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

Filing 986

RESPONSE in Support re 978 MOTION for Order to Show Cause UNDER RULE 37 FOR NONCOMPLIANCE WITH AUGUST 13, 2013 ORDER and Request for Hearing filed by I/P Engine, Inc.. (Sherwood, Jeffrey)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) I/P ENGINE, INC., ) ) Plaintiff, ) v. ) Civil Action No. 2:11-cv-512 ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) I/P ENGINE, INC.’S REPLY IN SUPPORT OF ITS MOTION TO SHOW CAUSE UNDER RULE 37 FOR NONCOMPLIANCE WITH AUGUST 13, 2013 ORDER AND REQUEST FOR HEARING By its own admission, Google failed to comply with this Court’s Order. As set forth in its Opposition, Google only produced “the source code for the accused system and the relevant technical documents” (Opp. at 5) even though this Court’s Order clearly required the production of “any documents relevant for determining whether New AdWords is no more than a colorable variation of the adjudicated product.” Google attempts to justify its violation of this Court’s Order by arguing that it has produced the best evidence Google believes shows the actual changes to New AdWords. Id. at 3. By doing so Google is unilaterally imposing what it considers “proof” of infringement, disregarding other documents in its possession that are also relevant. But, Google does not get to make such a determination. It must produce “any relevant document.” Google seems to ignore that it was ordered by this Court to do so – this is not a discovery dispute as Google’s Opposition strongly implies. This Court fully understood the parameters of its Order when it required Google to produce “any relevant document.” Google does not have the freedom to unilaterally change that. Making its behavior even more egregious, by its own admission, soon after trial Google knew that it was going to assert non-infringement based on an alleged design around, yet Google apparently did nothing to prepare for such discovery, despite arguing that it offered that same discovery to I/P Engine five months ago. Plainly that must have been an empty offer as Google now claims that it cannot comply with this Court’s deadline, and requires an army of attorneys to review millions of emails. Telling of Google’s discovery gamesmanship, Google does not even explain why it did not maintain records of emails related to its modification of AdWords – emails that it knew (before such emails were created) would be relevant to discovery related to its alleged design around. Also telling is the fact that, despite its promise to make a “targeted production of emails” in its email of August 28th, Google has failed to produce any additional documents to I/P Engine on a rolling basis to date. Given the speed at which Google implemented its alleged design around (over a period of months), an example of relevant custodial documents would be those documents that describe in simple English-language (versus source code) the New AdWords system. Such documents would assist I/P Engine and this Court in understanding the functionality of New AdWords. To be clear, however, I/P Engine is not seeking only custodial emails, as repeatedly characterized by Defendants. I/P Engine also seeks the production of any document – including technical documents, custodial documents, emails and any other document – “relevant for determining whether New AdWords is not more than a colorable variation of the adjudicated product.” 2 Google claims to be the good guy here because it produced 2 million lines of source code and 17 technical documents, offered “to produce email to avoid further dispute” after this Court’s deadline, and offered to consider an extension to this Court’s schedule. Opp. at 8. But none of those acts excuse Google’s violation of this Court’s Order. If Google needed more time or other relief from this Court’s Order, it could have sought relief. Yet, it did nothing. Google’s offer to produce documents after this Court’s deadline does not eliminate the prejudice to I/P Engine caused by Google’s violation. I/P Engine still must produce an expert report by this Court’s ordered deadline of September 25 without possessing all of the relevant information. Indeed, Google has indicated that it will use more than 60% of the discovery period to produce only some of the documents ordered by this Court leaving I/P Engine with less than two weeks to analyze them, depose witnesses and produce an expert report. Google failed to mitigate I/P Engine’s prejudice by declining to produce documents on a rolling basis. Two weeks have come and gone since Google purports to have agreed to produce these documents and as of today, not a single one has been produced. For at least these reasons, this Court should grant I/P Engine’s Motion to Show Cause. I/P Engine additionally requests a hearing on its Motion at this Court’s earliest date. Dated: September 12, 2013 By: /s/ Jeffrey K. Sherwood Donald C. Schultz (Virginia Bar No. 30531) W. Ryan Snow (Virginia Bar No. 47423) CRENSHAW, WARE & MARTIN PLC 150 West Main Street Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 Jeffrey K. Sherwood (Virginia Bar No. 19222) Frank C. Cimino, Jr. Kenneth W. Brothers 3 Charles J. Monterio, Jr. Jonathan Falkler DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Dawn Rudenko Albert DICKSTEIN SHAPIRO LLP 1633 Broadway New York, NY 10019 Telephone: (212) 277-6500 Facsimile: (212) 277-6501 Counsel for Plaintiff I/P Engine, Inc. 4 CERTIFICATE OF SERVICE I certify that on this 12th day of September 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 senoona@kaufcan.com David Bilsker David Perlson Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Robert L. Burns Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 robert.burns@finnegan.com Cortney S. Alexander Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 cortney.alexander@finnegan.com /s/ Jeffrey K. Sherwood 5

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