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

Filing 245

ORDER TO SHOW CAUSE re 226 MOTION to Seal Portions of Google Inc.'s Reply Brief in Support of Google's Motion to Compel Plaintiff to Produce Documents filed by Google Inc., 214 MOTION to Seal Portions Of Defendants Brief In Opposition To Plaintiff's Motion For Discovery Sanctions And Various Exhibits To The Declaration Of Emily OBrien In Support Thereof filed by Google Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc., 181 MOTION to Seal Exhibit P to the Declaration of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiff's Motion for Leave to Take 30(b)(1) Depositions MOTION to Seal Exhibit P to the Declaration of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiff's Motion for Leave to Take 30(b)(1) Depositions filed by Google Inc., AOL Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc., 136 MOTION to Seal Portions of Reply Brief in Support of Motion to Compel and Exhibits AA and BB to the Declaration of Emily C. O'Brien in Support of the Reply filed by Google Inc., IAC Search & Media, Inc., 125 MOTION to Seal I/P Engine's Opposition to Google and IAC's Motion to Compel Plaintiff to Supplement its Infringement Contentions Along with Exhibits 11, 12, 14, 15, 18, 21, and 22 in Support filed by I/P Engine, Inc., 115 MOTION to Seal I/P Engine, Inc.'s Motion to Seal Exhibits 15, 16, 17, 18, and 21 of IP Engine's Memorandum in Support of Its Motion to Compel Defendant Google, Inc.'s Custodial Document Production filed by I/P Engine, Inc., 206 MOTION to Seal Portions Of Google Inc.s Brief In Support Of Motion To Compel And Various Exhibits To The Declaration Of Jen Ghaussy in Support Thereof filed by Google Inc. Accordingly, the Court will ORDER the parties to SHOW CAUSE why the specified materials should not be unsealed and filed in the public record. As outlined in this Order, the Court ORDERS the parties to SHOW CAUSE why the materials described above should not be unsealed and filed in the public record. The parties are DIRECTED to appear before the Court on 9/18/12, at 12:00 noon to identify, on the record, any and all reasons why these materials should be filed under seal rather than in the public record of this case. The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. In the interim, the Clerk shall continue to maintain the materials under seal. (See Order for Specifics) Entered and filed 9/13/12. (Signed by Magistrate Judge F. Bradford Stillman on 9/13/12). (ecav, )

