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

Filing 911

ORDER REGARDING PARTIES' JOINT RESPONSE TO THE COURT'S ORDER REGARDING OUTSTANDING MOTIONS TO SEAL CASE DOCUMENTS deeming certain motions moot; granting certain motions; denying certain motions; granting certain motions as to the lesser redacted materials. (See order for specifics.) Signed by District Judge Raymond A. Jackson and filed on 4/3/13. (mwin, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

F1LEDL
APR " 3 2013

I/P ENGINE, INC.
Plaintiff,

Civil Action No. 2:1 l-cv-512

v.

AOL, INC., et ai.
Defendants.

ORDER REGARDING PARTIES' JOINT RESPONSE TO THE COURT'S ORDER
REGARDING OUTSTANDING MOTIONS TO SEAL CASE DOCUMENTS

On this day came the parties, I/P Engine, Inc. ("Plaintiff) and AOL Inc., Gannett Co.,

Inc., Google Inc., IAC Search& Media, Inc., and TargetCorporation (collectively
"Defendants"), by counsel, pursuant to this Court's Order Regarding Outstanding Motions to
Seal Case Documents (ECF No. 886) ("Order Regarding Outstanding Motions to Seal"), and the
Parties' Joint Responseto the Court's Order Regarding Outstanding Motions to Seal (the

"Response"), and afterconsideration of that Response and arguments in support of that
Response, and for good cause shown, it is:
ORDERED THAT:

1.

The following pending motions to seal are DEEMED moot and therefore

withdrawn:

Motion Name

Docket Number

355

MOTION to Seal Exhibit 1 to its Memorandum in Support of Plaintiff I/P

Engines Daubert Motion, and Fourth Motion in Limine, to Exclude Lyle
Ungar's New Theory of Invalidity and Opinions Regarding Claim

]

346,412

Construction

MOTION to Seal Documents and Close the Courtroom During

Presentation of Confidential Material at Trial

Joint MOTION to Amend/Correct 346 MOTION to Seal Documents and

Close the Courtroom During Presentation of Confidential Material at Trial
Joint Motion and Memorandum in Support of Joint Motion To

Amend/Modify SchedulingOrder to Provide Briefing Schedule for Motion
to Seal and Close Courtroom
436

MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to Defendants'

514

Motion in Limine #1 along with Exhibits 5-6 and 11-12
MOTION to Seal Exhibits 1 and 2 to its Response to Defendants Motion to
Seal Documents and Close the Courtroom During Presentation of
Confidential Materials at Trial

MOTION to Seal Portions of the Order on the Final Pretrial Conference

687

The Clerk is instructed to return to the parties all previously filed materials relating to these
withdrawn motions.

2.

Based upon the parties' joint representations that there are no objections, the

following motions to seal are GRANTED:

Motion Name

Docket Number
280

289, 368

(Corrected D.N. 285)

MOTION to Seal Plaintiff I/P Engine, Inc.'s Second Motion for
Discovery Sanctions Regarding Untimely Discovery Responses
along with Exhibits 2,4, 5, 7, 8, 9,13, and 14 in support
MOTION to Seal [CORRECTED MOTION] Memorandum in

Support of Plaintiff I/P Engine, Inc.'s Third Motion for Discovery
Sanctions Regarding Untimely Discovery Responses along with
Exhibits 1, 4, 5, 6, 7, in support

296

312

Sealed Memorandum in Support of THIRD 285 MOTION to Seal
Memorandum in Support of Plaintiff I/P Engine, Inc.'s Third
Motion for Discovery Sanctions Regarding Untimely Discovery
Responses along with Exhibits 1,4, 5, 6, 7, in support
MOTION to Seal Portions of Defendants' Memorandum in Support
of Motion in Limine No. 3 to Exclude Marketing and High-Level
Non-Technical Matters Related to Historical Click-Through Rate,
and Exhibits F, H, I and J to the Declaration of Joshua L. Sohn in
Support of the Defendants' Various Motions in Limine
MOTION to Seal Exhibit 3 to the Memorandum in Support of
Plaintiff I/P Engine's First Motion in Limine to Exclude
Inadmissible Evidence

