Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

MEMO ENDORSEMENT on re: (54 in 1:14-cv-04355-RJS) Letter, filed by IXI IP,LLC, IXI Mobile (R&D) Ltd., (58 in 1:14-cv-04428-RJS) Letter, filed by IXI IP, LLC, IXI Mobile (R&D) Ltd., (40 in 1:14-cv-07954-RJS) Letter, filed by IXI IP,LLC, IXI Mobile (R&D) Ltd. ENDORSEMENT: There is a well-established presumption in the Second Circuit in favor of open court records. See United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995). To overcome this presumption, a party must demonstrate that sealing a judicial document is "essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Alcantara, 396 F.3d 189, 199 (2d Cir. 2005); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) ("[D]ocuments may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (quotation marks and citations omitted)). Because Plaintiff represents that the license agreement between IXI IP and IXI Mobile contains "confidential information" and that the patent purchase agreement includes information relating to the strategy and financing of this litigation, the Court will allow Plaintiff to file the license and redacted patent purchase agreements under seal, and to submit the unredacted patent purchase agreement in camera. However, the Court may reach a different conclusion upon reviewing the materials in question and, at that time, will direct the parties to address whether the various documents should remain under seal. (Signed by Judge Richard J. Sullivan on 2/27/2015)

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USDS SDNY DOCUMENT ELECTRONICALLY FILED DOC#: Dilworth DATE FILED: 22715 Paxson. DIRECT DIAL NUMBER: (215) 575-7025 Thomas S. Biemer tbiemer@dilworthlaw.com February 27, 2015 10 ENDORSED Honorable Richard J. Sullivan Courtroom: 905 Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: IXI Mobile (R&D), Ltd., et al. v. Samsung Electronics Co., et al., No. 14-cv-4355 IXI Mobile (R&D), Ltd., et al. v. Blackberry, Ltd., et al., No. 14-cv-4428 IXI Mobile (R&D) Ltd. et al. v. Apple Inc., No. 14-cv-7954 Dear Judge Sullivan: Per the Court's instruction (1:14-cv-07954-RJS, Dkt. No. 39 at 2), IXI respectfully requests permission to submit the license agreement between IXI IP and IXI Mobile under seal because it contains IXI's confidential information. In addition, the license agreement is expressly made subject to the underlying patent purchase agreement (also between IXI IP and IXI Mobile), which includes pertinent information regarding IXI's exclusionary rights to the patents. Therefore, we believe a proper standing analysis requires the Court to review both the license and patent purchase agreements. Because the patent purchase agreement includes information relating to the strategy and financing of this litigation that is protected by the attorney-client privilege and/or work product doctrines, and because the parties have not yet agreed on a protective order, IXI requests permission to submit the patent purchase agreement in camera and provide a redacted version to defendants designated as Confidential Outside 1500 Market Street Suite 3500E · Philadelphia, PA 19102-2101: 215-575-7000 fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC Wilmington, DE · New York, NY Honorable Richard J. Sullivan November 10, 2014 Page 2 Counsel's Eyes Only. See, e.g., Devon It, Inc. v. IBM Corp., No. 10-2899, 2012 WL 4748160, at *nl (E.D. Pa. Sept. 27, 2012) ("the 'common-interest doctrine protects communications between parties with a shared common interest in litigation strategy. . . .Here, Burford and Devon now have a common interest in the successful outcome of the litigation which otherwise Devon may not have been able to pursue without the financial assistance of Burford.") (citation omitted); See also Miller v. Caterpillar, 17 F.Supp.3d 711, 736-738 (N.D. I11. 2014) (holding that financing documents with third party financiers were immune from discovery as attorney work product where the financiers had signed confidentiality agreements). IXI also requests permission to file the redacted version of the patent purchase agreement under seal as it also contains confidential information. Respectfully, /s/ Thomas S. Biemer Thomas S. Biemer TSB:km cc: All parties of record via ECF There is a well-established presumption in the Second Circuit in favor of open court records. See United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995). To overcome this presumption, a party must demonstrate that sealing a judicial document is "essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Alcantara, 396 F.3d 189, 199 (2d Cir. 2005); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119- 20 (2d Cir. 2006)("[D]ocuments may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (quotation marks and citations omitted)). Because Plaintiff represents that the license agreement between IXI IP and IXI Mobile contains "confiden and that the patent purchase agreement includes information relating to the strategy and financing of this litigation, the Court will allow Plaintiff to file the license and redacted patent purchase agreements under seal, and to submit the unredacted patent purchase agreement in camera. However, the Court may reach a different conclusion upon reviewing the materials in question and, at that time, will direct the parties to address whether the various documents should remain under seal. SO ORDERED_ h ANGWAIDA SUUMAN 200 1500 Market Street Suite 3500E · Philadelphia, PA 19102-2T01 - Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington. D A MIT TO SOL New York, NY