I/P Engine, Inc. v. AOL, Inc. et al
Filing
803
Memorandum in Support re 802 MOTION to Seal and Redact Portions of Trial Record filed by Google Inc.. (Noona, Stephen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
I/P ENGINE, INC.
Plaintiff,
Civil Action No. 2:11-cv-512
v.
AOL INC., et al.,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANT GOOGLE INC.'S
MOTION TO SEAL AND REDACT PORTIONS OF TRIAL RECORD
01980.51928/5057759.4
Defendant Google, Inc. hereby moves for an order redacting limited, confidential
portions from the publicly-available transcripts of the jury trial in the above-captioned matter
held between October 16 and November 6, 2012. Google timely filed notice of its intent to
request redaction on November 21, 2010. Google hereby submits the following Memorandum in
Support of its Motion to Redact Portions of Trial Record, identifying unsealed portions of the
transcript that contain highly confidential information concerning (1) trade secrets about the
accused systems, (2) the amounts paid for intellectual property under confidential licensing
agreements Google entered into with third parties, and (3) Google’s revenue from the accused
systems. Google has consistently sought to protect this highly confidential information during
the course of this litigation by sealing various pleadings and by moving to seal the courtroom for
the limited purpose of protecting the very information that is the subject of this motion. (See,
e.g., Dkt. 347.) In addition, during conferences with the Court prior to and during the course of
the trial, Google's counsel again requested that the Court take all steps necessary to protect this
very information and objected to its introduction during trial. Because of the highly confidential
and sensitive nature of this information, there are no alternatives other than redacting the
following information from the public record to prevent its dissemination:
I.
Dkt. Number
744
744
744
II.
Dkt. Number
730
730
742
742
01980.51928/5057759.4
Trade Secrets About the Accused Systems
Date
10/24/2012
10/24/2012
10/24/2012
Session
PM
PM
PM
Start
1118:24
1122:9
1123:14
End
1121:10
1122:19
1125:2
Amounts Paid for Intellectual Property Under Confidential Licensing Agreements
Date
10/16/2012
10/16/2012
10/23/2012
10/23/2012
Session
PM
PM
PM
PM
Start
166:20
166:25
836:13
836:17
1
End
167:1
742
742
742
742
742
742
756
756
756
756
756
765
765
764
10/23/2012
10/23/2012
10/23/2012
10/23/2012
10/23/2012
10/23/2012
10/26/2012
10/26/2012
10/26/2012
10/26/2012
10/26/2012
10/30/2012
10/30/2012
10/30/2012
III.
Dkt. Number
759
759
742
742
742
760
774
774
PM
PM
PM
PM
PM
PM
PM
PM
PM
PM
PM
AM
AM
PM
836:19
878:21
882:3
884:9
884:23
885:3
1567:15
1567:17
1598:15
1598:19
1598:21
1620:3
1620:20
1765:6
885:4
Revenue for Accused Systems
Date
10/23/2012
10/23/2012
10/23/2012
10/23/2012
10/23/2012
10/24/2012
10/31/2012
10/31/2012
Session
AM
AM
PM
PM
PM
AM
Full day
Full day
Start
746:10
746:12
832:24
833:6
833:23
952:17
1967:1
1967:19
End
746:10
746:12
832:25
833:13
1967:3
ARGUMENT
Google seeks to redact small portions of the trial transcript concerning specific, highly
confidential details about the accused systems, the amounts paid for intellectual property under
confidential licensing agreements Google entered into with third parties Disney and Carl Meyer,
and the revenues from the accused systems. All of this information is entitled to protection
because further public dissemination of this information would harm Google's competitive
standing. The Court can prevent this additional harm to Google by redacting portions of the trial
transcript including this information.
01980.51928/5057759.4
2
The Fourth Circuit expressly acknowledged the legitimacy of limiting public access to
court records in order to protect proprietary information in an unpublished per curiam decision.
Woven Elecs. Corp. v. Advance Group, Inc., Nos. 89-1580, 89-1588, 1991 U.S. App. LEXIS
6004, at *17, *19 (4th Cir. Apr. 15, 1991) (acknowledging exception to public access to judicial
records where it "might harm a litigant's competitive standing" and allowing for the sealing of
"those portions necessary to prevent the disclosure of trade secrets”).1 Even though confidential
information had been revealed during open trial in that case, the Fourth Circuit acknowledged
the importance of later sealing records containing such information: "Given the present posture
of this case nothing can be done to remedy the situation at trial. However, an obvious corollary
to our conclusion is a requirement that the district court record be sealed to the extent necessary
to prevent the release of trade secrets." Id. at *18-19.
