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

Filing 837

Memorandum in Support re 835 MOTION for Judgment under Rule 52(B) and a New Trial under Rule 59 filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Sherwood, Jeffrey)

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Exhibit 6 6 UNITl~D STATES J)ISTRICT COURT EASTERN DISTRICT OF' VIRGINIA NORFOLK J)IVISION I/P ENGINE, INC. Plaintifl: v. Civil Action No. 2:11-cv-512 AOL, INC., eta!., Defendants. NOTICE OF SUHJ>OENA FOR30(b)(6) DEPOSITION OF LYCOS, INC. You are hereby notified that, pursuant to Federal Rules of Civil Procedure 45 and 30(b)(6), on July 13,2012 at 9:00a.m., at the offices ofG&M Reporting, 42 Chauncy Street, Suite lA, Boston, MA 02111, Defendants Google Inc., AOL, Inc., lAC Search & Media, Inc., Gannett Co., Inc., and Target Corporation (collectively, "DEFENDANTS") request the deposition upon oral examination ofLycos, Inc. ("Lycos"). Pursuant to Rule 30(b)(6), Lycos shall designate one or more of its oflicers, directors, managing agents or other persons to testify on its behalf as to matters known or reasonably available to Lycos concerning the subjects identified in Schedule A of the Subpoena, and shall produce documents as set forth in Schedule B of the Subpoena. The deposition of Lycos will be taken before a notary public or other officer authorized by law to administer oaths, and will be recorded by stenographic and videographic means. Provisions for real time review via LiveNote or other similar means may also be made available. Said deposition shall proceed from day-to-day until complete, Saturdays, Sundays and Holidays excepted. 0 1980.5192814815670.3 DATED: June 25,2012 QUINN EMANUEL URQUHART & SULLIVAN, LLP By Is/Jennifer Ghau~ss"-y~~ Jennifer Ghaussy QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: ( 415) 87 5-6600 Facsimile: ( 415) 875-6700 Counselfor Defendants GOOGLE INC., lAC SEARCH & MEDIA, INC, TARGET CORP., AND GANNETT CO., INC. DATED: June 25, 2012 FINNEGAN HENDERSON FARABOW GARRETT &DUNNERLLP By Is/ Cortney A!exa!..:.:.?d=e:_r---~-----Cortney Alexander FINNEGAN HENDERSON FARABOW GARRETT & DUNNER LLP 3500 SunTrust Plaza Atlanta, CiA 30308-3263 Telephone: ( 404) 653-6400 Facsimile: (415) 875-6700 Counselfor Defendant AOL, INC. 0 1980.5!928/48!5670.3 2 AO 88A (Rcvc 06109) Subpoena !o Testify a! a Deposition in a Civil Action UNITED STATES DISTRICT COURT tor the [3 District of Massachusetts 1/P Engine, Inc. Plaintlfj' v. AOL, Inc. et al. Defendant ) ) ) ) ) ) Civil Action No. 2:11·cv-512 (lf the action is pending in another district, state where: Eastern District of Virginia EJ) SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION To: Lycos, Inc. fll Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken in this civil action. lfyou are an organization that is not a party in this case, you must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an attachment: SEE SCHEDULE A. Place: G&M Reporting 42 Chauncy St., Suite 1A, Boston, MA 02111 7 /t3/l C~Cc 1 { AfV\ The deposition will be recorded by this method: stt;lnographic and videographic means, Uvt:lNott;l fl Production: You, or your representatives, must also bring with you to the deposition the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material: SEE SCHEDULE B. The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule 45 (d) and (c), relating to your duty to respond to this subpoena and the potential consequences of not doing so, arc attached. Date: 06/25/2012 CLERK OF COURT OR Signa lure o.lC/erk or Depuly Clerk The name, address, e-mail, and telephone number of the attorney representing r.;Jedia, Inc.; Target Corp.; Gannett Co., Inc. Google Inc,; lfi.C Search &: ... r requests this subpoena, arc: (1wme oft 1r1y) Jennifer Ghaussy, jenghaussy@quinnemanuel.com, 415-875-6600 Quinn Emanuel Urquhart & Sullivan LLP, 50 California St., San Francisco, CA 94111 AO SgA (Rev. 06109) Subpoena to Testify at ;1 Deposition in a Civil ActioJJ (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) This subpoena for (name (~(indivilhwl and title, i(an.J:I was received by me on (date) Lycos, Inc. 06/25/2012 ~I served the subpoena by delivering a copy to the named individual as follows: Sent via email to mark.blais@lycos-inc.com on (date) [J 06/25/2012 ; or I returned the subpoena unexecuted