Opinion
Case No. 14-cv-02868-JD
08-18-2015
ALTERA CORPORATION, Plaintiff, v. PACT XPP TECHNOLOGIES, AG, Defendant.
ORDER RE ADMINISTRATIVE MOTIONS TO SEAL
Re: Dkt. Nos. 55, 58, 72, 79, 88, 106, 205
This order resolves the pending administrative motions to file documents under seal in this case. One of the motions, filed at Dkt. No. 58, is associated with a motion that has since been withdrawn, and is therefore moot. See Notice of Withdrawal of Motion, Dkt. No. 66. Another, filed at Dkt. No. 106, involved a document that the Court had previously given permission to be filed under seal, see Dkt. No. 105, and is therefore granted. The Court rules on the remaining motions, filed at Dkt. Nos. 55, 72, 79, 88, and 205, as set forth below.
I. GOVERNING STANDARD
In our circuit, in evaluating a motion to seal, two different standards apply depending on whether the request is being made in connection with a dispositive motion or a non-dispositive motion.
For dispositive motions, the historic, "strong presumption of access to judicial records" fully applies, and a party seeking sealing must establish "compelling reasons" to overcome that presumption. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). This standard presents a "high threshold," and "a 'good cause' showing will not, without more, satisfy" it. Id. at 1180 (citations omitted). When ordering sealing in this context, the district court must also "articulate the rationale underlying its decision to seal." Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011).
The non-dispositive motion context is different. There, "the usual presumption of the public's right of access is rebutted," the "public has less of a need for access to court records attached only to non-dispositive motions," and the "public policies that support the right of access to dispositive motions, and related materials, do not apply with equal force to non-dispositive materials." Kamakana, 447 F.3d at 1179-80 (citations omitted). Therefore, in that context, materials may be sealed so long as the party seeking sealing makes a "particularized showing" under the "good cause" standard of Federal Rule of Civil Procedure 26(c). Id. at 1180 (quoting Foltz, 331 F.3d at 1138). In either case, however, "[a]n unsupported assertion of 'unfair advantage' to competitors without explaining 'how a competitor would use th[e] information to obtain an unfair advantage' is insufficient." Hodges v. Apple, Inc., No. 13-cv-01128-WHO, 2013 WL 6070408, at *2 (N.D. Cal. Nov. 18, 2013) (quoting Dunbar v. Google, Inc., No. 5:12-cv-003305-LHK, 2012 WL 6202719, at *4-5 (N.D. Cal. Nov. 18, 2013)).
In our district, in addition to meeting the applicable standard under Kamakana, all parties requesting sealing must also comply with Civil Local Rule 79-5, including that rule's requirement that the request must "establish[] that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law," i.e., is "sealable." Civil L.R. 79-5(b). The sealing request must also "be narrowly tailored to seek sealing only of sealable material." Id.
II. DISCUSSION
Each of the pending motions is associated with non-dispositive motions, so the "good cause" standard applies.
