Case 1:13-cv-00919-LPS Document 216 Filed 08/28/20 Page 1 of 4 PageID #: 6264
`
`
`
`
`
`
`August 28, 2020
`VIA CM/ECF
`The Honorable Leonard P. Stark
`J. Caleb Boggs Federal Building
`844 N. King Street
`Room 6124, Unit 26
`Wilmington, DE 19801-3555
`
`Re: Arendi S.A.R.L. v. Google LLC, C.A. No. 13-919-LPS
`
`Dear Chief Judge Stark:
`
`
`In connection with the September 4, 2020 discovery dispute teleconference in the
`above-referenced action (D.I. 215), Arendi S.á.r.l. (“Arendi”) submits this opening letter
`and requests that the Court permit Arendi’s only two offices, Atle Heløy and Violette Heger-
`Hedløy, to access sale and download counts for the accused products. Arendi does not seek
`access to financial documents, just the unit numbers; yet, Google has designated these basic
`figures as “Confidential Outside Counsel Only.” Although Google bears the burden of
`demonstrating the propriety of this designation, Google has not explained why these
`summary figures are “extremely confidential and/or sensitive in nature . . . and likely to
`cause economic harm or significant competitive disadvantage” if shared with Arendi.
`Google’s unprincipled refusal to grant access to this information prevents Arendi from
`knowing the scale of its own case and making informed decisions concerning its
`prosecution.
`
`Facts:
`Pursuant to the Protective Order, the “Confidential Outside Counsel Only”
`designation is reserved for a narrow slice of material produced in this case:
`“CONFIDENTIAL INFORMATION that is extremely confidential and/or sensitive in
`nature and that the Producing Party reasonably believes the disclosure of which to anyone
`other than the persons or entities listed in paragraphs 6.C.4.a, b, d, e, f, g, and h is likely to
`cause economic harm or significant competitive disadvantage to the Producing Party.” D.I.
`16-1, at ¶6.D.1, p. 8. Arendi is not among the persons or entities listed in those paragraphs.
`See D.I. 16-1, at ¶6.C.4.a, b, d, e, f, g, & h (p. 7). The Protective Order is clear that “[t]he
`burden of demonstrating the confidential nature of any information shall at all times be and
`remain on the designating Party.” D.I. 16-1, at ¶6.D.1, p. 8. The Protective Order
`emphasizes that a “Receiving Party may at any time request that the Producing Party cancel
`or modify the Protected Information designation . . . .” D.I. 16-1, at ¶9.A, p. 15, and “for the
`avoidance of doubt” further permits the Receiving Party to seek access to Confidential
`Outside Counsel Only information if its counsel “determines that [it] is in the best interests
`of its client to review produced documents relating to damages,” D.I. 16-1, at ¶6.D.1, p. 8.
`Arendi alleges that certain Google applications and mobile devices infringe U.S.
`Patent No. 7,917,843 (“the ’843 Patent”). Google has designated the number of application
`
`
`
`
`

`

`Case 1:13-cv-00919-LPS Document 216 Filed 08/28/20 Page 2 of 4 PageID #: 6265
`
`The Honorable Leonard P. Stark
`Page 2
`
`downloads and the number of mobile devices sold since the issuance of the ’843 Patent to
`be Confidential Outside Counsel Only. By designating those unit totals as Confidential
`Outside Counsel Only, Google barred Arendi from accessing those figures. As a result,
`Arendi does not know the scale of its own lawsuit.
`On July 20, 2020, counsel for Arendi wrote to opposing counsel, requesting to share
`the disputed “unit/user/download” information with its client. Ex. A. On July 23, 2020,
`Google rejected Arendi’s request. Id. The parties met and conferred on July 27, 2020.
`Google provided no real explanation of why disclosing the aggregate unit figures to Arendi
`“is likely to cause economic harm or significant competitive disadvantage to” Google—
`despite inquiries from Arendi’s counsel. Google argued baldly that unit numbers are
`sensitive competitive information but did not explain how Arendi—a non-practicing
`entity—would benefit competitively from access to this information. Nor did Google
`explain how providing access to mere numbers, not any sensitive documents, would
`prejudice Google or place it at a competitive disadvantage.
`Rather than justify the designation, Google asserted that Arendi “waived” the right
`to request access to the data because it had previously requested sales, user and revenue data
`for the Accused Products. See, e.g., Ex. A (emails dated July 23 at 6:56 PM and February
`23 at 12:10 PM). The request to which Google referred was an email of February 23, 2020,
`where Arendi’s counsel asked to share “unit sales/users and revenue for the Accused
`Products” with its client. Ex. A.
`Arendi did not limit its request for this information to Google. Blackberry, Oath and
`Sony, which are defendants in related cases pending before the Court, have each granted
`Arendi’s request to access comparable unit data.
`
`Analysis:
`
`Under the Protective Order, “[t]he burden of demonstrating the confidential nature
`of any information shall at all times be and remain on” Google as the designating party. D.I.
`16-1, at ¶6.D.1, p. 8. Specifically, Google must show that the unit data is “extremely
`confidential and/or sensitive in nature and that the Producing Party reasonably believes the
`disclosure” to Arendi “is likely to cause economic harm or significant competitive
`disadvantage to” Google. D.I. 16-1, at ¶6.D.1, p. 8. These burdens placed on Google by the
`Protective Order are consonant with those required in this Circuit, which mandates that
`“[t]he burden of justifying the confidentiality of each and every document sought to be
`covered by a protective order remains on the party seeking the order.” Pansy v. Borough of
`Stroudsburg, 23 F.3d 772, 786–87 (3d Cir. 1994); see also id. at 787 n.17 (noting that even
`when an umbrella protective order is appropriately entered, “[a]fter delivery of the
`documents, the opposing party would have the opportunity to indicate precisely which
`documents it believed not to be confidential, and the party seeking to maintain the seal
`would have the burden of proof with respect to those documents.”).
`
`Google has not even tried to meet its burden—offering bare assertions rather than
`evidence or explanation of why sharing the annual number of downloads and sales with
`Arendi would likely cause it “economic harm or significant competitive disadvantage.”
`Arendi has asked to see only top-level download and sales data; it does not even seek basic
`
`