316

MOTION to Seal Portions of Memorandum in Support of
Defendants' Motion to Exclude Testimony from Stephen L. Becker

324

and Certain Materials Filed in Support Thereof
MOTION to Seal Portions of Memorandum in Support of

Defendants' Motion to Preclude Dr. Ophir Frieder from Testifying

331

338

Regarding Untimely Opinions that were Not Disclosed in his
Original Expert Report and Opinions that he Now Concedes are
Incorrect, and Certain Materials Filed in Support Thereof
MOTION to Seal the Memorandum in Support of Plaintiff I/P
Engine, Inc.'s Second Motion in Limine to Preclude NonComparable License Agreements along with Exhibits 1 and 2
MOTION to Seal the Memorandum in Support of Plaintiff I/P
Engine, Inc.'s Motion to Exclude Opinions and Testimony of Keith
R. Ugone along with Exhibits 1 and 2

343
425

429

MOTION to Seal Portions of the Declaration of Michael Hochberg
in Support of Plaintiff s and Defendants' Motions to Seal
MOTION to Seal its Opposition to Defendants Motion for
Summary Judgment along with Exhibits 8,11-19, 22-24, 27-32, 3439,45, 53-54, 56

MOTION to Seal (1) Portions of Defendants' Opposition to
Plaintiff I/P Engine's First Motion in Limine to Exclude
Inadmissible Evidence; (2) Portions of Defendants' Opposition to
Plaintiff I/P Engine's Second Motion in Limine to Preclude License
Agreements, and (3) Exhibits E and K to the Declaration of

Margaret P. Kammerud in Support of Defendants' Opposition to
Plaintiffs Motions in Limine
441

445
449
453

457

MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants' Motion in Limine #2 along with Exhibits 1 and 2
MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants' Motion in Limine #3 along with Exhibits 3-11

MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants' Motion in Limine #4 along with Exhibits 1 and 2
MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants' Motion in Limine #5 along with Exhibits 1 and 2
MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to

Defendants' Motion to Exclude the Testimony of Stephen L.
Becker along with Exhibits 1-5, 7-8, and 10-11
462

MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants Motion to Preclude Dr. Frieder from Testifying
Regarding Untimely Opinions along with Exhibits 1-3 and 5

465

508

MOTION to Seal Defendants' Memorandum in Support of Their
Opposition to Plaintiff I/P Engine, Inc.'s Motion to Exclude
Opinions and Testimony of Keith R. Ugone
MOTION to Seal (1) Portions of Defendants' Opposition to
Plaintiffs Daubert Motion, and Fourth Motion in Limine, to

Exclude Lyle Ungar's New Theory of Invalidity and Opinions
Regarding Claim Construction and (2) Exhibits 10 and 12 to the
Declaration of Howard Chen in Support of Defendants'

Memorandum in Opposition to Plaintiffs Daubert Motion, and
Fourth Motion in Limine, to Exclude Lyle Ungar's New Theory of

Invalidity and Opinions Regarding Claim Construction
517

MOTION to Seal (1) Portions of Defendants' Memorandum in

Opposition to Plaintiffs Second Motion for Discovery Sanctions;
(2) Portions of Defendants' Memorandum in Opposition to
Plaintiffs Third Motion for Discovery Sanctions; (3) Portions of
the Declaration of Margaret Kammerud in Support of Defendants'
Opposition to Plaintiffs Third Motion for Discovery Sanctions; (4)
Portions of Exhibits A-E, G, I-K to the Declaration of Jennifer
Ghaussy in Support of Defendants' Opposition to Plaintiffs Second

524

Motion for Discovery Sanctions; and (5) Exhibits L-Q to the
Declaration of Margaret Kammerud in Support of Defendants'
Opposition to Plaintiffs Third Motion for Discovery Sanctions
MOTION to Seal Portions of the Reply in Support of Defendants'
Motion for Summary Judgment, and Exhibits 34 and 36 to the
Declaration of Joshua L. Sohn in Support of Defendants' Reply in

