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

Filing 658

Brief in Support to 657 Opposition filed by Suffolk Technologies, LLC. (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.
)
__________________________________________)
BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO SEAL TRIAL EXHIBITS
AND CLOSE THE TRIAL PROCEEDINGS
Defendants have filed a motion to seal as yet unidentified trial exhibits and to close as yet
unspecified portions of the trial.

(Doc. 346.)

Suffolk Technologies, LLC (“Suffolk”), an

interested party, opposes that motion, seeks notice of and an opportunity to be heard at any
sealing hearings. Suffolk also seeks access to the trial exhibits when offered and admitted, seeks
to be present at trial, and seeks copies of the trial transcripts. Furthermore, Suffolk seeks access
to the summary judgment exhibits. Defendants’ motion analyzes the sealing issues under the
wrong (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. No such showing has been made.
Specifically, Defendants seek to seal trial exhibits and close the courtroom during trial
whenever the following three topics are presented:
(1) how AdWords and AdSense for Search determine which advertisements to
display to users, (2) Google’s confidential patent license agreements and other

intellectual property agreements, and (3) Defendants’ confidential, non-public
financial information.
(See Doc. 347 at 1.) Defendants make the generalized and conclusory assertion that these
categories constitute “extraordinarily sensitive and valuable confidential business information.”
(Id.). The Defendants generalized assertions do not satisfy the First Amendment standard.
To be sure, if a proper showing is made, trade secret information may be protected from
public disclosure in trial exhibits and other judicial records, as well as in trial proceedings. The
necessary showing is exacting, however, and any sealing, redaction, or closure must be narrowly
tailored. Defendants’ generalized statement of their interests is not sufficient, and their proposals
for sealing and closure are not narrowly tailored. The motion to seal and for closure must be
denied at this time.
SUFFOLK’S STATEMENT OF INTEREST
Any member of “the public” has standing to oppose a sealing request. See In re Knight
Pub. Co., 743 F.2d 231 (4th Cir. 1984). Here, Suffolk’s standing to seek access is underscored
by its interest in the particular categories of information that Defendants’ now seek to have
sealed.
In June 2012, Suffolk commenced a patent infringement action against defendants, AOL
Inc. (“AOL”) and Google Inc. (“Google”), asserting two patents, one pertaining to generating
summaries of information in response to a search, United States Patent No. 6,334,132 (“’132
patent”), and the other pertaining to the operation of an Internet server with respect to the
decision as to the particular file, if any, to be transmitted in response to a request, U.S. Patent No.
6,081,835 (“’835 patent”). Suffolk Tech. LLC v. AOL Inc. and Google Inc., No. 1:12cv625
(TSE/IDD) (E.D. Va. filed June 7, 2012) (“Suffolk Action”). The accused instrumentalities

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include Google’s “AdWords” and “AdSense” services, as well as AOL’s proprietary “ad
serving” technology—the same instrumentalities that are accused in this 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 and Google’s
alleged infringement. Accordingly, Suffolk has an interest in all three categories of information
that Defendants seek to seal.
First, Suffolk has an interest in “how AdWords and AdSense for Search determine which
advertisements to display to users” because Suffolk has accused the same instrumentalities of
infringing its patents.
Second, Suffolk has an interest in “Google’s confidential patent license agreements and
other intellectual property agreements” because those agreements are considered in the damages
analysis. As damages, Suffolk is seeking a reasonable royalty. The commonly used reasonable
royalty analysis involves consideration of the 15 factors enumerated in the Georgia-Pacific case.
Lucent Techs, Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009); see also i4i Ltd.
P’ship v. Microsoft Corp., 598 F.3d 831, 853 n.3 (Fed. Cir. 2010), aff’d, 131 S. Ct. 2238 (2011);
Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970). Factor
2 in the Georgia-Pacific analysis examines “The rates paid by the [defendant] for the use of
other patents comparable to the patent in suit.” Thus, Suffolk has an interest in Google’s “patent
license agreements and other intellectual property agreements.”
Third, Suffolk has an interest in AOL and Google’s “confidential, non-public financial
information” because, for example, Factors 8 and 13 in the Georgia-Pacific analysis examine
“profitability of the product made under the patent; its commercial success; and its current
popularity,” and the “portion of the realizable profit that should be credited to the invention as

