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 U

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
v.

Civil Action No. 2:11-cv-512

AOL, INC., et al.,
Defendants.

DEFENDANT TARGET CORPORATION'S OBJECTIONS AND RESPONSES TO
PLAINTIFF I/P ENGINE, INC.’S FIRST DAMAGES RULE 30(b)(6) NOTICE OF
DEPOSITION
Pursuant to Federal Rules of Civil Procedure 26 and 30, Defendant Target
Corporation ("Target") hereby objects and responds in writing to Plaintiff's First Liability
Rule 30(b)(6) Notice of Deposition of Target.
GENERAL OBJECTIONS
Target makes the following general objections to each and every definition, instruction,
and interrogatory made in Plaintiff I/P Engine, Inc.'s ("I/P Engine") First Liability Rule
30(b)(6) Notice of Deposition of Target, dated April 2, 2012. Each of these objections is
incorporated into the Specific Objections set forth below, whether or not separately set forth
therein. By responding to any of the topics or failing to specifically refer to or specify any
particular General Objection in response to a particular topic, Target does not waive any of these

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General Objections, nor admit or concede the appropriateness of any purported topic or any
assumptions contained therein.
1. Target objects to the date and location set in the notice for the deposition. Plaintiff has
acknowledged that the date and location set in the notice are placeholders only.
2. Nothing in these responses should be construed as waiving rights or objections that
might otherwise be available to Target nor should Target's responses to any of these topics be
deemed an admission of relevancy, materiality, or admissibility in evidence of the topic or the
response thereto.
3. Target objects to each topic to the extent that it seeks the disclosure of information
protected from disclosure by the attorney-client privilege, the attorney work product doctrine or
any other applicable privilege or protection as provided by law. Target will not produce such
privileged or protected information, and any inadvertent disclosure of any privileged or protected
information shall not be deemed a waiver of any privilege. Target will not be including on its
privilege log information created after the filing date of this action.
4. Target objects to each topic, and to the definitions and instructions included therewith,
to the extent it purports to impose upon Target obligations broader than, or inconsistent with, the
Federal Rules of Civil Procedure or the Local Rules and Orders of this Court.
5. Target objects to each topic to the extent that it seeks information not relevant to this
litigation nor reasonably calculated to lead to the discovery of admissible evidence. Specifically,
Target objects to each of the topics to the extent they seek information about products not
accused of infringing the patents-in-issue.
6. Target objects to each topic to the extent that it is not reasonably limited in time or
scope.

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7. Target objects to each topic on the ground that it seeks information protected by
privacy law and/or policy.
8. Target objects to each topic and to the definitions and instructions included
therewith pursuant to Federal Rule of Civil Procedure 26(b)(2)(i) to the extent that they
purport to require the disclosure of information that is more readily available and/or more
appropriately obtainable through other means of discovery.
9. Target objects to each topic to the extent that such topic prematurely seeks the
production of information and documents in advance of the dates set by the Federal Rules of
Civil Procedure, the Local Rules, the Docket Control Order entered in this case, the Discovery
Order entered in this case, and any other relevant discovery orders entered in this case.
10. Target objects to each topic as unduly burdensome to the extent it seeks information
about aspects of the accused technology that are not related to this case. The burden and expense
associated with producing such information grossly outweighs its benefit and relevance.
11. Target objects to I/P Engine's definition of "Defendant Target Corporation" as overly
broad and unduly burdensome, to the extent that includes related entities or divisions of Target,
directors, officers, present and former employees, agents, representatives, and attorneys of such
entities. Target will not respond concerning any defendant other than Target.
12. Target objects to each topic to the extent that the words and phrases used therein are
vague, ambiguous, misleading and/or overbroad. Target specifically objects to the definitions of
the terms "Ad Coverage," "Ad Depth," and "other search advertising systems."
13. Target responds to these topics based upon its current understanding and reserves the
right to supplement its responses if any additional information is identified at a later time and to
make any additional objections that may become apparent.

