Filed: Sep. 25, 2019
Latest Update: Sep. 25, 2019
Summary: ORDER RE: PENDING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND MOTION TO UNLOCK THE DECLARATION OF SHANE O'REILLY Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 166, 175, 180, 184, 187, 190, 194, 198, 209, 213 YVONNE GONZALEZ ROGERS , District Judge . Currently pending before the Court are administrative motions to seal various documents filed in connection with the parties' papers in support of and in opposition to Facebook's Motion to Dismiss and Motion for Summary Judgment and the partie
Summary: ORDER RE: PENDING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND MOTION TO UNLOCK THE DECLARATION OF SHANE O'REILLY Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 166, 175, 180, 184, 187, 190, 194, 198, 209, 213 YVONNE GONZALEZ ROGERS , District Judge . Currently pending before the Court are administrative motions to seal various documents filed in connection with the parties' papers in support of and in opposition to Facebook's Motion to Dismiss and Motion for Summary Judgment and the parties..
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ORDER RE: PENDING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND MOTION TO UNLOCK THE DECLARATION OF SHANE O'REILLY
Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 166, 175, 180, 184, 187, 190, 194, 198, 209, 213
YVONNE GONZALEZ ROGERS, District Judge.
Currently pending before the Court are administrative motions to seal various documents filed in connection with the parties' papers in support of and in opposition to Facebook's Motion to Dismiss and Motion for Summary Judgment and the parties' Daubert motions. (Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, 198, 209, 213.) In addition, Facebook filed an Administrative Motion to Unlock Declaration of Shayne O'Reilly. (Dkt. No. 166.) The Court has reviewed the filings in connection with the pending motions thoroughly, and ORDERS as follows:
1. With respect to the motions to seal at Docket Nos. 127, 130, and 132, submitted in connection with Facebook's Motion to Dismiss on standing grounds, that motion to dismiss was withdrawn at the request of Facebook in favor of incorporating its arguments into the motion for summary judgment. (Dkt. No. 149.) Thus, the motion to seal is DENIED AS MOOT and the documents filed provisionally under seal in connection with those motions are STRICKEN.
2. The filings at Docket Nos. 209 and 213 are Joint Administrative Motions to Seal which narrowed the scope of the sealing sought in the motions filed in connection with the summary judgment and Daubert motions and withdrew the original motions. In light of this, the motions filed at Docket Nos. 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, and 198 are DENIED AS MOOT.
a. In light of the parties' withdrawal of certain prior sealing requests in connection summary judgment, replacement versions of the following documents were filed at Docket No. 211:
• Facebook's Motion for Summary Judgment;
• Exhibits 1, 2, 3, 8, 10, 18, 19 and 20 to the Declaration of Phillip E. Morton in Support of Facebook's Motion for Summary Judgment;
• Exhibits A, B, M, N, O, S, V, AA, BB, CC, DD, EE and GG to the Declaration of Warren J. McCarty, III in Support of Windy City's Opposition to Facebook's Motion for Summary Judgment;
• Facebook's Reply in Support of Motion for Summary Judgment; and
• Exhibit 24 to the Declaration of Phillip E. Morton in Support of Facebook's Reply in Support of Motion for Summary Judgment.
b. In light of the parties' withdrawal of certain prior sealing requests in connection the Daubert motions, replacement versions of the following documents were filed at Docket No. 212:
• Exhibit 13 to the Declaration of Phillip E. Morton in support of Facebook's opening brief re: Facebook's Daubert;
• Windy City's Daubert, opening brief (Facebook's opposing brief and Windy City's reply brief were filed publicly);
• Exhibit B to the Declaration of Warren J. McCarty, III in support of Windy City's opening brief re: Windy City's Daubert;
• Exhibit C to the Declaration of Warren J. McCarty, III in support of Windy City's opening brief re: Windy City's Daubert; and
• Exhibit J to the Declaration of Warren J. McCarty, III in support of Windy City's opening brief re: Windy City's Daubert.
3. With respect to the motion to unlock the declaration of Shane O'Reilly (Dkt. No. 166), the motion indicates that the declaration at Dkt. No. 159 was filed inadvertently in connection with Facebook's motion for summary judgment but was intended to support Facebook's motion to seal at Dkt. No. 159. Facebook requested that the documents be unlocked, removed from the summary judgment papers and filed with the administrative motion to seal. As the motion to seal has been withdrawn, the motion to unlock is DENIED AS MOOT.
