Opinion
Case No. 14-cv-05344-BLF
11-29-2016
CISCO SYSTEMS INC, Plaintiff, v. ARISTA NETWORKS, INC., Defendant.
OMNIBUS ORDER RE PRETRIAL SEALING MOTIONS
[Re: ECF 612, 616, 617, 631, 632, 641, 652, 660, 662]
This order addresses administrative motions to file under seal portions of its briefing and exhibits filed by Arista Networks, Inc. ("Arista") and Cisco Systems Inc. ("Cisco") in support of their trial briefs. ECF 612, 616, 617, 631, 632, 641, 652. It also addresses the motions to file under seal portions of the Court's Order re motions in limine and a pretrial conference transcript. ECF 660, 662. For the reasons stated below, the motions are GRANTED IN PART and DENIED IN PART.
I. LEGAL STANDARD
"Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are "more than tangentially related to the merits of a case" may be sealed only upon a showing of "compelling reasons" for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of "good cause." Id. at 1097. In addition, sealing motions filed in this district must be "narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). A party moving to seal a document in whole or in part must file a declaration establishing that the identified material is "sealable." Civ. L.R. 79-5(d)(1)(A). "Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable." Id.
II. DISCUSSION
The Court has reviewed the parties' sealing motions and declarations in support thereof. The Court finds the parties have articulated compelling reasons to seal certain portions of most of the submitted documents. The proposed redactions are also narrowly tailored. The Court's rulings on the sealing requests are set forth in the tables below:
A. ECF 612
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Exhibit 9 to the Declarationof Ryan Wong In Support ofDefendant Arista Networks,Inc.'s Opening Brief reAnalytic Dissection ("WongDeclaration") (CiscoInterrogatory Responses,Exhibit G) | The entire document containsinformation relating to highlyconfidential source code ofCisco and Arista. | GRANTED. |
| Exhibit 10 to the WongDeclaration (CiscoInterrogatory Responses,Exhibit H) | The entire document containsinformation relating to highlyconfidential source code ofCisco and Arista. | GRANTED. |
| Exhibit 11 to the WongDeclaration (Compilation ofDeposition TranscriptExcerpts) | Pages 9:21-23 of the Liexcerpt; and pages 8:11-19 ofthe Liu excerpt are previouslyfiled under seal per the Court'sAugust 24, 2016 order (ECF487) at 24. The excerptscontain Cisco's confidentialbusiness informationpertaining to its source code. | GRANTED. |
| Exhibit 13 to the WongDeclaration (Ciscodocument) | Entire document containsCisco's confidential businessinformation regarding Cisco'sproduct design.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 21. | GRANTED. |
| Exhibit 14 to the WongDeclaration (Ciscodocument) | Entire document containsCisco's confidential businessinformation regarding Cisco'sproduct design.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 21. | GRANTED. |
| Exhibit 15 to the WongDeclaration (Li DepositionExcerpts) | Pages 9:21-23; 152:8-20;227:19-22; 236:22-24 containpersonal information about thewitness and confidentialinformation about Cisco'sproduct development.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 18. | GRANTED. |
| Exhibit 16 to the WongDeclaration (March 31, 2016Remaker DepositionExcerpts) | Pages 27:1-29:25; 38:2-45:25;50:2-57:25; 62:1-73:24; 82:1-85:19 contain confidentialinformation about Cisco'sproduct development.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 19. | GRANTED. |
| Exhibit 17 to the WongDeclaration | Entire document containsCisco's confidential businessinformation regarding Cisco'sproduct development.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 20-21. | GRANTED. |
| Exhibit 18 to the WongDeclaration (SweeneyDeposition Excerpts) | Entire document discusses anddiscloses internal, non-publicinformation regarding thedevelopment and developmentprocess of the Arista EOSsoftware, including detailsregarding how certaintechnologies were integratedinto Arista's products.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 21. | GRANTED. |
