Filed: Sep. 16, 2016
Latest Update: Sep. 16, 2016
Summary: OMNIBUS ORDER REGARDING DAUBERT SEALING MOTIONS [Re: ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498] BETH LABSON FREEMAN , District Judge . Before the Court are the parties' administrative motions to file under seal portions of their briefing and exhibits in connection with the parties' Daubert motions. ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498. For the reasons stated below, the motions are GRANTED IN PART AND DENIED IN PART. I. LEGAL STANDARD
Summary: OMNIBUS ORDER REGARDING DAUBERT SEALING MOTIONS [Re: ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498] BETH LABSON FREEMAN , District Judge . Before the Court are the parties' administrative motions to file under seal portions of their briefing and exhibits in connection with the parties' Daubert motions. ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498. For the reasons stated below, the motions are GRANTED IN PART AND DENIED IN PART. I. LEGAL STANDARD ..
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OMNIBUS ORDER REGARDING DAUBERT SEALING MOTIONS
[Re: ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498]
BETH LABSON FREEMAN, District Judge.
Before the Court are the parties' administrative motions to file under seal portions of their briefing and exhibits in connection with the parties' Daubert motions. ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498. For the reasons stated below, the motions are GRANTED IN PART AND DENIED IN PART.
I. LEGAL STANDARD
"Historically, courts have recognized a `general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). 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. 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of "good cause." Id. at 1097. In addition, sealing motions filed in this district must be "narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). A party moving to seal a document in whole or in part must file a declaration establishing that the identified material is "sealable." Civ. L.R. 79-5(d)(1)(A). "Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable." Id.
II. DISCUSSION
The Court has reviewed the parties' sealing motions and respective declarations in support thereof. The Court finds the parties have articulated compelling reasons to seal certain portions of most of the submitted documents. The proposed redactions are also narrowly tailored. The Court's rulings on the sealing request are set forth in the tables below:
A. ECF 419
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista's Motion to Strike Cisco does not seek to seal the DENIED.
Expert Opinions and highlighted portions.
Testimony of Dr. Kevin C.
Almeroth
Exhibit 1 to the Declaration of Paragraphs ¶¶ 83-86, 118, 119 GRANTED as to Paragraphs
Ryan Wong in Support of and pages 437-661 ("Copying ¶¶ 83-86, 118, 119 and pages
Arista's Motion to Strike Exhibit 6") contain 437-661; and ¶¶ 73, 74, 78, 79,
Expert Opinions and information about Cisco's 112, 118, 138-142, 145, 147,
Testimony of Dr. Kevin C. source code. 148, 152, 153, 157, 195, 203,
Almeroth ("Wong Daubert
Declaration") (Excerpts from 219 (and associated images on
the "Opening Expert Report of Paragraphs ¶¶ 73, 74, 78, 79, pages 107 through 115), 220,
Kevin Almeroth Regarding 112, 118, 138-142, 145, 147, 239-242, 246, 250-52, 257 and
Copy" dated June 3, 2016) 148, 152, 153, 157, 195, 203, footnotes 99, 102; and
219 (and associated images on DENIED as to remainder.
pages 107 through 115), 220,
239-242, 246, 250-52, 257 and
footnotes 99, 102 contain
information of Arista's
software and business
strategies.
Exhibit 2 to the Wong Daubert Paragraphs ¶¶ 104, 134, 137, GRANTED as to Paragraphs
Declaration (Excerpts from the 138, 142, 143, 144-47, 149, ¶¶ 104, 134, 137, 138, 142,
"Rebuttal Expert Report of 154 and footnotes 106, 112 143, 144-47, 149, 154 and
Kevin Almeroth" dated June contain information of Arista's footnotes 106, 112; and
17, 2016) software, products, and DENIED as to remainder.
business strategies, as well as
discussion of a confidential
ITC order.
