Rosetta Stone LTD v. Google Inc.

Filing 171

Memorandum in Support re 170 MOTION to Seal (Unopposed) filed by 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 UNOPPOSED MOTION TO SEAL
Rosetta Stone Ltd. (“Rosetta Stone”), by and through undersigned counsel,
respectfully submits this Memorandum of Law In Support of its Unopposed Motion to Seal its
Memorandum of Law in Support of Its Motion for Sanctions and the Declaration of Jennifer L.
Spaziano in Support Thereof. The Unopposed 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 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 designate certain documents, testimony and other discovery material as “Confidential,”
“Confidential Attorneys’ Eyes Only” and “Restricted Confidential—Source Code.” 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 Sanctions and the

Declaration of Jennifer L. Spaziano in Support Thereof, Rosetta Stone identifies and quotes from
documents designated by Google as Protected Information in accordance with the Agreed
Protective Order.

These documents reference business practices that Google contends are

confidential and propriety.

Consequently, Google has designated these documents as

“Confidential” or “Confidential Attorneys’ Eyes Only” pursuant to the Agreed Protective Order.
3.

Because there is not sufficient time to allow Google to file its own motion

to seal in accordance with the procedural provisions set forth in the Agreed Protective Order,
Rosetta Stone instead is filing this Unopposed Motion consistent with the spirit of the Agreed
Protective Order. Nothing in this Unopposed Motion, however, shall prevent Rosetta Stone from
contending that any information or documents designated by Google as Protected Information
have been improperly designated.
4.

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

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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
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”).
5.

Google contends that the “Protected” material at issue relates to business

practices that are confidential and proprietary, the public disclosure of which would be harmful
to its 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 has publicly filed
redacted versions of both its Memorandum of Law in Support of Its Motion for Sanctions and the
Declaration of Jennifer L. Spaziano in Support Thereof.
6.

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.”

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For the foregoing reasons, Rosetta Stone respectfully requests that the Court grant
its Motion to Seal and enter the attached Order.
Respectfully submitted,

April 16, 2010
Date

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on April 16, 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,
April 16, 2010
Date

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]