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14. By responding to these topics, Target does not waive or intend to waive, but
expressly reserves, all of its statements, reservations, and objections, both general and specific,
set forth in these responses, even though Target may in some instances disclose information over
the statements, reservations, and objections contained herein.
STATEMENT ON SUPPLEMENTATION
Target's investigation in this action is ongoing, and Target reserves the right to rely on
and introduce information in addition to any information provided in response to this notice at
the trial of this matter or in other related proceedings. Responses to Plaintiff’s topics are also
limited by the vagueness and insufficiency of Plaintiff’s infringement contentions.
TOPIC 1:
The amount and percentage of Target’s gross and net search advertising revenue derived
from:
a.

Google AdWords;

b.

Google AdSense for Search;

c.

systems Target intends to rely upon as non-infringing alternatives; and

d.

other search advertising systems.

RESPONSE TO TOPIC 1:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face, including to the extent that it is not limited to the accused products;
(ii) it seeks information that is not relevant nor reasonably calculated to lead to the discovery of
admissible evidence, including to the extent that it seeks information about "other search
advertising systems"; (iii) it seeks information that is properly the subject of a contention
interrogatory, not the subject of a request for a 30(b)(6) witness topic; and (iv) it is vague and

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ambiguous, particularly with respect to the terms "derived from" and "other search advertising
systems."
Subject to its objections, Target will produce a corporate designee to testify generally
regarding the revenues, costs and profits of its use of the accused aspects of Google AdSense for
Search, to the extent that Target understands what is accused based on Plaintiff's infringement
contentions, and to the extent tracked by Target.
TOPIC 2:
The actual, budgeted and projected sales/revenues (gross and net), profits and losses,
incremental and marginal profits, and direct and overhead/allocated costs of Target’s use of
Google AdWords and Google AdSense for Search including, but not limited to, revenue per
search calculations accounting for Ad Coverage, Ad Depth, click through rate, and cost per click.
RESPONSE TO TOPIC 2:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face, including to the extent that it is not limited to the accused aspects of
AdWords and AdSense for Search; (ii) it seeks information that is not relevant nor reasonably
calculated to lead to the discovery of admissible evidence; and (iii) it is vague and ambiguous,
particularly with respect to the terms "Ad Coverage," "Ad Depth," "click through rate," and "cost
per click."
Subject to its objections, Target will produce a corporate designee to testify generally
regarding the revenues, costs and profits of its use of the accused aspects of Google AdSense for
Search, to the extent that Target understands what is accused based on Plaintiff's infringement
contentions, and to the extent tracked by Target.

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TOPIC 3:
Target’s revenue sharing and profit sharing arrangements related to Google AdSense for
Search or Google AdWords with co-defendant Google, Inc.
RESPONSE TO TOPIC 3:
Subject to its objections, Target will produce a corporate designee to testify generally on
the topic of the revenue Target receives as an AdSense partner, to the extent known.
TOPIC 4:
The actual, budgeted and projected sales/revenues (gross and net), profits and losses,
incremental and marginal profits, and direct and overhead/allocated costs of any non-infringing
alternatives Target intends to rely upon to support a claim or defense.
RESPONSE TO TOPIC 4:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; (ii) it seeks information that is not relevant nor reasonably calculated
to lead to the discovery of admissible evidence; and (iii) it seeks information that is properly the
subject of a contention interrogatory, not the subject of a request for a 30(b)(6) witness topic.
Target also objects to this topic to the extent it seeks information protected by the attorney-client
privilege, the work product doctrine, the common interest privilege, or any other applicable
privilege or protection.
TOPIC 5:
Target’s awareness of Google’s pricing (including without limitation revenue sharing)
strategies, Target’s evaluations of competitor’s prices and pricing strategies, and Target’s

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understanding of Google’s determination of prices to charge for allowing Target to use Google
AdWords and Google AdSense for Search.
RESPONSE TO TOPIC 5:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; (ii) it seeks information that is not relevant nor reasonably calculated
to lead to the discovery of admissible evidence; (iii) it is vague and ambiguous, particularly with
respect to the terms "strategies," "determination of prices," and "competitors"; and (iv) it seeks
information outside the scope of Target's knowledge. Furthermore, this topic is based on the
false premise that Google charges Target to use AdWords and AdSense for Search.
TOPIC 6:
Target’s awareness of any comparisons and evaluations directed to the differences
between the average revenue per search, gross and net revenue, ad search results quality, and
conversion rates of Google AdWords and Google AdSense for Search, and of the non-infringing
alternatives on which Target intends to rely upon to support a claim and defense.
RESPONSE TO TOPIC 6:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; (ii) it seeks information that is not relevant nor reasonably calculated
to lead to the discovery of admissible evidence; (iii) it is unintelligible, particularly as to the
phrase "the differences between the average revenue per search, gross and net revenue, ad search
results quality, and conversion rates"; (iv) it seeks information that is properly the subject of a
contention interrogatory, not the subject of a request for a 30(b)(6) witness topic; and (v) it seeks
information outside the scope of Target's knowledge. Target also objects to this topic to the

