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

Filing 446

Memorandum in Support re 445 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #3 along with Exhibits 3-11 filed by I/P Engine, Inc.. (Attachments: # 1 Proposed Order)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) I/P ENGINE, INC., Civ. Action No. 2:11-cv-512 MEMORANDUM IN SUPPORT OF MOTION TO SEAL PLAINTIFF I/P ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS RELATED TO HISTORICAL CLICK-THROUGH RATE ALONG WITH EXHIBITS 3-11 In support of its Motion to Seal pursuant to Local Rule 5, Plaintiff I/P Engine, Inc. (“I/P Engine”) states the following: 1. I/P Engine moves the Court for leave to file under seal its Opposition to Defendants’ Motion in Limine #3 to Exclude Marketing and High-Level, Non-Technical Materials Related to Historical Click-Through Rate along with Exhibits 3-11. The aforementioned contain information that is marked as confidential by Defendants under the Protective Order entered in this matter on January 23, 2012 (D.I. 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 Ashcroft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)). I/P Engine’s DSMDB-3102124 Opposition to Defendants’ Motion in Limine #3 to Exclude Marketing and High-Level, NonTechnical Materials Related to Historical Click-Through Rate along with Exhibits 3-11 contains information that is marked by Defendants as confidential. An in camera copy of the aforementioned is being provided to the Court. In light of Defendant’s representation that this is confidential material under the Protective Order, there appears to be no alternative that appropriately serves Defendants’ confidentiality concerns. 3. The information contained in the Opposition and Exhibits 3-11 contains Google’s proprietary and confidential information. 4. For the sake of consistency with practices governing the case as a whole, I/P Engine believes its Opposition and Exhibits 3-11 should remain sealed and be treated in accordance with the terms and conditions of the Protective Order. 5. Accordingly, and in satisfaction of the requirements of Local Rule 5, I/P Engine respectfully asks the Court to enter the Proposed Agreed Order sealing its Opposition to Defendants’ Motion in Limine #3 to Exclude Marketing and High-Level, Non-Technical Materials Related to Historical Click-Through Rate along with Exhibits 3-11. Dated: September 27, 2012 By: /s/ Jeffrey K. Sherwood Donald C. Schultz (Virginia Bar No. 30531) W. Ryan Snow (Virginia Bar No. 47423) CRENSHAW, WARE & MARTIN PLC 150 West Main Street Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 Jeffrey K. Sherwood (Virginia Bar No. 19222) Frank C. Cimino, Jr. Kenneth W. Brothers DeAnna Allen 2 DSMDB-3102124 Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Counsel for Plaintiff I/P Engine, Inc. 3 DSMDB-3102124 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of September, 2012, the foregoing MEMORANDUM IN SUPPORT OF MOTION TO SEAL PLAINTIFF I/P ENGINE, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE MARKETING AND HIGH-LEVEL NON-TECHNICAL MATERIALS RELATED TO HISTORICAL CLICK-THROUGH RATE ALONG WITH EXHIBITS 3-11, was served via the Court’s CM/ECF system, on the following: Stephen Edward Noona Kaufman & Canoles, P.C. 150 W Main St Suite 2100 Norfolk, VA 23510 senoona@kaufcan.com David Bilsker David Perlson Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Robert L. Burns Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 robert.burns@finnegan.com Cortney S. Alexander Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 cortney.alexander@finnegan.com /s/ Jeffrey K. Sherwood 4 DSMDB-3102124