because: Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of $ My fees are$ for services, for a total of$ for travel and $ I declare under penalty of petjury that this information is true. Date: 06/25/2012 Quinn Emanuel Urquhart & Sullivan LLP 50 California St. San Francisco, CA 94111 Server's address Additional information regarding attempted service, etc: 0.00 AO 88/\ (Rev. 06109) Subpoena lo Testify ala Dcposilion in a Civil Action (Page 3) Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1107) (c) Protecting a Person Subject to a Subpoena. (l) Avoidi11g U11due Burde11 or Etpense; Sam:tions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or cxpeme on a person subject to the subpoena. The issuing court must enJ'orcc this duty and impose an appropriate sanction~ which may include lost earnings and reasonable attorney's fees~ on a party or attorney who fails to comply. (2) Command to Produce Material~· or Pel'mit In~pection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises ~cor to producing electronically stored information in the form or forms rcqllcstcd. The objection must be served before the earlier of the time specif1ed for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issDing court for an order compelling production or inspection. (il) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting fl·om compliance. (3) Quashing til' Madij}ing a Subpoe11a. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to ~llow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where thnt person resides, is employed, or regularly transacts business in person~····· except that, subject to Rule 45(e)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, ir no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unrctained expert's opinion or information that does not describe specific occurrences in dispute and results Ji·01n the expert's study that was not reqttested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than I 00 miles to attend trial. (C) Spec{f)>ing Conditions as an Alternative. In the eircumstaw:.:es described in Rule 45(c)(3)(!3), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material tbat cannot be otherwise met without undue hardship; and (il) ensures that the subpoenaed person will be reasonably compensated. (d) Duties in Responding to a Sub!)ocna. (I) Producing Documents or Electr·onic(lf~l' Stored It!f'ormation. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding lo a subpoena to produce documents must produce them as they are kept in the ordinary course of business or musl organize and label them to correspond to the categories in the demand. (B) Form for Producing E!ectronicall)l Stored ft[/imnation Not Spec(fied. If a subpoena docs not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronicall)• Stored hlformation Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronicai(J' Stored hlformation. The person responding need not provide discovery of electronically stored information Jl·om somers that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions Cor the discovery. (2) Claiming Privilege or Protection. (A) lr{/(Jrmation Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe lhe nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) lilfimnation Produced. If in1ormation produced in response to a subpoena is subject to a claim of privilege or ofprotection as trialpreparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a parl y must promptly return, sequester, or destroy the spccdicd information and any copies it has; must not usc or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a dctcrminat ion of the claim. The person who produced the information must preserve the information until the claim is resolved. (c) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's h1ilurc to obey must be excused if' the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii). SCHEDULE A DEFINITIONS The following definitions shall apply to the categories of testimony requested herein: 1. "LYCOS," "YOU," and "YOUR" means Lycos, Inc., and its officers, directors, current and former employees, counsel, agents, consultants, representatives, and any other persons acting on behalf of any of the foregoing, and Lycos's affiliates, parents, divisions, joint ventures, licensees, fi-anchisees, assigns, predecessors and successors in interest, and any other legal entities, whether foreign or domestic, that are owned or controlled by Lycos, and all predecessors and successors in interest to such entities. 