(6) deposition on damages issues lasting no longer than 7 hours; and the
right to depose each fact witness affiliated with a defendant and who has been disclosed pursuant to Rule
26(a) (currently 14 individuals for all defendants). Defendants have agreed to this expansion of the deposition
limitations under the Federal Rules of Civil Procedure with the express understanding that this will be
substantially all the depositions that plaintiff will take; any additional depositions by plaintiff must be by leave of
Court on motion for good cause shown.”
1

Plaintiff sought to avoid the original agreement, and so we offered another compromise (subject to our clients’
approval):
“Plaintiff would take up to 14 witnesses total from all Defendants, which would not need to be the individuals
listed in the initial disclosures. But, Plaintiff would only be entitled to take from each Defendant an equivalent
number of individual depositions as the number of witnesses listed in that Defendant’s initial disclosures. For
example, because Google listed three employees in its initial disclosures, Plaintiff would only be entitled to take
three individual depositions of Google without leave of the Court, in addition to the 30(b)(6) depositions already
noticed. If Plaintiff chooses to go forward with the deposition of Mr. Cook, then Plaintiff would be entitled to
take the individual depositions of Mr. Cook, Mr. Alferness (as already scheduled), and one additional Google
witness.” You claim we are backing off this proposal, but that is incorrect. It is Plaintiff that has rejected it.
Instead, Plaintiff suggests that even after taking a 7 hour deposition of Mr. Alferness, and then presumably a
deposition of similar length from Mr. Furrow, that Plaintiff could take their depositions yet again in their
personal capacity, or that Plaintiff would be entitled to take three more individual depositions of Google
employees. This is not acceptable and there seems to be little point to debate this further.
Still more, to address your hypothetical concerns regarding not having enough time with Mr. Alferness, we
offered that Plaintiff can take Mr. Alferness in his personal and 30(b)(6) capacity on June 21, and take Mr.
Furrow on the topics outlined below and in his personal capacity on a mutually convenient date. We indicated
that there should be no need for Mr. Cook’s deposition if we follow this path. You have not articulated why this
is incorrect. Instead, you have indicated that intend to reserve the right to take Mr. Alferness’ and Mr. Furrow’s
deposition again in violation of each of our proposals and the FRCP. This is not acceptable either.
Given the above, we see no course but to proceed pursuant to the parties’ initial agreement regarding
depositions, and if that is not acceptable to Plaintiff assert that Plaintiff should be limited to the default rule of
10 depositions total because it has reneged on our agreement, which was the result of many meet and confers
and at a significant cost to Defendants.
If necessary, we are willing to meet and confer tomorrow at 1130 am Pacific to discuss these outstanding
issues, even though we already accommodated Plaintiff’s demand for a meet and confer today, in response to
which Plaintiff informed us 10 minutes before the proposed time that it was not available at that time.
Thank you,
Emily
From: Albert, Dawn Rudenko [[e-mail]]
Sent: Wednesday, June 13, 2012 4:41 PM
To: Emily O'Brien; Monterio, Charles; QE-IP Engine; '[e-mail]'
Cc: zz-IPEngine; '[e-mail]'; '[e-mail]'
Subject: Re: I/P Engine: Deposition of J. Alferness

Hi Emily, 

If the topics are split, it may be workable. We're analyzing and will get back to you in the morning. What is Mr. Furrow's 
availability for deposition? 

Also, we'd like clarification about your statement that Messrs Furrow and Alferness will be provided "one time" each. By 
this are you seeking to provide them individually as well? If so, as we've explained previously, although we have no 
current need to depose either under Rule 30(b)(1), we cannot agree to be bound by such a limitation at this point in the 
case. 

As we've also previously made clear, we cannot be restricted to depose only those persons that Defendants have 
identified in their initial disclosures. It is disheartening that after days of back and forth on this issue, and I/P Engine's 
agreement to accept Defendants' earlier counter proposal, we are back to square one. Are we to understanding that 
2

Defendants' counter proposal is no longer acceptable to Defendants? If so, I think we've exhausted this issue, and should 
contact the court in the morning to seek guidance.  

