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

Filing 169

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

Doc. 169

IN THE UNITED STATES DISTRICT COURT

FILED
aug -4 roos
CLERK. U.S. DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

BID FOR POSITION, LLC, Plaintiff,
v.

NORFOLK. VA

CASE NO. 2:07-cv-582 JBF/TEM
Jury Trial Demanded

AOL LLC and GOOGLE INC., Defendants.

AGREED ORDER ALLOWING DEFENDANTS' MOTION TO FILE UNDER SEAL THE DECLARATION OF CLAYTON BAVOR, JR. AND SUPPORTING EXHIBITS;

THE DECLARATION OF ROHIT RAO AND SUPPORTING EXHIBITS; CERTAIN
EXHIBITS TO THE DECLARATION OF EMILY C. O'BRIEN; AND PORTIONS OF DEFENDANT GOOGLE AND AOL'S MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF
U.S. PATENT NO. 7.225.151

This matter comes before the Court on Defendants Google Inc. and AOL LLC's (collectively,

"Defendants") Motion to File Under Seal the Declaration of Clayton Bavor, Jr. and Supporting Exhibits; the Declaration of Rohit Rao and Supporting Exhibits; Certain Exhibits to the Declaration
of Emily C. O'Brien; and Portions of the Defendants Google and AOL's Memorandum in Support of

Their Motion for Summary Judgment of Non-Infringement of U.S. Patent No. 7,225,151 filed in this
Court on July 24,2008. 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.

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;

iv. v.

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.

Defendants agree 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 declarations, including the Declaration of Clayton Bavor, Jr. and the

Declaration of Rohit Rao (collectively, "Confidential Declarations"); certain exhibits, including the

supporting exhibits to the Declaration of Clayton Bavor, Jr., the supporting exhibits to the

Declaration of Rohit Rao, and Exhibits 4 and 5 to the Declaration of Emily C. O'Brien (collectively,

"Confidential Exhibits"); and portions of Defendants Google and AOL's Memorandum in Support of
Their Motion for Summary Judgment of Non-Infringement of U.S. Patent No. 7,225,151 ("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, AOL and MIVA systems operate, certain information marked by Plaintiff as "Confidential
Attorneys' Eyes Only" (Prosecution Bar) or "Confidential Attorneys' Eyes Only" under the

Protective Order, and certain expert contentions in this matter.

Because this information is

confidential by operation of the Protective Order, Defendants seek permission to file the Confidential Declarations, Confidential Exhibits and Portions of the Brief in Support under seal. Failing to file the Confidential Declarations, Confidential Exhibits and Portions of the Brief in Support under seal will risk the disclosure of confidential, trade secret information, would violate the Protective Order
and potentially would cause competitive harm.

3.

Defendants have sent copies of the Confidential Declarations, 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 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."
Connoco, Inc., 218 F.3d 288,302 (4th Cir. 2000). (Internal citations omitted.)
5.

Ashcraft v.

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

have attached a Public Notice of Defendants' Motion to Seal.

6.

Defendants request 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 Defendants and good cause shown, the Court FINDS

and ORDERS that less drastic alternatives to sealing the Confidential Declarations, Confidential Exhibits and Portions of the Brief in Support are not feasible and therefore orders that the Confidential Declarations, 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:

AUG; ' 1 2/)08
fat

JUDGE:

Tommy E. Miller

I inited States Magistrate Judge United States District Court Eastern District of Virginia

WE ASK FOR THIS:

. Noona

25367

\UFMj4n & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510

Telephone: [phone] Facsimile: [phone]

senoona(@kau fcan. com

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(a).quinnemanuel.com davidperlson@,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]

Counsel for Google Inc.

E. Noona

j. 25367

/Kaufman & Canoles, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]

Facsimile:

[phone]

senoona@Jcaufcan. com

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(S>quinnemanuel.com

[e-mail]
emit vobrien@.q uinnemanuel. com antoniosistos(2),quinnemanuel.com katherinebennetU5iquinnemanuel.com

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@q ui nnemanuel .com

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]

robert ,burns(a).finnegan.com
Counselfor AOL LLC

SEEN AND NOT OBJECTED TO:

Craig T. Merritt (^SB 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] [e-mail] nvanderslice@,cblaw.com

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] chri stin@,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@,mrmlawyers.com
Counselfor Bidfor Position, LLC

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