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

Filing 509

Memorandum in Support re 508 MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff's Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction and (2) Exhibits 10 and 12 t MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff's Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction and (2) Exhibits 10 and 12 t MOTION to Seal (1) Portions of Defendants' Opposition to Plaintiff's Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction and (2) Exhibits 10 and 12 t 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: (1) PORTIONS OF
DEFENDANTS' OPPOSITION TO PLAINTIFF'S DAUBERT MOTION, AND FOURTH
MOTION IN LIMINE, TO EXCLUDE LYLE UNGAR'S NEW THEORY OF
INVALIDITY AND OPINIONS REGARDING CLAIM CONSTRUCTION AND (2)
EXHIBITS 10 AND 12 TO THE DECLARATION OF HOWARD CHEN IN SUPPORT
OF DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S DAUBERT
MOTION, AND FOURTH MOTION IN LIMINE, TO EXCLUDE LYLE UNGAR’S NEW
THEORY OF INVALIDITY AND OPINIONS REGARDING CLAIM CONSTRUCTION

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 Portions of

Defendants’ Opposition to Plaintiff's Daubert Motion, and Fourth Motion in Limine, to Exclude
Lyle Ungar's New Theory of Invalidity and Opinions Regarding Claim Construction
(“Defendants’ Opposition”) and Exhibits 10 and 12 to the Declaration of Howard Chen in
Support of Defendants’ Memorandum in Opposition to Plaintiff’s Daubert Motion, and Fourth
Motion in Limine, to Exclude Lyle Ungar’s New Theory of Invalidity and Opinions Regarding
Claim Construction (“Exhibits 10 and 12 to Chen Declaration”).

2.

Portions of Defendants' Opposition and Exhibits 10 and 12 to Chen Declaration

contain data that is confidential under the Protective Order entered in this matter on January 23,
2012 (“Protective Order”).
3.

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 that Exhibits 10 and 12 to Chen Declaration contain data that is confidential under the
Protective Order. Defendants specifically state as reasons for sealing the requested pleadings
that:
(a) Portions of Defendants' Opposition contain confidential Google technical
information that is not generally known, that has economic value, and would
cause competitive harm if made public;
(b) Exhibit 10 to the Chen Declaration contains confidential Google technical
information that is not generally known, that has economic value, and would
cause competitive harm if made public; and
(c) Exhibit 12 to the Chen Declaration contains confidential Google technical
information that 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.
4.

In camera copies of Portions of Defendants' Opposition and Exhibits 10 and 12 to

the Chen Declaration contains confidential Google have been forwarded to the Court. In light of
Defendants’ concerns and the Protective Order, there appears to be no alternative that
appropriately serves Defendants’ expressed confidentiality concerns.

5.

For the sake of consistency with practices governing the case as a whole, Exhibits

10 and 12 to the Chen Declaration contains confidential Google 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 Exhibits 10 and 12 to the Chen Declaration contains
confidential Google.

DATED: October 1, 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]
[e-mail]
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 &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL Inc.

CERTIFICATE OF SERVICE
I hereby certify that on October 1, 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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