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

Filing 911

ORDER REGARDING PARTIES' JOINT RESPONSE TO THE COURT'S ORDER REGARDING OUTSTANDING MOTIONS TO SEAL CASE DOCUMENTS deeming certain motions moot; granting certain motions; denying certain motions; granting certain motions as to the lesser redacted materials. (See order for specifics.) Signed by District Judge Raymond A. Jackson and filed on 4/3/13. (mwin, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION F1LEDL APR " 3 2013 I/P ENGINE, INC. Plaintiff, Civil Action No. 2:1 l-cv-512 v. AOL, INC., et ai. Defendants. ORDER REGARDING PARTIES' JOINT RESPONSE TO THE COURT'S ORDER REGARDING OUTSTANDING MOTIONS TO SEAL CASE DOCUMENTS On this day came the parties, I/P Engine, Inc. ("Plaintiff) and AOL Inc., Gannett Co., Inc., Google Inc., IAC Search& Media, Inc., and TargetCorporation (collectively "Defendants"), by counsel, pursuant to this Court's Order Regarding Outstanding Motions to Seal Case Documents (ECF No. 886) ("Order Regarding Outstanding Motions to Seal"), and the Parties' Joint Responseto the Court's Order Regarding Outstanding Motions to Seal (the "Response"), and afterconsideration of that Response and arguments in support of that Response, and for good cause shown, it is: ORDERED THAT: 1. The following pending motions to seal are DEEMED moot and therefore withdrawn: Motion Name Docket Number 355 MOTION to Seal Exhibit 1 to its Memorandum in Support of Plaintiff I/P Engines Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim ] 346,412 Construction MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial Joint MOTION to Amend/Correct 346 MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial Joint Motion and Memorandum in Support of Joint Motion To Amend/Modify SchedulingOrder to Provide Briefing Schedule for Motion to Seal and Close Courtroom 436 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' 514 Motion in Limine #1 along with Exhibits 5-6 and 11-12 MOTION to Seal Exhibits 1 and 2 to its Response to Defendants Motion to Seal Documents and Close the Courtroom During Presentation of Confidential Materials at Trial MOTION to Seal Portions of the Order on the Final Pretrial Conference 687 The Clerk is instructed to return to the parties all previously filed materials relating to these withdrawn motions. 2. Based upon the parties' joint representations that there are no objections, the following motions to seal are GRANTED: Motion Name Docket Number 280 289, 368 (Corrected D.N. 285) MOTION to Seal Plaintiff I/P Engine, Inc.'s Second Motion for Discovery Sanctions Regarding Untimely Discovery Responses along with Exhibits 2,4, 5, 7, 8, 9,13, and 14 in support MOTION to Seal [CORRECTED MOTION] Memorandum in Support of Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses along with Exhibits 1, 4, 5, 6, 7, in support 296 312 Sealed Memorandum in Support of THIRD 285 MOTION to Seal Memorandum in Support of Plaintiff I/P Engine, Inc.'s Third Motion for Discovery Sanctions Regarding Untimely Discovery Responses along with Exhibits 1,4, 5, 6, 7, in support MOTION to Seal Portions of Defendants' Memorandum in Support of Motion in Limine No. 3 to Exclude Marketing and High-Level Non-Technical Matters Related to Historical Click-Through Rate, and Exhibits F, H, I and J to the Declaration of Joshua L. Sohn in Support of the Defendants' Various Motions in Limine MOTION to Seal Exhibit 3 to the Memorandum in Support of Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence 316 MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Exclude Testimony from Stephen L. Becker 324 and Certain Materials Filed in Support Thereof MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Preclude Dr. Ophir Frieder from Testifying 331 338 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 MOTION to Seal the Memorandum in Support of Plaintiff I/P Engine, Inc.'s Second Motion in Limine to Preclude NonComparable License Agreements along with Exhibits 1 and 2 MOTION to Seal the Memorandum in Support of Plaintiff I/P Engine, Inc.'s Motion to Exclude Opinions and Testimony of Keith R. Ugone along with Exhibits 1 and 2 343 425 429 MOTION to Seal Portions of the Declaration of Michael Hochberg in Support of Plaintiff s and Defendants' Motions to Seal MOTION to Seal its Opposition to Defendants Motion for Summary Judgment along with Exhibits 8,11-19, 22-24, 27-32, 3439,45, 53-54, 56 MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff I/P Engine's