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finding compelling reason to seal documents "that include Sun's confidential information regarding revenue, products, internal manufacturing procedures, source code development, and related deposition testimony" because those documents "represent confidential information that would be harmful to Sun if disclosed"
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No. CV 09-5243 PJH (NJV).
June 27, 2011
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL (Docket Nos. 220, 228)
The following motions are pending: Defendant Sun Microsystems, Inc.'s motion for a protective order; Plaintiff Abstrax, Inc.'s motion for case-dispositive sanctions and, alternatively, for further discovery and evidentiary sanctions; and Abstrax's motions to seal portions of its sanctions motion, supporting declaration, and portions of its opposition to Defendant's motion for a protective order. Doc. Nos. 216, 218, 220, 228. The district court has referred the parties' discovery motions and all future discovery matters to this Court for determination. Doc. No. 215. Having carefully considered the papers submitted, the Court GRANTS in part and DENIES in part Abstrax's motions to seal.
DISCUSSION
A. Legal Standard
A motion to seal documents that are not part of the judicial record, such as "private materials unearthed during discovery," is governed by Federal Rule of Civil Procedure 26(c), which "provid[es] that a trial court may grant a protective order `to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'" Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006)). As the Ninth Circuit explained, "[t]he relevant standard for purposes of Rule 26(c) is whether `'good cause' exists to protect th[e] information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality.'" Id. (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). The good cause standard also applies to sealed documents attached to nondispositive motions. Id. at 678-79 (explaining that documents attached to a summary judgment motion are not governed by the good cause standard because summary judgment motions are dispositive).
A motion to seal documents that are part of the judicial record, on the other hand, is governed by the higher "compelling reasons" standard. Pintos, 605 F.3d at 678. The "party seeking to seal judicial records must show that `compelling reasons supported by specific factual findings . . . outweigh the general history of access and the public policies favoring disclosure.'" Id. (quoting Kamakana, 447 F.3d at 1178-79). The trial court must weigh relevant factors including the "public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets." Id. at 679 n. 6 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)).
While the decision to grant or deny a motion to seal is within the trial court's discretion, the trial court must articulate its reasoning in deciding a motion to seal. Id. at 679. Here, the good cause standard applies to Abstrax's request to seal portions of its opposition to Sun's motion for a protective order, which is a nondispositive motion. The compelling reasons standard applies to Abstrax's request to seal portions of its motion for case-dispositive sanctions and supporting declaration because Abstrax's motion is a dispositive one.
B. Analysis
Pursuant to the parties' stipulated protective order, Abstrax has filed motions to seal portions of its motion for case dispositive sanctions, Declaration of Jeff Eichmann supporting its motion, and its opposition to Sun's motion for a protective order. Doc. Nos. 220, 228. Abstrax seeks to seal Sun's confidential information regarding revenue, products, internal manufacturing procedures, source code development, and deposition testimony regarding the same. Pursuant to the Local Rules, Sun has submitted declarations in support of Abstrax's motions to seal, but states that certain portions of Abstrax's filings that have been redacted do not need to be sealed because they do not actually contain Sun's confidential information. Declaration of J. Michael Woods, ¶¶ 3-5 (Doc. No. 223).
1. Sealing Not Warranted
The Court finds that the redacted portions of Abstrax's filings that do not contain Sun's confidential information do not warrant sealing and are specifically identified below in Section C. The Court recognizes that Abstrax, in an abundance of caution, requested sealing portions of its filings where the underlying information or testimony was previously designated by Sun as confidential. The Court summarizes those portions of Abstrax's filings that do not warrant sealing. First, portions of Abstrax's motion and opposition that generally describe Sun's products, procedures, or document collection efforts do not warrant sealing. See, e.g., Pl.'s Mot. at 6:13-14, 7:6-8, 7:11-12, 9:7-9, 9:12-13, 13:27-14:2, 14:4-5, 14:11-14, 16:1-6, 17:2-8, 22:17-18 (Doc. No. 218); Pl.'s Opp. at 8:21-9:4 (Doc. No. 226).
Second, the email addresses for distribution lists and names of individuals for which Abstrax seeks additional discovery do not warrant sealing. They were not sealed in Abstrax's proposed alternative order granting additional discovery and Sun did not object to the filing in the public record of Abstrax's proposed alternative order. See Eichmann Decl. ¶ 113 (Doc. No. 219); Pl.'s Mot., Ex. B, Proposed Order re: additional discovery (Doc. No. 218-2).
