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

Filing 561

MOTION to Seal (1) Portions of Defendants' Reply Brief in Support of Their 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; (2) Portions of Defendants' Reply Brief in Support of their Motion to Exclude the Testimony of Stephen L. Becker; and (3) Portions of Exhibit I to the Declaration of Howard Chen in Support of Defendants' Reply Brief in Support of their Motion to Preclude Dr. Ophir Frieder 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 Defendants' Reply Brief in
Support of Their 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 (“Reply Brief to Preclude Dr. Frieder”); (2) Portions of Defendants’
Reply Brief in Support of Their Motion to Exclude the Testimony of Stephen L. Becker (“Reply
Brief to Preclude Dr. Becker”); and (3) Portions of Exhibit I to the Declaration of Howard Chen
in Support of Defendants' Reply Brief in Support of Their Motion to Preclude Dr. Ophir Frieder
(“Exhibit I to the Chen 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 the Reply Brief to Preclude

Dr. Frieder, Portions of the Reply Brief to Preclude Dr. Becker, and Portions of Exhibit I to the
Chen 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 Ashcraft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000)).
3.

This Court finds that Portions of the Reply Brief to Preclude Dr. Frieder, Portions

of the Reply Brief to Preclude Dr. Becker, and Portions of Exhibit I to the Chen Declaration may
contain data that is confidential under the Protective Order; 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) The Reply Brief in Support of Their 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
contains confidential Google technical information that is not generally known,
that has economic value, and would cause competitive harm if made public;
(b) The Reply Brief in Support of Their Motion to Exclude the Testimony of
Stephen L. Becker contains confidential Google technical information,
confidential Google financial information and confidential third-party licensing
information that is not generally known, that has economic value and would cause
competitive harm if made public; and

(c) Exhibit I to the Declaration of Howard Chen in Support of Defendants' Reply
Brief in Support of Their Motion to Preclude Dr. Ophir Frieder contains
confidential Google technical information that is not generally known, that has
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.
5.

In camera copies of Portions of the Reply Brief to Preclude Dr. Frieder, Portions

of the Reply Brief to Preclude Dr. Becker, and Portions of Exhibit I to the Chen 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 the Reply Brief to Preclude Dr. Frieder, Portions of the Reply Brief to Preclude Dr. Becker,
and Portions of Exhibit I to the Chen Declaration shall remain sealed and be treated in
accordance with the terms and conditions of the Protective Order.
Accordingly, it is ORDERED that Portions of the Reply Brief to Preclude Dr. Frieder,
Portions of the Reply Brief to Preclude Dr. Becker, and Portions of Exhibit I to the Chen
Declaration shall be filed under seal. 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:

October ____, 2012

Entered:

_____/_____/_____

_____________________________
United States District Court
Eastern District of Virginia

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]

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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