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

Filing 245

ORDER TO SHOW CAUSE re 226 MOTION to Seal Portions of Google Inc.'s Reply Brief in Support of Google's Motion to Compel Plaintiff to Produce Documents filed by Google Inc., 214 MOTION to Seal Portions Of Defendants Brief In Opposition To Plaintiff's Motion For Discovery Sanctions And Various Exhibits To The Declaration Of Emily OBrien In Support Thereof filed by Google Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc., 181 MOTION to Seal Exhibit P to the Declaration of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiff's Motion for Leave to Take 30(b)(1) Depositions MOTION to Seal Exhibit P to the Declaration of Jennifer Ghaussy in Support of Defendants' Opposition to Plaintiff's Motion for Leave to Take 30(b)(1) Depositions filed by Google Inc., AOL Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc., 136 MOTION to Seal Portions of Reply Brief in Support of Motion to Compel and Exhibits AA and BB to the Declaration of Emily C. O'Brien in Support of the Reply filed by Google Inc., IAC Search & Media, Inc., 125 MOTION to Seal I/P Engine's Opposition to Google and IAC's Motion to Compel Plaintiff to Supplement its Infringement Contentions Along with Exhibits 11, 12, 14, 15, 18, 21, and 22 in Support filed by I/P Engine, Inc., 115 MOTION to Seal I/P Engine, Inc.'s Motion to Seal Exhibits 15, 16, 17, 18, and 21 of IP Engine's Memorandum in Support of Its Motion to Compel Defendant Google, Inc.'s Custodial Document Production filed by I/P Engine, Inc., 206 MOTION to Seal Portions Of Google Inc.s Brief In Support Of Motion To Compel And Various Exhibits To The Declaration Of Jen Ghaussy in Support Thereof filed by Google Inc. Accordingly, the Court will ORDER the parties to SHOW CAUSE why the specified materials should not be unsealed and filed in the public record. As outlined in this Order, the Court ORDERS the parties to SHOW CAUSE why the materials described above should not be unsealed and filed in the public record. The parties are DIRECTED to appear before the Court on 9/18/12, at 12:00 noon to identify, on the record, any and all reasons why these materials should be filed under seal rather than in the public record of this case. The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. In the interim, the Clerk shall continue to maintain the materials under seal. (See Order for Specifics) Entered and filed 9/13/12. (Signed by Magistrate Judge F. Bradford Stillman on 9/13/12). (ecav, )

UNITED

FILED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

SEP 13

Norfolk Division
I/P

ENGINE,

CUERK, US DISTRICT COURT

INC.,

NORFOLK. VA

Plaintiff,

Case No.:

v.

AOL,

INC.,

et

2:llcv512

al.,

Defendants.

ORDER TO SHOW CAUSE

Before the Court are several motions by both sides

seeking

leave to file briefs and exhibits in support of various pretrial

motions under seal.

ECF Nos.

115,

125,

136,

Each of these motions to seal is unopposed.

181,

206,

214,

226.

In addition to the

several motions to seal and related filings in the public record,
the Court has reviewed in camera the unredacted briefs and exhibits

submitted for filing under seal.

For the reasons stated below, the

Court finds the basis for sealing these materials unclear, at best,

based upon both the motion papers and the Court's in camera review.
Accordingly, the Court will ORDER the parties to SHOW CAUSE why the
specified materials should not be unsealed and filed in the public
record.

The

parties

have

each

asked

to

file

under

seal

pretrial motion papers and exhibits in support thereof.

various

They have

agreed that certain information contained in these materials should
remain confidential,

but "[w]hen discovery material is classified

confidential by the parties, their classification is not binding on
the court."
91,

94

Chemical Bank v. Affiliated FM Ins. Co.,

(S.D.N.Y.

154 F.R.D.

1994).

"When presented with a motion to seal

judicial records

or

documents, a district court must comply with certain substantive
and procedural requirements."
post,

386 F.3d 567,

576

Va. Dep't of State Police v. Wash.

(4th Cir.

2004).

In Ashcraft v.

Conoco,

Inc.f 218 F.3d 282 (4th Cir. 2000), the Fourth Circuit set out the

procedural requirements for sealing court

filings.

(citing Stone v. Univ. of Md. Med. Sys. Corp.,
(4th Cir.

1988), and In re Knight Pub. Co.,

(4th Cir. 1984)).

Id^ at 288

855 F.2d 178,

181

743 F.2d 231, 235-36

Local Civil Rule 5 provides further procedural

guidance to litigants with respect to motions to seal filed in this
district.

In Rushford v.

New Yorker Magazine,

846 F.2d 249

(4th Cir.

