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

Filing 187

Reply to Motion re 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, filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1)(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

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

INTRODUCTION
Defendants’ Opposition misrepresents the facts. First, Defendants repeatedly say that

there is “no legitimate basis to depart from the parties’ agreement” (see, e.g., Opposition at 2 and
5), which is not true. Second, Defendants say that I/P Engine has not identified “a single witness
not in the Defendants’ initial disclosures that it supposedly needs to depose to justify abandoning
the parties’ agreement.” Opposition at 2; see also id. at 6 (“Critically, Plaintiff has failed to
identify even a single witness that it needs to depose who is not covered by the parties’
agreement.”). This is equally untrue; and the reason that this motion is now before the Court.
Indeed, in Defendants’ own words, “[o]n May 11, 2012, Plaintiff sought a deposition of a
Google witness who was not identified in the parties’ initial disclosures.” Id. at 4. Specifically,
over two months ago (and before I/P Engine took a single deposition), I/P Engine noticed Mr.
Cook for deposition. The notice was a direct result of I/P Engine’s review of the documents
produced by Google by the May 30 deadline, which was imposed by the Court on May 2, 2012.

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The only justification given by Defendants in refusing to provide Mr. Cook is the “February
agreement.” As their Opposition reflects, Defendants continue to assert that I/P Engine should
be limited to deposing only those persons specifically identified in their respective Initial
Disclosures; an arrangement that is unfair.
As set forth in its moving papers and further below, it is because of I/P Engine’s review
of the produced documents and testimony of Defendants’ own witnesses that I/P Engine needs to
depose persons other than those expressly identified by Defendants.
II.

ARGUMENT
A.

Information Uncovered During Discovery Provides the Need to Depose
Persons Not Expressly Identified by Defendants in their Initial Disclosures

Since February, I/P Engine has learned a great deal about Defendants and their accused
systems. As this Court may recall, Defendants failed to produce most of the documents in this
case until they were ordered to do so by the end of May. As soon as I/P Engine was aware of the
need to depose individuals beyond those identified in Defendants’ Initial Disclosures (in May),
I/P Engine notified Defendants and attempted to resolve the issue. Since then, I/P Engine has
reviewed and analyzed the documents produced in May, and deposed Defendants in June so that
it could prepare for the expert reports due in July.
The information culled from the production and initial depositions has established that
many persons who were not identified by Defendants in their Initial Disclosures appear to have
highly relevant, necessary information. Despite this fact, Defendants have flatly refused to
provide any witnesses who they themselves have not identified in their disclosures without order
of the Court. Ex. 1 (“To the extent that Plaintiff does not wish to abide by the terms of the
agreement or our proposed compromise, the Federal Rules of Civil Procedure apply, and
Plaintiff is limited to 10 depositions before it must seek leave of court.”). The only justification
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that Defendants have given for this refusal is the “February agreement.” As indicated in I/P
Engine’s moving brief, Defendants provide no other justification for saying that it is okay for I/P
Engine to depose 14 people who they have unilaterally decided I/P Engine may depose and not
allowing I/P Engine to depose up to 12 people who it has determined it needs to depose.
B.

I/P Engine has Identified Several Witnesses Who it May Become Necessary
to Depose

Fact discovery does not end until September 4, 2012. And I/P Engine’s review of
Defendants’ documents (many of which having been produced over the past several weeks)
remains ongoing. Nevertheless, based on I/P Engine’s current review of Defendants’ produced
documents (most of which were produced in May and later) and the 30(b)(6) depositions of
Defendants taken thus far (all of which were taken in June), I/P Engine has identified certain
individuals who appear to have more relevant knowledge of the issues in this case than those
individuals identified in Defendants’ Initial Disclosures (which were served in February).
For example, Google’s Initial Disclosures do not identify Daniel Wright, Derek Cook, or
any marketing person responsible for Google AdWords and/or AdSense for Search – each
individuals who I/P Engine plans to, or may, depose in this case based upon discovery thus far.
As another example, Target identified Mr. David Peterson in its Initial Disclosures, but Target’s
30(b)(6) witness, Mr. Christopherson, identified Mr. Patrick Johnston as the most relevant person
at Target regarding its use of Google’s AdSense for Search. Therefore, the individuals identified
in Defendants’ February Initial Disclosures are not the “best indicator” of who should be
deposed in this case given the current discovery.
III.

CONCLUSION
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
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through the discovery process, without being restricted to only those persons who Defendants
identify and without having to seek leave of Court to do so. For the foregoing reasons, I/P
Engine respectfully requests this Court for leave to take: 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: July 9, 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
Dawn Rudenko Albert
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 9th day of July, 2012, the foregoing REPLY 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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