Kilopass Technology, Inc. v. Sidense Corporation

Filing 361

ORDER DENYING IN PART AND GRANTING IN PART THE PARTIES' EX PARTE APPLICATIONS TO FILE UNDER SEAL; RESETTING DEADLINES AND CONTINUING HEARING 344 347 350 352 336 338 (Illston, Susan) (Filed on 11/29/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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KILOPASS TECHNOLOGY, INC.,
Plaintiff,

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No. C 10-02066 SI
Related Case No. C 11-04112 SI

v.
SIDENSE CORPORATION,
Defendant.

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ORDER DENYING IN PART AND
GRANTING IN PART THE PARTIES’ EX
PARTE APPLICATIONS TO FILE
UNDER SEAL; RESETTING
DEADLINES AND CONTINUING
HEARING

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Currently before the Court are the parties’ ex parte applications to file documents under seal in

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conjunction with their respective motions for attorneys’ fees and sanctions. In response to this Court’s

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order (Docket No. 355), the parties have conceded that many of the documents that they originally

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sought to file under seal do not contain any information that should be concealed from the public.

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Accordingly, the Court hereby DENIES the parties’ ex parte applications to file under seal as to those

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conceded documents, listed herein.

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Documents Conceded by Kilopass:

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Exhibit A to the Declaration of Mark L. Hogge (Docket No. 351-2)

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Exhibit 10 to the Declaration of Mark L. Hogge (Docket No. 348-11);

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Exhibits 1-3 to the Declaration of Harry Luan (Docket No. 348-6);

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[Unredacted] Declaration of Harry Luan in Support (Docket No. 348-5);

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[Unredacted] Declaration of Chun Ng (Docket No. 348-2); and

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Documents Conceded by Sidense:

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Exhibits A, D, & E to the Declaration of Mark L. Hogge (Docket No. 351-2)

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Exhibits 1-5 and 9 of the Declaration of Mark L. Hogge (Docket Nos. 348-8, 348-11);

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Exhibits 1-2 to the Declaration of Harry Luan (Docket No. 348-6);

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Exhibit 25 to the Declaration of Robert D. Tadlock (Docket No. 341-25);

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[Unredacted] Declaration of Roger L. Cook (Docket No. 340);

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Exhibit 9 to the Declaration of Mark L. Hogge Docket No. 337-3).

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The parties submitted responses and declarations wherein they maintained that the remaining

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United States District Court
For the Northern District of California

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[Unredacted] Declaration of Charlie Cheng (Docket No. 348-1);

documents should be filed under seal. The Court finds that the parties have sufficiently justified sealing

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with respect to some documents, and failed to justify sealing with respect to others, as discussed below.

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With the exception of a narrow range of documents that are “traditionally kept secret,” none of

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which are present here, courts begin their sealing analysis with “a strong presumption in favor of

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access.” Foltz v. State Farm Mut. Auto. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003). When applying to

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file documents under seal in connection with a dispositive motion, the submitting party bears the burden

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of “articulating compelling reasons supported by specific factual findings that outweigh the general

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history of access and the public policies favoring disclosure, such as the public interest in understanding

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the judicial process.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir.

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2006) (internal quotations and citations omitted). A motion is considered dispositive even when it is

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only “connected to” a traditionally-dispositive order, like one for summary judgment. In re Midland

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Life Ins. Annuity Sales Practices Litig., 686 F.3d 1115, 1119-20 (9th Cir. 2012).

