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 DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE SUPPLEMENTAL MEMORANDUM REGARDING MOTION TO SHOW CAUSE AND MOTION TO STRIKE PLAINTIFFS SUPPLEMENTAL MEMORANDUM Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 1 of 18 PageID# 24068 1 Introduction The facts underlying Plaintiffs claim that Googles New AdWords system is no more than a colorable variation from the Old AdWords system are not in dispute. This is because Plaintiff and its expert Dr. Frieder received all the information they needed through the voluminous source code and technical documents that Google produced by August 25, 2013, the end of the ten day period1 the Court gave the parties to produce the documents relevant to determining whether New AdWords is no more than a colorable variation of Old AdWords, and in conjunction with the deposition of Bartholomew Furrow, whom Google made available also pursuant to the Courts Order. Indeed, in his report, Dr. Frieder does not cite to a single document that Google had not produced by the August 25 deadline for production of relevant documents. And neither he nor Plaintiff point to any fact regarding New AdWords that Plaintiff or he could not ascertain from this initial production. In other words, Googles production of documents that were actually relevant to whether New AdWords is no more than a colorable variation of the old AdWords was spot-on. Rather than focus on the substance of whether New AdWords is more than a colorable variation of Old AdWords, Plaintiff yet again seeks to falsely cast aspersions on Google in support of its fourth motion for sanctions in this case.2 (See Dkts. 200, 277, 282 (Plaintiffs first three sanctions motions); Dkts. 275, 697 (denying all three motions)). Google already demonstrated why, like Plaintiffs prior three motions, this one also should be denied. As discussed more fully in Googles Opposition to Plaintiffs underlying Motion to Show Cause 1 The Court gave Google ten days, but the 10th day fell on a Sunday – August 25, 2013. 2 Plaintiff’s first and third sanctions motions were denied in their entirety, while for the second sanctions motion the Court denied Plaintiff’s actual sanctions requests and merely ordered Google to update certain U.S. revenue figures, as Google had already agreed to do. (Dkt. 697). Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 2 of 18 PageID# 24069 2 (Dkt. 982), Google first produced 986 highly-confidential source code files (two million lines of code) as well as other technical documents showing the changes to the accused systems. After Plaintiff complained that it was also entitled to custodial emails – even though the parties agreed earlier that there was no obligation to preserve emails after the start of the litigation – Google then undertook a time-intensive email pull and produced roughly 9,000 pages of custodial emails as well. After its deposition of Google engineer Bartholomew Furrow, Plaintiff requested additional categories of documents, and – continuing its efforts to work with Plaintiff in good faith to avoid unnecessary disputes before the Court – Google worked quickly to produce these newly-requested documents in time for Plaintiffs expert reports. Googles actions do not remotely show a party who is disregarding its discovery obligations and/or deserves sanctions. Rather, Googles actions show a party who is working hard to accommodate Plaintiffs serial discovery requests in good faith to avoid unnecessary disputes and motion practice. Despite Googles good-faith efforts, Plaintiff rushed to the Court raising its baseless request for sanctions. Plaintiff now seeks to buttress its sanctions request with a series of new accusations raised in the supplemental memorandum, which it filed at the same time it sought leave to file – essentially granting its own relief. Plaintiffs self-help alone warrants denial of Plaintiffs motion for leave. But even if considered, Plaintiffs new accusations are just as baseless as its prior ones. First, Plaintiff alleges that Google improperly deleted instant message chats about New AdWords. But the parties had agreed long ago that instant messages occurring after the filing date of the litigation need not be preserved or produced. In any event, Googles company-wide policy since 2008 has been not to record IMs in the first place. Google did not delete anything; it simply followed its long-time corporate policy in not recording these communications. