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

Filing 309

Memorandum in Support re 277 MOTION for Sanctions Plaintiff I/P Engine, Inc.'s Second Motion for Discovery Sanctions Regarding Untimely Discovery Responses filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Proposed Order)(Sherwood, Jeffrey)

Exhibit 3 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
Civ. Action No. 2:11-cv-512
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
PLAINTIFF I/P ENGINE, INC.’S
FOURTH SET OF INTERROGATORIES TO DEFENDANT GOOGLE, INC.
Plaintiff I/P Engine, Inc. (“I/P Engine”) directs the following Interrogatories to Defendant
Google, Inc. (“Google”) to be answered in accordance with Rule 33 of the Federal Rules of Civil
Procedure and Rule 26 of the Local Rules of the United States District Court for the Eastern
District of Virginia. Google is required to answer these Interrogatories separately and fully in
writing, under oath, and to serve a copy of its answers upon counsel for I/P Engine, Dickstein
Shapiro LLP, 1825 Eye Street, N.W., Washington, D.C. 20006. These Interrogatories are to be
interpreted and answered in accordance with the Federal Rules of Civil Procedure, the Local Rules
of the Court, the Judge’s procedures, and the Instructions and Definitions below.
INSTRUCTIONS
1.

In answering these Interrogatories, Google (as defined below) is required to furnish

under oath all information that is in its possession, custody or control, or otherwise available to
Google (as defined below), including information in the possession of its present and former
attorneys.
2.

Each Interrogatory shall be accorded a separate answer.

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3.

Estimates or approximations should be given when, but only when, precise data

cannot be supplied.
4.

The source, sources or derivation of each answer should be separately set forth and

identified with a description sufficient for use in a subpoena duces tecum, unless the person signing
the answers to the Interrogatories under oath knows of his or her personal and direct knowledge of
the facts or information forming the basis of all answers given.
5.

For each document and thing produced in response to these Interrogatories, identify

the individual from whose files the document was produced or, if the identity of the person is not
known, identify the unit, group or department from whose files the document was produced.
6.

If any interrogatory cannot be answered in full, it should be answered to the extent

possible, and accompanied with an explanation as to (a) the nature of the information or
knowledge that cannot be furnished; and (b) why the remainder cannot be answered.
7.

These Interrogatories shall be deemed continuing so as to require supplemental

answers pursuant to Rule 26(e) of the Federal Rules of Civil Procedure.
8.

Google (as defined below) must comply with all other requirements contained in

Rule 26 of the Federal Rules of Civil Procedure.
9.

In answering the following Interrogatories, if privilege or immunity is alleged as to

information or documents, or if an interrogatory is otherwise not answered in full, Google (as
defined below) shall state the specific grounds for not answering in full, identify, as that term is
defined herein, all information or documents for which privilege or immunity is claimed, and shall
answer the interrogatory to the extent to which it is not objected to.

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DEFINITIONS
A.

“Defendant Google, Inc.” means the Defendant in this lawsuit, Google, Inc. and

includes its respective predecessors, subsidiaries, divisions, parents or otherwise related entities
and/or divisions thereof, and includes directors, officers, present and former employees, agents,
representatives and attorneys of such entities and/or divisions thereof.
B.

“I/P Engine” means the Plaintiff in this lawsuit, I/P Engine, Inc.

C.

“Person” is defined as any natural person or any business, legal, or governmental

entity or association.
D.

“Director,” “officer,” “employee,” “agent,” and “representative” means any

individual serving as such and any individual serving at any relevant time in such capacity, even
though no longer serving in such capacity. Google’s “representatives” refers to and includes
Google’s officers, directors, agents, employees, attorneys, and consultants.
E.

“Date” means the exact day, month and year, if ascertainable, or, if not, the best

approximation (including relationship to other events).
F.

The terms “relating to” and “referring to” shall be interpreted so as to encompass

the scope of discovery set forth in Rule 26(b) of the Federal Rules of Civil Procedure.
G.

“Document” is defined to be synonymous in meaning and equal in scope to the

usage of this term in Rule 34 of the Federal Rules of Civil Procedure and Local Rule 26 of the
Court. A draft, non-identical copy, or version bearing any annotation or marking is a separate
document within the meaning of this term.
H.

