Positive Technologies Inc. v. Sony Electronics Inc et al

Filing 412

ORDER by Judge Kandis A. Westmore denying without prejudice 381 Motion for Discovery; denying 384 Administrative Motion to File Under Seal; denying 401 Administrative Motion to File Under Seal (kawlc2, COURT STAFF) (Filed on 2/1/2013)

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1 2 United States District Court Northern District of California 3 4 5 6 POSITIVE TECHNOLOGIES, INC., 7 v. 8 9 Case No.: 11-cv-2226 SI (KAW) Plaintiff, SONY ELECTRONICS, INC, et al., 10 ORDER DENYING MOTION FOR ENTRY OF A MODEL ORDER WITHOUT PREJUDICE, AND DENYING ADMINISTRATIVE MOTIONS TO SEAL Defendants. United States District Court Northern District of California 11 12 I. Motion for Entry of a Model Order Regarding E-Discovery 13 Defendant Amazon.com ("Amazon") filed a motion for entry of the Federal Circuit 14 Advisory Council's Model Order Regarding E-Discovery in Patent Cases in this case. Dkt # 381. 15 Plaintiff filed an opposition, and Amazon filed a reply. Dkt # 383, 388. The matter was referred 16 to the undersigned. Dkt # 392. 17 After reviewing the parties' briefs and proposed orders regarding e-discovery, the Court 18 finds that the parties have not sufficiently met and conferred regarding the dispute. The parties 19 are ordered to meet and confer in person, or by telephone if an in-person meeting is not feasible, 20 within 14 days of the date of this order. The parties shall make reasonable compromises, and 21 shall endeavor to prepare a stipulated proposed order regarding e-discovery in this case. Amazon 22 is advised that some portions of the model order are obviously inapplicable to this case—for 23 example, that the parties shall jointly submit proposed modifications within 16 days of the Federal 24 Rule of Civil Procedure 16 conference, which has long since passed in this case. Plaintiff is 25 advised that the Court otherwise considers the model order to be a presumptive starting point for 26 this case. 27 28 If the parties are unable to resolve their dispute after meeting and conferring, they may file 1 2 a file a joint letter complying with the undersigned's standing order, available at 3 http://cand.uscourts.gov/kaworders, no later than 21 days from the date of this order. 4 5 II. Administrative Motions to Seal Pursuant to Civil Local Rule 79-5(d), Plaintiff filed an administrative motion to seal 6 portions of the exhibits to the declaration of Bradley Coburn in support of its opposition brief to 7 Amazon's motion for entry of the Federal Circuit Advisory Council's Model Order. Dkt # 384. 8 Local Rule 79-5(d) requires the designating party to file a declaration establishing that the 9 materials are sealable within seven days of the filing of the administrative motion to seal. Amazon did not file a declaration establishing that the material was sealable within that time. 11 United States District Court Northern District of California 10 Judge Illston issued an order directing Amazon to make a showing that the documents 12 were sealable, and warned Amazon that if it failed to do so, "the documents will be appended to 13 Positive's opposition papers and made part of the public record." Dkt # 391. The order set forth 14 the standard for filing documents under seal in connection with nondispositive motions: 15 16 17 18 19 20 21 22 When applying to file documents under seal in connection with a nondispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure 26(c) is sufficient for the Court to file the documents under seal. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006); see also Fed. R. Civ. P. 26(c). To show good cause, the moving party must still make a “particularized showing” that “specific harm or prejudice will result if the information is disclosed.” Kamakana, 447 F.3d at 1179-80; Apple, Inc. v. Samsung Elecs. Co. Ltd., Case No. 11–CV–01846 LHK (PSG), 2012 WL 4120541, at *1 (N.D. Cal. Sept. 18, 2012). “Simply mentioning a general category of privilege, without any further elaboration or any specific linkage with the documents, does not satisfy the burden.” Kamakana, 447 F.3d at 1184. Neither do “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Phillips, 307 F.3d at 1211. 