Opinion
Case No. 3:17-CV-00108-GPC-MDD C/w 3:17-CV-01010-GPC-MDD
04-09-2019
IN RE: QUALCOMM LITIGATION
ORDER GRANTING MOTIONS TO SEAL
[ECF Nos.: 887, 890, 894, 897, 900, 903, 906, 909, 912, 915, 916, 920, 924, 925, 930, 934, 935, 940, 944, 947, 950, 951, 956, 957, 962, 964, 968, 969, 972, 976, 991, 995, 1000, 1004, 1007, 1011, 1012, 1016, 1021, 1033, 1049, 1052, 1056, 1059.]
Before the Court are numerous requests to seal portions of the parties' replies and responses to motions in limine, Daubert motions, expert witness reports in support of those briefings, and other pre-trial motions with respect to authenticity and foundation objections as well as trial order and evidence presentation in Case No. 3:17-cv-00108-GPC-MDD, ECF Nos. 887, 890, 894, 897, 900, 903, 906, 909, 912, 915, 916, 920, 924, 925, 930, 934, 935, 940, 944, 947, 950, 951, 956, 957, 962, 964, 968, 969, 972, 976, 991, 995, 1000, 1004, 1007, 1011, 1012, 1016, 1021, 1033, 1049, 1052, 1056, 1059. No oppositions have been filed. Upon review of the moving papers, the information to be sealed, the applicable law, and for the following reasons, the Court GRANTS each of the motions in their entirety.
LEGAL STANDARD
There is a presumptive right of public access to court records based upon the common law and the first amendment. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978); Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1212-13 (9th Cir. 2002). Nonetheless, access may be denied to protect sensitive confidential information. Courts are more likely to protect information covered by Rule 26(c) of the Federal Rules of Civil Procedure, but are not limited by items listed in protective orders. See KL Group v. Case, Kay, & Lynch, 829 F.2d 909, 917-19 (9th Cir. 1987) (letter to client from attorney); Kalinauskas v. Wong, 151 F.R.D. 363, 365-67 (D. Nev. 1993) (confidential settlement agreement).
"Unless a particular court record is one traditionally kept secret, a strong presumption in favor of access is the starting point." Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). "In order to overcome this strong presumption, a party seeking to seal a judicial record must articulate justifications for sealing that outweigh the historical right of access and the public policies favoring disclosure." Id. at 1178-79.
The presumption of access is "based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice." United States v. Amodeo (Amodeo II ), 71 F.3d 1044, 1048 (2d Cir.1995); see also Valley Broad. Co. v. U.S. Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th Cir.1986) (explaining that the presumption of public access "promot[es] the public's understanding of the judicial process and of significant public events").
Accordingly, "[a] party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the 'compelling reasons' standard." Kamakana, 447 F.3d at 1178. Under this stringent standard, a court may seal records only when it finds "a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture." Id. at 1179. The court must then "conscientiously balance[ ] the competing interests of the public and the party who seeks to keep certain judicial records secret." Id. (quoting Foltz, 331 F.3d at 1135) (alteration in original) (internal quotation marks omitted). What constitutes a "compelling reason" is "best left to the sound discretion of the trial court." Nixon, 435 U.S. at 599.
Previously, some courts applied a "compelling reason" or "good cause" standard for sealing depending on whether the pending motion was dispositive or non-dispositive. E.g., Kamakana, 447 F.3d at 1180 (9th Cir. 2006) (parties seeking to seal documents in a dispositive motion must provide "compelling reasons" to support a sealing whereas for non-dispositive motions the parties must show a lesser "particularized showing" under the "good cause" standard pursuant to Federal Rule of Civil Procedure 26(c)); Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (when a party attaches a sealed discovery document to a nondispositive motion, the usual presumption of the public's right of access is rebutted).
Other courts rejected this binary approach. In re Midland National Life Insurance Company Annuity Sales Practices Litigation, 686 F.3d 1115 (9th Cir.2012), is one such case that rejected the literal dispositive/nondispositive label. In that case, an intervenor moved to unseal documents attached to a Daubert motion. Id. at 1118. The district court, like the district court here, concluded that the documents should remain under seal because "the Daubert motion was non-dispositive," as it "would not have been a determination on the merits of any claim or defense." Id. at 1119. The Ninth Circuit rejected the district court's focus on whether the motion was literally "dispositive": "That the records are connected to a Daubert motion does not, on its own, conclusively resolve the issue." Id. As the motion, in effect, "pertain[ed] to central issues bearing on defendant's summary judgment motion," we treated that motion as dispositive. Id. Similarly, the court in Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1100 (9th Cir. 2016) observed that it would not allow the technically nondispositive nature of a Daubert motion to cloud the reality that it was able to significantly affect the disposition of the issues in the case.