“Identify,” “identification,” “describe,” or “description” mean:
(i) “Identify” (with respect to person) means to give, to the extent known, the

person’s full name, present or last known address, and when referring to a natural person,

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additionally, the present or last known place of employment. Once a person has been
identified in accordance with this subparagraph, only the name of that person need be listed
in response to subsequent discovery requesting the identification of that person.
(ii) “Identify” (with respect to a document) means to give, to the extent known,
(a) type of document;
(b) general subject matter;
(c) date of document; and
(d) author(s), addressee(s), and recipient(s),
(e) for documents that have existed but are no longer existing, include the
type of document, the identity of its last known custodian, and the date on and
circumstances under which the document was lost, destroyed, or otherwise became
unavailable;
(f) for documents no longer in your possession, custody or control, or the
possession, custody or control of your agents (including, but not limited to,
attorneys) include the date on and circumstances under which the document was
disposed of, destroyed, surrendered from or otherwise left your possession, custody
or control, the identity of its present (or last known) custodian and the location of
such document, if known; and
(g) in lieu of identification of a document, you may, simultaneously with
the filing of your answers to these Interrogatories, produce such document for
inspection and copying by Plaintiff, at the office of Plaintiff’s counsel, Dickstein
Shapiro LLP, 1825 Eye Street, N.W., Washington, D.C. 20006, provided that such

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document is segregated in such a way as to indicate the particular Interrogatory to
which it is responsive.
(iii) “Identify” (with respect to communications) means to give the date of such
communication, the identification of each party to the communication, the place at which
each party was located, the substance thereof and the method of such communications (e.g.,
in person, by telephone, by electronic mail or otherwise).
(iv) “Identify” (with respect to an oral statement (including a conversation,
conference, or other oral contact)) means to identify all persons making the statement, all
persons to whom such statement was made, and all other persons present at the time of
such statement; state the date of such statement; state the place where such statement was
made, or if by telephone, the person participating in the telephone call, the person making
the call, and the places where the persons participating in the call were located; and state
the substance of such statement.
I.

“Describe” and/or “state” means to set forth fully and unambiguously every fact

relevant to the subject of the Interrogatory, of which you (including your agents and
representatives) have knowledge or information.
J.

“Concerning” means referring to, describing, evidencing, or constituting.

K.

“Communication” means the transmittal of information (in the form of facts, ideas,

inquiries, or otherwise).
L.

Any word written in the singular herein shall be construed as plural or vice versa

when necessary to facilitate the response to any Interrogatory.
M.

The use of a verb in any tense shall be construed as the use of the verb in all other

tenses.

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N.

“And” as well as “or” shall be construed disjunctively or conjunctively as necessary

in order to bring within the scope of the Interrogatory all responses which otherwise might be
construed to be outside its scope.
O.

The “‘420 Patent” means U.S. Patent No. 6,314,420.

P.

The “‘664 Patent” means U.S. Patent No. 6,775,664.

Q.

“Accused Products” means Google AdWords, Google AdSense for Search and

Google AdSense for Mobile Search.

INTERROGATORIES
INTERROGATORY NO. 15
For Google’s U.S. Based Properties, from January 1, 2002 to the present, provide a chart identifying (in U.S.
dollars) actual gross and net profits and losses and Google’s costs on a monthly or quarterly basis, associated with the
Accused Products, identifying all documents and other evidence Google will rely upon to support its response and each
person who will testify as a witness at trial in support of Google’s contention.
INTERROGATORY NO. 16
For Google’s U.S. Based Properties, from January 1, 2002 to the present, provide a chart identifying (in U.S.
dollars) operating profit margin, incremental profit margin, actual and anticipated profit margins on a monthly or quarterly
basis, associated with the Accused Products, identifying all documents and other evidence Google will rely upon to support
its response and each person who will testify as a witness at trial in support of Google’s contention.
INTERROGATORY NO. 17
Assuming Google is held liable for infringement of the ‘420 or ‘664 Patent, identify each and every license or
other agreement that Google intends to rely upon in support of its contention concerning the proper measure of damages
for infringement of the ‘420 or ‘664 Patent, explaining with specificity each and every factual and legal basis supporting
Google’s contention, including the underlying comparability of the license or other agreement to the ‘420 or ‘664 Patent,

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identifying all documents and other evidence Google will rely upon to support its contention and each person who will
testify as a witness at trial in support of Google’s contention.

Dated: June 14, 2012

By: /s/ Charles J. Monterio, Jr.
Jeffrey K. Sherwood
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]
Donald C. Schultz
W. Ryan Snow
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of June, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S FOURTH SET OF INTERROGATORIES TO DEFENDANT
GOOGLE, INC., was served via email, 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/ Armands Chagnon
Senior Paralegal

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