2-Way Computing, Inc. v. Sprint Nextel Corporation et al

Filing 311

ORDER Granting 291 Motion to Seal. Signed by Magistrate Judge Peggy A. Leen on 8/20/2015. (Copies have been distributed pursuant to the NEF - DC)

Case 2:11-cv-00012-JCM-PAL Document 291 Filed 08/19/15 Page 1 of 7

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SNELL & WILMER
Greg Brower (Nevada Bar No. 5232)
Kelly Dove (Nevada Bar No. 10569)
3883 Howard Hughes Parkway
Suite 1100
Las Vegas, Nevada 89169
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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KILPATRICK TOWNSEND & STOCKTON LLP
Steven D. Moore (Pro Hac Vice)
Kristopher L. Reed (Pro Hac Vice)
Christopher Schenck (Pro Hac Vice)
Laura Mullendore (Pro Hac Vice)
Sara B. Giardina (Pro Hac Vice)
Two Embarcadero Center, Eighth Floor
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Counsel for Defendants
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

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2-WAY COMPUTING, INC. a Nevada
corporation,
Plaintiff,
v.
SPRINT SOLUTIONS, INC., a Delaware
corporation; NEXTEL FINANCE COMPANY,
a Delaware corporation; SPRINT UNITED
MANAGEMENT COMPANY, a Kansas
corporation; NEXTEL OF CALIFORNIA, INC.,
a Delaware corporation; NEXTEL BOOST OF
CALIFORNIA, LLC, a Delaware limited
liability company, and NEXTEL
COMMUNICATIONS, INC., a Delaware
corporation,
Defendants.

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AND RELATED COUNTERCLAIM

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Case No. 2:11-cv-00012-JCM-PAL
DEFENDANTS’ UNOPPOSED
MOTION FOR LEAVE TO FILE
UNDER SEAL

Case 2:11-cv-00012-JCM-PAL Document 291 Filed 08/19/15 Page 2 of 7

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Pursuant to Local Rule 10-5 and Paragraph 9 of the Stipulated Protective Order,

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Dkt. 39, Defendants Sprint Solutions, Inc., Nextel Finance Company, Sprint United

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Management Company, Nextel of California, Inc., Nextel Boost of California, LLC, and

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Nextel Communications, Inc. (collectively, “Sprint”) hereby request that portions of its Reply

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in Support of their Motion In Limine 3 and Exhibits A, and D-F, attached to the Reply

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Declaration of Christopher Schenck in Support of Defendants’ Motions In Limine Nos. 3 & 6,

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which will be electronically filed under seal contemporaneously with this request, be sealed

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by this Honorable Court.. This Motion for Leave is based on the following Memorandum of

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Points and Authorities, the papers and pleadings on file, and any oral argument the Court may

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entertain. Additionally, counsel for Sprint has conferred with counsel for Plaintiff who

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indicated that the Plaintiff will not oppose the current Motion.

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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On May 20, 2011, the Court entered the parties’ Stipulated Protective Order. See

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Dkt. 39. On May 24, 2012, the Court entered a Stipulation for Amendment to Stipulated

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Protective Order. See Dkt. 99. The Stipulated Protective Order allowed for the production of

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documents and information that contain technical or business information of a competitive

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significance. Dkt. 39 at ¶6. The Stipulated Protective Order also protected non-parties that

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provided confidential documents and/or information in the case. Id. at ¶15. Under the

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protective order, the parties, as well as non-parties such as Motorola Mobility, Motorola

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Solutions, and Qualcomm, produced documents, provided information during discovery, and

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permitted the parties to produce information and documents subject to confidentiality

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restrictions. Much of this information was designated as “Confidential” in accordance with

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the provisions in the Stipulated Protective Order as the information involved proprietary

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technical information with respect to the iDEN technology at issue.

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Previously in this matter, Sprint filed two Motions for Summary Judgment and replies

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in support of those Motions. Both of those Motions involved materials that either the parties,

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or non-parties, deemed “Confidential” under the Stipulated Protective Order, including
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Case 2:11-cv-00012-JCM-PAL Document 291 Filed 08/19/15 Page 3 of 7

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materials concerning how iDEN, and devices that use iDEN, operate. Thus, under paragraph

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9 of the Stipulated Protective Order, Sprint filed a motion to seal certain materials involved in

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those Motions for Summary Judgment illustrating that “compelling reasons” existed for such

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materials to remain under seal. See Dkts. 140, 156. The Court granted those Motions. See

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Dkts. 157, 159. In granting those Motions to Seal, the Court found that “Defendants have

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stated compelling reasons for maintaining the confidentiality of documents filed in

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connection with their Motions for Summary Judgment.” Dkt. 157 at 2. See also Dkt. 159 at

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1. Similarly, in granting prior Motion to Seal in conjunction with previous motions in limine,

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the Court found that the expert report of Michele Riley contains confidential financial

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information, and that good cause was shown to seal such information. Dkt. 212 at 2-3.

