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

Filing 700

MOTION for Reconsideration re 697 Order on Motion for Sanctions,,,,,,,,,,,,, denial of I/P Engines Third Motion for Discovery Sanctions by I/P Engine, Inc.. (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.,
)
)
Defendants.
)
__________________________________________)

MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR
REVIEW OF JUDGE LEONARD’S RULING ON PLAINTIFF I/P ENGINE, INC.’S
THIRD MOTION FOR DISCOVERY SANCTIONS REGARDING
UNTIMELY DISCOVERY RESPONSES

Pursuant to 28 U.S.C. § 636 (b)(1)(A) and Fed. R. Civ. P. 72(a), plaintiff I/P Engine, Inc.
(“I/P Engine”) moves the Court to reconsider Judge Leonard’s October 9, 2012 denial of I/P
Engine’s Third Motion for Discovery Sanctions. The motion is located at D.I. 282, the
memorandum in support of the motion is located at D.I. 368, Defendants’ response at D.I. 617,
and I/P Engine’s reply at D.I. 669.1
Judge Leonard’s Order (D.I. 697) provides no details of his reasoning for denying the
motion. Based on his comments at the hearing, however, it appears Judge Leonard was treating
I/P Engine’s motion to strike untimely discovery responses as a motion to compel, because he
asked questions about the parties’ meet and confer before the original September 4 responses
were served by Defendants. I/P Engine’s motion does not relate to the sufficiency of the
September 4 interrogatory responses. Instead, I/P Engine’s motion sought to strike Defendants’
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The unsealed versions of the last three documents are located at D.I. 283, 521, and 651,
respectively.

supplemental responses served on September 14, after fact and expert discovery had closed, and
after Defendants had deposed I/P Engine’s expert on infringement. The violation of the Court’s
scheduling order is clear. See, e.g., D.I. 90 (scheduling order). Sohail v. Singh, 2010 U.S. Dist.
Lexis 103214 at *10-11 (E.D. Va. 2010) (“Courts routinely and appropriately exclude evidence
that is untimely and in violation of a scheduling order.”)
Judge Leonard’s ruling not only failed to consider Defendants’ violation of the
Scheduling Order, but he disregarded the fact that Defendants’ supplemental production and
interrogatory responses are self-serving. They do not adequately respond to I/P Engine’s
interrogatories or document requests. They serve only to ambush I/P Engine with information
that was not made available to it during the discovery period. For example, I/P Engine’s
interrogatories sought identification of all attribute templates used for certain functions.
Google’s supplemental responses do not do so. Instead, Google identifies only four attribute
templates and indicates that its list of four attribute templates is not complete. D.I. 372
(Google’s Supplemental Responses to Interrogatories 21 and 22).
Because Judge Leonard failed to consider the issues above, his Order is clearly in error
and should be reviewed. The Court should grant I/P Engine’s Third Motion for Discovery
Sanctions by excluding the untimely September 14, 2012 supplemental interrogatory responses
and related document production.

Dated: October 10, 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]

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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 10th day of October, 2012, the foregoing, MOTION AND
MEMORANDUM IN SUPPORT OF MOTION FOR REVIEW OF JUDGE LEONARD’S
RULING ON PLAINTIFF I/P ENGINE, INC.’S THIRD MOTION FOR DISCOVERY
SANCTIONS REGARDING UNTIMELY DISCOVERY RESPONSES, was served via the
Court’s CM/ECF system 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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