2. The term "DEFENDANTS" means Defendants Google Inc., AOL, Inc., lAC Search & Media, Inc., Gannett Co., Inc., and Target Corporation 3. nlNNOV ATE/PROTECT" means Innovate/Protect, Inc. 4. "I/P ENGINE" and "PLAINTIFF" means I/P Engine, Inc. 5. The terms "DOCUMENT" and "DOCUMENTS" include "electronically stored information" and include everything contemplated by Rules 26, 34, and 45 of the Federal Rules of Civil Procedure. They include any handwritten, typewritten, printed, or photocopied material, including but not limited to, all correspondence, memoranda, notes of meetings or conversations (personal or telephonic), reports, summaries, agreements, legal documents, and wlitings ofevety description, from which infom1ation can be obtained, whether maintained in hard copy or electronic form. 6. "THING" as used herein means any physical object other than a "DOCUMENT." 7. "PERSON" refers to any individual, corporation, proprietorship, association, joint venture, company, partnership or other business or legal entity, including governmental bodies and agencies. 8. "REFLECT," "REFLECTING," "RELATE TO," "REFER TO," "RELATING TO," and "REFERRING TO" shall mean relating to referring to, concerning, mentioning, reflecting, pertaining to, evidencing, involving, describing, discussing, commenting on, 01980.51928/4815670.3 3 embodying, responding to, supporting, contradicting, or constituting (in whole or in part), as the context makes appropriate. 9. "'664 PATENT" means U.S. Patent No. 6,775,664, entitled "Information Filter System and Method for Integrated Content-Based and Collaborative/Adaptive Feedback Queries," all underlying patent applications, all continuations, continuations-in-part, divisionals, reissues, and any other patent applications in the '664 patent family. l 0. '"420 PATENT" means U.S. Patent No. 6,314,420, entitled "Collaborative/Adaptive Search Engine," all underlying patent applications, all continuations, continuations-in-part, divisionals, reissues, and any other patent applications in the '420 patent family. 11. "PATENTS-IN-SUIT" shall refer to the '664 PATENT and the '420 PA'I'ENT, individually and collectively. 12. The singular form of words shall include the plural, and the plural shall include the singular. 13. "RELATED PATENTS AND APPLICATIONS" means any Patent or Patent Application related to the PATENT-IN-SUIT, including but not limited to Patents and Patent Applications in the same family or chain ofthe PATENT-IN-SUIT. 14. The term "ASSERTED CLAIM" refers to each and every claim of the PATENT- IN-SUIT that PLAINTIFF contends DEFENDANTS inhinge. 15. The words "or" and "and" shall be read in the conjunctive and in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of these Topics. 16. The use of a verb in any tense shall be construed as the usc of the verb in all other 17. The phrase "PRIOR ART" shall mean the subject matter described in 35 U.S.C. tenses. §§ 102 and 103, including but not limited to publications, patents, physical devices, prototypes, 01980.51928/4815670.3 4 uses, sales, and offers for sale, and any DOCUMENTS or other items evidencing any of the foregoing. TOPICS FOR RULE 30(b)(6) DEPOSITION In accordance with Rule 30(b)(6), Lycos is required to designate one or more of its officers, directors, managing agents, or other persons to testify on its behalf with respect to matters known or reasonably available to Lycos regarding the subjects described below: 1. All facts and circumstances regarding any search, analysis, investigation or opinion regarding the patents-in-suit and any Related Applications, including without limitation any search, analysis, investigation or opinion regarding patentability, unpatentability, enforceability, unenforceability, validity, invalidity (including prior art), infringement, noninfringement, meaning, interpretation, construction or scope of the patents-in-suit or Related Applications. 2. Lycos's agreements, licenses, offers to license, or covenants-not-to-sue that relate to the licensing of patent rights related the subject matter disclosed in the patents-in-suit. 3. Lycos's agreements, licenses, offers to license, or covenants-not-to-sue that relate to the licensing of patent rights related to Internet search and advertising, from 20022006. 