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

Filing 937

Memorandum in Support re 936 MOTION to Seal (1) Portions Of Defendants Memorandum In Opposition To Plaintiffs Motion For Post-Judgment Royalties, (2) Portions Of The Declaration Of Keith Ugone, Ph.D., In Support Of Defendants Opposition, (3) Certain Exhibits To filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen) Modified on 5/14/2013 to remove duplicate language by changing "MOTION to Seal motion to seal" to "MOTION to Seal." (mwin, )

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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 OPPOSITION TO PLAINTIFF’S MOTION FOR POST-JUDGMENT ROYALTIES, (2) PORTIONS OF THE DECLARATION OF KEITH UGONE, PH.D., IN SUPPORT OF DEFENDANTS’ OPPOSITION, (3) CERTAIN EXHIBITS TO THE DECLARATION OF MARGARET KAMMERUD IN SUPPORT OF DEFENDANTS’ OPPOSITION, AND (4) PORTIONS OF THE DECLARATION OF BARTHOLOMEW FURROW IN SUPPORT OF DEFENDANTS’ OPPOSITION In support of their Motion to Seal pursuant to Local Rule 5, and the Protective Order entered in this matter on January 23, 2012 (Doc. 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 Opposition To Plaintiff’s Motion For Post-Judgment Royalties (“Portions of Defendants’ Opposition”), (2) Portions of the Declaration of Keith Ugone, Ph.D. (“Ugone Declaration”), (3) Exhibits 2-21 to the Declaration of Margaret Kammerud (“Certain Exhibits to the Kammerud Declaration”) and (4) Portions of the Declaration of Bartholomew Furrow in Support of Defendants’ Opposition (“Furrow Declaration”). 2. Portions of Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow Declaration contain data that is confidential under the Protective Order. 3. There are three requirements for sealing court filings: (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 Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow Declaration contain data that is confidential under the Protective Order. Defendants specifically state as reasons for sealing the requested pleadings that: Portions of Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow Declaration contain confidential financial information, information regarding confidential third party agreements, sensitive, confidential technical information relating to Google's technology, and sensitive, confidential technical information relating to an alternative construction of the accused system, all of which are not generally known, have economic value, and the disclosure of which would cause competitive harm if made widely public. Defendants have made all reasonable efforts to narrowly limit their redactions in compliance with the law of this Circuit. 4. In camera copies of Portions of Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow 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 Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow 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 Defendants’ Opposition, the Ugone Declaration, Certain Exhibits to the Kammerud Declaration, and the Furrow Declaration. DATED: May 13, 2013 /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 Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. /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: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan.com Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 Facsimile: (202) 408-4400 Cortney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Telephone: (404) 653-6400 Facsimile: (415) 653-6444 Counsel for Defendant AOL Inc. CERTIFICATE OF SERVICE I hereby certify that on May 13, 2013, 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 12391544v2

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