| Exhibit 20 to the WongDeclaration (Black OpeningExpert Report) | Portions previously orderedfiled under seal: Paragraphs ¶¶298, 397, 519, 525, and 678(i);portions quoting or referencing | GRANTED. |
| deposition of Philip Kasten;highlighted portions ofParagraphs ¶¶ 120, 123-125,132, 161, 433, 438, 448-459, 461-471, 478-482, 498,500-502, 504, 508, 510, 514,515, 570, 580, 636, 689-691,696, 700 and footnotes 32, 35,40, and 128 contain Cisco'sand Arista's confidentialbusiness information.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 14, andAugust 26, 2016 order (ECF490) at 2. | ||
| Exhibit 22 to the WongDeclaration (Black RebuttalExpert Report) | Paragraphs ¶¶ 148, 155, 156,160-166, and 169-171; and 50-51, 55, 148, 155, 156, 159,160, 165, and 170 containCisco's and Arista'sconfidential information.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 22. | GRANTED. |
| Exhibit 30 to the WongDeclaration (April 4, 2016Lougheed DepositionExcerpts) | Pages 259:15-260:22; 261:18-22; 267:4-295:1; 296:23-298:16, 346:18-374:18; 379:2-25 contain confidentialinformation regarding Cisco'ssource code and productdevelopment.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 19-20. | GRANTED. |
| Exhibit 32 to the WongDeclaration (Kasten(Juniper) DepositionExcerpts) | Entire document containsconfidential information andtrade secret information ofnon-party, Juniper Networks,Inc. regarding its proprietarysoftware.Previously filed under seal perthe Court's October 27, 2016order (ECF 604) at 2. | GRANTED. |
| Exhibit 33 to the Wong | Pages 50:6; 54:12 contain | GRANTED. |
| Declaration (DellCorporation RepresentativeDeposition Excerpts) | identity of the customer of Mr.Cato's previous employer,which constitutes confidentialbusiness information.Previously filed under seal perthe Court's August 26, 2016order (ECF 490) at 2. | |
| Exhibit 36 to the WongDeclaration (Liu DepositionExcerpts) | Pages 167-172 contain Cisco'sconfidential businessinformation about Cisco'sproduct development.Previously filed under seal perthe Court's October 27, 2016order (ECF 604) at page 3. | GRANTED. |
| Exhibit 38 to the WongDeclaration (BlackSupplemental Report) | Paragraphs 13, 23, 35, 59, 76,78, 80, 84, 85, 98, 99, 100 andfootnote 11 containconfidential source code,discussions of relatedconfidential third-party sourcecode, as well as confidentialinformation about Cisco'slicenses, businessdevelopment, and competitiveintelligence.Previously filed under seal perthe Court's October 27, 2016order (ECF 604) at 2. | GRANTED. |
| Exhibit 39 to the WongDeclaration (September 16,2016 Lougheed DepositionExcerpts) | Pages 506, 583-584, 587-588,and 626 contain confidentialinformation about Cisco'ssource code and productdevelopment.Previously filed under seal perthe Court's October 27, 2016order (ECF 604) at 3. | GRANTED. |
| Exhibit 42 to the WongDeclaration (November 20,2016 Lougheed DepositionExcerpts) | Pages 55:2-56:18, 95:9-99:14;178:11-13 contain confidentialinformation about Cisco'ssource code and productdevelopment.Previously filed under seal perthe Court's August 24, 2016 | GRANTED. |
| order (ECF 487) at 18. | ||
| Exhibit 44 to the WongDeclaration (March 30, 2016Remaker DepositionExcerpts) | Page 8:17-18 contains personalinformation related to thewitness.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 22. | GRANTED. |
| Exhibit 45 to the WongDeclaration (Patil Email) | Entire document containsconfidential businessinformation regarding Cisco'sproduct development.Previously filed under seal perthe Court's August 24, 2016order (ECF 487) at 20. | GRANTED. |
B. ECF 616
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Cisco's Trial Brief Re:Analytic Dissection | Arista does not seek to seal thehighlighted portions. | DENIED. |
| Exhibit A to theDeclaration of Kevin C.Almeroth in Support ofCisco's Trial Brief Re:Analytic Dissection (copy ofhis Opening reportdated June 3, 2016) | The highlighted portionscontain Cisco's and Arista'sconfidential businessinformation includinginformation regarding productarchitecture, development,support and documentation;customer communications,sales, sales strategies, andtesting and analysisprocedures.The Court has previouslygranted the sealing of thehighlighted portions of thisdocument. ECF 487 at 5-10. | GRANTED. |
