Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
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Administrative Motion to File Under Seal (Emergency Motion by Non-Party Motorola Mobility LLC to Seal Exhibits, Close Courtroom and Seal Portions of Transcript) filed by Motorola Mobility LLC. (Attachments: # 1 Declaration Thomas V. Miller, # 2 Declaration Jennifer A. Golinveaux, # 3 Proposed Order)(Golinveaux, Jennifer) (Filed on 7/26/2012)
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DAVID S. BLOCH (SBN: 184530)
dbloch@winston.com
JENNIFER A. GOLINVEAUX (SBN: 203056)
jgolinveaux@winston.com
MARCUS T. HALL (SBN: 206495)
mthall@winston.com
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111-5894
Telephone:
(415) 591-1000
Facsimile:
(415) 591-1400
PETER J. CHASSMAN (pro hac vice application forthcoming)
pchassman@winston.com
WINSTON & STRAWN LLP
1111 Louisiana, 25th Floor
Houston, TX 77002-5242
Telephone:
(713) 651-2623
Facsimile:
(713) 651-2700
Attorneys for Non-Party,
MOTOROLA MOBILITY LLC
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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APPLE, INC., a California Corporation,
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., a
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, a )
Delaware limited liability company,
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Defendants.
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CASE NO.: 11-CV-01846-LHK
EMERGENCY MOTION BY
NONPARTY MOTOROLA
MOBILITY LLC TO SEAL
EXHIBITS, CLOSE COURTROOM,
AND SEAL PORTIONS OF
TRANSCRIPT
[Civ. L.R. 79-5]
Date: Expedited Request
Courtroom: 8, 4th Floor
Judge: Hon. Lucy H. Koh
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EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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Pursuant to Civil L.R. 7-11 and 79-5(c) and the Court’s Order of July 23, 2012 (Doc. No.
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1288), non-party Motorola Mobility LLC (“Motorola”), formerly known as Motorola Mobility,
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Inc., respectfully files this emergency administrative motion for an order to seal portions of
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proposed Trial Exhibits 77, 82, 630, and 631 because they contain or disclose highly
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confidential, sensitive business information of Motorola – specifically, license agreement terms
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and related information, the disclosure of which could cause significant harm to Motorola. In
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addition, Motorola moves that the Court close the courtroom to those not authorized to view
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materials that are designated as Highly Confidential – Outside Attorneys’ Eyes Only under the
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protective order during such time as Motorola’s confidential information is discussed, and
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Motorola moves for an order that the trial transcript containing Motorola’s confidential
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information also be sealed.1 The information contained within the exhibits at issue is highly
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sensitive and confidential, and the disclosure of that information to Motorola’s competitors or the
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general public could cause substantial harm to Motorola. Accordingly, substantial compelling
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reasons justify sealing portions of Samsung’s proposed Trial Exhibits 77, 82, 630, and 631 as
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well as closing the courtroom during discussion of such exhibits and sealing the corresponding
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transcript. Motorola files the present motion on an emergency basis because Motorola has been
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informed that trial in this case is set to begin on July 30, 2012.
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BACKGROUND
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On Sunday, July 22, 2012, in-house counsel for Motorola received, via e-mail, a letter
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from counsel for Samsung (“the Letter”), indicating that Samsung had designated as potential
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trial exhibits certain documents identified in Appendix A to that letter and that Samsung was
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unaware of compelling reasons why those documents should be sealed. See Declaration of
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Thomas V. Miller (“Miller Dec.”), Ex. A (attaching July 22 letter with redacted version of
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Appendix A and redacted version of Samsung’s proposed trial Exhibit 82 thereto). Specifically,
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the July 22 letter identified four potential Samsung proposed trial exhibits:
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Third parties Nokia Corporation and Interdigital Communications, LLC and Interdigital
Technology Corporation have filed similar motions on similar grounds. Doc. Nos. 1328, 1334.
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-1EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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Trial Exhibit 77: Samsung only summarized the disclosure of this exhibit and did
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not provide a copy of it to Motorola. Samsung’s summary indicates that Exhibit
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77 includes a table row containing entries that disclose the duration, financial
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terms, including amounts and direction of payments, and scope of license rights in
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a patent license between Motorola Inc. and Samsung. Miller Dec. ¶¶ 3, 4 and Ex.
