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

Filing 516

RESPONSE to Motion re 346 MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
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v.
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)
AOL, INC. et al.,
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)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

RESPONSE TO DEFENDANTS’ MOTION TO SEAL DOCUMENTS
AND CLOSE THE COURTROOM DURING PRESENTATION OF CONFIDENTIAL
MATERIAL AT TRIAL

Plaintiff’s corporate representatives, and other officers, want to attend this trial. And,
there is strong public interest in this trial, as the Court observed during the September 18 hearing.
In addition, as reflected in this Court’s two different Orders to Show Cause of September 13,
2012, Defendants have vastly over-designated as confidential documents, depositions, and court
filings. See D.I. 244 & 245. While I/P Engine likely will not oppose a brief closure of the
courtroom upon a showing that it is the only way of preserving legitimate, highly confidential
information that previously has not been publicly disclosed, Defendants have failed to meet that
standard in their motion. Instead, they list only broad categories of information that they seek to
seal. These categories encompass information that is already public. This motion, at least as it
has been presented to the Court, should be denied.
Contrary to Defendants’ statement (at 2), the public’s right to access judicial proceedings
is guaranteed not only by common law, but also by the First Amendment. Rushford v. New
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Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (“We believe the more rigorous First
Amendment standard should also apply to… civil case[s]”). Denying access to the public
(including I/P Engine’s officers) can only occur when it advances a compelling government
interest and is narrowly tailored to serve that interest. Id. Any decision to close the courtroom
must be supported by reasons stated explicitly on the record and supported by specific findings.
Id. 253-254. Any decision to close the courtroom must also be supported by a statement of
reasons for rejecting alternatives to closure. Id. at 253-254.
Many of Defendants’ rationales for closing the courtroom must be rejected because they
would apply to every patent case. For example, Defendants’ motion argues (at 8) that all of
Google’s intellectual property agreements must be sealed because “Google would… suffer
competitive harm in having other parties know its licensing rates for intellectual property.”
Defendants’ motion merely raises broad concerns that some information, if publicly disclosed,
might adversely affect one or more of the Defendants. The Supreme Court, however, has
rejected this type of rationale, stating that “[i]f broad concerns of this sort were sufficient… a
court could exclude the public… almost as a matter of course.” Presley v. Georgia, 130 S. Ct.
721, 725 (2010).
I.

Defendants’ Motion Must Be Denied Because It Lacks Specificity
I/P Engine cannot reply with specificity to Defendants’ motion, because Defendants have

failed to specifically identify those documents that they consider to be so sensitive that they
cannot be discussed in open court. Defendants have not identified which documents on
Defendants’ own exhibit list should allegedly be shielded from the public eye. Instead,
Defendants promised to supplement their motion in the future. D.I. 347 at 2. This fails to satisfy
Defendants’ burden of overcoming the presumption that trials will be open to the public. See

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Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 510
(1984) (“The presumption of openness may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to serve that
interest.”).
As this Court already has observed, during the discovery phase of this case, and in their
summary judgment briefing, Defendants designated far more documents as confidential than
they should have. I/P Engine has no confidence that Defendants will stop over-designating
topics as confidential at trial. This is especially true in light of the extremely aggressive
positions that Defendants have taken on other issues, such as seeking to exclude their own highly
relevant, but damaging, documents (D.I. 303-304) and claiming, contrary to well-established
law, that the Court lacks standing because co-infringers are not jointly and severally liable (D.I.
293-294).
Defendants should be required to justify, with specificity and exactness, every single item
of evidence that they want to conceal from I/P Engine’s principals and the public. For each item,
Defendants should be required to explain what the government interest in sealing that item of
evidence is and why this Court should not apply less severe measures, such as not publishing
documents to public view, or partial redaction of documents. Then this Court must weigh the
public interest against the alleged harm to the Defendant seeking the sealing.
Without knowing what specific evidence Defendants seek to exclude, I/P Engine
responds below to the three broad categories of information identified by Defendants and
proposes procedures to ensure that no more information is kept from the public’s eye than the
Constitution allows.

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II.

Redactions Should Be Preferred Over Sealing Entire Documents
Defendants should not be allowed to seal an entire document where only a portion of the

document contains highly confidential information. To allow the non-confidential portions of
documents or testimony to be sealed would not be narrowly tailored, as required by the
Constitution. Instead, Defendants should be required to identify with precision the evidence
(testimony or documents) they seek to seal and provide redacted copies of those documents to
I/P Engine well in advance of the start of trial (at least one week), so I/P Engine can determine
whether it has any objections. Assuming Defendants’ request is precise and narrowly tailored,
then I/P Engine believes that the need for closing the courtroom can be either minimized or
entirely avoided. For example, I/P Engine may be able to avoid unnecessarily excluding the
public by using documents in redacted form.
III.

Defendants’ First Category Is Overbroad And Suggests An Improper Purpose For
Sealing The Documents
Defendants’ trial strategy is to disavow their own public documents. Defendants moved

to exclude these documents, claiming that they are inaccurate and that permitting the jury to see
the documents would be unduly prejudicial. D.I. 303-304 (Defendants’ Motion in Limine #3).
I/P Engine has vigorously disputed both the assertion that Defendants’ documents are inaccurate
and the assertion that they should be excluded from evidence. D.I. 447.1 Defendants now seek
to keep these documents, and discussion of their contents, from the public.

