Free Reply to Response to Motion - District Court of Arizona - Arizona

EXHIBIT 5
Case 2:04-cv-OO400—PGR Document 98-7 Filed O1/23/2006 Page1 of 4

Snell Sv. Wilmer
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uiworriees
One Arizona Center TUCSON, ARIZONA
Phoenix, Arizona 8500+2202 IRvII_IE_ CAI_IIIOI,_I_IIA
(602) 382»6000
Fax: (602) 382-6070 SALTLAKECITY, UTAH
wwwswlavmcom
DH~IVH\,OOLORADO
Sid Leach (602) 382»6372 ms vrms. N¤vA¤A
Parents, Trademarks 61 Copyrights
[email protected]
January 9, 2006
Via E-Mail
Steven R. Pedersen, Esq.
Commission Investigative Attorney
Ofiice of Unfair Import Investigations
U.S. International Trade Commission
500 E Street, S.W., Suite 401
Washington, D.C. 20436
Re: In the Matter 0f Certain Point of Sale Terminals and Components Thereojj
Inv. No. 33 7-TA-524
Dear Steve;
I am writing to follow up on our conversations about the protective order issue.
Attached you will find a copy of a letter, dated December 17, 2004, in which Hypercom
requested Verve's permission to use documents produced by Verve in the ITC proceeding and
which were designated as containing confidential business information. In that letter, I requested
"Verve’s consent to file in federal court under seal certain documents designated as containing
confidential business information and produced by Verve in the ITC proceeding." In addition, I
noted that the documents would be filed under seal "in the Texas and Arizona cases pending
between Verve and Hypercom."
Eventually Verve responded with a letter giving its consent to use the documents and to
file them under seal with the court in Arizona. Attached you will find a letter, dated March 2,
2005, from Verve's counsel at the Simon, Galasso & Frantz law firm giving us permission to use
the documents. In the letter, Verve's counsel said:
Case 2:04-cv—O0400—PGR Document 98-7 _ Filed O1/23/2006 Page 2 of 4
Sne l Sr Wilmer is a member of LEX MUND1, a leading association of independent law firms.

Snell &\X/ilmer
-——— L.r..r2 —i
Steven R. Pedersen, Esq.
January 9, 2006
Page 2
Verve is willing to designate all ITC discovery, including confidential business
information produced in the ITC investigation, for use in this lawsuit, subject to
two conditions. First, because there is no protective order in the above-captioned
case, Verve requires that all confidential business information be treated like it
was at the ITC until entry of a protective order. Second, if any documents
containing confidential business information are filed with the Court, Verve
further requires that these documents be filed under seal.
Hypercom complied with these conditions. In each instance, the documents at issue were
filed under seal with the court.
Of course, when documents are filed under seal, courts require a showing of good cause
in order for the documents to remain under seal. See, e. g, Foltz v. State Farm Mutual
Automobile Insurance Co., 331 F.3d 1122, 1134-37 (9th Cir. 2003). Verve knew or should have
known this when Verve agreed to allow the documents to be filed under seal. Verve failed to
make the required showing, and the court subsequently entered orders unsealing the documents.
For example, I have attached the Court's order, dated Oct. 14, 2005, unsealing one of the
documents that was filed under seal.
One thing that is troubling about this issue is that Herb Kerner knows these facts. I
specifically spoke to him and one of the other attorneys at his firm about this by telephone, and
followed up that same day with the specific identification of the court orders unsealing each
document that he identified.
Kerner did not enter an appearance in the ITC proceeding, and has not entered an
appearance in the Arizona litigation. His efforts to make an issue of Hypercom's use of
documents and information supplied by Verve seems inappropriate in view of his lack of
involvement in the ITC proceedings or the Arizona litigation.
In summary, Verve gave consent to file the documents under seal with the court. All of
the documents at issue were filed under seal, and then later unsealed by court order, prior to the
Case 2:04-cv-OO400—PGR Document 98-7 Filed O1/23/2006 Page 3 of 4

Snell gl Wilmer
—— 1..1..s—
Steven R. Pedersen? Esq.
January 9; 2006
Page 3
time that the documents were tiled as exhibits in opposition to Ornron’s motion for summary
judgment in the Arizona litigation.
Based en our conversations last Friday, I assume this is the end of the matter.
Sincerely,
Sid Leach
Case 2:04-cv-OO400—PGR Document 98-7 Filed O1/23/2006 Page 4 of 4

EXHIBIT 5

Case 2:04-cv-00400-PGR

Document 98-7

Filed 01/23/2006

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Case 2:04-cv-00400-PGR

Document 98-7

Filed 01/23/2006

Page 2 of 4

Case 2:04-cv-00400-PGR

Document 98-7

Filed 01/23/2006

Page 3 of 4

Case 2:04-cv-00400-PGR

Document 98-7

Filed 01/23/2006

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