Here, the motions to seal relate to numerous evidentiary and pre-trial motions. This Court will apply the "compelling reasons" standard to these motions and related briefing as those submissions pertain to central issues at trial and are "more than tangentially related to the underlying cause of action." Ctrs. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016).
Compelling reasons for sealing information exist "when such 'court files might have become a vehicle for improper purposes,' such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). Trade secrets "may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain advantage over competitions who do not know or use it." Restatement (First) of Torts § 757 cmt. b. Because trade secrets concern proprietary and sensitive business information not available to the public, sealing may be warranted where disclosure would harm a litigant's competitive standing. Nixon, 425 U.S. at 598.
The Ninth Circuit has explicitly recognized that compelling reasons exist for the sealing of "pricing terms, royalty rates, and guaranteed minimum payment terms" of license agreements. See In re Elec. Arts, Inc., 298 F. App'x 568, 569 (9th Cir. 2008). Courts in this circuit have also recognized that information subject to confidentiality agreements may also meet the "compelling reasons" standard when accompanied by a particularized factual showing. See Foltz, 331 F.3d at 1137-38.
DISCUSSION
The overwhelming majority of information that the parties seek to seal constitutes confidential business information of the parties, including trade secrets, proprietary business records, discussions of internal strategy, company dealings, and materials designated as "Highly Confidential." For the reasons that follow, the Court concludes that the parties have demonstrated that compelling reasons exist for sealing the information subsumed by these categories.
First, the Court is convinced that good cause exists to seal the unredacted portions of these motions and the requisite exhibits that detail sensitive financial terms, royalty agreements, proprietary business strategies, and confidential licensing negotiations. Each of the parties has articulated that public disclosure of the information they seek to seal would harm their competitive standing by concurrently releasing such information to market competitors. Additionally, the parties have submitted declarations for each of these motions and provied the Court with a factual basis for their claims of undue prejudice through competitive harm. Furthermore, the parties' proposed sealings hew to the lines that the Court has drawn in prior orders granting the parties' motions to file under seal, especially with respect to documents and testimony designated as Highly Confidential. See ECF Nos. 580, 561, 768. As such, the Court is satisfied that there is sufficient factual basis to justify the conclusion that compelling reasons exist for sealing the material at issue.
Second, each of the parties has narrowly tailored its requests to the protectable portions of the filings that advance confidential business information. The majority of the redacted materials are comprised of limited excerpts of exhibits and sentences of the full reports that implicate the parties' confidential, non-public business practices and information. Moreover, the basis for these respective motions do not rest on the disclosure of the more detailed, specific, and confidential information that the parties seek to protect. The primary issues within these reports are stated publicly in the motion papers and accompanying unredacted exhibits.
Accordingly, the Court finds that the requests to seal are narrowly tailored and sufficiently particularized such that they do not impede upon the public's ability to understand the nature of the proceedings and the factual basis for the parties' claims. As such and in the light of the aforementioned compelling reasons justifying sealing, the Court GRANTS each of the motions to seal or file redacted versions identified by the following table in its entirety.