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 3 of 18 PageID# 24070 3 Second, Plaintiff alleges that Google did not create launch documents about New AdWords. But litigants have no obligation to create new documents just because their opponents would like to discover them. Googles decision not to create certain launch documents cannot be deemed improper as a matter of law. Third, Plaintiff alleges that Google withheld calendaring documents and textual notes about its source code changes. These ministerial documents about the source code changes have little if any relevance to determining whether New AdWords is no more than a colorable variation of Old AdWords, particularly compared to the source code itself. But when Plaintiff stated that it believed these ministerial documents were relevant and asked that they be produced, Google promptly did so. Tellingly, Plaintiff did not cite any of these documents in its expert reports either, thus confirming that these ministerial documents about the source code (as opposed to the source code itself) are not relevant. Plaintiffs Motion for Leave, like its underlying Motion to Show Cause, is nothing more than an unjustified attempt to win its post-judgment royalty case by default. Plaintiff seeks a default death penalty sanction – namely, an order that New AdWords is no more than a colorable variation of Old AdWords. Yet, as explained in Defendants Opposition to the underlying Motion to Show Cause, such sanctions are reserved for flagrant behavior that is materially prejudicial to the opposing party. (Dkt. 982 at 14 (citing Wilson v. Volkswagen of Am., 561 F.2d 494, 504 (4th Cir. 1977)). Plaintiff cannot show flagrantly improper behavior by Google. To the contrary, Google has worked hard to accommodate Plaintiffs serial discovery requests, even after Plaintiff cast its net wider and wider by deeming more and more documents supposedly relevant to its case. And Plaintiff cannot show prejudice, as the only documents that Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 4 of 18 PageID# 24071 4 Plaintiffs expert actually cited in his report are the source code and technical documents that Google originally produced by the Courts August 25 deadline. Likewise, civil contempt sanctions of any kind are designed to coerce the contemnor into compliance with court orders or to compensate the complainant for losses sustained. Bradley v. Am. Household Inc., 378 F.3d 373, 378 (4th Cir. 2004). But Google has complied even with Plaintiffs serial, seemingly never-ending document requests. There is nothing to coerce. And Plaintiff has suffered no prejudice, so there are no losses that require compensation. Accordingly, contempt sanctions of any kind are inappropriate, much less the death penalty sanction of a default judgment. Thus, like the underlying Motion to Show Cause, the supplemental memorandum is without merit. The Court should disregard the supplemental memorandum and deny the Motion for Leave to file the supplemental memorandum. Background I. DEFENDANTS PRODUCED THE DOCUMENTS RELEVANT TO DETERMINING WHETHER NEW ADWORDS IS NO MORE THAN A COLORABLE VARIATION BEFORE THEY WERE DUE. On August 14, 2013, the Court ordered Defendants to produce any documents relevant for determining whether New AdWords is no more than a colorable variation of the adjudicated product. (Dkt. 963 at 8.) The Court ordered this production by Sunday, August 25. (Id.) Google diligently searched for the documents relevant to making this determination, and produced them in advance of the deadline, on August 23: 986 source code files (two million lines of code) relating to New AdWords, as well as technical design documents about the new system.3 (See Dkt. 982 at 3.) These documents would turn out to be the only Google-produced 3 As early as this Spring, Google had offered Plaintiff discovery into New AdWords – including these technical documents and a deposition – in conjunction with the briefing over Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 5 of 18 PageID# 24072 5 documents that Plaintiffs technical expert, Dr. Frieder, would cite in his expert report on whether New AdWords is no more than a colorable variation of Old AdWords. Not only did Google produce the source code, but it went to great lengths to make this code as accessible and digestible as possible. For example, rather than dumping irrelevant code on Plaintiff and forcing Plaintiff to go fish for the relevant portions, Google carefully targeted its production to the source code files that show the changes between Old AdWords and New AdWords. As Google engineer Bartholomew Furrow explained at his deposition: So what happened is I – I looked for changes to the code that were relevant in my opinion to the changes between old AdWords and new AdWords. And what I did is I identified particular change lists that corresponded to changes – relevant changes. And each change list corresponds to a certain set of files. (Sohn. Decl.,4 Ex. 8 (Furrow Dep. 224:1-7).) Google then produced before and after versions of this code, since this would be the easiest way for Plaintiff to identify and review the changes that were made to the code. (Id., 224:18-21 (And so I thought it would be most helpful to you if we – if I provided a version that – or both versions that would highlight the changes that took place . . . .).) Google even instructed Plaintiff on how to make a diff or redline copy to specifically show these changes between the before and after versions of the code. (Dkt. 983 (Sistos Decl.) at ¶ 7.) II. PLAINTIFF FILES ITS UNNECESSARY MOTION TO SHOW CAUSE On August 27, 2013, Plaintiff demanded that Google also produce custodial emails discussing the new system. Google did not agree that custodial emails were relevant to determining whether New AdWords is no more than a colorable variation of Old AdWords; that is shown in the source code. As Plaintiffs technical expert testified at trial, source code is as Plaintiffs original motion for post-judgment royalties. (See Dkt. 925). Plaintiff refused to take discovery at that time. (Dkt. 925-2.) 