First Motion in Limine to Exclude Inadmissible Evidence; (2) Portions of Defendants' Opposition to Plaintiff I/P Engine's Second Motion in Limine to Preclude License Agreements, and (3) Exhibits E and K to the Declaration of Margaret P. Kammerud in Support of Defendants' Opposition to Plaintiffs Motions in Limine 441 445 449 453 457 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #2 along with Exhibits 1 and 2 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #3 along with Exhibits 3-11 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #4 along with Exhibits 1 and 2 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion in Limine #5 along with Exhibits 1 and 2 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants' Motion to Exclude the Testimony of Stephen L. Becker along with Exhibits 1-5, 7-8, and 10-11 462 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants Motion to Preclude Dr. Frieder from Testifying Regarding Untimely Opinions along with Exhibits 1-3 and 5 465 508 MOTION to Seal Defendants' Memorandum in Support of Their Opposition to Plaintiff I/P Engine, Inc.'s Motion to Exclude Opinions and Testimony of Keith R. Ugone MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiffs Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction and (2) Exhibits 10 and 12 to the Declaration of Howard Chen in Support of Defendants' Memorandum in Opposition to Plaintiffs Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction 517 MOTION to Seal (1) Portions of Defendants' Memorandum in Opposition to Plaintiffs Second Motion for Discovery Sanctions; (2) Portions of Defendants' Memorandum in Opposition to Plaintiffs Third Motion for Discovery Sanctions; (3) Portions of the Declaration of Margaret Kammerud in Support of Defendants' Opposition to Plaintiffs Third Motion for Discovery Sanctions; (4) Portions of Exhibits A-E, G, I-K to the Declaration of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiffs Second 524 Motion for Discovery Sanctions; and (5) Exhibits L-Q to the Declaration of Margaret Kammerud in Support of Defendants' Opposition to Plaintiffs Third Motion for Discovery Sanctions MOTION to Seal Portions of the Reply in Support of Defendants' Motion for Summary Judgment, and Exhibits 34 and 36 to the Declaration of Joshua L. Sohn in Support of Defendants' Reply in Support of Defendants' Motion for Summary Judgment 561 MOTION to Seal (1) Portions of Defendants' Reply Brief in Support of Their 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; (2) Portions of Defendants' Reply Brief in Support of their Motion to Exclude the Testimony of Stephen L. Becker; and (3) Portions of Exhibit I to the Declaration of Howard Chen in Support of Defendants' Reply Brief in Support of their Motion to Preclude Dr. Ophir Frieder 567 MOTION to Seal Plaintiff I/P Engine, Inc.'s Reply in Further Support of its Motion to Exclude Opinions and Testimony of Keith R. Ugone along with Exhibits 1-3 647 MOTION to Seal Plaintiff I/P Engine, Inc.'s Reply in Further Support of its Third Motion for Discovery Sanctions along with Exhibits 1 and 2 684 MOTION to Seal Exhibits 1 and 4 to its Opposition to Defendants Motion to Dismiss All Claims Against AOL, Inc., Gannett Co., Inc., IAC Search & Media, Inc., and Target Corporation 706 MOTION to Seal Portions Of Exhibit 1 To The O'Brien Declaration In Support Of Defendants Motion For Sanctions And To Strike Portions Of Dr. Frieder's Second Updated Expert Report 802 MOTION to Seal and Redact Portions of Trial Record 828 MOTION to Seal (1) Portions Of Defendants Memorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On Non-Infringement Or New Trial; (2) Portions Of Defendants' Memorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On Damages Or New Trial; And (3) Certain Exhibit To The Declaration Of Joshua L. Sohn In Support Of Defendants Renewed Motions For Judgment As A Matter Of Law On Damages, Invalidity And Non-Infringement Or New Trial 866 MOTION to Seal Portions of Defendants' Memorandum in Opposition to Plaintiffs Rule 59 Motion for a New Trial on the Dollar Amount of Damages and Exhibit 2 to the Declaration of Margaret P. Kammerud Filed in Support Thereof 873 MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants Renewed Motion for Judgment as a Matter of Law on Non-Infringement or NewTrial 3. Based upon the parties' joint representations, the following individual materials subject to the motions to seal can be filed publicly and thus the