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

Filing 716

Opposition to 700 MOTION for Reconsideration re 697 Order on Motion for Sanctions,,,,,,,,,,,,, denial of I/P Engines Third Motion for Discovery Sanctions Defendants' Opposition to Plaintiff's Motion for Review of Judge Leonard's Ruling on Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses 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.
Civil Action No. 2:11-cv-512

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

DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW OF JUDGE
LEONARD'S RULING ON PLAINTIFF I/P ENGINE, INC.'S THIRD MOTION FOR
DISCOVERY SANCTIONS REGARDING UNTIMELY DISCOVERY RESPONSES.
After receiving 44 pages of briefing (with 2 declarations and over one hundred pages in
16 exhibits) on Plaintiff's "Third" motion for sanctions regarding source code (D.N. 283, 521,
522, 651), Magistrate Judge Leonard conducted a hearing on October 9, 2012 on Plaintiff’s
“Second” and “Third” motions for sanctions. Almost an hour of that hearing was spent hearing
argument about Plaintiff's "Third" motion for sanctions, and approximately two-thirds of that
time was devoted to Plaintiff's argument. After giving both parties a fair and full opportunity to
be heard, Judge Leonard gave his ruling from the bench, denying Plaintiff's motion and stating
his reasons for doing so. (D.N. 702.) Judge Leonard’s ruling was memorialized in his written
order later that same day. (D.N. 697.) Plaintiff’s request to overturn Judge Leonard’s ruling,
made after careful consideration of the issues, should be denied.
First, Plaintiff does not address the standard to set aside Judge Leonard's denial of
Plaintiff's Third Motion. A district judge to whom a case is assigned may overturn the factual
findings and legal conclusions of a magistrate judge on non-dispositive pretrial matters only
where the findings are clearly erroneous or the conclusions are contrary to law. 28 U.S.C.
01980.51928/5008067.3

1

§ 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Although the “contrary to law” standard
ordinarily suggests a plenary review of legal determinations, the decisions of a magistrate judge
concerning discovery disputes and scheduling should be afforded “great deference.” In re
Outsidewall Tire Litig., Nos. 1:09-cv-1217, 1:09-cv-1218, 2010 WL 1849035, at *3 (E.D. Va.
May 4, 2010); 12 CHARLES ALLEN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, Federal
Practice & Procedure § 3069 (2d ed. 1997) (observing that altering a magistrate judge’s
nondispositive orders is “extremely difficult to justify.”). Plaintiff provides no reason to depart
from the deference to which Judge Leonard’s ruling is entitled.
Plaintiff argues that Judge Leonard’s Order provides no details of his reasoning for
denying the motion. (D.N. 700.) But Plaintiff ignores the reasoning given by Judge Leonard at
the October 9 hearing:
This is the kind of argument, discussion that should have gone on in August and
the beginning of September. To come into court now and go back and forth about
who said what and who shot John is, I think, inappropriate, so the Court is going
to deny the motion for sanctions. Based on the circumstances of the request, and
the request certainly was very broad, an objection was made and the objection, the
Court finds, was not withdrawn. In the answer that was provided – in the
supplemental answer that was provided, the objection was maintained by the
defendant. The Court is going to find that the response was timely made.
(D.N. 702, 82:7-18.) Plaintiff does not attempt to address Judge Leonard's reasoning. Nor does
Plaintiff address any of the arguments Defendants made in their Opposition.
Instead, Plaintiff argues: "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." (D.N. 700, 1.) But Plaintiff's
motion sought discovery sanctions. Thus, it was entirely appropriate for Judge Leonard to
inquire about a meet and confer.
01980.51928/5008067.3

2

Plaintiff further argues that "I/P Engine’s motion does not relate to the sufficiency of the
September 4 interrogatory responses." (D.N. 700, 1.) Yet, Plaintiff complained in its motion for
sanctions that it had requested source code by its interrogatory, and alleged that Google should
have produced it or identified it in that response. (See, e.g., D.N. 282, 2, 6, 9.)
While Plaintiff argues that Defendants’ supplementation violated the Court's Scheduling
Order, Judge Leonard explicitly found that Defendants' responses were timely, as detailed
above. (D.N. 702, 82.) Notably, Plaintiff does not challenge or address Judge Leonard's
reasoning on this issue.
As Plaintiff has shown no basis to overturn Judge Leonard’s October 9 Order under the
applicable standard, Plaintiff’s motion should be denied.

DATED: October 15, 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: [phone]
Facsimile: [phone]
[e-mail]
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.

01980.51928/5008067.3

3

/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: [phone]
Facsimile: [phone]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL Inc.

01980.51928/5008067.3

4

CERTIFICATE OF SERVICE
I hereby certify that on October 15, 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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
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: [phone]
Facsimile: [phone]
[e-mail]

11985203v1

01980.51928/5008067.3

5