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II.

LEGAL ARGUMENT AND ANALYSIS

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The documents filed under seal should remain sealed because it contain confidential

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information and trade secrets regarding the technology at issue. In the case of dispositive

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motions, in which similar, if not the same, materials were deemed to remain under seal by

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this Court, see Dkts. 157, 159, “compelling reasons” must be shown in order to seal the

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records. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). As

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described above, the Court found that the “compelling reasons” test was met to maintain

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under seal documents relating to the iDEN technology at issue.

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The information Sprint seeks to maintain under seal here meets the “good cause” and

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“compelling reasons” test. Documents relating to the development and operation of iDEN are

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clearly proprietary and subject to protection. Another district court, in conjunction with a

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theft of trade secrets case involving documents concerning iDEN technology, made specific

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findings of fact that the iDEN technology is proprietary and not readily available to the

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public. See U.S. v. Hanjuan Jin, 833 F. Supp. 2d 977, 982, 991 (N.D. Ill. 2012) (“iDEN is a

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proprietary standard for cellular telecommunications technology developed by Motorola

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[and] is not publicly accessible.”). Maintaining the confidentiality of such technology is

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essential to not only third parties that developed the technology such as Motorola Solutions

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and Motorola Mobility, but also the companies that have contracted with these companies to
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use the technology and have agreed to maintain its confidentiality, such as Sprint.1 In fact,

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the Court filed its Order on the Motion for Summary Judgment involving the iDEN

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technology at issue under seal. See Dkt. 160.

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The redactions in Defendants’ Reply in Support of their Motion In Limine 3 and

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Exhibits A, and D-F, attached to the Reply Declaration of Christopher Schenck in Support of

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Defendants’ Motions In Limine Nos. 3 & 6, thereto relate to (1) the functionality of the

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proprietary iDEN technology, how iDEN devices that use such technology operate, and the

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development of the iDEN technology, and thus should be maintained under seal, and (2)

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competitive financial information. The information has been designated as “Confidential”

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under the Stipulated Protective Order because the producing party considers the information

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to be proprietary and subject to protection. The Court’s prior orders with respect to the

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Motions to Seal in conjunction with the Motions for Summary Judgment and previous

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motions in limine, see, e.g., Dkt. 157, 159, 212, as well as the Order from the Northern

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District of Illinois discussed above, illustrate that Sprint has made the requisite particularized

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showing of good cause with respect to these documents.

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Due to the confidential, proprietary, and private nature of these documents and

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information, public disclosure could result in improper use and could put not only Defendants

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Sprint, but also non-parties Motorola Mobility, LLC and Motorola Solutions, Inc. at a

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competitive disadvantage in the marketplace. Furthermore, the public has little to no interest

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in these documents and information in the context of this patent litigation matter brought by a

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non-practicing entity. Considering the information at issue, there is comparatively little value

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to the general public in terms of enhancing its “understanding of the judicial process.” See

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Kamakana, 447. F.3d at 1179. Simply put, there is no harm to the public if they do not have

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access to the information Sprint seeks to seal. Therefore, this Court should enter an order to

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seal the document and information and not place it on the Court’s docket.

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The agreements with these companies contain non-disclosure and confidentiality
obligations.
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III.

CONCLUSION

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Because portions of Defendants’ Reply in Support of their Motion In Limine 3 and

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Exhibits A, and D-F, attached to the Reply Declaration of Christopher Schenck in Support of

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Defendants’ Motions In Limine Nos. 3 & 6, contain confidential information regarding the

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technology used by Sprint for Push-to-Talk that is at issue in this lawsuit, and financial

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information related to the same, and because Plaintiff does not oppose the current Motion,

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Sprint respectfully requests that the Court enter an Order that these materials remain sealed.

