Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 1 of 6 PageID #: 51332
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`C.A. No. 13-919-JLH
`
`
`
`
`) ) ) ) ) ) ) ) ) )
`
`
`
`
`
`ARENDI S.A.R.L.,
`
`
`Plaintiff,
`
`
`
`v.
`
`GOOGLE LLC,
`
`
`
`
`Defendant.
`
`
`
`
`
`NON-PARTY APPLE INC.’S REQUEST TO SEAL PORTIONS
`OF THE TRIAL TRANSCRIPT FROM APRIL 26, 2023
`
`Non-party Apple Inc. (“Apple”), by and through its attorneys, hereby moves to seal
`
`certain limited portions of the trial transcript that the Court conditionally sealed by oral order at
`
`trial on April 26, 2023.1 Apple does not seek to redact entire pages of the transcript, but instead
`
`seeks to redact very minimal specifics from the publicly-available transcript.
`
`Apple alerted the Court to this request during trial on April 26, 2023, and pursuant to D.
`
`Del. L.R. 7.1.1, Apple conferred with Plaintiff and Defendant regarding whether they opposed
`
`this request to seal. (See 4/26 PM Transcript at 7:4-21.) Both parties indicated that they did not.
`
`(Id.)
`
`I.
`
`FACTUAL BACKGROUND
`
`During the April 26, 2023, redirect examination of plaintiff Arendi S.A.R.L.’s
`
`(“Plaintiff”) damages expert, Mr. Roy Weinstein, Plaintiff elicited, and Mr. Weinstein provided,
`
`
`1 In a forthcoming motion, Apple will also request sealing of other portions of the trial transcript
`from sealed portions of testimony to which Apple currently does not have access.
`
`
`
`

`

`Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 2 of 6 PageID #: 51333
`
`
`
`certain testimony that contained Apple confidential business information in open court, without
`
`requesting that the courtroom be sealed.
`
`In particular, Mr. Weinstein testified regarding his analysis of the Settlement and License
`
`Agreement effective September 13, 2021 between Apple and Plaintiff, Onebutton S.A.R.L.,
`
`Violette Heger-Hedløy, and Atle Hedløy (the “Apple Agreement”), and disclosed the amount of
`
`the license payment in the Apple Agreement. (See 4/26/23 Tr. at 126:23-127:8.) In addition, in a
`
`follow-up line of questioning, Plaintiff’s counsel, Seth Ard, disclosed the total amount of
`
`damages Mr. Weinstein opined would be owed to Plaintiff should Plaintiff have prevailed in its
`
`prior lawsuit against Apple, Arendi S.A.R.L. v. Apple Inc., C.A. No. 1:12-cv-01596 (D. Del.) (the
`
`“Apple Lawsuit”), and elicited testimony from Mr. Weinstein regarding his damages analysis
`
`with respect to Apple in the Apple Lawsuit. (See id. at 127:9-128:6.) Plaintiff did not request to
`
`seal the courtroom before eliciting such testimony about the Apple Agreement or the Apple
`
`Lawsuit, and did not seek any corrective measures after the fact of such testimony, despite being
`
`asked to do so by counsel for Apple.
`
`The above-described testimony, elicited and provided in open court, violates Plaintiff’s
`
`confidentiality obligations to Apple set forth in Section 7 of the Apple Agreement, which
`
`requires Plaintiff to keep the specifics of the agreement strictly confidential with certain
`
`exceptions, none of which were met here. (See PX0066, Apple Agreement, Section 7.1.) The
`
`above-described testimony also violates Plaintiff’s obligations under the Protective Order entered
`
`in the Apple Lawsuit.
`
`
`
`Page 2
`
`

`

`Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 3 of 6 PageID #: 51334
`
`II.
`
`INFORMATION TO BE SEALED
`
`Apple respectfully requests the transcript be sealed consistent with the Rules and the law
`
`of this Court and the Third Circuit. Specifically, with respect to the portion of the trial transcript
`
`
`
`to which Apple has access, it requests sealing of the following:
`
`a) The dollar amount set forth in Page 127, Line 1;
`
`b) The dollar amount set forth in Page 127, Line 2; and
`
`c) The dollar amount set forth in Page 127, Line 20.2
`
`III. LEGAL STANDARD
`
`While the public has a common law right of access to judicial proceedings, that right is
`
`“not absolute.” Littlejohn v. BIC Corp., 851 F.2d 673, 677-78 (3d Cir. 1988). The “strong
`
`common law presumption of access must be balanced against the factors militating against
`
`access.” Id. at 678 (internal quotations and citation omitted). This Court, thus, has discretion to
`
`limit or deny access to court records. See id.
`
`The party seeking protection must demonstrate that “the material is the kind of
`
`information that courts will protect and that disclosure will work a clearly defined and serious
`
`injury to the party seeking closure.” In re Avandia Mrktg., Sales Practices & Prods. Liab. Litig.,
`
`924 F.3d 662, 672 (3d. Cir. 2019). In determining whether the Court may seal portions of the
`
`trial transcript, it “must articulate the compelling, countervailing interests to be protected, make
`
`specific findings as to the effects of disclosure, and provide an opportunity for interested third
`
`parties to be heard. Id. at 672- 673. Courts routinely protect settlement agreements and their
`
`terms from public disclosure. Amgen Inc. v. Amneal Pharmaceuticals LLC, No. 16-853, 2021
`
`
`2 References to the transcript are to the real-time version of the trial transcript. For an avoidance
`of doubt, the redactions pertain to the questions and testimony between 12:34pm and 12:36pm
`on April 26, 2023.
`
`
`
`Page 3
`
`