23 24 See id. at 2. In response, Amazon filed a two-page declaration stating that the exhibits contain 25 small amounts of confidential material, including: sales information for the accused products, 26 internal code names for Amazon products, identification and association of Amazon employees 27 with performance of certain work on specific Amazon products, the confidential name of a third 28 party manufacturer who Amazon works with in the engineering and manufacture of the accused 2 1 products, identification of component parts used in the accused devices, names of databases and 2 software used internally at Amazon in design, development, and debugging of products, and 3 identification of issues encountered by Amazon in the design and development of the accused 4 products. Dkt # 396. The declaration attests that "Amazon maintains this information as 5 confidential and does not disclose this information to the public." Id. at 2. Although Amazon was specifically directed by Judge Illston to make a particularized 6 7 showing that specific harm or prejudice would result if the information designated as confidential 8 were to be disclosed, Amazon failed to do so. The declaration does not even discuss any harm 9 that would result from the documents' disclosure. Other than its assertion that some of the information in the documents is kept confidential, Amazon has failed to provide any justification 11 United States District Court Northern District of California 10 for filing any portion of the documents under seal. Plaintiff's administrative motion to file under 12 seal is, therefore, denied. After Amazon filed its declaration in response to Judge Illston's order, Plaintiff filed a 13 14 brief opposing Amazon's declaration, together with a supporting declaration and exhibits. Dkt # 15 401-1, 401-2. The brief argues that Amazon's declaration does not meet the legal standards for 16 sealing, and further, that each of the seven categories of information identified in the declaration 17 is publicly available on the internet. The supporting declaration attests that the attached exhibits 18 were printed from the internet. In conjunction with these filings, Plaintiff filed another 19 administrative motion to file under seal, as some of the exhibits Plaintiff's counsel attests that he 20 obtained from the internet contain information that has been designated "confidential" by 21 Amazon. Dkt # 401.1 Amazon filed a brief opposing Plaintiff's second administrative motion to file under seal. 22 23 Dkt # 400. The brief argues that Plaintiff's filing in opposition to Amazon's declaration was 24 improper, as it is not allowed by the applicable local rule, and was filed nineteen days after 25 Amazon's declaration was filed. Id. The following day, Amazon's counsel filed a declaration 26 regarding Plaintiff's second administrative motion to seal. Dkt # 403. The declaration states that 27 28 1 This filing was originally docket entry 399, but was refiled as docket entry 401 to correct an error. 3 1 "Amazon does not object to [Plaintiff]'s filing of publicly available third party speculation as to 2 Kindle devices or other Amazon products. Amazon does object to [Plaintiff] confirming or 3 corroborating any third party speculation based on confidential Amazon information regarding the 4 accused products that [Plaintiff] has learned through this litigation." Id. The declaration attests 5 that all of the redacted portions of the brief contain "CONFIDENTIAL Amazon information that 6 [Plaintiff] learned through this litigation." Id. at 2 (emphasis in original). The declaration further 7 attests that Amazon maintains this information as confidential, and lists categories of information 8 that Amazon requests be filed under seal. It is true that there was no basis for Plaintiff to file a brief in opposition to Amazon's 9 declaration. Neither Civil Local Rule 79-5 nor Judge Illston's order contemplate such a filing. 11 United States District Court Northern District of California 10 Accordingly, the Court does not consider the arguments raised in Plaintiff's brief and supporting 12 declaration (Dkt # 401-1, 401-2). But Amazon's second declaration does not establish that the information discussed in 13 14 Plaintiff's second administrative motion to file under seal is sealable. Amazon's second 15 declaration is as deficient as its first, as it does not establish that specific harm or prejudice will 16 result from the disclosure of the information. Accordingly, Plaintiff's second administrative 17 motion to file under seal is denied, and unredacted versions of the documents will be made part of 18 the public record. 19 /// 20 /// 21 22 23 24 25 26 27 28 4 1 2 3 III. Conclusion For the reasons explained above, it is hereby ORDERED: 1. Amazon's motion for entry of the Federal Circuit Advisory Council's Model Order 4 Regarding E-Discovery in Patent Cases is denied without prejudice. See Dkt # 381. The 5 parties must meet and confer regarding this discovery dispute, and may file a joint letter 6 regarding the dispute no later than 21 days from the date of this order. 7 2. Plaintiff's administrative motions to file under seal are denied. See Dkt # 384, 401. The 8 Clerk of the Court is ordered to make the documents lodged in connection with these 9 administrative motions part of the public record. 10 IT IS SO ORDERED. United States District Court Northern District of California 11 12 13 Dated: February 1, 2013 ___________________________ KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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