IT IS SO ORDERED. Dated: April 9, 2019
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge
| ECF No. | Movant | Document to be Sealed |
|---|---|---|
| 3:17-cv-00108-GPC-MDD | ||
| 887 | Qualcomm | Unredacted Memorandum of Points andAuthorities in Opposition toApple's Motion in Limine No. 6 to ExcludeEvidence of Apple's Indemnification of theCMs ("Memorandum") and Exhibits 1-14 to theMarch 1, 2019 Declaration of AndersLinderot in Support of Qualcomm's Oppositionto Apple's Motion in Limine No. 6 toExclude Evidence of Apple's Indemnification ofthe CMs ("Linderot DeclarationExhibits") |
| 890 | Qualcomm | Exhibits 1 and 2 to the Declaration of James W.Carlson in Support ofQualcomm's Opposition to the Apple and theContract Manufacturers' Motion in LimineNo. 11 (the "Carlson Declaration"). |
| 894 | Qualcomm | Unredacted Opposition to Apple Inc. and theContract Manufacturers'Motion in Limine No. 9 ("Motion in Limine No.9"), Exhibit 1 to the March 1, 2019Declaration of Nathan E. Denning in Support ofQualcomm's Opposition to Motion inLimine No. 9 ("Denning Decl. Exhibit") |
| 897 | Qualcomm | Portions of its Opposition to Apple Inc. and theContract Manufacturers'(collectively, "Apple") Motion in Limine No. 7("Opposition to Motion in LimineNo. 7"), Exhibits 1 to 3, 6 and 7 to the March 1,2019 Declaration of Nathan E. Denningin Support of Qualcomm's Opposition to Motionin Limine No. 7 ("Denning Decl.Exhibits") |
| 900 | Qualcomm | Unredacted Opposition to Apple and theContract Manufacturers'(collectively "Apple") Motion in Limine No. 12("Motion in Limine No. 12"), an |
| Unredacted March 1, 2019 Declaration of JamesW. Carlson in Support of Qualcomm'sOpposition to Motion in Limine No. 12("Carlson Declaration"), and Exhibits 2 to 7 tothe Carlson Declaration ("Carlson Decl.Exhibits") | ||
|---|---|---|
| 903 | Qualcomm | Unredacted Opposition to Apple Inc.'s Motion inLimine No. 8, Exhibits1 to 3 to the March 1, 2019 Declaration ofNathan E. Denning in Support of Qualcomm'sOpposition to Motion in Limine No. 8 ("DenningDecl. Exhibits") |
| 906 | Qualcomm | Unredacted Opposition to the ContractManufacturers' Motion inLimine No. 15 ("Opposition to the CMs' Motionin Limine No. 15"), Exhibits 1 to 7 tothe March 1, 2019 Declaration of Nathan E.Denning in Support of Qualcomm'sOpposition to the CMs' Motion in Limine No. 15("Denning Decl. Exhibits") |
| 909 | Qualcomm | Unredacted Opposition to Apple Inc. and theContract Manufacturers'Motion in Limine No. 1, Exhibits 5-6 and 10-12to the March 1, 2019 Declaration ofNathan E. Denning in Support of Qualcomm'sOpposition to Apple Inc. and the ContractManufacturers' Motion in Limine No. 1("Denning Decl. Exhibits") |
| 912 | Qualcomm | Unredacted Opposition to Apple Inc.'s Motion inLimine No. 4("Opposition to Motion in Limine No. 4"),Exhibits 1, 4-5, and 11-15 to the March 1,2019 Declaration of James W. Carlson inSupport of Qualcomm's Opposition to Motionin Limine No. 4 ("Carlson Decl. Exhibits") |
| 915 | Qualcomm | Unredacted Opposition to Apple's and the CMs'Daubert Motion Re:243 Patents (ECF 804) ("Opposition to DaubertMotion Re: 243 Patents"), Exhibits 9 -11 to the March 1, 2019 Declaration of NathanE. Denning in Support of Qualcomm's |
| Opposition to Daubert Motion Re: 243 Patents("Denning Decl. Exhibits") | ||
|---|---|---|
| 916 | Apple | Portions of Apple Inc. and the ContractManufacturers' Opposition to Qualcomm'sDaubert Motion No. 6 to ExcludeCertain Testimony of Rémy Libchaber andStephen Wicker, and Exhibit 2 to theDeclaration of Aamir Kazi in Support Thereof |
| 920 | Apple | Portions of Apple Inc. andthe Contract Manufacturers' Opposition toQualcomm Incorporated's Motion InLimine No. 3 To Exclude Hearsay EvidenceFrom Unretained Experts |
| 924 | Apple | Portions of Apple and the ContractManufacturers' Opposition to QualcommIncorporated's Daubert Motion No. 5and Motion in Limine To Exclude TestimonySuggesting a Required Component-Level Royalty Base ("Opposition"), and certainexhibits to the Appendix ofExhibits in support of Apple and the ContractManufacturers' Opposition("Appendix of Exhibits") |
