Bid for Position, LLC v. AOL, LLC et al

Filing 123

Bid for Position, LLC v. AOL, LLC et al

Doc. 123

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

'

FILED

CLERK. U.S. DISTRICT COURT

BID FOR POSITION, LLC,

NORFOLK. VA

PlaintifffCounterclaim Defendant,
v. AOL LLC,
GOOGLE INC., MICROSOFT CORP., and MIVA, INC.,

Civil Action No. 2:07cv582 (JBF-TEM)

Defendants/Counterclaim Plaintiffs.

[PKOPOOEDfcAGREED ORDER ALLOWING GOOGLE INC. LEAVE TO FILE UNDER SEAL THE DECLARATION OF CLAYTON BAVOR AND

PORTIONS OF THE BRIEF IN SUPPORT OF DEFENDANT GOOGLE INC.'S
MOTION FOR AN ORDER SUSTAINING GOOGLE'S OBJECTION TO PLAINTIFF'S DESIGNATION OF DANA TODD AS A TECHNICAL ADVISOR

UNDER THE PROTECTIVE ORDER

This matter comes before the Court on Defendant Google Inc.'s ("Google") Motion to File
Under Seal the Declaration of Clayton Bavor and portions of its Brief in Support of Defendant Google Inc.'s Motion for an Order Sustaining Google's Objection to Plaintiffs Designation of Dana

Todd as a Technical Advisor Under the Protective Order filed in this Court on May 15,2008. And, it
appearing to the Court that:

1.

This Court entered a Protective Order ("Protective Order") on April 28, 2008.

Paragraph 23 of the Protective Order states: a. In the event a party wishes to use Protected Information, or any papers
containing or making reference to the contents of such Protected Information, in any pleading or document filed with the Court in this

litigation, such pleading or document and Protected Information shall be
filed under seal, until such time as the Court orders or otherwise denies

Dockets.Justia.com

permission to file under seal, and such Protected Information, or papers,

shall plainly state on the first page of any bound or stapled document "Confidential--Filed Under Seal" and shall be filed only in sealed envelopes on which shall be endorsed the caption of this action and a
statement substantially in the following form:
CONFIDENTIAL

This envelope contains documents that are subject to a Stipulation and Protective Order Governing Discovery

Material entered by the Court in this action. This envelope shall neither be opened nor the contents revealed except by
Order of the Court.

b.

Whenever a party files a document under seal with the Court, that party
shall simultaneously file a motion requesting that the Court enter an order

permitting the document to remain under seal. When such a motion is
filed, the following steps must be taken:

i.

The Clerk shall provide public notice by docketing the motion in a
way that discloses its nature as a motion to seal, with a hearing date (if

any);

ii. iii. iv.
v.

The Clerk shall provide interested persons an opportunity to submit
memoranda in support of or in opposition to the motion;

The document and any confidential memoranda shall be treated as sealed pending a ruling on the motion; If the Court decides to seal the documents at issue, it must state its
reasons on the record, supported by specific findings; and The Court must state its reasons for rejecting alternatives to closure.

2.

The Declaration of Clayton Bavor ("Bavor Declaration") and portions of the Brief in

Support of Defendant Google Inc.'s Motion for an Order Sustaining Google's Objection to Plaintiffs

Designation of Dana Todd as a Technical Advisor Under the Protective Order ("Portions of the Brief
in Support") contain a description of extraordinarily sensitive and valuable proprietary information

relating to how certain systems used by Google operate.

Because this information is designated

"Highly Confidential" under the Protective Order, Google seeks permission to file the Bavor
Declaration and Portions of the Brief in Support under seal.

3.

The Bavor Declaration and Portions of the Brief in Support contain a description of

extraordinarily sensitive and valuable proprietary information relating to how certain systems used by
Google operate. The information has been designated as "Highly Confidential" by operation of

Paragraph 26 of the Protective Order. Failing to file the Bavor Declaration and Portions of the Brief

in Support under seal will risk the disclosure of Google's confidential, trade secret information, would violate the Protective Order and potentially would cause competitive harm. 4. Google has sent copies of the Bavor Declaration and Brief in Support to opposing

counsel. In-camera copies of the same will be sent to the Court as well.

5.

Before this Court may seal Court documents, it must:"(1) provide public notice of the

request to seal an allowance to the parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing the documents; and (3) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives." Ashcrafi v. Connoco, Inc. ,218 F.3d 288, 302 (4th Cir. 2000). (Internal citations omitted.) 6. In compliance with Local Rule 5 of the Rules of this Court and Ashcrafi, Google has

attached a Public Notice of Google's Motion to Seal.

7.

Google requests that the Court retain sealed materials until forty-five (45) days after a

final order is entered and request that unless the case is appealed that any sealed materials be returned
to counsel for the filing party.