1988), the Fourth Circuit outlined the substantive requirements for
sealing pretrial court

filings:

Under common law,

there is a presumption of access

accorded to judicial records.
This presumption of
access, however, can be rebutted if countervailing
interests heavily outweigh the public interests in
access.

advanced

The trial

by

the

court may weigh

parties

in

light

'the

of

interests

the

public

interests and the duty of the courts.'
The party
seeking
to
overcome
the presumption bears
the
burden of showing some significant interest that
outweighs

Id.

at 253

the presumption.

(quoting Nixon v. Warner Commc'ns,

-

2

-

Inc.,

435 U.S.

589,

597

(1978));

Inc.,

611

In
merely

see also Level 3 Commc'ns,

F.

Supp.

support

2d

of

572,

their

characterize

576-77

(E.D.

several

these

LLC v.
Va.

2009).

motions

materials,

in

Limelight Networks,

to

seal,

conclusory

"proprietary and confidential information" and as

should

be

specific

kept

confidential."

information

maintaining

the

to

Neither

suggest

that

confidentiality

outweigh the public

interests

side

the

of

the

fashion,

in access."

as

"data that is and

has

provided

parties'

these

parties

any

interests

materials

in

"heavily

See Rushford,

846

F.2d

at 253.

Absent any specific information to establish a significant

interest

that

grant

outweighs the presumption of access,

the motion to
Moreover,

file

these materials

the Court's

suggest that the materials
little,
the

if

Court

notes

A.
17,

18,

any,

21

between counsel
information

criteria

public

printouts

for filing under seal contain

information

of

at

all.

ECF No.

In

115;

particular,

all

routine

Exhibits

meet-and-confer

15,

16,

correspondence

in which search criteria for electronically stored

("ESI")

the

same materials

following:

are

includes

throughout

from

submitted

Plaintiff's Motion to Seal,
and

seal.

in camera review of these

confidential
the

under

the Court cannot

a

is

discussed.

number

letters,

several

of technical

the

information

Although

search

available

publicly

-

terms

criteria

on

the

accessible

3

-

the

requested

which

are

appears

web

referenced

to

internet,
pages

search

be

drawn

including
that

are

appended to the

B.
copy

first letter identified as Exhibit

Plaintiff's Motion to Seal,

of

plaintiff

I/P

Engine's

ECF No.

second

15.

125:

Exhibit 11 is a

preliminary

disclosure

of

infringement contentions with respect to Google AdWords and Google
AdSense

for

Search,

submitted

for

filing

under

seal

"Google's proprietary and confidential information."

to

protect

ECF No.

126.

This document does not bear a legend designating it "CONFIDENTIAL,"
"CONFIDENTIAL OUTSIDE COUNSEL ONLY,"

SOURCE CODE," as
Order

(ECF

Moreover,
in

the

No.

or "RESTRICTED CONFIDENTIAL -

required by Paragraph
85)

entered

in

1

this

of the Agreed Protective

case

on

January

September

record,

12,

2012.

substantively

without

See

identical

redaction,

ECF No.

241

disclosure

by

defendant

attach.

of

I/P

4.

AdWords

portions

of

language

from

notes

any

and

the

Google

opposition

Exhibit

11,

confidential

that

copies

referenced

in

compel,

not

do

AdSense

the

of

brief

and

Engine's

information

motion
to

to

14,

15,

seal

have

at

18,

and

been

does

all.

the

The

not

Finally,

21,

and

22,

underlying

submitted

is

a

infringement

primarily

remainder

12

on

& Media's use of

Search.

consist

the

Exhibits

appear

for

Google

Exhibit

contentions with respect to defendant IAC Search

convey

2012.

a substantively identical document was subsequently filed

public

Google

23,

to

the

redacted
of

quoted

appear

the

to

Court

which

are

motion

to

Court

for

filing.

C.

Defendants'

Motion to Seal,

-

4

-

ECF No.

136:

Exhibit

BB

is

the

very

same

routine

meet-and-confer

correspondence

addressed

above as Exhibit 21 under plaintiff's Motion to Seal,

ECF No.

which

information.

does

Exhibit

not

AA

appear

is

some

information,

respect to

contains
of

may

to

AA

that

of

the

conveys

opposition

Seal,

confidential

D.

number

answer

contain

to

ECF

reply

information

appear to reference

include

litigation

information,
addressed

125,
at

brief

Google's

brief

No.

Defendants'

issues

which

do

a

scope

certain

scheduling
appears
E.

of

to be

merger

respect

Seal,

to

involving

Rule

certain

language

position

rather

and references to the

above
not

quoted

under

appear

plaintiff's

to

convey

any

all.

