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

Filing 324

MOTION to Seal Portions of Memorandum in Support of Defendants' Motion to Preclude Dr. Ophir Frieder from Testifying Regarding Untimely Opinions that were Not Disclosed in his Original Expert Report and Opinions that he Now Concedes are Incorrect, and Certain Materials Filed in Support Thereof by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen)

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 Memorandum in Support of
Defendants’ Motion to Preclude Testimony Dr. Ophir Frieder From Testifying Regarding
Untimely Opinions That Were Not Disclosed In His Original Expert Report and Opinions That
He Now Concedes Are Incorrect (“Portions of Defendants’ Motion to Preclude Frieder”) and (2)
Exhibits A, B, G, and H to the Declaration of Jen Ghaussy in Support of the Defendants’ Motion
to Preclude Frieder (“Exhibits A, B, G, and H to the Ghaussy 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 to

Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy 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 to Preclude Frieder and

Exhibits A, B, G, and H to the Ghaussy 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’ Motion in to Preclude Frieder discuss technical
details of the operation of AdWords which are not generally known, that have
economic value and would cause competitive harm if made public;
(b) Exhibits A and B to the Ghaussy Declaration discuss Google source code
which is not generally known, that has economic value and would cause
competitive harm if made public; and
(c) Exhibits G and H discuss confidential technical details regarding the accused
products which are not generally known, that have economic value and would
cause competitive harm if made public.
Additionally, the Court finds that the Defendants have made all reasonable efforts to limit their
redactions in compliance with the law of this Circuit.

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5.

In camera copies of Portions of Defendants’ Motion in to Preclude Frieder and

Exhibits A, B, G, and H to the Ghaussy 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 to Preclude Frieder and Exhibits A, B, G, and H to the Ghaussy
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 to Preclude Frieder and
Exhibits A, B, G, and H to the Ghaussy 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

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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: [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 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: [phone]
Facsimile: [phone]
[e-mail]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]

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Courtney S. Alexander
FINNEGAN, HENDERSON, FARABOW,
GARRETT & 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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