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

Filing 657

Opposition to 346 MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial filed by Suffolk Technologies, LLC. (Attachments: # 1 Proposed Order)(Reilly, Craig)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) I/P ENGINE, INC., ) ) Plaintiff, ) v. ) No. 2:11-cv-512 ) AOL, INC., et al., ) ) Defendants. ) __________________________________________) OPPOSITION TO DEFENDANTS’ MOTION TO SEAL TRIAL EXHIBITS AND CLOSE THE TRIAL PROCEEDINGS Suffolk Technologies, LLC (“Suffolk”), an interested party, opposes Defendants’ motion to seal trial exhibits and trial transcripts, and to close certain portions of the upcoming trial. (Doc. 346.) In support of its contentions, Suffolk states as follows: 1. Defendants have filed a motion to seal as yet unidentified trial exhibits and to close as yet unspecified portions of the trial. (Doc. 346.) 2. Suffolk opposes that motion, and seeks notice of and an opportunity to be heard at any sealing hearings. 3. Suffolk also seeks access to the trial exhibits when offered and admitted, seeks to be present at trial, and seeks un-redacted copies of the trial transcripts. 4. Suffolk also seeks access to the summary judgment exhibits that have been sealed by an agreed order. (Doc. 469.) 5. Defendants’ motion analyzes the sealing and closure issues under the wrong standard—that is, the common law standard. (See Doc. 347 at 2-4.) The standard that applies to summary judgment and trial materials is the “more rigorous” First Amendment standard, which requires that Defendants show a “compelling governmental interest” to justify sealing of judicial records and closure of trial proceedings, proposes narrowly tailored relief, and demonstrates that no less drastic remedy is available. No such showing has been made. 6. As a member of “the public,” Suffolk has standing to oppose this sealing request. See In re Knight Pub. Co., 743 F.2d 231 (4th Cir. 1984). Suffolk’s standing to seek access is underscored by its interest in the particular categories of information that Defendants’ now seek to have sealed. Suffolk has filed a patent infringement action against AOL Inc. and Google Inc. involving the same accused instrumentalities. Suffolk Tech. LLC v. AOL Inc. and Google Inc., No. 1:12cv625 (TSE/IDD) (E.D. Va. filed June 7, 2012) (“Suffolk Action”). In the Suffolk Action, the parties are litigating, inter alia, the manner in which the accused instrumentalities work and the damages that may be awarded to Suffolk for AOL Inc. and Google Inc.’s alleged infringement. Accordingly, Suffolk has a legitimate interest in the categories of information that Defendants seek to seal in this action. 7. Suffolk is willing to obtain access subject to an appropriate protective order limiting use and disclosure, and any other appropriate terms imposed by the Court. 8. A brief in support is filed herewith explaining the grounds and reasons for this opposition with particularity. WHEREFORE, Suffolk respectfully requests that Defendants’ motion to seal and for closure be denied. Suffolk respectfully submits that it should be permitted to have access to sealed judicial records, to attend closed sessions of the trial, and to obtain un-redacted trial transcripts in this action, on terms and conditions set by the Court. A proposed order is submitted herewith. 2 REQUEST FOR HEARING Suffolk respectfully requests that a hearing be held on Defendants’ sealing and closure motion and Suffolk’s opposition thereto, and that Suffolk be given the opportunity to be heard. Dated: October 4, 2012 Respectfully submitted, /s/ Craig C. Reilly Craig C. Reilly VSB # 20942 111 Oronoco Street Alexandria, Virginia 22314 TEL: (703) 549-5354 FAX: (703) 549-2604 E-MAIL: craig.reilly@ccreillylaw.com Counsel for Interested Party Suffolk Technologies LLC Roderick G. Dorman Jeanne Irving Alan P. Block MCKOOL SMITH HENNIGAN, P.C. 865 South Figueroa Street, Suite 2900 Los Angeles, CA 90017 Telephone: (213) 694-1200 Facsimile: (213) 694-1234 rdorman@mckoolsmithhennigan.com jirving@mckoolsmithhennigan.com ablock@mckoolsmithhennigan.com and Doug Cawley J. Austin Curry MCKOOL SMITH P.C. 300 Crescent Court Suite 1500 Dallas, Texas 75201 Telephone: (214) 978-4000 Facsimile: (214) 978-4044 Email: dcawley@mckoolsmith.com Email: acurry@mckoolsmith.com Counsel for Interested Party Suffolk Technologies LLC 3 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2012, I filed the foregoing pleading or paper through the Court’s CM/ECF system which sent a notice of electronic filing to the following: Stephen E. Noona KAUFMAN & CANOLES, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510 senoona@kaufcan.com Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Counsel for Defendant AOL Inc. David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. Cortney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Counsel for Defendant AOL Inc. Jeffrey K. Sherwood Kenneth W. Brothers DICKSTEIN SHAPIRO LLP 1825 Eye Street NW Washington, DC 20006 Counsel for Plaintiff, I/P Engine, Inc. Donald C. Schultz W. Ryan Snow Steven Stancliff CRENSHAW, WARE & MARTIN, P.L.C. 150 West Main Street, Suite 1500 Norfolk, VA 23510 Counsel for Plaintiff, I/P Engine, Inc. /s/ Craig C. Reilly Craig C. Reilly, Esq. VSB # 20942 111 Oronoco Street Alexandria, Virginia 22314 TEL (703) 549-5354 FAX (703) 549-2604 craig.reilly@ccreillylaw.com Counsel for Interested Party Suffolk Technologies LLC 4