Exhibit 3 to the Wong Daubert Testimony of Dr. Almeroth at GRANTED as to 145:22-24,
Declaration (Excerpts from the 145:22-24 contains and 289:21-291:14; and
deposition of Dr. Kevin information regarding Arista's DENIED as to remainder.
Almeroth) customer information.
Testimony at 289:21-291:14,
contains information about
Cisco's confidential
technology.
Exhibit 4 to the Wong Daubert Contains information GRANTED.
Declaration (Cisco's regarding Cisco's technology
Supplemental Objections and and source code.
Responses to Defendant's
Interrogatory No. 20)
B. ECF 422
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista's Motion to Strike Page 2, lines 10-13; page 6, GRANTED as to 2:10-13,
Expert Opinions and lines 10-26; page 7, lines 4-6 6:10-26, and 7:4-6; and
Testimony of Dr. Judith A. contain information of DENIED as to remainder.
Chevalier Arista's marketing and sales
strategies.
Exhibit A to the Declaration Information about Arista's GRANTED.
of Elizabeth k. McCloskey in and Cisco's sales, customers,
Support of Arista's Motion to competitive strategies.
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit B to the Declaration Portions of the document GRANTED as to 154:1-157:17,
of Elizabeth K. McCloskey in from 154:1-157:17, 157:18-166:19, 157:18-166:19,
Support of Arista's Motion to 194:21-196:10 and 194:21-196:10 and 218:8-18;
Strike Expert Opinions and 218:8-18 contain information and DENIED as to
Testimony of Dr. Judith A. about Cisco's sales strategies, remainder.
Chevalier competitive strategies and
customers.
Exhibit C to the Declaration Contains parties' detailed GRANTED.
of Elizabeth K. McCloskey in confidential business
Support of Arista's Motion to information.
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit D to the Declaration Highlighted portions contain GRANTED.
of Elizabeth K. McCloskey in parties' detailed confidential
Support of Arista's Motion to business information.
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit E to the Declaration Contains detailed parties' GRANTED.
of Elizabeth K. McCloskey in confidential business
Support of Arista's Motion to information.
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit F to the Declaration Contains confidential GRANTED.
of Elizabeth K. McCloskey in business, product, and
Support of Arista's Motion to customer information.
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
C. ECF 426
Identification of Documents Description of Documents Court's Order
to be Sealed
Cisco's Motion to Exclude Arista does not seek to seal DENIED.
Expert Opinion Testimony the highlighted portions.
From Arista's Expert Dr.
John Black
Cisco's Motion to Exclude Arista does not seek to seal DENIED.
Expert Opinion Testimony the highlighted portions.
From Arista's Expert William
M. Seifert
Cisco's Motion to Exclude Pages 4, 5, 6:3, and 7:7 GRANTED as to pages 4, 5,
Expert Opinion Testimony contains Arista's confidential 6:3, and 7:7; and DENIED as
From Arista's Expert Cate M. business and sales to remainder.
Elsten information.
Exhibit 1 to the Declaration Paragraphs ¶¶ 120, 123-125, GRANTED as to Paragraphs
of Andrew M. Holmes "Black 132, 161, 433, 438, 448-459, ¶¶ 120, 123-125, 132, 161,
Opening Report" 461-471, 478-482, 498, 500-502, 375-377, 397, 433, 438, 448-459,
504, 508, 510, 514, 515, 461-471, 478-482, 498,
570, 580, 636, 689-691, 696, 500-502, 504, 508, 510, 514,
700 and footnotes 32, 35, 40, 515, 519, 525, 570, 580, 636,
and 128 contain information 678(i), 689-691, 696, 700 and
related to Cisco's source footnotes 32, 35, 40, and 128;
code, third-party source code, and redacted portions on page
as well as Cisco's business 141, 142, and 143 of Exhibit
information. A to non-party Dell's
declaration, ECF 442; and
Paragraph 397 contains DENIED as to remainder.
confidential information
related to Arista EOS
software. Paragraphs ¶¶ 519,
525, and 678(i) contain
information related to
Arista's source code.
