Opinion
20-cv-02146-WHO (JSC) 20-cv-02794-EMC (JSC) 20-cv-02965-JSW (JSC)
08-11-2021
SA MUSIC LLC, et al., Plaintiffs, v. APPLE, INC, et al., Defendants.
ORDER RE: CONFIDENTIALITY DESIGNATION DISPUTE
Re: Dkt. Nos. 78, 79
JACQUELINE SCOTT CORLEY, United States Magistrate Judge
Now pending before the Court is a discovery dispute regarding Apple's designation of a take-down notice and certain deposition testimony as confidential pursuant to the Protective Orders governing these related cases. (Dkt. Nos. 78, 79.)
Adasam, No. 20-cv-02146-WHO, Dkt. Nos. 78, 79; Pickwick, 20-cv-02794-EMC, Dkt. Nos. 81, 82; Genepool, No. 20-cv-02965-JSW, Dkt. Nos. 71, 72, 73, 74, 75.
The Protective Orders provide a process for challenging a party's confidentiality designations. (Adasam, No. 20-cv-02146-WHO, Dkt. No. 43 ¶ 6; Pickwick, 20-cv-02794-EMC, Dkt. No. 52 ¶ 6; Genepool, 20-cv-02965-JSW, Dkt. No. 44 ¶ 6.) The parties' joint letter does not comply with that process and the parties offer no explanation for their failure to do so. Further, Apple's response is unsupported by a declaration. The Court cannot treat attorney argument as evidence and thus Apple cannot meet its burden without a declaration. For example, when a document is filed under seal as having been designated as confidential by a party, the designating party must submit a declaration attesting to facts that show that the document is indeed confidential. See N.D. Cal. Civ. L.R. 79-5(d). Finally, the parties' letter brief refers to an Exhibit 2 with highlighted deposition testimony. The letter briefs in Adasam do not have an Exhibit 2 and the attached deposition testimony is not highlighted. (No. 20-cv-02146-WHO, Dkt. Nos. 78, 79.) The same is true for Pickwick. (No. 20-cv-02794-EMC, Dkt. Nos. 81, 82.) Genepool inexplicably has several versions of the same letter brief, (No. 20-cv-02965, Dkt. Nos. 71, 72, 73, 74, 75), but only one has Exhibit 2 with the highlighted deposition transcript, (Dkt. No. 75). For all of these reasons the Court concludes that the confidentiality dispute is not properly presented for decision.
If the parties wish to properly brief this issue before the Court, they must do so on or before August 18, 2021. Another way to proceed is pursuant to Civil Local Rule 79-5 in connection with Plaintiffs' summary judgment filings. If Plaintiffs wish to file a document which Apple has designated as confidential, then they can follow the procedures set forth in Rule 79-5. Apple will then have the burden of proving that those documents should be sealed from public view. N.D. Cal. Civ. L.R. 79-5(e).
The administrative motion to file provisionally under seal is GRANTED given that the Court is not adjudicating the merits of the confidentiality designations.
This Order disposes of Docket Nos. 78, 79 in Adasam, No. 20-cv-02146-WHO; Docket Nos. 81, 82 in Pickwick, No. 20-cv-02794-EMC; and Docket Nos. 74, 75 in Genepool, No. 20-cv-02965-JSW.
IT IS SO ORDERED.