Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 166

STIPULATION AND ORDER REGARDING SEALING, AS MODIFIED BY THE COURT. Signed by Judge Richard Seeborg on 9/13/10. (cl, COURT STAFF) (Filed on 9/13/2010)

Interserve, Inc. et al v. Fusion Garage PTE. LTD

Doc. 166

*E-Filed 9/13/10* WINSTON & STRAWN LLP Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] 101 California Street San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs QUINN EMANUEL URQUHART & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) [e-mail] Evette D. Pennypacker (Bar No. 203515) [e-mail] 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] Joshua L. Sohn (Bar No. 250105) [e-mail] Sam S. Stake (Bar No. 257916) [e-mail] 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CASE NO. 09-cv-5812 RS (PVT) STIPULATION AND [PROPOSED] ORDER REGARDING SEALING, AS MODIFIED BY THE COURT Hon. Richard Seeborg

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INTERSERVE, INC. dba TECHCRUNCH, a 21 Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, 22 Plaintiffs, 23 vs. 24 FUSION GARAGE PTE. LTD, a Singapore 25 company, 26 27 28 Defendant.

Case No. 09-cv-5812 RS (PVT) STIPULATION AND [PROPOSED] ORDER REGARDING SEALING Dockets.Justia.com

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WHEREAS, on May 13, 2010, the Court heard Plaintiffs' motion for preliminary

2 injunction and Defendant's motion to dismiss, and during the hearing ordered the parties to confer 3 and agree on a reduced set of materials for filing under seal; 4 WHEREAS, since the hearing, the parties have had significant, good-faith discussions and

5 have reached agreement regarding nearly all materials. 6 WHEREAS, the parties disagree on the confidentiality of certain materials that concern

7 aspects of Defendant Fusion Garage's finances (the "Contested Materials"); 8 WHEREAS, the parties stipulate that all other materials filed in support of or in opposition

9 to or referenced in the preliminary injunction motion and motion to dismiss shall not be filed 10 under seal; 11 WHEREAS, the parties stipulate to, and jointly request that the Court enter an order

12 sealing the materials set forth in section 1, below. The parties stipulate to lodging these materials 13 under seal for the Court's convenience. They appear as Exhibit A. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. 09-cv-5812 RS (PVT) -2STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

1. Materials the Parties' Jointly Request Be Filed Under Seal a. Plaintiffs' preliminary injunction reply brief (Dkt. 109): pages and lines 17:8-13; 18:13-19; 19:1-6; and 19:21-25. These excerpts contain information about Fusion Garage's revenues, expenses, and potential future funding. b. Plaintiffs' motion to dismiss opposition brief (Dkt. 81): pages and lines 3:16-17, 5:246-5 and 15:8. These excerpts contain information about a still-possible marketing deal for Fusion Garage and details of Plaintiffs' possible future plans to sell tablet computers. c. Defendant's motion to dismiss reply brief (Dkt. 102): pages and lines 3:16-24, 4:9-12. d. Declaration of Andrew Bridges in Support of Reply in Support of Motion for Preliminary Injunction (Dkt. 109-2): Exhibit DD (which contains highly-confidential portions of Mr. Rathakrishnan's deposition testimony); Exhibit EE (which contains highly-confidential portions of Mr. Arrington's deposition testimony), small portions of Exhibits C, D, O, P, Q, and R (which contain information about specific terms

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between Fusion Garage and a manufacturer and its public relations firm, and which will be redacted in a manner already agreed to by the parties). e. Declaration of Matthew Scherb (Dkt. 81-1, related to the motion to dismiss): Exhibit H (concerning details of Plaintiffs' possible future plans to sell tablet computers); small portions of Exhibit B and Exhibit C (which contain confidential terms between Fusion Garage and its public relations firm and also identify a potential marketing deal, and which will be redacted in a manner already agreed to by the parties). f. Supplemental Declaration of Andrew Bridges (Dkt. 117-3): small portions of Exhibit 1 (which contains confidential terms between Fusion Garage and its public relations firm, and which will be redacted in a manner already agreed to by the parties). g. Supplemental Declaration of Patrick Doolittle (Dkt. 128): Exhibit B (Mr. Arrington's Deposition Transcript) pages and lines 352:1 to 355:15 and 378:8 to 384:5 (details of Plaintiffs' possible future plans to sell tablet computers and confidential source information) and pages and lines 359:13 to 362:10 (Plaintiffs' revenues and salary payments). WHEREAS, the parties further stipulate and jointly request that the Court consider the