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distinguished from non-patented elements, the manufacturing process, business risks, or
significant features or improvements added by the infringer.” Georgia-Pacific, 318 F. Supp. at
1120. Suffolk, therefore, has an interest in detailed financial information from each accused
infringer.
ARGUMENT
Sealing must be sought and justified on a document-by-document basis; the substantive
test for sealing must be met; the procedural requirements for sealing must be satisfied; and the
sealing or redaction must be as narrow as possible. None of the necessary predicates for sealing
has been satisfied by Defendants’ motion. Moreover, Defendants have analyzed sealing under
the wrong standard. Defendants’ sealing and closure motion must be denied at this time.
I.

GOVERNING PRINCIPLES OF LAW
Choice of Law: In patent infringement litigation, the Federal Circuit has ruled that

procedural matters that do not implicate issues unique to patent law are governed by regional
circuit and local district law. Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 857 (Fed.
Cir. 1991) (regional circuit and local rules govern procedural matters). Under this rule, the Court
should apply “the law of the United States Court of Appeals for the Fourth Circuit in analyzing
[a] motion to seal, which clearly is procedural and does not implicate any issues unique to patent
law.” Level 3 Comm., LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 575 (E.D. Va.
2009). Thus, Fourth Circuit law and Eastern District of Virginia local rules are applied herein.
The Right of Access to Judicial Records: Under the common law, judicial records are
presumptively public: “It is clear that the courts of this country recognize a general right to
inspect and copy public records and documents, including judicial records and documents.” See
Nixon v. Warner Comm., Inc., 435 U.S. 589, 597 (1978). Moreover, under the First Amendment,

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the press and public alike have a right of access to attend trials—both criminal and civil. Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982) (criminal); Craig v. Harney, 331
U.S. 367, 374 (1947) (a civil trial is “a public event”).1 The First Amendment right also has been
extended to certain pretrial hearings, depending upon the historical tradition of openness and the
value of public scrutiny of that proceeding. Press-Enterprise Co. v. Superior Court, 464 U.S.
501 (1984) (“Press-Enterprise I”); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)
(“Press-Enterprise II”). Where a First Amendment right of access attaches to the pretrial
proceeding or hearing, the same right of access applies to papers and documents filed in
association with that proceeding or hearing, in both criminal and civil cases.

See In re

Washington Post Co., 807 F.2d 383, 389-90 (4th Cir. 1986) (access to records of plea and
sentencing proceedings); Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 252-54 (4th
Cir. 1988) (access to summary judgment record). Thus, there are two sources of a right of access
to judicial records, not just the common law right of access cited in Defendants’ moving papers.2

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/ Much of the case law concerning open hearings and access to judicial records has been
developed in criminal cases—and often reveals the tension between having public criminal
proceedings and preserving the defendant’s right to a fair trial before an impartial jury. See
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 547-51 (1976). The same principles of
openness—open judicial records and open trials—apply to civil cases. Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 573 & n.9, 580 n.17 (1980).
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/ Although known as the “First Amendment right of access,” this right is not reserved for the
press. “It has generally been held that the First Amendment does not guarantee the press a
constitutional right of special access to information not available to the public generally … .”
Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972). “The First and Fourteenth Amendments bar
government from interfering in any way with a free press. The Constitution does not, however,
require the government to accord the press special access to information not shared by members
of the public generally.” Pell v. Procunier, 417 U.S. 817, 833-34 (1974). The First Amendment
protects a freedom of the press, of course, but it also secures for every citizen freedom of speech,
as well as the rights to peaceably assemble and to petition the government, which together give
rise to the First Amendment right of access to judicial proceedings and records. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. at 575.

