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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.,
Plaintiff,
v.
AOL, INC. et al.,
Defendants.

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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

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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:
[phone]
Facsimile:
[phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
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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:
[phone]
Facsimile:
[phone]
Counsel for Plaintiff I/P Engine, Inc.

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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
[e-mail]
David Bilsker
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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