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

Filing 102

Memorandum in Support re 101 MOTION to Seal Portions of Defendants' Brief in Support of their Motion to Compel Plaintiff to Supplement its Infringement Contentions and Exhibits K, L, M, and N to the Declaration of Emily O'Brien in Support Thereof filed by Google Inc., IAC Search & Media, Inc.. (Noona, Stephen)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION I/P ENGINE, INC. Plaintiff, v. Civil Action No. 2:11-cv-512 AOL, INC., et al., Defendants. MEMORANDUM IN SUPPORT OF MOTION TO SEAL PORTIONS OF DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION TO COMPEL PLAINTIFF TO SUPPLEMENT ITS INFRINGEMENT CONTENTIONS AND EXHIBITS K, L, M AND N TO THE DECLARATION OF EMILY C. O’BRIEN IN SUPPORT OF DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION TO COMPEL PLAINTIFF TO SUPPLEMENT ITS INFRINGEMENT CONTENTIONS In support of their Motion to Seal pursuant to Local Rule 5, Defendants Google, Inc. and IAC Search & Media, Inc. (collectively, “Defendants”) state the following: 1. Defendants move the Court for leave to file under seal Portions of Defendants’ Brief in Support of Their Motion to Compel Plaintiff to Supplement its Infringement Contentions (“Portions of Defendants’ Brief”) and Exhibits K, L, M and N to the Declaration of Emily C. O’Brien in Support of Defendants’ Brief in Support of Their Motion to Compel Plaintiff to Supplement its Infringement Contentions (“Certain Exhibits to O’Brien Declaration”). Portions of Defendants’ Brief and Certain Exhibits to O’Brien Declaration contain data that is confidential under the Protective Order entered in this matter on January 23, 2012 (Dkt. No. 85) (“Protective Order”). 2. There are three requirements for sealing court findings: (1) public notice with an opportunity to object; (2) consideration of less drastic alternatives; and (3) a statement of specific findings in support of a decision to seal and rejecting alternatives to sealing. See, e.g., Flexible Benefits Council v. Feldman, No. 1:08-CV-371, 2008 U.S. Dist. LEXIS 93039 (E.D. Va. Nov. 13, 2008) (citing Ashcraft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)). Defendants contend that Portions of Defendants’ and Certain Exhibits to O’Brien Declaration contain data that is and should be kept confidential. An in camera copy of Defendants’ Brief and Certain Exhibits to O’Brien Declaration are being provided to the Court. In light of Defendants’ concerns and the Protective Order, there appears to be no alternative that appropriately serves Defendants’ expressed confidentiality concerns. 3. For the sake of consistency with practices governing the case as a whole, Defendants believe Portions of Defendants’ Brief and Certain Exhibits to O’Brien Declaration should remain sealed and be treated in accordance with the terms and conditions of the Protective Order. Accordingly, and in satisfaction of the requirements of Local Rule 5, Defendants respectfully ask the Court to enter the Proposed Agreed Order sealing Portions of Defendants’ and Certain Exhibits to O’Brien Declaration. DATED: March 27, 2012 /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.com David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 2 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Attorneys for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannet Co., Inc. 3 CERTIFICATE OF SERVICE I hereby certify that on March 27, 2012, 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.com brothersk@dicksteinshapiro.com 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 dschultz@cwm-law.cm wrsnow@cwm-law.com sstancliff@cwm-law.com Counsel for Plaintiff, I/P Engine, Inc. 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.com Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannet Co., Inc. 4 /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.com 11618753_1.DOC 5