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A, Appx. A.
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Trial Exhibit 82: Exhibit 82 is a document entitled “Samsung – Motorola
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Licensing Discussions,” dated May 2, 2005, bearing Bates numbers S-794-ITC-
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005280718-S-794-ITC-005280737. This document was prepared by Samsung
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during licensing discussions between Samsung and Motorola. Miller Dec. ¶¶ 3, 5
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and Ex. A, Appx. A.
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Trial Exhibit 630: Samsung only summarized the disclosure of this exhibit and
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did not provide a copy of it to Motorola. Samsung’s summary indicates that
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Exhibit 630 includes Exhibits 3A and 3B to the Expert Report of David Teece and
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contains line entries disclosing terms of license agreements between Samsung and
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Motorola, Inc., including monetary terms, amounts and direction of payments,
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identification of licensed products and technologies, geographic scope, and
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temporal scope. Miller Dec. ¶¶ 3, 4 and Ex. A, Appx. A.
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Trial Exhibit 631: Samsung only summarized the disclosure of this exhibit and
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did not provide a copy of it to Motorola. Samsung’s summary indicates that
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Exhibit 631 is Exhibits 4A-4B to the Teece report and contains entries disclosing
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royalty rates between Motorola and Samsung. Miller Dec. ¶¶ 3, 4 and Ex. A,
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Appx. A.
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Contrary to the position that Samsung has taken in the Letter, Motorola regards the
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disclosed contents of trial Exhibits 77, 630, and 631, as well as the contents of pages 13-15, 17,
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and 19 of Exhibit 82 to constitute highly confidential and sensitive information of Motorola.
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Miller Dec. ¶¶ 3-5. The disclosure of this information to Motorola’s competitors or the general
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public would cause great harm to Motorola. Accordingly, compelling reasons justify sealing
-2EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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those Exhibits (or portions of exhibits). Since the time of the Letter, Samsung has indicated in
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correspondence that it would not oppose a stipulation to seal as to portions of the aforementioned
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exhibits, to close the courtroom during discussion of portions of such exhibits, or to seal the
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corresponding transcript of any such discussions. See Declaration of Jennifer A. Golinveaux,
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¶ 5.
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REQUEST FOR RELIEF
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Motorola respectfully requests that: 1) the Court seal the portions of Samsung’s proposed
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Trial Exhibits 77, 82, 630, and 631 described above; 2) that those members of the public and
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litigants not authorized to view “Highly Confidential – Attorneys Eyes Only” material be
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excluded from the courtroom during any discussion or display of any of the information
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identified in item (1) (or any other Motorola confidential information); and 3) the Court seal the
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portions of the trial transcript in which those portions of those trial exhibits (or any other
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Motorola confidential information) is disclosed.
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COMPELLING REASONS JUSTIFY MOTOROLA’S REQUEST FOR THE
NARROWLY-TAILORED RELIEF THAT MOTOROLA SEEKS
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The Court has the inherent power to shield sensitive information from public access when
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necessary to prevent the disclosure of highly confidential and competitively sensitive
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information, such as “sources of business information that might harm a litigant’s competitive
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standing.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978); see also Hagestad
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v. Tragesser, 49 F.3d 1430, 1433-34 (9th Cir. 1995) (quoting Nixon).
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Motorola understands that the Court must endeavor to protect public access to documents
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used in open court and that courts in this Circuit “start with a strong presumption in favor of
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[public] access to court records.” Foltz v. State Farm Mutual Auto. Insurance Company, 331
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F.3d 1122, 1135 (9th Cir. 2003); see also Order Denying Sealing Motions (Dkt. 256). In this
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Circuit, a party seeking to overcome the presumption in favor of public access must present
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“compelling reasons” as to why the confidential information should be sealed. Kamakana v. City
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and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (“[t]hose who seek to maintain the
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-3EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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secrecy of documents attached to dispositive motions must meet the high threshold of showing
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that ‘compelling reasons’ support secrecy”).
