Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al

Filing 36

Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al

Doc. 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION Gibson Guitar Corporation, Plaintiff, v. Wal-Mart Stores, Inc., Target Corporation, Kmart Corporation, Sears, Roebuck & Co., Amazon.com, Inc., GameStop Corporation, Toys-R-Us, Inc., Harmonix Music Systems, Inc., MTV (a division of Viacom International, Inc.), and Electronic Arts, Inc. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. 3:08-00279 JURY DEMAND Judge Wiseman Magistrate Judge Griffin

MOTION FOR LEAVE TO FILE UNDER SEAL Defendants Wal-Mart Stores, Inc., Target Corporation, Kmart Corporation, Sears, Roebuck & Co., Amazon.com, Inc., GameStop Corporation, and Toys-R-Us, Inc. (collectively, the "Retailer Defendants") jointly and respectfully request leave from the Court to file under seal the following documents, each of which is being filed contemporaneously herewith as a "Sealed Document" pursuant to Administrative Order No. 167, Section 5.07: 1) The Retailer Defendants' Joint Motion to Dismiss or, in the Alternative, to Stay This Action in Favor of a First-Filed Action in the Central District of California ("Jo int Motion to Dismiss or Stay"); 2) The Retailer Defendants' Memorandum of Law In Support Of Their Joint Motion to Dismiss or Stay;

Dockets.Justia.com

3)

The Declaration Of James M. Glass In Support Of The Retailer Defendants' Joint Motion to Dismiss or Stay and;

4)

The Declaration Of Mary A. Tuck In Support Of The Retailer Defendants' Joint Motion to Dismiss or Stay;

5)

The Declaration Of Gregory Deutsch In Support Of The Retailer Defendants' Joint Motion to Dismiss or Stay; and

6)

The Declaration Of Kai Huang In Support Of The Retailer Defendants' Joint Motion to Dismiss or Stay.

Because of the confidential nature of these papers, all of the Defendants have agreed to accept service of non-confidential, redacted versions of the above-identified materials. None of the Defendants (including the Retailer Defendants, the "Viacom" Defendants, or Counsel for the Viacom Defendants) have seen unredacted versions of the filings for which the Retailer Defendants seek leave to file under seal. The Retailer Defendants are also prepared to file nonconfident ial, redacted versions of the above-identified materials for public access via ECF should the Court grant the instant Motion for Leave to File Under Seal. The Retailer Defendants request that their Joint Motion to Dismiss or Stay (and papers filed in support thereof) be filed under seal for the following reasons: 1. Gibson and Activision entered into an agreement that includes a confidentiality

provision ("Agreement"). The Agreement is attached as Exhibit B to the unredacted Declaration of James M. Glass. 2. In a March 25, 2008 letter, Gibson accused Activision of breaching the Specifically, Gibson accused Activision of

confidentiality provision of the Agreement.

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breaching the confidentiality provision of the Agreement by "disclosing the existence of the Agreement," and by referencing the Agreement in a press release. (Glass Decl. Ex. K at 2.) 3. The Retailer Defendants' Joint Motion to Dismiss or Stay is based in part on the

Agreement, discusses the terms of the Agreement, and specifically quotes the Agreement. To avoid any dispute with Gibso n regarding the confidentiality provision of the Agreement, the Retailer Defendants hereby request leave from the Court to file under seal the unredacted version of their Joint Motion to Dismiss or Stay as well as certain declarations and exhibits in support thereof. The Retailer Defendants further request that should the Court grant this motion to seal, the Retailer Defendants' Joint Motion to Dismiss or Stay be deemed filed as of May 1, 2008. WHEREFORE, Defendants Wal-Mart Stores, Inc., Target Corporation, Kmart Corporation, Sears, Roebuck & Co., Amazon.com, Inc., GameStop Corporation, and Toys-RUs, Inc. respectfully request that the Court grant this Motion for Leave to File Under Seal. A proposed order granting this motion is submitted herewith.

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Respect fully submitted, s/ Samuel D. Lipshie Samuel D. Lipshie (No. 9538) Thor Y. Urness (No. 13641) Jonathan D. Rose (No. 20967) BOULT CUMMINGS CONNERS & BERRY, PLC 1600 Division Street, Suite 700 P.O. Box 340025 Nashville, TN 37203 Telephone: [phone] Facsimile: [phone] OF COUNSEL: Edward J. DeFranco James M. Glass QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: [phone] Facsimile: [phone] Harry A. Olivar, Jr. QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 Figueroa Street, 10th Floor Los Angeles, CA 90017 Telephone: [phone] Facsimile: [phone]

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing is being filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to: Douglas R. Pierce King & Ballow 315 Union Street, Suite 1100 Nashville, TN 37210 Matthew W. Siegal Richard Eskew Jason M. Sobel Stroock & Stroock & Lavan LLP 180 Maden Lane New York, NY 10038-4982 William Taylor Ramsey Aubrey B. Harwell, III Neal & Harwell 150 Fourth Avenue, North 2000 First Union Tower Nashville, TN 37210-2498 Mark A. Samuels Robert M. Schwartz William J. Charron O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071-2899 on this the 1st day o f May, 2008. s/ Samuel D. Lipshie Samuel D. Lipshie

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