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

Filing 79

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

Doc. 79

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., 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' Reply In Support Of Their 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; and 2) The Supplemental Declaration Of James M. Glass In Support Of The Retailer Defendants' Joint Motion to Dismiss or, in the Alternative, to

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Stay This Action in Favor of a First-Filed Action in the Central District of California. Defendants Harmonix Music Systems, Inc., Viacom International, Inc., and Electronic Arts, Inc. do not oppose this motion, without waiving any right to seek production of the sealed version of the attached papers at a later date. 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. 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.

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. J at 2.) 3. The Retailer Defendants' Reply is based in part on the Agreement and discusses

the terms of the Agreement. To avoid any dispute with Gibson 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 Reply 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' Reply be deemed filed as of June 4, 2008.

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Should the Court deny this motion to seal, the Retailer Defendants' request that all papers be returned to the Retailer Defendants, and not be made part of the public record. 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.

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Respectfully submitted, s/ Samuel D. Lipshie Samuel J. 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] Edward J. DeFranco (admitted pro hac vice) James M. Glass (admitted pro hac vice) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: [phone] Facsimile: [phone] Harry A. Olivar, Jr. (pro hac vice application pending) 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 4th day of June, 2008. s/ Samuel D. Lipshie Samuel D. Lipshie

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