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)

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

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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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/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: [phone]
Facsimile: [phone]
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 [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/ Donald C. Schultz

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