4. The Joint Administrative Motion to File Under Seal Summary Judgment Briefing and Associated Documents (Dkt. No. 209) is GRANTED. The Court finds that the parties have offered compelling reasons to seal the documents or portions of documents set forth below:
Facebook's Separate Statement of Undisputed Material Facts at 12: 4-5 (Fact 70)
Declaration of Phillip E. Morton In Support of Motion for Summary Judgment:
Exhibit 14 at p. 2
Exhibit 21 at p. 132:18 and 11; 133: 2, 10, 18 and 21
Exhibit 23 (in its entirety)
Windy City's Opposition to Facebook's Motion for Summary Judgment at p. 14:10; 19:1-2; 21: 2-3; 25:11-12
Windy City's Responsive Separate Statement of Facts at 17:24-25 (Fact 70)
Declaration of Warren J. McCarty III Declaration In Support of Windy City's Opposition to Motion for Summary Judgment:
Exhibit F at pp. 1-3
Exhibit G at pp. 4-15
Exhibit H at pp. 1, 2-7
Exhibit I at pp. 30 and 173
Exhibit J at pp. 1-3
Exhibit K at pp. 1-6
Exhibit P as indicated in the document
Exhibit Q (in its entirety)
Exhibit R at p. 46 fn.196 and p. 146:10-11
Exhibit T at pp. 124-125
Exhibit U at pp. 1-3
Exhibit W at pp. 1-2
Exhibit X (in its entirety)
Exhibit Y (in its entirety)
Exhibit Z as indicated in the document
5. The Joint Administrative Motion to File Under Seal Daubert Briefing and Associated Documents and Exhibits is GRANTED. The Court finds that the parties have offered compelling reasons to seal the documents or portions of documents set forth below:
Facebook's Opening Brief in Support of its Daubert Motion: pages (i): 9; 14:21; 2: 1-5, 7-8, 10, 12, 14, 17; 3:9-15, 18-20; 4: 4-10, 16, and 21; 5: 5-6, 8-11, 18; 7: 25; 8: 8-9; 11: 12-14, 18-20; 12: 2-3, 11-12; 13:12-13. Declaration of Phillip E. Morton in Support of Facebook's Opening Brief in Support of Daubert Motion
Exhibit 1 (Weinstein Expert Report) at:
• p. 15, image
• ¶¶ 49-54 at pp. 23-27
• 29:9-33:10 (including fns. 112-139);
• 34:4-39 (including fns. 143-179);
• 39:9-41:2 (including fns. 183-191);
• 41:8-42:5 5;
• 42:11-43:22; and
• 46 fn. 196;
• 47:10-11, fn. 203;
• 49:16;
• 50:1, fn. 211;
• 51:9-15;
• 53: 10-13;
• 54, image
• 54:14-55:5
• 55:7-56:4;
• 59:7-60:10
• 60:11-63:8;
• 63:10-16, fns. 258, 260
• 64:1-17
• 65:8-11
• 66: 5, 7-11;
• 72: 15-17;
• ¶¶ 162-170 at p.73-76
• 75: 13, 15-16;
• 76: 1-2, 4-5, 7-8;
• 74 at note 292, 293, and 294
• Exhibit 2 at pp. 4-8
• Exhibit 2 at pp. 8-12
• Exhibit 5;
• Exhibit 7 (figures in table);
• Exhibit 9;
• Exhibit 10
• Exhibit 10 (figures in items 10 and 11-14);
• Exhibit 11
Exhibit 2:
• Exhibit 2 at figures in items 10 and 11-14.
• Exhibit 2 at figures 1, 2, 4, 5, 6, 7, 8, 9, 10, 11-14 and note 3.
Exhibit 3 (AOL-Windy City Settlement) in its entirety.
Exhibit 4 (Weinstein deposition transcript excerpts) at
• 63:17-64:19;
• 65:5-8; 65:15-18;
• 85:18-25;
• 86:3-11;
• 86:18-87:2;
• 92:3-6; 92:21-24;
• 94:18-24;
• 97:18-98:3;
• 98:5-21;
• 99:1-19;
• 99:24-100:5;
• 102:1-14;
• 103:1-25;
• 104:10-13;
• 106:5-8; 106:15-20;
• 122:7-17;
• 130:10;
• 132: 18, 22;
• 133: 2, 10, 18, 21
• 140:3-7;
• 145:3-6;
• 147:3-16.
Exhibit 5 (Microsoft-Windy City Settlement) in its entirety
Exhibit 8 (Exhibit 9 to the Weinstein Expert Report) in its entirety
Exhibit 9 (Microsoft data) in its entirety
Exhibit 10 (Microsoft data) in its entirety
Exhibit 11 (Microsoft correspondence) in its entirety
Exhibit 12 (Jones Rebuttal Expert Report) at
• 85, image;
• 86:2-5 (including image), fn. 31
• 87:16-20.
