Opinion
No. C 10-3724 CW No. C 10-5254 CW
05-17-2013
U.S. ETHERNET INNOVATIONS, LLC, Plaintiff, v. ACER, INC.; ACER AMERICA CORPORATION; APPLE, INC.; ASUS COMPUTER INTERNATIONAL; ASUSTEK COMPUTER, INC.; DELL, INC.; FUJITSU, LTD.; FUJITSU AMERICA, INC.; GATEWAY, INC.; HEWLETT PACKARD CO.; SONY CORPORATION; SONY CORPORATION OF AMERICA; SONY ELECTRONICS INC.; TOSHIBA CORPORATION; TOSHIBA AMERICA, INC.; and TOSHIBA AMERICA INFORMATION SYSTEMS, INC., Defendants, INTEL CORPORATION; NVIDIA CORPORATION; MARVELL SEMICONDUCTOR, INC.; ATHEROS COMMUNICATIONS, INC.; and BROADCOM CORPORATION, Intervenors. U.S. ETHERNET INNOVATIONS, LLC, Plaintiff, v. AT&T MOBILITY LLC; BARNES & NOBLE, INC.; CLAIRE'S BOUTIQUES, INC.; J. C. PENNEY COMPANY, INC.; SALLY BEAUTY HOLDINGS, INC.; ANN TAYLOR STORES CORPORATION; ANN TAYLOR RETAIL, INC.; HARLEY-DAVIDSON, INC.; HARLEY-DAVIDSON MOTOR COMPANY, INC.; KIRKLAND'S INC.; KIRKLAND'S STORES, INC.; MACY'S, INC.; MACY'S RETAIL HOLDINGS, INC.; MACY'S WEST STORES, INC.; NEW YORK & COMPANY, INC.; LERNER NEW YORK, INC.; RADIOSHACK CORPORATION; RENT-A-CENTER, INC.; and THE DRESS BARN, INC., Defendants. AND ALL RELATED CLAIMS, COUNTERCLAIMS AND THIRD-PARTY CLAIMS
ORDER DENYING
WITHOUT PREJUDICE
INTERVERNOR NVIDIA
CORPORATION'S
MOTION TO SEAL
(Docket No. 755 in
10-3724) AND
ADDRESSING
DEFENDANTS' AND
INTERVENORS'
MOTION TO SEAL
(Docket Nos. 756
in 10-3724 and 442
in 10-5254)
Intervenor NVIDIA Corporation moves to seal portions of the declaration of Paul Sidenblad offered in support of the motion for partial summary judgment filed by Defendants and Intervenors and Exhibits A through F to the Sidenblad declaration.
These documents are connected to a dispositive motion. To establish that these documents are sealable, NVIDIA "must overcome a strong presumption of access by showing that 'compelling reasons supported by specific factual findings . . . outweigh the general history of access and the public policies favoring disclosure.'" Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 679 (9th Cir. 2010) (citation omitted). This cannot be established simply by showing that the document is subject to a protective order or by stating in general terms that the material is considered to be confidential, but rather must be supported by a sworn declaration demonstrating with particularity the need to file each document under seal. Civil Local Rule 79-5(a).
NVIDIA has filed a declaration stating that it has designated the relevant documents as "Highly Confidential" under the interim protective order and that they contain information that "generally relates to: (1) highly sensitive technical information concerning NVIDIA products accused by USEI; (2) a confidential license agreement and communication between NVIDIA and 3Com Corporation; and (3) highly sensitive NVIDIA source code." Gregorian Decl. ¶ 3.
NVIDIA only describes the subject matter of the exhibits and makes conclusory statements that it considers the material to be confidential or sensitive. NVIDIA has failed to state what harm it would experience if this material were publicly disclosed or to provide any specific reasons, supported by facts, that could outweigh the public policy favoring public access to court filings.
Accordingly, NVIDIA's motion to file under seal is DENIED. Pursuant to Civil Local Rule 79-5(f), within four days of the date of this Order, NVIDIA may re-submit the documents for filing in the public record or it may retain the documents and not make them part of the record in this case. Alternatively, by that date, NVIDIA may renew its request to file under seal, supported by a proper declaration that establishes that the documents are sealable as discussed above.
Intervenor Intel Corporation has filed a motion to seal on behalf of all Defendants and Intervenors seeking to file under seal the following documents: (1) their motion for partial summary judgment; (2) the declaration of Jesse Brandeburg with Exhibit 1; (3) the declaration of Itamar Sharoni with Exhibits 1-3; (4) the declaration of Thomas Insley with Exhibits A and B; (5) the declaration of John R. Schiffhauer; and (6) the declaration of Justin Constant with Exhibits A.1 through A.24. In the motion, Defendants and Intervenors state that the "Brandeburg and Sharoni Exhibits contain highly confidential descriptions of Intel source code and products, and attach excerpts of design documents that Intel maintained as confidential, and information from Intel's source code version control database," and that the "Insley declaration discusses financial and licensing information that Intel maintains as highly confidential." Docket No. 756, 2-3. They also state that the "Constant Declaration contains exhibits that pertain to confidential third-party licenses and licensing practices, third-party sales and financial data, and deposition testimony designated" as confidential under the interim protective order. Id. at 3. They further state that the motion for partial summary judgment "discusses the confidential information contained in the supporting declarations and exhibits attached thereto." Id.
Intel has submitted a declaration in support of the motion to seal in which it states that "Local Rule 79-5(d) provides the mechanism for Defendants and Intervenors to submit that material under seal." Stephens Decl. ¶ 2. However, Local Rule 79-5(d) sets forth the procedure for a party to file under seal information that has been designated as confidential by another party, not by itself. To the extent that Defendants and Intervenors seek to file under seal documents or information that they themselves have designated as confidential, as appears to be the case for at least the Brandeburg, Sharoni and Insley declarations and their attached exhibits, Local Rule 79-5(b) and (c) provide the relevant procedure. The Court notes that, in the only supporting declaration filed thus far, Intel has not provided compelling reasons to seal these documents. In addition, although Defendants and Intervenors suggest that non-parties have designated the exhibits to the Constant Declaration as confidential, they have not disclosed who these non-parties are or provided proof that they have served these non-parties with notice of their motion to seal.
They do not address why they seek to seal the Schiffauer declaration or which party or non-party has designated that document as confidential.
As discussed above, because Defendants and Intervenors seek to seal documents related to a dispositive motion, the compelling reason standard applies to the motion to seal, not a good cause standard.
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Accordingly, within one day of the date of this Order, Defendants and Intervenors shall file a declaration setting forth which party or non-party has designated each of the relevant documents or information as confidential and shall provide proof that they have served all non-parties with their motion to seal and information about which documents and information they are attempting to file. If Defendants and Intervenors themselves are the designating party, by that date, Defendants and Intervenors shall also file their declarations in support of their motion to seal, providing compelling reasons to seal the information.
In the future, when filing motions to seal, all parties shall make clear which party or non-party has designated as confidential each purportedly sealable document and, if relevant, shall provide proof of service upon non-parties.
IT IS SO ORDERED.
______________________
CLAUDIA WILKEN
United States District Judge