Opinion
Case No. 2:12-cv-1952-GMN-VCF
02-14-2014
HYPERTHERM, INC., Plaintiff, v. PROFILE CUTTING TECHNOLOGIES LTD. et al. Defendant.
W. WEST ALLEN STEVEN M. BAUER (Pro Hac Vice) JOSEPH A. CAPRARO, JR. (Pro Hac Vice) PROSKAUER ROSE LLP Attorneys for Plaintiff
W. WEST ALLEN
Nevada Bar No. 5566
LEWIS ROCA ROTHGERBER
3993 Howard Hughes Parkway, Suite 600
Las Vegas, Nevada 89169
Telephone: (702) 949-8200
Facsimile: (702) 949-8365
wallen@lrlaw.com
STEVEN M. BAUER (Pro Hac Vice)
sbauer@proskauer.com
JOSEPH A. CAPRARO, JR. (Pro Hac Vice)
jcapraro@proskauer.com
PROSKAUER ROSE LLP
One International Place
Boston, MA 02110
Telephone: (617) 526-9600
Facsimile: (617) 526-9899
Attorneys for Plaintiff
PLAINTIFF HYPERTHERM, INC.'S
MOTION FOR LEAVE TO FILE
DECLARATION AND EXHIBIT A
UNDER SEAL
Plaintiff Hypertherm, Inc. requests leave to file the Declaration of Joseph A. Capraro in support of Plaintiff's motion for attorneys' fees and costs, and its corresponding Exhibit A regarding attorney billing records and rates, under seal pursuant to Local Rule 10-5(b).
This motion is made and based upon the papers and pleadings on file herein, and such oral argument as the Court deems appropriate.
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff seeks an order granting leave to file its billing records and rates, and the supporting declaration in support of its Motion for Attorneys' Fees and Costs, under seal. This motion is necessary to protect the confidentiality of attorney billing rates and attorney work product.
I. LEGAL ARGUMENT
The public interest in full disclosure of documents is limited to ensuring the "public's understanding of the judicial process and of significant public events." Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (quoting Valley Broadcasting Co. v. US. Dist. Ct., 798 F.2d 1289, 1295 (9th Cir.1986)). When a party requests to file documents under seal, the Court must balance the compelling reason for sealing the document with the public interest favoring disclosure. Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010). Documents will be sealed where compelling reasons "outweigh the general history of access and the public policies favoring disclosure . . . ." Kamakana, 447 F.3d at 1178-1179. Compelling reasons exist for sealing documents where their disclosure may "gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Kamakana, 447 F.3d at 1179.
Further, under Nevada law, "a person has a privilege . . . to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him or her, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." Nev. Rev. Stat. § 49.325. Courts have recognized billing rates as trade secrets. See Courtesy Temporary Service, Inc. v. Camacho. 272 Cal. Rptr. 352, 358 (1990) (information that includes "billing rates, key contacts, specialized requirements and markup rates, is sophisticated information and irrefutably of commercial value and not readily ascertainable to other competitors.").
Here, Plaintiff must file with the Court detailed billing records and billing rates to support its request for attorneys' fees and costs against Defendants. These records contain negotiated billing rates for Plaintiff's attorneys, which is not information that is generally available to the public or to Plaintiff's attorneys' competitors. Additionally, the billing records contain descriptions of the work performed by Plaintiff's attorneys, which constitute confidential work product and attorney-client communications.
Therefore, Plaintiff seeks to submit the attorney billing records and rates, and its declaration in support of its motion that refers to these records and rates, under seal so as to protect the confidential nature of the bills, yet give the Court the opportunity to conduct an in camera review to assess whether Plaintiff's attorneys' fees and costs are reasonable.
CONCLUSION
Based upon the foregoing reasons, Plaintiff therefore respectfully requests the entry of an order granting leave to file under seal the Declaration of Joseph A. Capraro and its Exhibit A in support of Plaintiff's motion for attorneys' fees.
LEWIS ROCA ROTHGERBER
By __________
W. WEST ALLEN
STEVEN M. BAUER (Pro Hac Vice)
JOSEPH A. CAPRARO, JR. (Pro Hac Vice)
PROSKAUER ROSE LLP
Attorneys for Plaintiff
IT IS SO ORDERED.
__________
UNITED STATES MAGISTRATE JUDGE
CERTIFICATE OF SERVICE
I hereby certify that on January 27, 2014, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing on the CM/ECF registrants.
Judy Estrada
An Employee of Lewis and Roca