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)
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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