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Each right of access applies to a different set of judicial records. The common law right
of access applies to “all judicial records and documents,” while the First Amendment right of
access applies “only to particular judicial records and documents,” such as exhibits filed in
connection with plea hearings and sentencing hearings in criminal cases, and trial proceedings
and dispositive motions in civil cases. Stone v. University of Maryland Medical Sys. Corp., 855
F.2d 178, 180-81 (4th Cir. 1988). Thus, when a civil action is commenced, the common law
right of access attaches to all the “judicial records and documents” in the case file. Then, when
the merits are presented to the Court, the First Amendment right of access attaches to dispositive
motions and the trial.
The right of access—whether common law or First Amendment—also determines the
showing that must be made to keep judicial records under seal.

The Supreme Court has

recognized that “the [common law] right to inspect and copy judicial records is not absolute.
Every court has supervisory power over its own records and files, and access has been denied
where the court files might have become a vehicle for improper purposes,” such as promoting
spite, libel, and public scandal, invading privacy, or injuring a litigant’s “competitive standing.”
Nixon v. Warner Communications, 435 U.S. at 598. Exercising that supervisory power is
committed to the “sound discretion” of the district court, which is to be “exercised in light of the
relevant facts and circumstances of the particular case.” Id. at 598-99. Thus, both compelling
private and public concerns may overcome the common law right of access and justify sealing a
judicial record.
On the other hand, if the First Amendment right of access applies to the judicial records,
then access can be denied only if—and only to the extent—necessary to advance “a compelling
governmental interest.” Press-Enterprises I, 464 U.S. at 510. The same rule applies in civil

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cases. Rushford, 846 F.2d at 253 (proponent must show that sealing serves an “important
governmental interest”). As is shown below, for each of the judicial records now at issue, as
well as the trial proceedings, the First Amendment right of access applies.
Mandatory Procedures for Sealing: Under Fourth Circuit law, the Court must do the
following prior to sealing any judicial records:
(1) give public notice of the request to seal and allow interested parties a
reasonable opportunity to object, (2) consider less drastic alternatives to sealing
the documents, and (3) provide specific reasons and factual findings supporting its
decision to seal the documents and for rejecting the alternatives.
Ashcraft v. Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000). To satisfy the first requirement, the
Court must provide notice of a request for sealing in the court record and provide interested
persons with “an opportunity to object.” In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir.
1984). Individual notice is not required, and the Court may give adequate notice either by
“notifying the persons present in the courtroom of the request to seal” at the time of the hearing,
or by “docketing [the sealing request] in advance of deciding the issue.” Id. To meet the second
requirement, the Court must consider using redactions or limited sealing (either scope or
duration) in lieu of permanent blanket sealing. And to meet the third requirement, the Court
must make specific findings, supported by the record, that justify sealing under the applicable
standard—either the First Amendment or common law. Any sealing order that fails to satisfy
these three requirements is “invalid.” Ashcraft, 218 F.2d at 288. The Ashcraft procedures must
be strictly followed by the Court.
II.

THE FIRST AMENDMENT RIGHT OF ACCESS APPLIES TO
SUMMARY JUDGMENT MOTIONS AND TRIAL IN CIVIL CASES
Defendants have analyzed the sealing request under the common law right of access,

which is the wrong standard. In civil cases, the First Amendment right of access applies to trials,
trial exhibits, and trial transcripts, as well as to the materials submitted in support of, and in
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opposition to a motion for summary judgment. The “more rigorous” First Amendment standard
requires that a sealing-proponent prove that sealing judicial records, hearings, and trials serves a
“compelling governmental interest,” demonstrate that there is no less drastic alternative means
available to protect those interests, and propose narrowly tailored sealing.
Summary Judgment:

