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

Filing 608

Response to 115 MOTION to Seal I/P Engine, Inc.'s Motion to Seal Exhibits 15, 16, 17, 18, and 21 of IP Engine's Memorandum in Support of Its Motion to Compel Defendant Google, Inc.'s Custodial Document Production, 125 MOTION to Seal Motion to Seal I/P Engine's Opposition to Google and IAC's Motion to Compel Plaintiff to Supplement its Infringement Contentions Along with Exhibits 11, 12, 14, 15, 18, 21, and 22 in Support filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit Exhibit 15 (Lesser Redacted), # 2 Exhibit Exhibit 16 (Lesser Redacted), # 3 Exhibit Exhibit 17 (Lesser Redacted), # 4 Exhibit Exhibit 18 (Unredacted, Public Form), # 5 Exhibit Exhibit 21 (Lesser Redacted), # 6 Exhibit ECF 125 (Lesser Redacted), # 7 Exhibit Exhibit 11 (Lesser Redacted), # 8 Exhibit Exhibit 12 (Lesser Redacted), # 9 Exhibit Exhibit 15 (Lesser Redacted), # 10 Exhibit Exhibit 22 (Lesser Redacted))(Schultz, Donald)

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

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

MOTION TO SEAL EXHIBITS 15, 16, 17, 18 AND 21 OF I/P ENGINE’S
MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT
GOOGLE, INC.’S CUSTODIAL DOCUMENT PRODUCTION

EXHIBIT 18 FILED UNDER SEAL

quinn emanuel

trial lawyers | san francisco

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

March 28, 2012

Charles Monterio
[e-mail]

Re:

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

Confidential – Outside Counsel Only
Dear Charles:
I write in response to your March 27 letter.
Your demand that Google produce all categories of documents by April 9 is unreasonable. With
regard to custodial documents, the parties have been engaged in ongoing negotiations regarding a
list of search terms. Plaintiff agreed to the final terms in your letter yesterday—the very same
letter in which you arbitrarily set the April 9 deadline and threatened to move to compel if
Google did not agree. This is improper and unacceptable. Now that the parties have agreed to a
final list of search terms, Google is running the search terms against the nine custodians'
documents, and reviewing the results of those terms. We are endeavoring to determine the total
number of documents to be reviewed so that we can provide an estimated date for completion of
review and production. We will provide this estimated date as soon as possible.
Your claim that you have been delaying scheduling depositions of Google pending completion of
its production is ridiculous. Google has already produced over 200,000 pages of documents in
this case, including technical documents, financial information, and license agreements related to
AdWords. In addition, we made clear to you on our March 13 call that to minimize delay, I/P
Engine should provide us with a list of desired 30(b)(6) topics so that Google can identify the
appropriate witnesses, which may take some time. Two weeks later, I/P Engine has not done so;
quinn emanuel urquhart & sullivan, llp
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any resulting delay is I/P Engine's fault, not Google's.
Plaintiff's demands are especially unreasonable given your own lack of fulsome production in
this case. For example, although the parties clarified in mid-February that there was no
agreement not to produce emails, I/P Engine has not produced any emails since that time. This is
despite the fact that I/P Engine is a much smaller company than Google, with far fewer
documents to search, and document production therefore imposes much less of a burden on
Plaintiff. Additionally, despite Hudson Bay’s agreement to the list of search terms proposed by
Google, we have not seen any production of email from Hudson Bay. Nor have either I/P
Engine or Hudson Bay provided any estimated date for production of email in this case. Despite
Plaintiff's incomplete production to date, Google has managed to initiate the process of
scheduling inventor depositions.
With regard to your specific requests for estimated production dates other than custodial
documents, Google responds as follows:
First, in response to your query, all license agreements related to AdWords have been produced.
Second, you demand production by April 9 of “other damages-related documents.” We do not
know what you mean by this phrase. As you know, Google in addition to producing license
agreements has already produced financial information. And Google is in the process of
searching, reviewing and producing custodial information as outlined above. And Google has
produced, and is continuing to produce, damages-related documents from prior litigations as
outlined in your letter of February 9 and my letters of March 16 and March 23. To the extent
Plaintiff is referring to other documents not included in these categories, please explain and point
to the specific Requests for Production at issue.
Third, in response to my letter of March 26, you demand production of all additional documents
from the prior litigations and the 69 Google Technical Videos by April 9. As to the documents
from prior litigations, we are agreed to review the documents at issue and produce the documents
related to damages and infringement issues in this case. As to the videos, we also agreed to
review the videos and to produce the ones that are arguably responsive to your requests for
production, even though we disagree with your broad assertions of relevance. To the extent any
dispute remains after this review, we agreed to meet and confer to discuss. As discussed during
our meet and confer last week, review of the many videos Plaintiff has demanded is quite timeconsuming and burdensome. Furthermore, many of the prior litigation documents are so old that
they are no longer stored on-site. Additionally, we may need to resolve confidentiality issues for
the prior litigation documents, as we did with those documents that have already been produced.
We are currently diligently working on the review, and will provide you with an estimated date
of production as soon as we are able to do so.
Additionally, in your letter you also suggested that the parties are at an impasse regarding
Overture-related documents. To the contrary: we made clear in our February 3, 2012 letter that
we would produce materials from certain litigations if it would fully resolve the issue. Our list
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did not include the litigation with Overture. Indeed, as we informed you in that letter, there are
no Google deposition transcripts or Google expert reports from that litigation. On February 9,
you agreed to Google’s production of documents from those litigations that Google had agreed to
produce from, and also requested that Google produce certain other documents from these same
litigations. You have since requested additional documents from these agreed-upon litigations,
including in your letters of March 15 and March 27. The parties are not at an impasse; we have
agreed to production of documents from a set of prior litigations that does not include Overture.
Finally, as we have before, we will continue to roll productions to Plaintiff when they are
available, so that you do not have to wait until the end of Google’s review in order to receive
documents or things.
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.
To be clear, we strongly disagree with any assertion by Plaintiff that the parties are at an impasse
on this issue or that Plaintiff’s meet and confer obligations have been completed.
Sincerely,

Jen Ghaussy
cc:

[e-mail]
[e-mail]

01980.51928/4677402.1

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