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UNITED FILED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA SEP 13 Norfolk Division I/P ENGINE, CUERK, US DISTRICT COURT INC., NORFOLK. VA Plaintiff, Case No.: v. AOL, INC., et 2:llcv512 al., Defendants. ORDER TO SHOW CAUSE Before the Court are several motions by both sides seeking leave to file briefs and exhibits in support of various pretrial motions under seal. ECF Nos. 115, 125, 136, Each of these motions to seal is unopposed. 181, 206, 214, 226. In addition to the several motions to seal and related filings in the public record, the Court has reviewed in camera the unredacted briefs and exhibits submitted for filing under seal. For the reasons stated below, the Court finds the basis for sealing these materials unclear, at best, based upon both the motion papers and the Court's in camera review. Accordingly, the Court will ORDER the parties to SHOW CAUSE why the specified materials should not be unsealed and filed in the public record. The parties have each asked to file under seal pretrial motion papers and exhibits in support thereof. various They have agreed that certain information contained in these materials should remain confidential, but "[w]hen discovery material is classified confidential by the parties, their classification is not binding on the court." 91, 94 Chemical Bank v. Affiliated FM Ins. Co., (S.D.N.Y. 154 F.R.D. 1994). "When presented with a motion to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements." post, 386 F.3d 567, 576 Va. Dep't of State Police v. Wash. (4th Cir. 2004). In Ashcraft v. Conoco, Inc.f 218 F.3d 282 (4th Cir. 2000), the Fourth Circuit set out the procedural requirements for sealing court filings. (citing Stone v. Univ. of Md. Med. Sys. Corp., (4th Cir. 1988), and In re Knight Pub. Co., (4th Cir. 1984)). Id^ at 288 855 F.2d 178, 181 743 F.2d 231, 235-36 Local Civil Rule 5 provides further procedural guidance to litigants with respect to motions to seal filed in this district. In Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir. 1988), the Fourth Circuit outlined the substantive requirements for sealing pretrial court filings: Under common law, there is a presumption of access accorded to judicial records. This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access. advanced The trial by the court may weigh parties in light 'the of interests the public interests and the duty of the courts.' The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs Id. at 253 the presumption. (quoting Nixon v. Warner Commc'ns, - 2 - Inc., 435 U.S. 589, 597 (1978)); Inc., 611 In merely see also Level 3 Commc'ns, F. Supp. support 2d of 572, their characterize 576-77 (E.D. several these LLC v. Va. 2009). motions materials, in Limelight Networks, to seal, conclusory "proprietary and confidential information" and as should be specific kept confidential." information maintaining the to Neither suggest that confidentiality outweigh the public interests side the of the fashion, in access." as "data that is and has provided parties' these parties any interests materials in "heavily See Rushford, 846 F.2d at 253. Absent any specific information to establish a significant interest that grant outweighs the presumption of access, the motion to Moreover, file these materials the Court's suggest that the materials little, the if Court notes A. 17, 18, any, 21 between counsel information criteria public printouts for filing under seal contain information of at all. ECF No. In 115; particular, all routine Exhibits meet-and-confer 15, 16, correspondence in which search criteria for electronically stored ("ESI") the same materials following: are includes throughout from submitted Plaintiff's Motion to Seal, and seal. in camera review of these confidential the under the Court cannot a is discussed. number letters, several of technical the information Although search available publicly - terms criteria on the accessible 3 - the requested which are appears web referenced to internet, pages search be drawn including that are appended to the B. copy first letter identified as Exhibit Plaintiff's Motion to Seal, of plaintiff I/P Engine's ECF No. second 15. 125: Exhibit 11 is a preliminary disclosure of infringement contentions with respect to Google AdWords and Google AdSense for Search, submitted for filing under seal "Google's proprietary and confidential information." to protect ECF No. 126. This document does not bear a legend designating it "CONFIDENTIAL," "CONFIDENTIAL OUTSIDE COUNSEL ONLY," SOURCE CODE," as Order (ECF Moreover, in the No. or "RESTRICTED CONFIDENTIAL - required by Paragraph 85) entered in 1 this of the Agreed Protective case on January September record, 12, 2012. substantively without See identical redaction, ECF No. 241 disclosure by defendant attach. of I/P 4. AdWords portions of language from notes any and the Google opposition Exhibit 11, confidential that copies referenced in compel, not do AdSense the of brief and Engine's information motion to to 14, 15, seal have at 18, and been does all. the The not Finally, 21, and 22, underlying submitted is a infringement primarily remainder 12 on & Media's use of Search. consist the Exhibits appear for Google Exhibit contentions with respect to defendant IAC Search convey 2012. a substantively identical document was subsequently filed public Google 23, to the redacted of quoted appear the to Court which are motion to Court for filing. C. Defendants' Motion to Seal, - 4 - ECF No. 136: Exhibit BB is the very same routine meet-and-confer correspondence addressed above as Exhibit 21 under plaintiff's Motion to Seal, ECF No. which information. does Exhibit not AA appear is some information, respect to contains of may to AA that of the conveys opposition Seal, confidential D. number answer contain to ECF reply information appear to reference include litigation information, addressed 125, at brief Google's brief No. Defendants' issues which do a scope certain scheduling appears E. of to be merger respect Seal, to involving Rule certain language position rather and references to the above not quoted under appear plaintiff's to convey any all. Motion to with concerning of various confidential ECF No. 181; Exhibit routine meet-and-confer correspondence between counsel, certain to contentions, references themselves than any confidential technical plaintiff's and its non-infringement bates which portions Exhibit Motion objections information that is not otherwise publicly available. redacted from Google's confidential but the narrative answers do not any technical The any itself appear clearly to disclose any confidential information—it documents, contain defendant interrogatories with which does not to 115, production I/P Engine's of 30(b)(6) deposition depositions. None documents company, topics, of this is addressing ESI, parent P and the the information even remotely confidential. Defendants' Motion to - Seal, 5 - ECF No. 206: Exhibits A, B, C, and P are transcripts of deposition testimony by certain corporate officers of the plaintiff in which they discussed the organizational structure and business operations of the plaintiff and its parent companies, investors in the certain communications with potential plaintiff's surrounding the plaintiff's parent company, and circumstances acquisition of the patents-in-suit, none of which appear to be even remotely confidential. I, L, M, Exhibits H, and U are routine meet-and-confer correspondence between counsel regarding various discovery issues, none of which appears to involve the disclosure of any substantive information, much less anything confidential. Exhibit J is a stock subscription agreement between the plaintiff or its parent company and Donald Kosak, one of two named inventors of the patents-in-suit and a fact witness for the plaintiff, and Exhibit K is a transcript of deposition testimony by Mr. Kosak regarding a consulting agreement he entered into with counsel of record for the defendants, neither of which appears to contain any confidential information at all. N, Q, S, and T are privilege logs containing Exhibits little more than boilerplate language and disclosing nothing of substance, much less confidential information. Exhibit R is a transcript of deposition testimony by a corporate representative of the previous owner of the patents-in-suit, discussing his company's efforts to sell the patents-in-suit the counsel and in those efforts; involvement of plaintiff's litigation the transcript does not bear a legend - 6 - designating it "CONFIDENTIAL," Agreed Protective Order was (ECF No. required by 85), 223 attach. confidential. 1), The reference this the of and none redacted of the portions same information, the a portion of the transcript content of the appears brief in (ECF to be support and they likewise do not appear to Defendants" very same Motion second to Seal, preliminary ECF No. Seal, ECF subsequently ECF No. 241 No. 125, filed in attach. 4. identical brief to despite not themselves reliance appear Defendants' references the Nonetheless, might disclosed be to without is plaintiff to of jargon, ECF No. the done Motion to Seal, Court should is any ECF No. sensitive actual the public prematurely. - 7 - to See substantively the opposition from Exhibits M and these convey any confidential Motion to Seal, document redaction. contentions, technical a I/P Engine's third redacted portions on is infringement to passages do information. 226: The same brief and deposition testimony under the defendants' that The of identical record, infringement Exhibit M under plaintiff's Motion references to and language quoted their G. of Exhibit M. contain public Exhibit N preliminary disclosure 11 substantively the 214: disclosure contentions addressed above as Exhibit N; 1 confidential. F. to Paragraph subsequently filed in the public record by the plaintiff No. be as reply brief addressed above 206. the potential confidential Accordingly, damage information be the Court ORDERS the parties to SHOW CAUSE why the materials described above should not be unsealed and filed in the public record. The parties September 18, and all are 2012, reasons DIRECTED at why to appear before 12:00 noon to identify, these materials should the Court on the record, be filed under on any seal rather than in the public record of this case.1 In the materials IT interim, under IS SO the Clerk shall continue to maintain seal. ORDERED. UNITED STATED MAGISTRATE Norfolk, the JUDGE Virginia September \ ), 2012 1 The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. - 8 -