Free Motion for Miscellaneous Relief - District Court of California - California


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Case 3:07-cv-02769-JL Document 34 Filed 06/22/2007 Page 1 of 4
1 Jonathan M. Cohen (SBN: 168207)
Martin Sabelli (SBN: 164772)
2 Robyn T. Callahan (SBN: 225472)
WINSTON & STRAWN LLP
3 101 California Street 1
San Francisco, CA 94111-5894 ·
4 Telephone: 415-591-1000
Facsimile: 415-591-1400
5 Email: jcohen@winston.com
` rcallahan@winston.com
6
Attorneys for Plaintiff
7 FRANK NEMIROF SKY _
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
1 0
SAN FRANCISCO DIVISION
1 1
na é FRANK NEMIROFSKY, ) Case N0. 3:07-CV-02769 - JL
5 E j 12 ) Hon. Magistrate James Larson
g 5 g Plaintiff, )
5 E < 13 V ) PLAINTIFF FRANK NEMIROFSKY'S
E Q Q vs. ) MISCELLANEOUS ADMINISTRATIVE
**8 § 14 ) MOTION TO FILE CERTAIN
§ fj E SEOK KI KIM; STV ASIA, LTD. a British ) DOCUMENTS UNDER SEAL _
_'§ 2 E 15 Virgin Islands corporation; and DOES 1 )
B g through 20, inclusive, )
<¤ 16 )
Defendants. ) _
17 )

1 8
19 TO DEFENDANTS AND THEIR ATTORNEY OF RECORD p
20 NOTICE IS HEREBY GIVEN that Plaintiff Frank Nemirofsky ("Nemirofsky") will and
2] hereby does move the Court for Miscellaneous Administrative Relief to file Exhibits A, D, E, H and
22 I to the Declaration of Frank Nemirofsky in support of Plaintiffs Ex Parte Motion to Extend the
23 Temporary Protective Order (the "Nemirofsky Declaration") under seal, as well as certain portions Q
24 of the Nemirofsky Declaration. In addition, Plaintiff seeks to file certain portion of Plaintiffs Ex
25 Pczrte Motion under seal. Nemirofsky's motion for Miscellaneous Administrative Relief is based on
A 26 this Notice of Motion and Motion, the Declaration of Jonathan M. Cohen filed herewith, and any
27
PLAINTIFF'S MISC. ADMINISTRATIVE MOTION TO FILE CERTAIN DOCUMENTS UNDER SEAL
CASE NO. 3:07-CV-02769 JL `

Case 3:07-cv-02769-JL Document 34 Filed 06/22/2007 Page 2 of 4
1 further material and argument presented to the Court related to Nemirofsky's Ex Parte Motion to
2 Extend the Temporary Protective Order.
3 I. INTRODUCTION V
4 Nemirofsky is the inventor of U.S. Patent No. 5,412,416 entitled "Video Media Distribution
5 Network Apparatus and Method" ("416 Video Media Patent"). As part of plaintiffs collaboration
6 with defendants in developing STV Asia, Ltd., Nemirofsky assigned the 416 Video Media Patent to
7 STV Asia, Ltd. This 416 Video Media Patent, in addition to U.S. Patent N0. 5,983,069 entitled,
8 "Point of Purchase Video Distribution System" ("069 Purchase Video Patent"), which Nemirofsky
9 also invented, were the subject of a patent infringement action brought by Defendants against PRN
10 Corporation and Best Buy Company, Inc. (the "PRN litigation"). The PRN litigation culminated in a
E ll confidential settlement between STV and PRN. As part of this Ex Parte Motion, it is necessary to
E ij 12 reference the confidential settlement resulting from the PRN litigation both to provide background
§ 13 information and to assert Nemirofsky's claims against Defendants. It is necessary to file these
2 14 documents under seal in order to protect the confidentiality of the settlement agreement and prevent
E E 5 15 it from becoming publicly known. In addition, the Ex Parte Motion and the Nemirofsky Declaration
B 5 16 contain information related to the tmderlying patents which is highly confidential and proprietary to
17 the parties and should be protected from disclosure. ' i
1 8 II. AUTHORITY
19 The right to inspect and copy judicial records is not absolute. See Hagestad v. T ragesser, 49
20 F.3d 1430, 1433 (9th Cir. 1995) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597
21 (1978)). "Every court has supervisory power over its own records and files, and access has been
22 denied where court files might have become a vehicle for improper purposes." [al Federal Rule of
23 Civil Procedure 26(c) provides that, for good cause shown, a court "may make any order which
24 justice requires to protect a party or person from annoyance, embarrassment, oppression, undue
25 burden or expense." Specifically, the court has the authority to withhold information from the public
26 so "that a trade secret or other confidential research, development, or commercial information not be
27 revealed only in a designated way." Fed. R. Civ. P. 26(c)(7). This is consistent with the
28 requirements of the Trade Secrets Act (18 U.S.C. § 1905).

