Disney Enterprises, Inc., et al v. VidAngel, Inc.

Filing 35

Filed Appellees Disney Enterprises, Inc., Lucasfilm Ltd. LLC, Twentieth Century Fox Film Corporation and Warner Brothers Entertainment, Inc. motion to seal portions of Vidangel's appendix VOL 3 UNDER SEAL. Deficiencies: None. Served on 01/18/2017. (Court-Entered filing of motion submitted under seal at [25]) [10282826] (WL) [Entered: 01/27/2017 10:48 AM]

UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
DISNEY ENTERPRISES, INC.,
LUCASFILM LTD. LLC,
TWENTIETH CENTURY FOX FILM
CORPORATION, AND WARNER
BROS. ENTERTAINMENT INC.,
Plaintiffs-Appellees,

No. 16-56843
PLAINTIFFS-APPELLEES’
MOTION TO SEAL PORTIONS OF
VIDANGEL’S APPENDIX
VOLUME 3 (DKT. NO. 16)

v.
VIDANGEL, INC.,
Defendant-Appellant.
Pursuant to this Court’s Order dated January 4, 2017 (Dkt. 22), PlaintiffsAppellees Disney Enterprises, Inc., Lucasfilm Ltd. LLC, Twentieth Century Fox
Film Corporation, and Warner Bros. Entertainment Inc. (“Plaintiffs-Appellees”)
hereby move to seal a single page, A.612, of Appellant’s Appendix Volume 3,
originally filed on December 30, 2016 (Dkt. 16).
Before the district court, Plaintiffs identified portions of the Rule 30(b)(6)
deposition of Plaintiffs’ witness, Tedd Cittadine, Senior Vice President, Digital
Distribution at 20th Century Fox Home Entertainment (with Twentieth Century
Fox Film Corporation, collectively “Fox”), as “Highly Confidential” under the
Protective Order. Designation as “Highly Confidential” is reserved for
confidential information that reveals, among other things “current or future
business plans or strategies . . . agreements with third parties. . . and other highly

sensitive non-public commercial, financial, research or technical information.”
D.Ct. Dkt. 23 at 1-2. The district court sealed these portions of Mr. Cittadine’s
transcript. See D.Ct. Dkt. 41 (Application to File Under Seal); D.Ct. Dkt. 75
(Order Granting Application to Seal).
Plaintiffs’ counsel have again carefully reviewed the previously sealed
material to determine if disclosure threatens harm to Fox (the Plaintiff whose
confidential material was submitted to the district court). Counsel believes that
page A.612 should be sealed because the testimony therein discusses Fox’s
licensing terms, which Fox maintains in confidence and does not disclose to
competitors or other parties.
There are compelling reasons to maintain the information described on page
A.612 under seal. Confidential material that reveals “business information that
might harm a litigant’s competitive standing” is properly subject to a motion to
seal. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir.
2016) (discussing standard), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto
Safety, 137 S. Ct. 38 (2016).
The excerpt of Mr. Cittadine’s deposition at page A.612 discusses Fox’s
confidential terms from third-party agreements with Fox’s licensees. Fox does not
disclose those terms publicly. Disclosure of those terms to Fox’s competitors
(other content owners, including the other Plaintiffs) or to Fox’s licensees who
2

may or may not be bound by a similar term threatens competitively disadvantaged
Fox in being able to negotiate those terms going forward. Accordingly, sealed
treatment is appropriate here. See Campbell v. PricewaterhouseCoopers, LLP, 642
F.3d 820, 822 n.1 (9th Cir. 2011) (sealed treatment appropriate for “confidential
business strategies and other commercially sensitive information.”).
Plaintiffs-Appellees respectfully request that the page A.612 of Appellant’s
Appendix Volume 3 be sealed. Because VidAngel may also be seeking to seal
portions of this Appendix, Plaintiffs-Appellees have not included a revised
redacted version, but will do so promptly if the Court so requests.

Dated: January 18, 2017

Respectfully submitted,
s/ Kelly M. Klaus
Kelly M. Klaus
[e-mail]
MUNGER, TOLLES & OLSON LLP
355 South Grand Ave, Thirty-Fifth Flr.
Los Angeles, California 90071-1560
Telephone: [phone]
Facsimile: [phone]

3

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CERTIFICATE OF SERVICE
SEALED DOCUMENTS
INTERIM CIRCUIT RULE 27-13
Case Number: 16-56843
Case Title:
Note:

VidAngel, Inc. v. Disney Enterprises, Inc., et al.

Documents to be filed under seal are to be submitted electronically. As the parties
will not have online access to those documents once they are submitted, the CMI
ECF electronic notice of filing will not act to cause service of those documents
under FRAP 25(c)(2) and Ninth Circuit Rule 25-5(f). Interim Circuit Rule 27-13(c)
therefore requires an alternative method of serving the motion or notice to seal and
the materials to be sealed.

I certify that I have provided a paper copy of the document(s) listed below to all other
C parties via personal service, mail, or third-party commercial carrier on the date noted
below. See FRAP 25(c)(1)(A) (C).
—

I certify that, having obtained prior consent, I have provided a copy of the document(s)
( listed below to all other parties via electronic mail. See FRAP 25(c)(1)(D); Interim
Circuit Rule 27-13(c).
DESCRIPTION OF DOCUMENTS:

PLAINTIFFS-APPELLEES’ MOTION TO SEAL PORTIONS OF VIDANGEL’S APPENDIX
VOLUME 3 (DKT. NO. 16)

Signature:

5/

Kelly M. Klaus

(use s! format with typed name)

Date:

January 18, 2017