We await Defendants' response re: the above. 

Regards, 
Dawn  
Dawn Rudenko Albert  
Dickstein Shapiro LLP  
(212) 277‐6715
From: Emily O'Brien [mailto:[e-mail]]
Sent: Wednesday, June 13, 2012 07:00 PM
To: Monterio, Charles; QE-IP Engine <[e-mail]>; Stephen E. Noona <[e-mail]>
Cc: zz-IPEngine; 'Donald C. Schultz' <[e-mail]>; W. Ryan Snow <[e-mail]>
Subject: RE: I/P Engine: Deposition of J. Alferness

Charles,
I write to follow up on our email correspondence yesterday, and Plaintiff's telephone conference with
Mr. Noona earlier today.
In order to resolve all of the outstanding issues, Google proposes the following:
Google will withdraw some of the topics for which Mr. Alferness has been designated, and instead
designate Bartholomew Furrow (listed in Google's initial disclosures) in response to these topics.
Specifically, Mr. Furrow will testify in response to Liability Topic Nos. 2-5, 8-9, subject to all
objections previously asserted and consistent with Google's prior representations regarding these
topics. Both Mr. Alferness and Mr. Furrow will be provided one time for seven hour depositions each.
This should alleviate Plaintiff's concern that it will not have sufficient time to cover all of the topics for
which Mr. Alferness is currently designated in a seven hour period.
Additionally, we need confirmation that Plaintiff will abide by the original terms of the parties'
agreement on depositions of defendants. Specifically, Plaintiff shall have the right to a Rule 30(b)(6)
deposition on liability issues lasting no longer than 7 hours, a Rule 30(b)(6) deposition on damages
issues lasting no longer than 7 hours, and the right to depose each fact witness affiliated with a
defendant and who has been disclosed pursuant to Rule 26(a). Under this agreement Plaintiff would
not be entitled to take the deposition of Mr. Cook, whose deposition should be unnecessary as
Plaintiff should be able to obtain sufficient information between Mr. Alferness and Mr. Furrow.
Please let us know if this is acceptable.
Thank you,
Emily
Emily O'Brien
Associate,
Quinn Emanuel Urquhart & Sullivan, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
415-875-6323 Direct
415.875.6600 Main Office Number
415.875.6700 FAX

3

[e-mail]
www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended
recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any
review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately
by e-mail, and delete the original message.

From: Monterio, Charles [mailto:[e-mail]]
Sent: Wednesday, June 13, 2012 3:09 PM
To: QE-IP Engine; Stephen E. Noona
Cc: zz-IPEngine; 'Donald C. Schultz'; W. Ryan Snow
Subject: I/P Engine: Deposition of J. Alferness

Emily,
Is there any update as to Google's position with respect to I/P Engine's 30(b)(6) deposition of designee Jonathan
Alferness? I know our respective local counsels discussed this issue earlier.
Charles J. Monterio, Jr.
Associate
Dickstein Shapiro LLP
1825 Eye Street NW | Washington, DC 20006
Tel [phone]| Fax [phone]
[e-mail]
Confidentiality Statement
This email message and any attached files are confidential and are intended solely for the use of the addressee(s) named above. This communication may contain
material protected by attorney-client, work product, or other privileges. If you are not the intended recipient or person responsible for delivering this confidential
communication to the intended recipient, you have received this communication in error, and any review, use, dissemination, forwarding, printing, copying, or other
distribution of this email message and any attached files is strictly prohibited. Dickstein Shapiro reserves the right to monitor any communication that is created,
received, or sent on its network. If you have received this confidential communication in error, please notify the sender immediately by reply email message and
permanently delete the original message.
To reply to our email administrator directly, send an email to [e-mail]
Dickstein Shapiro LLP
www.DicksteinShapiro.com

4