Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 1 of 6 PageID #: 56903
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`ARENDI S.A.R.L.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`[CORRECTED] RENEWED MOTION OF NON-PARTY APPLE INC.’S
`TO SEAL PORTIONS OF THE TRIAL TRANSCRIPT
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`Non-party Apple Inc. (“Apple”), by and through its attorneys, hereby moves to seal
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`certain limited portions of the trial transcript. Apple does not seek to redact entire pages of the
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`transcript, but instead seeks to redact very minimal specifics from the publicly-available
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`transcript.
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`Apple alerted the Court to this request during trial on April 26, 2023, and reiterated the
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`request on May 2, 2023. This Renewed Motion incorporates and supersedes that filed by Apple
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`on April 26, 2023 at Dkt. No. 491.
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`I.
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`FACTUAL BACKGROUND
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`Non-party Apple Inc. sent a representative to this trial to confirm that the parties did not
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`improperly disclose Apple confidential information during trial. Nevertheless, during the
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`April 26, 2023, redirect examination of plaintiff Arendi S.A.R.L.’s (“Plaintiff”) damages expert,
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`Mr. Roy Weinstein, Plaintiff’s counsel, Susman Godfrey, elicited, and Mr. Weinstein provided,
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`certain testimony that contained Apple confidential business information in open court, without
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`requesting that the courtroom be sealed.
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`Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 2 of 6 PageID #: 56904
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`In particular, Mr. Weinstein testified regarding his analysis of the Settlement and License
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`Agreement effective September 13, 2021 between Apple and Plaintiff, Onebutton S.A.R.L.,
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`Violette Heger-Hedløy, and Atle Hedløy (the “Apple Agreement”), and disclosed the amount of
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`the license payment in the Apple Agreement. In addition, in a follow-up line of questioning,
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`Plaintiff’s counsel, Seth Ard of Susman Godfrey, disclosed the total amount of damages Mr.
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`Weinstein opined would be owed to Plaintiff should Plaintiff have prevailed in its prior lawsuit
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`against Apple, Arendi S.A.R.L. v. Apple Inc., C.A. No. 1:12-cv-01596 (D. Del.) (the “Apple
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`Lawsuit”), and elicited testimony from Mr. Weinstein regarding his damages analysis with
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`respect to Apple in the Apple Lawsuit. Plaintiff did not request to seal the courtroom before
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`eliciting such testimony about the Apple Agreement or the Apple Lawsuit, and did not seek any
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`corrective measures after the fact of such testimony, despite being asked to do so by counsel for
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`Apple.
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`The above-described testimony, elicited and provided in open court, violates Plaintiff’s
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`confidentiality obligations to Apple set forth in Section 7 of the Apple Agreement, which
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`requires Plaintiff to keep the specifics of the agreement strictly confidential with certain
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`exceptions, none of which were met here. (See PX0066, Apple Agreement, Section 7.1.) The
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`above-described testimony also violates Plaintiff’s obligations under the Protective Order entered
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`in this litigation and the Apple Lawsuit.
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`In addition, Apple has now had the opportunity to review the sealed portions of the trial
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`transcript and seeks to seal limited information in the Day 1 Transcript (April 24, 2023), the Day
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`3 Transcript (April 26, 2023), and the Day 6 Transcript (May 1, 2023). In addition, Apple seeks
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`to seal Exhibit PX-66, the Apple Agreement, in its entirety.
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`Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 3 of 6 PageID #: 56905
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`II.
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`INFORMATION TO BE SEALED
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`Apple respectfully requests the transcript be sealed consistent with the Rules and the law
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`of this Court and the Third Circuit. Specifically, with respect to the portion of the trial transcript
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`to which Apple has access, it requests sealing of the following:
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`1. The Day 1 Transcript:
`a. Page 164, line 22
`b. Page 231, lines 13, 25
`c. Page 232, line 2
`d. Page 246, line 3
`e. And any portions of indexes related to these redactions
`2. The Day 3 Transcript:
`a. Page 577, line 21
`b. Page 578, line 11
`c. Page 580, line 12
`d. Page 591, line 22
`e. Pag 592, line 2
`f. Page 622, line 4
`g. Page 623, lines 21, 23
`h. Page 624, line 7
`i. Page 625, lines 6, 9
`j. Page 641, lines 23, 24
`k. Page 642, line 17
`l. Corresponding portions of the Index
`3. The Day 6 Transcript:
`a. Page 1286, lines, 5, 15, and 18
`b. Page 1290, line 7
`c. Page 1294, lines 11, 13, 15
`d. Page 1295, line 2, 3, 12
`e. Page 1326, lines 4, 6, 9, 10
`f. And any portions of indexes related to these redactions
`4. Exhibit PX-66 in its entirety
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`Concurrently herewith, Apple will lodge with the Court the redacted transcripts for the Court’s
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`review.
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`III. LEGAL STANDARD
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`While the public has a common law right of access to judicial proceedings, that right is
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`“not absolute.” Littlejohn v. BIC Corp., 851 F.2d 673, 677-78 (3d Cir. 1988). The “strong
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`Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 4 of 6 PageID #: 56906
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`common law presumption of access must be balanced against the factors militating against
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`access.” Id. at 678 (internal quotations and citation omitted). This Court, thus, has discretion to
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`limit or deny access to court records. See id.
