WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 485

Joint MOTION to Seal [PARTIALLY OPPOSED] JOINT MOTION TO SEAL CERTAIN TRIAL EXHIBITS by Ericsson Inc., Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson, WI-LAN Inc.. (Attachments: # 1 Text of Proposed Order)(Pai, Ajeet)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC. et al.,
Defendants.

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Civil Action No. 6:10-cv-521-LED
Civil Action No. 6:13-cv-252-LED
CONSOLIDATED CASES
JURY TRIAL DEMANDED

WI-LAN INC., TELEFONAKTIEBOLAGET LM ERICSSON, ERICSSON INC.,
SONY MOBILE COMMUNICATIONS AB, AND SONY MOBILE
COMMUNICATIONS (USA) INC.’S PARTIALLY OPPOSED
JOINT MOTION TO SEAL CERTAIN TRIAL EXHIBITS

I.

INTRODUCTION AND BACKGROUND
Plaintiff Wi-LAN Inc. (“Wi-LAN”) and Defendants Telefonaktiebolaget LM Ericsson,

Ericsson

Inc.

(“Ericsson”),

Sony Mobile Communications

AB,

and

Sony Mobile

Communications (USA) Inc. (“Sony Mobile”) (collectively, “Movants”) jointly move to seal a
small number of trial exhibits that are listed on Plaintiff’s Exhibits Admitted at Trial
07/08/2013–07/15/2013 (Dkt. No. 468) and Defendants’ Exhibits Admitted at Trial 07/08/2013–
07/15/2013 (Dkt. No. 469).1 In an effort to balance the protection of the parties’ and various
nonparties’ sensitive business information with the public interest in accessing judicial records
and maintaining an open and transparent judicial system, the exhibits Movants seek to seal
represent only a small and particularly sensitive subset of the exhibits admitted at trial.
Furthermore, Movants do not seek to seal any portion of the trial transcript. The documents for
which Movants request a sealing order contain highly sensitive business, technical, and personal
information from Wi-LAN, Ericsson, Sony Mobile, and nonparties, the disclosure of which
would not further the public interest, but instead would serve only to injure the businesses of the
Movants and nonparties.
During the discovery phase of this action, the parties to the lawsuit and nonparties
produced documents designated as “Confidential” or “Confidential – Attorneys’ Eyes Only”
under the Protective Order entered on December 19, 2011 (Dkt. No. 145).

Furthermore,

nonparty Qualcomm Inc. (“Qualcomm”) produced documents designated as “Qualcomm –
Outside Attorneys Eyes Only” under the Supplemental Protective Orders entered on April 23,
2012 (Dkt. No. 191) and June 25, 2012 (Dkt. No. 205). By their terms, these Protective Orders
1

Movants Wi-LAN, Ericsson and Sony Mobile jointly move to seal all exhibits that are
the subject of this motion. Non-joining Defendants Alcatel-Lucent USA Inc., (“AlcatelLucent”), HTC Corp., HTC America, Inc., and Exedea Inc. do not (collectively “HTC”) oppose
this motion in part, as indicated below.
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recognize that documents containing confidential, proprietary and/or commercially sensitive
information would be produced.

E.g. Dkt. No. 145 at 1–2.

Documents designated as

“Confidential,” “Confidential – Attorneys’ Eyes Only,” or “Qualcomm – Outside Attorneys Eyes
Only” under the Protective Orders are protected from public disclosure and remain protected
from such disclosure even after final termination of the litigation. Id. at 21–22. Because certain
trial exhibits contain proprietary and/or highly confidential information that the parties or
nonparties designated as “Confidential,” “Confidential – Attorneys’ Eyes Only,” or “Qualcomm
– Outside Attorneys Eyes Only” under the Protective Orders, Movants jointly file this motion to
seal certain trial exhibits, the disclosure of which would cause harm to the parties’ competitive
standing by disclosing confidential business information, confidential personal information, or
other business confidences.
Movants therefore respectfully request that the Court grant this Motion to Seal Certain
Trial Exhibits as specified more particularly below.
II.

ANALYSIS
A.