| Exhibit C to theDeclaration of Kevin C.Almeroth in Support ofCisco's Trial Brief Re:Analytic Dissection (Evidenceof Command Copying Table) | Highlighted portions containArista's source code and thedevelopment timeline ofArista's products. | GRANTED. |
| Exhibit F to theDeclaration of Kevin C.Almeroth in Support ofCisco's Trial Brief Re:Analytic Dissection (Evidenceof Hierarchy Copying Table) | Highlighted portions containArista's source code and thedevelopment of Arista'sproducts. | GRANTED. |
| Exhibit G to theDeclaration of Kevin C.Almeroth in Support ofCisco's Trial Brief Re:Analytic Dissection(Interrogatory 2, Evidence ofHelp Description Copying) | Entire document containsCisco's and Arista'sconfidential businessinformation regarding sourcecode. | GRANTED. |
| Exhibit H to theDeclaration of Kevin C.Almeroth in Support ofCisco's Trial Brief Re:Analytic Dissection (copy ofKevin Almeroth's Rebuttalreport dated June 17, 2016) | Highlighted portions of containCisco and Arista's confidentialbusiness information.The Court has previouslygranted the sealing of thehighlighted portions of thisdocument. ECF 487 at 10-13. | GRANTED. |
| Exhibit 1 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (excerpt ofOpening Expert Report of Dr.John Black) | Highlighted portions containdiscussions of Cisco'sconfidential source code anddiscussions of relatedconfidential third-party sourcecode.The Court has previouslygranted the sealing of thehighlighted portions of thisdocument. ECF 487 at 14-15. | GRANTED. |
| Exhibit 2 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (copy ofCisco's Supplemental ExhibitF to Cisco's SupplementalResponses to InterrogatoryNos. 16 & 19) | Highlighted portions containCisco's confidential sourcecode.The Court has previouslygranted a motion to seal theseportions. | GRANTED. |
| Exhibit 4 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (FirstSupplemental Exhibit I toInterrogatory No. 31 (Oct. 14, | Arista does not seek to sealthis exhibit. | DENIED. |
| 2016)) | ||
| Exhibit 11 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (Excerptsof Deposition Transcript ofAdam Sweeney) | Pages 174:3-175:3; 176:7-25;and 216:1-219:25 containArista's confidential businessinformation and productdevelopment. | GRANTED as to pages 174:3-175:3; 176:7-25; and 216:1-219:25; and DENIED as toremainder. |
| Exhibit 13 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissect (Excerpt fromthe deposition of PhillipRemaker) | Cisco's declaration states thatthe "highlighted portions"contain confidentialinformation about Cisco'sproduct development. JenkinsDecl. ¶ 10, ECF 616-1.However, the motion seeks toseal the entire exhibit and nodocument with partialredaction or highlightedportions has been provided. | DENIED. |
| Exhibit 16 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (Arista'ssupplemental discoveryresponses to Cisco'sInterrogatory No. 9.) | The following portions of thisdocument contain Arista'sconfidential informationrelating to product design anddevelopment:• The table starting on page8, line 13, and ending onPage 9, line 28;• The table starting on page10, line 6, and ending onPage 12, line 3;• The table starting on page12, line 13, and ending onPage 16, line 11;• The table starting on page16, line 20, and ending onPage 23, line 15;• The information on page23, lines 16 through 27. | GRANTED as to the tablestarting on page 8, line 13, andending on page 9, line 28; thetable starting on page 10, line6, and ending on page 12, line3; the table starting on page 12,line 13, and ending on page 16,line 11; the table starting onPage 16, line 20, and ending onPage 23, line 15; theinformation on page 23, lines16 through 27; and DENIEDas to remainder. |
| Exhibit 17 to theDeclaration of DrewHolmes in Support ofCisco's Trial Brief Re:Analytic Dissection (Arista'ssupplemental discoveryresponses to Cisco'sInterrogatory No. 26.) | The table starting on page 7,line 11, and ending on page 18,line 13 contains Arista'sconfidential businessinformation regarding internalproduct design anddevelopment. | GRANTED as to the tablestarting at 7:11, and ending at18:13; and DENIED as toremainder. |