Therefore, based upon the filings of Google and good cause shown, the Court FINDS and

ORDERS that less drastic alternatives to sealing the Bavor Declaration and Portions of the Brief in
Support are not feasible and therefore orders that the Bavor Declaration and Portions of the Brief in

Support be filed under seal by the Clerk. The Court shall retain sealed materials until forty-five (45)

days after entry of final order.

If the case is not appealed, any sealed materials should then be

returned to counsel for the filing party.

THE CLERK IS REQUESTED to send a copy of this Order to all counsel of record.

ENTER:

£ / lo I <0$
Jerome B. Friedman

JUDGE:

I IniffH Rt^te^ nistrirt

United States District Court Eastern District of Virginia
WE ASK FOR THIS:

150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: [phone] Facsimile: [phone] [e-mail]

Kai/fman & Canoles, P.C.

Charles K. Verhoeven, pro hac vice David A. Perlson, pro hac vice Emily C. O'Brien, pro hac vice Antonio R. Sistos, pro hac vice Katherine H. Bennett, pro hac vice Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] charlesverhoeven@,quinnemanuel.com [e-mail] [e-mail] [e-mail] [e-mail]

Thomas D. Pease, pro hac vice

Quinn Emanuel Urquhart Oliver & Hedges, LLP
51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: [phone] Facsimile: [phone] thomaspease@qui nnemanuel .com

Counselfor Google Inc.

SEEN AND NOT OBJECTED TO:

Stephen EXpioona (VSB No. 25367)
150AVest Main Street, Suite 2100 Norfolk, VA 23510 Telephone: [phone] Facsimile: [phone] [e-mail]

foJ

Canoles, P.C.

Charles K. Verhoeven, pro hac vice David A. Perlson, pro hac vice Emily C. O'Brien, pro hac vice Antonio R. Sistos, pro hac vice Katherine H. Bennett, pro hac vice Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Thomas D. Pease, pro hac vice Quinn Emanuel Urquhart Oliver & Hedges, LLP
51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: [phone]

Facsimile: [phone] [e-mail]

John M. Williamson, pro hac vice Finnegan Henderson Farabow Garrett & Dunner LLP 901 New York Avenue, NW, Suite 700
Washington, DC 20001 Telephone: [phone] Facsimile: [phone]

[e-mail]

Robert L. Burns, II, pro hac vice Finnegan Henderson Farabow Garrett & Dunner LLP
Two Freedom Square

11955 Freedom Drive
Reston, VA 20190

Telephone: [phone] Facsimile: [phone] [e-mail] Counselfor AOL LLC

SEEN AND NOT OBJECTED TO:

Michael W. Robinson (VSB No. 26522)
Vl-NABLE LLP

William D. Dolan, III (VSB N6^12455)
8010 Towers Crescent Drive, Suite 300 Vienna. VA 22182
Telephone: [phone]

Facsimile: [phone] wddolaiva venahlc.com m\vrobinson@ vcnablc.com

Richard A. Cederoth, pro hac vice Laura L. Kolb, pro hac vice
Sidley Austin LLP

1 South Dearborn Street Chicago, IL 60603 Telephone: [phone]
Facsimile: [phone] rcederoth:»)sidley.com

[e-mail]
Counselfor Microsoft Corporation

SEEN AND NOT£BHECTED TO:

DanaTFiriberg (VSB No. 34977)
LeClair Ryan, PC Riverfront Plaza, East Tower

951 East Byrd Street, 8lh Floor
Richmond, VA 23219 Telephone: [phone] Facsimile: [phone] dana.finberg(a>leclairrvan.com Paul D. Ackerman, pro hac vice Aasheesh Shravah, pro hac vice Dorsey & Whitney LLP 250 Park Avenue New York, NY 10177 Telephone: [phone] Facsimile: [phone] ackerman .pauKaidorsev.coin
[e-mail]
Counsel for MI VA, Inc.

SEEN AND NOT OBJECTED TO:

Craig T. Merritt (VSB No. 20281)
R. Braxton Hill, IV (VSB No. 41539)

Nichole Buck Vanderslice (VSB No. 42637) Christian & Barton, LLP
909 East Main Street, Suite 1200

Richmond, VA 23219-3095
Telephone: [phone] Facsimile: [phone] [e-mail] bhill(a),cblaw.com [e-mail]

Gregory S. Dovel, pro hac vice Christin K. Cho, pro hac vice Dovel & Luner, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Telephone: [phone] Facsimile: [phone] greg(2>,dovellaw.com christin(5),dovellaw.com

David E. Rosen, pro hac vice
Murphy Rosen & Meylan, LLP 100 Wilshire Blvd., Suite 1300 Santa Monica, CA 90401 Telephone: [phone] Facsimile: [phone] drosen@.mrmlawvers.com

Counselfor Bidfor Position, LLC

1366S80U

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