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

Filing 980

Declaration re 978 MOTION for Order to Show Cause UNDER RULE 37 FOR NONCOMPLIANCE WITH AUGUST 13, 2013 ORDER OF CHARLES J. MONTERIO, JR. by I/P Engine, Inc.. (Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

DECLARATION OF CHARLES J. MONTERIO, JR.
IN SUPPORT OF I/P ENGINE’S MOTION FOR DEFENDANTS TO SHOW CAUSE

I, Charles J. Monterio, Jr., declare as follows:
1.

I am an attorney with the law firm of Dickstein Shapiro LLP, 1825 Eye Street

N.W., Washington, DC 20006 and am counsel for Plaintiff I/P Engine, Inc. (“I/P Engine”) in the
above-captioned case.
2.

In its August 13, 2013 Order, this Court ordered the parties to “produce any

documents relevant for determining whether New AdWords is no more than a colorable variation
of the adjudicated product” by August 25, 2013.
3.

On August 25, 2013, in compliance with the August 13 Order, I/P Engine

produced the documents it could find on Google’s website that describe the current AdWords
system. None of those documents indicates any relevant change to the AdWords system.
4.

Defendant Google, the party in control of the AdWords system and with sole

custody of all relevant non-public documents, produced seventeen (17) total documents.

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5.

Those 17 documents do not appear to include much of the materials that Google

historically created when it made changes to its AdWords system. Based on our review of
Google’s document productions before trial, Google carefully studies and analyzes all changes it
makes to its systems before implementation. The 17 produced documents included no custodial
documents that describe or relate to any alleged change.
6.

At a meet and confer conference on August 27, 2013, I/P Engine raised its

concerns as to Google’s production because this is the same discovery tactic that Google
employed before trial. Google ultimately took 6 months to produce its custodial documents (i.e.,
6 months transpired between when I/P Engine served its document requests and when Google
produced its documents).
7.

As of the time of this filing, Google has produced no emails or other custodial

documents.
8.

The communications between Google personnel, especially its engineers,

describing Google’s efforts regarding the relevant changes serve as a helpful tool in mapping out
what changes Google actually implemented, which provides a roadmap to review the source
code.

Dated: August 29, 2013

By: ___/s/ Charles J. Monterio, Jr. ______
Charles J. Monterio Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I certify that on this 29th day of August 2013 I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send notification to the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St, Suite 2100
Norfolk, VA 23510 [e-mail]
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two
Freedom Square
11955 Freedom Drive Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE Atlanta, GA 94111
[e-mail]

/s/ Jeffrey K. Sherwood

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