`

`Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 4 of 6 PageID #: 51335
`
`
`
`WL 4133516, *5 (D. Del. Sept. 10, 2021) (“Courts protect settlement agreements when public
`
`disclosure will reveal a signatory’s “business and litigation strategies to competitors undermining
`
`its future bargaining positions.”) (citing Volkswagen Grp. of Am., Inc. v. N. Am. Auto. Serv., Inc.,
`
`Case No. 20-15319, 2020 WL 9211151, at *2 (D.N.J. Nov. 30, 2020) (granting motion to seal
`
`settlement agreements)); Takeda Pharms. U.S.A., Inc. v. Mylan Pharms., Inc., No. 19-2216, 2019
`
`WL 6910264, at *2 (D. Del. Dec. 19, 2019) (permitting sealing of information from confidential
`
`settlement and license agreement); Kaleo, Inc. v. Adamis Pharms. Corp., C.A. No. 19-917, 2019
`
`WL 11680196, at *2 (D. Del. July 16, 2019) (permitting sealing of licensing information
`
`“because this information provides subsequent licensees insight into the factors beyond the
`
`financial terms that Adamis considers during licensing.”);Genentech, Inc. v. Amgen, Inc., No. 17-
`
`1407, 2020 WL 9432700, at *6 (D. Del. Sept. 2, 2020) (recommending continued sealing of
`
`settlement agreements because disclosure “could place the parties at a demonstrable
`
`disadvantage in navigating and negotiating other litigation contests with competitors in the same
`
`pharmaceutical space”), R&R adopted, 2020 WL 9432702 (D. Del. Oct. 1, 2020).
`
`IV. ARGUMENT
`
`Apple requests that the Court conditionally seal the portion of the information set forth in
`
`Section II(a) through (c), above, because (b) contains confidential business information for
`
`Apple, and (a) and (c) contain information confidentially produced in litigation which, when
`
`coupled with the information contained in (b), can provide harmful insight into Apple’s litigation
`
`and patent licensing strategy.
`
`As explained in the Declaration of Matthew R. Clements, filed concurrently herewith, the
`
`amount of the Apple Agreement is among Apple’s most highly sensitive and protected business
`
`information, and Apple would be seriously harmed if licensors and/or Apple competitors had
`
`
`
`Page 4
`
`

`

`Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 5 of 6 PageID #: 51336
`
`
`
`open access to this information. (Declaration of Matthew R. Clements in support of Motion to
`
`Seal (“Clements Decl.”) ¶¶ 4, 5.) Apple would be harmed in its many active and ongoing
`
`negotiations with various patent licensors and litigants if the amount and terms of the Apple
`
`Agreement were publicly known. (Id. ¶ 5.) Apple would also be harmed if its competitors, such
`
`as Google, had this level of insight into the non-public and confidential resolution of negotiations
`
`with a patent licensor such as Arendi. (Id. ¶ 6.)
`
`Moreover, Apple expends significant time and resources to maintain the confidentiality
`
`and nonpublic nature of the Apple Agreement and similar documents and information. (Id. ¶ 8.)
`
`Even within Apple, the Apple Agreement is not disseminated or accessible except to a small
`
`group of Apple employees who maintain its confidentiality. (Id. ¶ 9.) Disclosure of information
`
`produced in another litigation in connection with the amount that Apple settled that litigation for
`
`would also harm Apple in its negotiations with litigants and patent holders in the future. (Id.
`
`¶ 10.)
`
`That Apple is a non-party further supports maintaining information about the Apple
`
`Agreement. See United States v. Dentsply Int’l, Inc., 187 F.R.D. 152, 160 n.7 (D. Del. 1999)
`
`(“The risk of injury to the owner of confidential information is presumably greater where the
`
`owner was never in a position to accept or reject the risk of disclosure of confidential
`
`information. . . . [T]he nonparty has never undertaken the risks of disclosure.”). Apple’s request
`
`is essential to protect Apple as a non-party. Apple therefore requests to seal the portions of the
`
`transcript described in Section II(a) through (c), above.
`
`V.
`
`CONCLUSION
`
`For these reasons, Apple respectfully requests that the Court exercise its power to seal
`
`here, where Apple, a non-party to this case, risks harm from further dissemination of its license
`
`
`
`Page 5
`
`

`

`Case 1:13-cv-00919-JLH Document 491 Filed 04/26/23 Page 6 of 6 PageID #: 51337
`
`information, and seal the narrowly-identified information set forth in Section II(a) through (c),
`
`
`
`above.
`
`Dated: April 26, 2023
`
`
`
`Respectfully submitted,
`
`DLA PIPER LLP (US)
`
`
`
`
`
`
`/s/ Brian A. Biggs
`Brian A. Biggs (No. 5591)
`1201 North Market Street, Suite 2100
`Wilmington, DE 19801
`Tel: (302) 468-5700
`brian.biggs@us.dlapiper.com
`
`Attorneys for Defendant Apple Inc.
`
`
`
`
`Page 6
`
`