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However, when parties attach to a non-dispositive motion discovery documents that have been

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sealed pursuant to a blanket protective order, the general presumption of access is rebutted. Id.; Phillips

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v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). In that instance, a showing of “good

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cause” under Federal Rule of Civil Procedure 26(c) is sufficient for the Court to file the documents

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under seal. Kamakana, 447 F.3d at 1179-80; see also Fed. R. Civ. P. 26(c). To show good cause, the

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moving party must still make a “particularized showing” that “specific harm or prejudice will result if

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the information is disclosed.” Kamakana, 447 F.3d at 1179-80; Apple, Inc. v. Samsung Elecs. Co. Ltd.,
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Case No. 11–CV–01846 LHK (PSG), 2012 WL 4120541, at *1 (N.D. Cal. Sept. 18, 2012). “Simply

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mentioning a general category of privilege, without any further elaboration or any specific linkage with

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the documents, does not satisfy the burden.” Kamakana, 447 F.3d at 1184. Neither do “[b]road

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allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Phillips, 307 F.3d

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at 1211. In addition, all requests to file under seal must be “narrowly tailored,” such that only sealable

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information is sought to be redacted from public access. Civil Local Rule 79-5(a).
Here, the parties’ motions for attorneys’ fees and for sanctions, to which the pending ex parte

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applications to file under seal are attached, are non-dispositive. See Phillips, 307 F.3d at 1213

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(sanctions motions not dispositive). Their adjudication will not affect the substantive claims or defenses

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United States District Court
For the Northern District of California

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of any parties to the litigation, which has already concluded on the merits. See Docket No. 328.

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Accordingly, for good cause shown under Federal Rule of Civil Procedure 26(c), or lack thereof, the

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Court concludes as follows:

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Docket No.
Material
337-2
Exhibits 1-3 to the
Declaration of Mark L.
Hogge in Support of
Kilopass’s Motion for
Sanctions

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Ex Parte
Court’s Ruling
Appl. Docket No.
DENIED. Kilopass’s request to seal
336
their attorneys’ fee rates, hours billed,
and costs incurred does not make a
particularized showing how or articulate
a reason why a specific harm or
prejudice will result from disclosure.

341-1

Exhibit 1 to the Declaration
of Robert D. Tadlock in
Support of Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request to seal this
email chain containing conversations
between Kilopass and their counsel does
not make a particularized showing how
or articulate a reason why a specific
harm or prejudice will result from
disclosure.

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341-2

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Exhibit 2 to the Declaration
of Robert D. Tadlock in
Support of Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request to seal this
email chain containing conversations
between Kilopass and their counsel does
not make a particularized showing how
or articulate a reason why a specific
harm or prejudice will result from
disclosure.

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341-3

Exhibit 3 to the Declaration
of Robert D. Tadlock in
Support of Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request to seal this
email chain containing conversations
between Kilopass and their counsel does
not make a particularized showing how
or articulate a reason why a specific
harm or prejudice will result from
disclosure.

338

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341-9

Exhibit 9 to the Declaration
of Robert D. Tadlock in
Support of Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request to seal this
email chain containing conversations
between Kilopass and their counsel does
not make a particularized showing how
or articulate a reason why a specific
harm or prejudice will result from
disclosure.

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341-10

Exhibit 10 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Motion for
Attorneys’ Fees

DENIED. Kilopass’s request is
overbroad in that segments of the
deposition transcript Kilopass seeks to
seal discuss public information.

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341-11

Exhibit 11 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Motion for
Attorneys’ Fees

GRANTED. The exhibit in its entirety
contains confidential and commercially
sensitive information that is sealable
under Rule 26(c)(1)(G).

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341-12

Exhibit 12 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Motion for
Attorneys’ Fees

GRANTED. The exhibit in its entirety
contains confidential and commercially
sensitive information that is sealable
under Rule 26(c)(1)(G).

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341-26

Exhibit 26 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Motion for
Attorneys’ Fees

DENIED. Sidense’s request to seal its
attorney fee arrangements does not make
a particularized showing how or
articulate a reason why a specific harm
or prejudice will result from disclosure.

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348-8

Exhibit 6 to the Declaration
of Mark L. Hogge in
Support of Kilopass’s
Opposition to Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how or
articulate a reason why a specific harm
or prejudice will result from disclosure.

