I/P Engine, Inc. v. AOL, Inc. et al
Filing
562
Memorandum in Support re 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 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 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 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' 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
In support of their Motion to Seal pursuant to Local Rule 5, and the Protective Order
entered in this matter on January 23, 2012 (Dkt. No. 85), 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' 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”).
2.
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 contain data that is
confidential under the 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 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 contain data that is
confidential under the Protective Order. Defendants specifically state as reasons for sealing the
requested pleadings that:
(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.
2
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 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 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, 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 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 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.
DATED: October 2, 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: (757) 624-3000
Facsimile: (757) 624-3169
senoona@kaufcan.com
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
3
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700
davidbilsker@quinnemanuel.com
davidperlson@quinnemanuel.com
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: (757) 624-3000
Facsimile: (757) 624-3169
senoona@kaufcan.com
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: (571) 203-2700
Facsimile: (202) 408-4400
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: (404) 653-6400
Facsimile: (415) 653-6444
Counsel for Defendant AOL Inc.
4
CERTIFICATE OF SERVICE
I hereby certify that on October 2, 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: (202) 420-2200
Facsimile: (202) 420-2201
sherwoodj@dicksteinshapiro.com
brothersk@dicksteinshapiro.com
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: (757) 623-3000
Facsimile: (757) 623-5735
dschultz@cwm-law.cm
wrsnow@cwm-law.com
sstancliff@cwm-law.com
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: (757) 624-3000
Facsimile: (757) 624-3169
senoona@kaufcan.com
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