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)

Exhibit 1 

quinn emanuel

trial lawyers | san francisco

50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL: [phone] FAX: [phone]

June 8, 2012

Charles Monterio
[e-mail]

Re:

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

Dear Charles:
I write in response to your June 5 and June 6 letters. I have responded under separate cover to
your points related to the production of Defendants' documents.
Please let us know whether Mr. Berger is available for deposition the week of July 2-6. We have
been very accommodating of Plaintiff's requests to take the Defendants' depositions in June, and
would appreciate it if you similarly approached discovery scheduling in the spirit of cooperation.
If Mr. Berger is not available earlier, then we will go forward with his deposition on July 11.
Contrary to your assertion, I/P Engine is not "entitled to notice and depose any fact witness it
desires." Until Plaintiff served its deposition notice of Mr. Cook, the parties had been operating
under the terms of the draft stipulation, which limits Plaintiff to 30(b)(6) liability and damages
depositions, and depositions of fact witnesses disclosed in Defendants' initial disclosures. You
have rejected our offer to compromise made in my May 31 letter. 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. F.R.C.P. 30(2)(A)(i).
The dates we have offered for Mr. Cook's deposition are reasonable. Dates are limited not only
by Mr. Cook's availability, but also by the availability of our attorneys, who will be defending
six depositions noticed by I/P Engine in the coming three weeks. In contrast, we requested
quinn emanuel urquhart & sullivan, llp
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deposition dates for the inventors on March 13, but you did not make them available until May
17 and May 31. Please confirm that you will take Mr. Cook's deposition either June 29 or the
week of July 9.
With respect to Liability Topic Nos. 14-17 to IAC, Target, and Gannett, Liability Topic Nos. 1618 to Google, Damages Topic Nos. 10-11 to IAC, Target, and Gannett, and Damages Topic Nos.
17-18 to Google, the statement in my May 31 letter means that we will not be providing
witnesses to testify as to the contention portions of these topics, for the reasons outlined in that
and previous correspondence. We have provided answers to these questions in response to
Plaintiff's contention interrogatories, and to the extent necessary, will supplement these
responses in a timely fashion, including after the court issues its Markman order and after
Plaintiff supplements its infringement contentions on July 2.
Regarding Damages Topic No. 2, Google stands by its objection that this topic is unintelligible,
vague, and ambiguous. Discussions with Plaintiff have failed to illuminate what Plaintiff means
by "percentage of total search advertising results." To the extent that Plaintiff means all search
advertising results in the world, on all search systems, it is unclear how Google could have such
information, or how such information is relevant or reasonably likely to lead to the discovery of
admissible evidence.
With respect to the deposition of Mr. Alferness, you state that I/P Engine is entitled to seven
hours for each noticed 30(b)(6) deposition. That is incorrect; under Plaintiff’s logic, a party
could serve each 30(b)(6) topic in a different notice and claim that it is entitled to hundreds of
hours of deposition time. In addition, Plaintiff has known since my April 23 email that Mr.
Alferness is the designee for topics in the "liability" and "damages" notices (some of which
overlap between notices), but has only raised this issue now. As we have stated, Mr. Alferness is
available for seven hours of deposition, as a 30(b)(6) witness and in his personal capacity, on
June 21 and there should be no reason Plaintiff cannot complete his deposition in that timeframe.
As always, we remain willing to meet and confer to resolve any discovery issues, and hope that
you similarly remain willing to work together on these issues in a timely and efficient manner.

Sincerely,

Jen Ghaussy
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