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extent it seeks information protected by the attorney-client privilege, the work product doctrine,
the common interest privilege, or any other applicable privilege or protection.
TOPIC 7:
Any license agreements and/or covenants not to sue known by Target that are related to
Google AdWords or Google AdSense for Search including, but not limited to, Google’s
licensing policies and strategies for Google AdWords and Google AdSense for Search.
RESPONSE TO TOPIC 7:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; (ii) it seeks information that is not relevant nor reasonably calculated
to lead to the discovery of admissible evidence; (iii) it is vague and ambiguous, particularly with
respect to the term "licensing policies and strategies"; and (iv) it seeks information outside the
scope of Target's knowledge.
TOPIC 8:
Agreements to which Target is a party relating to search advertising patents or in which
rights in search advertising technologies are granted.
RESPONSE TO TOPIC 8:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face, particularly to the extent that it is not limited to the accused products;
(ii) it seeks information that is not relevant nor reasonably calculated to lead to the discovery of
admissible evidence; (iii) it is vague and ambiguous, particularly with respect to the terms
"search advertising patents" and "search advertising technologies."

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TOPIC 9:
Google’s indemnification of Target in this action, including all communications relating
to indemnification, related to Google AdWords and Google AdSense for Search.
RESPONSE TO TOPIC 9:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; and (ii) it seeks information that is not relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Target also objects to this topic to the
extent it seeks information protected by the attorney-client privilege, the work product doctrine,
the common interest privilege, or any other applicable privilege or protection.
TOPIC 10:
The complete and full factual basis for Target’s assertion of paragraph 140 of its First
Amended Answer asserting “Plaintiff’s claims are barred, in whole or in part, by the equitable
doctrines of laches and estoppel.”
RESPONSE TO TOPIC 10:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; and (ii) it seeks information that is properly the subject of a
contention interrogatory, not the subject of a request for a 30(b)(6) witness topic. Target also
objects to this topic to the extent it seeks information protected by the attorney-client privilege,
the work product doctrine, the common interest privilege, or any other applicable privilege or
protection.

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TOPIC 11:
The complete and full factual basis for Target’s assertion of paragraph 141 of its First
Amended Answer asserting “Plaintiff’s ability to recover damages is limited by the provisions of
35 U.S.C. §§ 286-287.”
RESPONSE TO TOPIC 11:
Target objects to this topic on the grounds that: (i) it is overly broad, unduly burdensome
and oppressive on its face; and (ii) it seeks information that is properly the subject of a
contention interrogatory, not the subject of a request for a 30(b)(6) witness topic. Target also
objects to this topic to the extent it seeks information protected by the attorney-client privilege,
the work product doctrine, the common interest privilege, or any other applicable privilege or
protection.

Dated: April 23, 2012

By: /s/ David A. Perlson
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
By: /s/ Stephen E. Noona
Stephen E. Noona
KAUFMAN & CANOLES, P.C.
150 West Main Street
Post Office Box 3037
Norfolk, VA 23514
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant Target Corporation

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CERTIFICATE OF SERVICE
I hereby certify that April 23, 2012, I will serve the foregoing by electronic mail to the
following:
Jeffrey K. Sherwood
Kenneth W. Brothers
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiff I/P Engine, Inc.
Stephen E. Noona
Kaufman & Canoles, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510-1665
T [phone]
F [phone]
[e-mail]
Counsel for Defendants
Dated: April 23, 2012

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By: /s/ Jennifer Ghaussy_________________
Jennifer Ghaussy
QUINN EMANUEL URQUHART &
SULLIVAN LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
415-875-6600
Telephone: [phone]
Facsimile: [phone]