Case 1:13-cv-00919-LPS Document 217 Filed 09/01/20 Page 1 of 4 PageID #: 6278
`
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`David E. Moore
`Partner
`Attorney at Law
`dmoore@potteranderson.com
`302 984-6147 Direct Phone
`
`September 1, 2020
`
`VIA ELECTRONIC-FILING
`The Honorable Leonard P. Stark
`J. Caleb Boggs Federal Building
`844 N. King Street
`Wilmington, DE 19801
`
`Re: Arendi S.A.R.L. v. Google LLC, C.A. No. 13-919-LPS
`
`Dear Chief Judge Stark:
`
`Pursuant to the Court’s Order (D.I. 215), Defendant Google LLC (“Google”) submits this letter
`brief in response to Plaintiff Arendi S.à.r.l.’s (“Arendi”) request that the Court permit Atle Hedløy
`and Violette Heger-Hedløy, the sole officers of Arendi, to access Google’s highly confidential
`information. The Court should deny Arendi’s request.
`
`Background: During discovery, Google produced information appropriately designated as Highly
`Confidential under the Protective Order, including internal, detailed device sales and app
`download information. In February 2020, counsel for Arendi requested permission to share
`“sales/users and revenue for the Accused Products” with the Hedløys. (D.I. 216-1.) Google timely
`objected to the request. (Id.) Arendi did not respond until approximately five months later, in July
`2020, when it renewed its request. (Id.) Google again timely objected (id.), which led to a joint
`discovery dispute letter (D.I. 212). In its letter brief, Arendi requests the Hedløys be given access
`to Google’s highly confidential “unit information,” which Arendi defines as “the number of
`application downloads and the number of mobile devices sold[.]” (D.I. 216 at 1-2.)
`
`Analysis: At its heart, Arendi’s challenge is not to the designation of Google’s confidential
`documents, but rather a request to modify the Protective Order to provide special “access for its
`officers” to certain information in the Highly Confidential documents. (D.I. 216 at 3.) “Good
`cause” does not exist for this request. Moreover, the information was properly designated and there
`is risk of harm to Google if the information is disclosed to the Hedløys.
`
`Good Cause Does Not Exist to Modify the Protective Order
`“Good cause” is required to modify the Protective Order. PhishMe, Inc. v. Wombat Security Techs.,
`Inc., C.A. No. 16-403-LPS-CJB, 2017 WL 4138961, at *2 (D. Del. Sept. 8, 2017). Here, Arendi
`has posited some vague notion that the Hedløys cannot manage the litigation and intelligently
`discuss the case with counsel without knowing exact sales figures and download information.
`Arendi has not cited a single case where detailed, non-public sales and download information was
`required to be provided to a patent holder’s officers as part of case evaluation. Arendi is
`represented by experienced counsel who can convey non-confidential information about the
`magnitude of the sales/downloads of the accused products in order to allow Arendi to make
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`Case 1:13-cv-00919-LPS Document 217 Filed 09/01/20 Page 2 of 4 PageID #: 6279
`The Honorable Leonard P. Stark
`September 1, 2020
`Page 2
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`intelligent decisions, much as Google must similarly rely on its counsel. It is not clear—and Arendi
`never explains—how unit information would allow Arendi to make the decisions on resources,
`accused products, and settlement for which Arendi claims it is required. (D.I. 216 at 3.) Further,
`Arendi’s long delay in seeking this information defeats Arendi’s claim of the purported “need” for
`its officers to review Google’s confidential information.1
`
`Moreover, even if Arendi could articulate good cause, as discussed below, disclosure to the
`Hedløys is improper because they are involved in “competitive decisionmaking” such that it would
`“present an unacceptable risk of inadvertent disclosure or competitive misuse of confidential
`information[.]” PhishMe, 2017 WL 4138961, at *3 (citing U.S. Steel Corp. v. United States, 730
`F.2d 1465, 1467–68 (Fed. Cir. 1984)); Ex. 1 (T-Jat Sys. 2006 Ltd. v. Expedia, Inc., et al., C.A. No.
`16-581-RGA, ECF No. 87 (D. Del. Oct. 19, 2018)) at 4-6 (rejecting claim that non-attorney
`employees needed access to confidential materials for “case strategy”). Arendi has not offered
`evidence, such as declarations from the Hedløys, to the contrary. Providing Google’s confidential
`information to Arendi’s officers creates a high risk for inadvertent disclosure or competitive
`misuse, and should not be permitted.
`
`The Disputed Information Is Highly Confidential and Has Not Been Publicly Disclosed
`The precise amount of app downloads and unit sales of its devices is commercially sensitive
`information that Google does not disclose publicly because it could be used improperly to target
`Google or its products. Indeed, the Protective Order specifically presumes that such information
`deserves the highest confidentiality designation, which would prevent disclosure to the Hedløys:
`“The parties agree that the following information, if non-public, shall be presumed to be
`‘CONFIDENTIAL OUTSIDE COUNSEL ONLY’: (a) trade secrets, marketing, financial, sales,
`web traffic, . . . or customer data or information[.]” (D.I. 16-1 ¶ 6(D)(1) (emphasis added).) This
`presumption is consistent with the long-held view that internal financial information (such as the
`type in dispute here) is the type of competitively sensitive information that deserves protection.
