I/P Engine, Inc. v. AOL, Inc. et al

Filing 1017

MOTION to Seal (Motion To Seal (1) Portions Of Defendants Opening Brief On Issues Raised In The Courts August 14 Order; (2) Portions Of The Brief In Support Of Defendants Motion For Leave To Submit Evidence and Offer Proof In Support Of Defendants Opening Brief On Issues Raised In The Courts August 14 Order; and (3) Exhibits 1-3 Of The Declaration of Howard Chen In Support Of Defendants Motion For Leave To Submit Evidence and Offer Proof In Support Of Defendants Opening Brief On Issues Raised In The Courts August 14 Order) by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen)

Exhibit 1

Exhibit 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
Civil Action No. 2:11-cv-512

v.
AOL INC., et al.,
Defendants.

PROPOSED ORDER

Before the Court is the Motion to Seal (“Defendants’ Motion to Seal”) filed by
Defendants Google Inc., Target Corporation, IAC Search & Media, Inc., Gannett Co., Inc. and
AOL Inc. (collectively “Defendants”).
After considering the Motion to Seal, Order and related filings, the Court is of the
opinion that the Motion to Seal should be granted. It is therefore ORDERED as follows:
1.

Defendants have asked to file under seal (1) Portions of Defendants’ Opening

Brief on Issues Raised in the Court’s August 14 Order (“Portions of Defendants’ Opening
Brief”); (2) Portions of the Brief in Support of Defendants’ Motion for Leave to Submit
Evidence and Offer Proof in Support of Defendants’ Opening Brief on Issues Raised in the
Court’s August 14 Order (“Portions of Defendants’ Brief in Support of Motion for Leave”); and
(3) Exhibits 1-3 to the Declaration of Howard Chen in Support of Defendants’ Motion for Leave
to Submit Evidence and Offer Proof in Support of Defendants’ Opening Brief on Issues Raised
in the Court’s August 14 Order (“Certain Exhibits to the Chen Declaration”) as they contain data

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that is confidential under the Protective Order entered in this matter on January 23, 2012 (Doc.
No. 85) (“Protective Order”).
2.

There are three requirements for sealing court filings: (1) public notice with an

opportunity to object; (2) consideration of less drastic alternatives; and (3) a statement of specific
findings in support of a decision to seal and rejecting alternatives to sealing. See, e.g., Flexible
Benefits Council v. Feltman, No. 1:08-CV-371, 2008 U.S. Dist. LEXIS 93039 (E.D. Va. Nov.
13, 2008) (citing Ashcraft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)).
3.

This Court finds that Portions of Defendants’ Opening Brief, Portions of

Defendants’ Brief in Support of Motion for Leave, and Certain Exhibits to the Chen Declaration
contain data that is confidential under the Protective Order; that public notice has been given,
that no objections have been filed; that the public’s interest in access is outweighed by the
interests in preserving such confidentiality; and that there are no alternatives that appropriately
serve these interests.
4.

Specifically, the Court finds the following reasons for sealing the requested

pleadings: Portions of Defendants’ Opening Brief, Portions of Defendants’ Brief in Support of
Motion for Leave, and Certain Exhibits to the Chen Declaration contain highly confidential
business and trade secret information all of which is not generally known, has economic value,
and the disclosure of which would cause competitive harm if made widely public. The Court
also finds that by filing narrowly redacted public pleadings, the Defendants have made all
reasonable efforts to limit their redactions in compliance with the law of this Circuit.
5.

In camera copies of Portions of Defendants’ Opening Brief, Portions of

Defendants’ Brief in Support of Motion for Leave, and Certain Exhibits to the Chen Declaration
have been reviewed by the Court. In light of Defendants’ concerns and the Protective Order,

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there appears to be no alternative other than the narrowly redacted public pleadings that
appropriately serves Defendants’ expressed confidentiality concerns.
6.

For the sake of consistency with practices governing the case as a whole, Portions

of Defendants’ Opening Brief, Portions of Defendants’ Brief in Support of Motion for Leave,
and Certain Exhibits to the Chen Declaration shall remain sealed and be treated in accordance
with the terms and conditions of the Protective Order.
Accordingly, it is ORDERED that Portions of Defendants’ Opening Brief, Portions of
Defendants’ Brief in Support of Motion for Leave, and Certain Exhibits to the Chen Declaration
shall be filed under seal. The Court shall retain sealed materials until forty-five (45) days after
entry of a final order after appeal.
Entered:

_____/_____/_____

_____________________________
United States District Court
Eastern District of Virginia

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WE ASK FOR THIS:
/s/Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Counsel for Defendants Google Inc.,
Target Corporation, IAC Search &
Media, Inc., and Gannett Co., Inc.

/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]

99999.77949/5594552.1

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Courtney S. Alexander
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL Inc.

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