Google has consistently and repeatedly sought to prevent the introduction into the public
record of the evidence at issue in this motion. Accordingly, Google has not waived its right to
seal portions of the record containing this information. Compare Level 3 Commc'ns, LLC v.
Limelight Networks, Inc., 611 F. Supp. 2d 572, 583 (E.D. Va. 2009) (refusing to seal court
records where third party failed to raise with the court objections to their admission prior to or
during trial because an effort must be “made to seal a document in advance of or
contemporaneously with its use or filing with a court) (emphasis in original). Google has been
careful to narrowly limit these redactions to only those portions absolutely necessary to protect
Google’s confidential information just as it sought to close the courtroom only during the most
sensitive trial testimony. (See Dkt. 347; Dkt. 349; Dkt. 350; Dkt. 351.) Because Google has
1
See also Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 901 (E.D.
Pa. 1981) (“Judicial proceedings and records may be closed in part or in full to the public in
order to protect private interests, including proprietary interests in trade secrets and other
commercial information.”).
01980.51928/5057759.4
3
sought to redact only such limited information as will harm its competitive standing as detailed
below, Google requests the Court grant this motion in its entirety.
A.
Google’s Technology and Product Design and Operations Are Highly
Confidential.
There can be no dispute that evidence related to the design and technology underlying
Google’s advertising products is confidential, proprietary information that must be protected. In
fact, the Court explicitly recognized this fact and, as a result, closed the courtroom for portions
of the trial. Again today, Google seeks to protect technical details about precisely how its
accused products function. Google has invested significant resources in building, maintaining,
and improving the technology at issue here, and its public disclosure would allow competitors to
adopt Google’s valuable proprietary information without making the same investment Google
did. (Dkt. 349, ¶ 17.) Google asks that the Court grant its request to protect this highly
confidential information and allow for redaction from the public transcripts confidential
technical information that was supposed to be elicited only during the closed portions of the trial.
During trial, Plaintiff cross-examined Bartholomew Furrow regarding highly confidential
details about the specific way in which Google’s accused systems function. This occurred
despite the fact that the Court closed the courtroom during portions of Mr. Furrow’s testimony to
protect precisely this type of information and over the objection of Google’s counsel. (Id.,
1122:20-1123:10.) Allowing this information into public court records will further harm Google.
Accordingly, the Court should redact the portions of the transcripts identified above that relate to
this testimony.
B.
The Disclosure of Google’s Confidential Intellectual Property Agreements
Could Harm Google’s Competitive Standing.
Google also asks the Court to redact the portions of transcripts specifying the amounts
paid for intellectual property rights under licensing agreements with third parties. In this action,
01980.51928/5057759.4
4
the Court allowed testimony about the Disney and Carl Meyer patent license agreements to occur
in open court over Google’s requests for protection of this very information. Further public
dissemination of this sensitive financial data would harm both Google and the third parties to the
licensing agreements. (See generally Dkt. 351.)
A lack of Court protection of the information included in the intellectual property
agreements in this action would cause Google to suffer competitive harm in having other parties
know its licensing rates for intellectual property. This could give competitors or potential
licensors insight into Google's and its licensing partners' confidential licensing strategies and
thus an unfair competitive advantage. (Dkt. 351, ¶ 5.) Further, Google and its partners in those
agreements consider this information to be highly confidential and sensitive, and treat it as such
under the confidentiality provisions negotiated and entered into by those parties. Google asks
the Court to do the same by redacting portions of transcripts concerning the amounts paid for the
underlying intellectual property rights under each agreement.
C.
The Disclosure of Google’s Nonpublic Financial Data Could Harm Google’s
Competitive Standing.
Google also asks the Court to redact the portions of transcripts specifying revenue from
the accused systems. In this action, the Court allowed testimony about this revenue to occur in
open court despite Google’s requests for protection of this very information. These revenue
figures are not public information and were not willingly released by Google. Further public
dissemination of this sensitive financial data would harm Google. (See generally Dkt. 350.)
Courts typically find that a party’s interest in maintaining the confidentiality of nonpublic
financial information outweighs the common law right to public access. See, e.g., Flexible
Benefits Council v. Feltman, No. 1:08cv371 (JCC), 2008 WL 4924711 (E.D. Va. Nov. 13, 2008).
01980.51928/5057759.4
5
For these reasons, Google asks the Court to redact limited portions of the transcript revealing the
revenue from the accused systems.
CONCLUSION
For the foregoing reasons, the Court should seal and/or redact Google's confidential
information that was disclosed at trial.
01980.51928/5057759.4
6
DATED: November 21, 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
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 AOL Inc., Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.
01980.51928/5057759.4
7
CERTIFICATE OF SERVICE
I hereby certify that on November 21, 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
12064340v1
01980.51928/5057759.4
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