Microsoft Corporation v. Immersion Corporation

Filing 4

RESPONSE, by Defendant Immersion Corporation, to 3 MOTION to Seal Original Complaint. (Attachments: # 1 Proposed Order)(Keller, Bradley)

Microsoft Corporation v. Immersion Corporation

Doc. 4

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The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON MICROSOFT CORPORATION, a Washington ) corporation, ) ) Plaintiff, ) ) v. ) ) IMMERSION CORPORATION, a Delaware ) corporation, ) ) Defendant. ) )

No. CV07 936RSM IMMERSION CORPORATION'S RESPONSE TO PLAINTIFF'S MOTION TO SEAL ORIGINAL COMPLAINT

Immersion Corporation has not yet responded to the Complaint in this action, but specially appears to respond briefly to Microsoft's Motion to Seal Original Complaint. The request to seal should be granted, but the body of Microsoft's motion regrettably misstates the pertinent background. When Microsoft filed its original complaint in this case on June 18, 2007, it elected to include in its allegations confidential financial terms of an agreement between Immersion Corporation and Sony Computer Entertainment, Inc. and Sony Computer Entertainment America, Inc. Immersion had previously given this information to Microsoft only after Microsoft expressly agreed in writing to preserve it as confidential and not further disseminate it. When Immersion learned of the public filing of the Complaint containing the confidential information, Immersion promptly informed Microsoft by letter that its public disclosure of this
IMMERSION CORPORATION'S RESPONSE TO PLAINTIFF'S MOTION TO SEAL ORIGINAL COMPLAINT (CV07 936RSM) - 1

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sensitive financial information violated the express terms of the confidentiality agreement that Microsoft signed on May 11, 2007­ the agreement that enabled Microsoft to learn the information. After Immersion raised the confidentiality agreement, Microsoft then filed an Amended Complaint that deleted the information. Microsoft also filed a "Motion to Seal Original Complaint. But rather than point out to the Court that Microsoft's original Complaint " unnecessarily contained confidential information that Microsoft itself expressly agreed would receive confidential treatment, Microsoft uses its own misconduct as an opportunity to improperly pre-argue the merits of the case. In doing so, Microsoft completely ignores its own violation of the parties' confidentiality agreement, the basis for Immersion's raising the confidentiality point. Microsoft specifically agreed that Immersion's agreement with Sony, and the confidential information therein, would only be used "subject to an appropriate confidentiality agreement or court order that may be negotiated or otherwise entered. As a result, the information should not " have been included in the original Complaint and should be sealed. Microsoft's Motion to Seal arises only because Microsoft disregarded this agreement. There is no issue regarding the public policy of settlement agreements. Indeed, whether Immersion's agreement with Sony constitutes a " ettlement of the Sony Lawsuit under the terms of the Microsoft-Immersion contract at issue in s " this lawsuit is one of the core questions to be litigated in this case. Those questions will be addressed at the appropriate time and in the appropriate context. This, however, is neither the appropriate time nor context, and it was inappropriate for Microsoft to use its own failure to abide by the confidentiality agreement as an opportunity to try to "condition the court to its " position regarding the sharply contested core issue of whether Immersion's agreement with Sony was a "settlement within the terms and meaning of the applicable agreements between Immersion " and Microsoft. Microsoft also lodges an overreaching proposed order that it no doubt intends to point to later in the case, when the Court has not yet had any opportunity -- nor cause -- to have any involvement in the merits of the case.

IMMERSION CORPORATION'S RESPONSE TO PLAINTIFF'S MOTION TO SEAL ORIGINAL COMPLAINT (CV07 936RSM) - 2

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There is no question, though, that the original Complaint that unnecessarily and improperly contained competitively sensitive information regarding Immersion should be sealed. A revised proposed order is lodged herewith for the convenience of the Court. DATED this 28th day of June, 2007. BYRNES & KELLER LLP

By /s/ Bradley S. Keller Bradley S. Keller, WSBA #10665 1000 Second Avenue, Suite 3800 Seattle, WA 98104-4082 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Immersion Corporation

IMMERSION CORPORATION'S RESPONSE TO PLAINTIFF'S MOTION TO SEAL ORIGINAL COMPLAINT (CV07 936RSM) - 3

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CERTIFICATE OF SERVICE The undersigned attorney certifies that on the 28th day of June, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Paul J. Kundtz ([e-mail]) Blake Marks-Dias ([e-mail]) Wendy E. Lyon ([e-mail] Riddell Williams P.S. 1001 Fourth Avenue Plaza Suite 4500 Seattle, WA 98154-3600 Attorneys for Plaintiff

/s/Bradley S. Keller, WSBA #10665 Byrnes & Keller LLP 1000 Second Avenue, 38th Floor Seattle, WA 98104 Telephone: [phone] Facsimile: [phone] [e-mail]

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