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

Filing 325

Memorandum in Support re 324 MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Preclude Dr. Ophir Frieder from Testifying Regarding Untimely Opinions that were Not Disclosed in his Original Expert Report and Opinions that he Now Concedes are Incorr filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (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 MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO PRECLUDE DR. OPHIR FRIEDER FROM TESTIFYING REGARDING UNTIMELY OPINIONS THAT WERE NOT DISCLOSED IN HIS ORIGINAL EXPERT REPORT AND OPINIONS THAT HE NOW CONCEDES ARE INCORRECT AND CERTAIN MATERIALS FILED IN SUPPORT THEREOF In support of their Motion to Seal pursuant to Local Rule 5, and the Protective Order [Dkt. No. 85] entered in this matter, Defendants Google Inc., Target Corporation, IAC Search & Media, Inc., Gannett Co., Inc. and AOL Inc. (collectively “Defendants”) state the following: 1. Defendants have moved the Court for leave to file under seal (1) Portions of Memorandum in Support of Defendants’ Motion to Preclude Testimony Dr. Ophir Frieder From Testifying Regarding Untimely Opinions That Were Not Disclosed In His Original Expert Report and Opinions That He Now Concedes Are Incorrect (“Portions of Defendants’ Motion to Preclude Frieder”) and (2) Exhibits A, B, G, and H to the Declaration of Jen Ghaussy in Support of the Defendants’ Motion to Preclude Frieder (“Exhibits A, B, G, and H to the Ghaussy Declaration”). Portions of Defendants’ Motion in to Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy Declaration contain data that is confidential under the Protective Order entered in this matter on January 23, 2012 (“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 Portions of Defendants’ Motion in to Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy Declaration contain confidential material that should be sealed. Defendants specifically state that as reasons for sealing the requested pleadings that: (a) Portions of Defendants’ Motion in to Preclude Frieder discuss technical details of the operation of AdWords which are not generally known, that have economic value and would cause competitive harm if made public; (b) Exhibits A and B to the Ghaussy Declaration discuss Google source code which is not generally known, that has economic value and would cause competitive harm if made public; and (c) Exhibits G and H discuss confidential technical details regarding the accused products which are not generally known, that have economic value and would cause competitive harm if made public. Defendants have made all reasonable efforts to limit their redactions in compliance with the law of this Circuit. 3. In camera copies of Portions of Defendants’ Motion in to Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy Declaration are being provided to the Court for review. In light of Defendants’ concerns and the Protective Order, there appears to be no alternative that appropriately serves Defendants’ expressed confidentiality concerns. 4. For the sake of consistency with practices governing the case as a whole, Defendants believe Portions of Defendants’ Motion in to Preclude Frieder and Exhibits A, B, G, 2 and H to the Ghaussy 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 seal Portions of Defendants’ Motion in to Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy Declaration. DATED: September 21, 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 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. By: /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 3 Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 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. 4 CERTIFICATE OF SERVICE I hereby certify that on September 21, 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. /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 11938112v1 5