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

Filing 518

Memorandum in Support re 517 MOTION to Seal (1) Portions of Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Discovery Sanctions; (2) Portions of Defendants' Memorandum in Opposition to Plaintiff's Third Motion for Discovery Sanctions; MOTION to Seal (1) Portions of Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Discovery Sanctions; (2) Portions of Defendants' Memorandum in Opposition to Plaintiff's Third Motion for Discovery Sanctions; MOTION to Seal (1) Portions of Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Discovery Sanctions; (2) Portions of Defendants' Memorandum in Opposition to Plaintiff's Third Motion for Discovery Sanctions; MOTION to Seal (1) Portions of Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Discovery Sanctions; (2) Portions of Defendants' Memorandum in Opposition to Plaintiff's Third Motion for Discovery Sanctions; 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’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S SECOND
MOTION FOR DISCOVERY SANCTIONS; (2) PORTIONS OF DEFENDANTS’
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S THIRD MOTION FOR
DISCOVERY SANCTIONS; (3) PORTIONS OF THE DECLARATION OF MARGARET
KAMMERUD IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S
THIRD MOTION FOR DISCOVERY SANCTIONS; (4) PORTIONS OF EXHIBITS A-E,
G, I-K TO THE DECLARATION OF JENNIFER GHAUSSY IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S SECOND MOTION FOR
DISCOVERY SANCTIONS; AND (5) EXHIBITS L-Q TO THE DECLARATION OF
MARGARET KAMMERUD IN SUPPORT OF DEFENDANTS' OPPOSITION TO
PLAINTIFF'S THIRD MOTION FOR DISCOVERY SANCTIONS

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 Opposition to Plaintiff’s Second Motion for Discovery Sanctions
(“Opposition to Second Motion for Sanctions”); (2) Portions of Defendants’ Memorandum in
Opposition to Plaintiff’s Third Motion for Discovery Sanctions (“Opposition to Third Motion for
Sanctions”); Portions of the Declaration of Margaret Kammerud in Support of Defendants'

Opposition to Plaintiff's Third Motion for Discovery Sanctions ("Kammerud Declaration") (4)
Portions of Exhibits A-E, G, I-K to the Declaration of Jennifer Ghaussy in Support of
Defendants’ Opposition to Plaintiff’s Second Motion for Discovery Sanctions (“Exhibits A-E, G,
I-K to Ghaussy Declaration”); and (5) Portions of Exhibits L-Q to the Kammerud Declaration.
2.

Portions of the Opposition to Second Motion for Sanctions, the Opposition to

Third Motion for Sanctions, the Kammerud Declaration, Exhibits A-E, G, I-K to Ghaussy
Declaration and Exhibits L-Q to Kammerud 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 the Opposition to Second Motion for Sanctions, the Opposition to Third Motion for
Sanctions, the Kammerud Declaration, Exhibits A-E, G, I-K to Ghaussy Declaration, and
Exhibits L-Q to Kammerud Declaration contain data that is confidential under the Protective
Order. Defendants specifically state as reasons for sealing the requested pleadings that:
(a) The Opposition to Second Motion for Sanctions contains confidential Google
financial information and technical information that is not generally known, that
has economic value, and would cause competitive harm if made public;
(b) The Opposition to Third Motion for Sanctions contains confidential Google
technical information that is not generally known, that has economic value and
would cause competitive harm if made public;
(c)
The Kammerud Declaration contains confidential Google technical
information about the operation of Google technology that is not generally
known, that has economic value, and would cause competitive harm if made
public;

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(d) Exhibit A to the Ghaussy Declaration contains confidential Google financial
information that is not generally known, that has economic value, and would
cause competitive harm if made public; and
(e) Exhibit B to the Ghaussy Declaration contains confidential Google financial
information that is not generally known, that has economic value, and would
cause competitive harm if made public;
(f) Exhibit C to the Ghaussy Declaration contains confidential Google financial
information that is not generally known, that has economic value, and would
cause competitive harm if made public;
(g) Exhibit D to the Ghaussy Declaration contains confidential Google financial
information that is not generally known, that has economic value, and would
cause competitive harm if made public;
(h) Exhibit E to the Ghaussy Declaration contains confidential Google financial
information that is not generally known, that has economic value, and would
cause competitive harm if made public;
(i) Exhibit G to the Ghaussy Declaration contains confidential Google technical
information about the operation of Google technology that is not generally
known, that has economic value, and would cause competitive harm if made
public;
(j) Exhibit I to the Ghaussy Declaration contains confidential Google financial
information and technical information about the operation of Google technology
that is not generally known, that has economic value, and would cause
competitive harm if made public;
(k) Exhibit J to the Ghaussy Declaration contains confidential Google technical
information about the operation of Google technology that is not generally
known, that has economic value, and would cause competitive harm if made
public;
(l) Exhibit K to the Ghaussy Declaration contains confidential Google financial
information and technical information about the operation of Google technology
that is not generally known, that has economic value, and would cause
competitive harm if made public;
(m) Exhibit L to the Kammerud Declaration contains confidential Google
technical information about the operation of Google technology that is not
generally known, that has economic value, and would cause competitive harm if
made public;

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(n) Exhibit M to the Kammerud Declaration contains confidential Google
technical information about the operation of Google technology that is not
generally known, that has economic value, and would cause competitive harm if
made public;
(o) Exhibit N to the Kammerud Declaration contains confidential Google
technical information about the operation of Google technology that is not
generally known, that has economic value, and would cause competitive harm if
made public;
(p) Exhibit O to the Kammerud Declaration contains confidential Google
technical information about the operation of Google technology that is not
generally known, that has economic value, and would cause competitive harm if
made public;
(q) Exhibit P to the Kammerud Declaration contains confidential Google technical
information about the operation of Google technology that is not generally
known, that has economic value, and would cause competitive harm if made
public; and
(r) Exhibit Q to the Kammerud Declaration contains confidential Google technical
information about the operation of Google technology 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 the Opposition to Second Motion for Sanctions,

the Opposition to Third Motion for Sanctions, the Kammerud Declaration, Exhibits A-E, G, I-K
to Ghaussy Declaration, and Exhibits L-Q to Kammerud Declaration 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,

Defendants The Opposition to Second Motion for Sanctions, the Opposition to Third Motion for
Sanctions, the Kammerud Declaration, Exhibits A-E, G, I-K to Ghaussy Declaration, and

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Exhibits L-Q to Kammerud 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 The Opposition to Second Motion for Sanctions, the
Opposition to Third Motion for Sanctions, the Kammerud Declaration, Exhibits A-E, G, I-K to
Ghaussy Declaration, and Exhibits L-Q to Kammerud Declaration.

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
5

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.

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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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