VRNG v GOOG - 20130416 - D Renewed Motion Becker Opp

7/28/2019 VRNG v GOOG - 20130416 - D Renewed Motion Becker Opp

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

)

I/P ENGINE, INC., ))Plaintiff, )

v. ) Civ. Action No. 2:11-cv-512)

AOL, INC. et al., ))

Defendants. ))

PLAINTIFF I /P ENGINES OPPOSITION TO

DEFENDANTS MOTION TO EXPEDITE BRIEFING

Defendants request to expedite the briefing on Defendants Renewed Motion to Compel

Deposition of Dr. Becker and for Enlargement of Time to Oppose Plaintiffs Motion for Post-

Judgment Royalties should be denied. Plaintiffs Motion for Post Judgment Damages was filed

almost four months ago. Any timing issues relating to the current motion schedule are of

Defendants own making at all times, I/P Engine acted diligently and in good faith regarding

Defendants request for an extension.

I/P Engine filed its Motion for Post Judgment Damages on December 18, 2012. On April

3, 2013, the Court reset the briefing schedule for Defendants opposition to April 18, and I/P

Engines reply to April 25. After the close of business on April 8, Defendants demanded that Dr.

Becker be provided for deposition at least 5 days before [their] opposition is due in other

words, in the next three days.1 Defendants did not request an extension of the briefing schedule

at that time. At a meet and confer on April 9, Defendants did not pursue their request to depose

1 (SeeEx. 1) I/P Engine has consistently opposed since January the further deposition of Dr.Becker.

Case 2:11-cv-00512-RAJ-TEM Document 927 Filed 04/16/13 Page 1 of 4 PageID# 23036


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Dr. Becker. Instead, during that meet and confer, Defendants were preoccupied with their

suggestion that because Google might attempt to implement an alleged design around at some

future date, all briefing should be postponed. Defendants made no proposal at that time, but said

that they would send a proposed schedule sometime later. (Ex. 2)

It was not until late Friday afternoon, that Defendants sent their proposal. (Ex. 3) Upon

receipt, I/P Engine immediately asked for clarification regarding the proposal. (Ex. 4) The

parties then discussed the issue by phone the morning of Monday, April 15, 2012 (approximately

11:51 AM (ET)/8:51 AM (PT)). It was not until this conversation that Defendants clarified their

request. I/P Engine did not respond to, much less accept, Defendants request during that

conversation. After considering Defendants request, I/P Engine advised Defendants at 2:40 PM

(ET)/11:40 AM (PT) that I/P Engine would not agree to a further delay of the briefing schedule.

(Ex. 5)

Dated: April 16, 2013 By: /s/ Jeffrey K. Sherwood

Donald C. Schultz (Virginia Bar No. 30531)W. Ryan Snow (Virginia Bar No. 47423)CRENSHAW, WARE & MARTIN PLC150 West Main StreetNorfolk, VA 23510Telephone: (757) 623-3000Facsimile: (757) 623-5735

Jeffrey K. Sherwood (Virginia Bar No. 19222)Frank C. Cimino, Jr.Kenneth W. BrothersCharles J. Monterio, Jr.DICKSTEIN SHAPIRO LLP1825 Eye Street, NWWashington, DC 20006Telephone: (202) 420-2200Facsimile: (202) 420-2201



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Dawn Rudenko AlbertDICKSTEIN SHAPIRO LLP1633 BroadwayNew York, NY 10019Telephone: (212) 277-6715

Facsimile: (212) 277-6501

Counsel for Plaintiff I/P Engine, Inc.



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CERTIFICATE OF SERVICE

I hereby certify that on April 16, 2013, the foregoingPLAINTIFF I /P ENGINES

OPPOSITION TO DEFENDANTS MOTION TO EXPEDITE BRIEFING, was served via

the Courts CM/ECF system on the following:

Stephen Edward NoonaKaufman & Canoles, P.C.150 W Main StSuite 2100Norfolk, VA [email protected]

David BilskerDavid PerlsonQuinn Emanuel Urquhart & Sullivan LLP50 California Street, 22nd FloorSan Francisco, CA [email protected]@quinnemanuel.com

Robert L. BurnsFinnegan, Henderson, Farabow, Garrett & Dunner, LLPTwo Freedom Square11955 Freedom DriveReston, VA [email protected]

Cortney S. AlexanderFinnegan, Henderson, Farabow, Garrett & Dunner, LLP3500 SunTrust Plaza303 Peachtree Street, NEAtlanta, GA [email protected]

/s/ Jeffrey K. Sherwood



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Exhibit 1

Case 2:11-cv-00512-RAJ-TEM Document 927-1 Filed 04/16/13 Page 1 of 3 PageID# 23040


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applicable law, and is intended only for the use of the individual or entity named above. If you are notthe intended recipient of this message, you are hereby notified that any use, distribution, copying ordisclosure of this communication is strictly prohibited. If you have received this communication inerror, please notify Kaufman & Canoles at (757) 624-3000 or by return e-mail [email protected], and purge the communication immediately without making any copy ordistribution.

Disclosure Required by Internal Revenue Service Circular 230: This communication is not a tax

opinion. To the extent it contains tax advice, it is not intended or written by the practitioner to be used,and it cannot be used by the taxpayer, for the purpose of avoiding tax penalties that may be imposedon the taxpayer by the Internal Revenue Service.



