Filed: May 29, 2019
Latest Update: May 29, 2019
Summary: ORDER ON ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL WILLIAM ALSUP , District Judge . Both parties have filed administrative motions to file under seal various briefs, declarations, exhibits, and portions thereof submitted in connection with the second motion for early summary judgment (Dkt. Nos. 368, 370, 389, 392, 396, 407, 414, 416). In our circuit, courts start with a "strong presumption in favor of access" when deciding whether to seal records. Kamakana v. City & Cty. of Honolulu, 447
Summary: ORDER ON ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL WILLIAM ALSUP , District Judge . Both parties have filed administrative motions to file under seal various briefs, declarations, exhibits, and portions thereof submitted in connection with the second motion for early summary judgment (Dkt. Nos. 368, 370, 389, 392, 396, 407, 414, 416). In our circuit, courts start with a "strong presumption in favor of access" when deciding whether to seal records. Kamakana v. City & Cty. of Honolulu, 447 ..
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ORDER ON ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL
WILLIAM ALSUP, District Judge.
Both parties have filed administrative motions to file under seal various briefs, declarations, exhibits, and portions thereof submitted in connection with the second motion for early summary judgment (Dkt. Nos. 368, 370, 389, 392, 396, 407, 414, 416). In our circuit, courts start with a "strong presumption in favor of access" when deciding whether to seal records. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation omitted). To seal records in connection with a "dispositive" motion, or one "more than tangentially related to the merits of a case," requires "compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure." See id. at 1178-79 (quotations and citations omitted); see also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016).
Civil Local Rule 79-5 requires that administrative motions to file under seal be accompanied by "[a] declaration establishing that the document sought to be filed under seal, or portions thereof, are sealable." For example, "[t]he publication of materials that could result in infringement upon trade secrets has long been considered a factor that would overcome [the] strong presumption" in favor of access and provide compelling reasons for sealing. Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). Compelling reasons may also warrant sealing for "sources of business information that might harm a litigant's competitive standing," especially where the public has "minimal interest" in the information because it "is not necessary to the public's understanding of the case." See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1221-22 (Fed. Cir. 2013) (applying the law of our circuit). Furthermore, Civil Local Rule 79-5(b) requires administrative motions to file under seal to "be narrowly tailored to seek sealing only of sealable material."
With the foregoing principles in mind, the Court rules as follows. The parties shall file unredacted versions of the relevant documents in comport with this order by JUNE 7.
* * *
1. FINJAN'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 1 OF THE '154 PATENT (DKT. NO. 368).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Finjan, Inc.'s Highlighted portions DENIED Juniper states that the
Second Motion WITHOUT highlighted portions at pages
for Early PREJUDICE. 4-6 and 9-25 "reflect the
Summary technical underpinnings and
Judgment Re development of Juniper's
Claim 1 of the highly proprietary software
'154 patent and contain much information
that Juniper maintains as trade
secrets" (Dkt. No. 373 ¶ 4).
But the portions Juniper seeks
to seal (which amount to at
least half the brief) are clearly
overbroad, particularly in light
of the rulings below (where
Juniper does not seek to seal
similar information (see, e.g.,
Dkt. No. 389)). Juniper has
until MAY 31 to file a
narrowly tailored motion to
seal, failing which Finjan shall
file the unredacted version of
this document by June 7.
Exhibits 2-6, Entirety GRANTED. Juniper states that these
9-12, 14, 16, exhibits contain "highly
18-20 confidential documents or
source code" and that these
documents "have never been
made public and contain
information related to the
technical underpinnings and
development of Juniper's
highly proprietary software —
which includes much
information that
Juniper maintains as trade
secrets" (Dkt. No. 373 ¶ 3)
Mitzenmacher Highlighted portions DENIED Juniper states that the
Declaration WITHOUT highlighted portions at pages
PREJUDICE. 4-33 of the Mitzenmacher
declaration "reflect the
technical underpinnings and
development of Juniper's
highly proprietary software
and contain much information
that Juniper maintains as trade
secrets" (Dkt. No. 373 ¶ 4).
