ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

[ECF Nos. 1120 and 1121.]

GONZALO P. CURIEL, District Judge.

Before the Court are the parties' requests to seal certain exhibits and deposition designations to be sealed to the extent such materials are received into evidence at trial in Case No. 3:17-cv-00108-GPC-MDD. ECF Nos. 1120 and 1121. Both parties have filed oppositions to each other's respective motions. ECF Nos. 1136 and 1137 Upon review of the moving papers, the Court GRANTS in part and DENIES in part the motions.

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 potential trial exhibits and deposition designations that the parties may intend to call into evidence at trial. 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 Court now turns to the substance of the instant sealing motions. The 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." To the extent that the proposed redactions are narrowly tailored and relate to the rationale above, the Court agrees that the parties have demonstrated that compelling reasons exist for sealing the information subsumed by these categories. Analysis from this Court's prior orders granting the parties' motions to seal is applicable here. See ECF No. 1143.

However, the Court also finds that a substantial portion of the information that the parties seek to seal has already been publicly disclosed elsewhere — such as in the FTC v. Qualcomm case — or does not constitute confidential or sealable information — as is the case with Apple's indemnification agreements with the CMs. Even where the parties seek to cover information that may properly be sealed, they should seek to seal only the narrowly sealable information and not whole paragraphs, documents, sections, or presentations that do not justify extensive redaction. In some documents, the information at issue is too general to warrant sealing. A number of proposed sealings are markedly overbroad. Other suggested redactions would inappropriately shield stale information that is too old to be presently confidential. And yet other redacted exhibits and depositions in their current states would close from the public exhibits that lie at the very heart of this case, including proposed redactions to the SULAs and royalty rates and payments. In light of the public's right to access, this Court finds no colorable justification to seal those exhibits that would be highly relevant to the adjudication of the claims at issue in the trial. Repeated requests to close and clear the courtroom would be unduly cumbersome to the Court's interest in managing the trial. Sealing such information would hamstring the parties and stymie them from litigating key issues effectively and efficiently. Furthermore, over-sealing crucial exhibits would impede the jury and the public's ability to understand the nature of the proceedings and the factual basis for the parties' claims.

Accordingly, the Court finds that the parties have not articulated "compelling reasons" to keep all the requested information from the public. As such, the Court GRANTS in part and DENIES in part each of the motions to seal and instructs the parties to introduce — if called at trial — redacted versions of their documents consistent with the following tables:

IT IS SO ORDERED.

Qualcomm's Requested Exhibits to Seal

Apple's Requested Exhibits to Seal

Apple's Will Call Designations