The case is now at the adjudication phase, and sealing is

disfavored. It is settled that civil discovery proceedings are “not a public components of a civil
trial,” and, in general, civil discovery is “conducted in private as a matter of modern practice;”
therefore, the “raw fruits” of civil discovery are not judicial records and a protective order may
be entered limiting public disclosure to discovery materials. See Seattle Times Co. v. Rhinehart,
467 U.S. 20, 33-35 (1984). When discovery materials are filed with the district court, however, a
tension arises between the parties’ interests in keeping civil discovery confidential and the
public’s common law or First Amendment right of access to judicial records. See Rushford, 846
F.2d at 251-52. Generally, confidential discovery materials filed in connection with a summary
judgment motion give rise to a First Amendment right of access because “summary judgment
adjudicates substantive rights and serves as a substitute for a [public civil] trial.” Id. at 252.
Once discovery materials “are made part of a dispositive motion, such as a summary judgment
motion, they lose their status of being raw fruits of discovery,” and become “judicial
documents.” Id. (citation and internal quotations omitted). Similarly, in Seattle Times, the
Supreme Court distinguished between information and materials that had been “discovered” (to
which there is no right of access) and those that have been “admitted” into evidence for an
adjudication on the merits (to which there is a right of access). Seattle Times, 467 U.S. at 33.
Thus, the First Amendment right of access applies to the briefs and exhibits submitted in support
of, and in opposition to, a motion for summary judgment.

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To be sure, “there may be instances in which discovery materials should be kept under
seal even after they are made part of a dispositive motion,” but the entry of a blanket protective
order during discovery proves nothing. Rushford, 846 F.2d at 253. “The reasons for granting a
protective order to facilitate pre-trial discovery may or may not be sufficient to justify
proscribing the First Amendment right of access to judicial documents.” Id. at 254. Thus,
where, as here, a blanket protective order has been entered that allows the parties to designate
discovery materials as “confidential,” the Court still must review the materials when filed in
connection with summary judgment and independently determine whether those materials should
be sealed. See In re Time, Inc., 182 F.3d 270, 271-72 (4th Cir. 1999). At this stage, a party may
not merely rest on its own confidentiality designations or those of its opponent. The Court must
consider the summary judgment exhibits one-by-one to determine whether sealing is appropriate.
Suffolk respectfully submits that the necessary procedures for sealing summary judgment
exhibits have not been followed, nor has the necessary showing been made. The Fourth Circuit
has held that “the more rigorous First Amendment standard should … apply to documents filed
in connection with a summary judgment motion in a civil case.” Rushford, 846 F.2d at 253. To
justify sealing under this standard, the sealing-proponent must show that sealing “serves an
important governmental interest and that there is no less restrictive way to serve that
governmental interest.” Id. The procedures pursuant to which the sealing determinations are
made, moreover, must meet the criteria set forth in Knight. Id. Those were not followed here.
During summary judgment briefing, the parties utilized Local Civil Rule 5(D) and filed
sealing motions together with the proposed sealed filings. (E.g., Doc. 235 & 425.) By rule,
those proposed sealed filings remained under seal pending a decision by the Court.
E.D.VA.CIV.R. 5(D). The Court issued an Order to Show Cause regarding those sealing requests

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and held a hearing on September 18, 2012. (Doc. 244 & 274.) At that hearing, the Court
“inquired as to the pending motions to seal in the case. The parties were directed to submit to
chambers an agreed order regarding the sealing of documents in the case by Monday, September
24, 2012 at noon.” (Doc. 274). An agreed order was submitted and entered on September 28,
2012, unsealing some exhibits but maintaining the seal as to others. (Doc. 469 (“Agreed Sealing
Order”).) The parties’ mere agreement to seal exhibits does not satisfy the First Amendment
standard. R&G Mortgage Corp. v. Federal Home Loan Mtg. Corp., 584 F.3d 1, 12 (1st Cir.
2009) (“Sealing orders are not … available upon request or as a mere accommodation.”); accord
E.D.VA.CIV.R. 5(A) (“no document may be filed under seal without an order entered by the
Court”). Respectfully, the Agreed Sealing Order does not make specific findings, supported by
the record, that justify sealing under the applicable First Amendment standard, or consider less
restrictive sealing, and therefore is “invalid.” Ashcraft, 218 F.2d at 288. Thus, the entry of the
Agreed Sealing Order does not bar further inquiry based on Suffolk’s objection.
Although summary judgment has been denied (Doc. 572), Suffolk respectfully requests
the opportunity to be heard regarding the numerous sealed filings made by the parties, so it may
seek access to the remaining sealed summary judgment exhibits.
Closing Trial: By rule, “Every trial on the merits must be conducted in open court … .”
FED.R.CIV.P. 77(b). A civil trial is a “public event,” and “[w]hat transpires in the court room is
public property.” Craig v. Harney, 331 U.S. at 374. Thus, the trial should be held in open court
unless Defendants make a proper showing for closure, which they have not.
The standard and procedures for closing a courtroom during trial or for motions are very
strict under Fourth Circuit law:
There is a strong presumption in favor of openness: Closed proceedings ... must
be rare and only for cause shown that outweighs the value of openness. ... The