| 925 | Qualcomm | Exhibits 4-5, 7-8 and 10 to the February 15,2019 Declaration of AndersLinderot in Support of Qualcomm's Oppositionto Apple and the CMs' Motion in LimineNo. 13 ("Linderot Decl. Exhibits") |
| 930 | Qualcomm | Exhibits 1, 2, 5, 7 and 8 to the March 1, 2019Declaration of Nathan E.Denning in Support of Qualcomm's Oppositionto Apple Inc. and the ContractManufacturers' Motion in Limine No. 2("Denning Decl. Exhibits") |
| 934 | Qualcomm | Unredacted Opposition to Apple's and the CMs'Daubert Motion Re:Apportionment and EMVR ("ApportionmentDaubert Opposition") and Exhibits 1 - 15to the March 1, 2019 Declaration of Nathan E.Denning in Support of the Apportionment |
| Daubert Opposition ("Denning Decl. Exhibits") | ||
|---|---|---|
| 935 | Apple | Portions of Apple Inc. and theCMs' Opposition to Qualcomm's DaubertMotion No. 4 To Exclude ExpertTestimony Regarding Exhaustion and"Substantial Embodiment" (Apple and theCMs' Opposition to Daubert No. 4) |
| 940 | Qualcomm | Unredacted Opposition to Apple's and the CMs'Daubert Motion Re:Certain Nevo Opinions (the "Opposition toDaubert Re: Nevo Opinions"), Exhibits 2-4and 6 to the March 1, 2019 Declaration ofNathan E. Denning in Support of theOpposition to Daubert Re: Nevo Opinions("Denning Decl. Exhibits") |
| 944 | Qualcomm | Unredacted Opposition to Apple Inc. and theCMs' Daubert Re: CertainHuber, Putnam, and Stasik Opinions("Qualcomm's "Unwilling Licensee"Opposition"),Exhibits 2 to 4 and 6 to 9 to the March 1, 2019Declaration of Nathan E. Denning inSupport of Qualcomm's "Unwilling Licensee"Opposition ("Denning Decl. Exhibits") |
| 947 | CMs | Opposition to Qualcomm's DaubertMotion No. 3 to Exclude the Testimony of Dr.Jeffrey Leitzinger |
| 950 | Apple | Portions of Apple Inc. and the ContractManufacturers' Opposition to Qualcomm'sDaubert Motion No. 2 to ExcludePortions of the Expert Report of Paul K. Meyerand to Forbid ImproperExtrapolation of Dr. Valenti's Opinions, andExhibits 2-6 and 8-9 to theDeclaration of Benjamin C. Elacqua in supportthereof |
| 951 | Apple | Portions of Apple and the ContractManufacturers' ("CMs'") Opposition toQualcomm Incorporated's Motion inLimine No. 7 to Exclude the Opinions andTestimony of Friedhelm Rodermund |
| ("Opposition"), and portions of an exhibit to theAppendix of Exhibits in supportof Apple's Opposition | ||
| 956 | Qualcomm | Unredacted Opposition to Apple Inc.'s MotionIn Limine No. 5,Exhibits 3-6 and 7-11 to the March 1, 2019Declaration of Nathan E. Denning in Supportof Qualcomm's Opposition to Apple's Motion InLimine No. 5 ("Denning Decl.Exhibits") |
|---|---|---|
| 957 | Apple | Portions of Apple and the ContractManufacturers' Opposition to QualcommIncorporated's Motion in Limine No. 2To Exclude Evidence of Qualcomm's PublicRelations Strategy ("Opposition"),and certain exhibits to the Appendix of Exhibitsin support of Apple and theContract Manufacturers' Opposition |
| 962 | Qualcomm | Exhibits 7 and 8 to the March 1, 2019Declaration of Nathan E. Denningin Support of Qualcomm's Opposition to AppleInc. and the Contract Manufacturers'Daubert Motion No. 3 ("Denning Decl.Exhibits") |
| 964 | Qualcomm | Portions of its Opposition to AppleInc. and the Contract Manufacturers' DaubertMotion to Exclude Qualcomm ExpertOliver Hart ("Brief") and the entirety of ExhibitA thereto ("Exhibit A"). |
| 968 | Qualcomm | Portions of its Opposition to AppleInc. and the Contract Manufacturers' DaubertMotion to Exclude Certain Opinions ofQualcomm Expert Jonathan Putnam ("Brief"), aswell as the entirety of Exhibits 1-3,9, and 11-12 thereto |
| 969 | Apple | Portions of Apple Inc. ("Apple") and theContract Manufacturers' Opposition toQualcomm Inc.'s Motion in Limine No. 1 toExclude Evidence and Argument ConcerningRoyalty Stacking, and Exhibits 1-2 tothe Declaration of Aleksandr Gelberg |
| 972 | Apple | Portions of Apple and the ContractManufacturers' ("CMs'") Opposition toQualcomm Incorporated's("Qualcomm's") Daubert Motion No. 1 ToExclude Inadmissible ComparableLicense Analysis ("Opposition"), the Declarationof Shira Liu in Support of theOpposition, and certain exhibits to the Appendixof Exhibits in support of theOpposition |