Motion to

with

concerning

of

various

confidential

ECF No.

181;

Exhibit

routine meet-and-confer correspondence between counsel,

certain

to

contentions,

references

themselves

than any confidential technical
plaintiff's

and

its non-infringement

bates

which

portions

Exhibit

Motion

objections

information that is not otherwise publicly available.

redacted

from

Google's

confidential

but the narrative answers do not

any technical
The

any

itself appear clearly to disclose any confidential

information—it
documents,

contain

defendant

interrogatories with

which does not

to

115,

production

I/P

Engine's

of

30(b)(6)

deposition

depositions.

None

documents

company,

topics,

of

this

is

addressing

ESI,

parent

P

and

the

the

information

even remotely confidential.

Defendants'

Motion

to

-

Seal,

5

-

ECF No.

206:

Exhibits A,

B,

C,

and

P

are

transcripts

of

deposition

testimony

by

certain

corporate officers of the plaintiff in which they discussed the

organizational structure and business operations of the plaintiff
and its parent companies,
investors

in

the

certain communications with potential

plaintiff's

surrounding the plaintiff's

parent

company,

and

circumstances

acquisition of the patents-in-suit,

none of which appear to be even remotely confidential.
I,

L,

M,

Exhibits H,

and U are routine meet-and-confer correspondence between

counsel regarding various discovery issues,

none of which appears

to involve the disclosure of any substantive information, much less
anything confidential.

Exhibit J is a stock subscription agreement

between the plaintiff or its parent company and Donald Kosak, one
of two named inventors of the patents-in-suit and a fact witness

for the plaintiff,

and Exhibit K is a transcript of deposition

testimony by Mr. Kosak regarding a consulting agreement he entered
into with counsel of record for the defendants,

neither of which

appears to contain any confidential information at all.
N,

Q,

S,

and

T

are

privilege

logs

containing

Exhibits

little more

than

boilerplate language and disclosing nothing of substance, much less
confidential information.

Exhibit R is a transcript of deposition

testimony by a corporate representative of the previous owner of
the patents-in-suit,

discussing his company's efforts to sell the

patents-in-suit

the

counsel

and

in those efforts;

involvement

of

plaintiff's

litigation

the transcript does not bear a legend

-

6

-

designating

it

"CONFIDENTIAL,"

Agreed Protective Order
was

(ECF No.

required by

85),

223

attach.

confidential.

1),
The

reference this

the

of

and

none

redacted

of

the

portions

same information,

the

a portion of the transcript

content

of

the

appears

brief

in

(ECF

to

be

support

and they likewise do not appear to

Defendants"

very

same

Motion

second

to

Seal,

preliminary

ECF No.

Seal,

ECF

subsequently

ECF No.

241

No.

125,

filed

in

attach.

4.

identical
brief

to

despite

not

themselves

reliance

appear

Defendants'

references

the

Nonetheless,

might

disclosed

be

to

without

is plaintiff

to

of

jargon,

ECF No.

the

done

Motion to Seal,
Court

should

is

any

ECF No.

sensitive

actual

the public prematurely.

-

7

-

to

See

substantively

the

opposition

from Exhibits M and

these

convey any confidential

Motion to Seal,

document

redaction.

contentions,

technical

a

I/P Engine's third

redacted portions

on

is

infringement

to

passages

do

information.

226:

The

same brief and deposition testimony

under the defendants'

that

The

of

identical

record,

infringement

Exhibit M

under plaintiff's Motion

references to and language quoted

their

G.

of

Exhibit M.

contain

public

Exhibit N

preliminary disclosure

11

substantively

the

214:

disclosure

contentions addressed above as Exhibit

N;

1

confidential.

F.

to

Paragraph

subsequently filed in the public record by the plaintiff

No.

be

as

reply brief

addressed above

206.
the

potential

confidential
Accordingly,

damage

information

be

the Court ORDERS

the parties to SHOW CAUSE why the materials described above should
not be unsealed and filed in the public record.
The

parties

September 18,

and

all

are

2012,

reasons

DIRECTED

at

why

to

appear

before

12:00 noon to identify,

these

materials

should

the

Court

on the record,

be

filed

under

on

any

seal

rather than in the public record of this case.1
In

the

materials

IT

interim,

under

IS

SO

the

Clerk

shall

continue

to

maintain

seal.

ORDERED.

UNITED STATED MAGISTRATE

Norfolk,

the

JUDGE

Virginia

September \ ), 2012

1 The Court notes that a hearing on certain discovery motions
in this case is already scheduled for that date and time.

-

8

-