Case 1:14-cv-02396-PGG-SN Document 247 Filed 04/07/21 Page 1 of 3
`
`
`
`
`
`ANDREW TRASK
`(202) 434-5023
`atrask@wc.com
`
`
`
`
`
`VIA ECF
`
`April 7, 2021
`
`
`
`Hon. Paul G. Gardephe
`United States District Court
`Southern District of New York
`40 Foley Square, Room 2204
`New York, NY 10007
`
`
`Re: Network-1 Technologies, Inc. v. Google LLC, et al., Nos. 1:14-cv-2396 &
`1:14-cv-9558 (S.D.N.Y.)
`
`
`Dear Judge Gardephe:
`
`I write on behalf of Defendants Google LLC and YouTube, LLC (collectively, “Google”)
`
`to request leave to file under seal two exhibits submitted in connection with the parties’ joint
`letter regarding a dispute about Google’s Supplemental Responses to Interrogatory Nos. 7 and 13
`and Google’s accompanying document production. Specifically, Google seeks to file under seal
`the Supplemental Interrogatory Responses themselves, as well as an excerpt from the report of
`Network-1’s damages expert. In each case, Google seeks to redact only small portions of the
`documents, not the documents in their entirety. Plaintiff Network-1 Technologies, Inc.
`(“Network-1”) does not object to the proposed redactions.1
`
`With respect to the Supplemental Interrogatory Responses, the redacted phrases discuss a
`
`confidential internal financial metric that Google uses to track and allocate costs. Additional
`information in the response provides corresponding dollar figures for the costs at issue; that
`information will be filed publicly. Taken together, however, the discussion of the internal
`financial metric and the monetary figures disclose Google’s conversion rate between the metric
`and dollars. This conversion rate is highly confidential and sensitive commercial information
`that is not disclosed publicly, or even to many Google employees. Ex. A.
`
`
`1 In accordance with Rule II.B of the Court’s Individual Rules of Practice in Civil Cases, the
`parties will publicly file the document with the proposed redactions and electronically file under
`a seal a copy of the unredacted document with the redactions highlighted.
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 247 Filed 04/07/21 Page 2 of 3
`
`
`
`
`
`
`Hon. Paul G. Gardephe
`April 7, 2021
`Page 2
`
`As for the excerpt from the report of Network-1’s damages expert, Google seeks to redact
`three implied royalty rate percentages, but not the total royalty amounts that Network-1 seeks.
`Similar to the conversion discussed above, the implied royalty rate (which Google seeks to
`redact) combined with the total royalty amount (which will be filed publicly) would allow a
`reader to calculate the royalty base of YouTube’s U.S. Content ID-related revenue. This is
`sensitive commercial information that Google does not track internally or report publicly. Ex. A.
`
`The proposed redactions are necessary to avoid harm that could result from allowing
`competitors to access highly confidential information about Google’s costs of doing business and
`the revenue specific business segments generate. Ex. A; see, e.g., New York v. Actavis, PLC,
`2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014) (observing that “[c]ost data is sensitive and
`potentially damaging if shared with competitors”). Google respectfully submits that the “privacy
`interests” implicated by these internal financial metrics outweigh any “presumption of access”
`that may attach by virtue of their filing in this action. Lugosch v. Pyramid Co. of Onondaga, 435
`F.3d 110, 120 (2d Cir. 2006); see, e.g., Louis Vuitton Malletier S.A. v. Sunny Merchandise Corp.,
`97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (approving redactions that were “generally limited to
`specific business information and strategies, which, if revealed, may provide valuable insights
`into a company’s current business practices that a competitor would seek to exploit”) (internal
`quotation marks omitted); In re Keurig Green Mountain Coffee Antitrust Litig., 2014 WL
`12772236, at *2 (S.D.N.Y. Nov. 5, 2014) (approving narrow redactions to “safeguard …
`sensitive commercial information”); GoSMiLE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F.
`Supp. 2d 630, 649–50 (S.D.N.Y. 2011) (concluding that certain exhibits should remain sealed
`because “the privacy interests of the defendants” in “proprietary material” relating to their “costs
`and budgeting” “outweigh the presumption of public access”).
`
`The proposed sealing is “narrowly tailored to achieve” the important objectives of
`
`preserving the confidentiality of Google’s internal financial metric and revenue calculations, and
`preventing the competitive harm that could result from disclosure. See Lugosch, 435 F.3d at
`121. Although Google seeks leave to seal specific phrases that would reveal Google’s sensitive
`commercial information, it is not asking the Court to seal entire briefs or shield the parties’
`arguments or legal theories from public view. Moreover, Google’s targeted redactions preserve
`the privacy of particular confidential commercial details without impeding the public disposition
`of this matter. The redacted information is contained in documents relevant to the Court’s
`resolution of the dispute the parties present, but the redacted information is not itself necessary to
`the outcome. For example, Google does not rely on the paragraph of Network-1’s expert’s
`report that contains the proposed redactions; that paragraph simply happens to be on the same
`page as the material to which Google cites. The proposal therefore is fully consistent with the
`balance that courts must strike in determining which materials merit sealing. See, e.g.,
`GoSMiLE, 769 F. Supp. 2d at 649–50 (S.D.N.Y. 2011); BASF Plant Sci., LP v. Commonwealth
`Sci. & Indus. Research Org., 2020 WL 973751, at *15–16 (E.D. Va. Feb. 7, 2020) (sealing
`documents that reflect “confidential commercial information” because, among other things, “the
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 247 Filed 04/07/21 Page 3 of 3
`
`
`
`
`
`
`Hon. Paul G. Gardephe
`April 7, 2021
`Page 3
`
`parties have filed detailed public versions, which do not seek to completely seal their briefing,
`outlining in detail the legal and factual issues raised by the motions”).
`
` For the foregoing reasons, Google respectfully requests leave to file redacted versions of
`
`the two aforementioned exhibits in connection with the parties’ discovery dispute.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Enclosures
`
`Cc: Counsel of Record (via ECF)
`
`Sincerely,
`
`/s/ Andrew V. Trask
`
`Andrew V. Trask
`
`