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EFiled: Apr 16 2024 04:30PMEDT
`Transaction ID 72753777={°\7i,.1" 2)
`Case No. 2023-0513-PAF (a7:s/
`IN THE COURT OF CHANCERYOF THE STATE OF DELAWARE3."
`
`LEON GILBERT and MICHAEL
`MCGARVEY,
`
`) PUBLIC VERSIONFILED:
`) April 16, 2024
`
`) )
`
`Plaintiffs,
`
`Vv.
`
`) CA. No. 2023-0513-PAF
`)
`
`) )
`
`)
`
`UNISYS CORPORATION,
`
`Defendant.
`
`DEFENDANT’S MOTION
`
`FOR CONTINUED CONFIDENTIAL TREATMENT
`
`ROSS ARONSTAM & MORITZ LLP
`
`David E. Ross (Bar No. 5228)
`Eric D. Selden (Bar No. 4911)
`Hercules Building
`1313 North MarketStreet, Suite 1001
`Wilmington, Delaware 19801
`(302) 576-1600
`
`Attorneysfor Defendant Unisys
`Corporation
`
`OfCounsel:
`
`Martin L. Roth, P.C.
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago,Illinois 60654
`(312) 862-2000
`
`Haley S. Stern (DE Bar No. 6349)
`Amanda Lamothe-Cadet
`Maylynn Chen
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`(212) 446-4800
`
`April 9, 2024
`
`EFiled: Apr 16 2024 04:30PM EDT
`Transaction ID 72753777
`Case No. 2023-0513-PAF
`
`

`

`
`
`INTRODUCTION
`
`1.
`
`Plaintiffs’ rejection of Unisys’ proposed redactions to their Pretrial
`
`Brief confirms what Unisys has suspected all along: that Plaintiffs and their new
`
`employer, Atos—co-defendants in the underlying trade secrets dispute (Unisys
`
`Corporation v. Gilbert, et al., No. 2:23-cv-555-PD, the “Pennsylvania Action”)—
`
`are improperly using this advancement proceeding as an additional avenue to obtain
`
`discovery for use in the Pennsylvania Action. Just one day after this case was tried,
`
`Plaintiffs filed a challenge to the confidential treatment of sensitive business
`
`information that Unisys had sought to redact from their Pretrial Brief. The same
`
`day, Unisys also received a letter from Atos demanding that all deposition and trial
`
`testimony from Unisys in this matter be produced to Atos in the Pennsylvania
`
`Action.
`
`2.
`
`Such gamesmanship cannot be countenanced. Plaintiffs’ inappropriate
`
`and coordinated behavior with Atos—who is not a party to this action—violates the
`
`parties’ stipulated protective order in this case, see Dkt. 16, and undermines the
`
`integrity of both this proceeding and the Pennsylvania Action. In light of Plaintiffs’
`
`suspect motivations for challenging confidential treatment, and the risk that Unisys
`
`will suffer commercial harm should the internal workings of its business be exposed,
`
`the Court should grant Unisys’ motion for continued confidential treatment, and
`
`
`
`
`
`

`

`
`
`permit Unisys to file a revised public version of Plaintiffs’ Pretrial Brief with the
`
`redactions reflected in the attached Exhibit A.
`
`BACKGROUND
`
`3.
`
`On March 30, 2024, Defendant proposed redactions to the public
`
`version of Plaintiffs’ Pretrial Brief. Plaintiffs publicly filed that version on
`
`April 1, 2024. Dkt 96. On April 2, 2024, Plaintiffs filed a challenge to the
`
`confidential treatment of the information redacted from Plaintiffs’ pretrial brief.
`
`Dkt. 99.
`
`4.
`
`On April 5, 2024, Defendant proposed revised redactions in light of
`
`material made public during trial, which greatly reduced the amount of information
`
`subject to confidential treatment. Ex. B. On April 6, 2024, Plaintiffs rejected
`
`Unisys’ proposal.
`
`5.
`
`Plaintiffs’ have since further refined their proposed redactions. See Ex.
`
`A. These revised redactions are discrete and pertain to Unisys’ business strategies,
`
`including its implementation of advice received from McKinsey & Co. related to the
`
`reorganization of the company.
`
`6.
`
`Throughout this proceeding, Plaintiffs have continuously sought access
`
`to, and use of, documents and information exclusively relevant to the Pennsylvania
`
`Action, where the main dispute is over the competitive harm suffered by Unisys as
`
`a result of the theft of its trade secrets. See, e.g., Dkt. 37, Pls.’ Mot. to Coordinate
`
`
`
`2
`
`
`
`
`
`