A. PACT's January 8, 2015, Motion (Dkt. No. 55)
PACT's administrative motion to seal seeks to seal portions of its motion for leave to amend its infringement contentions, as well as portions of the exhibits, based on the fact that Altera designated the material "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" under the protective order in this case. Pursuant to Civil Local Rule 79-5(e), Altera submitted a declaration seeking to establish that the material in question is sealable. See Declaration of Adela Gotz, Dkt. No. 64. The Court rules as follows:
| Document | Portions to Be FiledUnder Seal | Reason Material isSealable | Ruling |
|---|---|---|---|
| PACT's Motionfor Leave toAmend itsInfringementContentions | As indicated in the publicredacted version of PACT'sMotion for Leave toAmend its InfringementContentions, line 6 of page4. | Refers to sealablematerial fromexhibits. | Granted. |
| Exhibit A toPACT's Motionfor Leave toAmend itsInfringementContentions | As indicated in the publicredacted version of ExhibitA attached to theDeclaration of Kristen E.Lovin, portions of pages:37-45; 299-308; 480-488;599-608; 626-630; 633-635; 638-642; 703-704;706-710; 749-750; 752-755; 791-800; 817-819;823-827; 846-847; 877-878; 884-887; 927-935;955-957; 962-966; 1045-1054; 1077-1081; 1098-1102; 1133-1136; 1150-1158; 1170-1171; 1181-1189; 1235; 1248-1256;1269-1270; 1281-1282;1292-1293; 1304-1307;1319;1365-1366; 1376-1377; 1381-1382; 1398-1399; 1434-1444; 1458-1462; 1469-1473; 1503-1505; 1521-1522; 1527-1536; 1562-1563; 1576;1584-1585; 1590-1591;1603-1605; 1614; 1651-1660; 1677-1681; 1689-1693; 1720-1723; 1743;1751-1759; 1786-1787;1820-1829; 1832-1838;1894-1899; 1949-1959;1961-1967; 2029-2035;2076-2086; 2088-2094;2163-2169; 2187-2188;2244-2245; 2250; 2270;2272-2276; 2355-2356;2366; 2392-2395; 2443-2444; 2454; 2484-2487;2550-2551; 2556; 2585;2588-2592; 2663-2664;2674; 2700-2702; 2786-2787; 2801; 2837-2840;2895-2896; 2902; 2921;2923-2927; 3007-3030; | Information is takenfrom sensitive internalproduct designdocuments andelectronic schematicfiles whose disclosurecould provide anunfair advantage tocompetitors. See GotzDecl. ¶ 3. | Granted. |
| 3059-3074; 3155-3179;3211-3228; 3298-3322; and3349-3365. | |||
| Exhibit G toPACT's Motionfor Leave toAmend itsInfringementContentions | As indicated in the publicredacted version of ExhibitG attached to theDeclaration of Kristen E.Lovin, portions of pages: 1and 3. | Internal code namesand file names thatcould causecompetitive harm ifdisclosed tocompetitors or others.See Gotz Decl. ¶ 4. | Granted. |
|---|---|---|---|
| Exhibit H toPACT's Motionfor Leave toAmend itsInfringementContentions | As indicated in the publicredacted version of ExhibitH attached to theDeclaration of Kristen E.Lovin, portions of page 1. | Internal code namesand file names thatcould causecompetitive harm ifdisclosed tocompetitors or others.See Gotz Decl. ¶ 4. | Granted. |
B. PACT's January 22, 2015, Motion (Dkt. No. 72)
PACT's administrative motion to seal seeks to seal portions of its motion to disqualify Dr. Harry Tredennick, along with the entirety of three transcripts from the deposition of Dr. Tredennick in PACT XPP Technologies, AG v. Xilinx, Inc., Case No. 2:07-cv-563-CE, in the Eastern District of Texas and Dr. Tredennick's validity expert report in that case.
PACT says that the material is sealable because third-party Xilinx has designated the material "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY" under the protective order in this case. Pursuant to Civil Local Rule 79-5(e), Xilinx submitted a declaration seeking to establish that the material in question is sealable. See Declaration of Marc Cohen, Dkt. No. 64. The Court rules as follows:
| Document | Portions to Be FiledUnder Seal | Reason Material isSealable | Ruling |
|---|---|---|---|
| PACT's Motion | As indicated in the publicredacted version ofPACT's Motion toDisqualify Dr. HarryTredennick and Motionfor Protective Order,portions of pages: 9, 10,and 11. | Refers to sealablematerial fromexhibits. | Denied. Theredacted portionsgive a roughestimate of thenumber of hoursspent by Dr.Tredennick on theTexas litigation andprior art referencesdiscussed in hisexpert report thatAltera relies on in |
| this case. Xilinx'sdeclaration makesno showing of goodcause to seal thisinformation. | |||
