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

Filing 523

Declaration re 521 Opposition, of Margaret P. Kammerud in Support of Defendants' Opposition to Plaintiff's Third Motion for Discovery Sanctions (Public Version) by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit R)(Noona, Stephen)

EXHIBIT R

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF VIRGINIA

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Norfolk Division

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I/P ENGINE, INC.,

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Plaintiff,
v.
AOL INC., et al.,

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Defendants.

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CIVIL ACTION
NO. 2:11cv512

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TRANSCRIPT OF PROCEEDINGS

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Norfolk, Virginia

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September 18, 2012

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Hearing on Motions

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Before:
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THE HONORABLE F. BRADFORD STILLMAN
United States Magistrate Judge

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GLORIA S. SMITH, OFFICIAL REPORTER

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taking of depositions.

You've heard me on this, or at least

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some of your colleagues have heard me on this, and I was a bit

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intemperate on it in a telephone conference, where you were

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arguing about the taking of depositions and how many hours

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would be allocated to the taking of depositions of experts.

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And I came to find out at that time -- this is last week,

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now -- that you were taking depositions outside the deadlines

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established in the Rule 16(b) order, and I explained to you

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what the order says quite clearly, and that is, you shall not

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violate the deadline unless you get an agreed order and the

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court is persuaded to enter it.

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Now, you did submit an order to that effect, it was

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agreed, and I entered it, giving you the opportunity to take

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some depositions out of time.

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about other depositions being taken out of time, and no one

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has approved them.

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MR. SHERWOOD:
Your Honor.

But now here you are talking

No, they are not other depositions,

I'm sorry if I --

THE COURT:

You said that you are taking the

depositions of Culliss and Ortega, didn't you?
MR. SHERWOOD:

Right, but I think that is part of

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the agreed order that the court has seen.

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about is the sequencing of these things.

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THE COURT:

All right.

What I'm talking

What else have you got,

because, frankly, I understand your argument.

I'm afraid I

GLORIA S. SMITH, OFFICIAL REPORTER

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don't agree with it, and I need to rule.

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argument and the good intentions of the argument, but this

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prior art was disclosed 60 days before the discovery cutoff

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date for fact discovery, which distinguishes it in the court's

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mind from what the court understands the ruling is in Woodrow

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Woods and Marine Systems.

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I appreciate the

The court notes that the defendant had 60 days

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within -- I'm sorry -- the plaintiff had 60 days within which

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to respond to deal with these disclosures, which appear to be

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timely under Rule 26(e), which is the only standard the court

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has available to apply in these circumstances, and the court

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believes that since no action was taken within that 60 days,

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and we are here today, that the prejudice that is being argued

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is insubstantial.

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problem, I would have expected the motion within a week of the

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disclosure of this prior art.

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I have to say that if this were truly a

The defendant Google's position seems to be that

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they developed a further understanding of the plaintiff's

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position and felt obliged to supplement with this prior art.

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What they knew and what they understood were two different

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things, and I believe that Google here developed an

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understanding with respect to the necessity of disclosing the

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prior art, they did so in a timely manner under Rule 26(e),

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that the case that was cited from the Federal Circuit is

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distinguishable because of the significant amount of time that
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was available, and that any argument as to prejudice has been

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undercut because discovery has been taken with respect to the

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prior art, and there was no immediate reaction to deal with

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the late disclosure.

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We are well past the 60-day deadline for -- the

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60-day period within which this prior art was disclosed.

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Accordingly, the motion for sanctions is denied.

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Now, I'll be happy to hear from Google with respect
to the documents issues.

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MR. PERLSON:

Your Honor, I'm happy to report that

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we have resolved at least one of the issues from the motion to

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compel.

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THE COURT:

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MR. PERLSON:

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Which one is that?
That is the issue of the Lang

documents.

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THE COURT:

The Lang documents?

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MR. PERLSON:

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THE COURT:

Yes.

Let me see which one of those -- okay.

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That's the complete set of responsive documents from Andrew K.

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Lang.

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MR. PERLSON:

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THE COURT:

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Yes.

One of the two claimed inventors of the

patents-in-suit.

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MR. PERLSON:

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THE COURT:

Yes.

And you agreed to do what?

GLORIA S. SMITH, OFFICIAL REPORTER