Legal Standards

Courts have recognized that under normal circumstances the public has a common law
right to inspect and copy court records. S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th
Cir. 1993) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The purpose of
the common law right to access judicial records “serves to promote trustworthiness of the
judicial process, to curb judicial abuses, and to provide the public with a more complete
understanding of the judicial system, including a better perception of its fairness.” Id. at 849
(internal citations and quotations omitted). This right, however, is not absolute. Motorola, Inc.
v. Analog Devices, Inc., No. 1:03-CV-131, 2003 WL 25778434, at *1 (E.D. Tex. June 6, 2003).
Rather, it is within the court’s discretion to seal specific records in judicial proceedings. Id. In
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exercising its discretion to seal records, a court balances the public’s common law right of access
against the interests favoring nondisclosure. Van Waeyenberghe, 990 F.2d at 848. While there
is no bright line rule as to when a sealing order should be made, see Belo Broad. Corp. v. Clark,
654 F.2d 423 (5th Cir. 1981), courts have consistently sealed judicial records “where court files
might have become a vehicle for improper purposes.” Motorola, 2003 WL 25778434, at *1; see
Belo, 654 F.2d at 434 (discussing the Supreme Court’s recognition of several circumstances in
which the right of access was outweighed by the court’s power to insure that its records are not
used as vehicles for improper purposes). Thus, “courts have refused to permit their files to serve
. . . as sources of business information that might harm a litigant’s competitive standing.” Nixon,
435 U.S. at 598.
B.

A Sealing Order Is Necessary to Protect Proprietary and Highly Confidential
Information Contained in Certain Exhibits Admitted During the Jury Trial
of this Matter

A sealing order should be entered here because the interests of the Movants and
nonparties—such as Qualcomm and various third parties that entered into confidential business
agreements with the Movants—in their confidential business information far outweigh the
common law right of access to these particular court records. Access to the these confidential
business documents would not serve the purpose of the common law right to access because the
documents themselves do not reveal anything about the judicial process or the judicial system.
Rather, the documents Movants seek to seal relate solely to the businesses of Wi-LAN, Ericsson,
Sony Mobile, Qualcomm, and other nonparties, namely, their competitive strategies, business
plans, contractual agreements, sales and pricing details, licensing practices, and technical
information—documents that, if disclosed, would cause the kind of competitive harm the
Protective Orders were designed to prevent. See also Nixon, 435 U.S. at 598 (“[C]ourts have
refused to permit their files to serve . . . as sources of business information that might harm a
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litigant’s competitive standing.”) The public availability of the confidential business documents
Movants seek to seal would allow competitors to obtain confidential information that normally
would not be available publicly.
By seeking to seal only certain of the most sensitive documents produced by Movants
and various nonparties, and not the trial transcript, Movants strike a balance that upholds the
public interest in open court proceedings while maintaining the confidentiality of sensitive
information. Indeed, any rule that discussing portions of exhibits or discussing exhibits in
general terms at trial should preclude a sealing order would be antithetical to maintaining an
accessible, open court system. If such a rule were adopted, it would encourage litigants to
always ask to seal court proceedings anytime confidential information might be revealed. This
would interrupt the flow of court proceedings and also close them to the public. Permitting
discussion of limited information in open court and later allowing sensitive exhibits to be sealed
so that other confidential information contained in those documents, but not discussed in court,
remains protected is the most reasonable way of balancing the public and private interests. See,
e.g., Motorola, 2003 WL 25778434, at *2 (Finding that the rationales for public access to Court
records are not frustrated where identical records without the confidential information are
available to the public.)
1.

Movants request — without opposition — that exhibits containing
confidential information of third parties be sealed.

For at least the reasons stated above, Movants respectfully request that the Court seal the
following trial exhibits containing confidential and/or proprietary information of third parties,
including Qualcomm and AT&T. Non-joining Defendants Alcatel-Lucent and HTC do not
oppose the sealing of these exhibits.

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Admitted Trial Exhibits
PX-114
PX-172

DX-396

PX-2202

DX-397

DX-393

DX-398

DX-394

2.

DX-395

DX-439

Movants request — without opposition — that exhibits containing
confidential information of Ericsson and Sony Mobile be sealed.

In addition to the documents listed above, Movants request that the Court seal the
following exhibits, which although pre-admitted during trial, were never referenced or discussed
during the trial.3 Non-joining Defendants Alcatel-Lucent and HTC also do not oppose the
sealing of these exhibits.
Admitted Trial Exhibits
PX-106

DX-278

DX-214

DX-280

DX-221

DX-281

DX-225

DX-323

2

PX 220 is an excerpt from a contract between Ericsson and its customer AT&T, which
contains confidential technical information regarding Ericsson’s base stations as well as
confidential financial information regarding the cost structure and terms of the agreement
between the two companies. This exhibit was mentioned only twice during trial. See Trial Tr.
July 9 PM, at 44-45; Trial Tr. July 10 AM, at 104. In each instance, the questioning involved
only two lines of this 18-page document, and did not disclose AT&T’s confidential financial
terms, which is the type of information Courts have sealed in the past. See Ironclad, L.P. v.
Poly-America, Inc., No. 3:98-CV-2600, 2000 WL 1400762, at *15 (N.D. Tex. July 22, 2000)
(Sealing documents containing sensitive cost structure analysis).
3