1

I/P Engine’s expert analyzed the documents, compared them with Google’s source code, and
concluded that the documents are accurate. See, e.g., Ex. 1 (Frieder Report) at Exhibit 5, p. 9-10.
At most, Google’s claims of inaccuracy are hyper-technical and misleading. See D.I. 447 at 6-8.

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Defendants apparently want to shield their attack on their own documents from the public
eye. 2 But the documents they attack are public. Some of the documents were even cited in I/P
Engine’s Complaint. The public’s right of access to judicial proceedings would be a farce if
Google were allowed to have different public and private positions on the issues. Yet
Defendants’ motion would allow exactly this result. The Government has no interest in
shielding the public from Defendants’ embarrassing, self-contradictory arguments. Although
encompassed by Defendants’ motion, Defendants’ public documents, and discussions thereof,
should not be sealed.
IV.

Defendants’ Second And Third Categories Cover Routine Information That Is
Rarely Excluded
Defendants’ second category to exclude is “Google’s confidential patent license

agreements and other intellectual property agreements.” Such documents are a part of nearly
every patent trial. Indeed, such licenses are routinely considered when evaluating the amount of
a reasonable royalty. See, e.g., Exhibit 2 at p. 36-53 (Google expert report discussing multiple
Google intellectual property licenses). Google’s third category (“Defendants’ confidential, nonpublic financial information”) also encompasses information that is routinely considered in order
to establish a royalty base. See, e.g., Id. at 73-92.
Defendants have identified nothing that distinguishes Google’s agreements from those
that are routinely considered in other patent trials. Similarly, Defendants have failed to identify

2

Defendants’ first category of topics to seal reads “how AdWords and AdSense for Search
determine which advertisements to display to users.” D.I. 347 at 1. This broad category
encompasses the documents Defendants seek to exclude in their third motion in limine (D.I. 303304).

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anything that distinguishes their financial information from the financial information that is
ordinarily considered in other patent trials.3
Defendants’ second and third categories encompass nearly all of the evidence that relates
to damages in this case. If other Courts sealed these categories of information, the damages
phase of patent trials would virtually always occur in secret, turning the presumption of openness
on its head. Sealing damages evidence wholesale cannot be the correct result. See Presley v.
Georgia, 130 S. Ct. 721, 725 (2010) (non-specific concerns are not sufficient to exclude the
public as a matter of course); cf. Globe Newspaper Co. v. Superior Court for Norfolk County,
457 U.S. 596, 610-11 (1982) (overturning law requiring mandatory closing of criminal trials
during testimony of minors who were victims of sexual abuse).
Defendants have cited no case law that supports sealing even one of Google’s intellectual
property agreements, let alone all of them. The case cited by Defendants does not address an
agreement of any sort. Rather it addresses whether a movant can redact an affidavit containing
“15 years of revenue data.” Flexible Benefits Council v. Feldman, 2008 WL 4924711 at *1
(2008). Notably, the movant did not seek to seal a whole category of documents or even the
affidavit as a whole. Rather, the movant sought “to file a version of the [affidavit] with the
financial information redacted.” Id. Defendants should similarly focus their requests.

3

Even if some specific aspects of an agreement or a specific bit of financial information deserve
the Court’s protection, Defendants have failed to explain what that bit of information is and why
it should be specially protected. I/P Engine acknowledges that special cases may exist, and it
may be willing to limit its objections if Defendants make a specific case for why any specific bit
of information, as opposed to a broad category of information, should be sealed.

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V.

Defendants Should Certify That The Documents They Seek To Seal Are Not
Already Public
I/P Engine believes that at least some of the technical documents, intellectual property

agreements, and financial information that Defendants seek to conceal have been publicly
disclosed. There is no legitimate governmental interest in shielding the public from information
that it can already access. Making already-public information harder to access would hinder the
public’s right to access judicial proceedings by making the information needed to understand the
proceedings needlessly difficult to obtain.
If and when Defendants identify the specific information they seek to redact they should
be required to certify that the information has not been made public, in another lawsuit or
otherwise. Defendants should also provide a specific statement of why each piece of evidence
meets the standard for closing the courtroom, instead of making the overly-broad statements in
its present motion.
VI.

Presentation of Evidence Necessitating Closure of The Courtroom Should Be
Grouped
If the Court finds the Defendants have properly supported any request to seal the

Courtroom, those events should be rare and aggregated. Rather than making a spectacle of
repeatedly closing the courtroom, Defendants should be allowed to close the courtroom only a
limited number of times, and they should present all evidence they seek to shield from the public
during those times. For example, Defendants could close the courtroom once during their noninfringement case in order to present any source-code related documents. If this Court agrees
that the damages portions of this trial should proceed in secret, then Defendants could
immediately follow the confidential portion of their non-infringement case with their damages
case.

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VII.

Conclusion
I/P Engine opposes sealing the broad categories of information that the Defendants

identified. The courtroom should not be closed unless and until Defendants identify the specific
portions of documents and testimony that they seek to seal, and support all requests with
evidence and reasoning sufficient to satisfy the First Amendment.

Dated: October 1, 2012

By: /s/ Jeffrey K Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone:
[phone]
Facsimile:
[phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
Dawn Rudenko Albert
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 1st day of October, 2012, the foregoing RESPONSE TO
DEFENDANTS’ MOTION TO SEAL DOCUMENTS AND CLOSE THE COURTROOM
DURING PRESENTATION OF CONFIDENTIAL MATERIAL AT TRIAL, was served
via the Court’s CM/ECF system, on the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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