Exhibit 15 (Jones Expert Report) at
• 19:16-21 (image);
• 23:3-8 (including image);
• 23:24-24:2 (including image);
• 24:17-22 (including image); and
• 25:1-2, fn 46
• 30:17-31 line 13 (Table);
• 31:14-35:14 (including images and fns. 50-51);
• 36:1-14 (image);
• 36:17-47:7 (including images, deposition transcript excerpts, and fns. 62-63);
• 48:9-55:13 (including images, deposition transcript excerpts, and fns.76-80, 88-91);
• 57:23-58:8;
• 61:7-63:4 (including deposition transcript excerpt, and fns. 101, 102);
• 63:12-25;
• 70:17-22;
• 95:17-96:3;
• 100:14-18;
• 103:18-104:3;
• 110:24-111:16;
• 118:13-18;
• 118:21-119:10;
• 124:14-125:2;
• 131:20-133:21 (including deposition transcript excerpts);
• 140:1-141:16 (including deposition transcript excerpts);
• 141:23-25;
• 144:1-145:7 (including images and deposition transcript excerpt);
• 145:16-24;
• 146:4-149:11 (including deposition transcript excerpts, and fn. 190);
• 149:13-153:25 (including images and deposition transcript excerpts);
• 156:1-25 (including images);
• 160:3-165:10 (including images, deposition transcript excerpts, and fn. 208);
• 173:3-26 (Table);
• Appendix SC at p. 1 (Table of contents Description for S. 2.10, 2.11 and 2.15); and
• Appendix X1 at p. 359 (S.3, image at top); and
• Appendix X1 at pp. 360-387 (S. 3, including images)
• Appendix SC at pp. 2-26 (S. 1-S. 2.12);
• Appendix SC at pp. 28-29 (after Source filename-S. 2.13);
• Appendix SC at pp. 30-31 (after Source filename-S. 2.16); and
• Appendix SC at pp. 31-54 (S. 3.1-S. 3.14)
Windy City's Opposition to Facebook's Daubert Motion pages 8:25-28; 9:1-2; 12:5-6, 23-24; 13:2-7, 10-11; 14:7; 17:6-8.
McCarty Declaration in Support of Windy City's Opposition to Facebook's Daubert Motion
Exhibit A (excerpts of Bakewell Expert Report) at
• ¶¶ 15, 118-119, 122-135, 137, 138, 139-48, 150, 152-53, 157, 159, 161, 163-63, 166-68, 169, 174, 176, 177; 178-180; 183; 186; 187; 208, 215, 249, 255, 268, 269
• footnotes 15, 262, 300, 301, 355, 356
• p. 66 (table)
• p. 82, Table Row 11 under "Comments" column;
• portions of Exhibit 1 tables (terms of licenses and confidential user data).
• Exhibit 1.0 (All figures regarding two Facebook agreements);
• Exhibit 2.0 (Tables);
• Exhibit 2.1 (Tables);
• Exhibit 3.0 (Table and Summary Box);
• Exhibit 3.1 (Table and Summary Box);
• Exhibit 3.2 (Table and Summary Box);
• Exhibit 4.0 (Figures for Facebook Royalty Base, Effective Royalty Rate, and Effective Royalty);
• Exhibit 4.1 (Figures in box at right);
• Exhibit 4.2 (Figures in box at right);
• Exhibit 5.0 (Figures for Facebook Royalty Base, Effective Royalty Rate, and Effective Royalty);
• Exhibit 5.1 (Figures in box at right); and
• Exhibit 5.2 (Figures in box at right)
• Exhibit 6.0 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right; fn.2);
• Exhibit 6.1 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right; fn.2);
• Exhibit 7.0 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right);
• Exhibit 7.1 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right);
• Exhibit 9.0 (Table);
• Exhibit 9.1 (Table)
Exhibit B (deposition of Alma Chao) at 23:8-9, 28:20-22, and 30:2-31:1.
Exhibit D (Subpoena to Microsoft, portions consisting of the Windy City and Microsoft confidential agreement attached)
e. Facebook's Reply in Support of Facebook's Daubert
pages 2:10-11, 16; 3:4; 5:23; 6:6-7, 11-13, 16-19; 7:27; 8:7-8, 11-12; 9:13-15, 18-19, 21.
This order terminates Docket Nos. 127, 130, and 132 (denied as moot and documents stricken); Docket Nos. 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, and 198 (denied as moot); and Docket Nos. 209 and 213 (granted).
IT IS SO ORDERED.