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However, preventing the release of trade secrets constitutes a “compelling reason”
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sufficient to hurdle the presumption of public access. Kamakana, 447 F.3d at 1179. When it
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comes to patent license agreements, trade secrets that should be sealed include licensing
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information, such as pricing terms, royalty rates, and guaranteed minimum payment terms. In re
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Electronic Arts, Inc., 298 Fed. Appx. 568, 569-570 (9th Cir. 2008) (“pricing terms, royalty rates,
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and guaranteed minimum payment terms found in paragraph 6 of the 2006 Licensing
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Agreement….is also information that plainly falls within the definition of ‘trade
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secrets’…[t]herefore, under Kamakara and Nixon, the district court erred as a matter of law by
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concluding that EA failed to meet the ‘compelling reasons’ standard”). Accordingly, this Court
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has previously, and even within the last two months, allowed parties to seal redacted license
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agreements and documents reflecting the terms of such agreements from public disclosure. See,
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e.g., Powertech Technology Inc. v. Tessera Inc., 2012 WL 1969039, *1 (N.D. Cal. May 31,
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2012) (holding that the harm to Plaintiff from the potential public disclosure of a license
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agreement was sufficiently compelling). In addition, courts have held that documents disclosing
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negotiated or draft license terms have overcome the compelling reasons burden. See TriQuint
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Semiconductor, Inc. v. Avago Technologies Ltd., 2011 WL 4947343, *2 (D. Ariz. 2011).
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Further, confidential or proprietary information may be sealed as compelling even if the
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competitive harm would be to only third parties of the litigation. See Network Appliance, Inc. v.
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Sun Microsystems Inc., 2010 WL 841274, *2 (N.D. Cal. 2010) (“Sun argues that this paragraph
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contains confidential and proprietary technical information that was obtained from third-parties
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and which was designated by the third parties as ‘Attorneys Eyes Only,’ and disclosure could
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cause harm to the third parties…[t]he Court agrees that there are compelling reasons for sealing
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this paragraph of the declaration in light of the confidential nature of the information and the
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competitive harm to third parties if the confidential information were disclosed”).
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The documents and information that are the subject of this motion – contents of
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Samsung’s proposed Trial Exhibits 77, 82, 630, and 631 are of the type that are protected under
-4EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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the case law. These exhibits contain the terms of highly confidential and sensitive license
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agreements between Motorola and Samsung. Miller Dec. ¶¶ 3-5 and Ex. A, Appx. A thereto.
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These terms include monetary terms, including license rates and direction of payments; and the
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identification of licensed products and technology. Miller Dec. ¶¶ 3-4. In addition the exhibits
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include proposed license terms, including proposed royalty rates, as well as sales forecasts. Id. ¶
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5. Motorola is engaged in ongoing licensing negotiations with several competitor companies,
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and the disclosure of this information to such companies or to the general public would be
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harmful to Motorola’s licensing program. Id. ¶¶ 4-5. Accordingly, the contents of license
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agreement, such as these, constitute trade secrets under the law and are subject to protection
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under the “compelling reason” standard. See Kamakana, 447 F.3d at 1179; Powertech, 2012 WL
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1969039, at *1.
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CONCLUSION
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For the foregoing reason, Motorola respectfully requests that: 1) the Court seal the
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portions of Samsung’s proposed Trial Exhibits 77, 82, 630, and 631 described above; 2) that
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those members of the public and litigants not authorized to view “Highly Confidential –
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Attorneys Eyes Only” material be excluded from the courtroom during any discussion or display
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of any of the information identified in item (1) (or any other Motorola confidential information);;
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and 3) the Court seal the portions of the trial transcript in which those portions of those trial
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exhibits (or any other Motorola confidential information) is disclosed.
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Dated: July 26, 2012
WINSTON & STRAWN LLP
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By: /s/ Jennifer A. Golinveaux
David S. Bloch
Jennifer A. Golinveaux
Marcus T. Hall
Peter J. Chassman (pro hac vice forthcoming)
Attorneys for Non-Party,
MOTOROLA MOBILITY LLC
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-5EMERGENCY MOT’N BY NONPARTY MOTOROLA TO SEAL
Case No. 11-CV-01846-LHK
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