Nuance Communications, Inc. v. International Business Machines Corporation

MEMORANDUM OF LAW in Support re: 85 MOTION to Seal Portions of the April 24, 2017 and August 1, 2017 Transcripts of Court Proceedings. . Document

S.D.N.Y.December 6, 2017

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NUANCE COMMUNICATIONS, INC., Plaintiff - against – INTERNATIONAL BUSINESS MACHINES CORPORATION Defendant. Civ. No. 16-cv-5173-KMK-JCM ECF Case MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SEAL PORTIONS OF TRANSCRIPTS FROM COURT PROCEEDINGS FILED UNDER SEAL Defendant International Business Machines Corporation (“IBM”) respectfully requests that the Court issue an Order directing that portions of the transcripts of proceedings held before the Court on April 24, 2017 and August 1, 2017 (collectively, the “Transcripts”), be redacted, as detailed below. Plaintiff Nuance Communications, Inc. (“Nuance”) consents to this motion and the proposed redactions to the transcripts. A. Legal Standard The Court “has supervisory power over its own records and files,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978), and “[i]t is beyond question that a court may issue orders prohibiting disclosure of documents or information.” FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982); see also Fed. R. Civ. P. 26(c)(1)(G) (“The court may, for good cause, issue an order . . . requiring that . . . confidential . . . commercial information not be revealed . . . .”). Only judicial documents—those documents “relevant to the performance of the judicial function and useful in the judicial process”—are presumed at common law to be freely accessible by the public. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Case 7:16-cv-05173-KMK-JCM Document 86 Filed 12/06/17 Page 1 of 5 2 Once the Court determines that the document is judicial and that the presumption attaches, the Court must decide the weight to be given the presumption along “a continuum from matters that directly affect an adjudication to matters that come within a court’s purview solely to insure their irrelevance.” Id. at 119 (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo II”)). After weighing the presumption, the Court must balance competing considerations against it, including “the privacy interests of those resisting disclosure,” to determine if the document should be sealed. Id. at 120 (quoting Amodeo II, 71 F.3d at 1050). In furtherance of its authority to preclude the disclosure of certain highly sensitive information in the matter, on April 17, 2017, this Court entered a stipulated Protective Order, which Order provides that “[d]isclosure and discovery activity in this action are likely to involve production of confidential, proprietary, classified, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted.” (Dkt. No. 22). The Protective Order, therefore, protects from disclosure information that a Designating Party deems confidential. Some of the information contained in the transcripts of the April 24, 2017 and August 1, 2017 proceedings constitute confidential proprietary information, and is therefore subject to the Protective Order’s protections. To preserve the protections this Court afforded through the Protective Order and subsequent Orders, IBM respectfully requests that certain portions of the April 24, 2017 and August 1, 2017 transcripts be redacted from public filing. Case 7:16-cv-05173-KMK-JCM Document 86 Filed 12/06/17 Page 2 of 5 3 B. Proposed Redactions The April 24, 2017 Transcript On April 24, 2017, the Court held a conference with respect to certain discovery disputes raised by the Parties. The transcript of the April 24, 2017 conference contains two references to the consideration that Nuance paid IBM in exchange for executing the Software Licensing Agreement (“SLA”). This particular information has been redacted from the publicly-filed Complaint pursuant to an Order entered by Judge Kenneth Karas on July 12, 2016. (Dkt No. 3). The Court’s July 12 Order also directs that “any further publicly-available filing in the above- captioned action containing the redacted materials, or describing the substance thereof, shall be filed in unredacted form under seal with filing in appropriately redacted form on the docket.” (Id.). Therefore, in accordance with the Court’s July 12 Order, IBM respectfully requests that the price of the SLA be redacted from the transcript of the April 24, 2017 Court proceedings, such that this information remains protected from public disclosure. To that end, IBM proposes the following redactions of the April 24, 2017 transcript: Page Line(s) Text 3 7 7 11 For the convenience of the Court and Court Reporter, attached as Exhibit A hereto is the April 24, 2017 Transcript with proposed redactions outlined in red. Case 7:16-cv-05173-KMK-JCM Document 86 Filed 12/06/17 Page 3 of 5 4 The August 1, 2017 Transcript On August 1, 2017, the Court held a conference to resolve certain discovery disputes relating to various IBM products. During the course of the conference, the Parties discussed highly sensitive confidential information about IBM software and products that, if made publicly available, could be exploited by competitors and thus harm IBM’s business. Throughout the course of this litigation, the Court has recognized that information relating to IBM’s software and products is of a highly confidential nature, and, to that end, has permitted IBM to redact similar information from letters filed on the public docket. (See Dkt Nos. 41, 73). Moreover, with such information redacted, there is sufficient information in the unredacted portions of the Transcript to satisfy the public’s interest in understanding the Court’s work and in ensuring the fair administration of justice. Therefore, IBM’s interests in the confidential nature of the information in the August 1 Transcript thus outweigh whatever presumption of public access that attaches to the redacted portions of that Transcript. See Stern v. Cosby, 529 F. Supp. 2d 417, 422 (S.D.N.Y. 2007). In light of the above, IBM respectfully requests that the Court order that certain portions of the transcript of the August 1, 2017 hearing be redacted. Due to the breadth of the requested redactions from the August 1, 2017 transcript, the proposed text to be redacted is not included herein. However, for the convenience of the Court and Court Reporter, IBM has attached as Exhibit B hereto, the August 1, 2017 transcript with proposed redactions outlined in red. Case 7:16-cv-05173-KMK-JCM Document 86 Filed 12/06/17 Page 4 of 5 5 C. Conclusion IBM respectfully requests that the Court enter the Proposed Order submitted with this motion. Dated: December 6, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Hope Skibitsky Richard I. Werder, Jr. Kevin S. Reed Elinor Sutton Florentina Dragulescu Field (Pro Hac Vice) Hope Skibitsky (Pro Hac Vice) 51 Madison Ave, 22nd Floor New York, New York 10010-1601 Phone: (212) 849-7000 Fax: (212) 849-7100 rickwerder@quinnemanuel.com kevinreed@quinnemanuel.com elinorsutton@quinnemanuel.com florentinafield@quinnemanuel.com hopeskibitsky@quinnemanuel.com Attorneys for Defendant International Business Machines Corporation Case 7:16-cv-05173-KMK-JCM Document 86 Filed 12/06/17 Page 5 of 5