Paragraphs ¶¶ 375-377
contain confidential
information related to
Juniper's software.
Portions redacted on page
141, 142, and 143 of Exhibit
A to non-party Dell's
declaration, ECF 442, contain
Dell's confidential customer
information.
Exhibit 2 to the Holmes Paragraphs ¶¶ 50-51, 55, 148, GRANTED as to Paragraphs
Declaration "Black Rebuttal 155, 156, 159, 160, 165, and ¶¶ 50-51, 55, 148, 155, 156,
Report" 170 contain information 159, 160-166 and 169-171;
related to Cisco's source and DENIED as to
code, third-party source code, remainder.
and confidential business
information.
Paragraphs ¶¶ 148, 155, 156,
160-166, and 169-171 contain
confidential information
related to Arista's source
code.
Exhibit 4 to the Holmes Arista does not seek to seal DENIED.
Declaration this exhibit, which contains
excerpts of Dr. Black's
deposition transcript.
Exhibit 5 to the Holmes Paragraphs ¶¶ 90 (including GRANTED as to Paragraphs
Declaration "Seifert Report" footnote 78), 96 (including ¶¶ 90 (including footnote 78),
charts on Pages 43 and 44), 96 (including charts on Pages
97 (including footnote 88), 98 43 and 44), 97 (including
(including footnotes 89-91), footnote 88), 98 (including
99 (including footnote 92), footnotes 89-91), 99
100(i), 100(ii) (including (including footnote 92),
footnote 94), 100(iv) 100(i), 100(ii) (including
(including footnote 95), footnote 94), 100(iv)
100(v) (including footnote (including footnote 95),
97), 101, 103 (including 100(v) (including footnote
footnote 106), 108, and 109 97), 101, 103 (including
contain Arista's confidential footnote 106), 108, and 109;
sales and customer and portions of ¶ 79 relating
information. to Juniper's software and
trade secrets; and DENIED as
Portions of paragraph 79 to remainder.
contain confidential
information of Juniper's
software and trade secrets.
Exhibit 6 to the Holmes Pages 135-36 (13:42:25-13:43:52) GRANTED as to pages 135-36
Declarations contain Arista's (13:42:25-13:43:52); and
confidential business DENIED as to remainder.
information.
Exhibit 7 to the Holmes Pages 7, 9, 14, 15, 21-28, 32, GRANTED as to pages 7, 9,
Declaration "Elsten June 3, and 33 contain Cisco's 14, 15, 17, 21-28, 32 and 33;
2016 Report" confidential business and DENIED as to
information. remainder.
Pages 9, 17, 22-23 contain
Arista's confidential business,
product and customer
information.
Exhibit 8 to the Holmes Contains parties' confidential GRANTED.
Declaration "Elsten Rebuttal business and customer
Report" information.
Exhibit 9 to the Holmes 58:2-65:25 contain GRANTED as to 58:2-65:25;
Declaration information related to Cisco's and pages 58-60, 62-65, 81,
customers and Cisco's and 212-215; and DENIED
confidential business as to remainder.
information.
Pages 58-60, 62-65, 81, and
212-215 contain Arista's
confidential customer and
business information.
Exhibit 10 to the Holmes Contains Cisco's business GRANTED.
Declaration information and competitive
intelligence and related
strategies.
Exhibit 12 to the Holmes Paragraphs ¶¶ 170-191 GRANTED as to ¶¶ 170-191;
Declaration "Clark June 3, contain information related to and DENIED as to
2016 Report" Juniper's software and trade remainder.
secrets.
Exhibit 13 to the Holmes Arista does not seek to seal DENIED.
Declaration (Excerpts of the these excerpts of Dr. Clark's
"Clark Rebuttal Report") Rebuttal Report.
D. ECF 438
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista's Corrected Motion to Cisco does not seek to seal the DENIED.
Strike Expert Opinions and highlighted portions.