C. ECF 617
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Arista's Opening Brief reAnalytic Dissection | Third-party Juniper Networksseeks to seal highlightedportions of the footnote onpage 12, except for the last lineof the footnote, and thehighlighted portions at 19:20-23. These portions containconfidential informationrelating to Juniper's software.No other parties seek to sealthe remaining portions. | GRANTED as to highlightedportions of the footnote onpage 12, except for the last lineof the footnote, and thehighlighted portions at 19:20-23; and DENIED as toremainder. |
D. ECF 631
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Cisco's Trial Brief re:Copyrighted Work | The highlighted portion at 2:7-9 contains confidentialinformation regarding Arista'sproduct development. | GRANTED as to thehighlighted portion of2:7-9; and DENIED as toremainder. |
E. ECF 632
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Exhibit 1 to the Declarationof Audrey Hadlock ISOArista's Brief Re DefiningCisco's Copyrighted Works(Cisco InterrogatoryResponses) | Cisco has not filed adeclaration in support ofsealing this exhibit. | DENIED. |
F. ECF 641
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Cisco's Trial Brief | Arista has not filed adeclaration in support ofsealing the highlightedportions of this exhibit. | DENIED. |
G. ECF 652
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Cisco's Response toArista's Brief re: AnalyticDissection | Portions at 2:20-3:5 and 11:19-28 contain confidentialinformation relating to designand development of Aristasoftware and product | GRANTED as to pages 2:20-3:5 and 11:19-28; andDENIED as to remainder. |
| development strategies. | ||
| Exhibit 1 to theDeclaration of John M.Neukom (November 20,2015 excerpt of depositiontranscript of KirkLougheed) | Although Cisco submitted adeclaration in support ofsealing portions of the exhibitcontaining information relatingto Cisco's productdevelopment and architecture,the portions designated to besealed in the motion do notcorrespond to the highlightedportions in the unredactedexhibit. Accordingly, theCourt cannot assess whatportions are sought to beredacted and whether they arenarrowly tailored. | DENIED. Compare ECF 652(designating portions at 131:1-135:25; 141:1-143:25; 166:1-169:25 to be sealed) with ECF652-5; see also Civil L.R. 79-5(d)(1). |
|---|---|---|
| Exhibit 2 to theDeclaration of John M.Neukom (March 17, 2016excerpt of the depositiontranscript of the AnshulSadana) | Arista does not seek to sealthis exhibit. | DENIED. |
H. ECF 660
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| Court's Order re Motions inLimine | Portions at 7:15, 7:28, 8:2, and12:19-21, starting with"Arista's Senior VicePresident" and ending with"publicly," contain Arista'sconfidential businessinformation. | GRANTED. |
I. ECF 662
| Identification of Documentsto be Sealed | Description of Documents | Court's Order |
|---|---|---|
| November 3, 2016 PretrialConference Transcript | Highlighted portions at 59:22-25; 60:1-2; 62:12-16; 65:11-17; 66:2-4, 8-17; 93:19-20, and93:23 contain confidentialinformation relating to theInternational TradeCommision's determinationthat is under seal. | GRANTED. |
III. ORDER
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the aforementioned sealing motions. Under Civil Local Rule 79-5(e)(2), for any request that has been denied because the party designating a document as confidential or subject to a protective order has not provided sufficient reasons to seal, the submitting party must file the unredacted (or lesser redacted) documents into the public record no earlier than 4 days and no later than 10 days form the filing of this order. With respect to the motions at ECF 660 and 662, Arista is ordered to file redacted versions of the Court's Order re motions in limine and of the pretrial conference transcript within 10 days from the filing of this order.
IT IS SO ORDERED. Dated: November 29, 2016
/s/_________
BETH LABSON FREEMAN
United States District Judge