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

Filing 447

Opposition to 303 MOTION in Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate 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)(Sherwood, Jeffrey)

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.,
)
REDACTED VERSION
)
Defendants.
)
__________________________________________)

PLAINTIFF I/P ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN
LIMINE #3 TO EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL
MATERIALS RELATED TO HISTORICAL CLICK-THROUGH RATE

I.

INTRODUCTION
It is axiomatic that evidence must be relevant to be admissible. And a hallmark of

admissibility is reliability or trustworthiness. Historically, a litigant’s own statements, when
asserted against that litigant, have been accorded the highest degree of reliability because it is
widely accepted that statements against interest are likely to be very reliable. Such statements
are almost always admissible.

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which is a central issue in this case. Google’s proposed exclusion based on its own misstatement
is so broad that it includes not only public documents, but technical documents that are provided
to Google engineers and other technical staff. In fact, Google’s technical expert relied on at least
one of the documents that Google apparently seeks to exclude. And Google cited these
documents pursuant to FRCP 33(d) in its sworn responses to I/P Engine’s interrogatories, which
Google has not sought to withdraw or amend in any respect and which are on I/P Engine’s trial
exhibit list. Nor should Google be allowed to change those answers now, after the close of fact
discovery.

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Google’s motion is also utterly unfair and impracticable. Google never identifies the
documents that are subject to the motion; what is “high-level” or “non-technical?” Presumably,
Google does not seek to exclude documents upon which its expert relied, nor the documents that
it uses to pursue summary judgment, but its standard for implementing any such ruling seems to
be that whatever might hurt Google should be excluded.1
Google’s motion plainly has one goal – to protect it from relevant, reliable, but harmful
evidence.

II.

DISCUSSION

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Because I/P Engine believes certain of Google’s summary judgment documents accurately,
though incompletely, reflect how the Google system operates, I/P Engine has not disputed their
admissibility for summary judgment purposes. They are therefore part of the admissible
evidence in this case, which may moot this motion without further consideration. I/P Engine will
use those exhibits at trial in support of its proof of infringement.

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. For years
Google relied on those documents to explain the operation of its products to its customers, and to
generate revenue from these features.

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Both I/P Engine and Defendants conducted substantial discovery on the operation of
SmartAds, and retained experts to analyze the documents that Google did produce in this case.
I/P Engine’s expert, Dr. Ophir Frieder (Chair of the Georgetown Univ. Computer Science Dept.)
concluded that the documents prepared by Google over many years, which were produced in this
case and cited in his report were consistent with what is shown in the source code.

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The disagreement over how Google’s products work is a classic fact dispute that will
be addressed by both fact and expert witnesses, and will be for the jury to resolve. In resolving
this factual dispute, Google's own documents and statements, both internal and external, about
how the accused system works, are highly relevant and reliable. I/P Engine will offer evidence
that these documents are in fact accurate descriptions of the underlying functionality in Google’s
systems.
Google claims it is prepared to put on its own competing testimony about its
documents and how its products work. That is exactly how the trial should proceed.

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3.

Google Cites No Applicable Case Law to Support its Motion

Google cites a single case in support of its motion, Bradley v. Cooper Tire & Rubber
Co., Case No. 4:03-cv-00094, 2007 WL 4624613 (S.D. Miss. Aug. 3, 2007). To the extent that a
single unreported products liability case from Mississippi district court is even relevant to this
Court’s consideration, the Bradley case does not suggest that Google’s own documents, which
Google admits are the “best” non-technical description, are irrelevant.
Google relies on the Bradley court’s exclusion of Ford “advertisements regarding offroad capabilities” of the Ford Explorer. Motion at 3.

The Bradley court excluded advertisements regarding Ford’s off-road capability
because “the mere fact that Ford marketed the vehicle as safe for off-road use does not equate to
a claim that it was safe for off-road use when the vehicle leaves the highway in an unintended
manner.” Bradley, 2007 WL 4624613 at *5 (emphasis added). In the same order, the Bradley
court held that “a witness may be allowed to testify about conclusions Ford reached or what Ford
should have known based on its own documents and data.” Id. at *3 (emphasis added). The

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court also denied Ford’s other motion in limine to exclude documents that were “relevant to the
issues as discussed regarding the off-road advertisements.” Id. at *6.

In contrast to Bradley, where the statements bore no relation to a products liability
claim, in patent cases, the Federal Circuit and other district courts have admitted and relied upon
defendants’ own advertising materials. See, e.g., Howmedica Osteonics Corp. v. Wright Medical
Technology, Inc., 540 F.3d 1337, 1345 (Fed. Cir. 2008) (citing defendants’ own advertising for
its accused product as contradicting defendants’ arguments against infringement); Arista
Records, Inc. v. Flea World, Inc., Case No. 03-cv-002670 (JBS), 2006 WL 842883, *13 n.14
(D.N.J. Mar. 31, 2006) (upholding expert report under Daubert challenge where expert relied, in
part, on defendants’ own advertising).
B.

Google’s Fear of Contradicting Its Own Statements Does Not Substantially
Outweigh The Documents’ Probative Value Under Fed. R. Evid. 403
Federal Rule of Evidence 403 allows this Court to exclude relevant evidence if its

probative value is “substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403. Google does not make a colorable showing of any of these
dangers.
First, Google repeats its argument that there is nothing in dispute, and thus discussion
of the operation of its products would serve “only to confuse the jury.” Motion at 3. As
discussed above in Section II.A, Google plainly mischaracterizes Dr. Frieder’s testimony in an

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attempt to make its argument.

Google also argues that, were its witnesses confronted with its own documents,
Google would be prejudiced by the resulting “sideshow.” Motion at 3. The only “prejudice”
would be the jury’s rightful skepticism when Google’s witnesses make self-serving statements
that contradict their own documents (and prior testimony) explaining how these systems work.
“It is well established that a defendant who voluntarily offers himself as a witness and testifies in
his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity
and credibility.” U.S. v. Dike, App. No. 98-4136, 166 F.3d 335 (Table), 1998 WL 879732, *4
(4th Cir. Dec. 17, 1998) (upholding impeachment of defendant with his own documents that
were excluded for other purposes).
Google suggests that I/P Engine intends to waste its own time at trial making a case
about Google’s deceptive advertising. Motion at 3. I/P Engine has no such intention; instead,
these documents will be offered to illustrate the operation of the accused system, will show
Google’s infringement, and also prove its inducement to others to infringe.

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I/P Engine will prove that Google’s public statements have been, and continue to be,
substantially accurate and will be helpful to the jury’s understanding of the operation of the
system. After all, these are documents that Google witnesses have admitted provide an accurate
lay description of complex technical topics. What better evidence is there to explain the system
to the jury than Google’s own attempts to summarize the underlying functionality to the nontechnical audience that has made it so successful?
C.

Google’s Proposed Relief is Unworkable

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III.

CONCLUSION
For the reasons discussed above, Defendants’ Motion In Limine #3 should be DENIED.

Dated: September 27, 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 27th day of September, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE #3 TO
EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS
RELATED TO HISTORICAL CLICK-THROUGH RATE, 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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