Testimony of Dr. Kevin C.
Almeroth
E. ECF 462
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista's Opposition to Cisco's Highlighted text on page 8 at GRANTED as to the
Motion to Exclude Expert lines 25-26 contains Cisco's highlighted text at 8:25-26;
Opinion Testimony of Dr. John confidential litigation and DENIED as to remainder.
Black settlement.
Exhibit 4 to the Declaration of Cisco does not seek to seal DENIED.
Ryan Wong in Support of these excerpts of Dr.
Arista's Opposition to Exclude Almeroth's deposition
Expert Opinion Testimony of transcript.
John Black ("Wong Opp.
Declaration") (Excerpts from
the deposition transcript of Dr.
Kevin C. Almeroth, taken on
June 28, 2016)
Exhibit 5 to the Wong Opp. Cisco does not seek to seal DENIED.
Declaration (Excerpts from the these excerpts of Dr.
"Rebuttal Expert Report of Almeroth's Rebuttal Report.
Kevin Almeroth" dated June
17, 2016)
F. ECF 467
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista's Opposition to Cisco's Highlighted portions contain GRANTED.
Motion to Exclude Expert Arista's confidential business
Testimony from Arista's and product information.
Expert Cate M. Elsten
Highlighted text on page 8 at
lines 1-4 contains Cisco's
confidential business
information.
Exhibit A to the Declaration of Cisco does not seek to seal this DENIED.
Eduardo E. Santacana in exhibit, which contains
Support of Arista's Opposition excerpts of Dr. Chevalier's
to Cisco's Motion to Exclude deposition transcript.
Expert Testimony from
Arista's Expert Cate M. Elsten
G. ECF 470
Identification of Documents Description of Documents Court's Order
to be Sealed
Arista Network Inc.'s Cisco did not file a declaration DENIED.
Opposition to Cisco's Motion in support of sealing the
to Exclude Expert Opinion highlighted portions of this
Testimony of William M. exhibit that cite to Mr.
Seifert Seifert's deposition transcript.
Exhibit 1 to the Declaration of Cisco did not file a declaration DENIED.
Andrea Nill Sanchez in in support of sealing this
Support of Arista Network exhibit, which contains
Inc.'s Opposition to Cisco excerpts of Mr. Seifert's
Systems, Inc.'s Motion to deposition transcript.
Exclude Opinion Testimony of
William M. Seifert ("Exhibit
1")
Exhibit 4 to the Declaration of Excerpts from the Expert GRANTED.
Andrea Nill Sanchez in Report of Judith A. Chevalier
Support of Arista Network (submitted on June 24, 2016)
Inc.'s Opposition to Cisco contain Arista's confidential
Systems, Inc.'s Motion to business information, such as
Exclude Opinion Testimony of marketing and sales strategies.
William M. Seifert ("Exhibit
4")
Exhibit 5 to the Declaration of Excerpts from the Rebuttal GRANTED.
Andrea Nill Sanchez in Expert Report on Fair Use of
Support of Arista Network Judith A. Chevalier (submitted
Inc.'s Opposition to Cisco on June 17, 2016) contain
Systems, Inc.'s Motion to Arista's confidential customer
Exclude Opinion Testimony of and product information.
William M. Seifert ("Exhibit
5")
H. ECF 475
Identification of Documents Description of Documents Court's Order
to be Sealed
Cisco's Opposition to Highlighted text on page 4 at GRANTED as to highlighted
Arista's Corrected Motion lines 7-13 and 16-20, page 7 at text at 4:7-13, 4:16-20; 7:26-28;
to Strike Expert Opinions lines 26-28, page 8 at line 1, 8:1; 9:24-26; 10:18-20; and
and Testimony of Dr. page 9 at lines 24-26, page 10 DENIED as to remainder.
Kevin C. Almeroth. at lines 18-20 contains Arista's
confidential product and
customer information.