`

`Case 1:13-cv-00919-LPS Document 216 Filed 08/28/20 Page 3 of 4 PageID #: 6266
`
`The Honorable Leonard P. Stark
`Page 3
`
`financial information about the products such as profit and loss data. Not only is the unit
`data aggregated on an annual basis, but with respect to devices, the data that Arendi seeks
`to access does not even identify Accused Products individually. Rather, it aggregates sales
`of multiple Google devices into five broad categories. With respect to app downloads,
`Google itself publishes a running tally of the total number of installs for each app on its Play
`Store, Ex. B, belying its contention that the data Arendi seeks is “extremely” sensitive and
`likely to cause “economic harm or significant competitive disadvantage.”1
`
`Google must show that the disclosure to Arendi would give rise to its hypothetical
`injury. Arendi has not requested the full de-designation of the unit data; rather, it seeks
`access for its officers Atle Hedløy and Violette Heger-Hedløy to enable their intelligent
`prosecution of Arendi’s case. Neither Arendi nor its two officers are competitors of Google
`and, therefore, disclosure does not pose any competitive risk to Google.
`
`Blackberry, Oath and Sony have each agreed to grant Arendi access to their
`comparable sales or download data. Like Google, each of these entities are defendants in a
`related case brought by Arendi to enforce its rights under the same ’843 Patent. Unlike
`Arendi, each of these entities directly competes with Google’s lines of software or mobile
`devices. The agreement of these similarly situated entities undermines Google’s bare
`assertion that releasing unit numbers are “extremely sensitive” and their release to Arendi
`would result in “economic harm or significant competitive disadvantage.”
`
`Whereas Google has offered no explanation of how its own interest would be
`harmed, Google’s embargo of unit data does harm Arendi’s ability to manage its own
`actions and impedes the fairness and efficiency of this litigation. Arendi, for example,
`cannot intelligently discuss with its counsel how to focus its resources in this case; it cannot
`intelligently narrow the issues or products involved; and it can neither evaluate the propriety
`of settlement nor formulate a reasonable settlement demand.
`Recognizing that it cannot justify its confidentiality designation, Google raises the
`specter of waiver. Google overlooks that the Protected Order states, “A Receiving Party
`may at any time request that the Producing Party cancel or modify the Protected
`Information designation with respect to any document or information contained therein.”
`D.I. 16-1, ¶ 9.A (p. 15) (emphasis added). Arendi is availing itself of that right.
`Moreover, the immediate impetus for Arendi’s request both in February and July
`was the impending deadline for opening expert reports. Those reports had been due on April
`24, D.I. 206, but were delayed to August 7 due to complications arising from the ongoing
`COVID-19 pandemic, D.I. 209. Thus, even if the Protective Order did not explicitly state
`that a party could request modification of a designation “at any time,” Arendi’s request is
`timely under the circumstances.
`
`Therefore, Arendi respectfully asks that the Court grant Arendi’s officers, Atle
`Hedløy and Violette Heger-Hedløy, access to the requested unit information.
`
`
`
`
`1 Regrettably the data published on Play Store cannot satisfy Arendi’s needs in this lawsuit.
`For example, the data is not limited to the relevant damages period or geographic area.
`
`

`

`Case 1:13-cv-00919-LPS Document 216 Filed 08/28/20 Page 4 of 4 PageID #: 6267
`
`The Honorable Leonard P. Stark
`Page 4
`
`Respectfully,
`
`/s/ Eve H. Ormerod
`
`Eve H. Ormerod (No. 5369)
`
`cc:
`
`Clerk of Court (via CM.ECF)
`All Counsel of Record (via CM/ECF)
`
`
`
`