motions are DENIED: Document Description Docket Number of Docket Number Motion to Be Ruled of Document at Upon Issue 280 278, 342 Plaintiffs Memorandum in Support of Second 280 278-14, 366 motion for Sanctions Exhibit 14 to Plaintiffs Memorandum in 289, 368 (Corrected 283 Plaintiffs Memorandum in Support of Third 283-4, 370 Exhibit 4 to Plaintiffs Memorandum in Support 283-5, 371 Exhibit 5 to Plaintiffs Memorandumin Support 304, 380 Defendants' Memorandum in Support of Motion Support of Second motion for Sanctions D.N. 285) 289, 368 (Corrected Motion for Sanctions D.N. 285) 289, 368 (Corrected of Third Motion for Sanctions D.N. 285) 296 of Third Motion for Sanctions in Limine 3 296 310-6,381 296 310-8,382 Exhibit F to Defendants' Memorandum in Support of Motion in Limine 3 Exhibit H to Defendants' Memorandum in Support of Motion in Limine 3 296 310-9,383 Exhibit I to Defendants' Memorandum in Exhibit I to Support of Motion in Limine 3 316 323-2, 387 Exhibit 2 to O'Brien Declaration in Support of Defendants' Motion to Exclude Becker 316 323-13,398 316 321,402 324 329-8, 379 Exhibit 13 to O'Brien Declaration in Support of Defendants' Motion to Exclude Becker Fox Declaration in Support of Defendants' Motion to Exclude Becker Exhibit H to Defendant's Motion to Exclude Frieder 1 338 341,420 Plaintiffs Memorandum in Supportof Motionto Exclude Ugone 425 427-19 425 427-29 429 439 Exhibit 45 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 56 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Defendants' Opposition to Plaintiffs Motion in Limine 1 445 447 Plaintiffs Opposition to Defendants' Motion in Limine 3 445 447-3 Exhibit 3 to Plaintiffs Opposition to Defendants' Motion in Limine 3 445 447-4 Exhibit 4 to Plaintiffs Opposition to Defendants' Motion in Limine 3 445 447-7 Exhibit 7 to Plaintiffs Opposition to 445 447-8 Exhibit 8 to Plaintiffs Opposition to 445 447-9 Exhibit 9 to Plaintiffs Opposition to 445 447-10 Exhibit 10 to Plaintiffs Opposition to 445 447-11 Exhibit 11 to Plaintiffs Opposition to 449 451 Plaintiffs Opposition to Defendants' Motion in 449 451-2 Exhibit 2 to Plaintiffs Opposition to 453 455 Plaintiffs Opposition to Defendants' Motion in 453 455-2 Exhibit 2 to Plaintiffs Opposition to 457 460 Plaintiffs Opposition to Defendants' Motion to 457 460-1 Defendants' Motion in Limine 3 Defendants' Motion in Limine 3 Defendants' Motion in Limine 3 Defendants' Motion in Limine 3 Defendants' Motion in Limine 3 Limine 4 Defendants' Motion in Limine 4 Limine 5 Defendants' Motion in Limine 5 Exclude Becker Exhibit 1 to Plaintiffs Opposition to Defendants' Motion to Exclude Becker 457 460-4 457 460-11 Exhibit 4 to Plaintiffs Opposition to Defendants' Motion to Exclude Becker Exhibit 11 to Plaintiffs Opposition to Defendants' Motion to Exclude Becker 462 464 Plaintiffs Opposition to Defendants' Motion to Exclude Frieder 462 464-1 Ex. 1 to Plaintiffs Opposition to Defendants' 462 464-5 Ex. 5 to Plaintiffs Opposition to Defendants' Motion to Exclude Frieder Motion to Exclude Frieder | 508 511 508 512-10 517 522-9 Defendants' Opposition to Plaintiffs Motion to Exclude Ungar Exhibit 10 to Defendants' Oppositionto Plaintiffs Motion to Exclude Ungar Exhibit I to Ghaussy Declaration in Support of Defendants' Opposition to Plaintiffs Second Motion for Sanctions 517 522-10 Exhibit J to Ghaussy Declaration in Support of Defendants' Opposition to Plaintiffs Second Motion for Sanctions 517 523 517 523-1 Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions Exhibit L to Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions 517 523-3 Exhibit N to Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions 524 528-1 Exhibit 34 to Defendants' Reply in Support of 567 568 Plaintiffs Reply in Support of Motion to Motion for Summary Judgment Exclude Ugone 4. The parties have submitted electronic (on a CD-ROM) and hard copies of lesser redacted materials currently subject to motions to seal, as outlined below. Having reviewed these materials, the relevant motions to seal are GRANTED as to the lesser redacted materials. The Court DIRECTS the Clerk and the parties to coordinate the substitution ofthe appropriate documents. Docket Number of Motion to Be Ruled Docket Number Upon Issue 280 278-7, 362 Document Description of Document at Exhibit 7 to Plaintiffs Memorandum in Support of Second motion for Sanctions 289, 368 (Corrected D.N. 285) 289, 368 (Corrected D.N. 285) 283-1, 369 289, 368 (Corrected 283-7, 373 Exhibit 1 to