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

Filing 655

REPLY to Response to Motion re 346 MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial 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.

DEFENDANTS' REPLY BRIEF IN SUPPORT OF THEIR MOTION TO SEAL
DOCUMENTS AND CLOSE THE COURTROOM DURING PRESENTATION OF
CONFIDENTIAL MATERIAL AT TRIAL
There is good reason to close the Courtroom for specific, highly confidential information,
the disclosure of which will not only harm Google but consumers in general. Realizing this,
Plaintiff does not oppose the actual relief Google is seeking. Plaintiff acknowledges that it
“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.” (D.N. 516, 1.) This is precisely the type of protection for confidential materials
Defendants are seeking through their Motion. Defendants seek to protect highly confidential
engineering, licensing, and financial materials through the limited closing of the courtroom and
the sealing or redaction of documents.1 Defendants do not intend to create a revolving door
whereby the courtroom is repeatedly open and shut, and they will work with the Court and
opposing counsel to minimize any closure. They do not seek wholesale sealing of documents.
They simply request protection for a limited set of highly confidential materials that may be
presented during trial. As a result, this Court should grant the relief requested.
1

Although Defendants’ Motion asks that confidential documents be sealed, Defendants will
redact and present for the public record any documents that can be redacted rather than fully
sealed.

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I.

Defendants Will Specify Exactly What Information They Seek to Protect.
Plaintiff’s chief complaint is that Defendants’ Motion “lacks specificity.” (D.N. 516, 2.)

But as Defendants made clear in their Motion, and Plaintiff ignores, the parties have identified
hundreds of exhibits and many hours of deposition testimony for use during trial. Rather than
list every possible piece of evidence, Defendants have identified a narrow scope of items for
which they seek this Court’s protection. Because the parties are only just beginning to meet and
confer about the introduction of evidence during the trial, Defendants cannot yet know “what the
full scope of evidence will be at trial or what Plaintiff intends to introduce.” (D.N. 347, 5.)
Further, much of the evidence for which Defendants may seek protection is the subject of pretrial
motions to exclude, so it may or not may be at issue in the case at all.2 (See, e.g., D.N. 303.)
Once the parties’ cases have been narrowed through the meet and confer process and the
Court’s rulings, Defendants will be better able to present a very limited list of confidential
material, consistent with the narrow scope identified, for which they seek protection during trial.
Plaintiff ignores that Defendants already have agreed to meet and confer in good faith about this
issue and that Defendants “anticipate supplementing this motion with a specific and narrowly
tailored list of evidence that should not be heard in open court, along with tailored evidence and
testimony justifying the request after such meet and confer takes place.” (D.N. 347, 10.)
II.

Plaintiff Does Not Address Defendants’ Justifications for Protecting Confidential
Information.
Plaintiff does not take issue with the reasons proffered for closure. Indeed, Plaintiff

never addresses or refutes the detailed justifications Defendants provided concerning the narrow
categories of information set forth in their Motion are confidential and deserve protection from
the Court. (See D.N. 347, 6-10; see also D.N. 351, D.N. 351, D.N. 414.) For example,

2

Defendants will not engage Plaintiff’s attempts to disparage their actions in this case or

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2

Defendants seek protection for source code—the veritable “keys to the kingdom” and the very
material protected by the court in Viacom Int’l, Inc. v. Youtube Inc., 253 F.R.D. 256 (S.D.N.Y.
2008), one of the many supporting cases cited in Defendants’ brief that Plaintiff ignores.
Defendants provide explanation for the protection of this confidential material in their Motion,
(D.N. 347, 6-8; see also D.N. 414.) Plaintiff disregards this information.
Plaintiff further does not take issue with the profound harm that the disclosure of
Google’s confidential intellectual property agreements or information would work on Google’s
competitive standing or upon the consumer at large. (D.N. 346, 8.) Plaintiff further ignores the
fact that third party signors to these agreements would be harmed if their confidential
information was disclosed to the public. (Id.; D.N. 351 ¶ 4.) And while Plaintiff states,
“Defendants have failed to identify anything that distinguishes their financial information from
the financial information that is ordinarily considered in other patent trials.” (D.N. 516, 5-6),
Plaintiff fails to acknowledge Defendants’ proffered justifications for protecting highly
confidential, non-public financial data.3 (See D.N. 347, 9-10; D.N. 350.)
Google is a defendant in this action. It has not chosen to expose its highly confidential
materials for its own gains. Google should be able to fully defend itself and expose the clear
deficiencies in Plaintiff’s case at trial without jeopardizing the business it has built on this
confidential information.

their trial strategy.
3
The cases Plaintiff cites in support of its assertion that damages evidence in civil cases
should not be sealed are not on point as they address the closing of criminal trials. See D.N. 516,
6 (citing Presley v. Georgia, 130 S. Ct. 721, 725 (2010); Globe Newspaper Co. v. Superior Court
for Norfolk County, 457 U.S. 596 (1982).)

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III.

Defendants Will Not Seek to Close the Courtroom in Relation to Publicly Available
Materials.
Plaintiff asserts – without basis – that Defendants are seeking to conceal public

documents concerning the technology at issue in this case. (D.N. 516, 4-5.) Defendants have
not and will not seek to close the courtroom during testimony related to public marketing
documents or any documents that are publicly available.4 Defendants made clear in their Motion
that they are seeking protection only for confidential evidence related to the design and
technology underlying Defendants’ advertising products. (D.N. 347, 6.) Under the law of this
Circuit, only such confidential information would qualify for the protection that Defendants seek,
and Defendants have narrowly crafted their request to meet this law.

CONCLUSION
For the foregoing reasons and those presented in Defendants’ Motion to Seal Documents
and Close the Courtroom During Presentation of Confidential Material at Trial should be
granted.

4

Google would object to reference to material improperly made publicly available through a
violation of the Protective Order or a confidentiality agreement.

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DATED: October 4, 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.

/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]
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

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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 4, 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]

11961473v1

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