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348-8

Exhibit 7 to the Declaration
of Mark L. Hogge in
Support of Kilopass’s
Opposition to Sidense’s
Motion for Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how or
articulate a reason why a specific harm
or prejudice will result from disclosure.

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348-6

Exhibit 4 to the Declaration
of Harry Luan in Support of
Kilopass’s Opposition to
Sidense’s Motion for
Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how or
articulate a reason why a specific harm
or prejudice will result from disclosure.

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348-6

Exhibit 5 to the Declaration
of Harry Luan in Support of
Kilopass’s Opposition to
Sidense’s Motion for
Attorneys’ Fees

GRANTED. This exhibit is sealed in its
entirety, because it contains non-public
proprietary information.

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United States District Court
For the Northern District of California

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348-14

Exhibit 13 to the
Declaration of Mark L.
Hogge in Support of
Kilopass’s Opposition to
Sidense’s Motion for
Attorneys’ Fees

GRANTED. This exhibit contains
commercially sensitive information. The
request is narrowly tailored because
Sidense will only redact the extraneous
information not cited by Kilopass in its
opposition, which will also be public.

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348-14

Exhibit 14 to the
Declaration of Mark L.
Hogge in Support of
Kilopass’s Opposition to
Sidense’s Motion for
Attorneys’ Fees

GRANTED. This exhibit contains
commericially sensitive information.
The request is narrowly tailored because
Sidense will only redact the extraneous
information not cited by Kilopass in its
opposition, which will also be public.

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351-2

Exhibit B to the Declaration
of Mark L. Hogge in
Support of Kilopass’s Reply
Brief in Support of
Kilopass’s Motion for
Sanctions

DENIED. Sidense’s request does not
make a particularized showing how or
articulate a reason why a specific harm
or prejudice will result from disclosure.
The deposition testimony does not
contain any discussion of commerciallysensitI’ve information.

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351-2

Exhibit C to the Declaration
of Mark L. Hogge in
Support of Kilopass’s Reply
Brief in Support of
Kilopass’s Motion for
Sanctions

GRANTED. This exhibit contains
commercially sensitive information. The
request is narrowly tailored because
Sidense will only redact the extraneous
information not cited by Kilopass in its
reply, which will be public.

350

353-2

Exhibit 38 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Reply Brief in
Support of its Motion for
Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how
disclosure of non-privileged legal
strategy will result in a specific harm or
prejudice.

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353-2

Exhibit 39 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Reply Brief in
Support of its Motion for
Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how
disclosure of non-privileged legal
strategy will result in a specific harm or
prejudice.

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353-2

Exhibit 40 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Reply Brief in
Support of its Motion for
Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how
disclosure of non-privileged legal
strategy will result in a specific harm or
prejudice.

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353-2

Exhibit 41 to the
Declaration of Robert D.
Tadlock in Support of
Sidense’s Reply Brief in
Support of its Motion for
Attorneys’ Fees

DENIED. Kilopass’s request does not
make a particularized showing how
disclosure of non-privileged legal
strategy will result in a specific harm or
prejudice.

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United States District Court
For the Northern District of California

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Pursuant to Civil Local Rule 79-5(e), the Court shall not file any documents for which the

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parties’ applications to file under seal have been denied, including the documents conceded as public

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by the parties. The submitting party may retain the document and not make it part of the record in the

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case, or, by December 5, 2012, re-submit the document for filing in the public record with any

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necessary amendments that are not inconsistent with this order. The parties’ briefs may also be redacted

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and resubmitted as consistent with the Court’s ruling on the documents above. The hearing on these

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matters currently set for November 30, 2012, is hereby CONTINUED to December 21, 2012. This

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order resolves Docket Nos. 336, 338, 344, 347, 350 and 352.

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IT IS SO ORDERED.
United States District Court
For the Northern District of California

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Dated: November 29 , 2012
SUSAN ILLSTON
United States District Judge

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