| Exhibit G toPACT'S Motion | Entire document | Contains Xilinxproprietarytechnicalinformation and itwould beburdensome fornon-party Xilinx toredact only theconfidentialportions. | Granted.Ordinarily, theCourt would notpermit an entiredocument to besealed where onlysubsets of thedocument aresealable. See CivilL.R. 79-5(b)(requests to seal"must be narrowlytailored to seeksealing only ofsealable material").But in light of thefact that Xilinx is athird party and theburdens involved inredacting adocument of thissize, the Courtgrants the request. |
|---|---|---|---|
| Exhibit H toPACT'S Motion | Entire document | Contains Xilinxproprietarytechnicalinformation and itwould beburdensome fornon-party Xilinx toredact only theconfidentialportions. | Granted. Seeabove. |
| Exhibit I toPACT'S Motion | Entire document | Contains Xilinxproprietarytechnicalinformation and itwould beburdensome fornon-party Xilinx toredact only theconfidentialportions. | Granted. Seeabove. |
| Exhibit J toPACT'S Motion | Entire document | Contains Xilinxproprietarytechnicalinformation and it | Granted. Seeabove. |
| would beburdensome fornon-party Xilinx toredact only theconfidentialportions. |
C. PACT's January 29, 2015, Motion (Dkt. No. 79)
PACT's administrative motion to seal seeks to seal portions of an Altera interrogatory response attached to its reply in support of its motion for leave to amend its infringement contentions, based on the fact that Altera designated the material "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY" under the protective order in this case. Pursuant to Civil Local Rule 79-5(e), Altera submitted a declaration seeking to establish that the material in question is sealable. See Declaration of Adela Gotz, Dkt. No. 82. The Court rules as follows:
| Document | Portions to Be FiledUnder Seal | Reason Material isSealable | Ruling |
|---|---|---|---|
| Exhibit M toPACT's Replyin Support of itsMotion forLeave to Amendits InfringementContentions | Portions of pages 3 and 4,as indicated in the publicredacted version. | Internal projectnumbers and productnames that couldcause competitiveharm if disclosed tocompetitors or others.See Gotz Decl. ¶ 3. | Granted. Themotion only seeksto redact twocolumns from anAlterainterrogatoryresponse listingproject numbersand internalproduct names. |
D. PACT's February 12, 2015, Motion (Dkt. No. 88)
PACT's administrative motion to seal seeks to seal portions of its reply in support of its motion to disqualify Dr. Harry Tredennick. PACT says that the material is sealable because third-party Xilinx has designated the material "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY" under the protective order in this case. Pursuant to Civil Local Rule 79-5(e), Xilinx submitted a declaration seeking to establish that the material in question is sealable. See Declaration of Marc Cohen, Dkt. No. 93. The Court rules as follows:
| Document | Portions to Be FiledUnder Seal | Reason Material isSealable | Ruling |
|---|---|---|---|
| PACT's Reply | As indicated in the publicredacted version ofPACT's Reply, portionsof pages 1 and 3-6. | Refers to sealablematerial fromexhibits. | Denied. Theredacted portionsgive a roughestimate of thenumber of hoursspent by Dr.Tredennick on theTexas litigation,objections made byPACT's counselduring hisdeposition in theTexas litigation, andother non-sensitivetestimony. Theinformation redactedat Dkt. No. 89 at2:12 was alreadyfiled in the publicrecord at Dkt. No.73 at 1:19. Xilinx'sdeclaration does notdiscuss, much lessshow good cause toseal, this specificinformation. |
A. PACT'S July 27, 2015, Motion (Dkt. No. 205)
PACT's administrative motion to seal seeks to seal portions of a discovery letter brief, based on the fact that Altera designated the material "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY" under the protective order in this case. Altera has not filed the supporting declaration necessary under Civil Local Rule 79-5(e) to maintain this information under seal, so the Court denies the motion.
III. CONCLUSION
To the extent an administrative motions to file under seal discussed in this order was denied with respect to a document, PACT should file an unredacted version of the document within 7 days of this order, except with respect to the administrative motion to file under seal at Dkt. No. 205. With respect to that motion, PACT should file the document in the public record no earlier than 4 days, and no later than 10 days, from the date of this order, pursuant to Civil Local Rule 79-5(e)(2).
IT IS SO ORDERED. Dated: August 18, 2015
/s/_________
JAMES DONATO
United States District Judge