Opinion
C 22-07611 WHA
08-19-2024
ORDER RE MOTIONS TO SEAL
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
This order addresses all pending motions to seal and supporting declarations (Dkt. Nos. 190, 191, 201-04, 208, 209, 224, 230, 237, 238, 241, 242, 251, 261, 272, 280, 298, 302, 340).
1. The Legal Standard.
There is a strong public policy in favor of openness in our court system and the public is entitled to know to whom we are providing relief (or not). See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 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.), cert. denied, 580 U.S. 815 (2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 1097. Evidentiary motions, like motions in limine and Daubert motions, can correlate with the merits of a case. Id. at 1098-1100. Indeed, the “‘compelling reasons' standard applies to most judicial records.” Id. at 1098 (quoting Pintos v. Pac. Creditors Ass 'n, 605 F.3d 665, 677-78 (9th Cir. 2010), cert. denied sub nom. Experian Info. Sols., Inc. v. Pintos, 562 U.S. 1134 (2011)).
Additionally, parties in this district must ensure their sealing motions meet basic adequacy requirements. Above all, they must “narrowly tailor” requests “to seal only the sealable material.” Civil L.R. 79-5(c). And they must list each document or passage to be sealed - here each passage (Dkt. No. 141) - together with its rationale for sealing. Ibid. For each listed, they must specifically state: (1) the legitimate private or public interests that warrant sealing; (2) the injury that will result should sealing be denied; and (3) why a less restrictive alternative to sealing is not sufficient. Civil L.R. 79-5(c). They must provide evidentiary support where necessary, such as by sworn declaration. Ibid. And, for pleadings, parties must file both redacted and unredacted copies (or ensure another party does), and include in the unredacted copies highlighting to show proposed redactions. Id. at (d)-(e). Failure to follow the rules suggests a lack of cause or interest to seal, and risks summary denial (Dkt. No. 141). See Civil L.R. 79-5(f)(6), (g)(2).
Redaction may be appropriate where publication “could result in infringement upon trade secrets.” Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011), cert. denied, 566 U.S. 986 (2012). So too where “business information” might “harm a litigant's competitive standing,” particularly where the public has “minimal interest” in that information. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). And, in general, redaction will be appropriate where publication would turn “court files [into] a vehicle for improper purposes,” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598), such as “to gratify private spite, promote public scandal, [or] circulate libelous statements,” ibid. But “vague boilerplate language or nebulous assertions of potential harm” will not suffice to support redaction. Bronson v. Samsung Elecs. Am., Inc., 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) (citing Civil L.R. 79-5). Nor will mere “[r]eference to a stipulation or protective order that allows a party to designate certain documents as confidential.” Civil L.R. 79-5(c); see also Kamakana, 447 F.3d at 1180. “A party seeking to seal a judicial record [ultimately] bears the burden of overcoming th[e] strong presumption” of public access. Kamakana, 447 F.3d at 1178. The final determination is “left to the sound discretion of the trial court.” Ctr. for Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 599).
Here, parties were reminded that “[n]oncompliant submissions are liable to be stricken in their entirety” (Dkt. No. 69 ¶ 5). Then reminded again (Dkt. No. 124 at 2). The Court denied parties' initial sealing requests related to Rule 12 motions and discovery-letter briefs (Dkt. No. 140). Still, parties next filed nearly 3,000 pages of conditionally sealed exhibits related to their summary judgment and Daubert motions (Dkt. No. 141 at 2). The filings violated basic requirements (id. at 3-4). But to avoid prejudice to third parties, the Court permitted parties to refile narrower requests in subsequent omnibus sealing motions (id. at 4).
Those omnibus sealing motions and subsequent sealing motions are at issue here, organized by the substantive motions to which they relate. Because Splunk and Cribl have overlapping customers, many of their requests overlap, too. Nonetheless, their requests are separated within each section so any salient distinctions can be drawn.
2. Motions to Seal Stemming from Splunk's Motion for Summary Judgment.
For the omnibus motions sealing motions covering this and other sections (Parts 2-7), parties failed to timely refile every corrected copy, and some copies were refiled with more redactions (not fewer). Such failings favor denying redactions outright (supra). But particularly to avoid prejudice to third parties, this order will “trudge on.” Cf. Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 835 (7th Cir. 2013) (Judge Richard Posner). This order states below where such failures not only weigh in the result but tip the scales. Parties had more than “a chance to show ‘compelling reasons' and,” often, they “squandered it.” Kamakana, 447 F.3d at 1181.
Splunk moved for partial summary judgment (Dkt. No. 131), and Cribl opposed (Dkt. No. 146). Splunk's omnibus motion to seal (Dkt. No. 190) and Cribl's (Dkt. No. 191; see also Dkt. Nos. 204, 224, 341) declare support for sealing passages. This order rules as follows:
A. Splunk's Motion for Summary Judgment on Count VII.
(i) Splunk's Proposed Redactions.
Sealed
Public
Result Re
Reasoning
Dkt. No. 133-17 (Exh. 27, S2S v4 Protocol Findings, CRIBL_ 00009624)
Cf Dkt. No. 352-14
Granted-in-Part, Denied-in-Part.
This document details an engineering spike to reverse engineer the newest Splunk-to-Splunk protocol, S2S v4, and its implementation with Splunk Enterprise. Redactions are warranted for the same reasons and to the same extent described with respect to the same document at trial (see infra entry re Dkt. No. 352-14 (TX-45)).
(Exh. 34, Cribl's Purchase Order of Sphmk, SPLUNK_ 00048567)
Dkt. No. 131-35
Banking details, Granted.
Disclosure of banking details invites security risks while adding nothing to public understanding.
(ii) Cribl's Proposed Redactions.
Sealed
Public
Result Re
Reasoning
Dkt. No. 133-6 (Exh. 13, Sharum Dep. Tr.)
Dkt. No. 131-14
186:23, Granted.
Proposed redactions target a repository where Cribl keeps contracts. Cribl contends disclosure would provide a target to bad actors. Because the name of this repository is also entirely unrelated to the merits, redaction is warranted.
187:4, Denied.
The balance shifts with these proposed redactions. They target a repository discussed in open court. And the deposition says Cribl has not used it for this purpose for four years.
187:6, Denied.
(See previous entry.)
187:9, Granted.
(See supra entry re Dkt. Nos. 133-6 at 186:23.)
187:11, Granted.
(See ibid.}
187:13, Denied.
(See id. at 187:4.)
187:14, Granted.
(See id. at 186:23.)
187:18, Denied.
(See id. at 187:4.)
187:20, Granted.
(See id. at 186:23.)
Dkt. No. 133-13
Dkt. No. 131-24
-139, Denied.
This engineering ticket describes one of Cribl’s efforts related to the S2S protocol. The
(Exh. 23, CRIBL _00000139)
(slip-sheet)
document was submitted as an unredacted trial exhibit (Dkt. No. 352-12).
Dkt. No. 133-23 (Exh. 3, Expert Mattmann Dep. Tr.)
Dkt. No. 131-37 (slip-sheet); cf. Dkt. No. 189-54
343:4, Denied.
The customer name proposed for redaction was disclosed in open court and in a court order (see, e.g., Dkt. No. 373 at 8). There is no reason to redact this instance.
Dkt. No. 133-28 (Exh. 43, CRIBL _ 00857552)
Dkt. No. 131-44 (slip-sheet)
Customer names in 10 [ECF p. 13], Denied.
This sales slide contains a box for “Customers / Prospects,†followed by a couple names. Cribl seeks redactions to protect its customers’ “identity†and “information†and itself (Dkt. No. 224-1 at 12). But Cribl did not submit redactions to show what information it considered the customers’, relying instead on a slip-sheet (see id. (citing Dkt. No. 131-44)). That went contrary to the Court’s caution (Dkt. No. 124). And no plausible harm will come from disclosure.
Customer names in 11-14 [ECF pp. 14—17], Denied.
(See previous entry.)
Partnership information in 21 [ECF p. 18], Denied.
(See ibid.')
Dollar and percent amounts after “ADS†[ECF p. 24], Denied.
Here, Cribl points to specific words to make clear what it proposes to redact: two-year-old, average sales targets related to the dispute but not clearly related to any of Cribl’s current partnership goals or pricing. Any harm from releasing this information is speculative.
Dkt. No. 133-29 (Exh. 44, CRIBL _ 00856351)
Dkt. No. 131-45 (slip-sheet)
Customer names after “Key Partners †in -353, Denied.
Listed here are the names of service providers with whom Cribl partners to go to market (Dkt. No. 133-29 at -353). Cribl states their “identity†is “confidential†(Dkt. No. 224-1 at 12). But Cribl’s website touts several of the partnerships. And the document was admitted as an unredacted exhibit at trial (Dkt. No. 352-52).
Before “accounts to collaborate on†in -353, Denied.
(See previous entry.)
B. Cribl's Opposition to Splunk's Motion for Summary Judgment on Count VII.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 147-1 (Exh. 1, Excerpts of Expert Mattmann [Reb.] Rpt.) | Dkt. No. 149-1 | Customer names in ¶77, Denied. | The report discusses instances when Cribl performed work, and whether that work merely solved Cribl-Splunk interoperability problems or did something more. Proposed redactions target several customer names. Related software development tickets showing all but one name were admitted at trial (Dkt. Nos. 352-27, 352-6). Splunk's rationale is unconvincing. |
Dkt. No. 147-4 (Exh. 13, Excerpts of Strong Dep. Tr.) | Dkt. No. 149-13 | Customer names in 4:3, 4:9; 246:6-7, 246:23-24; 247:2, 247:15, 247:25; 248:6-7; 249:9-11, Granted. | The deposition describes the needs and savings of Splunk customers when using Cribl. Some customer names are included, alongside specific usage and expenditure information (or citations to documents with the same). The names do not meaningfully tie in with other testimony. Thus, in this context, disclosure presents risks to the third parties (and to Cribl, infra) but no benefit to public understanding. |
Dkt. No. 147-5 (Exh. 17, Excerpts of L. Bitincka Dep. Tr.) | Dkt. No. 149-17 | Customer names and financial figures in 3:4-7; 351:12; 367:13-22, Granted-in-Part, Denied-in-Part. | Customer names in 3:4-7, 367:13 Redaction is warranted to avoid re-associating financial information with third parties, a concern Cribl better articulates for this passage (infra). This concern applies even though more general discussion of one third party occurred in court; these further details are beyond what is needed to understand the case. Granted. Otherwise Other proposed redactions target a single customer name without adjacent details, or of financial figures that - once the names above are redacted - cannot be readily tied to specific customers or needs, thus undercutting the rationale for their' redaction. Denied. |
Dkt. No. 147-6 (Exh 20, Excerpts of Dalpe Dep. Tr.) | Dkt. No. 149-20 | Customer name in 148:6-10; 149:1; 150:21, Denied. | The passage discusses just one Splunk customer, and how that customer long ago used Cribl to save. Splunk seeks to redact “customer lists” and “targets,” not pricing. Cribl seeks to redact for broader reasons (infra). Neither specifies how disclosing what this customer stopped paying years ago will cause harm today. |
(ii) Cribl's Proposed Redactions.
Seaed | Public | Result Re | Reasoning |
Dkt. No. 147-1 (Exh. 1. Expert Mattmann Reb. Rpt.) | Dkt. No. 149-1 | ¶77, Denied. | Cribl adds nothing to change the calculus. (See supra entry re Dkt. No. 147-1 & 149-1.) |
Dkt. No. 147-4 (Exh. 13, Strong Dep.) | Dkt. No. 149-13 | 4:3-4:9, Granted. | (See supra entry re Dkt. Nos. 147-4 &149-13.) |
246:6-7, 246:23-24; 247:2,5, 15, 25, Granted. | (See ibid.) | ||
248:6-7, Granted. | (See ibid.) | ||
249:9-11, Granted. | (See ibid.) | ||
Dkt. No. 147-5 (Exh. 17, L. Bitincka Dep.) | Dkt. No. 149-17 | 3:4, 3:7, Granted. | (See supra entry re Dkt. Nos. 147-5 & 149-17.) |
351:12, Denied. | Cribl adds nothing to change the decision (see ibid.). | ||
367:13, Granted. | (See ibid.) | ||
367:16, 367:22, Denied. | (See ibid.) | ||
Dkt. No. 147-6 (Exh. 20, Dalpe Dep.) | Dkt. No. 149-20 | Highlights in 148:6, 8, 9; 149:1; 150:21, Denied. | (See supra entry re Dkt. Nos. 147-6 & 149-20.) |
Dkt. No. 147-7 (Exh. 21, D. Bitincka Dep.) | Dkt. No. 149-21 | Address 8:12-8:13, Granted. | Disclosing this personal email address would risk annoyance and abuse for a third party but not aid public understanding of the case. |
3. Motions to Seal Stemming from Cribl's Motion for Summary Judgment.
Cribl also moved for partial summary judgment (Dkt. No. 132). Splunk opposed (Dkt. No. 151). And Cribl replied (Dkt. No. 176). Parties' omnibus motions again declare support for sealing passages.
A. CRIBL'S MOTION FOR SUMMARY JUDGMENT.
Recall that Cribl sought summary judgment on several counts (Dkt. No. 189-1). One was Splunk's allegation that Cribl's access to Splunk Enterprise violated the Digital Millenium Copyright Act's anticircumvention provisions (id. at 11-14 (citing 17 U.S.C. § 1201(a))). Cribl argued that Splunk had not controlled access to Splunk Enterprise (ibid.). A supporting argument briefed there (id. at 12-13), in the lead-up to trial (e.g., Dkt. No. 197 at 18), and in a motion for judgment as a matter of law (e.g., Dkt. No. 290 at 1-4 & n.1), among other places, was whether Splunk controlled the phrase that a Splunk forwarder uses to interoperate with a Splunk indexer (e.g., Dkt. Nos. 200 & 201-1 at 351-54 & nn.3-4). With the backwards-compatible phrase even appearing on Splunk's own website, Splunk chose to emphasize other points at trial (see Dkt. No. 290 at 2 n.1; Tr. 803). Splunk lost the issue (Tr. 1528).
Returning to the sealing motions, many of Splunk's proposed redactions target that phrase in its varied preparations. But, if Splunk ever did control the phrase, Splunk did not control it here. Splunk does not move to redact passages - in everything from a deposition to a jointly proposed trial order - that disclose it. This includes passages expressly treating the current protocol version. Where Splunk does propose redactions, it often proposes to redact some but not all instances, even within the same paragraph. Splunk also does not propose to redact the many sentences that do not name the phrase but that explain how to find it.
Splunk gets bolder still - and no less sporadic. Splunk proposes to redact not just information about the header in its implementation of S2S v4, but the concept of a header as such. Sometimes. Splunk, for example, proposes to redact the word “header” three times in one paragraph of an expert report attached to a dispositive motion, but not in the report's equally generic section title just above that paragraph: “Cribl's Use of Splunk's S2S ‘Header Signature' (Code Phrase) Does Not Enable ‘Interoperability'” (Dkt. Nos. 148-18 & 167-19 at 16). Splunk seeks to redact other generic concepts in some places but not others. Those include “capabilities exchanges,” “keys and values,” “event fields,” “logging,” “likely or unlikely” macros, and “state machines,” all cited in or attached to dispositive motions and many discussed at trial (e.g., Tr. 913-16, 970-72). If there were reasons for redacting some but not all such mentions, Splunk does not say so.