`

`
`
`Expedited Discovery with the Pennsylvania Action (seeking to obtain access to over
`
`288,000 documents even though only a small fraction hit on the agreed-upon search
`
`terms in this action); Dkt. 95, Def’s Mem. Concerning Evidentiary Issues related to
`
`the Pennsylvania Action; Thomson Dep. Tr. 98:19-21 (Q: “[W]hat trade secrets are
`
`at issue in the Pennsylvania action?”), 130:18-22 (Q: “Unisys argued that Atos
`
`avoided costs associated with the acquisition of Unify Square due to Plaintiffs’
`
`misappropriation of trade secrets?”); Altabef Dep. Tr. 52:17 (Q: “Is Atos a
`
`competitor of Unisys?”), 52:19-20 (Q: “Does Atos do business in the digital
`
`workplace solution space?”), 54:20-22 (Q: “Unisys operates its DWS business as a
`
`business unit, is that the same structure for [Atos’] DWS business?”).
`
`7.
`
`Unisys has maintained that such documents and attempts to elicit
`
`testimony not relevant to the instant action are inappropriate. For example, Unisys
`
`objected to Topic 16 from Plaintiffs’ Notice of Rule 30(b)(6) Deposition, which
`
`sought testimony about “DWS’s trade secrets that Unisys alleges Plaintiffs accessed
`
`by virtue of their officer-level leadership of DWS.” Dkt. 51, Schedule A at 6.
`
`Unisys responded that it would not designate a witness to testify about Topic 16 on
`
`the basis that it “seeks information not relevant to Plaintiffs’ claim.” Ex. C at 14.
`
`8.
`
`Likewise, after Peter Altabef’s deposition, where Plaintiffs engaged in
`
`extensive questioning relating to the Pennsylvania Action, Unisys again informed
`
`Plaintiffs that lines of questioning relating to the merits of the underlying trade
`
`
`
`3
`
`
`
`
`
`

`

`
`
`secrets dispute in the Pennsylvania Action were irrelevant and inappropriate to the
`
`parties’ claims and defenses here. See Ex. D, Letter from E. Selden re Trade Secrets.
`
`9.
`
`Defendant subsequently raised this issue in the Pretrial Order, objecting
`
`to the use of trial exhibits and testimony relating to the Pennsylvania Action that
`
`were not relevant to the advancement case. Dkt. 84 ¶ 67. Following the Pretrial
`
`Conference, on March 28, 2024, both parties submitted memoranda to the Court in
`
`support of their respective views on the evidentiary issues related to the
`
`Pennsylvania Action. See Dkts. 94, 95.
`
`10. Despite Defendant’s repeated objections to Plaintiffs’ attempts to delve
`
`into the merits of the Pennsylvania Action, on April 2, 2024, just one day after the
`
`trial in this action, Atos’ counsel in the Pennsylvania Action sent a letter to Unisys,
`
`demanding the production of all deposition and trial testimony from Unisys
`
`witnesses in this advancement proceeding. Ex. E, Letter from G. Laufer. Atos is
`
`not a party to this advancement case, but it is a party to the Pennsylvania Action.
`
`Atos’ counsel insisted that “[the Unisys witnesses’] testimony is obviously relevant
`
`to the [Pennsylvania] matter and must be produced.” Id.
`
`11. That same day, Plaintiffs also filed the instant challenge to Unisys’
`
`redactions to their Pretrial Brief. Dkt. 99.
`
`
`
`4
`
`
`
`
`
`

`

`
`
`LEGAL STANDARD
`
`12. Rule 5.1 provides that material filed with the Court may be treated as
`
`confidential and excluded from public access upon a showing of “good cause.” Ct.
`
`Ch. R. 5.1(b)(1). “[G]ood cause” exists where “the public interest in access to Court
`
`proceedings is outweighed by the harm that public disclosure of sensitive, non-
`
`public information would cause.” Ct. Ch. R. 5.1(b)(2).
`
`13. Trade secrets, sensitive proprietary information, sensitive financial,
`
`business, or personal information can all qualify as Confidential Information. Ct.
`
`Ch. R. 5.1(b)(2).
`
`14. After an objection is filed, the party seeking to maintain confidential
`
`treatment “bears
`
`the burden of establishing good cause” for continued
`
`confidentiality. Ct. Ch. R. 5.1(b)(3). However, the court can exercise its discretion
`
`when evaluating whether certain information should remain confidential. See In re
`
`John E. du Pont, 1997 WL 383008, at *2-3 (Del. Ch. June 20, 1997) (“Although
`
`there is a general presumption of access to civil proceedings and records, courts have
`
`the discretion and power to close hearings and keep records under seal when
`
`appropriate.”); see also Kronenberg v. Katz, 872 A.2d 568, 608 (Del. Ch. 2004)
`
`(noting that “reasonable limitations can be placed on public access to judicial
`
`records”); Al Jazeera Am., LLC v. AT & T Servs., Inc., 2013 WL 5614284, at *7
`
`(Del. Ch. Oct. 14, 2013) (permitting continued confidential treatment “when
`
`
`
`5
`
`
`
`
`
`

