Rosetta Stone LTD v. Google Inc.

Filing 59

Memorandum in Support re 58 MOTION to Seal Opposition to Google Inc.'s Motion for Protective Order and the Declaration of Jennifer L. Spaziano in Support Thereof. filed by Rosetta Stone LTD. (Allen, Warren)

Rosetta Stone LTD v. Google Inc.

Doc. 59

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION ____________________________________ ROSETTA STONE LTD., ) ) Plaint iff, ) ) vs. ) ) GOOGLE INC., ) ) Defendant. ) ____________________________________)

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

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SEAL Rosetta Stone Ltd. ("Rosetta Stone"), by and through undersigned counsel, respectfully submit s this Memorandum in support of its Motion to Seal its Opposit ion to Google Inc.'s Motion for Protective Order and the Declarat ion of Jennifer L. Spaziano in Support Thereof. The Motion has been noticed on the public docket as a sealing motion. The Sealing Order is appropriate and necessary to protect confident ial informat ion produced by Google in the course of this lit igation. 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, testimo ny and other discovery material as "Confident ial, " "Confident ial Attorneys' Eyes Only" and "Restricted Confident ial--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 informat ion with the Court, that party shall give the designat ing part y written notice o f its intent ion to do the same and

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the designat ing party shall have five business days in which to file wit h the Court a motion to have the proposed filing under seal. 2. On February 12, 2010, Google filed a Motion for a Protective Order to

preclude certain deposit ions noticed by Rosetta Stone. Rosetta Stone's opposit ion to that Motion is due on February 17, 2010 ­ less than five business days after the filing of the mot ion. In it s opposit ion, Rosetta Stone ident ifies and quotes from documents designated by Google as "Protected" in accordance wit h the Agreed Protective Order. These documents include interna l Google presentations, internal Google communications and a transcript of a deposition taken in another matter, which had been designated as confidential pursuant to a protective order in that matter. Because there is not sufficient time to comply with the provisio ns o f the Agreed

Protective Order and allow Google the opportunity to file this Motion to Seal, Rosetta Stone is filing this Motion consistent with the spirit of the Agreed Protective Order. 3. In determining whether to grant a motion to seal, courts begin wit h the

assumpt ion 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 presumpt ion 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 fo llows: (1) provide public notice of the request to seal and allow interested parties a reasonable opportunit y to object; (2) consider less drast ic alternatives to sealing the documents; and (3) provide specific reasons and factual findings supporting the decisio n to seal the documents and for reject ing alternat ives. 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-intervent ion documents after "balancing [the requesting party's] need for the sealed documents and the harm to the government risked by disclosure"). 4. Google contends that the "Protected" material at issue relates to business

practices that are confident ial and proprietary, the public disclo sure of which would be harmfu l 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 confident ial and proprietary nature of the information at issue. Rosetta Stone has publicly filed redacted versions of both its Opposit ion to Google's Motion for Protective Order and the Declaration of Jennifer L. Spaziano in Support Thereof. 5. 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 ma y retrieve confident ial exhibits and/or other confident ial matters filed wit h the Court upon termination o f this lit igat ion wit hout further order of this Court, and are the person to whom such confident ial 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 respectfully requests that the Court grant its Motion to Seal and enter the attached Order.

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Respect fully submitted, February 17, 2010 Date /s/ Warren T. Allen II (Va. Bar No. 72691) Attorney for Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Telephone: [phone] Facsimile: [phone] [e-mail] m

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CERTIFICATE OF SERVICE I hereby certify that on February 17, 2010, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification o f such filing (NEF) to the fo llowing: Jonathan D. Frieden ODIN, FELDMAN & PETTLEMAN, P.C. 9302 Lee Highway, Suite 1100 Fairfax, VA 22031 jo nathan.frieden@o fplaw.co m Counsel for Defendant, Google Inc. Respect fully submitted, February 17, 2010 Date /s/ Warren T. Allen II (Va. Bar No. 72691) Attorney for Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Telephone: [phone] Facsimile: [phone] [e-mail] m