Because these concepts related to the merits (as Splunk asserted), Splunk needed to show a "compelling interest" to seal their mention. Kamakana, 447 F.3d at 1180. But Splunk's sealing motions offer only boilerplate rationales, which Splunk's scatter-shot redactions then blow apart. Splunk suggests, for instance, that the short header phrase might be Splunk's "techniques," or its "source code" manifesting them; its "U-ade secrets," or its "other nonpublic information" (see, e.g., Dkt. No. 190 at 9). Whatever it is, the phrase is not something Splunk's filings and sealing motions treat with compelling interest. Same goes for the other concepts. Splunk identifies "specific redactions, [but] it justifie[s] them by invoking general categories of privileges without elaboration." Kamakana, 447 F.3d at 1183. That will not do. To go against the presumption of public access, a sealing order must “articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Id. at 1179 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). The most that can be said here is that these redactions will impede public understanding - not commercial rivals - on points basic to the dispute. Take one last example: Splunk even proposes to redact the definition of“S2S" (Dkt. Nos. 148-13 & 167-14 ¶ 76; see also Dkt. No. 190 at 16). That Splunk-to-Splunk protocol was the case's main subject, from complaint to conclusion. Some details merit maintaining under seal. But Splunk's over broad redactions of basic concepts must be rejected, as further explained where appropriate below.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasonin2 |
Dkt. No. 134-1 (Mot.) | Dkt. No. 189-1 | Customer name m 22:3, Denied. | The passage states a customer name, and Splunk seeks to avoid publishing "even a portion†of its customer list. But this name was disclosed in court; there is no reason to redact it here. |
Dkt. No. 134-7 (Exh. 14, GOALS FOR TODAY, | Dkt. No. 189-34 | Customer names m -5-8, Denied. | The same names were disclosed in the same document admitted as a trial exhibit (Dkt. No. 352-95). |
Financial numbers in -4, | The same is hue here: This document was disclosed at trial (Dkt. No. 352-95). Moreover, the financial numbers are two-years old, high- |
SPLUNK _ 00225765) | Denied. | level, and not the “expenditures of specific customers†(see Dkt. No. 190 at 15). | |
Dkt. No. 134-9 (Exh. 18, Excerpts of Rottenberg Dep. Tr.) | Dkt. No. 189-36 | Customer name in 29:16; 30:6-21; 31:2, 31:18; 41:9; 53:16-19, Denied. | The deposition mentions two customers and high-level needs they long ago looked to Cribl to solve. One was discussed in open court. Nothing here merits redaction. |
Dkt. No. 134-10 (Exh. 20, Mechanics for DSP End of Sale, SPLUNK _ 00225739) | Dkt. No. 189-37 | Customer names in -39, -41-45, -47, Denied. | These customer names were disclosed in the same document admitted as an exhibit at trial (see Dkt. No. 352-94). |
Financial terms at -39, -43, Denied. | These now-stale financial figures were also revealed at trial (see previous entry). | ||
Dkt. No. 134-12, (Exh. 23, Re: Cribl Partners, SPLUNK _ 00301406) | Dkt. No. 189-39 | Denied. | This customer’s name was disclosed in open court. Nothing warrants its redaction here. |
Dkt. No. 134-14 (Exh. 32, Re: Info Email SPLUNK 00266860) | Dkt. No. 189-41 | Denied. | (See previous entry.) |
Dkt. No. 134-16 (Exh. 36, Excerpts of Splunk’s 7th Supp. Resp. to Cribl’s 1st Set of Interrogs.) | Dkt. No. 189-43 | Repository identifiers in 10:13-11:22; 17:15; 45:13; 46:9; 102:6; 103:16, Granted. | Proposed redactions obscure code commit identifiers (in a large table and in-line), the specific directory where code related to authentication occurs, and other details distant from the merits, but which could cause commercial risks to Splunk if exposed. |
Code and techniques in 42:13; | This protocol signature strikes a merits question and is disclosed elsewhere (supra discussion Part 3.A). |
43:12; 103:20, Denied. | |||
Customer names in 48:9-10; 74:25-75:1; 78:13-79:19, Granted in-Part, Denied-in- Part. | 78:13-79:19 Exposing this extensive bullet-point list of customer names would add little to understanding but could unfairly assist rivals and harm Splunk. Redaction is warranted. Granted. Otherwise One proposed redaction is not of a customer name. Another is related to testimony heard in court, undercutting the rationale. Denied. | ||
Dkt. No. 134-19 (Exh. 49, Excerpts of Cribl's 7th Supp. and Amd. Resp. to Splunk's 2nd Set of Interrogs.) | Dkt. No. 189-45 | Customer names in 5:14-17; 6:17-22; 9:2-21; 10:6-14; 15:2-6; 16:9-15; 17:28; 18:8-19; 19:6-14; 24:2-6; 25:11-17; 27:4-23; 28:11-19; 31:10; nn.5, 9, Granted. | This collection of customer names meets the standard for redaction. First, the number of customer names in close quarters here, often in table format, creates a relatively robust customer list Splunk's rivals could readily exploit, even if some names are individually exposed elsewhere. Second, many of the customer names are in close association with file names, pointing towards other detailed information that if disclosed could bring harm to the third parties and so to Splunk (and Cribl, infra, as it describes more fully). Third, the legal subject matter here concerns discovery as to whether any Cribl-related persons possessed Splunk-related confidential information. Customer names are less helpful to understanding this issue (than to issues of contract, copyright, and fair use, which sometimes involve when and how Cribl worked with customers). |
Name of business tool at 7:2; 8:15; 16:22; 17:13; 25:25; 26:17, Denied. | Splunk seeks to redact this generically named and widely used type of business tool, one version of which it uses. Splunk says that releasing its name will harm “Splunk's competitive standing and give competitors an unfair advantage in the market” (Dkt. No. 190 at 14). No. | ||
Dkt. No. 135-2 (Exh. A, Excerpts of Expert Feamster Op. Rpt.) | Dkt. No. 189-2 | ¶¶ 157-62, 164, Denied. | This passage exemplifies what was described above (Part 3.A). Much as did later open-court testimony, the passage explains at a high level how protocols work generally, and how the protocol at issue works generally. In that context, Splunk proposes redacting general concepts - erratically. For instance, were Splunk to have its way, the public would be told that there is a “capabilities exchange,” that there is a “client,” and that there is a “server,” but |
not that this “[redacted] between the client and server exchanges information.†Such redactions burden public understanding. But Splunk fails to show they burden commercial rivals about anything the rivals do not know already — especially as the same passage goes unredacted elsewhere (e.g., Dkt. No. 189-69 ¶ 157). Other redactions are similarly overbroad (see Part 3.A). | |||
Dkt. No. 135-5 (Exh. A, Excerpts of Expert Heinemann Reb. Rpt.) | Dkt. No. 189-10 | Customer names in figs. 10-11; ¶¶ 164, 171, Granted. | Disclosing so many customer names at once could harm Splunk by providing a rival with a list of targets, even if a few are disclosed individually elsewhere. Plus, disclosure here would reassociate customers with private financial details (concerning Cribl, infra'). Redacting the names avoids those risks while leaving important details. |
All else in figs. 10-11, Denied. | The proposed redactions are of two charts showing particular customers’ spending over time with Splunk, before and after using Cribl. Some numbers from these charts were later shared in court. Splunk contends the redacted charts disclose pricing important to its business. But Splunk does not provide a reason to redact the two charts just below (figs. 12-13), which show average spending per customer. And, once the customer names are redacted here such that their spending cannot be easily associated with their requirements, Splunk’s supposed harms about revealing pricing become even more speculative. | ||
Figs. 12-13, Denied. | These figures were marked for redaction. But neither Splunk nor Cribl below provides a rationale. |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 134-1 (Mot.) | Dkt. No. 189-1 | Customer name in 22:3, Denied. | (See supra entry re Dkt. Nos. 134-1 & 189-1.) |
Dkt. No. 134-9 (Exh. 18, Rottenberg Dep. Tr.) | Dkt. No. 189-36 | Customer name in 29:16; 30:6, 11; 21; 31:2, 18; 41:9, Denied. | (See supra entry re Dkt. Nos. 134-9 & 189-36.) |
Dkt. No. 134-16 | Dkt. No. 189-43 | Customer name in 74:25, | (See supra entry re Dkt. Nos. 134-16 & 189-43.) |
(Exh. 36, Excerpts of Splunk’s 7th Supp. Resp. to Cribl’s 1st Set of Interrogs.))
Denied.
74:28, Denied.
(See ibid.')
75:1, Denied.
(See ibid.')
Customer names in 78:13-79:19, Granted.
(See ibid.)
Dkt. No. 134-19 (Exh. 49, Excerpts of Cribl’s 7th Supp. and Amd. Resp. to Splunk’s 2nd Set of Interrogs.)
Dkt. No. 189-45
5:14, 5:17, Granted.
(See supra entry re Dkt. Nos. 134-19 & 189-45.)
6:7-6:18, 6:21, Granted.
(See ibid.)
9:2, 9:10, 9:21, Granted.
(See ibid.)
10:14, Granted.
(See ibid.)
15:2, 15:5, Granted.
(See ibid.)
p. 16 ll. 9-10, 13-14, Granted.
(See ibid.)
17:28, Granted.
(See ibid.)
18:8, 18:19, Granted.
(See ibid.)
19:14, Granted.
(See ibid.)
24:2, 24:6, Granted.
(See ibid.)
p. 25 ll. 1112, 15, 17, Granted.
(See ibid.)
p. 27 ll. 4, 12, 23, Granted.
(See ibid.)
28:19, Granted.
(See ibid.)
31:9, Granted.
(See ibid.)
Dkt. No. 135-1 (Choi Exh. A)
Dkt. No. 179-1
After “Sunny Choi†in 1, Granted.
Redacting this personally identifying information unrelated to the merits is warranted for privacy.
After “ Your base
So too for these personal financial details (see previous entry).
salary†in 1, Granted. | |||
Before ‘‘shares of the Company†in 2, Granted. | (See ibid.) | ||
Dkt. No. 135-5 (Exh. A, Excerpts of Expert Heinemann Reb. Rpt.) | Dkt. No. 189-10 | Customer name in ¶164, Granted. | (See supra entry re Dkt. Nos. 135-5 & 189-10.) |
Customer names in figs. 10-11, Granted. | (See ibid.) | ||
All else in figs. 10-11, Denied. | Like Splunk before, Cribl fails to articulate facts to warrant sealing this material (see ibid.). |
B. Splunk's Opposition to Cribl's Motion for Summary Judgment. (i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. [134-9] (Exh. 18, Excerpts of Rottenberg Dep. Tr.) | Dkt. No. 189-32; cf. Dkt. No. 151-4 | Customer names in 29:16; 30:6-21; 31:2,31:18; 41:9; 53:16-19, Denied. | An extended cut of this excerpt was promised for attachment to the substantive motion, but not provided (see Dkt. Nos. 148-1 & 151-1 at vi n.1). Regardless, the public filing attached to the omnibus motion, in connection with other copies of the same declaration, permits decision: Redaction is not warranted (see supra entry re Dkt. Nos. 134-9 & 189-36). |
Dkt. No. 148-55 (Exh. 37, Excerpts of Expert Mitzen-macher Op. Rpt.) | Dkt. No. 167-3 | Green highlights in ¶¶ 97, 116, 163, 174-78; nn.93, 98, 100, 102-04, 133, 148, 149, 153-57, 178-85, 203,210: figs. 23, 39, 43, 48, Grantedin-Part, | ¶¶ 97,116, 163, 174-78; nn.98,100,102-04, 133,148-49, 153-57, 178-85, 203, 210; figs. 23, 39, 43, 48 These proposed redactions target source code, directory names, and related minutia. Disclosure could harm Splunk's commercial interests yet would not meaningfully enhance public understanding of the dispute. Granted. Otherwise Other proposed redactions include conceptual steps in reverse engineering that were also described in open court and relevant to the merits (e.g., nn.93). Still others were marked for redaction but not provided any rationale (nn.122). Others were given a rationale but do not exist in the excerpt (nn. 152-68). Perhaps there is a detail |
Denied-in-Part. | within the remainder that could have been granted if isolated for decision; none was. Denied. | ||
Green highlights in ¶¶ 165, 172-73; figs. 3-20, Grantedin-Part, Denied-in-Part. | Fig. 20 This excerpt of code could cause harm if disclosed and is beyond the detail needed to understand the dispute. Granted. Otherwise Many of the proposed redactions are not contained in this excerpt at all (figs. 3-19; ¶ 172). And much of the rest targets protocol and implementation concepts that went unredacted in other filings. Even here, some went unredacted in a footnote on this same page (n.196), others went without rationale for redaction on the next page (¶¶ 166-67) (see supra Part 3.A). Denied. | ||
Dkt. No. 157 (replacing Dkt. No. 148-4) (Exh. 41, Excerpts of Expert Mitzen-macher Dep. Tr.) | Dkt. No. 167-4 | Denied. | Expert Mitzenmacher testified in open court to highlighted subject matter, and other filings released more of the same (supra Part 3.A). |
Dkt. No. | Dkt. No. | Green | Figs. in ¶¶ 83-86 |
148-13 (Exh. 70, Excerpts of Expert Astrachan Op. Rpt.) | 167-14 | highlights in ¶¶ 58-59, 61, 75-86, 88, Grantedin-Part AND Denied-in-part. | These proposed redactions cover specific opcodes and other commercially important information not generally known. Disclosing them would impose needless costs on Splunk, given they go beyond the detail needed to understand the case. Granted. Otherwise Proposed redactions include the definition of “S2S.” Perhaps some detail might have merited redaction, but “the proponent of sealing bears the burden” to specify. Kamakana, 447 F.3d at 1182 (see also supra Part 3.A). Denied. |
Dkt. No. | Dkt. No. | Green | Figs. 14, 19-21, 23-25, 27-29 |
148-18 (Exh. 75, Excerpts of Expert Mitzen- | 167-19 | highlights ¶¶ 24, 28, 34-37, 71, 73, 79, 80, 99, | These proposed redactions are discrete and administrable. The figures compactly present code excerpts, file structures, and other details that could pose commercial harm if disclosed, yet that would not meaningfully enhance public understanding. Granted. |
macher Reb. Rpt.) | 101, 103, | ||
104; nn.28, 31-34, 79, 80, 82, 92, 106, 129; figs. 14, 19-21, 23-25, 27-29, Grantedin-Part and Denied-in- PART. | Otherwise Other proposed redactions include material covered in open court filings, in open court, and in public sources — and related to the merits (see supra Part 3.A). Indeed, proposed redactions mask phrases so basic to the expert’s report attached to this dispositive motion that a term proposed to be redacted three times in one paragraph appears also in the report’s section title just above it (p. 16). If there were any golden nuggets here, it was counsel’s job to remove them from the mine run (Dkt. No. 141). Cf Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Denied. | ||
Dkt. No. 161 (replacing Dkt. No. 148-50) (Exh. 114, Excerpts of Expert Mitzen-macher Reply Rpt.) | Dkt. No. (167-53) | Green highlights in ¶ 96, Denied. | Proposed redactions describe in general terms what Cribl did to discover and achieve interoperability with Splunk. That description is important to understanding case contentions. Similar descriptions were offered in open court (see supra Part 3.A). |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. [134-9] (Exh. 18, Excerpts of Rottenberg Dep. Tr.) | Dkt. No. 189-32; cf. Dkt. No. 151-4 | Customer names in 29:16; 30:6, 30:11, 30:21; 31:2, 31:18; 41:9, Denied. | (See supra entry re Dkt. No. 134-9 & 189-32.) |