`

`
`
`confidentiality does not greatly disadvantage the public’s ability to understand the
`
`nature of the dispute”) (emphasis added).
`
`15. This Court has previously looked at the challenger’s “unique goals”
`
`when balancing these competing interests. See In re Lordstown Motors Corp.
`
`S’holders Litig., 2022 WL 601120, at *1, *7 (Del. Ch. Feb. 28, 2022) (holding that
`
`a court can consider “the challenger’s identity or motivations in conducting a
`
`Rule 5.1 analysis” and finding that a challenger’s “unique goal” of end-running the
`
`discovery process in a related action was “not indicative of a broader public
`
`interest”); see also GKC Strategic Value Master Fund, LP v. Baker Hughes Inc.,
`
`2019 WL 2592574, at *2 (Del. Ch. June 25, 2019) (noting that “gamesmanship” can
`
`be considered in a Rule 5.1 analysis).
`
`16. Nonpublic details about corporate business strategies—and information
`
`that a company’s competitors could leverage to their benefit, in particular—can
`
`warrant confidential treatment under Rule 5.1 when such information is not material
`
`to understanding the nature of the dispute. See Reid v. Siniscalchi, 2014 WL
`
`6486589, at *1 (Del. Ch. Nov. 20, 2014) (confidential treatment appropriate for
`
`“information regarding business strategies, product development, and perhaps
`
`governmental relationships”); see also Uvaydov v. Fenwick-Smith, 2023 WL
`
`4614766, at *4 (Del. Ch. July 18, 2023) (maintaining confidential treatment of board
`
`discussions regarding organizational planning and product projections where
`
`
`
`6
`
`
`
`
`
`

`

`
`
`“[disclosure] could allow” a company’s “competitors to identify [its] business
`
`development strategies and impair [its] market competitiveness”).
`
`ARGUMENT
`
`A. Disclosing
`Information Would
`the Confidential
`Particularized Harm on Defendant.
`
`Inflict
`
`17. Unisys’ proposed redactions to Plaintiffs’ Pretrial Brief reveal details
`
`about Unisys’ internal operations and business plans that would, if revealed to
`
`competitors, cause Unisys commercial harm.
`
`18. The proposed redactions pertain chiefly to Unisys’ plans and processes
`
`for the reorganization of its internal structure in late 2020 to early 2021. Unisys
`
`engaged McKinsey and other consulting firms to assist with this internal
`
`restructuring and to develop business strategies for Unisys following that
`
`reorganization. This project was referred to by insiders as “Project Minerva.”
`
`19. Unisys proposes redacting quotes from documents and depositions that
`
`would reveal its business strategies for growth and development upon the
`
`completion of that project (such as on which markets and which products it intends
`
`to focus). This information reflects the strategic thinking of, and deliberations
`
`between, Unisys’ management, its board of directors, and its advisors. Public
`
`revelation of such strategies “could undercut the effectiveness of those efforts, or
`
`provide competitors with value information they could exploit to their own
`
`advantage.” Genentech, Inc. v. Amgen, Inc., 2020 WL 9432700, at *6 (D. Del. Sept.
`
`
`
`7
`
`
`
`
`
`

`

`
`
`2, 2020), report and recommendation adopted, 2020 WL 9432702 (D. Del. Oct. 1,
`
`2020).
`
`20. Further, Unisys’ concern that the material could be used against it is not
`
`only founded, Atos has already indicated that it will attempt to use any disclosed
`
`materials against Unisys at least in the Pennsylvania Action.
`
`B.
`
`The Public Interest in the Confidential Information, If Any, Is
`Minimal.
`
`21.
`
`Implementation of Unisys’ proposed redactions to Plaintiffs’ Pretrial
`
`Brief will not interfere with, let alone “greatly disadvantage,” the public’s ability to
`
`understand this advancement dispute. See Al Jazeera, 2013 WL 5614284, at *7.
`
`22. The parties dispute whether Plaintiffs were officers of Unisys
`
`Corporation and whether the DWS business unit was an “enterprise” under the
`
`indemnification provision of Unisys’ Certificate of Incorporation.1 The history,
`
`plans, and analyses that led Unisys to restructure its business in 2020 bears little on
`
`those issues, if at all. There is no dispute that DWS became a reportable segment of
`
`Unisys in January 2021; rather, the only point of contention is whether DWS’ status
`
`as a reportable segment is relevant to whether it constitutes an “enterprise.” To
`
`evaluate this issue, the public does not need specific knowledge of documents
`
`
`1 The parties also dispute whether Plaintiff Gilbert’s involvement in the trade secrets
`dispute occurred “by reason of the fact” of his brief tenure as President of Unify Square.
`None of the proposed redactions touch on this issue.
`
`
`
`8
`
`
`
`
`
`