4 The Declaration of Joshua L. Sohn (Sohn Decl.) is filed concurrently herewith. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 6 of 18 PageID# 24073 6 detailed as you get regarding the operation of AdWords. (Trial Tr. 593:2-3.) Moreover, the parties had agreed during pre-trial discovery that there was no obligation to preserve emails after the start of the litigation. (Sohn. Decl., Ex. 3 and ¶ 2.) Furthermore, as explained in Googles Opposition to the underlying Motion to Show Cause, it was entirely reasonable for Google to read the Courts August 14 Order to implicate source code and technical documents rather than custodial emails, given that custodial emails are extremely voluminous and could not practically be collected and produced in just 10 days. (Dkt. 982 at 5-6.) In the pre-trial discovery phase, review and production of custodial emails took two months. (See id.) The Court explicitly blessed that two-month timetable, finding it reasonable. (See id.) Thus, it was reasonable for Google to conclude that the Courts August 14 Order did not require a custodial email pull in just 10 days, particularly when source code and technical documents (not custodial emails) were the documents actually relevant to determining whether New AdWords is no more than a colorable variation of Old AdWords. And Plaintiff certainly did nothing to reflect a contrary understanding. Indeed, when the parties discussed custodial emails in the pre-trial discovery period, there were lengthy and prolonged discussions regarding custodians and search terms. Plaintiff made no effort to engage in similar discussions in the post-judgment phase, either before or even after the August 25 deadline for production of relevant documents. This was entirely consistent with Plaintiffs conduct earlier in the case, in which Plaintiff sought production of emails only after Google’s technical documents had been produced. (See Dkt. 982 at 6 n.3). Nonetheless, in the interest of compromise and to avoid motion practice, Google agreed on August 28 to collect and produce custodial emails. (Dkt. 982 at 4.) Google completed this production by September 13, 2013, producing over 9,000 pages of custodial emails to Plaintiff. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 7 of 18 PageID# 24074 7 Rather than meeting and conferring with Google about the scope of this production, the timing of this production, or anything else, Plaintiff abruptly filed its Motion to Show Cause on August 29, the day after Google had agreed to produce the emails in question. (Dkt. 978.) Plaintiff thus sought sanctions over an issue on which the parties had already reached agreement. III. PLAINTIFF REQUESTS ADDITIONAL DOCUMENTS On September 20, 2013, Plaintiff took the deposition of Google engineer Bartholomew Furrow. Plaintiff did not question Mr. Furrow on any of the 9,000 pages of custodial emails at his deposition, despite Plaintiffs prior insistence that they be produced in time for the deposition and Plaintiffs prior representations in briefing that custodial emails were supposedly critical to its post-judgment royalties case. (See Dkt. 979 at 5 (The communications between Google personnel, especially its engineers, and other custodial documents describing Googles efforts regarding the relevant changes serves as a necessary tool in efficiently mapping out what changes Google actually implemented. . . .).) After the deposition, Plaintiff requested the production of additional documents. Specifically, Plaintiff requested the production of: (1) textual notes about the source code changes that Google had made to the accused systems; and (2) Launch Cal documents for certain aspects of the changes that Google had made to the accused systems.5 (Sohn Decl., Ex. 4.) Google produced these documents barely 24 hours later, on the night of September 24. (Sohn Decl., Ex. 5.) 5 As Mr. Furrow explained, Launch Cal is short for Launch Calendar, and the basic notion is it contains a list of upcoming and past and current launches, thus the calendar aspect. (Sohn Decl., Ex. 8 (Furrow Dep. 201:8-12).) Because Launch Cal documents are ministerial calendaring documents, they typically do not have significant notes on the substance of the various launches. (Id. at 201:25-202:23.) The one additional Launch Cal document that Google was able to find and produce after the Furrow deposition is attached hereto as Sohn Decl., Ex. 9. The Launch Cal document that Google had produced with its previous production is attached hereto as Sohn Decl., Ex. 10. