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Https Ecf.vaed.Uscourts.gov Cgi-bin Show Temp.pl File=4323600-0--30208

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Published by: Judge on Dec 13, 2012
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIANORFOLK DIVISION
I/P ENGINE, INC.Plaintiff,v.AOL, INC.,
et al.
,Defendants.Civil Action No. 2:11-cv-512
DEFENDANT GOOGLE INC.'S REPLY BRIEF IN SUPPORT OF ITSMOTION TO SEAL AND REDACT PORTIONS OF TRIAL RECORD
Google has consistently sought to protect its highly confidential information during thecourse of this litigation by sealing various pleadings, by moving to seal the courtroom for thelimited purpose of protecting the very information that is the subject of its current motion, and byobjecting to its public introduction at trial during conferences with the Court prior to and duringtrial. (
See, e.g.
, D.N. 347.) Still, Plaintiff argues that Google somehow waived its right to seek such protection and that the Court has already rejected Google’s justification for protecting itsconfidential business information. Plaintiff’s arguments are incorrect. The Court has notconsidered the specific, highly confidential information Google now seeks to redact from thetrial transcript. Further, Google’s pre-trial efforts to protect this information prevented anywaiver because Google attempted to seal documents in advance of or contemporaneously with
 
their use or filing with the Court, as required in
 Level 3 Communications, LLC v. Limelight  Networks, Inc.
,
 
611 F. Supp. 2d 572, 583 (E.D. Va. 2009). Because Google has consistentlysought protection for the very information at issue in its motion and because there is no way toprotect Google’s confidential information other than redacting limited portions of the publicrecord, Google asks that the Court redact and seal the portions of the trial record that containGoogle's confidential information.
 
 2
ARGUMENTI.
 
Google Did Not Waive Its Right to Protect the Information at Issue in Its MotionBecause It Has Consistently Sought Protection for that Information.
Plaintiff does not cite any case requiring objections to the presentation of confidentialinformation be made on the record each time the information is presented. This is because itcannot. The very case Plaintiff relies upon for its waiver argument allows a party to object to theintroduction of its confidential information either before or contemporaneously with its use inopen court.
 Level 3 Commc'ns,
611 F. Supp. 2d at 583. Because Google objected to thepresentation of its confidential information in motions and in conferences with the Court beforeand during trial, Google did not waive any right to seek redress by not repeatedly interrupting thetrial each time confidential information was elicited.Further, Plaintiff’s focus on which objections occurred on the record is misplaced. AsPlaintiff is well aware, the Court held conferences about the introduction of confidentialinformation in chambers and, thus, off the record. In fact, the trial transcript, including portionsPlaintiff cites in its opposition, shows that the discussion about closing the courtroom hadoccurred off the record. (
See
Trial Tr., 367:10-20, 368:15-19.) Plaintiff has cited no authorityholding that the format of the parties’ previous discussions of confidentiality should affectGoogle’s right to seek protection of its confidential information at this time. As Google timelyobjected to the disclosure of its confidential information into the public record, there was nowaiver.
II.
 
The Court Has Not Yet Decided The Issue Before It Today – Whether to ProtectGoogle’s Highly Confidential Business Information Through Targeted Redaction othe Public Trial Transcript.
Google has sought to protect the information at issue in this motion by sealing variouspleadings and by moving to close the courtroom. The Court declined to close the courtroomduring testimony about financial matters and closed the courtroom only during testimony
 
 3regarding Google’s source code. But deciding to close the courtroom for extended periods isdifferent than redacting small portions of the transcript. Even though the Court declined to closethe courtroom during testimony about damages and certain technical matters, the Court still maynow prevent additional disclosure of Google’s confidential financial and technical informationby redacting limited portions of the trial transcript. Accordingly, contrary to what Plaintiff argues, the issue has not already been decided, and Google is entitled to seek redress for thefurther public exposure of its confidential information.
See Woven Elec. Corp. v. AdvanceGroup, Inc.
, 1991 U.S. App. LEXIS 6004, at *17-19 (4th Cir. Apr. 15, 1991) (unpublished, percuriam) (remanding case to district court to determine which portions of public trial transcriptshould be sealed to protect confidential information discussed in open court during trial).Plaintiff’s attempt to distinguish
Woven Electronics
is unavailing. The basis of theholding in
Woven Electronics
was not, as Plaintiff argues, that confidential information was“mistakenly discussed in open court.” (D.N. 812, 5 n.3.) Rather, in
Woven Electronics
, theplaintiff moved to seal the courtroom to prevent exposure of its trade secrets, and the courtdenied the motion without explanation or a review of the confidential information at issue.
Woven Elec.
, 1991 U.S. App. LEXIS 6004 at *18. Because the jury found that the plaintiff’strade secrets had been misappropriated, the Fourth Circuit noted that trade secrets were indeedinvolved in the case.
 Id.
But the Fourth Circuit nowhere suggested that a jury findingestablishing that information is confidential must precede the redaction of a trial transcriptcontaining highly confidential business information.
 Id.
 Plaintiff further claims that
Woven Electronics
“does not factually apply to this situation”(D.N. 812, 5 n.3), when, in fact, the circumstances are equivalent. In
Woven Electronics
, like inthis case, a party actively sought protection for its confidential information prior to the trial, wasdenied that protection, and, after the trial, sought to redact the confidential information from the

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