I/P Engine, Inc. v. AOL, Inc. et al
Filing
297
Memorandum in Support re 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 filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)
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.
MEMORANDUM IN SUPPORT OF MOTION TO SEAL 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 AND EXHIBITS F, H, I, AND
J TO THE DECLARATION OF JOSHUA L. SOHN IN SUPPORT OF THE
DEFENDANTS’ VARIOUS MOTIONS IN LIMINE
In support of their Motion to Seal pursuant to Local Rule 5, and the Protective Order
[Dkt. No. 85] entered in this matter, Defendants Google Inc., Target Corporation, IAC Search &
Media, Inc., Gannett Co., Inc. and AOL Inc. (collectively “Defendants”) state the following:
1.
Defendants have moved the Court for leave to file under 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”). Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H,
I, and J to the Sohn Declaration contain data that is confidential under the Protective Order
entered in this matter on January 23, 2012 (“Protective Order”).
2.
There are three requirements for sealing court findings: (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 Ashcraft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)). Defendants
contend Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J to the Sohn
Declaration contain confidential material that should be sealed. Defendants specifically state
that as reasons for sealing the requested pleadings that:
(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.
Defendants have made all reasonable efforts to limit their redactions in compliance with the law
of this Circuit.
3.
In camera copies of Portions of Defendants’ Motion in Limine No. 3 and Exhibits
F, H, I, and J to the Sohn Declaration are being provided to the Court for review. In light of
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Defendants’ concerns and the Protective Order, there appears to be no alternative that
appropriately serves Defendants’ expressed confidentiality concerns.
4.
For the sake of consistency with practices governing the case as a whole,
Defendants believe Portions of Defendants’ Motion in Limine No. 3 and Exhibits F, H, I, and J
to the Sohn Declaration should remain sealed and be treated in accordance with the terms and
conditions of the Protective Order.
Accordingly, and in satisfaction of the requirements of Local Rule 5, Defendants
respectfully ask the Court to seal Portions of Defendants’ Motion in Limine No. 3 and Exhibits
F, H, I, and J to the Sohn Declaration.
DATED: September 21, 2012
/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 Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.
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By: /s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
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
Cortney 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.
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CERTIFICATE OF SERVICE
I hereby certify that on September 21, 2012, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: (202) 420-2200
Facsimile: (202) 420-2201
sherwoodj@dicksteinshapiro.com
brothersk@dicksteinshapiro.com
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: (757) 623-3000
Facsimile: (757) 623-5735
dschultz@cwm-law.cm
wrsnow@cwm-law.com
sstancliff@cwm-law.com
Counsel for Plaintiff, I/P Engine, 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
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