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Dated: August 18, 2015

Respectfully submitted,

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KILPATRICK TOWNSEND &
STOCKTON LLP

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s/Christopher Schenck
Christopher Schenck (Pro Hac Vice)
[e-mail]
1420 Fifth Avenue, Suite 4400
Seattle, WA 98101
Tel: [phone]
Fax: [phone]

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Steven D. Moore (Pro Hac Vice)
[e-mail]
Sara B. Giardina (Pro Hac Vice)
[e-mail]
Two Embarcadero Center, Eighth Floor
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]

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Kristopher L. Reed (Pro Hac Vice)
[e-mail]
Laura Mullendore (Pro Hac Vice)
[e-mail]
1400 Wewatta Street, Suite 600
Denver , CO 80202
Tel: [phone]
Fax: [phone]

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SNELL & WILMER LLP

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Greg Brower (Nevada Bar No. 5232)
[e-mail]

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Case 2:11-cv-00012-JCM-PAL Document 291 Filed 08/19/15 Page 6 of 7

Kelly Dove (Nevada Bar No. 10569)
[e-mail]
3883 Howard Hughes Parkway
Suite 1100
Las Vegas, Nevada 89169
Tel: [phone]
Fax: [phone]

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Counsel for Defendants
Sprint Solutions, Inc., Nextel Finance
Company, Sprint United Management
Company, Nextel of California, Inc., Nextel
Boost of California, LLC, and Nextel
Communications, Inc.

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Case 2:11-cv-00012-JCM-PAL Document 291 Filed 08/19/15 Page 7 of 7

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CERTIFICATE OF SERVICE

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I, the undersigned, declare under penalty of perjury, that I am over the age of eighteen

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(18) years. On this date, I caused to be served a true and correct copy of the foregoing

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DEFENDANTS’ UNOPPOSED MOTION FOR LEAVE TO FILE UNDER SEAL by

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the method indicated:

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___XXX___

by the Court’s CM/ECF Program

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__________

by U. S. Mail

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__________

by Facsimile Transmission

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__________

by Electronic Mail

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__________

by Federal Express

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__________

by Hand Delivery

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Reza Mirzaie
Marc A. Fenster
Adam S. Hoffman
Jay Chung
Shani M. Tutt
Brian D. Ledahl
RUSS AUGUST & KABAT
12424 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90025
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email [e-mail]

Mark Borghese, Esq.
BORGHESE LEGAL, LTD.
10161 Park Run Drive, Suite 150
Las Vegas, NV 89145
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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Counsel for Plaintiff
2-Way Computing, Inc.

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Counsel for Plaintiff
2-Way Computing, Inc.

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DATED: August 18, 2015

s/Christopher Schenck
Christopher Schenck (Pro Hac Vice)

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Case 2:11-cv-00012-JCM-PAL Document 291-1 Filed 08/19/15 Page 1 of 2

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SNELL & WILMER LLP
Greg Brower (Nevada Bar No. 5232)
Kelly Dove (Nevada Bar No. 10569)
3883 Howard Hughes Parkway
Suite 1100
Las Vegas, Nevada 89169
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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KILPATRICK TOWNSEND & STOCKTON LLP
Steven D. Moore (Pro Hac Vice)
Kristopher L. Reed (Pro Hac Vice)
Christopher Schenck (Pro Hac Vice)
Laura Mullendore (Pro Hac Vice)
Sara B. Giardina (Pro Hac Vice)
Two Embarcadero Center, Eighth Floor
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Defendants
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

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2-WAY COMPUTING, Inc. a Nevada corporation,

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Plaintiff,
v.

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SPRINT SOLUTIONS, INC., a Delaware
corporation; NEXTEL FINANCE COMPANY, a
Delaware corporation; SPRINT UNITED
MANAGEMENT COMPANY, a Kansas
corporation; NEXTEL OF CALIFORNIA, INC., a
Delaware corporation; NEXTEL BOOST OF
CALIFORNIA, LLC, a Delaware limited liability
company, and NEXTEL COMMUNICATIONS,
INC., a Delaware corporation,
Defendants.

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AND RELATED COUNTERCLAIM

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Case No. 2:11-cv-00012-JCM-PAL

[PROPOSED] ORDER GRANTING
DEFENDANTS’ UNOPPOSED MOTION
FOR LEAVE TO FILE UNDER SEAL

Case 2:11-cv-00012-JCM-PAL Document 291-1 Filed 08/19/15 Page 2 of 2

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The Court, having reviewed Defendants’ Unopposed Motion for Leave to File Under Seal

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and good cause appearing, hereby ORDERS that the following documents can be filed under seal:
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The unredacted version of Defendants’ Reply in Support of their Motion In Limine 3;

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Exhibits A, and D-F to the Reply Declaration of Christopher Schenck in Support of

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Defendants’ Motions In Limine Nos. 3&6.

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DATED this 20th day of August, 2015
THE HONORABLE PEGGY A. LEEN

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