Dkt. No. 148-3 (Exit. 3, L. Bitincka Dep. Tr.) | Dkt. No. 167-2 | Customer name in 3:4, Granted. Customer name in 3:7, Granted. | (See supra entry re Dkt. No. 147-5 & 149-17). |
Dkt. No. 148-6 (Exh. 62, | Dkt. No. 167-6 | Lines of code at -699, Denied. | The short lines of code were already disclosed in the same document admitted as an unredacted trial exhibit (Dkt. No. 352-55). |
Dkt. No. 148-14 (Exh. 71, Cribl Interview, CRIBL _ 00145171) | Dkt. No. 167-15 | Customer name in -5185-86, Granted. | The redactions obscure the name of a customer interviewed extensively and confidentially about its use of Cribl and Splunk. Sharing the resulting details benefits the public’s understanding of the case, while redacting the name is warranted to preserve third-party confidences and Cribl’s relationships. |
Dkt. No. 148-17 (Exh. 74, Jira Ticket, CRIBL _ 00000163) | Dkt. No. 167-18 | Customer name in 163, Denied. | This software development ticket is tagged with customers benefiting from the work — all but one disclosed in a related ticket admitted as an exhibit in court (see Dkt. No. 352-12). |
Dkt. No. 148-23 (Exh. 80, Slack Msg., CRIBL _ 00858795) | Dkt. No. 167-24 | Code in -8796-97, Granted. | This code used to trace a software issue is beyond the detail required for public understanding and may injure Cribl if disclosed. |
Code in -8802-03, Granted. | (See previous entry.) | ||
Dkt. No. 148-24 (Exh. 82, Slack Msg., CRIBL _ 00859033) | Dkt. No. 167-25 | -9036-37, Denied. | This third-party prospect’s name is mentioned in passing and only in connection with information five years stale. Redaction is not warranted. |
Customer name in -9040-42, Denied. | (See previous entry.) | ||
Dkt. No. 148-25 (Exh. 83, “Take Home Idea,†CRIBL _ 00856584) | Dkt. No. 167-26 | Third-party names in -6584, Denied. | The document contains short notes on progress gaining Cribl customers five years ago. Cribl does not articulate a persuasive reason to redact. |
Dkt. No. 148-30 (Exh. 89, Choi Emplymnt. Letter) | Dkt. No. 167-31 | After “Sunny Choi†in 1, Granted. | (See supra entry re Dkt. Nos. 135-1 & 179-1.) |
After “Your base salary †in 1, Granted. | (See ibid.) | ||
Before “shares of the Company †in 2, Granted. | (See ibid.). | ||
(Exh. 92, Slack | Dkt. No. 167-34 | Email address after | Email address Redacting the personal address is warranted |
Msg., CRIBL _ 00998405) | “mailto: †in -406, Granted-in-Part, Denied-in-Part. | (cf. supra entry re Dkt. Nos. 148-6 & 167-6). Granted. Otherwise The messaging was disclosed (Dkt. No. 352-63). Denied. | |
Dkt. No. 148-34 (Exh. 95, Invention-Assign’t Agrmnt., CRIBL _ 00006635) | Dkt. No. 167-36 | Personal email address in -6641, Granted. | Redacting this personal email address is likewise warranted even if another copy exists as a needle in another haystack (see previous entry). |
Dkt. No. 148-35 (Exh. 97, Splunk Logs) | Dkt. No. 167-37 | Email addresses in PDF pp. 3—11, Granted. | Redacting this lengthy list of email addresses appearing in a log (and in a letter) is warranted to avoid annoyance and abuse to third parties without corresponding public benefit. |
Dkt. No. 148-40 (Exh. 102, Jira Ticket, CRIBL _ 00000936) | Dkt. No. 167-42 | Customer name in -936, Denied. | The same ticket was admitted as an unredacted exhibit at trial (Dkt. No. 352-27). |
Customer name in -940, Denied. | (See previous entry.) | ||
Dkt. No. 148-44 (Exh. 106: Slack Msg., CRIBL _ 00858847) | Dkt. No. 167-46 | -49, Denied. | These same customer names were already disclosed in the same document admitted as an unredacted trial exhibit (Dkt. No. 352-55). |
-52, Denied. | (See previous entry.) | ||
Dkt. No. 148-46 (Exh. 108, CRIBL _ 00077503. MP4) | Dkt. No. 167-48 | Customer name in header 1—25, Granted. | This transcript of a call with a customer includes confidential details. Disclosing the customer name alongside them would directly divulge third-party confidences and could injure Cribl; redacting the name avoids those harms while retaining all that is needed for understanding. |
Dkt. No. 148-47 (Exh. 109, CRIBL _ 00072913. MP4) | Dkt. No. 167-49 | Customer name in header 1-24, Granted. | (See previous entry.) |
Dkt. No. 148-48 (Exh. 110, | Dkt. No. 167-50 | Third-party name or | These service meeting notes include confidential business and technical details about a third party. |
Meeting Notes, CRIBL_ 00607651) | identifiers in -651-52, Granted. | The identifiers of that party merit redaction (see ibid.). | |
Dkt. No. 148-53 (Exh. 118, CRIBL_ 00098435) | Dkt. No. 167-56 | Third-party names in -437-43, Granted. | The proposed redactions obscure customer and employee names from a technical troubleshooting conversation just one year ago. Associating those third parties with those details would divulge confidences and could injure Cribl; redacting names avoids those harms while retaining all that is needed for understanding. |
Dkt. No. 148-54 (Exh. 119, CRIBL S.C. 002334) | Dkt. No. 167-57 | Email address in-2341, Granted. | Disclosing this personal email address would risk annoyance and abuse for a third parly but not aid public understanding of the case. |
C. Cribl's Reply in Support of Its Motion for Summary Judgment.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 175-3 (Exh. C, Excerpts of L. Bitincka Dep. Tr.) | Dkt. No. 176-5 | Customer names in 2:16-2:17; 3:4-5, 3:7, Granted. | Redactions are warranted for reasons like those described for the same underlying passage (see supra entry re Dkt. Nos. 147-5 & 149-17.) |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 175-1 (Exh. A, D. Bitincka Dep. Tr.) | Dkt. No. 176-3 | Personal physical address in 8:12-8:13, Granted. | (See supra entry re Dkt. Nos. 147-7 & 149-21.) |
Dkt. No. 175-2 (Exh. B, Sharp Dep. Tr.) | Dkt. No. 204-9 | Customer names at p. 8 11. 5, 7, 10, 13-14, Denied. | This exhibit list contains two customer names. One was discussed in open court. Neither is associated here (directly or by citation to documents) with confidences undisclosed. |
Dkt. No. 175-3 (Exh. C, L. Bitincka Dep. Tr.) | Dkt. No. 176-5 | Customer names at 2:16, 3:4, 3:7, Granted. | The redactions are granted for the reasons stated earlier (see supra re Dkt. Nos. 148-3 & 167-2). |
4. Motions to Seal Stemming from Splunk's Motion to Exclude Opinions of Expert Mattmann.
Splunk moved to exclude opinions of Expert Mattmann (Dkt. No. 137). Cribl opposed (Dkt. No. 145). Splunk replied (Dkt. No. 174). Parties' omnibus motions declare support for sealing particular passages. This order rules as follows:
A. Splink's Motion to Exclude Opinions of Expert Mattmann.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 136-3 (Exli. 1, Expert Mattmann Op. Rpt.) | Dkt. No. 189-11 | Customer name in ¶104, Denied. | The expert report describes a feature gap between Cribl and Splunk relevant to the merits. The name of one prospective customer from this period years ago is mentioned. Splunk does not state a plausible basis for redaction. |
Dkt. No. 136-4 (Exh. 2, Expert Mattmann Reb. Rpt.) | Dkt. No. 189-12 | Customer names in ¶¶ 26-29, 38, 77, 81,82, 85, 86, 89, 90, 100, 108; n.12, Denied. | The expert report discusses instances when Cribl performed work, and whether that work merely solved software interoperability problems or did something more for customers, a fact relevant to the merits. Proposed redactions target customer names, nearly all of which were disclosed in open court, admitted exhibits, or other filings, often related to these episodes. Together in this presentation they do not readily create a list. Splunk's rationale for redaction is not persuasive (see also supra entry re Dkt. Nos. 147-1 & 149-1 ¶ 77). |
Dkt. No. 136-5 (Exh. 3, Expert Mattmann Reply Rpt.) | Dkt. No. 189-13 | Financial terms in ¶ 20, Granted. | The proposed redaction obscures expenditures of a customer discussed generally in open court, but not granularly as here. Associating the customer name with the financial details could divulge third-party confidences and pricing-related insights, but redacting the name or the finances reduces or eliminates those risks, hi this specific instance, preserving the name of the party but obscuring the financial details better aids public understanding, and tracks what occurred in court. |
Customer names in ¶¶ 20, 33, 75, 77, Denied. | Splunk's reasons for redacting these customer's names are not compelling. One customer was the subject of testimony in open court. Others appear on software tickets related to this discussion that were disclosed in trial exhibits. A last customer is mentioned with respect to a technical proposal from four years ago. |
Dkt. No. 136-12 (Exh. [17], Excerpts of Cribl's Third Amd. Initial Disclosures Dep. of Expert Mattmann.) | Dkt. No. 137-18, 189-21 | Personally identifying information in 10:8-13:18, Granted. | Disclosing this personal contact information would risk annoyance and abuse for a third party but not aid public understanding of the case. |
Sealed | Public | Result Re | Reasoning |
Dkt. No. 136-1 (Mot.) | Dkt. No. 204-16 (As discussed in Dkt. No. 224-1) | p. ill. 6, 15, Denied. | This customer name was disclosed in open coin! and in a coin! order (and in dispositive motions above), and aids the public’s understanding of the case (see, e.g., Dkt. No. 373 at 8). Nothing merits different treatment here. |
p. 1 ll. 14-15, 28, Denied. | (See previous entry.) | ||
2:7, 2:9, Denied. | (See ibid.) | ||
p. 3 ll. 3, 5, 12-13, Denied. | (See ibid.) | ||
p. 7 ll. 2, 4, 20, 22-24, Denied. | (See ibid.) | ||
p. 8 ll. 1, 3, 59,11-12, 15, 20, Denied. | (See ibid.) | ||
p. 11 ll. 5, 11, 27-28, Denied. | (See ibid.) | ||
12:1-2, Denied. | (See ibid.) | ||
p. 15 ll. 1, 2, 11-12, 15-19, 22, 26-28, Denied. | (See ibid.) | ||
p. 16 ll. 3, 5, 12, 15, 18, Denied. | (See ibid.) | ||
p. 17 ll. 4-5, 7,15, Denied. | (See ibid.) |
Dkt. No. 136-3 (Exh. 1, Expert Mattmann Op. Rpt.) | Dkt. No. 189-11 | ¶ 102, Denied. | This excerpt was quoted in the motion above, and the substance of these same redactions addressed there (see supra entry re Dkt. Nos. 136-1 & 204-16 at 15). |
Dkt. No. 136-4 (Exh. 2, Expert Mattmann Reb. Rpt.) | Dkt. No. 189-12 | Customer names in ¶¶ 27—29, Denied. | (See supra entries re Dkt. Nos. 136-4 & 189-12; infra entry re Dkt. Nos. 142-9 & 189-73.) |
¶ 36, Denied. | This single customer was disclosed and discussed extensively in open court. | ||
¶ 77, Denied. | (See supra entry re Dkt. Nos. 147-1 & 149-1.) | ||
¶¶ 81—82, Denied. | (See supra entries re Dkt. Nos. 136-4 & 189-12; infra entry re Dkt. Nos. 142-9 & 189-73.) | ||
¶ 100, Denied. | (See ibid.). | ||
¶ 108, Denied. | (See ibid.). | ||
Dkt. No. 136-5 (Exh. 3, Expert Mattmann Reply Rpt.) | Dkt. No. 189-13 | ¶ 14, Denied. | This customer name was disclosed in open court and in an order, and aids public understanding (e.g., Dkt. No. 373 at 8). |
¶ 20, Granted-in-Part, Denied-in-Part. | (See supra entry re Dkt. No. 136-5 & 189-13). | ||
¶ 24, Denied. | Redactions are not warranted for reasons similar to other entries in this section (e.g., supra entry re ¶ 14). | ||
Customer names in ¶ 33, Denied. | (See supra entry re Dkt. No. 136-5 & 189-13 ¶ 33.) | ||
Customer name /IDs in ¶ 37, Denied. | The customer name was disclosed in open court and other filings. The technical information appearing alongside is four years old. There is no persuasive reason to redact. | ||
Customer name in ¶ 68, Denied. | (See previous entry.) | ||
¶ 77, Denied. | (See supra entry re Dkt. No. 136-5 & 189-13 ¶ 77.) | ||
Dkt. No. 136-6 | Dkt. No. 204-6 | 49:20, Denied. | This customer was discussed in open court (see also, e.g., supra entry re Dkt. Nos. 133-23 & |
(Exh. 4, Expert Mattmann Dep. Tr.) | 131-37). Nothing in these passages presents a risk to the thir d party or Cribl if exposed. | ||
158:15-16, Denied. | (See previous entry.) | ||
218:18, Denied. | (See ibid.) | ||
231:12-13, Denied. | (See ibid.) | ||
248:4, Denied. | (See ibid.) | ||
251:22, Denied. | (See ibid.) | ||
253:19-20, 253:23-24; 254 11. 5, 910, 14, 16, 19, 24, Denied. | (See ibid.) | ||
255:11, Denied. | (See ibid.) | ||
256:7, 256:13, Denied. | (See ibid.) | ||
257:11-12, 257:17, Denied. | (See ibid.) | ||
Dkt. No. 136-8 (Exh. 9, Expert Putnam Op. Rpt.) | Dkt. No. 204-7 | Customer names in exh. 7, Granted. | The document presents a table showing customer savings for a list of customers. Exposing the list would reveal confidential information about those third parties and could cause harm to them and Cribl without meaningfully advancing understanding of the case. |
Dkt. No. 136-12 (Exh. 17, Cribl’s 3d Amd. CMO Discls.) | Dkt. No. 189-21 | Personally identifying information in 4-9, Granted. | Disclosing this personal contact information would risk annoyance and abuse for third parties but not aid public understanding (see supra entry re Dkt. Nos. 136-12 & 189-21). |
B. Cribl's Opposition to Spunk's Motion to Exclude Opinions of Expert Mattmann.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 144-1 (Opp.) | Dkt. No. 145 | Customer name and ID in 18:21; | Here, the opposition brief quotes the expert report. The reason for denying the proposed redaction in the underlying report applies also to the brief (see supra entry re Dkt. Nos. 136-5 & 189-13 ¶ 20). |
19:1, Denied. | |||
License revenue in 18:2318:24, Granted. | (See previous entry.) | ||
Dkt. No. 144-4 (Exh. C, Excerpts of Expert Mattmann Op. Rpt.) | Dkt. No. 145-4 | Customer name in ¶104, Denied. | (See supra entry re Dkt. Nos. 136-3 & 189-11.) |
Dkt. No. 144-6 (Exh. G, Excerpts of Expert Mattmann Reply Rpt.) | Dkt. No. 145-8 | Customer names, IDs in ¶¶ 20, 33, Denied. | (See supra entry re Dkt. Nos. 136-5, 189-13 ¶¶20, 33.) |
Financial amounts in ¶ 20, Granted. | (See ibid.) |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 144-1 (Opp.) | Dkt. No. 145 | Customer name in 3:23,3:28, Denied. | Testimony in court included the affiliation of this expert, which is helpful to understanding the case (see, e.g., Dkt. No. 373 at 8). |
14 ll. 6, 10, 20, 23, Denied. | (See previous entry.) | ||
15:5-6, Denied. | (See previous entry.) | ||
Customer names in 17-19, Denied. | (See previous entry; see also supra entry re Dkt Nos. 144-1 & 14 at 18:23-24 (granting limited redactions re financial figures).) | ||
Dkt. No. 144-2 (Decl) | Dkt. No. 145-1 | Customer name in 1:17; 2:25, Denied. | Again, testimony in open court revealed this customer and its general use cases (see e.g., Dkt. No. 373 at 8). |
Dkt. No. 144-3 (Exh. A, Expert Mattmann | Dkt. No. 145-2 | 117:23, Denied. | (See previous entry.) |
122:3; 123:6-7, 123:15, | The identity of this customer’s employee was disclosed in open court and trial exhibits, and there is no special reason to redact here. |
