I/P Engine, Inc. v. AOL, Inc. et al
Filing
665
Memorandum in Support re 664 MOTION to Strike Plaintiff's Deposition Designations filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
I/P ENGINE, INC.
Plaintiff,
v.
Civil Action No. 2:11-cv-512
AOL INC., et al.,
Defendants.
BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S
DEPOSITION DESIGNATIONS
This Court’s Scheduling Order requires that the parties exchange Rule 26(a)(3) pretrial
deposition designations by September 19, 2012, and to exchange objections and counterdesignations by September 26, 2012. (D.N. 90, ¶ 5.) Plaintiff's designations are so overbroad
that they effectively provide no notice of what it intends to show to the jury, and make it
extremely difficult for Defendants to meaningfully review them for objections. In many cases,
virtually an entire deposition is designated. Having vastly over-designated, Plaintiff's approach
will leave everything to the last minute. Plaintiff will be forced to winnow its designations
during trial, and Defendants will have to counter-designate at that time as well.1 Disputes on the
designations will then have to be presented to the Court on an expedited basis during trial. To
1
Given Defendant's proper designations, late counter-designation is a burden that only
Defendant's will suffer.
1
make the deposition designations a pretrial, rather than a during trial process, Defendants seek an
order striking Plaintiff's current designations or requiring Plaintiff to designate at this time what
it truly intends to play to the jury.
Fed. R. Civ. P. 26(a)(3)(A)(ii) requires the disclosure of “the designation of those
witnesses whose testimony the party expects to present by deposition.” (emphasis added).
Plaintiff has not done so. Plaintiff cannot legitimately expect to present testimony from twelve
witnesses constituting what appears to be more than fourteen hours of testimony. (See
Declaration of Emily O’Brien in Support of Defendants’ Motion to Strike Deposition
Designations (“O'Brien Dec.”), Ex. 1 (Ex. A to Pl.'s Initial Pretrial Disclosure).) For some of
these deponents, including Bartholomew Furrow, Gary Holt, and Nicholas Fox, Plaintiff
designated the vast majority of the deponents' deposition transcripts. (See id.)
Plaintiff acknowledges that deposition designations are meant to give the other party
notice of the testimony that Plaintiff may play at trial or that its experts may rely upon. (O’Brien
Dec., Ex. 2, 4 (“Plaintiff's deposition designations were made in good faith and with the intention
of placing Defendants on notice of testimony that plaintiff may play at trial or on which
plaintiff's expert might rely.”).) Plaintiff's designations, however, are unreasonable, overbroad,
and do not meaningfully inform Defendants about which portions of deposition testimony
Plaintiff may play at trial or which portions Plaintiff's experts may rely upon. Indeed, even
Plaintiff does not contend that it will seek to play all or even close to all of these designations for
the jury. When asked about the over-designation, Plaintiff merely contends that it is not required
to limit its designations at this stage in the case. (Id.) But Plaintiff, who goes first, should know
what evidence it intends to rely on at trial which begins in less than two weeks. And Defendants
are entitled to have a meaningful identification of that evidence.
2
To attempt to resolve the issue without burdening the Court, Defendants have repeatedly
requested that Plaintiff narrow its deposition designations; Plaintiff has refused each time. (See
O'Brien Dec., Ex. 2.) As a compromise, Defendants requested that Plaintiff identify the
witnesses it intends to call at trial by deposition testimony and to only narrow the designations of
that subset at this time; Plaintiff again refused. (Id., 3.) Defendants suggested that Plaintiff
focus on the five most important witnesses and at least narrow those designations at this point, so
that Defendants can properly object and counter-designate. (O’Brien Dec., ¶ 4.) Plaintiff again
refused. (Id.)
Plaintiff has, instead, proposed that the parties agree to delay the exchange of narrowed
deposition designations until 72 hours prior to their use at trial.2 The parties would then serve
objections and counter-designations to that testimony, and then meet and confer to finalize the
deposition testimony that would be played at trial. (O’Brien Dec., Ex. 2, 4.) While Defendants
are agreeable to some narrowing and exchange process prior to trial, this proposal is not tenable
given the extensive over-designation by Plaintiff. Plaintiff's proposal seeks to delay resolving
the designations until the parties are under the pressure and heavy workload of trial rather than
attempting in good faith to resolve the issues now, defeating the purpose of Fed. R. Civ. P.
2
Plaintiff’s position as contained in its October 5 email is essentially that this procedure
moots their responsibility to meaningfully designate deposition testimony in this matter.
(O’Brien Dec., Ex. 3.) Plaintiff argues that it need not comply with the rules because: “(1) The
parties have agreed on a procedure to narrow deposition designations, as stated in the agreed
pretrial order. Plaintiff will follow this agreed-to schedule even if the motions in limine are still
pending, although subsequent rulings my require further alterations of deposition designations.
(2) Defendants never have requested that plaintiff do anything other than withdraw an
unspecified volume of deposition designations. In the absence of a specific request, there are no
established positions to define an impasse. (3) I/P Engine has offered to withdraw the majority
of its deposition designations if Defendants would stipulate to the facts of the operation of the
Adwords system as stated in Defendants’ expert report. Defendants have inexplicably refused.”
For the reasons above and for the sake of a meaningful, final pretrial order, Plaintiff should be
required to provide appropriate deposition designations immediately.
3
26(a)(3). Plaintiff's proposal has the serious likelihood of disrupting trial during Plaintiff's case
for rulings on objections and counter-designations as Plaintiff's designations are almost certainly
going to be a moving target. Furthermore, since Defendants’ designations are already focused
enough to give Plaintiff notice of the testimony Defendants may rely on at trial, the burden of
Plaintiff’s proposal will fall almost entirely on Defendants.
Rather than delaying the resolution of deposition designations until right before or during
trial, Defendants respectfully request this Court grant Defendants' Motion to Strike Plaintiff's
Deposition Designations and, either strike these designations with prejudice or strike them and
require Plaintiff to provide a set of narrow deposition designations that accurately reflect the
testimony they intend to present at trial, within 24 hours of the Court's Order.
DATED: October 5, 2012
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
senoona@kaufcan.com
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700
davidbilsker@quinnemanuel.com
davidperlson@quinnemanuel.com
Counsel for Google Inc., Target Corporation, IAC
Search & Media, Inc., and Gannett Co., Inc.
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/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: (571) 203-2700
Facsimile: (202) 408-4400
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: (404) 653-6400
Facsimile: (415) 653-6444
Counsel for Defendant AOL Inc.
5
CERTIFICATE OF SERVICE
I hereby certify that on October 5, 2012, I will electronically file the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to
the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: (202) 420-2200
Facsimile: (202) 420-2201
sherwoodj@dicksteinshapiro.com
brothersk@dicksteinshapiro.com
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: (757) 623-3000
Facsimile: (757) 623-5735
dschultz@cwm-law.cm
wrsnow@cwm-law.com
sstancliff@cwm-law.com
Counsel for Plaintiff, I/P Engine, Inc.
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
senoona@kaufcan.com
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