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

Filing 287

MOTION to Expedite Motion and Memorandum in Support of its Motion to Shorten Defendants' Time to Respond to I/P Engine's Second and Third Motions for Discovery Sanctions Regarding Untimely Discovery Responses by I/P Engine, Inc.. (Attachments: # 1 Proposed Order)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
)
v.
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)
AOL, INC. et al.,
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)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE’S MOTION AND MEMORANDUM IN SUPPORT OF ITS
MOTION TO SHORTEN DEFENDANTS’ TIME TO RESPOND TO
(1) PLAINTIFF I/P ENGINE INC.’S SECOND MOTION FOR DISCOVERY
SANCTIONS REGARDING UNTIMELY DISCOVERY RESPONSES AND
(2) PLAINTIFF I/P ENGINE INC.’S THIRD MOTION FOR DISCOVERY SANCTIONS
REGARDING UNTIMELY DISCOVERY RESPONSES
Plaintiff I/P Engine, Inc. (“I/P Engine”) moves and offers this memorandum in support of
its motion to shorten Defendants’ time to respond to (1) Plaintiff I/P Engine Inc.’s Second
Motion for Discovery Sanctions Regarding Untimely Discovery Responses and (2) Plaintiff I/P
Engine Inc.’s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses.
With respect to Plaintiff I/P Engine Inc.’s Second Motion for Discovery Sanctions
Regarding Untimely Discovery Responses, three business days before the close of fact discovery
and five weeks after the service of I/P Engine’s damages expert report, Defendants completely
changed several interrogatory responses and produced new evidence that it previously had
concealed. Simultaneous with these last-minute disclosures, Defendants served an expert
damages report that criticized I/P Engine’s damages expert for relying on Defendants’
documents, interrogatory responses, and Rule 30(b)(6) testimony, instead of the previously

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concealed evidence. These discovery responses have created substantial prejudice for I/P
Engine.
With respect to Plaintiff I/P Engine Inc.’s Third Motion for Discovery Sanctions
Regarding Untimely Discovery Responses, on September 14, 10 days after the close of fact
discovery, Google produced more than 250 pages of source code along with supplemental
interrogatory responses asserting that their new production proves the accused systems did not
infringe the patents-in-suit prior to 2010. The new production and interrogatory responses came
after the close of fact discovery, after the close of expert discovery, and after service of all expert
reports. Google’s untimely production of these pages of source code along with their
supplemental interrogatory responses reflects a disregard for discovery procedures in this judicial
district and, again, creates tremendous prejudice for I/P Engine.
As trial is now less than a month away, I/P Engine is left without sufficient time and
opportunity to verify, refute or even depose Defendants’ fact witnesses regarding any of these
new theories or evidence. There is no way for I/P Engine to cure this harm and preserve the
pretrial schedule and trial date. Delay would only reward Google; I/P Engine is not seeking and
would object to any delay. Preclusion of this untimely production is the appropriate remedy. I/P
Engine’s Second and Third Motions for Discovery Sanctions request such relief from this Court,
however, given that trial is set for October 16, 2012, time is of the essence.
Local Rule 7(F)(1) provides that a party has eleven (11) days to respond to a motion
(which is increased by three (3) days by service by electronic means), “unless otherwise directed
by the Court.” Good cause exists for this Court to direct a shorter time.
In an effort to expedite the briefing process, I/P Engine respectfully requests this Court
require Defendants to respond to I/P Engine’s Second and Third Motions for Discovery

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Sanctions on or before September 25, 2012. Further, I/P Engine will waive its right to reply to
Defendants’ responses and requests an oral hearing before this Court on both motions to be heard
on September 27 or September 28, 2012, or at another time convenient for this Court. In the
alternative, I/P Engine respectfully requests this Court require the parties to brief these motions
in accordance with the schedule proposed in the Agreed Order filed by the parties on September
20, 2012 (Defendants shall file any responsive brief on or before September 27, 2012. I/P
Engine shall file any reply brief on or before October 1, 2012).
Dated: September 21, 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 GOOD FAITH

In accordance with Local Rule 37(E), I certify that counsel conferred in good faith to
resolve this dispute prior to the filing of the present Motion. Counsel’s meet-and-confer efforts
included correspondence and telephonic meet-and-confers.

/s/ Charles J. Monterio, Jr.
Charles J. Monterio, Jr.

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CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of September, 2012, the foregoing PLAINTIFF I/P
ENGINE’S MOTION AND MEMORANDUM IN SUPPORT OF ITS MOTION TO
SHORTEN DEFENDANTS’ TIME TO RESPOND TO (1) PLAINTIFF I/P ENGINE
INC.’S SECOND MOTION FOR DISCOVERY SANCTIONS REGARDING UNTIMELY
DISCOVERY RESPONSES AND (2) PLAINTIFF I/P ENGINE INC.’S THIRD MOTION
FOR DISCOVERY SANCTIONS REGARDING UNTIMELY DISCOVERY
RESPONSES, was served via the Court’s CM/ECF system and via Hand Delivery, 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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