Rosetta Stone LTD v. Google Inc.

Filing 101

Memorandum in Support re 100 Joint MOTION to Seal filed by Google Inc., Rosetta Stone LTD. (Allen, Warren)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

____________________________________
ROSETTA STONE LTD.,
)
)
Plaintiff,
)
)
vs.
)
)
GOOGLE INC.,
)
)
Defendant.
)
____________________________________)

Case No. 1:09-cv-00736 (GBL/TCB)

MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION TO SEAL
Rosetta Stone Ltd. (“Rosetta Stone”) and Google Inc. (“Google”), by and through
respective undersigned counsel, respectfully submit this Memorandum in Support of their Joint
Motion to Seal the following documents:


Rosetta Stone’s Memorandum of Law in Support of its Motion for Partial
Summary Judgment as to Liability;



Declarations of Jennifer L. Spaziano, Eric Eichmann, Van Leigh and Jason
Calhoun in Support Thereof;



Google’s and Rosetta Stone’s respective responsive and rebuttal briefs to
Rosetta Stone’s Motion for Partial Summary Judgment as to Liability, and
any declarations in support of those responsive or rebuttal briefs;



Google’s Memorandum of Law in Support of its Motion for Summary
Judgment;



Declarations of Margret M. Caruso, Edward A. Blair, Bill Lloyd and Cory
Louie in Support Thereof;



Rosetta Stone’s and Google’s respective responsive and rebuttal briefs to
Google’s Motion for Summary Judgment, and any declarations in support
of those responsive or rebuttal briefs;



Google’s Memorandum of Law in Support of its Motion to Exclude the
Expert Report of Kent D. Van Liere, Ph.D.;



Declaration of Cheryl A. Galvin in Support Thereof; and



Rosetta Stone’s and Google’s respective responsive and rebuttal briefs to
Google’s Motion to Exclude the Expert Report of Kent D. Van Liere,
Ph.D, and any declarations in support of those responsive or rebuttal briefs.

The Joint Motion has been noticed on the public docket as a sealing motion. The Sealing Order
is appropriate and necessary to protect confidential information produced by Rosetta Stone and
Google in the course of this litigation.
1.

On December 14, 2009, this Court entered an Agreed Protective Order in

the above captioned case. (Docket No. 28.) This Agreed Protective Order permits parties in this
case to designated certain documents, testimony and other discovery material as “Confidential,”
“Confidential Attorneys’ Eyes Only” and “Restricted Confidential—Source Code” (collectively,
“Protected Information”). The Order further provides that any material so designated “shall not
be disclosed to any person” not otherwise specifically enumerated in the Order. To that end,
Paragraph 3 of the Agreed Protective Order provides that if a receiving party seeks to file
Protected Information with the Court, that party shall give the designating party written notice of
its intention to do the same and the designating party shall have five business days in which to
file with the Court a motion to have the proposed filing under seal.
2.

In its Memorandum of Law in Support of its Motion for Partial Summary

Judgment as to Liability and the Declarations in Support Thereof, Rosetta Stone identifies and
quotes from documents and testimony designated by Rosetta Stone and Google as Protected
Information in accordance with the Agreed Protective Order. These documents and testimony
include internal communications, sensitive financial data, and proprietary information, which
had been designated as “Confidential” or “Confidential Attorneys’ Eyes Only” pursuant to the
Agreed Protective Order.

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3.

In its Memoranda of Law and the Declarations in Support Thereof, Google

also identifies and quotes from documents and testimony designated by Rosetta Stone and
Google as Protected Information in accordance with the Agreed Protective Order.

These

documents include internal communications, sensitive financial data, highly sensitive technical
information, proprietary information and deposition testimony that has been designated
“Confidential Attorneys’ Eyes Only” pursuant to the Agreed Protective Order.
4.

Because there is not sufficient time to comply with the provisions of the

Agreed Protective Order and allow the respective parties the opportunity to file separate motions
to seal, Rosetta Stone and Google are filing this Joint Motion consistent with the spirit of the
Agreed Protective Order.
5.