Support of Defendants' Motion for Summary Judgment
561

MOTION to Seal (1) Portions of Defendants' Reply Brief in
Support of Their Motion to Preclude Dr. Ophir Frieder from
Testifying Regarding Untimely Opinions that were not Disclosed in
his Original Expert Report and Opinions that he Now Concedes are
Incorrect; (2) Portions of Defendants' Reply Brief in Support of
their Motion to Exclude the Testimony of Stephen L. Becker; and
(3) Portions of Exhibit I to the Declaration of Howard Chen in

Support of Defendants' Reply Brief in Support of their Motion to

Preclude Dr. Ophir Frieder
567

MOTION to Seal Plaintiff I/P Engine, Inc.'s Reply in Further
Support of its Motion to Exclude Opinions and Testimony of Keith
R. Ugone along with Exhibits 1-3

647

MOTION to Seal Plaintiff I/P Engine, Inc.'s Reply in Further
Support of its Third Motion for Discovery Sanctions along with
Exhibits 1 and 2

684

MOTION to Seal Exhibits 1 and 4 to its Opposition to Defendants
Motion to Dismiss All Claims Against AOL, Inc., Gannett Co.,
Inc., IAC Search & Media, Inc., and Target Corporation

706

MOTION to Seal Portions Of Exhibit 1 To The O'Brien

Declaration In Support Of Defendants Motion For Sanctions And

To Strike Portions Of Dr. Frieder's Second Updated Expert Report
802

MOTION to Seal and Redact Portions of Trial Record

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 Defendants'
Memorandum In Support Of Renewed Motion For Judgment As A
Matter Of Law On Damages Or New Trial; 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
866

MOTION to Seal Portions of Defendants' Memorandum in

Opposition to Plaintiffs Rule 59 Motion for a New Trial on the
Dollar Amount of Damages and Exhibit 2 to the Declaration of
Margaret P. Kammerud Filed in Support Thereof
873

MOTION to Seal Plaintiff I/P Engine, Inc.'s Opposition to
Defendants Renewed Motion for Judgment as a Matter of Law on

Non-Infringement or NewTrial
3.

Based upon the parties' joint representations, the following individual materials

subject to the motions to seal can be filed publicly and thus the motions are DENIED:

Document Description

Docket Number of

Docket Number

Motion to Be Ruled

of Document at

Upon

Issue

280

278, 342

Plaintiffs Memorandum in Support of Second

280

278-14, 366

motion for Sanctions
Exhibit 14 to Plaintiffs Memorandum in

289, 368 (Corrected

283

Plaintiffs Memorandum in Support of Third

283-4, 370

Exhibit 4 to Plaintiffs Memorandum in Support

283-5, 371

Exhibit 5 to Plaintiffs Memorandumin Support

304, 380

Defendants' Memorandum in Support of Motion

Support of Second motion for Sanctions
D.N. 285)

289, 368 (Corrected

Motion for Sanctions

D.N. 285)

289, 368 (Corrected

of Third Motion for Sanctions

D.N. 285)
296

of Third Motion for Sanctions
in Limine 3

296

310-6,381

296

310-8,382

Exhibit F to Defendants' Memorandum in

Support of Motion in Limine 3
Exhibit H to Defendants' Memorandum in

Support of Motion in Limine 3
296

310-9,383

Exhibit I to Defendants' Memorandum in

Exhibit I to Support of Motion in Limine 3
316

323-2, 387

Exhibit 2 to O'Brien Declaration in Support of
Defendants' Motion to Exclude Becker

316

323-13,398

316

321,402

324

329-8, 379

Exhibit 13 to O'Brien Declaration in Support of
Defendants' Motion to Exclude Becker

Fox Declaration in Support of Defendants'
Motion to Exclude Becker

Exhibit H to Defendant's Motion to Exclude
Frieder

1 338

341,420

Plaintiffs Memorandum in Supportof Motionto
Exclude Ugone

425

427-19

425

427-29

429

439

Exhibit 45 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 56 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Defendants' Opposition to Plaintiffs Motion in
Limine 1

