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

Filing 928

REPLY to Response to Motion re 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 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.
Plaintiff,
Civil Action No. 2:11-cv-512

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

DEFENDANTS’ REPLY 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 file this brief reply in order to address several misrepresentations to the Court
made in Plaintiff’s Opposition brief. Plaintiff states that during the meet and confer Defendants
“did not pursue their request to depose Dr. Becker,” but instead were “preoccupied” with their
proposal regarding discovery related to Google’s imminent change to Google’s system. (D.N.
927, 1-2.) This is flatly untrue. During the April 9 call, Defendants reiterated their position that
Plaintiff should make Dr. Becker available for deposition to give Defendants the opportunity to
question Dr. Becker about his new theories and then respond to Plaintiff’s motion for postjudgment royalties. (Declaration of Margaret Kammerud (“Kammerud Dec.,”), ¶ 2.) Defendants
further noted that a deposition may further be appropriate should Dr. Becker consider Google’s
offered discovery on its new system in his new opinion. (Id.)
Plaintiff’s opposition states that “Defendants made no proposal” during the meet and
confer regarding postponement of briefing. (D.N. 927, 2.) This is also flatly
untrue. Specifically, during the conference, Defendants’ counsel suggested that the parties

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consider an interim extension while negotiating a final agreement on any discovery concerning
the Motion for an Award of Post-Judgment Royalties. (Id.) In particular, Defendants suggested
a two week extension on Defendants’ Opposition to Plaintiff’s Motion for an Award of PostJudgment Royalties, and a comparable extension for Plaintiff’s Reply in Support of its Motion
for Post-Judgment Royalties. (Id.) Defendants’ counsel agreed that they also would send
Plaintiff’s counsel a proposal for a further extension in order to accommodate additional
discovery, which they did on April 12, 2013. (See D.N. 925, Perlson Declaration, Ex. 2.)
Further, Plaintiff states that after receiving Defendant’s proposal on April 12, “I/P Engine
immediately asked for clarification regarding the proposal.” (D.N. 927, 2.) Yet, Plaintiff omits
that three minutes later, Defendants’ counsel responded, offering to speak by telephone to clarify
any confusion. (See D.N. 925, Perlson Declaration, Ex. 2.) It was Plaintiff that did not respond
to this inquiry.
Instead, only after Defendants followed up the morning of April 15 by email, Plaintiff
engaged Defendants on the issue. But Plaintiff’s assertion that “I/P Engine did not respond to,
much less accept, Defendants’ request during” the parties’ telephone conference on April 15
(D.N. 927, 2) is once again flatly untrue. Plaintiff did agree to this extension. (D.N. 925, Perlson
Declaration, ¶ 4.) Plaintiff then reneged this agreement a few hours later by email. (See D.N.
925, Perlson Declaration, Ex. 2.)
It is telling that, unlike Defendants, Plaintiff did not back up its statements with a
declaration from either of Plaintiff’s counsel on these calls to support its representations of the
parties’ meet and confer in its brief.
DATED: April 17, 2013

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/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
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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]
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 17, 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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