Again, the portions Juniper
seeks to seal (nearly the whole
declaration) is clearly
overbroad, particularly in light
of the rulings below (where
Juniper does not seek to seal
similar information (see, e.g.,
Dkt. No. 389)). Juniper has
until MAY 31 to file a
narrowly tailored motion to
seal, failing which Finjan shall
file the unredacted version of
this document by June 7.
2. JUNIPER'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 9 OF THE '780 PATENT (DKT. NO. 370).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Juniper's Motion Highlighted portions DENIED. Finjan claims that this
for Summary highlighted portion at p. 24, ll.
Judgment 15-16, contains "confidential
business and licensing
practices — specifically the
identification of Finjan's
licensing practices and
negotiations"; that if "such
provisions were made public,
it could negatively impact
Finjan's bargaining positions
in future licensing negotiations
with competitors"; and "no
public interest will be served
by disclosing this information
publicly" (Dkt. No. 375 ¶¶
3-4). To the contrary, this
portion goes directly to the
issue of constructive notice,
which is of strong public
interest. Finjan's general
assertion of potential public
harm is insufficient to state
compelling reason to seal this
information.
Exhibit 6 Highlighted portions DENIED. Finjan claims that this
highlighted portions at p. 48 ll.
2-25 and p. 49 ll. 1-19,
contain confidential business
and licensing practices (Dkt.
No. 375 ¶¶ 3, 5). Denied for
the same reasons stated above.
Exhibit 8 Highlighted portions DENIED. No supporting declaration
filed as required under Civil
Local Rule 79-5(e) (see Dkt.
No. 375 ¶ 3).
Exhibit 9 Highlighted portions DENIED. Finjan claims that this
highlighted portions at p. 88 ll.
3-4, contain confidential
business and licensing
practices (Dkt. No. 375 ¶¶ 3, 6).
Denied for the same reasons
stated above.
Rubin Highlighted portions GRANTED. Juniper states that the
Declaration highlighted portions contain
"confidential information that
relate to the technical
underpinnings and
development of Juniper's
highly proprietary software —
which includes much
information that Juniper
maintains as trade
secrets" (Dkt. No. 370-1 ¶ 9).
3. JUNIPER'S OPPOSITION TO FINJAN'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 1 OF THE '154 PATENT (DKT. NO. 389).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Juniper's Portions of 20:11, GRANTED. Juniper states that the
Opposition to 14; 28:10-15, 20; highlighted portions contains
Finjan's Motion 30:22-28; 31:9, confidential source code,
for Summary 32:16-17; 34:3-5, 6, which are Juniper's trade
Judgment 8-9; 35:1-6; secrets (Dkt. No. 389-1 ¶¶
39:6-10, 13 8-12).
Exhibit B Portions of 65:10; GRANTED. Juniper states that the
66:1; 69:23; 78:5; highlighted portions contains
112:10, 24; 113:1, confidential source code,
11; 158:21; 159:3-4 which are Juniper's trade
secrets (Dkt. No. 389-1 ¶¶
8-12).
Exhibit J Entirety GRANTED. Juniper states that the
document contains
confidential source code,
which are Juniper's trade
secrets (Dkt. No. 389-1 ¶¶
8-12).
Rubin Portions of ¶¶ 29, GRANTED. Juniper states that the
Declaration 31, 34-36, 54-56, highlighted portions contains
60-61, 73, 78, 85, confidential source code,
92-93, 98, which are Juniper's trade
102-03, 116; secrets (Dkt. No. 389-1 ¶¶
footnote 2 8-12).
Jas Declaration Portions of ¶¶ 7-9 GRANTED. Juniper states that the
highlighted portions contains
confidential source code,
which are Juniper's trade
secrets (Dkt. No. 389-1 ¶¶
8-12).