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presumption of openness may be overcome only by an overriding interest based
on findings that closure is essential to preserve higher values and is narrowly
tailored to serve that interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine whether the closure order
was properly entered.… Even with findings adequate to support closure, the trial
court must consider alternatives before the courtroom can be closed
constitutionally.
To facilitate a trial court’s case-by-case determination of closure, representatives
of the press and general public must be given an opportunity to be heard on the
question of their exclusion. When a closure motion is made in open court,
persons present must be given notice and an opportunity to object before the
public can be excluded.
In Re Knight, 743 F.2d at 234 (citations and internal quotation marks omitted). No such showing
has been made nor have the necessary procedures been followed.
One of the “rare” instances in which a trial may be sealed for “cause shown” would be to
protect trade secrets. Where a civil litigant’s “trade secrets” are contained in the judicial record,
the value of which property rights would be destroyed by public disclosure in a trial or hearing, a
sufficient “compelling governmental interest” exists to warrant sealing of the courtroom and the
pertinent judicial documents. See In re Iowa Freedom of Information Council, 724 F.2d 658 (8th
Cir. 1983); accord Woven Elec. Corp. v. The Advance Group Inc., 19 U.S.P.Q.2d 1439, 1443,
1991 U.S. App. LEXIS 14345, *16-19 (4th Cir. 1991) (citing and following Iowa Freedom of
Information Council) (district court may close civil trial and seal trial record as necessary to
protect litigant’s “trade secrets”). The Fourth Circuit, however, made it clear in Woven that it
was “not announcing a blanket rule that the presence of trade secrets will in every case and at all
events justify the closure of a hearing or trial.” Level 3, 611 F. Supp. 2d at 582 (quoting Woven).
Yet that is what Defendants want—closure “whenever” any testimony or exhibits are offered at
trial pertaining to the three broadly stated categories they have identified.

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Closure of trial is a very unusual and rarely granted protection. The sealing-proponent
must make a detailed showing that the information really is a trade secret. Generalities and
conclusory assertions are not sufficient. Cf. Presley v. Georgia, 130 S. Ct. 721, 725 (2010) (“If
broad concerns of this sort were sufficient… a court could exclude the public… almost as a
matter of course.”). Defendants’ motion to seal the trial fails to make a particularized showing
necessary to justify closing the courtroom during trial.
Similarly, any closure order must be narrowly tailored. The Defendants’ open-ended and
undefined proposal for closure fails in this regard, as well.
Suffolk respectfully submits that the Court should not enter any order generally closing
the trial or identifying in advance particular topics that will warrant closure. Instead, if and when
trade secret information is proffered, notice must be given, and the sealing-proponent must show
that a “compelling governmental interest” justifies closure of the courtroom.
Trial Exhibits: Under the local rules, trial exhibits, “including documents previously
filed under seal,” cannot be “filed under seal except upon a showing of necessity demonstrated to
the trial judge.” E.D.VA.CIV.R. 5(H). Under local practice the parties must identify their trial
proposed exhibits in their respective Rule 26(a)(3) disclosures, but they do not file their proposed
trial exhibits until one day before trial. See E.D.VA.CIV.R. 79(A). Until exhibits are offered and
admitted, they are not necessarily judicial records. See Seattle Times, 467 U.S. at 33. The
proper time to consider sealing of trial exhibits, therefore, will be at trial when they are offered.
Once offered and admitted, the First Amendment right of access applies to trial exhibits.
Level 3, 611 F. Supp. 2d at 579. Similarly, demonstrative exhibits used in open court are subject
to the First Amendment right of access. Rambus, Inc. v. Infineon Tech. AG, No. 3:00cv524,
2005 U.S. Dist. LEXIS 8621, *6-11 (E.D. Va. May 6, 2005). As is necessary to protect trade