Dep. Tr. Excerpts) | Denied. | ||
218:18, Denied. | Redactions are not warranted for reasons like those stated above (see supra entry re Dkt Nos. 144-1 &145.) | ||
Dkt. No. 144-4 (Exh. C, Expert Mattmann Op. Rpt.) | Dkt. No. 145-4 | ¶ 102, Denied. | (See supra entry re Dkt. Nos. 136-3 & 189-11 ¶ 102.) |
Dkt. No. 144-5 (Exh. F, Email re Cribl discussion, CRIBL _ 00863878) | Dkt. No. 145-7 | Email addresses and third-party names in -878, Granted-in- Part, Denied-in-Part. | Email addresses and organizational IDs The document is an email among a customer’s employees about a meeting with Cribl. For reasons articulated before, redaction is warranted (see supra entry re Dkt. Nos. 148-6 & 167-6). Otherwise Several people involved in this email were discussed in open court, and the email was admitted as an exhibit (Dkt. No. 352-84). |
Dkt. No. 144-6 (Exh. G. Expert Mattmann Reply Rpt.) | Dkt. No. 145-8 | ¶ 14, Denied. | (See supra entry re Dkt. Nos. 136-5, 189-13.) |
Customer name in ¶ 20, Denied. | (See ibid.') | ||
Customer financial figures in ¶ 20, Granted. | (See ibid.) | ||
¶ 24, Denied. | (See ibid.) | ||
Customer names in ¶ 33, Denied. | (See ibid.) | ||
Customer names in ¶ 37, Denied. | (See ibid.) | ||
¶ 68, Denied. | (See ibid.) | ||
Dkt. No. 144-7 (Exh. H, Excerpts of Expert | Dkt. No. 189-9 | 24 n.37, Denied. | The cited footnote briefly mentions an analysis made by an investment firm. The proposed redaction would obscure the firm’s name. But that name goes unredacted elsewhere in other |
Putnam Op. Rpt.) | copies of the report, and nothing about this reference merits different treatment. | ||
Dkt. No. 144-8 (Exh. J, 8/20/2020 Purchase Order, CRIBL_ 00069509) | Dkt. No. 145-11 | Third-party names, addresses, phone numbers, 1-4, Granted. | The document is a purchase order for Cribl. In the context here, redacting the customer’s name and contact details (and those of its employees) is warranted to make more difficult re-associating them with the contract terms, which would divulge specific confidences and injure Cribl without enhancing public understanding. |
Price paid in 4, Denied. | The price paid is disclosed to the public on other pages not marked for redaction. And, given the third-party name is redacted, Cribl’s feared harm from disclosing one customer’s price is not persuasive. | ||
Dkt. No. 144-9 (Exh. K, POC Planning and Execution Document, CRIBL_ 00077619) | Dkt. No. 145-12 | Customer and employee name and contact in -7619, Granted. | This is a document describing how Cribl will conduct its proof-of-concept for this customer. The document elaborates some technical details about the customer that could harm it if re associated with it. Redaction is warranted. |
Customer and employee name and contact in -7623, Granted. | (See previous entry.) |
C. Splunk's Reply in Support of Its Motion to Exclude Opinions of Expert Mattmann.
Only Cribl proposes redactions here.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 173-1 (Br.) | Dkt. No. 174 | p. i ll. 9, Denied. | The customer’s name was disclosed in other documents and in court, and nothing here merits particular treatment (cf. supra entry re Dkt. Nos. 136-5 & 189-13). |
p. 1 ll. 1314, 22, Denied. | (See previous entry.) | ||
p. 4 ll. 10, 25-26, Denied. | (See ibid.) | ||
p. 8 ll. 18, 24,-25, Denied. | (See ibid.) | ||
p. 9 ll. 1,3, 11, 15, 20, 26, Denied. | (See ibid.) |
p. 10 ll. 2-4, 8-10, 12-13, Denied. | (See ibid.) |
5. Motions to Seal Stemming from Cribl's Motion to Exclude Opinions of Expert Astrachan.
Likewise, Cribl moved to exclude opinions of Expert Astrachan (Dkt. No. 130). Splunk opposed (Dkt. No. 156). Parties' omnibus motions again declare support for sealing particular passages. This order rules as follows:
A. Cribl's Motion to Exclude Opinions of Expert Astrachan.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 129-2 (Exh. 1, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 179-9 | Code details in ¶¶ 177, 180, Grantedin-Part, Denied-in-Part. | Fig. in ¶ 180 The screenshots show lists of specific opcodes and key-value pairs that are not generally known, that are beyond the level of the detail disclosed in court or needed to understand the case, and that could injure Spluuk if disclosed. Granted. Otherwise The other redactions target general concepts or code features already known or disclosed in other filings and testimony. Spluuk's rationale for redaction is not persuasive (supra Part 3.A). |
Dkt. No. 129-8 (Exh. 7, 2023-07-14 Ltr. ff. Roddy to Pearson) | Dkt. No. 179-12 | Marked redactions in 2 & n.2. Granted. | The code repository and commit identifiers here are details beyond the scope of anything discussed in court. Disclosing them could present risks to Sphink and for no benefit to public understanding. |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 129-3 (Exh. 2, Expert Astrachan Reb. Rpt. Excerpts) | Dkt. No. 204-3 | ¶361 Denied. | The passage recalls that Cribl advertises it can reduce the data transmitted to Spluuk. It mentions the name of a third party that received such marketing. Cribl does not present a persuasive reason to redact that one party's name. |
B. Splink's Opposition to Cribl's Motion to Exclude de Opinions of Expert Astrachan.
(i) Splunk's Proposed Redactions
Sealed | Public | Result Re | Reasoning |
Dkt. No. 153-2 (Exh. 1, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 189-47 | Coding details in ¶¶ 177-80, Grantedin-Part, Denied-in-Part. | A previous entry's reasoning leads to the same result here regarding the same passage (see Dkt. Nos. 129-2 &179-9 ¶¶ 177-80). |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 153-2 (Exh. 1, Expert Astrachan Op. Rpt.) | Dkt. No. 189-47 | ¶¶ 126-27, Denied. | (See supra entry re Dkt. Nos. 148-13 & 167-14.) |
¶193, Denied. | This customer’s name was mentioned in open court. Cribl does not persuade that its use here, years ago requesting something since provided, creates any risk to Cribl or the third party. | ||
¶¶ 212-15, Granted-in-Part, Denied-in-Part. | The image (within ¶ 215) merits redaction but other portions do not (see supra entry re Dkt. Nos. 148-13 & 167-14 ¶¶ 212, 214, 215). | ||
Customer’s name in ¶ 226, Denied. | Two customer names are mentioned in passing with respect to service issues completed years ago. Redaction is not warranted. | ||
¶253 Denied. | This passage presents a ticket respecting a service issue and includes a customer name. The ticket was disclosed in trial (Dkt. No. 352-6). | ||
Dkt. No. 153-3 (Exh. 2, Expert Astrachan Reb. Rpt.) | Dkt. No. 189-48 | Customer name in ¶¶ 312, 361 Denied. | The passage describes how Cribl uses Sphink in connection with marketing, hi passing, it cites thud parties who received such presentations, and cites to documents not readily available. There is no remaining reason to redact. |
Dkt. No. 153-9 (Exh. 15, Expert Mattmann Dep. Tr.) | Dkt. No. 189-54 | 343:4, Denied. | (See supra re Dkt. Nos. 133-23 & 131-37 at 343:4.) |
6. Motions to Seal Stemming from Cribl's Motion to Exclude Opinions of Expert Mitzenmacher.
Cribl also moved to exclude opinions of Expert Mitzenmacher (Dkt. No. 128). Splunk opposed (Dkt. No. 143). Parties' omnibus motions declare support for sealing particular passages. This order rules as follows:
A. Cribl's Motion to Exclude Opinions of Expert Mitzenmacher.
Only Splunk proposes redactions here.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 127-2 (Mot.) | Dkt. No. 179-17 | Marked redactions at 5:25-6:1; 12:22-23; 13:10-11; 15:24-25, 16:4-12, 16:17-26, 22:12 &n.l, Denied. | 16:14, 22:12 Proposed redactions obscure code-related file names that if disclosed could cause commercial risk but not increase relevant public under standing. Granted. Otherwise Redactions cover broad statements about the general techniques Splunk uses, and asserts they show Splunk's creativity. Splunk asserted that such evidence supported its copyright claims, and related testimony was heard in open court and other filings (supra Part 3.A). Denied. |
Dkt. No. 127-4 (Exh. 1, Excerpts of Expert Mitzen-macher Op. Rpt) | Dkt. No. 179-2 | Marked redactions in ¶¶ 48-53, 58, 66-81, 83-85; nn.37-47, 49,51, 53-56, 61-62, 65, 68, 70-79 figs. 3- 20, Grantedin-Part, Dented-in-Part. | Figs. 1-2 These figures were not included in the excerpt, so decisions as to them are moot. Figs. 3-20 The redacted material illuminates in one place characteristics of Splunk's protocol implementation not generally known that could pose commercial risks if disclosed and that are beyond the detail required to understand the case (cf. supra entry re Dkt. Nos. 148-55 & 167-3 fig. 20). Granted. ¶¶ 49-53, 58; nn.37-46, 49, 51, 53-56, 70-72, 76-79 Proposed redactions cover commit identifiers, file names, and the like - technical details that if disclosed could cause commercial harm and that are beyond the detail required for under standing. Granted. ¶¶ 48,66-85; nn.47, 61, 62, 65, 68, 73-75 |
Testimony in court and other documents repeated or paralleled much of what is proposed for redaction here. Splunk's redactions are overbroad, and for this reason its provided rationale as to these redactions is not credible {see supra Vari'S.A). Denied. ¶ 59; nn.69, 80-85 Redactions are marked but not provided a rationale in Splunk's motion (Dkt. No. 190 at 19). Denied. | |||
Dkt. No. 127-6 (Exh. 2, Excerts of Expert Mitzen-macher Reb. Rpt.) | Dkt. No. 179-3 | ¶¶ 99-104; nn.124, 129, 141, Denied. ¶¶ 99, 101, 103, 104; nn.124, 129, 132, 137, 138, 141, 143, 144; figs. 19- 29, Grantedin-Part, Dented-in-Part. | Figs. 19-21, 23-25, 27-29 These figures were not disclosed elsewhere. Readily discernible as pertaining to one of Splunk's rationales, they illuminate details of Splunk's S2S implementation that could pose commercial risks to Splunk if disclosed and that are beyond the detail required to understand the dispute {see also supra entry re Dkt. Nos. 148-55 & 167-3 fig. 20). Granted. Figs. 22, 26 These figures were already disclosed {see Dkt. No. 167-19). Denied. Remaining redactions Splunk provides two rationales for redactions, and no way to distinguish which rationale corresponds with which redaction where both are cited for the same note or paragraph. This makes unclear how Splunk cabins each concern, and frustrates clear determinations by this order. Regardless, the remaining redactions are overbroad, and are supported by boilerplate that cannot support the breadth of redactions - much of which was already disclosed (see, e.g., Dkt. Nos. 148-18 &167-19 ¶ 100; see also supra Part 3.A). Denied. |
Dkt. No. 127-8 (Exh. 3, Exceipts of Expert Mitzen-macher Reply Rpt-) | Dkt. No. 179-4 | “Green highlighted portions ” or marked redactions in ¶¶ 31, 35-37, 39, 47, 8688; nn.51, 54, 63, 64, 67, 69, 146, | Figs. 2-4, 8; ¶¶ 86-88; nn.51, 54, 63, 67, 69, 146,151-53 These selections abide the one rationale pertaining to them. They contain source code and closely related information not generally known that could injure Splunk if disclosed and that goes beyond what is required for the public to understand the dispute. Granted. Otherwise Splunk sometimes provides two rationales for the |
151-153; figs. 2-4, 8, Grantedin-Part, Denied-in-Part. ¶¶ 16, 17, 20, 23, 25, 2740; nn.44, 52, 56, 60, 62, 64, 68, Denied. | same passage, and sometimes no rationale (e.g., n.55). This makes unclear how Sphink cabins each concern. Regardless, the redactions are overbroad. Proposed redactions include, for instance, that Expert “Feamster seems to argue that simply because the idea of [redacted] is conventional, the specific [redacted] implemented by Sphink engineers is not creative” (¶ 35). The sentence advances factual claims that Sphink asserted were relevant to the merits, and does so using a term the sentence says is generic but that Sphink seeks to redact. The generic term was disclosed elsewhere, and related testimony was heard in court. Sphink states no specific rationale for redacting it here (see also Part 3.A). Denied. | ||
Dkt. No. 127-10 (Exh. 4, App'x B to Expert Mitzen-macher Reply Rpt.) | Dkt. No. 179-5 | “Green highlight[s]” m¶¶118, 122, 127; n.202, Denied. “Green highlight[s]” m¶¶118-126; nn.203-207, 210,213232; figs. 1-19, Grantedin-Part, Denied-in-Part. | Figs. 1-19; nn.204-07, 210, 213-22 These selections discernibly contain code fragments, commit identifiers, and closely related information not generally known that could injure Sphink if disclosed and that goes beyond what is required for the public to understand the dispute. Granted. Otherwise Again, the redactions follow two overlapping rationales and often there is no way to tell how Sphink intended to cabin them. Moreover, many proposed redactions are of generic concepts presented in open court. For instance, one “source code” redaction is as follows: “Sphink made a creative choice in determining [redacted].” The redacted term is itself general and was noted elsewhere and in court. Denied. |
Dkt. No. 127-12 (Exh. 5, Excerpt of Expert Mitzen-macher Dep. Tr.) | Dkt. No. 179-6 | 54:5- 23, Denied. | The redacted material addresses general concepts discussed in open court that Sphink asserted were related to the merits (see supra Part 3.A). |
Dkt. No. 127-14 (Exh. 6, 2023-07-14 Ltr. Roddy to Peamon) | Dkt. No. 179-7 | Redactions in 2 & n.2, Granted. | (See supra entry Dkt. Nos. 129-8 & 179-12.) |
Dkt. No. 127-18 (Exh. 9, Excerpts of Expert Feamster Op. Rpt.) | Dkt. No. 189-5 | ¶¶251, 252, Denied. | The paragraphs track testimony in open court, describing generally how protocols work and some of the activities done to understand this one (see supra Part 3.A). |
Dkt. No. 127-20 (Exh. 10, Excerpts of Expert Feamster Reb. Rpt.) | Dkt. No. 189-6 | Marked techniques in ¶¶ 129-36 138-39, 142-14; nn.7, 8, Denied. | Proposed redactions include fragments for which no rationale is offered (e.g.. ¶ 122). And they include generic concepts useful to understanding case contentions, many repeated in open court. For example: “This is a conventional software design in which [redacted] are emitted by a program at configurable [redacted] levels that can be adjusted dining development†(¶ 142). Splunk fails to provide a specific reason why this general description of this conventional design merits redaction (see supra Part 3.A). Denied. |
Marked code and identifiers in ¶¶ 121,132, 138-142; mi. 12-14 Grantedin-Part, Dented-in-Part. | ¶¶ 140-41; fig. in ¶ 138; nn.12-14 These selections abide a proposed rationale. They contain code fragments, commit identifiers, and closely related information not generally known that could injure Splunk if disclosed and that goes beyond what is required for the public to understand the dispute. Granted. Otherwise (See previous entry). Denied. | ||
Dkt. No. 127-22 (Exh. 12, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 189-7 | ¶180, Grantedin-Part, Denied-in-Part. | (See supra entry re Dkt. Nos. 129-2 & 179-9.) |
