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

Filing 994

Memorandum in Support re 993 MOTION for Leave to File Supplemental Memorandum Setting Forth Additional New Facts Justifying Its Request for Default Judgment in I/P Engine's Motion for Defendants to Show Cause Under Rule 37 for Noncompliance with the August 13, 2013 Order 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. AOL, INC. et al., Defendants. ) ) ) ) ) ) ) ) ) ) Civ. Action No. 2:11-cv-512 PLAINTIFF I/P ENGINE, INC.’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE SUPPLEMENTAL MEMORANDUM OF NEW ADDITIONAL FACTS JUSTIFYING ITS MOTION FOR DEFENDANTS TO SHOW CAUSE UNDER RULE 37 FOR NONCOMPLIANCE WITH AUGUST 13, 2013 ORDER Plaintiff I/P Engine, Inc. (“I/P Engine”), by counsel, for its Memorandum in Support of its Motion for Leave to File its Supplemental Memorandum of New Additional Facts Justifying Its Motion for Defendants to Show Cause under Rule 37 for Noncompliance with August 13, 2013 Order, states as follows: Background and Argument By Memorandum Opinion and Order dated August 13, 2013, this Court ordered the parties to produce, no later than August 25, 2013, “any documents relevant for determining whether New AdWords is no more than a colorable variation of the adjudicated product.” D.I. 963, p. 8 (emphasis added). On August 30, 2013, five days after the production deadline, I/P Engine filed a Motion for Defendants to Show Cause under Rule 37 for Noncompliance with the August 13, 2013 1 Order. See D.I. 978. The basis for the motion was a substantial lack of documents produced by the Defendants as of the deadline ordered by the Court. After briefing closed on the Motion to Show Cause, new additional evidence came to light during the deposition of Mr. Bartholomew Furrow, a Google employee. In sum, Mr. Furrow’s testimony revealed that Google (1) deleted relevant electronic records, (2) purposefully avoided producing relevant launch documents, (3) withheld relevant English-language descriptions of the changes to its source code, (4) withheld relevant “launch cal” documents, and (5) withheld 140 pages of source code until well after this Court’s deadline for production. I/P Engine had no way of knowing the extent of this lack of production until the deposition of Mr. Furrow. All of it bears directly on I/P Engine’s Motion to Show Cause, which remains pending. There is no explanation for the pattern of behavior other than gamesmanship. WHEREFORE, plaintiff I/P Engine, Inc., by counsel, respectfully requests that this Court grant I/P Engine leave to file its Supplemental Memorandum of New Additional Facts Justifying Its Motion for Defendants to Show Cause under Rule 37 for Noncompliance with August 13, 2013 Order. I/P ENGINE, INC. Dated: October 7, 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) 2 Frank C. Cimino, Jr. Kenneth W. Brothers Dawn Rudenko Albert Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Counsel for Plaintiff I/P Engine, Inc. 3 CERTIFICATE OF SERVICE I hereby certify that on October 7, 2013, the foregoing was served via the Court’s CM/ECF system on 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 4

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