445

447

Plaintiffs Opposition to Defendants' Motion in
Limine 3

445

447-3

Exhibit 3 to Plaintiffs Opposition to
Defendants' Motion in Limine 3

445

447-4

Exhibit 4 to Plaintiffs Opposition to
Defendants' Motion in Limine 3

445

447-7

Exhibit 7 to Plaintiffs Opposition to

445

447-8

Exhibit 8 to Plaintiffs Opposition to

445

447-9

Exhibit 9 to Plaintiffs Opposition to

445

447-10

Exhibit 10 to Plaintiffs Opposition to

445

447-11

Exhibit 11 to Plaintiffs Opposition to

449

451

Plaintiffs Opposition to Defendants' Motion in

449

451-2

Exhibit 2 to Plaintiffs Opposition to

453

455

Plaintiffs Opposition to Defendants' Motion in

453

455-2

Exhibit 2 to Plaintiffs Opposition to

457

460

Plaintiffs Opposition to Defendants' Motion to

457

460-1

Defendants' Motion in Limine 3
Defendants' Motion in Limine 3

Defendants' Motion in Limine 3
Defendants' Motion in Limine 3
Defendants' Motion in Limine 3
Limine 4

Defendants' Motion in Limine 4
Limine 5

Defendants' Motion in Limine 5
Exclude Becker

Exhibit 1 to Plaintiffs Opposition to
Defendants' Motion to Exclude Becker

457

460-4

457

460-11

Exhibit 4 to Plaintiffs Opposition to
Defendants' Motion to Exclude Becker

Exhibit 11 to Plaintiffs Opposition to
Defendants' Motion to Exclude Becker

462

464

Plaintiffs Opposition to Defendants' Motion to
Exclude Frieder

462

464-1

Ex. 1 to Plaintiffs Opposition to Defendants'

462

464-5

Ex. 5 to Plaintiffs Opposition to Defendants'

Motion to Exclude Frieder

Motion to Exclude Frieder

|

508

511

508

512-10

517

522-9

Defendants' Opposition to Plaintiffs Motion to
Exclude Ungar
Exhibit 10 to Defendants' Oppositionto
Plaintiffs Motion to Exclude Ungar

Exhibit I to Ghaussy Declaration in Support of
Defendants' Opposition to Plaintiffs Second
Motion for Sanctions

517

522-10

Exhibit J to Ghaussy Declaration in Support of
Defendants' Opposition to Plaintiffs Second
Motion for Sanctions

517

523

517

523-1

Kammerud Declaration in Support of
Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

Exhibit L to Kammerud Declaration in Support
of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

517

523-3

Exhibit N to Kammerud Declaration in Support
of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

524

528-1

Exhibit 34 to Defendants' Reply in Support of

567

568

Plaintiffs Reply in Support of Motion to

Motion for Summary Judgment
Exclude Ugone
4.

The parties have submitted electronic (on a CD-ROM) and hard copies of lesser

redacted materials currently subject to motions to seal, as outlined below. Having reviewed
these materials, the relevant motions to seal are GRANTED as to the lesser redacted materials.

The Court DIRECTS the Clerk and the parties to coordinate the substitution ofthe appropriate
documents.

Docket Number of
Motion to Be Ruled

Docket Number

Upon

Issue

280

278-7, 362

Document Description

of Document at

Exhibit 7 to Plaintiffs Memorandum in Support
of Second motion for Sanctions

289, 368 (Corrected
D.N. 285)
289, 368 (Corrected
D.N. 285)

283-1, 369

289, 368 (Corrected

283-7, 373

Exhibit 1 to Plaintiffs Memorandum in Support
of Third Motion for Sanctions

283-6, 372

Exhibit 6 to Plaintiffs Memorandum in Support
of Third Motion for Sanctions

Exhibit 7 to Plaintiffs Memorandum in Support

D.N. 285)
296

310-10,384

312

315-3,416

of Third Motion for Sanctions
Exhibit J to Defendants' Memorandum in
Support of Motion in Limine 3

Exhibit 3 to Plaintiffs Memorandum in Support
of Motion in Limine 3

316

320, 385

Defendants' Memorandum in Support of Motion
to Exclude Becker

316

323-1,386

Exhibit 1to O'BrienDeclaration in Support of
Defendants' Motion to Exclude Becker