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 8 of 18 PageID# 24075 8 IV. PLAINTIFFS EXPERT REPORT DOES NOT CITE ANY OF THE DOCUMENTS THAT FORM THE BASIS OF PLAINTIFFS MOTION Plaintiff served the expert report of its technical expert, Dr. Frieder, on September 25. (Sohn Decl., Ex. 6.) Again, this report did not cite any of the 9,000 pages of emails that Google had produced (at Plaintiffs insistence) before the Furrow deposition or any of the textual notes or Launch Cal documents that Google had produced after the Furrow deposition and that Plaintiff now complains so bitterly about. Nor did Plaintiff request any extension of its report on the ground that it needed additional time to digest these recently-requested and recently-produced documents. (Sohn Decl., ¶ 10.) Instead, Plaintiff served its expert report on September 25, citing exclusively to the source code and technical documents that Google had produced on August 23, the Furrow deposition testimony, a Furrow Declaration from May 2013, and Plaintiffs own documents. (Sohn Decl., Ex. 6 at ¶ 4.) V. PLAINTIFF FILES THE PRESENT MOTION WITH NO MEET AND CONFER On October 7 Plaintiff filed the present Motion for Leave to file a supplemental memorandum (Dkts. 993 & 994) as well as the supplemental memorandum that it sought leave to file. (Dkt. 998). Plaintiff did not request any meet-and-confer before filing the Motion for Leave. (Sohn Decl., ¶ 9.) Plaintiff filed it without notifying Defendants in any way. As noted above, Plaintiff also filed the underlying Motion to Show Cause without meeting and conferring. Argument I. PLAINTIFFS SUPPLEMENTAL MEMORANDUM SHOULD BE STRICKEN Rather than waiting for the Court to rule on Plaintiffs Motion for Leave to file a supplemental memorandum (Dkt. 993), Plaintiff actually filed the supplemental memorandum Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 9 of 18 PageID# 24076 9 (Dkt. 998) concurrently with the Motion for Leave.6 Plaintiff thus granted itself the very relief (filing of the supplemental memorandum) that it purports to seek through the Motion for Leave. This self-help is improper, and the Motion for Leave should be denied for this threshold reason alone. For the same reason, the supplemental memorandum (Dkt. 998) should be stricken from the record, as Plaintiff filed this document without being granted leave to do so. II. PLAINTIFFS ALLEGATIONS OF DISCOVERY MALFEASANCE ARE MERITLESS Plaintiff alleges that the Furrow deposition revealed additional discovery malfeasance by Google. (Dkt. 994 at 2.) Plaintiff does not explain this alleged malfeasance in any detail in the Motion for Leave, instead doing so through the supplemental memorandum it filed at the same time it asked leave to file it. But however Plaintiff divides its accusations between these two documents, the accusations are meritless. A. Google Did Not Delete Electronic Records Plaintiff first argues in its motion for leave that Google deleted relevant electronic records. (Dkt. 994 at 2.) This allegation is presumably referring to its argument in its supplemental memorandum concerning chats conducted over Googles instant messaging services, Google Talk or Google Hangouts. (Dkt. 998 at 2.) But the parties explicitly agreed that neither party had an obligation to preserve corporate instant messages created after September 15, 2011. (Sohn Decl. Exs. 1-2.) Here, Googles internal electronic chats certainly qualify as corporate instant messages that Google had no obligation to preserve, per the parties agreement. That Plaintiff would seek a default judgment for Googles following the parties agreement shows how meritless Plaintiffs request is. 6 Rather than attaching the supplemental memorandum as an exhibit to the Motion for Leave, as required by the Local Rules, Plaintiff actually filed these documents under entirely different docket entries. (See Dkts. 993, 998.) Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 10 of 18 PageID# 24077 10 And to be clear, Google did not delete anything. Nor did Google, as Plaintiff implies, alter its practices with respect to the chats at issue here. At Google, chats are not recorded as a matter of course. Googles company-wide corporate policy since 2008 has been by default to conduct all intra-company chats in off-the-record mode, meaning that such chats are not stored or recorded.7 (Zmrhal Decl., ¶ 8.) This policy is consistent with the caselaw, which recognizes that parties have no obligation to preserve or record ephemeral, real-time conversations such as instant message chats. As one court noted, demanding that a defendant log every chat would be akin to a demand that a party to a litigation install a system to monitor and record phone calls coming in to its office on the hypothesis that some of them may contain relevant information. There is no such requirement . . . . Malletier v. Dooney & Burke, No. 04-5316, 2006 WL 3851151, at *2 (S.D.N.Y. Dec. 22, 2006). While Plaintiffs allegations may have some superficial rhetorical appeal, Googles engineers did nothing untoward here. Rather, they followed the parties agreement in the case and the policy in place at Google since 2008. B. Google Had No Obligation to Create Launch Documents Plaintiff next argues in its Motion for Leave that Google purposefully avoided producing relevant launch documents about changes to the accused systems. (Dkt. 994 at 2.) This allegation is also false. As Plaintiff indicates in its supplemental memorandum, Plaintiffs real complaint is that Google did not create documents, not that Google failed to produce documents that it had created. (Dkt. 998 at 4 (Google changed its general business practices to avoid creating relevant documents. . . . ).) So Plaintiffs real allegation is that Google somehow engaged in impropriety by not creating launch documents. This allegation also fails as a matter of law. It is a basic rule of civil discovery that parties have a duty to produce documents within 7 The Declaration of Kristin Zmrhal is filed concurrently herewith. