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

Filing 926

MOTION to Expedite and Memorandum in Support of Motion to Expedite the Briefing on Defendants' Renewed Motion to Compel Deposition of Dr. Becker and for Enlargement of Time to Oppose Plaintiff's Motion for Post-Judgment Royalties by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A)(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.

MOTION AND MEMORANDUM IN SUPPORT OF EXPEDITING THE
BRIEFING ON DEFENDANTS’ RENEWED MOTION TO COMPEL
DEPOSITION OF DR. BECKER AND FOR ENLARGEMENT OF TIME TO
OPPOSE PLAINTIFF’S MOTION FOR POST-JUDGMENT ROYALTIES
Defendants Google Inc., Target Corporation, IAC Search & Media, Inc., Gannett Co.,
Inc., and AOL Inc. (collectively, “Defendants”), by counsel, move this Court to expedite the
briefing on Defendants’ Renewed Motion to Compel Deposition of Dr. Becker and for
Enlargement of Time to Oppose Plaintiff’s Motion for Post-Judgment Royalties (D.N. 923), and
in support thereof, state as follows:
1.

Defendants’ Opposition to Plaintiff’s Motion for an Award of Post-Judgment

Royalties currently must be filed by April 18, 2013. Prior to filing their Opposition to Plaintiff’s
Motion for an Award of Post-Judgment Royalties, Defendants are entitled to depose Plaintiff’s
damages expert, Dr. Becker. Defendants’ Renewed Motion to Compel Deposition of Dr. Becker
and for Enlargement of Time to Oppose Plaintiff’s Motion for Post-Judgment Royalties requests
that Plaintiff be compelled to make Dr. Becker available for deposition, and, at minimum, that
the deadline for Defendants’ opposition to Plaintiff’s Motion for an Award of Post-Judgment

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Royalties be postponed until at least seven days after Plaintiff makes Dr. Becker available for
deposition, or May 2, 2013, whichever date is later. In the alternative, Defendants request a
minimum two week extension of the deadline for Defendants’ opposition to Plaintiff’s Motion
for an Award of Post-Judgment Royalties, until May 2, 2013.
2.

Defendants asked for dates for Dr. Becker’s deposition on April 8, 2013, and

during a meet and confer conference on April 9, 2013, Defendants reiterated their need to depose
Dr. Becker and the resultant need for an extension for Defendants’ Opposition to Plaintiff’s
Motion for Post-Judgment Royalties. Defendants suggested to Plaintiff a two-week extension
for the briefing while the parties discussed additional discovery, and, further, to allow sufficient
time for Defendants to prepare a response. Plaintiff expressed a willingness to work with
Defendants in good faith in relation to their requests, and Plaintiff in no way suggested it would
take a no-extensions-whatsoever position. Defendants followed up with Plaintiff on these issues
again on April 12, 2013. Still, Plaintiff waited until midday on April 15, 2013 to inform
Defendants that it would not agree to any extension for Defendants’ Opposition to Plaintiff’s
Motion for Post-Judgment Royalties, despite having agreed to at least a two week extension for
this brief earlier that day. Plaintiff also waited until April 15, 2013 to inform Defendants that it
would refuse to provide Dr. Becker for deposition under any circumstances.
3.

As a result, Defendants request that the Court issue an order expediting the

briefing schedule for the briefing on Defendants’ Renewed Motion to Compel Deposition of Dr.
Becker and for Enlargement of Time to Oppose Plaintiff’s Motion for Post-Judgment Royalties .
Defendants request that the Proposed Order attached as Exhibit A be entered expediting that
briefing as follows:

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•

Plaintiff shall respond to Defendants’ Renewed Motion to Compel Deposition of Dr.
Becker and for Enlargement of Time to Oppose Plaintiff’s Motion for Post-Judgment
Royalties at or before 8 a.m. on April 17, 2013;

•

Defendants forego filing a Reply brief in support of their motion.

4.

Any prejudice to Plaintiff as a result of the expediting of briefing is a result of

Plaintiff’s own last-minute reversal in position, and thus does not justify denying Defendants’
Motion to Expedite.
5.

Pursuant to Local Rule 37(E), counsel have attempted in good faith to resolve the

foregoing dispute.
WHEREFORE, Defendants request that this Court expedite the briefing of Defendants’
Renewed Motion to Compel Deposition of Dr. Becker and for Enlargement of Time to Oppose
Plaintiff’s Motion for Post-Judgment Royalties (D.N. 923) to require the parties to fully brief the
motion by April 17, 2013, at 8 a.m. EST.
DATED: April 16, 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]

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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]
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 April 16, 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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