324

328, 375

Defendants' Memorandum in Support of Motion
to Exclude Frieder

324

329-2, 377

331

Exhibit B to Defendants' Memorandum in

Support of Motion to Exclude Frieder

338

334,417
334-1,418
334-2,419
341-1,421

338

341-2,422

425

427

331
331

Plaintiffs Motion in Limine 2
Exhibit 1 to Plaintiffs Motion in Limine 2
Exhibit 2 to Plaintiffs Motion in Limine 2

Exhibit 1 to Plaintiffs Motion to Exclude Ugone
Exhibit 2 to Plaintiffs Motion to Exclude Ugone
Memorandum in Support of Plaintiff s

Opposition to Defendant's Motion for Summary
Judgment
425

427-2

425

427-2

425

427-2

425

427-2

425

427-5

425

427-5

425

427-5

425

427-5

425

427-5

425

427-8

425

427-8

425

427-8

Exhibit 3 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 4 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 5 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 8 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 19 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 11 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 14 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 17 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 18 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 22 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment

Exhibit 23 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 24 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment

425

427-11

425

427-11

425

427-27

441

443

Exhibit 27 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 29 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Exhibit 54 to Plaintiffs Opposition to
Defendant's Motion for Summary Judgment
Plaintiffs Opposition to Defendants' Motion in
Limine 2

441

443-1

Exhibit 1 to Plaintiffs Opposition to
Defendants' Motion in Limine 2

441

443-2

Exhibit 2 to Plaintiffs Opposition to
Defendants' Motion in Limine 2

449

451-1

Exhibit 1 to Plaintiffs Opposition to
Defendants' Motion in Limine 4

457

460-5

Exhibit 5 to Plaintiffs Opposition to

457

460-7

Exhibit 7 to Plaintiffs Opposition to

462

464-2

Exhibit 2 to Plaintiffs Opposition to

465

466

Defendants' Opposition to Plaintiffs Motion to

465

468-4

465

468-5

Exhibit D to Defendants' Oppositionto
Plaintiffs Motion to Exclude Ugone
Exhibit E to Defendants' Opposition to
Plaintiffs Motion to ExcludeUgone

508

512-12

Defendants' Motion to Exclude Becker

Defendants' Motion to Exclude Becker

Defendants' Motion to Exclude Frieder

Exclude Ugone

Exhibit 12 to Declaration of Howard Chen in

Support of Defendants' Opposition to Plaintiffs
Motion to Exclude Ungar
517

522-7

Exhibit G to Ghaussy Declaration in Support of
Defendants' Opposition to Plaintiffs Second
Motion for Sanctions

517

521

Defendants' Opposition to Plaintiffs Third

517

523-2

Exhibit M to Kammerud Declaration in Support

Motion for Sanctions

of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions
517

523-4

Exhibit 0 to Kammerud Declaration in Support
of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

517

523-5

517

523-6

ExhibitP to Kammerud Declaration in Support
of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

Exhibit Q to Kammerud Declaration in Support
of Defendants' Opposition to Plaintiffs Third
Motion for Sanctions

524

527

561

571-1

Defendants' Reply in Support of Motion for

Summary Judgment
Exhibit I to Defendants' Reply in Support of
Motion to Exclude Frieder
567

569-1

Exhibit 1to Plaintiffs Reply in Support of
Motion to Exclude Ugone

567

569-2

Exhibit 2 to Plaintiffs Reply in Support of
Motion to Exclude Ugone

647

651-2

684

686-1

Exhibit 2 to Plaintiffs Reply in Support of Third
Motion for Sanctions

Exhibit 1 to Plaintiffs Opposition to

Defendants' Motion to Dismiss Claims against
AOL, Gannett, IAC, and Target
684

686-4

Exhibit4 to Plaintiffs Opposition to

Defendants' Motion to Dismiss Claims against
AOL, Gannett, IAC, and Target

The Clerk is DIRECTED to send a copy ofthis Order to counsel and parties ofrecord.
IT IS SO ORDERED.

Norfolk, Virginia

Aprils/ ,2013
Raymond AWackson

United States District Judge

10