Filed: Feb. 27, 2017
Latest Update: Feb. 27, 2017
Summary: ORDER RE MOTIONS TO SEAL Re: Dkt. Nos. 17, 19, 28 JAMES DONATO , District Judge . On September 6, 2016, Petitioner GoPro Hong Kong Ltd. filed a petition to confirm a Final Arbitration Award and for entry of judgment against respondents 2B Trading, Inc. and United World Brands. Dkt. No. 1. The Court confirmed the final award and entered judgment against 2B Trading and United World Brands on December 9, 2016 and January 31, 2017, respectively. Dkt. Nos. 42, 43, 53, 54. In the course of this
Summary: ORDER RE MOTIONS TO SEAL Re: Dkt. Nos. 17, 19, 28 JAMES DONATO , District Judge . On September 6, 2016, Petitioner GoPro Hong Kong Ltd. filed a petition to confirm a Final Arbitration Award and for entry of judgment against respondents 2B Trading, Inc. and United World Brands. Dkt. No. 1. The Court confirmed the final award and entered judgment against 2B Trading and United World Brands on December 9, 2016 and January 31, 2017, respectively. Dkt. Nos. 42, 43, 53, 54. In the course of this l..
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ORDER RE MOTIONS TO SEAL
Re: Dkt. Nos. 17, 19, 28
JAMES DONATO, District Judge.
On September 6, 2016, Petitioner GoPro Hong Kong Ltd. filed a petition to confirm a Final Arbitration Award and for entry of judgment against respondents 2B Trading, Inc. and United World Brands. Dkt. No. 1. The Court confirmed the final award and entered judgment against 2B Trading and United World Brands on December 9, 2016 and January 31, 2017, respectively. Dkt. Nos. 42, 43, 53, 54. In the course of this litigation, GoPro filed three administrative motions to seal portions of its Final Arbitration Award, International Distribution Agreement and First Amendment to the International Distribution Agreement, and the Petition to Vacate the Arbitration Award filed by 2B Trading in Florida state court, under Civil Local Rule 79-5. Dkt. Nos. 17, 19, 28. The Court grants the requests in their entirety.
I. STANDARDS
In our circuit, a party seeking to seal documents filed in connection with a dispositive motion must establish "compelling reasons" to overcome a historically "strong presumption of access to judicial records." Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotations omitted). This standard presents a "high threshold," and "a `good cause' showing will not, without more, satisfy" it. Id. at 1180 (citations omitted). To meet the "compelling reasons" standard, a party seeking to seal material must show specific, individualized reasons for the sealing, "`without relying on hypothesis or conjecture,'" such as "`whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.'" See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 679, 679 n.6 (9th Cir. 2009) (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). The Ninth Circuit has found the compelling reasons standard met by "pricing terms, royalty rates, and guaranteed minimum payment terms" in a license agreement, as these are trade secrets used in the party's business, conferring an opportunity to obtain advantage over competitors who do not know or use them. In re Elec. Arts, Inc., 298 F. App'x 568, 569 (9th Cir. 2008). However, "[s]imply mentioning a general category of privilege, without any further elaboration or any specific linkage with the documents, does not satisfy the burden." Kamakana, 447 F.3d at 1184. Although GoPro's motion to seal portions of the Final Award was initially filed in connection with an opposition to 2B Trading's motion to dismiss, the Final Award was used in dispositive motions. Dkt. Nos. 17, 19, 20, 49. The motion to seal the Petition to Vacate the Arbitration Award, while filed in connection with a motion to strike, similarly seeks to seal language from the Final Award. Dkt. Nos. 27, 28. The International Distribution Agreement and First Amendment were filed with motions to confirm the Final Award. Dkt. Nos. 19, 20, 49. Consequently, GoPro does not dispute that the "compelling reasons" standard applies.
Under Civil Local Rule 79-5(b), a sealing request must also "be narrowly tailored to seek sealing only of sealable material," and "establish[] that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law." When ordering sealing, the district court must "articulate the rationale underlying its decision to seal." Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011).
II. DETERMINATIONS
This table summarizes GoPro's administrative motions to seal:
Motion Declarations
(Dkt. Documents Sought to be Sealed in Support
No.) (Dkt. No.)
