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

Filing 164

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

Doc. 164

IN THE UNITED STATES DISTRICT COU FT FOR THE EASTERN DISTRICT OF VIRGI1 [IA
Norfolk Division

FILED
JUL 2 9 200S

BID FOR POSITION, LLC,
Plaintiff/Counterclaim Defendant,

CLER* U^TR,CT COURT
NORFOLK. VA

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

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

Defendants/Counterclaim Plaintiffs.

AGREED ORDER ALLOWING GOOGLE INC. LEAVE TO FILE UNDER SEAL CERTAIN EXHIBITS TO THE DECLARATION OF EMILY C. O'BRIEN AND PORTIONS OF THE BRIEF IN SUPPORT OF DEFENDANT GOOGLE INC.'S

MOTION FOR A PROTECTIVE ORDER BARRING TESTIMONY RELATED TO PLAINTIFF'S 30(b)(6) DEPOSITION NOTICE AND DEPOSITION NOTICES
BEYOND THE 10-DEPOSITION RULE

This matter comes before the Court on Defendant Google Inc.'s ("Google") Motion to File
Under Seal Certain Exhibits to the Declaration of Emily C. O'Brien and Portions of the Brief in

Support of Defendant Google Inc.'s Motion for a Protective Order Barring Testimony Related to Plaintiffs 30(b)(6) Deposition Notice and Deposition Notices Beyond the 10-Deposition Rule filed in
this Court on July 3,2008. 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.

Google agrees to follow in an expeditious manner any additional procedures imposed by the Court, including Local Rule 5 of the Local Rules of Practice

for the United States District Court for the Eastern District of Virginia as a
prerequisite to filing any document under seal. If the Court declines to allow

the material to remain under seal, the materials shall not be unsealed until at least 10 days notice has been to the producing party to allow for the retrieval of any designated information prior to any papers being unsealed.
2. Certain exhibits, including Exhibits 9,10,12,13, 14,15 and 22, to the Declaration of

Emily C. O'Brien (collectively, "Confidential Exhibits") and portions of the Brief in Support of
Defendant Google Inc.'s Motion for a Protective Order Barring Testimony Related to Plaintiff's 30(b)(6) Deposition Notice and Deposition Notices Beyond the 10-Deposition Rule ("Portions of the

Brief in Support") contain information and testimony containing sensitive and valuable proprietary

information relating, among other things, to the technical details of how certain Google systems operate, the parties' discovery disputes and certain expert contentions in this matter. Because this
information is confidential by operation of the Protective Order, Google seeks permission to file the

Confidential Exhibits and Portions of the Brief in Support under seal. Failing to file the Confidential Exhibits 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.

3.

Google has sent copies of the Confidential Exhibits and Brief in Support to opposing

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

4.

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

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." Ashcraft v. Connoco, Inc., 218
F.3d 288,302 (4th Cir. 2000). (Internal citations omitted.)

5.

In compliance with Local Rule 5 of the Rules of this Court and Ashcraft, Google has

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

6.

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 Confidential Exhibits and Portions of the Brief in Support are not feasible and therefore orders that the Confidential Exhibits 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:

1i

I

JUDGE:

Hi
B FriH

Eastern District of Virginia

WE ASK FOR THIS:

Joona

r25367
Norfolk, VA 23510 Telephone: [phone] Facsimile: [phone] [e-mail]

it Main Street, Suite 2100

I&CANOLES.P.C.

Charles K. Verhoeven,/vo 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]

anton iosistosfSquinnemanuel .com

[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] lhomaspease(o)quinnemanuel.com
Counselfor Google Inc.

SEEN AND NOT OBJECTED TO:

Kaufmat/& Gj noles, P.C. Norfolk, VA 23510

Stephen E^NpoisfVSB No. 25367)

150 Wes/WaM Street, Suite 2100

Telephone: [phone]

Facsimile: [phone] [e-mail]

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] davidperl son@quinnemanuel .com [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. Bums, 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 A OL LLC

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] bhi 1 [e-mail] [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] [e-mail] [e-mail]

David E. Rosen, pro hac vice Murphy Rosen & Meylan, LLP 100 Wilshire Blvd., Suite 1300 Santa Monica, CA 90401

Telephone: [phone] Facsimile: [phone] [e-mail]
Counsel for Bidfor Position, LLC

1381631M

*