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

Filing 296

MOTION to Seal Portions of Defendants' Memorandum in Support of Motion in Limine No. 3 to Exclude Marketing and High-Level Non-Technical Matters Related to Historical Click-Through Rate, and Exhibits F, H, I and J to the Declaration of Joshua L. Sohn in Support of the Defendants' Various Motions in Limine by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen)

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Exhibit 1 Exhibit 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION I/P ENGINE, INC. Plaintiff, v. Civil Action No. 2:11-cv-512 AOL INC., et al., Defendants. PROPOSED ORDER Before the Court is the Motion to Seal filed by Defendants Google Inc., Target Corporation, IAC Search & Media, Inc., Gannett Co., Inc. and AOL Inc. (collectively “Defendants”) (“Defendants’ Motion to Seal”) (1) Portions of Defendants’ Memorandum in Support of Motion In Limine No. 3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate (“Portions of Defendants’ Motion in Limine No. 3”) and (2) Exhibits F, H, I, and J to the Declaration of Joshua L. Sohn in Support of the Defendants’ Various Motions in Limine (“Exhibits F, H, I, and J to the Sohn Declaration”). 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 Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn Declaration as they contain data that is confidential under the Protective Order entered in this matter on January 23, 2012 (Dkt. 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. Feldman, No. 1:08-CV-371, 2008 U.S. Dist. LEXIS 93039 (E.D. Va. Nov. 13, 2008) (citing Ashcroft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)). 3. This Court finds that Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn Declaration contain data may contain data that is confidential under the Protective Order entered in this matter on January 23, 2012; 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: (a) Portions of Defendants’ Memorandum in Support of Motion In Limine #3 to Exclude Marketing and High-Level Non-Technical Materials Related to Historical Click-Through Rate along with Exhibit F to the Sohn Declaration (excerpt of deposition testimony) discuss details of the operation of Google’s accused systems which are not generally known, that have economic value and would cause competitive harm if made public; (b) Exhibit H to the Sohn Declaration discusses portions of a confidential internal Google document which are not generally known, that have economic value and would cause competitive harm if made public; (c) Exhibit I to the Sohn Declaration (excerpt of deposition testimony) discusses confidential Google information regarding the accused products and the way products are tested which are not generally known, that has economic value and would cause competitive harm if made public; and (d) Exhibit J to the Sohn Declaration (excerpt of deposition testimony) discusses Google’s license agreements which are not generally known, that has economic value and would cause competitive harm if made public. 2 Additionally, the Court finds that 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’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn Declaration have been reviewed by the Court. In light of Defendants’ concerns and the Protective Order, there appears to be no alternative that appropriately serves Defendants’ expressed confidentiality concerns. 6. For the sake of consistency with practices governing the case as a whole, Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn Declaration shall remain sealed and be treated in accordance with the terms and conditions of the Protective Order. Accordingly, it is ORDERED that Defendants’ Motion to Seal is granted and Defendants are permitted to file under seal Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn Declaration. The Court shall retain sealed materials until forty-five (45) days after entry of a final order. If the case is not appealed, any sealed materials should then be returned to counsel for the filing party. Dated: September ____, 2012 Entered: _____/_____/_____ ______________________________ United States District Court Eastern District of Virginia 3 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: (757) 624.3000 Facsimile: (757) 624.3169 senoona@kaufcan.com David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com 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: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan.com Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 Facsimile: (202) 408-4400 4 Courtney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Telephone: (404) 653-6400 Facsimile: (415) 653-6444 Counsel for Defendant AOL Inc. 11937601v1 5

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