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`The party seeking protection must demonstrate that “the material is the kind of
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`information that courts will protect and that disclosure will work a clearly defined and serious
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`injury to the party seeking closure.” In re Avandia Mrktg., Sales Practices & Prods. Liab. Litig.,
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`924 F.3d 662, 672 (3d. Cir. 2019). In determining whether the Court may seal portions of the
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`trial transcript, it “must articulate the compelling, countervailing interests to be protected, make
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`specific findings as to the effects of disclosure, and provide an opportunity for interested third
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`parties to be heard. Id. at 672- 673. Courts routinely protect settlement agreements and their
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`terms from public disclosure. Amgen Inc. v. Amneal Pharmaceuticals LLC, No. 16-853, 2021
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`WL 4133516, *5 (D. Del. Sept. 10, 2021) (“Courts protect settlement agreements when public
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`disclosure will reveal a signatory’s “business and litigation strategies to competitors undermining
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`its future bargaining positions.”) (citing Volkswagen Grp. of Am., Inc. v. N. Am. Auto. Serv., Inc.,
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`Case No. 20-15319, 2020 WL 9211151, at *2 (D.N.J. Nov. 30, 2020) (granting motion to seal
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`settlement agreements)); Takeda Pharms. U.S.A., Inc. v. Mylan Pharms., Inc., No. 19-2216, 2019
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`WL 6910264, at *2 (D. Del. Dec. 19, 2019) (permitting sealing of information from confidential
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`settlement and license agreement); Kaleo, Inc. v. Adamis Pharms. Corp., C.A. No. 19-917, 2019
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`WL 11680196, at *2 (D. Del. July 16, 2019) (permitting sealing of licensing information
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`“because this information provides subsequent licensees insight into the factors beyond the
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`financial terms that Adamis considers during licensing.”);Genentech, Inc. v. Amgen, Inc., No. 17-
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`1407, 2020 WL 9432700, at *6 (D. Del. Sept. 2, 2020) (recommending continued sealing of
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`settlement agreements because disclosure “could place the parties at a demonstrable
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`Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 5 of 6 PageID #: 56907
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`disadvantage in navigating and negotiating other litigation contests with competitors in the same
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`pharmaceutical space”), R&R adopted, 2020 WL 9432702 (D. Del. Oct. 1, 2020).
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`IV. ARGUMENT
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`Apple requests that the Court seal the portion of the information set forth in Section II(1)
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`through (3), above, because each redaction listed either contains (i) confidential business
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`information for Apple (see, (1)(a) through (d), (2)(a) through (d), 2(f) (2)(i), (3)(a) through (c),
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`and (4)), (ii) contains information confidentially produced in litigation which, when coupled with
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`the information contained in (i), can provide harmful insight into Apple’s litigation and patent
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`licensing strategy (see, (2)(j) and (2)(k)), or (iii) contains a derivative of the information listed in
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`(i) (see (2)(e), (2)(g), (2)(h), (3)(d), and (3)(e)) .
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`As explained in the Declaration of Matthew R. Clements, filed at Docket Number 492,
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`the amount of the Apple Agreement is among Apple’s most highly sensitive and protected
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`business information, and Apple would be seriously harmed if licensors and/or Apple
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`competitors had open access to this information. (Dkt. No. 492, Declaration of Matthew R.
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`Clements in support of Motion to Seal (“Clements Decl.”) ¶¶ 4, 5.) Apple would be harmed in
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`its many active and ongoing negotiations with various patent licensors and litigants if the amount
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`and terms of the Apple Agreement were publicly known. (Id. ¶ 5.) Apple would also be harmed
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`if its competitors, such as Google, had this level of insight into the non-public and confidential
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`resolution of negotiations with a patent licensor such as Arendi. (Id. ¶ 6.)
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`Moreover, Apple expends significant time and resources to maintain the confidentiality
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`and nonpublic nature of the Apple Agreement and similar documents and information. (Id. ¶ 8.)
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`Even within Apple, the Apple Agreement is not disseminated or accessible except to a small
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`group of Apple employees who maintain its confidentiality. (Id. ¶ 9.) Disclosure of information
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`Case 1:13-cv-00919-JLH Document 569 Filed 06/13/23 Page 6 of 6 PageID #: 56908
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`produced in another litigation in connection with the amount that Apple settled that litigation for
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`would also harm Apple in its negotiations with litigants and patent holders in the future. (Id.
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`¶ 10.)
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`That Apple is a non-party further supports maintaining information about the Apple
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`Agreement. See United States v. Dentsply Int’l, Inc., 187 F.R.D. 152, 160 n.7 (D. Del. 1999)
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`(“The risk of injury to the owner of confidential information is presumably greater where the
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`owner was never in a position to accept or reject the risk of disclosure of confidential
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`information. . . . [T]he nonparty has never undertaken the risks of disclosure.”). Apple’s request
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`is essential to protect Apple as a non-party. Apple therefore requests to seal the portions of the
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`transcript described in Section II(a) through (c), above.
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`V.
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`CONCLUSION
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`For these reasons, Apple respectfully requests that the Court exercise its power to seal
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`here, where Apple, a non-party to this case, risks harm from further dissemination of its license
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`information, and seal the narrowly-identified information set forth in Section II(1) through (4),
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`above.
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`Dated: May 15, 2023
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`Respectfully submitted,
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`DLA PIPER LLP (US)
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`/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
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`Attorneys for Defendant Apple Inc.
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