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Exhibit 2



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Exhibit 3



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50 California Street, 22nd FloorSan Francisco, CA 94111415-875-6316Direct415.875.6600 Main Office Number415.875.6700 [email protected]: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This messagemay be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intendedrecipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that anyreview, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediatelyby e-mail, and delete the original message.



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Exhibit 4



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Exhibit 5



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David PerlsonPartner,Quinn Emanuel Urquhart & Sullivan, LLP

50 California Street, 22nd FloorSan Francisco, CA 94111415-875-6344 Direct415.875.6600 Main Office Number415.875.6700 [email protected]

NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This messagemay be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intendedrecipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that anyreview, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediatelyby e-mail, and delete the original message.

From: Monterio, Charles [mailto:[email protected]]

Sent: Friday, April 12, 2013 3:30 PM

To: Margaret P. Kammerud; zz-IPEngineCc: QE-IP Engine; 'Noona, Stephen E.'; 'W. Ryan Snow ([email protected])'; 'Donald C. Schultz ([email protected])'Subject: RE: I/P Engine v. Google -- Proposed Schedule for Post-Judgment Damages

Meg,

Itseemsthatthereisadisconnectinwhatwediscussedduringourcallearlierthisweek. Weneveragreedthat

extendingthebriefingscheduleconcerningI/PEnginesongoingroyaltiesmotionwasappropriate. Duringthemeetand

confer,weagreedtoconsiderasubsequentproposalfromDefendantstoaddresstheallegedissuesthatDefendants

believeexistbasedonGooglesfutureimplementationofanallegedly,noninfringingAdWordssystem. WhileI/P

EnginedoesnotunderstandfullywhyDefendantsbelievethisfutureAdWordssystemimpactstheongoingroyalties

briefingotherthanpotentiallyestablishingasunsetdate,wewerewillingtoconsideryourproposalandexplanationfor

it.

Basedonyouremailbelow,itisunclearastowhattypeofextensionanddiscoveryrelatingtoboththecurrentbriefing

scheduleanddiscoveryrelatingtoGooglesclaimeddesignaroundyouareproposing.

Pleaseclarifysothatwecanconsiderandrespond.

Charles(202)4205167

Confidentiality StatementThis email message, including any attachments, is intended solely for the use of the addressee(s) named above. This communication may contain privileged

and/or confidential material. If you are not the intended recipient, you have received this communication in error, and any review, use, printing, copying, or otherdissemination of this email message is strictly prohbited. If you are not the intended recipient, please notify the sender immediately by reply email message ornotify our email administrator at [email protected] and permanently delete and destroy the original message and any and all copies, includingprintouts and electronic copies on any computer system.Dickstein Shapiro LLPwww.DicksteinShapiro.comFrom: Margaret P. Kammerud [mailto:[email protected]]

Sent: Friday, April 12, 2013 4:56 PMTo: Monterio, Charles; zz-IPEngine

Cc: QE-IP Engine; 'Noona, Stephen E.'; 'W. Ryan Snow ([email protected])'; 'Donald C. Schultz (dschultz@cwm-



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law.com)'Subject: I/P Engine v. Google -- Proposed Schedule for Post-Judgment Damages

Charles,

Asdiscussedonourcallthisweek,thepartiesareinagreementthatsomeextensiontothepresentbriefingschedule

concerningPlaintiffsmotionforpostjudgmentdamagesisappropriate.

In

order

to

allow

Plaintiff

ample

time

for

discovery

concerning

the

launch

of

a

change

in

the

operation

of

AdWords

and

toallowDefendantsamplediscoveryconcerningPlaintiffspostjudgmentdamagetheories,weproposethefollowing

schedule. BartholomewFurrowwillbetravelingoutsidethecountryinMayandearlyJune,soatthispoint,June7isthe

earliestdepositiondatewecanofferforhim

Pleaseletusknowifyouareamenabletothisschedule,andwewillprepareamotionseekingthisextension.

Ininterim,whileyouareconsideringthisproposal,canyouconfirmthatPlaintiffwillagreetoanadditionaltwoweeks

fortheDefendantsoppositionbrief? Wewillobviouslyreciprocatewithyourreply.

Best,

Meg

ProposedSchedule:

May17 Sourcecodeavailableforreview

OnorbeforeJune7 ProvideBartholomewFurrowfordeposition

June21 Plaintifftoserveanyadditionalexpertdeclarationorrevisedmotion.

July2 Dr.Becker(oranyotherexpertonwhomPlaintiffmayrely)willbemadeavailablefordeposition

bythisdate.

Defendantswillhavetwoweeksfromfinalexpert(s)depositiontofileopposition.

Plaintiffwillhavetwoweeksfromfilingofoppositiontofilereply.

Margaret P. KammerudAssociate,

Quinn Emanuel Urquhart & Sullivan, LLP

50 California Street, 22nd FloorSan Francisco, CA 94111415-875-6316Direct415.875.6600 Main Office Number415.875.6700 [email protected]



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NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This messagemay be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intendedrecipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that anyreview, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediatelyby e-mail, and delete the original message.


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VRNG v GOOG - 20130416 - D Renewed Motion Becker Opp