B. Splink's Opposition to Cribl's Motion to Exclude de Opinions of Expert Astrachan.
(i) Splunk's Proposed Redactions
Sealed | Public | Result Re | Reasoning |
Dkt. No. 142-1 (Opp.) | Dkt. No. 189-63 | Green highlights in 5:18-19, 6:6-7:12, 9:6-7, 10:6-20, 16:20-25, 19:14, 20:3; | 5:18-19, 9:6-7, 16:23-25, 18 n.3,19:14, 20:3 Passages pertain to specific code characteristics not discussed in open court that could impose commercial risks if disclosed, and that are beyond the detail required to understand the case. Granted. Otherwise |
n.3, Grantedin-Part, Denied-in-Part. | No redactions are marked, and none would meet the standard. The passages (e.g., 6:6-7:12, 10:610:20) describe generic or disclosed elements of the S2S protocol and its implementation (see supra Part 3.A). Denied. | ||
Dkt. No. 142-2 (Exh. 1, Excerpts of Expert Mitzen-macher Op. RPt.) | Dkt. No. 189-66 | ¶¶ 48-53 58, 66—81, 8385; nn.37-47, 49, 51, 53-56, 6162, 65, 68, 70-79; figs. 3-20, Grantedin-Part, Denied-in-Part. | (See supra entry re Dkt. Nos. 127-4 & 179-2.) |
Dkt. No. 142-3 (Exh. 5, Excerpt of Expert Mitzen-macher Dep. Tr.) | Dkt. No. 189-67 | 54:5- 23, Denied. | (See supra entry re Dkt. Nos. 127-12 & 179-6.) |
Dkt. No. 142-5 (Exh. 9, Excerpt of Expert Feamster Op. Rpt.) | Dkt. No. 189-69 | ¶¶ 157-62, 164, 251, Denied. | ¶¶ 157-62, 164 No highlights or redactions are marked. Denied. ¶ 251 (See supra entry re Dkt. Nos. 127-18, 189-5.) |
Code identifiers in ¶¶ 167, 246, Grantedin-Part, Denied-in-Part. | ¶ 167 Redactions are of endpoints, tokens, and the like that could impose risk if disclosed and that are beyond what is required to understand the case. Granted. ¶ 246 The passage concerns decompiling two JAR files. No redactions were published on the public copy. The same material was elsewhere also left unredacted (e.g., Dkt. No. 179-3 at 58 & n.124). Denied. | ||
Dkt. No. 142-6 (Exh. 10, Excerpts of | Dkt. No. 189-70 | ¶¶ 129-136, 138-139, 42 144; nn.7, 8, Denied. | (See supra entry re Dkt. Nos. 127-20 & 189-6.) |
Expert Feamster Reb. Rpt.) | ¶¶ 121, 132,138-142; nn. 12- 14, Grantedin-Part, Denied-in-Part. | (See ibid.) | |
Dkt. No. 142-9 (Exh. 18 Excerpt of Expert Mattmann Reb. Rpt.) | Dkt. No. 189-73 | Customer name in ¶¶ 26-27, Denied. | (See supra entry re Dkt. Nos. 136-4 & 189-12.) |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 142-9 (Exh. 18. Expert Mattmann Reb. Rpt.) | Dkt. No. 189-73 | Customer name in ¶¶26, 27, Denied. | (See previous entry.) |
7. Motions Stemming from Cribl's Motion to Exclude Opinions of Expert Putnam.
Cribl also moved to exclude opinions of Expert Putnam and for leave to supplement those of Expert Heinemann (Dkt. No. 126). Splunk opposed (Dkt. No. 155). Parties' omnibus motions again declare support for sealing particular passages.
A. Cribl's Motion to Exclude Opinions of Expert Putnam.
Recall that Splunk sought damages. Experts opined what would have been Splunk's revenues and profits but for Cribl's alleged contract and copyright violations, with different answers provided depending upon the acts proven unlawful. Parties shared high-level financial and operational information about each firm, overlapping customers, and resulting estimates.
Parties now propose redactions, however, that would obscure even those high-level numbers. For its part, Splunk proposes to redact even financial information it reported as a public company: “For FY2023, Splunk reported about [redacted] in revenue” (Dkt. Nos. 125-4 & 204-10 ¶ 50). What would rivals, investors, and regulators say? $3.65 billion. Splunk Announces Fiscal Fourth Quarter and Full Year 2023 Financial Results, Splunk.com (Mar. 1, 2023), [https://penna.cc/66AF-TVUT]. And Cribl, meanwhile, seeks to redact claims it made repeatedly in filings and open court as to whether Cribl was profitable and whether that affected damages (compare, e.g., Dkt. No. 189-62 at 21, and Tr. 1272-76, with, e.g, Dkt. Nos. 125-2 & 204-2 at 20-21). Cribl also seeks to redact truisms about venture financing (e.g., Dkt. Nos. 125-4 & 204-10 ¶¶ 27, 29, 162). And it seeks to redact widely quoted figures regarding its valuation (e.g., id. ¶ 28 & n.14). Such redactions are unwarranted. Many were discussed in open coin! to aid the public's understanding there, just as they are discussed here in filings. And they protect nothing a rival or investor would not know, serving only to interrupt the public's understanding of disputed points. Specific examples will be noted below.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 125-4 (Exh. 1, Expert Putnam Op. Rpt.) | Dkt. No. 204-10 | Customer names in ¶¶106, 142-43; nn.178-180, 182; exhs. 6.1, 6.2, 6.4, 7, 8, 10, 15, Grantedin-Part, Denied-in-Part. | The document develops estimates of damages based on public and private financial data and, in some respects, Splunk-, Cribl-, and customer-provided stories about the services. nn.178-80, 182; exhs. 7, 8,15 These customer names are presented in locations where they form large lists of Splunk’s (and Cribl’s) customers, sometimes alongside their financial information. Redacting the names is warranted to protect Splunk (and Cribl, infra), and third parties. Granted. ¶¶ 106,142,143; exhs. 6.1, 6.2,6.4,10 The customer names here were either already disclosed or else are disclosed in isolated instances. Disclosing them poses no credible threat to Splunk (nor to Cribl, infra). Denied. |
Financial information in ¶¶ 50; exhs. 3.1, 3.2, 5; exh. 13 sch. B. | Multiple proposed redactions would obscure information gleaned from public-company filings (e.g., ¶ 50; compare also exh. 13 sched. B, with id. at exh. 14.1 nn.6-7; see also supra Part 7.A). If there is financial information here that is not public and worthy of protecting, it is Splunk’s burden to point that out. Kamakana, 447 F.3d at 1182. This is not to foreclose any redaction that Cribl also seeks with better tailoring (see infra). |
Denied, without prejudice to Cribl’s redactions. | |||
Dkt. No. 125-6 (Exh. 2, Expert Putnam Reply RPt.) | Dkt. No. 204-11 | “Green and purple highlights†in “¶¶†“Footnotes†“Exhibits 3, 4â€, Denied, without prejudice to Cribl’s redactions. | Splunk says that it wishes to redact highlighted customer names across 132 pages of “Footnotes,†“¶¶,†and exhibits. The Court ordered a passageby-passage justification (Dkt. No. 141). That passage-by-passage approach helps ensure proposed redactions are important enough to call out in a motion. And it keeps the process administrable, ensuring the district court does not need to search for, perhaps not find, and even grant by mistake some portion of proposed redactions. Greenwood, 28 F.3d at 977 (“Judges are not like pigs, hunting for truffles buried in briefs.â€) This order does not credit Splunk’s claim that the secrecy of every customer name (or of these ones) is so important to it. |
Financial study information redacted in ¶ 124 Exhibit 4, Granted. | Although Splunk did not call out Exhibit 4 for redaction in the opening report (perhaps knowing Cribl was requesting its redactions, infra), this order credits Splunk’s basis for redacting the updated exhibit in the reply. The paragraph and exhibit call out the number of sales transactions across the study period and then the period-byperiod revenue from customers of various types, cut once more by those overlapping with or not with Cribl. Although underlying what was to be proved and what was shared publicly, these more detailed numbers are bound up with other nonpublic information that would impose costs on Splunk (and Cribl, infra) if released. | ||
Dkt. No. 125-8 (Exh. 3, Expert Putnam Dep. Tr.) | Dkt. No. 204-12 | 169:3; 195:17 196:19; 197:12; 198:14, Denied. | In one instance, the proposed redaction does not match the rationale for redaction. In all others, the single customer name was discussed in attachments to dispositive motions. Here, no adjacent details create risk to the third party or Splunk (or Cribl, infra) if reassociated with it. |
Dkt. No. 125-10 (Exh. 4, Expert Heinemann Reb. Rpt.) | Dkt. No. 204-13 | Marked redactions in ¶¶ 2(l), 153, 192, 196, 200; n.319; | Figs. 10-11; exhs. 7.1-9.1 These redactions entail third-party finances at a level of detail not needed to understand the dispute, and go beyond what was disclosed elsewhere. Moreover, redacting just third-party names but not the details is no solution here: The sheer volume of examples, each with its specific ramp-up or other characteristics, conveys |
figs. 10-14; exhs. 6.19.1, Grantedin-Part, Denied-in-Part. | meaningfully more confidential information about Splunk’s business than would any one such example by itself. Granted. n.319 The redaction specifically relates to the rationale for redaction and captures a confidential financial ratio of import to Splunk but beyond the detail needed to understand the dispute. Granted. ¶ 2(l) Marked redactions surpass the rationale. The proposed redaction is not “pricing†nor “expenditures of specific customers†(Dkt. No. 190 at 28). Rather, the high-level information conveys estimated lost revenues across all customers using Cribl instead of Splunk. That is on-point to the dispute, and akin to what was disclosed elsewhere (see supra Part 7.A). Denied. ¶ 153 So too here: The redaction — “Splunk’s ingestion volume from Cribl was only [redacted]% of Splunk’s total ingestion volume tracked†(¶ 153) — does not cover “pricing†or “expenditures of specific customers,†nor even “financial information†(Dkt. No. 190 at 28). Moreover, the same information is disclosed elsewhere (e.g., Dkt. No. 189-10 ¶ 153). Denied. ¶ 192 Once again: The redaction does not protect Splunk’s or customers’ financial information as such. Rather, the proposed redaction would protect Splunk from disclosing the extent to which Cribl may have diverted sales from Splunk. But that was one question Splunk sought the public courts to help answer. Splunk’s boilerplate explanation for redacting high-level information about the answer, of the kind heard in court, is not compelling. See Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 567-68 (7th Cir. 2000) (Judge Frank Easterbrook). And the number redacted here is disclosed throughout the reports. Denied. |
¶¶ 196, 200; fig. 14 Similar reasoning applies. Competing damages theories were presented in open court. Denied. Figs. 12-13 These figures are at the heart of a damages question Splunk brought to the public courts to answer. The boilerplate rationale for redaction that Splunk provides is to protect its pricing and related financial information. But not even private-company Cribl seeks to protect this information, making Splunk’s fears less credible. Moreover, in another instance of this underlying report, Splunk failed to move to redact these figures, again belying its rationale. Denied. Exhs. 6.1-6.6 These charts are related to the figures above, but divulge more gradations of information about the companies without meaningfully increasing public understanding of the case. Granted. | |||
Customer names and identifiers in ¶¶ 124, 127, 164, 171, 179, 229-30; nn.243-257, 343, 347-50, 352-55, 357, 365, 440, 447; figs. 10-11; exhs. 2.5, 3.9, 7.1-9.3, 10; app’x C, Granted in-Part, Denied-in-Part. | ¶¶ 124, 171, 179; nn.243-257, 343, 347-50, 35255, 357; exhs. 2.5, 3.9, 9.1-9.3, 10, app’x C The passages here collect large lists of customers to convey their anecdotes or their financial information, including in large tables. Disclosing the names would disclose a meaningful customer list, without meaningfully enhancing the public’s understanding — which for these portions is provided by the underlying facts. Granted. ¶ 164; figs. 10-11; exhs. 7.1-8.10 The passages here cumulatively introduce a large set of customers’ names. For reasons like those above, and because disclosing these names would reassociate them with year-by-year financial information, redaction is warranted. Granted. ¶¶ 127, 229-30; nn.365, 440, 447 These portions convey anecdotes about customers who are already disclosed and/or whose names appear here in ways that do not convey a large set of customers at once. The basis for redaction as to these names is not persuasive. Denied. | ||
Dkt. No. 125-12 (Exh. 5, | Dkt. No. 204-14 | Marked redactions in ¶ 11; n.10; figs. 1, 2, 4; | n.10 The proposed redaction seeks to obscure a high-level generalization about how Splunk’s revenues change when a Splunk customer becomes a Cribl |