4. FINJAN'S OPPOSITION TO JUNIPER'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 9 OF THE '780 PATENT (DKT. NOS. 392, 396).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Finjan's Highlighted portions GRANTED IN Juniper states that the
Opposition to at p. 1, lines 10-11; PART AND highlighted portions at p. 17,
Juniper's Motion p. 4, lines 7-8; p. DENIED IN lines 5-6; p. 19, lines 20-23,
for Summary 11, lines 6-26; p. PART. contain confidential source
Judgment 13, lines 3-6, 20, code, which it maintains as
22-26; p. 15, lines highly proprietary
10-17, 25-26; p. 16, information and that
lines 25-27; p. 17, disclosure would harm its
lines 1, 5-6; p. 19, business positioning and
lines 7-28; p. 32, present a security risk (Dkt.
lines 12-24; p. 33, No. 397 ¶¶ 3, 6-9). The
line 1; p. 36, lines motion to seal these portions
10-12 is GRANTED.
As to the other portions
Finjan seeks to seal in its
opposition, Finjan merely
states at a general level that
the information pertains to
settlement discussions
protected under Rule 408
(Dkt. No. 392-1 ¶¶ 2-3). It
does not give any specific
citation for this general
assertion. Nor does Finjan
identify a specific harm that
would arise from disclosure
other than the boilerplate
assertion that third parties
may try to wrongfully use the
information in future
negotiations (Dkt. No. 392 at
3). Finjan has not shown a
compelling reason to seal this
information. Accordingly, to
the motion to seal is
otherwise DENIED except to
the extent stated above.
Mitzenmacher Highlighted portions GRANTED IN Juniper states that the
Declaration at p. 14, lines 7-17; PART AND highlighted portions at p. 14,
p. 15, lines 7-9, DENIED IN lines 10-17; p. 16, lines 7-8;
17-18, 28; p. 16, PART. p. 18, lines 4, 15-21; p. 19,
lines 1-19; p. 17, lines 1, 23, contain
line 18 to p. 18, line confidential source code,
6; p. 18, line 13 to p. which it maintains as highly
19, line 26; and p. proprietary information and
20, lines 9-22 that disclosure would harm its
business positioning and
present a security risk (Dkt.
No. 397 ¶¶ 3, 6-9). The
motion to seal these portions
is GRANTED. The motion to
seal is otherwise DENIED.
Exhibit 1 Entirety GRANTED IN Juniper states that the
PART AND highlighted portions at p. 78,
DENIED IN line 9; p. 86, line 6, contain
PART. confidential source code,
which it maintains as highly
proprietary information and
that disclosure would harm its
business positioning and
present a security risk (Dkt.
No. 397 ¶¶ 3, 6-9). The
motion to seal these portions
is GRANTED. The motion to
seal is otherwise DENIED.
Exhibit 2 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
Finjan generally states that
this exhibit contains its
"licensing/settlement
negotiations that are within
the ambit of Rule 408 . . . or
subject to Non-Disclosure
Agreement, and also
deposition transcript covered
by separate Protective
Orders" (Dkt. No. 392-1 ¶ 7).
This is nowhere near
sufficient to show a
compelling reason to seal the
entire deposition transcript
excerpt.
Exhibits 4-11 Entirety DENIED. Finjan again generally states
that these exhibits contain its
"licensing/settlement
negotiations that are within
the ambit of Rule 408 . . . or
subject to Non-Disclosure
Agreement, and also
deposition transcript covered
by separate Protective
Orders" (Dkt. No. 39 May 28,
20192-1 ¶ 7). No specific
harm to Finjan is identified
other than boilerplate
assertions (see Dkt. No. 392
at 3). Moreover, the public
has a strong interest in
accessing these documents, as
they go to the issue of notice.
Exhibit 14 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
Exhibit 15 Entirety GRANTED IN Juniper states that the
PART AND highlighted portions at bates
DENIED IN no. JNPR-FNJN
PART. 29018 00975675; JNPRFNJN
29018 00975676;
JNPR-FNJN 29018
00975677; JNPR-FNJN
29018 00975678; JNPRFNJN
29018 00975679, contain
confidential source code, the
disclosure of which would
cause "serious competitive
consequences" and a security
risk (Dkt. No. 396-1 ¶¶ 8,
10-12). The motion to seal is
GRANTED to the extent stated
above. The motion is
otherwise DENIED.
