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

Filing 657

Opposition to 346 MOTION to Seal Documents and Close the Courtroom During Presentation of Confidential Material at Trial filed by Suffolk Technologies, LLC. (Attachments: # 1 Proposed Order)(Reilly, Craig)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
No. 2:11-cv-512
)
AOL, INC., et al.,
)
)
Defendants.
)
__________________________________________)
OPPOSITION TO
DEFENDANTS’ MOTION TO SEAL TRIAL EXHIBITS
AND CLOSE THE TRIAL PROCEEDINGS
Suffolk Technologies, LLC (“Suffolk”), an interested party, opposes Defendants’ motion
to seal trial exhibits and trial transcripts, and to close certain portions of the upcoming trial.
(Doc. 346.) In support of its contentions, Suffolk states as follows:
1.

Defendants have filed a motion to seal as yet unidentified trial exhibits and to

close as yet unspecified portions of the trial. (Doc. 346.)
2.

Suffolk opposes that motion, and seeks notice of and an opportunity to be heard at

any sealing hearings.
3.

Suffolk also seeks access to the trial exhibits when offered and admitted, seeks to

be present at trial, and seeks un-redacted copies of the trial transcripts.
4.

Suffolk also seeks access to the summary judgment exhibits that have been sealed

by an agreed order. (Doc. 469.)
5.

Defendants’ motion analyzes the sealing and closure issues under the wrong

standard—that is, the common law standard. (See Doc. 347 at 2-4.) The standard that applies to
summary judgment and trial materials is the “more rigorous” First Amendment standard, which

requires that Defendants show a “compelling governmental interest” to justify sealing of judicial
records and closure of trial proceedings, proposes narrowly tailored relief, and demonstrates that
no less drastic remedy is available. No such showing has been made.
6.

As a member of “the public,” Suffolk has standing to oppose this sealing request.

See In re Knight Pub. Co., 743 F.2d 231 (4th Cir. 1984). Suffolk’s standing to seek access is
underscored by its interest in the particular categories of information that Defendants’ now seek
to have sealed. Suffolk has filed a patent infringement action against AOL Inc. and Google Inc.
involving the same accused instrumentalities. Suffolk Tech. LLC v. AOL Inc. and Google Inc.,
No. 1:12cv625 (TSE/IDD) (E.D. Va. filed June 7, 2012) (“Suffolk Action”). In the Suffolk
Action, the parties are litigating, inter alia, the manner in which the accused instrumentalities
work and the damages that may be awarded to Suffolk for AOL Inc. and Google Inc.’s alleged
infringement. Accordingly, Suffolk has a legitimate interest in the categories of information that
Defendants seek to seal in this action.
7.

Suffolk is willing to obtain access subject to an appropriate protective order

limiting use and disclosure, and any other appropriate terms imposed by the Court.
8.

A brief in support is filed herewith explaining the grounds and reasons for this

opposition with particularity.
WHEREFORE, Suffolk respectfully requests that Defendants’ motion to seal and for
closure be denied. Suffolk respectfully submits that it should be permitted to have access to
sealed judicial records, to attend closed sessions of the trial, and to obtain un-redacted trial
transcripts in this action, on terms and conditions set by the Court.
A proposed order is submitted herewith.

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REQUEST FOR HEARING
Suffolk respectfully requests that a hearing be held on Defendants’ sealing and closure
motion and Suffolk’s opposition thereto, and that Suffolk be given the opportunity to be heard.
Dated: October 4, 2012

Respectfully submitted,
/s/ Craig C. Reilly
Craig C. Reilly VSB # 20942
111 Oronoco Street
Alexandria, Virginia 22314
TEL: [phone]
FAX: [phone]
E-MAIL: [e-mail]
Counsel for Interested Party Suffolk
Technologies LLC
Roderick G. Dorman
Jeanne Irving
Alan P. Block
MCKOOL SMITH HENNIGAN, P.C.
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
and
Doug Cawley
J. Austin Curry
MCKOOL SMITH P.C.
300 Crescent Court
Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Interested Party Suffolk
Technologies LLC

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CERTIFICATE OF SERVICE
I hereby certify that on October 4, 2012, I filed the foregoing pleading or paper through
the Court’s CM/ECF system which sent a notice of electronic filing to the following:
Stephen E. Noona
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
[e-mail]
Counsel for Google Inc., Target
Corporation, IAC Search & Media, Inc., and
Gannett Co., Inc.

Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Counsel for Defendant AOL Inc.

David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Counsel for Google Inc., Target
Corporation, IAC Search & Media, Inc., and
Gannett Co., Inc.

Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Counsel for Defendant AOL Inc.

Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Counsel for Plaintiff, I/P Engine, Inc.

Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Counsel for Plaintiff, I/P Engine, Inc.
/s/ Craig C. Reilly
Craig C. Reilly, Esq.
VSB # 20942
111 Oronoco Street
Alexandria, Virginia 22314
TEL [phone]
FAX [phone]
[e-mail]
Counsel for Interested Party
Suffolk Technologies LLC

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