DX-323 is Sony Mobile’s Fourth Amended Responses and Fourth Amended Appendix
to Wi-LAN’s Third Set of Individual Interrogatories [Nos. 3 and 4]. While the existence of this
document was referenced at trial, the contents of the exhibit were not read into the record.
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Movants request that these exhibits be sealed because they contain sensitive technical or
financial information of Defendants Ericsson or Sony Mobile and were not discussed or
disclosed at all during the trial.
For example, PX 106 is a detailed technical specification regarding the design of one of
the integrated circuits used in Ericsson’s base stations. It was pre-admitted by Wi-LAN on the
first day of trial, but Wi-LAN did not ultimately question any witness regarding its contents.
The other exhibits (DX 214, 221, 225, 278, 280, 281, and 323) were pre-admitted by
Defendants, but Defendants ultimately decided that it was unnecessary to present any testimony
regarding these documents. All of these exhibits contain confidential sales and/or pricing data
regarding the accused Ericsson and Sony Mobile products, and also include information about
third-party customer prices and cost structures, and thus, should be sealed. Disclosure of this
information would put Ericsson and Sony Mobile at a great disadvantage with respect to their
competitors by providing those competitors with access to Ericsson’s and Sony Mobile’s
confidential sales/pricing and technical information that they would not otherwise have, and that
they could use to their own advantage. See Nixon, 435 U.S. at 598 (“[C]ourts have refused to
permit their files to serve . . . as sources of business information that might harm a litigant’s
competitive standing.”); see also Ironclad, L.P., No. 3:98-CV-2600, 2000 WL 1400762 at *15
(Sealing documents containing sensitive cost structure analysis).
Because there was no open-court disclosure of the information contained in these
Ericsson and Sony Mobile documents, sealing these exhibits would not thwart any of the
purposes underlying the common-law right to access judicial records. Accordingly, because
there was no open-court disclosure and the sensitivity of this technical and financial information
is so great, Movants request that these exhibits be sealed.

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3.

Movants request that the following exhibits containing confidential
information of Wi-LAN be sealed.

Movants Wi-LAN, Ericsson, and Sony Mobile also request that the Court seal the
following trial exhibits that represent confidential business and license agreements between WiLAN and third parties, highly sensitive sales and financial information, and other confidential
internal business documents and analyses belonging to Wi-LAN and certain third parties, the
disclosure of which would serve only to injure Wi-LAN’s and those third parties’ businesses.4
Non-joining Defendants Alcatel-Lucent and HTC oppose the sealing of these exhibits, with the
exception of DX-309, which Alcatel-Lucent and HTC do not oppose sealing.
Admitted Trial Exhibits
PX-157

PX-170

PX-159

DX-309

PX-162

DX-403

PX-163

DX-14, PX-187,
PX-122R

PX-166
PX-167
PX-168
PX-169

DX-55, DX-60,
DX-62, DX-63,
PX-200

Wi-LAN, like many businesses, closely guards the terms of its licenses and other
business agreements, including sensitive, non-public financial information, and other
confidential terms and conditions. The nonparties that have also signed the agreements at issue
4

Some of these exhibits reflect copies or variants of the same underlying confidential
document. For example, DX-14 and PX-187 each contain the full text of three confidential
agreements between Wi-LAN and nonparty Airspan, and PX-122R includes one of the same
agreements. DX-55, DX-60, DX-63, and PX-200 are all copies of the same confidential WiLAN accounting memo, and DX-62 is another confidential accounting memo. With the
exception of one confidential internal presentation (DX-403), the remainder of the listed exhibits
(PX-157 through PX-170, DX-309) are confidential license agreements between Wi-LAN and
third parties.
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similarly closely guard the contents of these documents. Likewise, Wi-LAN’s confidential
internal documents containing sensitive sales or pricing data, technical details, and business
analyses warrant protection from disclosure to protect their businesses. See Nixon, 435 U.S. at
598. While certain limited terms of particular agreements with nonparties (PX-157 through 170)
were revealed at trial, the vast majority of the agreements’ terms were not discussed in open
court. Similarly, only small portions of other confidential documents were discussed.
For example, for many of the admitted exhibits that are the subject of this motion, only
one or two pages were actually used in open court. See, e.g., Trial Testimony 26:20-27:19 (July
9, 2013 Afternoon Session) (discussing in general fashion only two pages of PX-122R out of 150
pages); id. at 103:22–107:4 (discussing the circumstances surrounding PX-187 and limited terms
of the agreement, while showing to the jury only the first page of the document); Trial Transcript
139:8-141:20 (July 10, 2013 Morning Session) (referring to a small portion, and possibly only a
single page, of DX-403). Other admitted exhibits were not discussed at all beyond the bare fact
of their existence. For example, admitted exhibit DX-309 is a confidential license agreement
between Wi-LAN and a nonparty that was mentioned only by a defense expert who simply
offered, in passing, the opinion that it was not a comparable license without substantively
discussing any terms of that license.

