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

Filing 829

Memorandum in Support re 828 MOTION to Seal (1) Portions Of Defendants Memorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On Non-Infringement Or New Trial; (2) Portions Of DefendantsMemorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On MOTION to Seal (1) Portions Of Defendants Memorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On Non-Infringement Or New Trial; (2) Portions Of DefendantsMemorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On MOTION to Seal (1) Portions Of Defendants Memorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On Non-Infringement Or New Trial; (2) Portions Of DefendantsMemorandum In Support Of Renewed Motion For Judgment As A Matter Of Law On 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’ MEMORANDUM IN SUPPORT OF RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW ON NON-INFRINGEMENT OR NEW TRIAL;
(2) PORTIONS OF DEFENDANTS’ MEMORANDUM IN SUPPORT OF RENEWED
MOTION FOR JUDGMENT AS A MATTER OF LAW ON DAMAGES OR NEW
TRIAL; AND (3) CERTAIN EXHIBITS TO THE DECLARATION OF JOSHUA L.
SOHN IN SUPPORT OF DEFENDANTS’ RENEWED MOTIONS FOR JUDGMENT AS
A MATTER OF LAW ON DAMAGES, INVALIDITY AND NON-INFRINGEMENT OR
NEW TRIAL

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’ Memorandum in Support of Renewed Motion for Judgment as a Matter of Law on
Non-Infringement or New Trial (“Memorandum in Support of Renewed JMOL on NonInfringement”); (2) Portions of Defendants’ Memorandum in Support of Renewed Motion for
Judgment as a Matter of Law on Damages or New Trial (“Memorandum in Support of Renewed
JMOL on Damages”); and (3) Certain Exhibit to the Declaration of Joshua L. Sohn in Support of

Defendants’ Renewed Motions for Judgment as a Matter of Law on Damages, Invalidity and
Non-Infringement or New Trial (“Exhibit 1 to the Sohn Declaration”).
2.

Portions of the Memorandum in Support of Renewed JMOL on Non-

Infringement, Memorandum in Support of Renewed JMOL on Damages, and Exhibit 1 to the
Sohn 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 Memorandum in Support of Renewed JMOL on Non-Infringement,
Memorandum in Support of Renewed JMOL on Damages, and Exhibit 1 to the Sohn Declaration
contain data that is confidential under the Protective Order. Defendants specifically state as
reasons for sealing the requested pleadings that:
(a) The Memorandum in Support of Renewed JMOL on Non-Infringement
contains confidential Google financial information that is not generally known
and would cause competitive harm if made public, was discussed after the Court
closed the courtroom during trial, and/or is subject to a pending motion to redact
the transcript (Dkt. 802);
(b) The Memorandum in Support of Renewed JMOL on Damages contains
confidential Google financial information that is not generally known and would
cause competitive harm if made public, and/or is subject to a pending motion to
redact the transcript (Dkt. 802); and
(c) Exhibit 1 to the Sohn Declaration contains confidential Google financial
information that is not generally known, would cause competitive harm if made
public, and/or is subject to a pending motion to redact the transcript (Dkt. 802).

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Defendants have made all reasonable efforts to narrowly tailor limit their redactions in
compliance with the law of this Circuit.
4.

In camera copies of Portions of the Memorandum in Support of Renewed JMOL

on Non-Infringement, Memorandum in Support of Renewed JMOL on Damages, and Exhibit 1
to the Sohn Declaration have been forwarded to the Court. The Court also finds that by filing
narrowly redacted public pleadings, the Defendants have made all reasonable efforts to limit
their redactions in compliance with the law of this Circuit.
5.

For the sake of consistency with practices governing the case as a whole, Portions

of the Memorandum in Support of Renewed JMOL on Non-Infringement, Memorandum in
Support of Renewed JMOL on Damages, and Exhibit 1 to the Sohn 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 Memorandum in Support of Renewed JMOL on
Non-Infringement, Memorandum in Support of Renewed JMOL on Damages, and Exhibit 1 to
the Sohn Declaration.

DATED: December 18, 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

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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.

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: [phone]
Facsimile: [phone]
[e-mail]
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
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on December 18, 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]

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