Expert Heinemann Supp. Reb. Rpt.) | exh. 1; app’xs A, B, Grantedin-Part, Denied-in-Part. | customer. Similar figures were discussed in open court. They help the public understand the case. And Sphink failed to mark this same number for redaction in the underlying report to which this figure is cited. Denied. Otherwise Proposed redactions obscure information modeling the change in revenues when Sphink customers become Cribl customers. The highly specific models embed confidential information that would pose needless risks to Sphink if disclosed, given this goes beyond the detail offered in court or needed to understand the case. Granted. | |
Dkt. No. 125-14 (Exh. 7, Expert Putnam Supp. Rpt.) | Dkt. No. 204-15 | Green highlighted portions in ¶¶ h 8; n.9; fig- 1, Denied. | ¶¶1,8 Sphink marks for redaction modeling numbers that suggest it loses money, but not other modeling numbers that suggest it gains money (compare ¶ 1 (redacting negative percent), with ¶¶ 2, 3 (not redacting positive percent)). The rationale Sphink asserts for marking the one set would equally apply to the other. And the very detail redacted in one place (¶ 1) is not marked for redaction in another (¶ 8). The risks to Sphink are not credible. All these high-level numbers inform understanding of the case and were aired in open court. Denied. Fig. 1, n.9 These modeling components (or in specific subcategories) of Cribl’s alleged effect on customers’ spending on Sphink was not as distinctly aired in court or dispositive motions. They embed financial information and divulging them would impose needless costs on Sphink given they are beyond the detail needed to understand the case. Granted. |
App’xs A.B. Denied. | No redactions were applied to the figures. |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 125-2 (Mot.) | Dkt. No. 204-2 | 19:2019:21, Denied. | Such facts and speculation about Cribl's profitability and valuation were not “tangentially related to” the case but asserted in arguments about damages (see supra Part 7.A). |
20:1-2, Denied. | This self-serving speculation about Cribl’s future profitability is vague, non-committal, and even cliched. Releasing it cannot credibly hurt Cribl. | ||
20:23-21:1, Denied. | (See supra Part 7.A.) | ||
Dkt. No. 125-4 (Exh. 1, Expert Putnam Op. Rpt.) | Dkt. No. 204-10 | ¶¶ 19—21, Denied. | Similar testimony was heard in open court. This paragraph and the testimony walked through Cribl’s past recuring revenues and Cribl’s percent of customers who were also Splunk’s customers to sketch damages. And in paragraphs and charts not proposed for redaction, this report again discloses similar recurring revenue numbers and percent of shared customers. |
¶¶ 27, 29, Denied. | (See supra Part 7.A.) | ||
¶ 28; n.14, Denied. | (See ibid.') | ||
24 n. 37, Denied. | Nothing in the cited footnote matches Cribl’s rationale or would implicate a third party. | ||
After “board meeting reported†in ¶ 57, Granted. | The details of private company Cribl’s fundraising and cash position were not disclosed in open court and have limited relevance to the dispute. Cribl articulates credible risks that could befall Cribl if disclosed. | ||
After “was valued at about†in 25 n.48, Denied. | (See supra Part 7.A.) | ||
Customer names in 55 nn.178-80; 56 n.18[2]; 58 ¶ 106(e), Grantedin-Part, Denied-in- Part. | ¶ 106(e) Cribl adds nothing to change the decision regarding this passage (see supra entry re Dkt. Nos. 125-4 & 204-10). Denied. nn.178-80, 182 (See ibid.) Granted. | ||
Customer name in ¶¶ 142-43, Denied. | (See ibid.) | ||
Following “as a startup†in ¶ 162, Denied. | This is blather about startups, not something meriting sealing (see supra Part 7.A). |
After "expected profits, atâ€: 96 n.313, Denied. | This valuation of Cribl was disclosed in open court (see supra Part 7.A). | ||
¶ 169, Denied. | Cribl’s profitability was discussed in open court (see supra Part 7.A). | ||
¶ 173, Denied. | (See previous entry.) | ||
¶¶ 180-82, Denied. | ¶180-81 Cribl’s revenue over time was discussed in open court, including numbers akin to these figures. ¶ 182 Splunk’s expert estimated Cribl’s incremental profit by multiplying the same figure just discussed by Splunk’s earlier incremental profit margin (not Cribl’s). This is just a high-level estimate that contributed to the damages debate, and it is explained here that way. Cribl’s rationale for redaction is not convincing. | ||
¶¶ 199-200, 202, 204, Denied. | For similar reasons, these estimates of Cribl’s high-level revenues and profit by Splunk’s expert do not pose any credible risk if disclosed. | ||
¶ 213, Denied. | Cribl’s high-level profitability over time was discussed in open court (supra Part 7.A). | ||
Financial figures in exhs. 3.1, 3.2, 3.3, Grantedin-Pat, Denied-in-Part. | Exh. 3.1 These high-level projections are on the order of those shared in court and are helpful to understanding the dispute. Denied. Otherwise These more specific projections for damages under varied scenarios were not discussed as thoroughly in open court, embed more business information with competitive import to Cribl, and ultimately are less important to understanding the dispute. Granted. | ||
Exh. 3 schs. A, B, Granted. | (See previous entry.) | ||
Exh. 4, sch. A, Granted. | (See ibid.') | ||
Customer names in | These customer names are conveyed in isolated anecdotes alongside anodyne information loosely informing the estimates. Cribl has not provided a |
Exh. 6.1 at lines 2, 21, 23; exh. 6.2 at line 17; exh. 6.4 at line 16, Denied. | sufficiently plausible, specific reason why it would be harmed by the names’ release. | ||
Customer names in exh. 7; exh. 8, Granted. | These exhibits are annex-like tables of all customers modeled and all customers shared by Cribl and Splunk. The lengthy lists cumulatively contain significant confidential information that could harm Cribl and its customers if exposed and that is beyond what is needed for public understanding. | ||
Financial statement in exh. 9, Granted. | Private company Cribl’s financial statements were not discussed in detail in open court. Its most recent audited financial statements were disclosed (Dkt. No. 352-31). Nonetheless, these statements contain prior-year information that in connection with current-year information reveals trajectories confidential to Cribl, important to its fundraising prospects, and correspondingly less critical to public understanding of the case. | ||
Customer names in exh. 10 at line 7, Denied. Exh. 15, Granted. | These customer names are denied where appearing in isolation and in anecdotes (exh. 10 at line 7). And they are granted where appearing in lengthy lists (exh. 15) (cf. supra entry re exhs. 6.1, 7). | ||
Fig. 1, Denied. | Cribl proposes to redact the entirety of the chart in Figure 1, but not the entirety of the corresponding table in Schedule A. Further, the only part of the table in Schedule A proposed for redaction was already discussed in open court and is a foothold for understanding damages. | ||
Dkt. No. 125-6 (Exh. 2, Expert Putnam Reply Rpt.) | Dkt. No. 204-11 | ¶147, Denied. | Cribl’s current valuation was discussed in open court (supra Part 7.A). |
Financial figures in exh. 3.1, Denied. Exh. 3.2; exh. 3.3 & scheds. A, B; | For reasons like those stated for the same exhibits in Expert Putnam’s opening report, of which these are updates, the redactions are only partly granted (cf. supra entry re Dkt. No. 125-4 & 204-10). |
Exh. 4 & sched. A, Granted. | |||
Customer names in exh. 3 line 18, Denied. | Disclosing these few customer names in such isolated anecdotes will not plausibly injure Cribl. | ||
Dkt. No. 125-8 (Exh. 3, Expert Putnam Dep. Tr.) | Dkt. No. 204-12 | 75:19, Denied. | Substantially the same Cribl revenue number was discussed in open court (supra Part 7.A). |
78:6; 79:7; 86:19, Denied. | The deposed expert discusses some projected damages numbers at a high level of generality. Redaction is not warranted (cf. supra entry re Dkt. Nos. 125-4 & 204-10 ¶¶ 199-200). | ||
130:9; 130:16-18; 130:24-25; p. 131 at ll. 3-4, 8, 13-15; 131:17-25; 132:1-19; 133:2-5, Denied. | Cribl’s high-level profitability was discussed in open court and, as this passage helps show, is important to understanding arguments made about damages (supra Part 7.A). | ||
168:1, Granted. | Cribl’s revenues as of this exact period were not discussed meaningfully in open court, could harm Cribl if disclosed, and are beyond the detail needed to understand the dispute (cf. supra entry re Dkt. Nos. 125-4 & 204-10 exh. 9). | ||
195:17, 195:24; p. 196 at ll. 6, 12, 14, 16, 19; 197:12; 198:14, Denied. | These proposed redactions are not warranted for reasons already stated with respect to the same and adjacent redactions in another copy (see supra entry re Dkt. Nos. 125-8 & 204-12.) | ||
199:23; 200:7, Denied. | The number of Cribl’s customers who are also Splunk customers was discussed in open court (e.g., Tr. 1069). | ||
Dkt. No. 125-10 (Exh. 4, Expert Heinemann | Dkt. No. 204-13 | ¶¶ 2a, 2b, 2d, Denied. | ¶ 2a Cribl’s high-level profitability over time was discussed in open court (supra Part 7.A). ¶¶ 2b, 2d Cribl offered self-serving blather about future performance; it will not credibly be harmed by it |
Reb. RPt.) | (cf. supra re Dkt. Nos. 125-2 & 204-2 at 20:1-2; see also supra Part 7.A). | ||
¶ 2s, Granted. | Cribl’s revenues as of this exact period were not discussed in open court and are beyond the level of detail needed to understand the case (cf. supra entry re Dkt. Nos. 125-4 & 2-4-10 exh. 9). | ||
¶¶ 27b, ¶27d, Denied. | This organizational customer was discussed in open court and there is no reason to redact here. | ||
¶ 30, Granted. | (See supra entry re Dkt. Nos. 125-10 & 204-13 ¶ 2s.) | ||
26 n.101, Denied. | Cribl’s customer was openly discussed in court. | ||
¶ 122, Denied. | Cribl’s proposed redactions target not only a purported fact discussed in court but the name of the area of law to which it relates: copyright (see also supra Part 7.A). | ||
Customer names in ¶¶ 124a-c, nn.243-44, Granted. | (See supra entry re Dkt. Nos. 125-10 & 204-13.) | ||
Customer names in ¶¶ 124d—g, nn.245-49, Granted. | (See ibid.) | ||
¶¶ 124h—l, nn.250-54, Granted. | (See ibid.) | ||
¶¶ 124m-n, 127a; nn.255-57, 269, Granted. | (See ibid.) | ||
¶ 171, Granted. | (See ibid.) | ||
Financial figures in 82 n.340, Granted. | Cribl’s revenues as of this exact period were not discussed meaningfully in open court, could pose risks to Cribl if exposed, and are beyond the detail needed to understand the case (cf. supra entry re Dkt. Nos. 125-4 & 204-10 exh. 9). | ||
83 n.344, Denied. | Cribl’s customer’s name was discussed in court. | ||
Customer names in ¶¶ 179b-e, nn.347-50, Granted. | (See supra entry re Dkt. Nos. 125-10 & 204-13.) |
Customer names in ¶¶ 179g-j, nn.352—55, Granted. | (See ibid.) | ||
86 n.356, Denied. | Cribl’s customer’s name was disclosed and discussed extensively in relation to testimony that was important to understanding the dispute. | ||
97 n.402, Granted. | Cribl’s revenues as of this exact period were not discussed meaningfully in open court and are beyond the level of detail needed to understand the dispute. | ||
111-12 nn.469, 474, Denied. | Cribl’s customer’s name chosen for redaction here by Cribl was discussed openly in com!. There is no particular reason to redact here. | ||
Exits. 2.1-2.4, 3.1-3.10, 4.1—4.9, 5.1-5.2; exh. 11 app’x D, Granted. | Private company Cribl’s estimated and actual financial metrics were not discussed with such granularity in open court (nor in other exhibits or filings). They are beyond the level of detail needed to understand the case. For instance, Exhibits 2.1-2.3 estimate revenues at monthly intervals. Exhibit 2.4 provides a line-by-line income statement for many years. Exhibits 4.15.2 break down various cost centers, and sources of revenues. Exhibit 11 contains high-level financial drivers. Disclosing any of this information could impose costs on Cribl for little to no relevant gain to public understanding. | ||
Customer lists and identifiers in exh. 2.5 app’x C, Granted. | (See supra entry re Dkt. Nos. 125-10 & 204-13.) |
B. Spunk's Opposition to Cribl's Motion to Exclude Opinions of Expert Putnam.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 152-2 (Exh. 9, Cribl Executive Summary for [Redacted], | Dkt. No. 179-13 | Customer name, Denied, without prejudice to other redactions proposed infra. | This proof-of-value report was produced by Cribl to show how much a Sphmk customer might save once it began using Cribl. Its contents were examined in open court and admitted into evidence (Dkt. No. 352-32). Further risk to Splunk, Cribl, or the customer from its additional release here is speculative - except that some surgical redactions Cribl describes in its motion to |
