‘Show Cause’ for Motion to Seal

In this litigation over plaintiff company’s complaint that AOL, Google and other defendants have used plaintiff’s search advertising systems to infringe two of plaintiff’s patents, the magistrate judge for the Norfolk U.S. District Court says the parties’ briefs and exhibits do not show a clear basis for sealing these materials and the parties are ordered to show cause why the specified materials should not be unsealed and filed in the public record.

The documents at issue include: routine meet-and-confer correspondence between counsel in which search criteria for electronically stored information is discussed; meet-and-confer correspondence addressing issues with respect to production of ESI, a possible merger of plaintiff’s parent company and the scope of deposition topics; and plaintiff’s second preliminary disclosure of infringement contentions with respect to Google AdWords and Google AdSense for Search.

The parties merely characterize these materials, in conclusory fashion, as “proprietary and confidential information” and as “data that is and should be kept confidential.” Neither side has provided any specific information to suggest that the parties’ interests in maintaining the confidentiality of these materials heavily outweigh the public interest in access. Absent any specific information to establish a significant interest that outweighs the presumption of access, the court cannot grant the motion to file these materials under seal. Moreover, the court’s in camera review of the materials suggest they contain little, if any, confidential information at all.

The court is sensitive to the potential damage that might be done should any actual confidential information be disclosed to the public prematurely. The court orders the parties to show cause why the materials described above should not be unsealed and filed in the public record.

I/P Engine Inc. v. AOL Inc. (Stillman) No. 2:11cv512, Sept. 13, 2012; USDC at Norfolk, Va.; Donald C. Schultz for plaintiff; Stephen E. Noona for defendants. VLW 012-3-458, 9 pp.