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 11 of 18 PageID# 24078 11 their possession, but have no duty to create new documents. See, e.g., Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir. 1993) (affirming ruling that the defendant was not required to create documents to satisfy [plaintiffs] discovery requests); Brown v. Warden Ross Correctional Inst., No. 2:10-cv-822, 2011 WL 1877706, at *5 (S.D. Ohio May 16, 2011) (similar). Thus, Googles decision not to create launch documents cannot be deemed improper or sanctionable as a matter of law. Here too, Plaintiff has made spurious allegations of malfeasance with superficial rhetorical appeal, but devoid of any substance. C. Google Promptly Produced the Textual Source Code Notes and Launch Cal Documents That Plaintiff Requested After the Furrow Deposition Plaintiff finally enumerates other categories of documents that Google supposedly withheld – namely, a single Launch Cal document and textual notes about Googles source code changes. (Dkt. 994 at 2.) The former is one ministerial calendaring document (see footnote 5, supra), while the latter are vague and brief notes on the source code changes. (Sohn Decl., Ex. 8 (Furrow Dep. 230:17-22).) Notably, Plaintiff had one Launch Cal document in its possession before the Furrow deposition (Sohn Decl. Ex. 10 and ¶ 15), yet Plaintiff gave no indication before the Furrow deposition that these Launch Cal documents had any relevance or that additional Launch Cal documents should be produced. Likewise, it is hardly uncommon for Google or any other software company to have a change list with textual notes of source code changes, yet Plaintiff expressed no desire for such textual notes before the Furrow deposition. Only three days after the Furrow deposition did Plaintiff first say anything about desiring these documents. The fact that Plaintiff waited until three days after the deposition before uttering a word about these ministerial documents shows that Plaintiffs demands are driven more by gamesmanship than a legitimate need for relevant documents. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 12 of 18 PageID# 24079 12 Google did not focus on these ministerial documents in its initial production because Google was focusing on producing the actual source code changes that these documents relate to. Googles focus on the source code, rather than additional ministerial documents about the source code, was borne out by the fact that Plaintiffs technical expert did not ultimately cite any of these additional ministerial documents in his expert report. Yet Plaintiff seeks the death penalty sanction of a default judgment simply because Google did not produce these ministerial documents before Plaintiff specifically asked for them. In any event, Plaintiff admits that it first asked for these ministerial documents after the Furrow deposition and that Google promptly produced them at that time. (Dkt. 998 at 4-5.) Indeed, the parties email correspondence shows that Plaintiff first asked for these documents the evening of September 23 and that Google produced them just 30 hours later. (Sohn Decl., Exs. 4-5.) Thus, Plaintiffs allegation that Google engaged in malfeasance with respect to these documents should be rejected too. Rather, Googles production of these documents immediately after Plaintiff requested them shows Googles good-faith efforts to promptly produce all documents that Plaintiff deems relevant and asks to be produced. Indeed, all Plaintiff has demonstrated is that working with Plaintiff in good faith is useless. Unfortunately, good-faith efforts to deal with Plaintiffs concerns (legitimate or not) only spur further motion practice from Plaintiff. Google respectfully submits that entertaining Plaintiffs empty complaints only further encourages the parties not to cooperate, and to further waste party and Court resources with unnecessary motion practice as here. D. Plaintiff Has Suffered No Prejudice Even if the Court somehow found any impropriety in Googles good-faith initial production and its continued good faith in dealing with Plaintiffs subsequent requests, Plaintiff shows no prejudice from anything Google has done. Plaintiff points to no relevant fact as to Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 13 of 18 PageID# 24080 13 whether New AdWords is more than a colorable variation from Old AdWords that it does not have or could not have discovered from Googles initial production of documents pursuant to the Courts August 14 Order. Indeed, Plaintiffs technical expert cited nothing other than the documents Google produced before the Courts deadline for production of documents regarding whether New AdWords is more than a colorable variation from Old AdWords. Nor did he state that he was unable to determine any of the relevant facts about New AdWords from Googles document production. And to the extent Plaintiff needed more time to digest any of the documents subsequently produced in good faith