CRIBL _ 00141373) | seal the same document do warrant applying (infra re Dkt. Nos. 152-2 & 179-13). | ||
Dkt. No. 152-3 (Exh. 10, Proof-of-Value Excel for [Redacted], CRIBL _ 000079497) | Dkt. No. 189-15 | Customer name in row 1, Denied. | The document is a screenshot or printout of a spreadsheet showing Cribl’s estimated cost reduction for a customer using Splunk after starting to use Cribl. The customer’s name was disclosed in court, including in reference to high-level discussions of this analysis. And the same document was admitted as an exhibit without redactions (Dkt. No. 352-38). |
Financial amounts in columns, Denied. | In this same sheet is a column showing Splunk’s itemized prices for varied services. Redactions are proposed in the motion, but none are rendered in the public docket. Moreover, the same document was admitted without redactions as a trial exhibit (Dkt. No. 352-38). | ||
Dkt. No. 152-4 (Exh. 11, Proof-of-Value Excel for [Redacted], CRIBL _ 00619088) | Dkt. No. 189-16 | Customer name in row 1, Granted. | The third party is noted elsewhere, but not with respect to these financial details. Redaction of the third-party name is warranted to protect its confidences and Splunk’s interests related to them (or Cribl’s, as it supports infra). |
Financial amounts in columns, Denied. | Redactions are proposed in the motion, but none are rendered in the public docket. Given that similar information was disclosed in the trial exhibit above, that the numbers are not fresh, and that Splunk’s lack of attention to these filings undermines its contention that it has any cause to seal, the redactions are not warranted. | ||
Dkt. No. 152-5 (Exh. 12, TCO & ROI Calculator for [Redacted] CRIBL_00 072967) | Dkt. No. 189-17 | Customer name in row 2, Granted. | Redactions are warranted for the reasons described for an analogous entry above (cf. previous entry). |
Financial amounts in columns, Denied. | Redactions are proposed but none are provided in the published copy. Redactions are not warranted (cf. ibid.). | ||
Dkt. No. 152-7 (Exh. 14, CRIBL _ 0073781) | Dkt. No. 189-19 | Customer name in all headers, and in pp. -81, -82, -96, Denied. | This is another proof-of-value report produced by Cribl to show how much a Splunk customer might save once using Cribl. A closely related report was discussed in open court and moved into evidence. Moreover, some instances of the customer’s name here are not redacted. Splunk’s rationale for redacting is thus undermined (cf. supra entry re Dkt. Nos. 152-2 & 179-13). |
Dkt. No. 152-14 (Exh. 21, CRIBL _ 00146171) | Dkt. No. 179-15 | Customer name in pp. -185-86, Granted. | This document contains extensive notes from three customer interviews to learn about their use of Cribl and Splunk and the interaction between the two services. Disclosing any name here would associate the customer with specific service details and impose needless risks on that third party and thereby Splunk (and Cribl, infra), while redacting just the name does not detract from public understanding. |
Splunk pricing in pp.-18687, Denied. | In the context of these reports, some customers talk about the price they say they paid for Splunk or Cribl (just as it turns out some have done on Splunk’s support pages on its website). Only Splunk proposes to redact what these customers themselves chose to say about past pricing. But even Splunk does not flag every page such discussions come up, and in the publicly filed copy no redactions on page -87 are rendered. Splunk’s fears are not credible. | ||
Dkt. No. 152-18 (Exh. 26, Heudecker Dep. Tr.) | Dkt. No. 189-27 | Customer name in 88:1, 88:5, 88:17, Denied. | The customer was not discussed meaningfully in open court, yet here appears alongside a generic needs and cost-savings discussion, now two years old. Splunk provides no sufficiently specific rationale for redaction. |
Dkt. No. 152-21 (Exh. 29, “Proof-of-Value†Slides for [Redacted], CRIBL _ 00079545) | Dkt. No. 189-30 | Customer names in p. 1, cells B1-C1; p. 2, cell H1; p. 4, cell B1, Granted. | This is another proof-of-value report produced by Cribl and containing a customer name with pricing information from Splunk (and Cribl). For reasons like those given for the other such reports above, redaction is warranted here, too (see supra entry re Dkt. Nos. 152-4 & 189-16). |
Financial amounts in columns, Denied. | Redactions were proposed but not rendered on the public docket. For reasons like the ones given for the other such reports above, redaction is not warranted here (see ibid.). | ||
Dkt. No. 152-22 (Exh. 30, “Proof-of-Value†Slides for [Redacted], CRIBL _ 0007751) | Dkt. No. 189-31 | Customer name in row 1, Granted. | The same result obtains for the same reasons articulated in an analogous entry (see ibid.). |
Financial amounts in columns, Denied. | (See ibid.) |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 152-1 (Opp.) | Dkt. No. 189-62 | 2:14-2:17, Denied. | These characterizations of Cribl’s valuation and profitability were openly discussed (supra Part 7.A). |
p. 4 at lines 19, 22, 25-28 p. 5 at lines 3, 8, 10, 13-14, Denied. | This “instinctive†proof-of-value analysis about a customer was also introduced in open court. Redacting the name of that customer is not warranted here, either (see, e.g., supra re Dkt. Nos. 152-3 & 179-13). | ||
14:6; 14:8-11; 14:25; 20:22; 21:5, Denied. | These characterizations of Cribl’s valuation and profitability were discussed openly (supra Part 7.A). | ||
16:24; 17:11-12, Denied. | (See ibid.) | ||
Dkt. No. 152-2 (Exh. 9, Cribl Executive Summary for [Redacted], CRIBL_ 00141373) | Dkt. No. 179-13 | Customer name in PDF pp. 2-3, 4-5, 11, 16, 19-24, 27-29, 34, Denied. | The document is the proof-of-value summary provided for a customer discussed in court and admitted as an exhibit (Dkt. No. 352-32). Redactions as to the customer name in this copy are denied for the same reasons (see supra entry re Dkt. Nos. 152-2 & 179-13; see also entry re Dkt. Nos. 169-2 & 170-2). Denied. |
Other names (eg-, employees) PDF pp. 7-10, 12-15, 17, 21-22, 24-25, Denied. | Cribl also seeks to redact the third party’s employee’s names and some operational information. This information was already published in the admitted exhibit; there is no personally sensitive information here. | ||
Code in PDF pp. 2122, 32, 34-35, Granted. | Fragments of code included in this presentation are per ipheral to the purpose for which this presentation was discussed in court. They were not themselves disclosed in court and beyond the level needed to understand the dispute or judicial process. Nor were they legible in the copy submitted for trial (Dkt. No. 352-32). Disclosing them creates risks for the third party and Cribl without adding to relevant public understanding. | ||
Dkt. No. 152-3 (Exh. 10, Proof-of- Value | Dkt. No. 189-15 | Customer name in -9497 (row 1), Denied. | (See supra entry re Dkt. Nos. 152-3 & 189-15.) |
Excel for [Redacted], CRIBL _ 000079497) | |||
Dkt. No. 152-4 (Exh. 11, Proof-of-Value Excel for [Redacted], CRIBL _ 00619088)) | Dkt. No. 189-16 | Customer name in -9088 (row 1), Granted. | (See supra entry re Dkt. Nos. 152-4 & 189-16.) |
Dkt. No. 152-5 (Exh. 12, TCO & ROI Calculator for [Redacted] CRIBL_00 072967) | Dkt. No. 189-17 | Customer name in PDF pp. 2 (row 2), 5 (row 1), Granted. | (See supra entry re Dkt. Nos. 152-5 & 189-17.) |
Dkt. No. 152-7 (Exh. 14, CRIBL _ 0073781) | Dkt. No. 189-19 | Customer name in headers, pp.-81-97 Denied. | (See supra entry re Dkt. Nos. 152-7 &189-19.) |
Dkt. No. 152-14 (Exh. 21, CRIBL _ 00146171) | Dkt. No. 179-15 (Exh. 21) | Customer name in -185-86, Granted. | (See supra entry re Dkt. Nos. 152-14 & 179-15.) |
Dkt. No. 152-17 (Exh. 25, Sharp Dep. Tr. Excerpt) | Dkt. No. 179-16 | Company valuation in 318:22, Denied. | This testimony about Cribl’s valuation as of this date was given in open court (supra Part 7.A). |
Ownership percents in 318:24, Granted. | This testimony about an individual’s personal ownership interest in Cribl is ultimately peripheral to the litigation; repeating it offends personal privacy and serves no public purpose. | ||
Dkt. No. 152-18 (Exh. 26, Heudecker Dep. Tr.) | Dkt. No. 189-27 | Customer name in 88:1, 88:5, 88:17, Denied. | (See supra entry re Dkt. Nos. 152-18 & 189-27.) |
Dkt. No. 152-20 (Exh. 28, “Cribl Overview,” CRIBL 00598104) | Dkt. No. 189-29 | Customer names in PDF pp. 18-19, Denied. | This marketing presentation with presenter notes describes Cribl and its benefits. Within the notes are some customer names as reminders of use cases. Several of those customers and their use cases are still touted on Cribl's website today. |
Dkt. No. 152-21 (Exh. 29, “Proof-of- Value” Slides for [Redacted], CRIBL_ 00079545) | Dkt. No. 189-30 | Customer name in PDF Pages 2-3, 5, Granted. | (See supra re Dkt. Nos. 152-21 & 189-30.) |
Dkt. No. 152-22 (Exh. 30, “Proof-of-Value” for [Redacted], CRIBL_ 0007751)) | Dkt. No. 189-31 | Customer name in -7551, Granted. | (See supra entry re Dkt. Nos. 152-22 & 189-31.) |
C. Cribl's Reply in Support of Its Motion to Exclude Opinions of Expert Putnam.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 169-1 (Reply) | Dkt. No. 170 | Customer name in 4:14-23, 5:12,5:226:5, Grantedin-Part, Denied-in-Part. | 4:23,5:12 The passage describes and cites to a proof-of-value analysis. The proposed redactions would obscure the beneficiary's name. Doing so is warranted for reasons like those given for redacting the names in proof-of-value analyses elsewhere (see, e.g., supra entry re Dkt. Nos. 15222 & 189-31; infra re Dkt. Nos. 169-1 & 170 (Cribl's rationale)). Granted. Otherwise These passages describe another such analysis. But that analysis and customer were discussed in open court, with the analysis itself admitted as an exhibit not under seal (Dkt. No. 352-32). Denied. |
Dkt. No. 169-2 (Exh. 31, | Dkt. No. 170-2 | Customer name, | The document cited is again the proof-of-value summary discussed in court and admitted as an exhibit (Dkt. No. 352-32). Redactions as to this |
Cribl Executive Summary: [Redacted]) | Denied, without prejudice to redactions discussed infra. | copy are denied for the same reasons — except that some surgical redactions Cribl describes in its motion to seal may be warranted (infra entry re Dkt. Nos. 169-2 & 170-2). | |
Dkt. No. 169-3 (Exh. 32 “Proof-of- Value†Slides for [Redacted], CRIBL_ 00079545) | Dkt. No. 170-3 (slip-sheet); cf. Dkt. No. 189-30 | Customer name in row 1, Granted. | (See supra entry re Dkt. Nos. 152-21 & 189-30.) |
Financial amounts in columns, Denied. | (See ibid.) |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 169-1 (Reply) | Dkt. No. 170 | 4-6 (§ LA), Granted-in- Part, Denied-in- Part. | For the reasons and to the extent discussed above with respect to Splunk’s motion to seal, the redactions are granted in part (see supra entry re Dkt. Nos. 169-1 & 170). |
Dkt. No. 169-2 (Exh. 31, Cribl Executive Summary for [Redacted], CRIBL 00141373) | Dkt. No. 170-2 | Customer name at PDF pp. 2-3, 4-5, 11, 16, 19-24, 27-29, 34, Denied. | Cribl adds no reason to reach a different result (see supra entry re Dkt. Nos. 169-2 & 170-2). |
Other names (eg, customer employees) at PDFpp. 7-10, 12-15, 17, 21-22, 24-25, Denied. | (See supra entry re Dkt. Nos. 152-2 & 179-13.) | ||
Code at PDF Page [14-15,22, 25, 27-28], Granted. | (See ibid.) | ||
Dkt. No. 169-3 (Exh. 32 “Proof-of-Value†| Dkt. No. 170-3 (slip-sheet) | Customer name, Granted. Otherwise, Denied. | (See supra entry re Dkt. Nos. 169-3 & 170-3.) |
Slides for [Redacted], CRIBL_ 00079545) | |||
Dkt. No. 169-4 (Exh. 33, Video File) | Dkt. No. 170-4 (slip-sheet) | Entirety, Granted. | The exhibit is a recorded video meeting between a Cribl representative and a Sphink customer, describing Splunk's costs and potential savings achieved through Cribl. The substance important to the case is already conveyed through other filings and written reports (see, e.g.. Dkt. Nos. 169-1 & 170). This format includes more private details about a third-party business, and images and audio of third-party individuals. Sealing is warranted to protect their privacy and so Cribl. |