4. All attempts to license or enforce the patents-in-suit. 5. The sale of the patents-in-suit, including the terms ofthe sale, negotiations, determination of price, value of the claimed inventions, and the reasons for the sale. 6. Any valuations of the patents-in-suit 7. Lycos's use ofGoogle's AdWords and/or AdSense for Search, including but not limited to Lycos's knowledge of the technology incorporated in AdWords and AdSense for Search. 8. 01980.51928/4815670.3 Lycos's patent licensing policies and practices. 5 9. Product(s), product design(s) or methods produced by any person, whether or not currently available, that embody the inventions described in the patents-in-suit. 10. Any investigation and/or analysis of whether any product embodied or infringed any of the claims of the patents-in-suit. 11. Lycos 's understanding, knowledge, analysis, or investigation, prior to the sale of the patents-in-suit, of whether Defendants potentially infringed the patents-in-suit. 0 1980.51928/48!5670.3 6 SCHEDULE U DEFINITIONS The following definitions shall apply to the document requests herein: 1. nL YCOS," "YOU," and "YOUR" means Lycos, Inc., and its offlcers, directors, current and former employees, counsel, agents, consultants, representatives, and any other persons acting on behalf of any of the foregoing, and Lycos 's affiliates, parents, divisions, joint ventures, licensees, franchisees, assigns, predecessors and successors in interest, and any other legal entities, whether foreign or domestic, that arc owned or controlled by Lycos, and all predecessors and successors in interest to such entities. 2. The terms "DOCUMENT" and "DOCUMENTS" include "electronically stored information" and include everything contemplated by Rules 26, 34, and 45 of the Federal Rules of Civil Procedure. They include any handwritten, typewritten, printed, or photocopied material, including but not limited to, all correspondence, memoranda, notes of meetings or conversations (personal or telephonic), reports, summaries, agreements, legal documents, and writings of every description, fi·om which infonnation can be obtained, whether maintained in hard copy or electronic form. 3. "T'I-IING" as used herein means any physical object other than a "DOCUMENT." 4. "PERSON" refers to any individual, corporation, proprietorship, association, joint venture, company, pat1nership or other business or legal entity, including governmental bodies and agencies. 5. "REFLECT," "REFLECTING," "RELATE TO," "REFER TO," "RELATING TO," and "REFERRING '1'0" shall mean relating to referring to, concerning, mentioning, reflecting, pertaining to, evidencing, involving, describing, discussing, commenting on, embodying, responding to, supporting, contradicting, or constituting (in whole or in part), as the context makes appropriate. 01980.51928/4815670.3 7 6. 'T'he singular form of words shall include the plural, and the plural shall include the singular. 7. The words "or" and "and" shall be read in the conjunctive and in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of these Topics. 8. The use of a verb in any tense shall be construed as the usc of the verb in all other tenses. REQUESTS FOR PRODUCTION 1. All Lycos's agreements, licenses, offers to license, or covenants-not-to-sue that relate to the licensing of patent rights related to Internet search and advertising, from 2002-2006. 01980.51928/4815670.3 8 CERTIFICATE OF SERVICE I hereby certify that June 25, 20 I 2, I will serve the foregoing by electronic mail to the following: Jeffrey K. Sherwood Kenneth W. Brothers Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420~2200 Facsimile: (202) 420-2201 sherwooddj @dicksteinshapiro.com brothersk@di scksteinshapiro. com monterioc@dicksteinshapiro.com Counsel.for Plaint(ff'J/P Engine, Inc. Stephen E. Noona Kaufman & Canoles, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510-1665 T (757) 624.3239 F (757) 624.3169 senoona@kaufcan. com Counse!.fiJr De.fcmdants Dated: June 25, 2012 01980.51928/4815670.3 By: Is/ Jenni(er Ghaussy Jennifer Ghaussy QUINN EMANUEL URQUHART & SULLIVAN LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: (415) 87 5-6600 Facsimile: (415) 87 5-6700

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