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

Filing 865

Declaration re 863 Opposition (of Dave Nelson) in Support of Defendants' Opposition to Plaintiff's Motion for Judgment Under Rule 52(B) and a New Trial Under Rule 59 on Laches by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
Civil Action No. 2:11-cv-512

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

DECLARATION OF DAVE NELSON IN SUPPORT OF DEFENDANTS’ OPPOSITION
TO PLAINTIFF’S MOTION FOR JUDGMENT UNDER RULE 52(B) AND A NEW
TRIAL UNDER RULE 59 ON LACHES
I, Dave Nelson, declare as follows:
1.

I am an attorney in the firm of Quinn Emanuel Urquhart & Sullivan, LLP and am

counsel for Defendants in the above-captioned case. I provide this declaration upon personal
knowledge and, if called upon as a witness, would testify competently as to the matters recited
herein.
2.

At 5:46 p.m. on October 31, 2012, Defendants’ counsel emailed Plaintiff’s

counsel seeking information on, inter alia, what royalty base Plaintiff planned to argue to the
jury in closing arguments, given the Court’s laches ruling of that morning. A true and correct
copy of this email is attached hereto at Exhibit A. Plaintiff’s counsel made no response to this
email.
3.

At 8:36 p.m. on October 31, 2012, Defendants’ counsel sent Plaintiff’s counsel a

follow-up email on the same subject. A true and correct copy of this follow-up email is attached
hereto as Exhibit B. Plaintiff’s counsel made no response to this follow-up email.
4.

On the morning of November 1, 2012, Plaintiff’s counsel argued to the Court at

the charge conference that the laches defense should only apply to Google, not the other
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Defendants. I responded that such case law was inapplicable given that Google was
indemnifying all Defendants and thus any damages against any Defendant would come out of
Google’s pocket. Initially, the Court adopted Plaintiff’s argument and ruled that only Google
could benefit from laches. In the wake of the Court’s ruling, Defendants’ counsel searched for
and located case law showing that laches should apply to all Defendants, particularly given that
all Defendants were being indemnified by Google. As soon as Defendants’ counsel located this
case law, we immediately presented it (by hand) to both the Court and Plaintiff’s counsel.
5.

Attached as Exhibit C is a true and correct copy of Plaintiff’s First Supp.

Responses and Objections to Gannett Co., Inc.’s First Set of Interrogatories, dated September 4,
2012.
6.

Attached as Exhibit D is a true and correct copy of Plaintiff’s First Supp.

Responses and Objections to Target Corp.’s First Set of Interrogatories, dated September 4,
2012.
7.

Attached as Exhibit E is a true and correct copy of Plaintiff’s First Supp.

Responses and Objections to IAC Search & Media, Inc.’s First Set of Interrogatories, dated
September 4, 2012.
8.

In chambers conference, Plaintiff’s counsel had objected to the introduction of

nearly all the deposition testimony of Mark Blais, Lycos’ Rule 30(b)(6) representative, on the
theory that Mr. Blais lacked personal knowledge about his areas of testimony.

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DATED: January 25, 2013

/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.

/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]

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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.

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CERTIFICATE OF SERVICE
I hereby certify that on January 25, 2013, 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]

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