in response to Plaintiffs serial requests, Plaintiff did not seek any extension of its expert report deadline in order to digest these documents (Sohn Decl., ¶ 10) – an extension that Defendants would have gladly granted, had Plaintiff requested it. In fact, Defendants had previously offered up to a one-month extension of Plaintiffs expert report deadline in exchange for Plaintiff withdrawing its Motion to Show Cause. Yet Plaintiff, far from agreeing to an extension to moot the Motion to Show Cause, demanded that Google present Mr. Furrow for 14 hours of deposition (even thought it ultimately ended up taking less than a seven hour deposition of Mr. Furrow), and, even though not called for under the Court’s Order, answer an interrogatory before Plaintiff would withdraw this Motion. (See Sohn Decl., Ex. 11 at 2 & Ex. 12.) Moreover, Plaintiffs demanded interrogatory had numerous sub-parts, requiring a narrative identifying what features have been modified or removed from the adjudged infringing systems, identifying and describing the new features and/or functionality that replaced the modified or removed features, providing an overview of how the New AdWords system having the new features generally works (from receiving a users search query to displaying the relevant advertisements), and describing any features that enabled the removal of those features or now perform any function(s) of those features. (Sohn Decl., Ex. 12.) Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 14 of 18 PageID# 24081 14 In reality, the operation of New AdWords is undisputed. The expert reports of Plaintiffs technical expert (Dr. Frieder) and Defendants expert (Dr. Ungar) do not conflict at all in their descriptions of how New AdWords actually operates. (Compare Sohn Decl. Ex. 6 with Sohn Decl. Ex. 7.) They merely conflict in their opinions on whether this undisputed functionality represents more than a colorable difference from Old AdWords. But that, of course, demonstrates no prejudice.8 In sum, Plaintiff presents no evidence that it suffered any prejudice from Googles document production, including its source code production. Indeed, as detailed above, the facts show just the opposite. Plaintiff is simply ginning up meritless accusations in an attempt to win its post-judgment royalty case by default. (See Dkt. 998 at 5 (This Court should impose sanctions against Google by entering default judgment against Google that the alleged changes to New AdWords are no more than colorably different than Old AdWords. . . .).) The Court should not indulge these tactics. As noted above, default sanctions are limited to flagrantly improper behavior that materially prejudices the rights of the opposing party,9 and Plaintiff has shown neither flagrantly improper behavior nor prejudice. Nor are contempt sanctions of any kind appropriate, as there is no need to coerce Google into compliance with the Courts Order or compensate Plaintiff for any losses that Plaintiff sustained (because Plaintiff sustained no losses). 8 On the issue of prejudice, Plaintiff also argues that Googles allegedly untimely production of English-language source code descriptions prejudiced Plaintiff because it le[ft] I/P Engine to sort through the underlying code (968 source code files and almost two million lines of code (D.I. 982 at 3)) without the aid of these descriptions. (Dkt. 998 at 4.) If Plaintiff is trying to insinuate that Google dumped source code on Plaintiff without giving Plaintiff the tools to properly analyze it, this insinuation is meritless. As discussed in the Statement of Facts, supra, Google carefully targeted its source code production to the files showing the changes between Old AdWords and New AdWords, and even instructed Plaintiff how to make a redline copy to highlight those changes. 9 Wilson, 561 F.2d at 504. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 15 of 18 PageID# 24082 15 Thus, Plaintiffs Motion for Leave, like its underlying Motion to Show Cause, should be denied. DATED: October 21, 2013 /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel davidperlson@quinnemanuel Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 16 of 18 PageID# 24083 16 Facsimile: (202) 408-4400 Cortney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Telephone: (404) 653-6400 Facsimile: (415) 653-6444 Counsel for Defendant AOL Inc. Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 17 of 18 PageID# 24084 17 CERTIFICATE OF SERVICE I hereby certify that, on October 21, 2013, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Jeffrey K. Sherwood Kenneth W. Brothers DICKSTEIN SHAPIRO LLP 1825 Eye Street NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 sherwoodj@dicksteinshapiro brothersk@dicksteinshapiro Donald C. Schultz W. Ryan Snow Steven Stancliff CRENSHAW, WARE & MARTIN, P.L.C. 150 West Main Street, Suite 1500 Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 [email protected] wrsnow@cwm-law sstancliff@cwm-law Counsel for Plaintiff, I/P Engine, Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan Case 2:11-cv-00512-RAJ-TEM Document 1003 Filed 10/21/13 Page 18 of 18 PageID# 24085
Posted on: Tue, 22 Oct 2013 14:18:11 +0000
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