8. Motions to Seal Stemming from Splunk's Motion in Limine No. 2 re Third-Party S2S Integrations.
Splunk moved to preclude third-party integrations from argument and evidence (Dkt. No. 200). Cribl opposed (see Dkt. No. 201). Splunk also moved to seal its materials in these files (Dkt. No. 201), and to consider whether Cribl's and a third party's materials should be sealed (Dkt. No. 202). Cribl timely submitted a supporting declaration (Dkt. No. 241). So did the third party, Confluent (Dkt. Nos. 237, 238). This order rules as follows:
A. Splunk's Motion in Limine No.2.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 201-1 at 45 (Exh. 2, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 200 at 45 | Green highlighted code in [¶¶ 177180], Grantedin-Part, Denied-in-Part. | (See supra entry re Dkt. Nos. 129-2 & 179-9 ¶¶ 177-80.) |
Dkt. No. 201-1 at 64 (Exh. 3, Cribl Tr., CRIBL_ 00072913) | Dkt. No. 200 at 64 | Purple highlighted customer names, Denied. | As has occurred elsewhere, Sphink provides a single rationale for justifying every customer name in this lengthy, single-spaced document, and does not provide any page numbers on which to find them. That conduct belies Splunk's interest in sealing the names (see also supra re Dkt. Nos. 125-6 & 204-11). |
Dkt. No. 201-1 at 159 (Exh. 12, Agepati Dep. Tr.) | Dkt. No. 200 at 159 | Purple highlighted customer names in [52:4, 52:8, 52:25], Denied. | This short deposition transcript peripherally contains the name of a customer alongside one detail of its technical setup. The proposed redactions target the customer's name. But the same customer and detail is already disclosed in an email admitted as a trial exhibit (Dkt. No. 352-79). |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 202-2 at 45 (Exh. 2, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 200 at 45 | Customer names in ¶¶ 126-27, Denied. | (See supra entries re Dkt. Nos. 153-2 & 189-47 ¶¶ 126-27, and Dkt. Nos. 148-13 & 167-14). |
Dkt. No. 202-2 at 64 (Exh. 3, Cribl Tr., CRIBL_ 00072913) | Dkt. No. 200 at 64 | Customer names in 88, Denied. | The passage transcribes a meeting. Some customer names are mentioned together at its conclusion, and those names are identified for redaction. But there is nothing disclosed in conjunction with the names to suggest that disclosure could in any way injure the third parties and thereby Cribl upon disclosure (see also supra entry re Dkt. Nos. 201-1 & 200 at 64). |
Dkt. No. 202-2 at 159 (Exh. 12, Agepati Dep. Tr.) | Dkt. No. 200 at 159 | Customer names in 52:4, 52:8, 52:25, Denied. | (See id. at 159.) |
(iii) Confluent's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 202-2 at 166 (Exh. B: Exh. 13 of Splunk's Mot. in Limine No. 2: Email fi . Agepati, CON-0000000109) | Dkt. No. 237-3 | Confluent's proposed redactions on Dkt. No. 237-3, Denied. | Confluent is not a party to this litigation. Confluent commercializes open-source software projects, and in one instance reverse-engineered Splunk's S2S protocol (see, e.g., Tr. 380, Tr. 788-790, 875-86, 883). Testimony was offered that Cribl reverse-engineered the S2S protocol partly by reviewing Confluent's handiwork. This document is an email that contains Confluent's rough-draft plan for an engineering project related to Splunk's S2S. Confluent at first proposed to redact nearly its entirety (see Dkt. No. 237-2). Since then - after the lead-up to trial and the testimony above, and with parties having been ordered to inform Confluent before |
using Confluent's confidential source code at trial (Dkt. No. 122) - the same file was admitted as an exhibit at trial (Dkt. No. 352-3). That exhibit lacks proposed redactions. Moreover, Splunk's and Cribl's disclosures of related information suggest that, if there ever was value to this high-level information, there is less now. Cf. Camilla A. Hrdy & Mark A. Lemley, Abandoning Trade Secrets, 73 Stan. L. Rev. 1. 1 (2021). There is no cause to redact. | |||
Dkt. No. 202-2 at 153 (Exh. A: Exh. 11 of Splunk's Mot. in Limine No. 2: Eng'g 1-Pager: Splunk S2S Source Connector, CON-0000307377) | Dkt. No. 237-2 | Confluent's proposed redactions on Dkt. No. 237-2, Grantedin-Part, Denied-in-Part. | This document is a closer-to-final or final version of the same plan. It contains the same elements disclosed above but some details, including personnel and coding information. That information has some commercial import, partly from being undisclosed. Because the information about the third party and protocol that is relevant to the public's understanding is already disclosed, redaction of the undisclosed details is warranted as follows: • Column to right of “Target Release, "“Epic, ” “Status, ” “Review Deadline, ” “Stakeholders, ” and “Technical Reviewers” in -73 Granted. • Remainder of sentence after “This builds on the work” in -73, Granted.• Diagrams in -74 and -75, Granted. Otherwise, Denied. |
B. Cribl's Opposition to Splunk's Motion in Limine No. 2.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 201-1 at 214 (Exh. 2, Expert Mitzen-macher Reb. Rpt.) | Dkt. No. 200 at 214 | Green highlighted code details in[¶¶99, 101,figl9, n.129], Grantedin-Part, Denied-in-Part. | (See supra entry re Dkt. Nos. 148-18 & 167-19.) |
Dkt. No. 201-1 at 221 (Exh. 3, Excerpts of Expert | Dkt. No. 200 at 221 | Green highlighted code details m[¶239], Denied. | This information was disclosed publicly (see, e.g., Dkt. No. 189-69 ¶ 239; Dkt. No. 167-38 at 20; Dkt. No. 167-3 at 108 n.204). Again, the inconsistent application of redactions negates the purported reasons for redaction (supra Part 3.A). |
Fearnster Op. Rpt.) | |||
Dkt. No. 201-1 at 331 (Exh. H, Exceipts of Cribl's 3d Supp. to Splunk's 4th Interrogs.) | Dkt. No. 200 at 331 | Green highlighted code, Denied. | First, Sphink provides one rationale for every snippet of code hr this 51-page document. Sphink does not cite to any page number, line, or footnote to find those snippets. Given that the Court warned parties to identify passages at pain of summary rejection (see Dkt. No. 141), this conduct itself suggests lack of cause to seal. Second, the proposed redactions identified by this order (one hopes the only ones within the document) do not seek to protect specific things that are not already public. Sphmk, for instance, proposes to redact a relevant code phrase where even when it appears in Splunk's public-facing web addresses (URLs). Yet Sphink does not propose redacting other URLs that point to Splunk's own or third-party websites that still contain the phrase. Redactions are not warranted (see also supra Part 3.A). |
Dkt. No. 201-1 at 383 (Exh. 12, Ltr. Jacobs to Cribl, CRIBL 00138503) | Dkt. No. 200 at 383 | Purple highlighted customer names Denied. | The cited document was already published without redactions (Dkt. No. 200 at 383). |
Dkt. No. 201-1 at 419 (Exh. 15, Eber Dep. Tr.) | Dkt. No. 200 at 412 | 115:4-6 Denied. | The single customer name that is proposed for redaction is also named on Splunk's website. |
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 202-2 at 188 (Exh. 1, Bonecco Dep. Tr.) | Dkt. No. 200 at 188 | Highlighted personally identifiable information at 8:248:25, Granted. | The redaction obscures the home address of a deponent. To prevent annoyance or abuse to the third party and so injury to Cribl, redaction is readily warranted. |
Dkt. No. 202-2 at 388 (Exit. 13, Excerpts | Dkt. No. 200 at 388 | Highlighted customer names in 86 n.356, 86 n.357, | n.356 This footnote was not requested for redaction in other copies of this excerpt, and a third-party name to be redacted here was discussed in court. Denied. |
of Expert Heine- mann Reb. Rpt) | Grantedin-Part, Denied-in- Part. | n.357 (See supra entry re Dkt. Nos. 125-10 & 204-13.) Granted. |
9. Motions to Seal Stemming from Cribl's Trial Brief and Motions in Limine.
Cribl filed a trial brief (Dkt. No. 207; see also Dkt. Nos. 232, 235 (removing incorrect filings)). Cribl also filed three motions in limine (Dkt. Nos. 210-12). Cribl simultaneously moved to seal its materials therein (Dkt. No. 208), and those of another (Dkt. No. 209). Splunk timely submitted a supporting declaration (Dkt. No. 230; see also Dkt. Nos. 240, 244 (removing incorrect filings)).
A. Cribl 's Trial Brief.
The public copy of Cribl's trial brief was removed (Dkt. Nos. 240, 244), but not replaced. Redactions marked in the sealed copy and proposed in motions are without merit in any case.
(i) Splunk's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 209-4 (Br.) | Dkt. No. 209-3. But see Dkt. No. 244. | 21:8,21:17, 21:23-24, 22:2-4, Denied. | The proposed redactions target code elements already publicly disclosed (see supra Part 3.A). |
(it) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 208-4 (Br.) | Dkt. No. 208-3. But see Dkt. No. 244. | 26:2,26:4, Denied. | Cribl's overall profitability and top-line revenue were discussed in open court (see supra Part 7.A). |
B. Cribl's Motion in Limine No. 1.
Only Splunk provided redactions here.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 209-10 (Cribl's MIL No. 1, Exh. | Dkt. No. 209-09 | 243:12, Denied. | Tire proposed redaction targets code elements already publicly disclosed (see supra Part 3.A). |
4, Excerpts of Expert Mitzen-macher Dep. Tr.) |
C. Splunk's Opposition to Cribl's Motion in Limine No. 1.
Again, only Splunk proposes redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 209-6 (Pearson Exh. 4, Excerpts of Expert Astrachan Op. Rpt.) | Dkt. No. 209-5 | Highlights in 26-31 [¶¶ 79,8186 (figures only)], Grantedin-Part, Demed-ix-Part. | The proposed redaction targets elements of the S2S protocol and its implementation, some of which are already known, and some of which are not. For reasons already described with respect to the same underlying report, the proposed redactions are granted-in-part and deuied-m-part (see supra entry re Dkt. Nos. 148-13 & 167-14; see also Part 3.A). |
D. Cribl's Motion in Limine No. 2
Only Splunk proposes redactions.
Sealed | Public | Result Re | Reasoning |
(Cribl's MIL No. 2, Exh. 3, Rule 26(a)(3) Disci.) | Dkt. No. 211 at 70 | Personal info, at [1-2], Granted. | The proposed redactions obsciue personal contact details for witnesses. Disclosure would make possible annoyances or abuse, and serve no public purpose. |
E. Splunk's Opposition to Cribl's Motion in Limine No. 3.
(i) Splunk's Proposed Redactions.
Splunk ultimately did not provide support for these proposed redactions (see Dkt. No. 230-1 at 1). If even desired, they are Denied, without prejudice to Cribl's proposals.
(ii) Cribl's Proposed Redactions.
Sealed | Public | Result Re | Reasoning |
Dkt. No. 208-6 (Exh. 13, “Take Home | Dkt. No. 208-5 | Customer names in -6584-85, Denied. | (See supra entry re Dkt. Nos. 148-25 & 167-26.) |
Idea,” CRIBLO 0856585) | |||
Dkt. No. 208-8 (Exh. 14, Cribl's 7th Supp. Resp. to Splunk's 2d Interrog.) | Dkt. No. 208-7 | Highlighted portions at: 6:17-18, 6:21; 16:9-10, 16:13-14; 25:11-12, 25:15, 25:17; 27:4, 27:12; 28:19,31:9, Granted. | (See supra entry re Dkt. Nos. 134-19 & 189-45.) |
10. Motion to Seal Stemming from Joint Proposed Final Pretrlal Order.
Splunk filed the joint proposed final pretrial order (Dkt. No. 197). Splunk contemporaneously moved to consider whether Cribl's material within its appendices should be sealed (Dkt. No. 203). Cribl timely submitted a supporting declaration (Dkt. No. 242). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
Dkt. No. 203-2 (App'x A, Joint Combined Exhibit List) | Cf Dkt. No. 303 | Customer names in blue-colored font at: 2-4, 9-14, 16, 18-20, 22, 53-58, 61-69, 7374, 77-80, 82-83, 87, 89, 91-92, 94-95, 97, 101, Granted-in-Part, Denied-in-Part. | Pages not flagged in motion (e.g., 1,102-36) For avoidance of doubt, any marked redactions not matched with a rationale in the motion are denied (see Dkt. No. 141). Denied. Redactions after “FY20” (p. 74-75) The redaction is not customer information, and no other rationale is provided. Denied. Redactions after “Specialist at” (pp. 4,14) This customer was discussed in court, and nothing here merits redaction specially. Denied. Otherwise Some of these customer names were disclosed elsewhere. But disclosing them in this appendix still risks injury to the third parties and to Cribl, given many names appear alongside file names pointing to more private information, and given they appear |
analysis of factual or legal points are not interrupted or obscured. Granted. | |||
Dkt. No. 203-3 (App'x C, Joint Combined Exhibit List) | Cf Dkt. No. 303 | Contact details in 2:12-14; 2:21-21; 2:22; 3:1-2; 3:3: 3:10-11: 3:12: 3:1922; 3:23; 4:13-14; 4:21-22; 4:23; 4:28; 5:1-2; 5:3; 5:9-10; 5:10; 5:2425; 5:26; 6:4-5; 6:6; 6:28 7:1; 7:3, Granted. | The highlighted portions are all personal contact details with little-to-no relevance to the dispute. Redaction is warranted to avoid risk of annoyance or abuse from disclosme (and so of harm to Cribl). |
11. Motion to Seal Stemming from Cribl's Trial Brief re Objections to Splunk's Disclosure of Live Witnesses.
Cribl filed a trial brief with objections to a Splunk disclosure of live witnesses (Dkt. No. 252). Cribl contemporaneously moved to consider whether another's material therein should be sealed (Dkt. No. 251). Sphrnk timely submitted a supporting declaration (Dkt. No. 261). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
Dkt. No. 251-4 (Nina Exh. C) | Dkt. No. 251-3 | 2:13,2:16, Granted. | Proposed redactions obscure employee names and contact information, and are warranted to avoid annoyance or abuse and because these details are of little or no help to understanding the case. |
Dkt. No. 251-6 (Exh. E) | Dkt. No. 251-5 | 2:13,2:16, Granted. | (See previous entry.) |
12. Motion to Seal Stemming from Splunk's Trial Brief re Testimony of Iacobelli.
Splunk filed a trial brief (Dkt. No. 271), and moved to seal it (Dkt. No. 272). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
Dkt. No. 272-1 (Exh. 2, lacobelli Dep. Tr.) | Dkt. No. 273-2 | Highlights [302:21; 303:19, 303:23], Denied. | The transcript in passing mentions a few customer names. Though some appear' alongside files, the files appear to be of no consequence; one is six years old. There is no harm that could come to the third parties nor to Sphurk by disclosure. |
Dkt. No. 272-2 (Exh. 3, Cribl's 7th Supp. Resp. to Sphmk's 2d Intenog. (No. 5)) | Dkt. No. 273-3 | Highlights, Granted-in-Part, Denied-in-Part. | (See supra entry re Dkt. Nos. 134-19 & 189-45.) |
13. Motion to Seal Stemming from Splunk's Trial Brief re Cribl's Responses to Splunk's Interrogatory No. 5.
Splunk filed another trial brief (Dkt. No. 281), and moved to seal it (Dkt. No. 280). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
Dkt. No. 280-1 (Exit. 1 Cribl's 7th Supp. Resp. to Splunk's 2d Intenog. (No. 5)) | Dkt. No. 281-2 | Green highlights, Grantedin-Part, Denied-in- Part. | (See previous entry.) |
14. Motion to Seal Stemming from Trial Exhibits.
Splunk moved to seal trial exhibits (Dkt. No. 298). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
(In-Chambers Copy) | 352-4 (TX-5) | All but p. 1, Granted. | The first page outlines the remaining pages, surveying the elements of the protocol and its implementation familiar to the case (supra Part 3. A.) The remainder of the document describes details that are not disclosed or not so completely and compactly disclosed elsewhere. Disclosing them in such actionable form could cause |
commercial harm to Sphink. These details are beyond what is required to understand the dispute or judicial process. Redaction is warranted. | |||
(Iii-Chambers Copy) | 352-14 (TX-45) | Entirety, Granted -in-Part, Denied-In-Part. | This document presents the findings of Cribl's project to reverse engineer the S2S v4 protocol and its implementation in Spluuk Enterprise. Sphink proposes redacting the entirety. But the previous entry provided an unredacted overview of the toplevel outline of that document. The following granted redactions will obscure anything meriting sealing while permitting the public to see the document's outline and how it fits into the litigation: • On page 1, from top of the page to “Setup:” Denied; • On page 2, “Header/Preamble” Denied; • On page 4, “One ... Sphink 2” Denied; • On page 7, “Metrics” Denied; • On page 7, “OpCodes:” Denied; • On page 7, “Mise notes:” Denied; • On page 19, “Errors ... implementation” Denied.Otherwise, Granted. |
(Iii- Chambers Copy) | 352-25 (TX-108) | All but p- 1, Granted. | The same reasoning applies to this analogous document as already described above (see supra entry re Dkt. No. 352-4.) |
(InChambers Copy) | 352-39 (TX-396) | All but p- 1, Granted. | (See ibid.) |
15. Motion to Seal Stemming from Joint Amended Trial Exhibit List.
Splunk filed a joint amended trial exhibit list (Dkt. No. 303), and moved to consider whether to seal another's materials therein (Dkt. No. 302). Cribl timely submitted a supporting declaration (Dkt. No. 340). This order rules as follows:
Sealed | Public | Result Re | Reasoning |
Dkt. No. 302-2 (Joint Amd. Exh. List) | Dkt. No. 303 | Customer names in 2-4, 9-14, 16, 1820, 22, 53-58, 61-69, 73-74, 77-80, 82-83, 87, 89, 91-92, 94-95, 97, 101, Granted-in-Part, Denied-in-Part. | For the same reasons and only to the same extent as before, redactions are granted-in-part and denied-in-part (see supra entry re Dkt. No. 203-2). |
CONCLUSION
The administrative motions to seal are GRANTED IN PART and DENIED IN PART. Parties shall refile all relevant documents in full compliance with this order by no later than September 30, 2024. The district court retains jurisdiction to ensure compliance with this order (see also Dkt. No. 69 ¶ 8).
IT IS SO ORDERED.
together. And disclosing such names here is less important to public understanding of the merits, as the reading and