Nothing in this Motion shall prevent Rosetta Stone or Google from

contending that any documents or information designated by the other as Protected Information
have been improperly designated.
6.

In determining whether to grant a motion to seal, courts begin with the

assumption that the documents at issue are judicial records subject to public access. They then
engage in a balancing test to determine if the interest in sealing or maintaining the seal on such
documents outweighs the public’s interest in access to them. In conducting this balancing test,
courts have placed the burden upon the party which seeks to overcome the presumption of public
access to show some significant interest that outweighs public access. The courts have applied a
three-part test in deciding whether to seal such documents, as follows: (1) provide public notice
of the request to seal and allow interested parties a reasonable opportunity to object; (2) consider
less drastic alternatives to sealing the documents; and (3) provide specific reasons and factual
findings supporting the decision to seal the documents and for rejecting alternatives. See, e.g.,
Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000); Stone v. University of Maryland
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Medical System Corporation, 855 F.2d 178, 182 (4th Cir. 1988); In re Knight Publishing
Company, 743 F.2d 231, 235-36 (4th Cir. 1984). See also, United States ex rel. Coughlin v. IBM,
992 F. Supp. 137, 141 (N. D. N. Y. 1998) (balancing “need for and harm risked by the disclosure
sought by Relators”); United States ex rel. O’Keefe v. McDonnell Douglas Corp., 902 F. Supp.
189, 191 (E.D. Mo. 1995) (court has discretion to maintain seal on pre-intervention documents
after “balancing [the requesting party’s] need for the sealed documents and the harm to the
government risked by disclosure”).
7.

The parties represent that the Protected Information at issue relates to

business practices and internal communications that are confidential and proprietary, the public
disclosure of which would be harmful to their business interests. Reasonable public notice of the
sealing of these documents has been given through the filings in this case. No less restrictive
method would adequately preserve the confidential and proprietary nature of the information at
issue.

Rosetta Stone and Google have publicly filed redacted versions of their respective

Memoranda in Support and Declarations in Support Thereof.
8.

The Agreed Protective Order addresses the period of time the party seeks

to have the matter maintained under seal and how the matter is to be handled upon unsealing:
“Outside attorneys of record for the parties are hereby authorized to be the persons who may
retrieve confidential exhibits and/or other confidential matters filed with the Court upon
termination of this litigation without further order of this Court, and are the person to whom such
confidential exhibits or other confidential matters may be returned by the Clerk of the Court, if
they are not so retrieved.”
For the foregoing reasons, Rosetta Stone and Google respectfully request that the
Court grant their Joint Motion to Seal and enter the attached Order.

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Respectfully submitted,

March 26, 2010
Of Counsel:
Mitchell S. Ettinger
(Pro hac vice)
Clifford M. Sloan
(Pro hac vice)
Jennifer L. Spaziano
(Pro hac vice)
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]

/s/
Warren T. Allen II
Virginia Bar Number 72691
Attorney for Plaintiff Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
[phone]
[phone] (facsimile)
[e-mail]

Counsel for Plaintiff Rosetta Stone Ltd.

Margret M. Caruso
Quinn Emanuel Urquhart & Sullivan, LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065
[phone]
[phone] (facsimile)
[e-mail]

Jonathan D. Frieden
Odin, Feldman & Pettleman, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
[phone]
[phone] (facsimile)
[e-mail]

Counsel for Defendant Google Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on March 26, 2010, I will electronically file the foregoing
with the Clerk of Court using the CM/ECF system, which shall send notification of such filing
(NEF) to the following:
Jonathan D. Frieden
ODIN, FELDMAN & PETTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
[e-mail]
Counsel for Defendant Google Inc.
Respectfully submitted,
March 26, 2010
Date

/s/
Warren T. Allen II
Virginia Bar Number 72691
Attorney for Plaintiff Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
[phone]
[phone] (facsimile)
[e-mail]

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