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]

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
[e-mail]
Daniel L. Geyser
[e-mail]
Douglas D. Geyser
[e-mail]
STRIS & MAHER LLP
6688 N. Central Expressway, Suite 1650
Dallas, TX 75206
Tel: [phone]
Fax: [phone]

s/ Victor O’Connell
Peter K. Stris
[e-mail]
Elizabeth Rogers Brannen
[e-mail]
Dana Berkowitz
[e-mail]
Victor O’Connell
[e-mail]
STRIS & MAHER LLP
725 South Figueroa Street, Suite 1830
Los Angeles, CA 90017
Tel: [phone]
Fax: [phone]

David W. Quinto
[e-mail]
VIDANGEL, INC.
3007 Franklin Canyon Drive
Beverly Hills, CA 90210
Tel: [phone]
Fax: [phone]

Ryan Geoffrey Baker
[e-mail]
Jaime Wayne Marquart
[e-mail]
Scott M. Malzahn
[e-mail]
BAKER MARQUART LLP
2029 Century Park East, 16th Floor
Los Angeles, CA 90067
Tel: [phone]
Fax: [phone]

Shaun P. Martin
[e-mail]
UNIVERSITY OF SAN DIEGO
SCHOOL OF LAW
5998 Alcala Park
San Diego, CA 92110
Tel: [phone]
Fax: [phone]

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