`

`
`
`discussing McKinsey’s and others’ analyses, which ultimately caused Unisys to
`
`adopt its current business unit-focused model. Nor would specifics regarding
`
`Unisys’ planned areas of future growth aid the public in understanding the issues
`
`relevant to this advancement dispute. Such “discrete information is of modest
`
`importance to the public’s understanding of this dispute and has the potential to
`
`cause commercial harm” to Unisys. Lordstown, 2022 WL 601120, at *1. As such,
`
`it should remain redacted.
`
`C.
`
`Plaintiffs’ Reasons for Challenging Confidentiality Give Rise to an
`Inference of Gamesmanship.
`
`23. Finally, the Court should consider Plaintiffs’ “unique goals” in
`
`challenging confidential treatment, which “are not indicative of a broader public
`
`interest.” Id.
`
`24. Throughout this litigation, Plaintiffs have sought discovery—through
`
`document requests, depositions, and even testimony at trial—that is clearly not
`
`relevant to the issues in this advancement proceeding, yet very relevant to the merits
`
`of the Pennsylvania Action. Unhappy with the fruits of the discovery process in the
`
`Pennsylvania Action, which revealed that Plaintiffs downloaded tens of thousands
`
`of documents from Unisys servers to their personal devices upon their departure
`
`from the company, Plaintiffs (and Atos) are now engaged in a last-ditch effort to
`
`obtain favorable testimony in this action to minimize their damages in the
`
`Pennsylvania Action. That much was made clear when Atos’ counsel demanded,
`
`
`
`9
`
`
`
`
`
`

`

`
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`one day after trial, that all deposition and trial testimony from this action be produced
`
`to them. See Ex. E, Letter from G. Laufer (insisting that Unisys witnesses’ testimony
`
`in the Chancery Court “encompassed topics relevant to the [Pennsylvania] matter
`
`rendering that testimony subject to production”). As Atos is not a party to this
`
`advancement proceeding, such production would be inappropriate and in
`
`contravention of the terms of the parties’ confidentiality stipulation, which allows
`
`confidential discovery material to be disclosed only “to the extent deemed
`
`reasonably necessary . . . for the purpose of assisting in the prosecution or defense”
`
`of the instant action. Dkt. 16 (Confidentiality Order) § 5(a).
`
`25. As in Lordstown, the Court should see Plaintiffs’ challenge to
`
`confidentiality here for what it is: a naked attempt to end-run the discovery process
`
`in the Pennsylvania Action and “fulfill [their] need for information” to use in that
`
`litigation. 2022 WL 601120, at *7. The Court can and should consider Plaintiffs’
`
`suspect motivations in its balancing of the public and private interests under Rule
`
`5.1. See id.
`
`CONCLUSION
`
`Accordingly, the Court should grant Defendant’s motion to continue to treat
`
`the requested information as confidential.
`
`
`
`10
`
`
`
`
`
`

`

`ROSS ARONSTAM & MORITZ LLP
`
`/s/ Eric D. Selden
`David E. Ross (Bar No. 5228)
`Eric D. Selden (Bar No. 4911)
`Hercules Building
`1313 North MarketStreet, Suite 1001
`Wilmington, Delaware 19801
`(302) 576-1600
`
`Attorneysfor Defendant Unisys
`Corporation
`
`Words: 2,168/3,000
`
`OfCounsel:
`
`Martin L. Roth, P.C.
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago,Illinois 60654
`(312) 862-2000
`
`Haley S. Stern (DE Bar No. 6349)
`Amanda Lamothe-Cadet
`Maylynn Chen
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`(212) 446-4800
`
`April 9, 2024
`
`PUBLIC VERSION FILED:
`April 16, 2024
`
`ll
`
`

`

`
`
`CERTIFICATE OF SERVICE
`
`I, Eric D. Selden, hereby certify that on April 16, 2024, I caused a true and
`
`correct copy of the Public Version of Defendant’s Motion for Continued Confidential
`
`Treatment to be served through File & ServeXpress on the following counsel:
`
`John M. Seaman
`E. Wade Houston
`Joseph A. Sparco
`ABRAMS & BAYLISS LLP
`20 Montchanin Road, Suite 200
`Wilmington, Delaware 19807
`
`
`/s/ Eric D. Selden
`Eric D. Selden (Bar No. 4911)
`
`
`
`
`
`
`
`
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`

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