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

Filing 154

ORDER TO SHOW CAUSE granting in part and denying in part 92 Motion to Seal; directing the clerk to file Exhibits L, M, and N (ECF No. 98) under seal; directing the parties to SHOW CAUSE within seven days of date of this order why Exhibit P (ECF No. 98) and related portions of Google's Reply Brief (ECF No. 97) should not be unsealed and filed in the public record. If no response is filed within seven days of the date of this Order, the Court will issue further order unsealing Exhibit P and related portions of the Reply Brief. In the interim, the Clerk shall continue to maintain the unredacted version of Google's Reply Brief (ECF No. 97) and Exhibit P (ECF No. 98) under seal. Signed by Magistrate Judge F. Bradford Stillman and filed on 5/1/12. (mwin, )

UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIJA.
Norfolk Division

I/P ENGINE,

INC.,

Plaintiff,
v.

Case

AOL,

INC.,

et

No.:

2:llcv512

al.,

Defendants.
ORDER

Before
Reply

in

the

Court

Support

Conception,

of

M,

N,

in Support Thereof

is

2012,

Its

Motion

Motion

(ECF No.

92)

In

Court

addition

filings,

the

exhibits

submitted for

the Court

has

finds

CAUSE

to

to

and P to the

by defendant Google

unopposed.

below,

a

SHOW

Reduction-to-Practice,

and Exhibits L,

5,

is

TO

Seal

Compel

Inc.
to

and Priority Date

Motion

to

in

camera

the

filing under seal.
for

materials

should not be unsealed and filed

of

Google's

Motion

to

Seal

SHOW CAUSE

and

reply

some

why certain

Plaintiff

brief

and

stated

of the material
Accordingly,

of the

specified

in the public record.

file under seal the Reply Brief

Compel

related

DENY the motion in part,

the

asked to

filed on March

iri camera review.

and ORDER

Google has

Provide

Information,

For the reasons

sealing

the Court will GRANT the motion in part,
to

to

The Motion to Seal

the

the basis

Google's

Declaration of Margaret Kammerud

("Google") .

reviewed

of

Plaintiff

("Motion to Seal"),

is unclear based upon the Court's

parties

Portions

to

Provide

in

Support

Conception,

Reduction-to-Practice,

and Exhibits L,
in

support

certain

M,

N,

thereof

but

No.

98) .

contained

"[w]hen

court."

91,

94

Chemical

(S.D.N.Y.

Circuit

(ECF No.

97)

in

parties

these

have

materials

material

agreed

should

is

that

remain

classified

as

their classification is not binding on

Bank v.

Affiliated

FM

Ins.

Co.,

154

F.R.D.

1994).

In Ashcraft v.
Fourth

The

discovery

confidential by the parties,
the

Information

and P to the Declaration of Margaret Kammerud
(ECF

information

confidential,

and Priority Date

Conoco,

set

out

Inc.,

218

three

F.3d 282

{4th Cir.

requirements

2000),

for

sealing

any

the

court

court

filings:

[B]efore

a

documents,
request

to

reasonable

less

seal

factual

court

(1)

and

and

may

allow

to

interested

object,

alternatives
(3)

findings

provide

supporting

documents

seal

give public notice of the

opportunity

drastic

documents,
the

district
it must

and

to

parties

(2)

a

consider

sealing

the

specific reasons

and

its decision to seal

for

rejecting

the

alternatives.

Id.

at 288

178,

181

235-36

(citing Stone v.

{4th Cir.
(4th

Cir.

1988),

Univ.

of Md.

Med.

and In re Knight Pub.

1984)).

Local

Civil

Rule

guidance to litigants with respect to motions

The Court notes that,
the

Clerk

has

provided

Corp.,

Co.,
5

855 F.2d

743 F.2d 231,

provides

further

to seal.

in accordance with Local Civil Rule 5,

public

docketing the motion with a

seal,

Sys.

notice

of

the

Motion

clear description of it as

to

Seal

by

a motion to

and by docketing a separate Notice of Google's Motion to Seal

-

2

-

(ECF No.

94).

"Even
however,
by

good

MEF,

when

no

third

the Court must
cause."

See

in this

good cause

to

Based
submitted

Namely,

finds

of

P

to

the

a graduate student

detail,

the

Court

appears to be confidential
content of the disclosure
sponsored by a

the

this

parties

or

invention

the

Google

Corp.,

No.

3:09-cv-694-

2010).