CASE NO. 3:07-CV-02769 JL

Case 3:07-cv-02769-JL Document 34 Filed 06/22/2007 Page 3 of 4
1 III. EXHIBITS A, D, E, H and I TO THE NEMIROFSKY DECLARATION
2 In this case, Nemirofsky seeks to file Exhibits A, D, E, H and I to the Nemirofsky
3 Declaration under seal. The exhibits contain reference to the confidential settlement agreement that
4 arose out of the PRN litigation as well as to specific details regarding the amotmt of and structure of
5 the settlement. Distribution of such information by Nemirofsky would put Nemirofsky in a position
6 whereby he would be in violation of the confidentiality agreement reached as part of the settlement.
7 Furthermore, the information as to the value of the settlement would be useful to potential
8 competitors and infringers who would learn Nemirofsky, STD, PRN and/or Best Buy's position
9 concerning the value of the patented technology. The exhibits also contain information related to the
10 invention, development and assignment of the patents. Thus, the contents are highly confidential
E 11 and proprietary to the parties and should be protected from disclosure under Federal Rule of Civil
E § g 12 Procedure 26(c)(7).
g i 13 IV. PORTIONS OF THE NEMIROFSKY DECLARATION SHOULD BE SEALED
Z;) 14 Nemirofsky seeks to file a portion of the Nemirofsky Declaration under seal. The sections of
15 the Nemirofsky Declaration which Plaintiff seeks to seal contain reference to the- confidential
3 5 16 settlement agreement that arose out of the PRN litigation as well as to specific details regarding the
17 amount of and structure of the settlement. Distribution of such information by Nemirofsky would
18 put Nemirofsky in a position whereby he would be in violation of the confidentiality agreement
19 reached as part of the settlement. Furthermore, the information as to the value of the settlement
20 would be useful to potential competitors and infringers who would learn Nemirofsky, STD, PRN
21 and/or Best Buy's position concerning the value of the patented technology. The Nemirofsky
22 Declaration also contains information related to the invention, development and assignment of the
23 patents. Thus, the contents are highly confidential and proprietary to the parties and should be
24 protected from disclosure under Federal Rule of Civil Procedure 26(c)(7).
25 V. PORTIONS OF THE EX PARTE MOTION SHOULD BE SEALED
26 Nemirofsky seeks to file a portion of Plaintiffs Ex Parte Motion to Extend the Temporary
27 Protective Order under seal. The portion of the brief to be sealed contains reference to the
28 confidential settlement agreement that arose out of the PRN litigation as well as to specific details

g CASE NO. 3:07-CV-02769 JL

Case 3:07-cv-02769-JL Document 34 Filed 06/22/2007 Page 4 of 4
l regarding the amount of and structure of the settlement. Distribution of such information by
2 Nemirofsky would put Nemirofsky in a position whereby he would be in violation of the
3 confidentiality agreement reached as part of the settlement. Furthermore, the information as to the
4 value of the settlement would be useful to potential competitors and infringers who would learn
5 Nemirofsky, STD, PRN and/or Best Buy's position conceming the value of the patented technology.
6 The portion of the brief also contains information related to the invention, development and
7 assigmnent of the patents. Thus, the contents are highly confidential and proprietary to the parties
8 and should be protected from disclosure under Federal Rule of Civil Procedure 26(c)(7).
9 VI. CONCLUSION
10 In order to protect the confidentiality of the settlement order resulting from the PRN
Q, ll litigation and other sensitive competitive information contained within, Nemirofsky respectively ‘
GN
°·· 3% . .
5 *2: j 12 requests that this court grant Nemirofsky's request to place Exhrbrts A, D, E, H and I from the
¤ J; "'
13 Nemirofsky Declaration under seal, as well as the sections of the Nemirofsky Declaration and
G § O
°; § 14 Plaintiffs brief on his Ex P0/rte Motion to Extend the Temporary Protective Order, which contain
c U
E E LY 15 references to said confidential and proprietary information.
B l6
17 Dated: June 22, 2007 WINSTON & STRAWN LLP
18
By:
19 Jonath M. Cohen
Robyn .Callahan
20 WINST N & STRAWN LLP
Attomeys for Plaintiff
21 FRANK NEMIROFSKY
22
23
24
25
26
27 smvsms.1
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FLAINTIFFS MISC. ADMINISTRATIVE MOTION TO FILE CERTAIN DOCUMENTS UNDER SEAL
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