|---|---|---|
| 976 | Qualcomm | Portions of its Opposition to AppleInc. and the Contract Manufacturers' Motion inLimine No. 3 to exclude evidence orargument that Apple and the CMs make, use,offer to sell, sell, or import Qualcomm'spatented technology ("Brief") |
| 991 | Apple | Portions of Apple Inc. and the ContractManufacturers' Reply in Support of TheirDaubert Motion To Exclude QualcommExpert Oliver Hart |
| 995 | Qualcomm | Unredacted Reply in Further Support of ItsDaubert Motion No. 1 toExclude Inadmissible Comparable LicenseAnalyses ("Reply") |
| 1000 | Qualcomm | Portions of its unredacted Reply in FurtherSupport of its Daubert MotionNo. 5 and Motion in Limine to ExcludeTestimony Suggesting a Required Component-Level Royalty Base ("Reply in Further Supportof Daubert Motion No. 5"), Exhibit 1 tothe March 8, 2019 Declaration of Nathan E.Denning in Support of Qualcomm's DaubertMotion No. 5 ("Denning Decl. Exhibit") |
| 1004 | Qualcomm | Unredacted Reply in Further Support ofQualcomm's Daubert MotionNo. 4 To Exclude Expert Testimony RegardingExhaustion and "SubstantialEmbodiment" (Valenti, Wicker, Akl, Bims,Lanning, Stark, Stevenson, Wells, Libchaber,Meyer and Simcoe) ("Reply ISO DaubertMotion No. 4"), Exhibits 29, 30 and 32 - 36 to |
| the March 8, 2019 Declaration of Nathan E.Denning in Support of Qualcomm's ReplyISO Daubert Motion No. 4 ("Denning Decl.Exhibits") | ||
|---|---|---|
| 1007 | Qualcomm | Unredacted Reply in Further Support of itsDaubert Motion No. 3 toExclude the Opinions and Testimony of Dr.Jeffrey Leitzinger Concerning Royalty"Overcharges" ("Reply") |
| 1011 | Apple | Portions of Apple and theCMs' Opposition to Qualcomm Incorporated'sMotion for Determination of FrenchLaw Pursuant to Fed. R. Civ. P. 44.1("Opposition"), and Exhibits D, F-I, L-N, P, TY,DD, FF-HH to the Declaration of Benjamin C.Elacqua in support thereof |
| 1012 | Apple | Portions of Apple and the ContractManufacturers' ("CMs'") Reply in Support ofTheir Daubert Motion To ExcludeRegression Analysis by Qualcomm ExpertProfessor Aviv Nevo ("Reply") |
| 1016 | Qualcomm | Unredacted Reply in Further Support of itsDaubert Motion No. 2 toExclude Portions of the Expert Report of Paul K.Meyer and to Forbid ImproperExtrapolation of Dr. Valenti's Opinions("Reply") and Exhibits 26 and 29 to the March 8,2019 Declaration of Anders Linderot in Supportof Qualcomm's Reply in FurtherSupport of its Daubert Motion No. 2 to ExcludePortions of the Expert Report of Paul K.Meyer and to Forbid Improper Extrapolation ofDr. Valenti's Opinions ("LinderotDeclaration Exhibits") |
| 1021 | Qualcomm | Unredacted Opposition to Apple's and theContract Manufacturers'Motion for Determination of French LawPursuant to Federal Rule of Civil Procedure44.1 ("Opposition Brief"), Exhibits 7, 27-31 and33 to the March 8, 2019 Declaration of |
| Nathan E. Denning in Support of Qualcomm'sOpposition Brief ("Denning Decl.Exhibits") | ||
| 1033 | Qualcomm | Exhibits 68-69, 71-74 and 77 to the March 15,2019 Declaration of NathanE. Denning in Support of Qualcomm's ReplyMemorandum in Further Support of ItsMotion for Determination of French LawPursuant to Federal Rule of Civil Procedure44.1("Denning Decl. Exhibits") |
| 1049 | Qualcomm | Exhibit 1 to the Declaration of NathanE. Denning in Support of the Motion RegardingBCPA Evidence ("Exhibit") |
| 1052 | Apple,Qualcomm,and CMs | Unredacted versions ofAttachments 1A-1B, 1G-1J, 2A-2B and 8 to theparties' Final Joint Trial Notebook('Trial Notebook Attachments") |
| 1056 | Apple | Portions of Apple and the ContractManufacturers'Opposition to Qualcomm Incorporated's MotionRegarding BCPA Evidence("Opposition"), and certain exhibits to theAppendix of Exhibits in support of theOpposition |
| 1059 | Qualcomm | Unredacted Motion To Set the Order ofPresentation at Trial and ToPermit the Presentation of Limited EvidenceOutside the Presence of the Jury ("Motion") |