Plaintiffs Memorandum in Support of Third Motion for Sanctions 283-6, 372 Exhibit 6 to Plaintiffs Memorandum in Support of Third Motion for Sanctions Exhibit 7 to Plaintiffs Memorandum in Support D.N. 285) 296 310-10,384 312 315-3,416 of Third Motion for Sanctions Exhibit J to Defendants' Memorandum in Support of Motion in Limine 3 Exhibit 3 to Plaintiffs Memorandum in Support of Motion in Limine 3 316 320, 385 Defendants' Memorandum in Support of Motion to Exclude Becker 316 323-1,386 Exhibit 1to O'BrienDeclaration in Support of Defendants' Motion to Exclude Becker 324 328, 375 Defendants' Memorandum in Support of Motion to Exclude Frieder 324 329-2, 377 331 Exhibit B to Defendants' Memorandum in Support of Motion to Exclude Frieder 338 334,417 334-1,418 334-2,419 341-1,421 338 341-2,422 425 427 331 331 Plaintiffs Motion in Limine 2 Exhibit 1 to Plaintiffs Motion in Limine 2 Exhibit 2 to Plaintiffs Motion in Limine 2 Exhibit 1 to Plaintiffs Motion to Exclude Ugone Exhibit 2 to Plaintiffs Motion to Exclude Ugone Memorandum in Support of Plaintiff s Opposition to Defendant's Motion for Summary Judgment 425 427-2 425 427-2 425 427-2 425 427-2 425 427-5 425 427-5 425 427-5 425 427-5 425 427-5 425 427-8 425 427-8 425 427-8 Exhibit 3 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 4 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 5 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 8 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 19 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 11 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 14 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 17 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 18 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 22 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 23 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 24 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment 425 427-11 425 427-11 425 427-27 441 443 Exhibit 27 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 29 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Exhibit 54 to Plaintiffs Opposition to Defendant's Motion for Summary Judgment Plaintiffs Opposition to Defendants' Motion in Limine 2 441 443-1 Exhibit 1 to Plaintiffs Opposition to Defendants' Motion in Limine 2 441 443-2 Exhibit 2 to Plaintiffs Opposition to Defendants' Motion in Limine 2 449 451-1 Exhibit 1 to Plaintiffs Opposition to Defendants' Motion in Limine 4 457 460-5 Exhibit 5 to Plaintiffs Opposition to 457 460-7 Exhibit 7 to Plaintiffs Opposition to 462 464-2 Exhibit 2 to Plaintiffs Opposition to 465 466 Defendants' Opposition to Plaintiffs Motion to 465 468-4 465 468-5 Exhibit D to Defendants' Oppositionto Plaintiffs Motion to Exclude Ugone Exhibit E to Defendants' Opposition to Plaintiffs Motion to ExcludeUgone 508 512-12 Defendants' Motion to Exclude Becker Defendants' Motion to Exclude Becker Defendants' Motion to Exclude Frieder Exclude Ugone Exhibit 12 to Declaration of Howard Chen in Support of Defendants' Opposition to Plaintiffs Motion to Exclude Ungar 517 522-7 Exhibit G to Ghaussy Declaration in Support of Defendants' Opposition to Plaintiffs Second Motion for Sanctions 517 521 Defendants' Opposition to Plaintiffs Third 517 523-2 Exhibit M to Kammerud Declaration in Support Motion for Sanctions of Defendants' Opposition to Plaintiffs Third Motion for Sanctions 517 523-4 Exhibit 0 to Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions 517 523-5 517 523-6 ExhibitP to Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions Exhibit Q to Kammerud Declaration in Support of Defendants' Opposition to Plaintiffs Third Motion for Sanctions 524 527 561 571-1 Defendants' Reply in Support of Motion for Summary Judgment Exhibit I to Defendants' Reply in Support of Motion to Exclude Frieder 567 569-1 Exhibit 1to Plaintiffs Reply in Support of Motion to Exclude Ugone 567 569-2 Exhibit 2 to Plaintiffs Reply in Support of Motion to Exclude Ugone 647 651-2 684 686-1 Exhibit 2 to Plaintiffs Reply in Support of Third Motion for Sanctions Exhibit 1 to Plaintiffs Opposition to Defendants' Motion to Dismiss Claims against AOL, Gannett, IAC, and Target 684 686-4 Exhibit4 to Plaintiffs Opposition to Defendants' Motion to Dismiss Claims against AOL, Gannett, IAC, and Target The Clerk is DIRECTED to send a copy ofthis Order to counsel and parties ofrecord. IT IS SO ORDERED. Norfolk, Virginia Aprils/ ,2013 Raymond AWackson United States District Judge 10