XpresSpa Group Inc (XSPA)

[JJSeabrook]

More RELEVENT EXCERPTS: And, YES, GOOG wasn't going to allow ANY of their employees testify to a noninfringing work around. Forget that shit! LOL They tried to use their hired whore, Ugone, for a report, but he came off like a bafoon. It's set forth below for those too lazy to read up on it themselves, and of course not referring to you, postyle.
C.

Google And IAC’s Untimely Supplementation of Their InterrogatoryResponses Regarding Non-Infringing Alternatives1.

I/P Engine’s November 2011 Discovery Requests Regarding Non-infringing Alternatives
I/P Engine served its Interrogatory No. 9 on Google on November 7, 2011. InterrogatoryNo. 9 requested that Google:Identify any system, and when it was developed, that Google intends to rely uponin this litigation as a non-infringing alternative to each Google system identifiedin response to Interrogatory No. 2 including, but not limited to, all facts,documents, communications and/or events which Google contends are pertinentthereto, and identify the persons having the most knowledge of such facts,documents, communications and/or events.Ex. 10.
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I/P Engine’s November 7, 2011 Document Requests also expressly sought informationas to Defendants’ contentions relating to non-infringing alternatives. Document Request No. 72sought: “Each document on which Google intends to rely upon in this litigation related to a non-infringing alternative.”Google and IAC responded that the interrogatories were premature “given the vaguenature of I/P Engine’s infringement contentions to date,” but that they would produce responsivebusiness records. Ex. 11. Google then supplemented its interrogatory response, directing I/PEngine to a list of Bates control numbers that spanned over 17 pages. Ex. 12. None of the
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Interrogatory No. 8 to IAC corresponds to Interrogatory No. 9 to Google and uses the term“Relevance Score,” but as discussed above, Defendants agreed to provide responsive informationrelating to “Quality Score” for such discovery requests.
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14documents identified in those 17 pages of citations identified the non-infringing alternatives nowdescribed in Google and IAC’s supplemental response No. 9.
2.

Defendants’ Untimely August 30, 2012 Service of New InterrogatoryResponses relating to Non-Infringing Alternatives
Concurrent with the service of Defendants’ damages report and Defendants’ non-infringement expert report, on August 29, 2012, Google and IAC supplemented their responsesto I/P Engine’s Interrogatory No. 9, for the first time articulating multiple alleged non-infringingalternative systems. Ex. 13. For example,
Id
.To support his opinions expressed [color=red]in his report, Dr. Ugone (Defendants’ damages expert)stated that he relied on conversations with Dr. Ungar (Defendants’ non-infringement expert), andMr. Alferness and Mr. Fox (both Google employees) to arrive at his opinions regarding non-infringing alternatives. Significantly, Google had previously designated Mr. Alferness for anumber of 30(b)(6) topics; however, Google refused to designate him on the topic of non-infringing alternatives. Nevertheless, Google’s damages expert, Dr. Ugone testified that hemainly relied on Dr. Ungar and Mr. Alferness for his opinions regarding Defendants’ allegednon-infringing alternatives.
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In his report, Dr. Ungar relies only on conversations with Mr.Alferness.I/P Engine deposed Mr. Alferness on June 21, 2012 about eighteen 30(b)(6) topics.Google refused, however, to designate Mr. Alferness or any other witness on non-infringingalternatives, claiming that it was more appropriately asked in a contention interrogatory. Ex. 15.
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At Mr. Fox’s deposition on September 12, 2012, he testified that he could not “remember allthe details of what [he] said [to Dr. Ugone] but we discussed some ideas about noninfringingalternatives.” Ex. 14.
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15Ironically, I/P Engine served such an interrogatory on Defendants on November 7, 2011. Ex. 10.Because Google refused to permit Mr. Alferness or any other corporate designee testifyregarding non-infringing alternatives, and expressly endorsed its prior interrogatory response inwhich it failed to disclose any non-infringing alternatives, I/P Engine relied on Google’sresponse to Interrogatory No. 9 (or lack of any identification of non-infringing alternatives) innot seeking further discovery on the issue.During meet and confers on this matter, Defendants have provided no explanation as towhy they did not supplement their response to Interrogatory No. 9 until the close of factdiscovery, or why they failed to designate Mr. Alferness to testify regarding this topic, whilesimultaneously having Mr. Alferness speak with Google’s damages and infringement experts onthis exact same subject. Because Defendants supplemented their response to Interrogatory No. 9only three business days before the end of discovery, and months after the fact depositions of Google’s engineers and 30(b)(6) witnesses, I/P Engine has no way of taking discovery on theefficacy of Google’s brand new non-infringing alternatives. Dr. Becker did not have theopportunity to consider or opine on these new contentions in his report.