Exhibit 16 Entirety GRANTED IN Juniper seeks to seal the
PART AND highlighted portions at bates
DENIED IN no. JNPR-FNJN
PART. 29018 00962784; JNPRFNJN
29018 00962791, for the
same reasons stated above
(Dkt. No. 396-1 ¶¶ 8, 10-12).
For the same reasons stated
above, the motion to seal
these portions is GRANTED.
The motion to seal is
otherwise DENIED.
Exhibit 17 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
Exhibit 18 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
Exhibits 21, Entirety DENIED. Finjan generally states that
23-24 these exhibits "contain (1) the
parties' licensing/settlement
negotiations that are within
the ambit of Rule 408 of the
Federal Rules of Evidence;
(2) confidential terms in
license/settlement agreements
between Finjan and Finjan's
licensees" (Dkt. No. 392-1 ¶
6). Again, Finjan identifies
no specific harm that would
outweigh the public's strong
interest in accessing the
information.
Exhibit 26 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
Exhibit 28 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 397
¶ 3).
5. FINJAN'S OPPOSITION TO JUNIPER'S MOTION TO STRIKE (DKT. NO. 407).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Finjan's Highlighted portions DENIED. No supporting declaration
Opposition to filed as required under Civil
Juniper's Motion Local Rule 79-5(e).
to Strike
Kastens Highlighted portions DENIED. No supporting declaration
Declaration filed as required under Civil
Local Rule 79-5(e).
Exhibit B Highlighted portions DENIED. No supporting declaration
filed as required under Civil
Local Rule 79-5(e).
Exhibit D Highlighted portions DENIED. No supporting declaration
filed as required under Civil
Local Rule 79-5(e).
6. FINJAN'S REPLY TO JUNIPER'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 9 OF '780 PATENT (DKT. NO. 414).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Finjan's Reply Highlighted portions GRANTED IN Juniper states that the
PART AND highlighted portions at 7:8,
DENIED IN 7:9, 7:15, 8:9, 8:10, 8:11,
PART. 10:14, 10:16, contain
Juniper's confidential source
code, the disclosure of which
would "cause serious
competitive consequences"
and a "security risk" (Dkt.
No. 419 ¶¶ 6-9). The motion
to seal these portions is
GRANTED. The motion to
seal is otherwise DENIED.
Exhibit 1 Entirety DENIED. Juniper does not designate
any portion of this exhibit
to be under seal (Dkt. No. 419
3).
7. JUNIPER'S REPLY TO FINJAN'S MOTION FOR SUMMARY JUDGMENT RE CLAIM 1 OF '154 PATENT (DKT. NO. 416).
DOCUMENT REQUESTED RULING REASONING
SOUGHT TO BE PORTION TO BE
SEALED SEALED
Juniper's Reply Highlighted portions GRANTED. Juniper states that these
at pages 8:6-13; 9:3. portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Juniper's Reply Highlighted portions DENIED. Finjan states that this portion
at pages 13:28; "contains references to
14:2-4. confidential email
communications between
Finjan and Juniper (which
acquired Cyphort) regarding
licensing and negotiation
information," and that
disclosure could harm
Finjan's business (Dkt. No.
421 ¶ 4). This noncommittal
assertion of harm is
insufficient to show a
compelling reason to seal.
Nor do mere references to an
NDA and Rule 408 by
themselves provide a
sufficiently compelling
showing of confidentiality
warranting sealing.
Jas Declaration Highlighted portions GRANTED. Juniper states that these
of Paragraphs 3 and portions contain Juniper's
5 confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 1 Highlighted portions GRANTED. Juniper states that these
at 82:20-21; portions contain Juniper's
83:14-18 confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 3 Entirety GRANTED. Juniper states that these
portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 4 Entirety GRANTED. Juniper states that these
portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 5 Entirety GRANTED. Juniper states that these
portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 6 Entirety GRANTED. Juniper states that these
portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
Exhibit 7 Entirety GRANTED. Juniper states that these
portions contain Juniper's
confidential source code and
thus seeks to seal for the same
reasons stated above (Dkt.
No. 416-2 ¶¶ 8-12).
IT IS SO ORDERED.