Exhibit 1 to the Paragraphs ¶¶ 72-74 (including Granted as to paragraphs ¶¶
Declaration of John M. the image shown on Page 29) 72-74, including the image on
Neukom in Support of contains Arista's confidential page 29; and DENIED as to
Cisco's Opposition to product and business remainder.
Arista's Corrected Motion information.
to Strike Expert Opinions
and Testimony of Dr.
Kevin C. Almeroth.
("Neukom Declaration")
Exhibit 2 to the Neukom Arista does not seek to file DENIED.
Declaration under seal this exhibit, which
contains excerpts of Dr.
Almeroth's deposition
transcript.
Exhibit 3 to the Neukom Arista does not seek to file DENIED.
Declaration under seal this exhibit, which
contains excerpts of Dr.
Black's deposition transcript.
I. ECF 476
Identification of Documents Description of Documents Court's Order
to be Sealed
Cisco's Opposition to Highlighted text on page 1 at GRANTED as to 1:24-26; 8:9-13
Arista'sMotion to Exclude lines 24-26, page 8 at lines 9-13 13 & n.3; 9:6-26; 10:3-24; and
Expert Opinion Testimony and footnote 3, page 9 at DENIED as to remainder.
From Dr. Judith A. lines 6-26, page 10 at lines 3-24
Chevalier contains Arista's
confidential product, customer,
and business information.
Exhibit 1 to the Excerpts from Anshul GRANTED.
Declaration of Sara E. Sadana's deposition transcript
Jenkins in Support of contain Arista's confidential
Cisco's Opposition to customer and product
Arista's Motion to Exclude information.
Expert Opinion Testimony
From Dr. Judith A.
Chevalier
J. ECF 491
Identification of Documents Description of Documents Court's Order
to be Sealed
Defendant Arista Networks, Highlighted portions contain GRANTED as to highlighted
Inc.'s Reply in Support of its Arista's confidential software portions at 1:20, 24; 4:3-4; 5:9-11;
Motion to Strike Expert and business information. and DENIED as to 1:13-14.
Opinions and Testimony of Dr.
Judith A. Chevalier
Cisco did not file a declaration
in support of sealing the
highlighted text at 1:13-14.
K. ECF 494
Identification of Documents Description of Documents Court's Order
to be Sealed
Defendant Arista Networks, Highlighted portions on page 5 GRANTED as to the
Inc.'s Reply in Support of its at lines 7-11 and line 17 highlighted portions at 5:7-11
Motion to Strike Expert contain Arista's confidential and 17; and DENIED as to
Opinions and Testimony of Dr. software, sales, and product remainder.
Kevin C. Almeroth information.
Cisco did not file a declaration
in support of sealing the
remaining highlighted
portions.
L. ECF 498
Identification of Documents Description of Documents Court's Order
to be Sealed
Cisco's Reply in Support Arista did not file a declaration DENIED.
of Its Motion to Exclude in support of sealing this
Expert Opinion Testimony exhibit.
From Arista's Expert Dr.
John Black
Cisco's Reply in Support Arista did not file a declaration DENIED.
of Its Motion to Exclude in support of sealing this
Expert Opinion Testimony exhibit.
From Arista's Expert
William M. Seifert
Cisco's Reply in Support Highlighted portions contain GRANTED.
of Its Motion to Exclude Arista's confidential product,
Expert Opinion Testimony sales, and customer
From Arista's Expert Cate information.
M. Elsten
III. ORDER
For the foregoing reasons, the sealing motions at ECF 419, 422, 426, 438, 462, 467, 470, 475, 476, 491, 494, 498 are GRANTED IN PART and DENIED IN PART. Under Civil Local Rule 79-5(e)(2), for any request that has been denied because the party designating a document as confidential or subject to a protective order has not provided sufficient reasons to seal, the submitting party must file the unredacted (or lesser redacted) documents into the public record no earlier than 4 days and no later than 10 days form the filing of this order.
IT IS SO ORDERED.