17 parties' brief arguments regarding the Contested Materials set forth in Sections 2(a) and 2(b), 18 below and enter an order consistent with the Court's determination on whether the Contested 19 Materials referenced in Section 2 should be sealed; 20 21 2. Contested Materials The Contested Materials are portions of Plaintiffs' preliminary injunction reply brief at

22 pages and lines 2:19 to 3:2, 3:5-9, 17:16-18, and 18:1-4 of . The parties stipulate to lodging the 23 Contested Materials under seal to aid the Court's analysis. They appear as Exhibit B. 24 25 a. Plaintiffs' Position Plaintiffs believe there is no basis to seal the Contested Material. The transcript of the

26 preliminary injunction hearing is now public, and it reveals the same information that Defendant 27 28
Case No. 09-cv-5812 RS (PVT) -3STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

1 still seeks to seal. This chart correlates the Contested Material (see Exhibit A to this stipulation) 2 with statements in the transcript of the preliminary injunction hearing: Contested Material Related Excerpts from Hearing Transcript 3 Page/line 2:19 to 3:2 "payment flow is specifically being shaped to be outside the 4 (Location of assets and country" (16:2-3) nature of U.S. assets, use "the United States doesn't touch the money anymore" (14:15-16) 5 of PayPal, flow of "they weren't setting up U.S. bank accounts to pay their public revenue) relations agent" (16:14-15) 6 "it had a PayPal account that it still hasn't gotten money from, and it 7 is concerned because PayPal for its own fraud protections is holding onto the money" (14:18-19) 8 Page/line 3:5-9 Fusion Garage "seems to have done fine so far without actually (PayPal and need for receiving any pennies yet of the proceeds of the JooJoo . . because 9 access to revenue) of the financing that he's expecting to get in the future. He now values this company at 40 to $50 million. (17:20 to 18:2) 10 "it had a PayPal account that it still hasn't gotten money from, and it is concerned because PayPal for its own fraud protections is holding 11 onto the money" (14:18-19) 12 Page/line 17:16-18 "payment flow is specifically being shaped to be outside the country" (16:2-3) Page/line 18:1-4 13 (location and flow of "all the money they are getting is parked elsewhere" (18:15-16) revenues) "the funds of this entity are, in large part, outside this country" 14 (15:20-21) 15 16 Statements pertaining to the PayPal account status are also public because PayPal provided

17 account data in response to a subpoena without designating the material as confidential. 18 When the parties discussed the Contested Materials, Fusion Garage's counsel distinguished

19 statements at the hearing from the Contested Materials in the reply brief, because the statements 20 lacked citations to record evidence. Fusion Garage does not seek to keep the information at issue 21 confidential, merely the citations that make the information appear true. In any case, at the 22 hearing, Court and Counsel were referring to record evidence and arguments in the parties' briefs. 23 Statements made at the hearing are public and it makes little sense to redact related information in 24 the briefs. Also, the Court may need to refer to the Contested Materials in order to issue a written 25 decision. 26 27 28
Case No. 09-cv-5812 RS (PVT) -4STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

b. Defendant's Position

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The contested portions of Plaintiffs' Preliminary Injunction Reply Brief all contain

2 confidential information about Fusion Garage's revenues and finances ­ information that should 3 be kept under seal. For instance, the contested portions discuss Fusion Garage's methods for 4 obtaining JooJoo payments (2:23-3:2), the geographic distribution of Fusion Garage's assets and 5 financial accounts (2:19-22; 17:16-18; 18:1-2), and the extent to which Fusion Garage is drawing 6 down its JooJoo revenues to fund its ongoing operations (3:7-9; 18:3-4). 7 This sensitive financial and revenue information is properly sealed. See, e.g., In re LDK