17 The Final Award 17-1, 17-2
Exhibit A to the Declaration of Melissa J. Baily In Support Of GoPro's
opposition to Respondents' Motion To Dismiss (Dkt. No 18-2)
19 International Distribution Agreement and First Amendment 19-1, 19-2
Exhibit A to the Declaration Of Melissa J. Baily In Support Of GoPro's
Motion To Confirm Final Award (Dkt. No. 20-2)
The Final Award 17-1, 17-2
Exhibit B to the Declaration Of Melissa J. Baily In Support Of GoPro's
Motion to Confirm Final Award (Dkt. No. 20-3)
28 Petition To Vacate Arbitration Award 17-1, 17-2
Exhibit C to the Declaration Of Melissa J. Baily In Support Of GoPro's
Motion To Strike (the petition quotes the Final Award that is the subject
of Dkt. No. 117) (Dkt. No. 27-4)
Overall, the motions to seal seek to protect confidential business information related to GoPro's distribution channels and practices. Outside of this litigation, GoPro requires its distributors to keep all terms of their distributorship agreements with GoPro confidential. Dkt. No. 17-1 (Walker Decl.) ¶ 4. Nonetheless, GoPro carefully followed the local rules to ensure each request was narrowly tailored. The Court grants each motion in its entirety.
Dkt. No. Reason For Request To File Under Seal Ruling
(to be
sealed)
18-2 The Final Award: portions of paragraphs 144-148, Granted. The number of
151, and 180 and footnotes 24, 25, and 32. unauthorized sales and the
geographic distributions of
The information in these paragraphs and footnotes registrations that GoPro
relates to GoPro, Inc.'s "secret shopper program," considers indicative of gray
customer registration data, distributor supply levels, marketing constitute trade
and other details relevant to brand protection and secret details. See In re Elec.
channel governance. Certain portions of these Arts, Inc., 298 F. App'x at 569.
paragraphs (mostly unit numbers, dollar figures, and The request is narrowly tailored
percentages) must be kept confidential in order for to seal only phrases and
GoPro, Inc. to effectively administer its brand specific numbers of the 75-page
protection and channel governance programs and Final Award.
protocols.
18-2 The Final Award: portions of paragraphs 68(c)-(e), Granted. The sealed portions
94, 98, and 163 and footnotes 15 and 16. represent sensitive distribution
agreement terms, including
The information in these paragraphs and footnotes minimum purchase
relates to certain terms of a contract negotiated requirements, minimum volume
between GoPro Hong Kong Ltd. and its former targets, pricing and payment
distributors for Colombia. GoPro actively protects terms, reporting requirements,
the confidentiality of the terms of its distributorship marketing expenditure
agreements (including by requiring its distributors to requirements, and liability
keep those terms confidential), and those terms must exclusions. See Ovonic Battery
Dkt. No. Reason For Request To File Under Seal Ruling
(to be
sealed)
be kept confidential in order for the GoPro entities Co. v. Sanyo Electric Co., Ltd.,
to effectively administer their distribution network. No. 14-cv-01637-JD, 2014 WL
2758756, at *3 (N.D. Cal. Jun.
17, 2014). The request is
narrowly tailored to specific
terms that would place GoPro
at a competitive disadvantage if
made public.
20-2 International Distribution Agreement: portions of Granted. The request is
paragraphs 1, 3(a)-(d), 4(a)-(b), 5, 6(b), 6(d), 6(e), narrowly tailored to include
7(a)-(c), 9(a)-(b), 10(b)-(d), 11(a), 11(b), 11(d), 12, only sensitive, confidential
13, and Exhibit B. business information including
pricing, forecasts, distributor
First Amendment To International Distribution obligations, marketing
Agreement: portions of paragraphs 2, 3, 5, and 6 expenditures, termination and
and Exhibit B post-termination rights and
obligations, and liability. See
The GoPro entities actively protect the Ovonic Battery Co., 2014 WL
confidentiality of all of the terms of distributorship 2758756, at *4.
agreements (including by requiring distributors to
keep those terms confidential). The disclosure of
the subset of terms enumerated here would affect the
ability of the GoPro entities to effectively administer
their distribution network and would place those
entities at a competitive disadvantage in negotiating
with distributors and customers going forward.
20-3 The Final Award: Exhibit B to the Declaration Of Granted for the reasons in Dkt.
Melissa J. Baily In Support Of GoPro's Motion to No. 18-2 above.
Confirm Final Award
Same as Final Award in Dkt. No. 18-2
27-4 Petition To Vacate Arbitration Award: The Granted for the reasons in Dkt.
portions of page 17, quoting paragraph 180 of the No. 18-2 above.
Final Award.
Same as Final Award in Dkt. No. 18-2
IT IS SO ORDERED.
