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

Filing 990

RESPONSE in Opposition re 987 MOTION to Strike 986 Response in Support of Motion (Defendants Motion To Strike Plaintiffs Reply In Support Of Motion To Show Cause) filed by I/P Engine, Inc.. (Schultz, Donald)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) I/P ENGINE, INC., ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) Civil Action No. 2:11-cv-512 I/P ENGINE, INC.’S RESPONSE TO DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO SHOW CAUSE Plaintiff I/P Engine, Inc. (“I/P Engine”), by counsel, for its Response to Defendants’ Motion to Strike Plaintiff’s Reply in Support of Motion to Show Cause, states as follows. I/P Engine filed its Motion to Shorten Defendants’ Time to Respond to its Motion to Show Cause in an effort to obtain a prompt resolution of Defendants’ failure to comply with this Court’s order to produce documents. In so moving, I/P Engine offered to waive a written reply and requested a prompt hearing. I/P Engine’s offer was proposed to hasten a hearing date on the Motion to Show Cause and to permit I/P Engine to reply to Defendants’ response in open Court. Because Defendants had failed to produce any additional documents and as the Court had not scheduled a hearing by the reply brief deadline, I/P Engine had no opportunity to reply in open Court. Accordingly, it filed its written reply. Defendants have suffered no prejudice by the filing of the reply, nor have they articulated any. Since this Court issued its order to the parties to produce all relevant documents, I/P Engine has spent significant resources urging Defendants to do what this Court ordered them to do: produce all documents relevant to whether New AdWords is more than a colorable variation of Old AdWords. After I/P Engine’s filing of its Motion to Show Cause, Google produced over 9,000 pages of documents and additional source code relevant to whether New AdWords is more than a colorable variation of Old AdWords. This fact alone justifies I/P Engine’s efforts to compel Defendants to do what this Court ordered them to do. Even more, as of this writing, I/P Engine remains unsure whether Defendants have produced all relevant documents. I/P Engine served its expert reports on September 25 potentially without a complete document production. What has been confirmed thus far through Google’s limited productions is that New AdWords is substantially the same system as Old AdWords. WHEREFORE, Plaintiff I/P Engine respectfully moves this Court to deny the Defendants’ Motion to Strike and grant all just and necessary relief. Dated: September 27, 2013 I/P ENGINE, INC. By: Donald C. Schultz, VSB No. 30531 W. Ryan Snow, VSB No. 47423 CRENSHAW, WARE & MARTIN, P.L.C. 150 West Main Street, Suite 1500 Norfolk, Virginia 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 dschultz@cwm-law.com wrsnow@cwm-law.com 2 /s/ Donald C. Schultz Of Counsel Jeffrey K. Sherwood, VSB No. 19222 Kenneth W. Brothers (admitted pro hac vice) Frank C. Cimino, Jr. (admitted pro hac vice) Dawn Rudenko Albert (admitted pro hac vice) Charles J. Monterio, Jr. (admitted pro hac vice) Jonathan Falkler (admitted pro hac vice) DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Counsel for I/P Engine, Inc. CERTIFICATE OF SERVICE I certify that on this 27th 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 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/ Donald C. Schultz 3

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