Third, Abstrax seeks to seal the entirety of exhibits 4a through 4u, which consist of meet and confer correspondence between counsel, based on confidential Sun information. Sun, however, only identifies nine (9) of these exhibits as containing its confidential information: exhibits 4h, 4l, 4m, 4n, 4o, 4p, 4q, 4t, and 4u. Woods Decl., ¶ 5 (Doc. No. 223). While exhibits 4h, 4l, 4o, 4p, 4t, and 4u do contain some confidential Sun information that warrants sealing, the vast majority of these exhibits should not be sealed because they generally discuss discovery and the parties' meet and confer process. See, e.g., Eichmann Decl., Ex. 4h at 4-5 (confidential portion represents less than one page of the five page letter). In addition, much of the material in this correspondence has been raised in the pending motions and is unredacted. Sun is instructed to identify those portions of exhibits 4h, 4l, 4o, 4p, 4t, and 4u that contain Sun's confidential information and to file redacted versions of these exhibits.
Sun does not seek to seal the remaining twelve (12) exhibits, including exhibits 4a through 4g, 4i, 4j, 4k, 4r, and 4s. In addition, various portions of the meet and confer correspondence were described, quoted, and unredacted in Abstrax's declaration supporting its sanctions motion, which further supports unsealing the exhibits themselves. See Eichmann Decl., ¶¶ 71-78, 80-82, 90. The Court agrees that these remaining twelve (12) exhibits do not warrant sealing.
2. Sealing Warranted
The Court finds that those portions of Abstrax's filings that include Sun's confidential information regarding revenue, products, internal manufacturing procedures, source code development, and related deposition testimony meet the compelling reasons standard and outweigh disclosure. These portions of Abstrax's filings have not been filed into the public record and they represent confidential information that would be harmful to Sun if disclosed. Therefore, the Court grants in part Abstrax's motions to seal.
The Court notes that Abstrax has properly attached excerpted portions of the related deposition testimony, not the entire deposition transcripts. See Eichmann Decl., Exs. 7, 9, 15.
The Court notes that Defendant Sun's declaration in support of Abstrax's motion to seal its motion for sanctions and supporting declaration is inconsistent. For example, Sun seeks to seal ¶ 19 of the Eichmann declaration, but does not seek to seal the portion of Abstrax's motion at page 3:23-4:5 that addresses this same testimony by Mr. Gupta. Doc. No. 223.
C. Conclusion
In conclusion, after carefully reviewing the papers submitted, the Court grants in part and denies in part Abstrax's motions to seal. The following portions will be unsealed:
1) Abstrax's motion for sanctions: 5:3-12, 5:16-6:10, 6:13-14, 7:6-8, 7:11-12, 9:7-9, 9:12-13, 10:23-11:2, 11:27-28, 13:27-14:2, 14:4-5, 14;11-14, 16:2-6, 16:13, 17:2-8, and 22:17-18.
2) Eichmann Declaration: ¶ 35 at 16:14-15, ¶ 113; Exs. 4a through 4g, 4i, 4j, 4k, 4r, and 4s; and portions of Exs. 4h, 4l, 4o, 4p, 4t, and 4u, as identified by Sun.
3) Abstrax's opposition to Sun's protective order motion: 8:4-12 and 8:20-9:4.
Other than the portions identified above to be unredacted and filed into the public record, the remainder of Abstrax's request to seal other portions of its filings is granted and will be sealed. Within fourteen (14) days of the filing of this order: a) Plaintiff is directed to file revised, redacted versions of its motion for sanctions, supporting Eichmann declaration and exhibits, and its opposition to Sun's motion for a protective order into the public record and unredacting the portions identified above; and b) Sun is directed to file redacted versions of exhibits 4h, 4l, 4o, 4p, 4t, and 4u to the Eichmann Declaration.
Plaintiff is instructed to only re-file those exhibits which are now unsealed: Exhibits 4a through 4g, 4i, 4j, 4k, 4r, and 4s. Plaintiff need not re-file its entire set of exhibits in support of its motion for sanctions.
Sun is also instructed to lodge with the Court two (2) copies of the unredacted versions of these exhibits that highlight the portions it seeks to seal and redact.