Kilopass Technology, Inc. v. Sidense Corporation

Filing 442

ORDER DENYING IN PART AND GRANTING IN PART THE PARTIES' MOTIONS TO SEAL 431 435 437 440 (Illston, Susan) (Filed on 9/22/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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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
ORDER DENYING IN PART AND
GRANTING IN PART THE PARTIES’
MOTIONS TO SEAL

v.
SIDENSE CORPORATION,
Defendant.

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Currently before the Court are the parties’ joint motions to file documents under seal in

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conjunction with their briefs relating to their attorneys’ fee calculations. The Court finds that the parties

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have sufficiently justified sealing with respect to some documents, and failed to justify sealing with

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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
history of access and the public policies favoring disclosure, such as the public interest in understanding
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
“connected to” a traditionally-dispositive order, like one for summary judgment. In re Midland Life Ins.

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Annuity Sales Practices Litig., 686 F.3d 1115, 1119-20 (9th Cir. 2012).
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When a party seeks to seal documents attached to a non-dispositive motion, 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.,
United States District Court
For the Northern District of California

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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).

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Here, the parties’ briefs and exhibits filed in conjunction with Sidense’s fee calculation

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memorandum in support of its motion for attorneys’ fees1 – to which the motions to file under seal

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pertain – are non-dispositive. Their adjudication will not affect the substantive claims or defenses of

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

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

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Unless they reveal litigation strategy, fee arrangements between attorney and clients are
generally not privileged, and thus not sealable absent a particularized showing that a specific harm will
result if filed publicly. Ferrington v. McAfee, Inc., 10-CV-01455-LHK, 2013 WL 3814474 (N.D. Cal.
July 22, 2013) (denying motion to seal attorney billing records); Real v. Cont'l Grp., Inc., 116 F.R.D.
211, 213 (N.D. Cal. 1986) (“simply the number of hours billed, the parties' fee arrangement, costs and
total fees paid do not constitute privileged information.”); In re Grand Jury Proceeding, 721 F.2d 1221,
1222 (9th Cir. 1983) (“The existence of an attorney-client relationship, or the fee arrangement between
an attorney and his client, is generally not privileged or protected by the privilege.”).
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thereof, the Court concludes as follows:
Docket No.

Material

431-3

Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates, fee subtotals, costs incurred,
terms of the fee agreement, and general references
to the fact that Sidense was raising capital does not
make a particularized showing how or articulate a
reason why a specific harm or prejudice will result
from disclosure.

431-5

Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates, hours billed, fee subtotals, costs
incurred, and terms of the fee agreement, does not
make a particularized showing how or articulate a
reason why a specific harm or prejudice will result
from disclosure.

431-6

Exhibit A to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

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

431-7

Exhibit B to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

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

431-8

Exhibit C to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

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

431-9

Exhibit D to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

GRANTED. The exhibit – which outlines the terms
of a promissory note executed by Sidense – contains
confidential and commercially sensitive
information.

431-10

Exhibit E to the Supplement
Fee Calculation Declaration
of Roger L. Cook In
Support of Motion for
Attorneys’ Fees

GRANTED. The exhibit – which outlines the terms
of a promissory note executed by Sidense – contains
confidential and commercially sensitive
information.

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United States District Court
For the Northern District of California

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Court’s Ruling

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431-11

Exhibit F to the Supplement
Fee Calculation Declaration
of Roger L. Cook In
Support of Motion for
Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates, hours billed, fee subtotals and
costs incurred, does not make a particularized
showing how or articulate a reason why a specific
harm or prejudice will result from disclosure.

431-12

Exhibit M to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

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

431-14

Supplement Fee Calculation
Declaration of Xerxes
Wania In Support of
Motion for Attorneys’ Fees

GRANTED only as to ¶ 8, as it contains
confidential and commercially sensitive
information. DENIED as to all other redacted
portions, as the request to seal terms of Sidense’s
attorney fee agreement does not make a
particularized showing how or articulate a reason
why a specific harm or prejudice will result from
disclosure.

435-6

Exhibit H to the
Supplement Fee Calculation
Declaration of Roger L.
Cook In Support of Motion
for Attorneys’ Fees

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

435-7

Exhibit L to the Supplement
Fee Calculation Declaration
of Roger L. Cook In
Support of Motion for
Attorneys’ Fees

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

437-3

Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

GRANTED as to all redacted portions on page I;
page 1, line 24; page 14, line 2; pages 18-19. These
portions contain non-public commercially sensitive
information. DENIED as to all other redacted
portions. The parties’ request to seal Sidense’s
attorneys’ fee amounts and terms of the fee
agreement 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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United States District Court
For the Northern District of California

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437-5

Declaration of Charlie
Cheng in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

GRANTED. This declaration contains non-public
commercially sensitive information.

437-6

Exhibit A to Declaration of
Charlie Cheng in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

GRANTED. This exhibit contains non-public
commercially sensitive information.

437-7

Exhibit B to Declaration of
Charlie Cheng in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

GRANTED. This exhibit contains non-public
commercially sensitive information.

437-9

Declaration of Gary
Greenfield in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates, fee subtotals, costs incurred,
and terms of the fee agreement does not make a
particularized showing how or articulate a reason
why a specific harm or prejudice will result from
disclosure.

437-10

Exhibit 2 to Declaration of
Charlie Cheng in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates and fee subtotals does not make
a particularized showing how or articulate a reason
why a specific harm or prejudice will result from
disclosure.

437-11

Exhibit 3 to Declaration of
Charlie Cheng in Support of
Kilopass’ Opposition to
Sidense’s Supplemental Fee
Calculation Memorandum
in Support for Motion for
Attorneys’ Fees

DENIED. The parties’ request to seal Sidense’s
attorneys’ fee rates and fee subtotals 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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United States District Court
For the Northern District of California

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440-3

Declaration of Roger L.
Cook In Support of
Sidense’s Reply Fee
Calculation Memorandum
In Support of Motion for
Attorneys’ Fees

GRANTED. This declaration contains non-public
commercially sensitive information.

Exhibit N to the Declaration
of Roger L. Cook In
Support of Sidense’s Reply
Fee Calculation
Memorandum In Support of
Motion for Attorneys’ Fees

DENIED. The parties have failed to file an
unredacted copy under seal as required by Local
Civil Rule 79-5(d)(1)(D).

440-5

Sidense’s Reply Fee
Calculation Memorandum
in Support of Motion for
Attorneys’ Fees

GRANTED as to all redacted portions on page I;
page 1 lines 5-6; page 13, lines 8-22; page 14, lines
5-7; page 14, line 9-28; page 15, line 1.These
portions contain non-public commercially sensitive
information. DENIED as to all other redacted
portions. The parties’ request to seal Sidense’s
attorneys’ fee amounts and terms of the fee
agreement does not make a particularized showing
how or articulate a reason why a specific harm or
prejudice will result from disclosure.

440-7

Second Supplemental Fee
Calculation Declaration of
Xerxes Wania In Support of
Motion for Attorneys’ Fees

GRANTED. This declaration contains non-public
commercially sensitive information.

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N/A

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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(f), the Court shall not file any documents for which the

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parties’ applications to file under seal have been denied. The submitting party may retain the document

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and not make it part of the record in the case, or, by September 26, 2014, re-submit the document for

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filing in the public record with any necessary amendments that are not inconsistent with this order. The

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parties’ briefs may also be redacted and resubmitted as consistent with the Court’s ruling on the
documents above. This order resolves all motions to seal under Docket Nos. 431, 435, 437, and 440.
IT IS SO ORDERED.
Dated: September 22, 2014
SUSAN ILLSTON
United States District Judge

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