`See e.g., Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d 503, 510 (D. Del. 2012) (granting request
`for redaction of financial information from a transcript); Apple Inc. v. Samsung Elecs. Co., Ltd.,
`727 F.3d 1214, 1224-26 (Fed. Cir. 2013) (finding court abused discretion in not sealing financial
`information); see also Fed. R. Civ. P. 26(c)(1)(G) (providing that courts may grant a protective
`order provision that allows for “commercial information not [to] be revealed or [to] be revealed
`only in a specified way”).
`
`In essence, Arendi is seeking to modify the Protective Order to allow the Hedløys access to Google
`information that was designated as Highly Confidential under the Protective Order, not challenge
`
`1 Arendi raised the issue in February 2020 and Google responded within the requisite timeframe.
`(D.I. 216-1.) While Arendi argues that it may challenge designations “at any time” (D.I. 216 at 3),
`it ignores that the Protective Order provision refers to an initial challenge of the designation (D.I.
`16-1 ¶ 9(A)). Once a party raises a challenge to a designation, a specific procedure is laid out in
`the Protective Order that requires, inter alia, that “[i]f an agreement cannot be reached within five
`(5) business days of the conference, the Receiving Party shall request that the Court cancel or
`modify a designation.” (Id. ¶ 9(B) (emphasis added).) There are no allowances for serial or repeat
`challenges to designations. (See id.) Arendi was required to move the Court nearly six months ago
`(D.I. 216-1) and its failure to do so is a waiver.
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`Case 1:13-cv-00919-LPS Document 217 Filed 09/01/20 Page 3 of 4 PageID #: 6280
`The Honorable Leonard P. Stark
`September 1, 2020
`Page 3
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`Google’s designation.2 (D.I. 216 at 3 (“Arendi has not requested the full de-designation of the unit
`data[.]”).) Arendi attempts to justify the disclosure by arguing that some of the information it now
`wants to show its officers is public information. (D.I. 216 at 3.) However, the information Arendi
`cites shows only high-level, inexact numbers of app downloads (i.e., “500M+”) (D.I. 216-2), and
`it contains no unit information for the accused devices. This public information is a far cry from
`the detailed and targeted information that Google produced in this litigation. Arendi itself
`recognizes that the public information is general and “not limited to the relevant damages period
`or geographic area.” (D.I. 216 at 3 n.1.) Axiomatically, if the public information were sufficient,
`Arendi would not be seeking to disclose Google’s Highly Confidential, internal information to the
`Hedløys.
`
`Arendi makes much of the fact that some defendants have allegedly agreed to allow the Hedløys
`access. (D.I. 216 at 2.) This argument is unavailing. Arendi noticeably ignores LG Electronics,
`Inc., Apple Inc., and Motorola Mobility LLC in its list of defendants, suggesting they have not
`agreed. Further, there is no evidence before the Court that such information is comparable to the
`information sought from Google, or that the identified defendants maintain their information as
`Google does. Finally, what others choose to do with their information is irrelevant to the protection
`of Google’s confidential information under the Protective Order. (D.I. 16-1.)
`
`The Hedløys Are Competitors of Google and Disclosure to Them Could Harm Google
`Arendi also argues that it/Hedløys are not competitors of Google, thus disclosure of the
`information to them would not harm Google. Arendi’s argument has been rejected in this District.
`Arendi, through the Hedløys, is operating as a patent licensing/assertion company that has been
`pursuing Google for damages for many years. Providing the Hedløys with detailed information
`about Google’s sales and app downloads would provide the Hedløys with detailed insight
`regarding Google’s products and allow the Hedløys to target Google (and/or other Android device
`manufacturers) in future licensing/assertion actions. This knowledge could lead to economic harm
`and significant competitive disadvantage to Google, and also risks inadvertent disclosure.
`
`This District has recognized that through the assertion of patents, patent owners/company
`principals are competitors of a defendant, like Google, because they are “essentially declaring that
`Defendants are improperly competing with it in the marketplace, in contravention of [the patent
`owner’s] patent monopoly on that technology.” See Blackbird Tech LCC v. Service Lighting &
`Elec. Supplies, Inc., C.A. No. 15-53-RGA, 2016 WL 2904592, at *4 (D. Del. May 18, 2016). For
`Arendi “to seek to hold [Google] liable for improperly competing in the marketplace and turn
`around and say it in no way competes with [Google] is too convenient, and other courts have
`similarly given little weight to such arguments.” Id. (citing ST Sales Tech Holdings, LLC v.
`Daimler Chrysler Co., Civil Action No. 6:07–CV–346, 2008 WL 5634214, at *6 (E.D. Tex. Mar.
`14, 2008)). Thus, the Blackbird court required significant restrictions on Blackbird’s officers if
`they wanted to receive confidential information, including restrictions on further lawsuits. Id. at
`*6. The same rationale concerning competition applies here, and the most efficient way to protect
`Google from potential harm is by adhering to the Protective Order and prohibiting disclosure of
`the requested information.
`
`2 Arendi’s sole case citation is inapposite for the same reason: Arendi does not challenge the
`confidentiality designation of the underlying documents. (D.I. 216 at 2.)
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`Case 1:13-cv-00919-LPS Document 217 Filed 09/01/20 Page 4 of 4 PageID #: 6281
`The Honorable Leonard P. Stark
`September 1, 2020
`Page 4
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`Respectfully,
`
`/s/ David E. Moore
`
`David E. Moore
`
`DEM:nmt/6856283/40549
`
`Enclosures
`cc:
`Counsel of record (via electronic mail)
`
`