The Court's

support

to establish

4,

review

Court

for

Kammerud

form,

of

FINDS

filing

by

which

regarding
Machine

to

supported

the
that

under

Declaration

is

certain

seal

to

do

of

not

information.

a

copy

of

Ken

invention

Learning"

Having

materials

inventor

an

where he appears

unable

seal,

is

Oct.

camera

[U]sing

to

submitted materials.

at the time.

is

motion

the motion

insufficient

information

Filtering

a

to contain any confidential

Carnegie Mellon University,
as

Ala.

iji

Invention"

certain

IBM

seal,

by

review,

that

v.

of the

under

Exhibit

ensure

Univ.

Court's

submitted

challenges

(M.D.

the

upon close

"Information

*2

filing

for

disclosed

at

instance,

on

"Disclosure

still

seal certain

materials

appear,

party

Auburn

2010 WL 3927737,

review,

the

No objection has been filed by any interested party.

Lang
styled

officials

at

to have been enrolled

reviewed the document

identify

a

information

that

or otherwise worthy of protection.

The

form indicates

any

in

that

Lang's

research was

corporation with no readily apparent relationship to

to

was

this

litigation,

scheduled

to

-

be

3

-

that

the

presented

a

research

and

paper

published

at

on

a

July 1995 conference,1 that the research paper was previously made
available
have

on

the

world-wide
copies,"

and

downloaded

confidentiality
concerning

agreements

this

work."

confidentiality,2
(e.g.,
has

web

and

submitted

"[t]here

document

from page

7

Based

Exhibits

L,

Google's

the

parties'

of

the public

on

the

lacks

evidence

of

Court's

M,

and N

Reply

to

version

Court's

the

in

no

information

any

indicia

of

confidentiality

consideration.

version)

98),

public

of the
at

of the Twelfth

NewsWeeder:

these

6,

the

three

the

filings

No.

Court

of the

95.

(ECF No.

FINDS

(ECF No.

is normally

FINDS

adequately

that

the

apprise

the

See Google's

The

Court

that

sealed copy

Exhibits

Court

sealed materials.
ECF

Court

which are redacted

information that

Moreover,

1 The paper still appears
Ken Lang,

The

95).

review,

commercial

public.

P,

and portions

describing

non-confidential,

(public

(ECF No.

camera

(ECF No.

Brief

public of the nature

See

the

people

been

sealed copy of Google's Reply Brief

contain confidential

unavailable

Br.

"[m]any
have

itself

describes and quotes portions of Exhibit

97),

and

regarding

extrinsic

for

further notes that the

of

that

1995

a confidentiality agreement between Lang and the University)

been

97)

March

made

The

no

in

further

Reply
FINDS

to be available on the internet.

Learning

to

Filter

Netnews,

Proceedings

International Conference on Machine Learning

(1995),

available at http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1
.1.85.7365

(last

accessed Apr.

30,

2012).

2 The Court acknowledges that the document appears to have

been

stamped "Confidential Outside Counsel Only"

its production in discovery in this matter,
of

confidentiality predating

its

-

but

disclosure

4

-

in

in connection with
it bears no
this

indicia

litigation.

that

the

public's

parties'

interest

in

access

is

outweighed

interest in preserving confidentiality,

here

by

the

and there are no

alternatives that appropriately serve these interests.
Accordingly,
part,

and the

1.
No.

98)

98)

Court

ORDERS

the

DENIED in

following:

The Clerk is DIRECTED to file Exhibits L,

and N

(ECF

The parties are ORDERED to SHOW CAUSE why Exhibit P

(ECF

under

2.
No.

the Motion to Seal is GRANTED in part,

M,

seal.

and related portions of Google's Reply Brief

(ECF No.

should not be unsealed and filed in the public record.
may

respond

to

this

Order

to

Show

Cause

by

any and all

Any party

filing

response within seven days of the date of this Order,

97)

a

written

setting forth

reasons why these exhibits should be filed under seal

rather than in the public record of this case.

If no response is

filed within seven days of the date of this Order,

the Court will

issue a further order unsealing Exhibit P and related portions of
the

Reply

Brief.

In

the

interim,

the

Clerk

shall

continue

maintain the unredacted version of Google's Reply Brief
97)

and Exhibit
IT

IS

P

(ECF No.

98)

May \

(ECF No.

under seal.

SO ORDERED.

UNITED
Norfolk,

to

Virginia

, 2012
-

5

-

STATQS

MAGISTRATE

JUDGE