See Trial Transcript 156:13–157:2 (July 11, 2013

Afternoon Session) (mentioning PX-165 (not admitted during trial), which is the same license as
DX-309). Similarly, the specific contents of DX-62, an confidential accounting memorandum,
likewise does not appear to have been substantively discussed.5

5

Even where documents were substantively discussed during the trial, the full contents of
the exhibits were not read into the record. For example, much of the analysis and quantitative
detail contained in PX-200, another confidential internal accounting memorandum, was not
stated in open court when that exhibit was discussed.
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By requesting that the Court seal these exhibits, Movants seek to protect confidential
business information that remained out of the public eye during trial. Indeed, as noted above,
courts have sealed documents discussed in open court in order to protect businesses from the
illegitimate and harmful use of those documents by others. See Fractus, S.A. v. Samsung Elecs.
Co., No. 6:09-cv-00203-LED-JDL, Dkt. No. 1158 (E.D. Tex. Dec. 12, 2012) (sealing trial
exhibits including some discussed in open court); Ironclad, L.P., No. 3:98-CV-2600, 2000 WL
1400762 at *15 (sealing trial exhibits despite having been revealed in open court to members of
the public).
Without a sealing order, potential licensing partners and others would have access to this
sensitive and confidential business information that would otherwise be unavailable, and will no
doubt use this confidential information to their advantage during their negotiations with
Movants. Disclosure of the details of these agreements and analyses, beyond the limited portions
discussed in open court at trial, would thus place Movants at a serious disadvantage as to critical
aspects of their businesses, while serving no legitimate public purpose. Furthermore, potential
licensing partners may be hesitant to enter into agreements if these exhibits are not sealed,
because they may believe that that the full text of agreements could more easily become public
information. Permitting this limited set of exhibits to be sealed, while allowing the transcripts of
proceedings themselves to remain accessible, strikes a fair balance while encouraging litigants
not to interrupt open proceedings any time a document containing confidential information might
be used.
III.

CONCLUSION
For the foregoing reasons, Movants respectfully request that the Court seal the trial

exhibits identified above.

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Dated: August 21, 2013
Local Counsel
Johnny Ward (TX Bar No. 00794818)
Wesley Hill (TX Bar No. 24032294)
Claire Abernathy Henry
(TX Bar No. 24053063)
Ward & Smith Law Firm
P.O. Box 1231
1127 Judson Rd., Ste. 220
Longview, TX 75606-1231
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
claire@wsfirmcom

Respectfully submitted,
By: /s/Ajeet P. Pai
David B. Weaver (TX Bar 00798576)
Lead Attorney
Avelyn M. Ross (TX Bar 24027817)
Ajeet P. Pai (TX Bar 24060376)
Syed K. Fareed (TX Bar 24065216)
Jeffrey T. Han (TX Bar 24069870)
Seth A. Lindner (TX Bar 24078862)
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Steve R. Borgman (TX Bar 02670300)
Gwendolyn Johnson Samora (TX Bar 00784899)
VINSON & ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Wi-LAN Inc.

Local Counsel
William J. Cornelius (TX Bar 04834700)
Jennifer Ainsworth (TX Bar 00784720)
WILSON ROBERTSON & CORNELIUS PC
909 ESE Loop 323, Suite 400
P.O. Box 7339
Tyler, TX 75711-7339
Tel: [phone]
Fax: [phone]

By: /s/Richard L. Wynne, Jr. (w/permission)
Bruce S. Sostek (TX Bar 18855700)
Lead Attorney
Richard L. Wynne, Jr. (TX Bar 24003214)
Adrienne E. Dominguez (TX Bar 00793630)
J. Michael Heinlen (TX Bar 24032287)
Timothy E. Hudson (TX Bar 24046120)
Justin S. Cohen (TX Bar 24078356)
THOMPSON KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, TX 75201
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[e-mail]
[e-mail]

Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants Ericsson Inc.,
Telefonaktiebolaget LM Ericsson, Sony Mobile
Communications (USA) Inc., and Sony Mobile
Communications AB

CERTIFICATE OF CONFERENCE
The undersigned certifies that Plaintiff Wi-LAN Inc. and Defendants Ericsson and Sony
Mobile (“Movants”) have complied with the requirements of Local Rule CV-7(h). Specifically,
counsel for the Movants discussed the substance of this Motion with counsel for Alcatel-Lucent
and HTC during several telephonic conferences and via e-mail. Movants and non-moving
Defendants were unable to reach agreement with regard to certain trial exhibits identified in this
Motion. Accordingly, an impasse has been reached with regards to those issues (which are the
matters at issue in this Motion), leaving an open issue for the Court to resolve.
/s/Ajeet P. Pai
Ajeet P. Pai

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are
deemed to have consented to electronic service on this the 21st day of August, 2013.
/s/Ajeet P. Pai
Ajeet P. Pai

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