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

Filing 36

Filed Appellant VidAngel, Inc. motion to seal portions of appellant's appendix, Vol 3 And Appellees' supplemental appendix Vol 5 UNDER SEAL. Deficiencies: None. Served on 01/18/2017. (Court-Entered filing of motion submitted under seal at [28] [10282874] (WL) [Entered: 01/27/2017 11:07 AM]

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VIDANGEL, INC., Defendant-Appellant, No. 16-56843 v. DEFENDANT-APPELLANT’S MOTION TO SEAL PORTIONS OF APPELLANT’S APPENDIX, VOLUME 3 (DKT. 16) AND APPELLEES’ SUPPLEMENTAL APPENDIX VOLUME 5 (DKT. 19) DISNEY ENTERPRISES, INC.; LUCASFILM LTD. LLC; TWENTIETH CENTURY FOX FILM CORPORATION; AND WARNER BROS. ENTERTAINMENT, INC., Plaintiffs-Appellees. Pursuant to this Court’s Order dated January 4, 2017 (Dkt. 22), DefendantAppellant VidAngel, Inc. (“VidAngel”) hereby moves to seal limited portions of Appellant’s Appendix Volume 3, originally filed on December 30, 2016 (Dkt. 16) and Appellees’ Supplemental Appendix Volume 5, originally filed January 2, 2017 (Dkt. 19) (together, the “Appendices”). VidAngel respectfully seeks an order to seal a small amount of highly sensitive and confidential information contained in the Appendices. The information sought to be sealed is identified in the attached Exhibit A. In the district court, the information at issue was identified by VidAngel as “Confidential” or “Highly Confidential” pursuant to the Stipulated Protective Order entered on August 19, 2016 (Dkt. 23) and was ordered sealed. See D.Ct. Dkt. 25, 41 1 & 88 (Applications to File Under Seal); D.Ct. Dkt. 32, 75 & 97 (Orders Granting Applications to Seal). VidAngel’s counsel have again carefully reviewed the previously sealed material and have determined that disclosure of the information identified in Exhibit A threatens to harm VidAngel. There are compelling reasons to keep the information in question under seal. It consists of detailed statements about (1) the mechanics of VidAngel’s filtering technology (which was developed at considerable expense), (2) market data acquired through VidAngel’s novel position in the marketplace, and (3) key financial projections and other sensitive financial data, such as that of VidAngel’s profit margins and its appraisal of fair market value. This information is some of VidAngel’s most sensitive, is extremely confidential, has never been disclosed to the public, and is not even shared with many of VidAngel’s employees. As such, it easily constitutes VidAngel’s “confidential business strategies and other commercially sensitive information” properly subject to seal. Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 822 n.1 (9th Cir. 2011). And there is no countervailing reason to disclose the information to the public—it does not affect public health and safety and does not concern any public entities or officials; rather it concerns only the private inner workings of VidAngel’s business. 2 The information also constitutes VidAngel’s trade secrets because it “ can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.” Restatement (Third) of Unfair Competition § 39 (1995). On this basis as well, it may properly be sealed. Id. cmt. e (“A trade secret is entitled to protection as long as it “provide[s] an actual or potential economic advantage over others who do not possess the information. The advantage however, need not be great.” (emphasis added)). In fact, disclosure of the information threatens serious competitive harm to VidAngel because it would enable the development of competitor services at lower cost, particularly in light of VidAngel’s first-mover position in an emerging market. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (“business information that might harm a litigant’s competitive standing” is properly subject to a motion to seal). VidAngel has filed herewith proposed redacted versions of the Appendices.1 VidAngel respectfully requests that the Court make the proposed versions publicly available and retain the originally filed unredacted versions under seal. 1 Earlier today, Plaintiffs-Appellees filed a request to seal one page of a deposition transcript included in Appellant’s Appendix Volume 3. VidAngel has also redacted that page in the accompanying proposed redacted Appellant’s Appendix Volume 3. 3 Dated: January 18, 2017 Respectfully submitted, Brendan S. Maher brendan.maher@strismaher.com Daniel L. Geyser daniel.geyser@strismaher.com Douglas D. Geyser douglas.geyser@strismaher.com STRIS & MAHER LLP 6688 N. Central Expressway, Suite 1650 Dallas, TX 75206 Tel: (214) 396-6630 Fax: (210) 978-5430 s/ Victor O’Connell Peter K. Stris peter.stris@strismaher.com Elizabeth Rogers Brannen elizabeth.brannen@strismaher.com Dana Berkowitz dana.berkowitz@strismaher.com Victor O’Connell victor.oconnell@strismaher.com STRIS & MAHER LLP 725 South Figueroa Street, Suite 1830 Los Angeles, CA 90017 Tel: (213) 995-6800 Fax: (213) 261-0299 David W. Quinto dquinto@vidangel.com VIDANGEL, INC. 3007 Franklin Canyon Drive Beverly Hills, CA 90210 Tel: (213) 604-1777 Fax: (213) 604-1777 Ryan Geoffrey Baker rbaker@bakermarquart.com Jaime Wayne Marquart jmarquart@bakermarquart.com Scott M. Malzahn smalzahn@bakermarquart.com BAKER MARQUART LLP 2029 Century Park East, 16th Floor Los Angeles, CA 90067 Tel: (424) 652-7800 Fax: (424) 652-7850 Shaun P. Martin smartin@sandiego.edu UNIVERSITY OF SAN DIEGO SCHOOL OF LAW 5998 Alcala Park San Diego, CA 92110 Tel: (619) 260-2347 Fax: (619) 260-7933 Counsel for Defendant-Appellant VidAngel, Inc. 4 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: VidAngel, Inc. v. Disney Enterprises, Inc., et al. Note: 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 CM/ 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 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: DEFENDANT-APPELLANT’S MOTION TO SEAL PORTIONS OF APPELLANT’S APPENDIX, VOLUME 3 (DKT. 16) AND APPELLEES’ SUPPLEMENTAL APPENDIX VOLUME 5 (DKT. 19) [PROPOSED REDACTED] APPELLANT'S APPENDIX VOLUME 3 [PROPOSED REDACTED] APPELLEES' SUPPLEMENTAL APPENDIX VOLUME 5 Signature: s/ Victor O'Connell (use "s/" format with typed name) Date: January 18, 2017

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