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

Filing 317

Memorandum in Support re 316 MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Exclude Testimony from Stephen L. Becker and Certain Materials Filed in Support Thereof 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
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO EXCLUDE
TESTIMONY FROM STEPHEN L. BECKER AND CERTAIN MATERIALS FILED IN
SUPPORT THEREOF
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 Their Motion to Exclude Testimony of Stephen L.
Becker (“Portions of Defendants’ Motion to Exclude Becker”), (2) Portions of Exhibits 1
through 15 to the Declaration of Emily O’Brien in Support of the Defendants’ Motion to Exclude
Becker (“Portions of Exhibits 1-15 to the O’Brien Declaration”), (3) Portions of the Declaration
of Nicholas Fox in Support of Defendants’ Motion to Exclude Becker (“Portions of the Fox
Declaration”), and (4) Portions of the Declaration of Bartholomew Furrow in Support of
Defendants’ Motion to Exclude Becker (“Portions of the Furrow Declaration”). Portions of
Defendants’ Motion to Exclude Becker, Portions of Exhibits 1-15 to the O’Brien Declaration,
Portions of the Fox Declaration and Portions of the Furrow 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 to Exclude Becker, Portions of Exhibits 1-15 to the
O’Brien Declaration, Portions of the Fox Declaration and Portions of the Furrow Declaration
contain confidential material that should be sealed. Defendants specifically state that as reasons
for sealing the requested pleadings that:
(a) Portions of Defendants’ Motion to Exclude Becker refer to Google’s
confidential financial and licensing information and third party confidential
licensing information which are not generally known, that have economic value
and would cause competitive harm if made public;
(b) Portions of Exhibit 1 to the O’Brien Declaration contains Google’s
confidential financial information, Google’s confidential licensing information,
Google’s confidential technical information, and third party confidential licensing
information which are not generally known, that have economic value and would
cause competitive harm if made public;
(c) Portions of Exhibit 2 to the O’Brien Declaration contain Google’s
confidential financial information, Google’s confidential technical information,
and third party confidential licensing information which are not generally known,
that have economic value and would cause competitive harm if made public;
(d) Portions of Exhibits 3, 4 and 5 to the O’Brien Declaration contain Google’s
confidential technical information which is not generally known, that has
economic value and would cause competitive harm if made public;
(e) Exhibit 6 to the O’Brien Declaration contains Google’s confidential financial
information which is not generally known, that has economic value and would
cause competitive harm if made public;

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(f) Portions of Exhibit 7 to the O’Brien Declaration contain Google’s confidential
financial and licensing information which is not generally known, that has
economic value and would cause competitive harm if made public;
(g) Exhibits 8 through 13 to the O’Brien Declaration contain Google’s
confidential financial information which is not generally known, that has
economic value and would cause competitive harm if made public; and
(h) Exhibits 14 and 15 to the O’Brien Declaration contain Yahoo’s confidential
licensing information which is 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 to Exclude Becker, Portions

of Exhibits 1-15 to the O’Brien Declaration, Portions of the Fox Declaration and Portions of the
Furrow Declaration are being provided to the Court for review. In light of 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 to Exclude Becker, Portions of Exhibits 1-15
to the O’Brien Declaration, Portions of the Fox Declaration and Portions of the Furrow
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 to Exclude Becker, Portions of
Exhibits 1-15 to the O’Brien Declaration, Portions of the Fox Declaration and Portions of the
Furrow Declaration.

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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: [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 Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.

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: [phone]
Facsimile: [phone]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
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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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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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
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: [phone]
Facsimile: [phone]
[e-mail]

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