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secrets or other compelling interests, trial exhibits may be redacted or sealed. See Woven, supra;
Level 3, 611 F. Supp. 2d at 581-83. But that exacting showing will require more than the
generalities thus far offered by Defendants.
Suffolk respectfully submits that when exhibits are offered, admitted, or used at trial, the
sealing-proponent will need to follow the proper procedures—notice, motion, and factual
support—and the Court will need to make appropriate findings and narrowly tailor the closure
order. The Court should not now shadow-box with broadly defined categories of information
that may warrant sealing, but should instead address closure on a proper showing when the issue
is squarely presented at trial.
Trial Transcripts: A civil trial transcript also is public. See 28 U.S.C. § 753(b). Under
the local rules, the trial transcript cannot be sealed “except upon a showing of necessity
demonstrated to the trial judge.” E.D.VA.CIV.R. 5(H). The First Amendment right of access
applies to the transcript, and so does the First Amendment analysis for sealing or redacting it.
See In re The Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (recognizing First Amendment
right of access to hearings, evidence, and transcripts). Thus, the sealing-proponent must show
that a “compelling governmental interest” justifies sealing some or all of a transcript and that the
sealing or redaction is narrowly tailored. No such showing can be made in advance based upon
Defendants’ general assertions. A particularized showing must be made when the testimony is
offered.
Suffolk respectfully submits that the Court should not enter any order generally
indicating when sealing the trial transcript may be warranted. As with closure of the trial
proceedings, sealing a transcript must be done on a proper showing made following proper
procedures.

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III.

SUFFOLK SHOULD BE GIVEN ACCESS UNDER
THE SUFFOLK ACTION PROTECTIVE ORDER
If the Court were inclined to grant the sealing and closures requested by Defendants—

either now or at the trial—narrowly tailored relief would not require exclusion of Suffolk from
the trial or denial of Suffolk’s access to sealed judicial records. Suffolk, AOL, and Google have
stipulated to a comprehensive and reticulated protective order in the Suffolk Action, which has
been approved and entered by the Court. Suffolk Tech. LLC v. AOL Inc. and Google Inc., No.
1:12cv625 (TSE/IDD) (E.D. Va. entered Sept. 18, 2012) (ECF # 122). Therein, the parties have
specified the terms and provisions for their exchange, use, and handling of “CONFIDENTIAL
OUTSIDE COUNSEL ONLY” information. If Suffolk is 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, Suffolk would agree to treat that information and those materials as
“CONFIDENTIAL OUTSIDE COUNSEL ONLY,” as defined in the stipulated protective order
entered in the Suffolk Action.
Similarly, Suffolk would consider agreeing to be bound to the protective order entered in
this action.

(Doc. 85.)

In that protective order, there also is a classification for

“CONFIDENTIAL OUTSIDE COUNSEL ONLY,” which provides adequate protections to
Defendants.

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CONCLUSION
Sealing must be sought and justified on a document-by-document basis; the substantive
test for sealing (First Amendment or common law) must be met; the three Ashcraft procedural
requirements must be satisfied; and the sealing or redaction must be as narrow as possible.
Similarly, closed proceedings “must be rare and only for cause shown that outweighs the value
of openness,” must follow the procedures set forth in Knight, and must be narrowly tailored.
Defendants’ motion to seal fails in all respects to satisfy the rigorous First Amendment standard
for sealing and closure. The motion to seal and for closure must be denied at this time.
Suffolk 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 the condition that
that information and those materials will be treated as “CONFIDENTIAL OUTSIDE COUNSEL
ONLY,” as defined in the stipulated protective order entered in the Suffolk Action or in this
action.
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

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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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