8 Solar Sec. Litig., 255 F.R.D. 519, 524 n. 2 (N.D. Cal. 2009) (grating motion to seal portions of 9 opposition brief that disclosed lead plaintiff's "financial information and investment decisions"); 10 Patriot Rail Corp. v. Sierra R. Co., No. 09-0009, 2010 WL 2179499, *1 n. 2 (E.D. Cal. May 26, 11 2010) (granting motion to seal "defendant's proprietary and confidential financial information.") 12 Indeed, at the May 13 hearing, the Court highlighted "revenue discussion" as a category of 13 information that may properly be sealed. (See Dkt. 144, Ex. A at 5). 14 Plaintiffs apparently seek to continue their efforts to tarnish Fusion Garage's reputation by

15 forcing nonpublic information into the public and using the widely-read TechCrunch blog as a 16 vehicle to make disparaging remarks regarding Fusion Garage's finances. See, e.g., Dkt. 145 at 5 17 (recounting how TechCrunch authored blog posts disparaging Fusion Garage's investors as 18 "borderline loan sharks.") Plaintiffs' position is without support. Plaintiffs have suggested that 19 this revenue and financial information is no longer confidential because Plaintiffs' counsel made 20 "public statements" about Fusion Garage's revenues and finances at the Preliminary Injunction 21 hearing. There is a qualitative difference between the bare attorney argument that Plaintiffs' 22 counsel made at the preliminary hearing and the evidence of Fusion Garage's revenues and 23 finances that appears in the contested portions of the Preliminary Injunction Reply Brief. See 24 generally O2 Micro Intern. Ltd. v. Moonolithic Power Sys., 420 F.Supp.2d 1070, 1087 (N.D. Cal. 25 2006) ("attorney argument . . . is not evidence.") Unlike the bare attorney argument proffered at 26 the hearing, the contested portions of the Reply Brief are replete with citations and references to 27 Mr. Rathakrishnan's confidential deposition transcript, in which Mr. Rathakrishnan testified about 28
Case No. 09-cv-5812 RS (PVT) -5STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

1 Fusion Garage's revenues and finances. See, e.g., Reply Brief at 2:19-3:2; 3:5-7; 17:16-18. These 2 materials are properly sealed. 3 WHEREAS, the parties further stipulate and agree to refile papers related to the parties'

4 preliminary injunction motion and motion to dismiss as needed on or before seven (7) days from 5 entry of the Court's order on this Stipulation; IT IS SO STIPULATED. 6 Dated: June 15, 2010 QUINN EMANUEL URQUHART & 7 SULLIVAN, LLP 8 9 10 11 12 13 DATED: June 15, 2010 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sealed. The Contested Materials that the parties identified in section 2 of the stipulation [shall be] [shall not be] sealed. All other materials related to the preliminary injunction motion and motion to dismiss shall not be filed under seal. The parties are directed to re-file promptly in the ECF system public versions of all documents affected by this stipulation and order, with only such redactions as are provided for herein. The docket entry for each such document should include a parenthetical notation, "ReCase No. 09-cv-5812 RS (PVT) -6STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

By /s/ Evette D. Pennypacker Attorneys for Defendant Fusion Garage PTE., Ltd.

WINSTON & STRAWN LLP

By /s/ Matthew A. Scherb Attorneys for Plaintiffs Interserve, Inc. d/b/a TechCrunch and CrunchPad, Inc. Pursuant to stipulation, it is ORDERED that: The agreed-upon materials that the parties identified in section 1 of the stipulation shall be

1 filed pursuant to order dated 9/10/2010." The parties shall also submit new sealed hard copies of 2 any documents or exhibits permitted by this order to be filed under seal, and shall mark each such 3 sealed envelope with the notation, "Re-submitted for filing under seal pursuant to order dated 4 9/10/2010." The copies previously lodged will be destroyed. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. 09-cv-5812 RS (PVT) -7STIPULATION AND [PROPOSED] ORDER REGARDING SEALING

Dated: 9/10/10 The Honorable Richard Seeborg United States District Judge