Kwan Software Engineering, Inc. v. Foray Technologies, LLC

Filing 188

ORDER (1) DENYING PLAINTIFF'S MOTION TO FILE UNDER SEAL; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO FILE UNDER SEAL 168 177 (Illston, Susan) (Filed on 4/18/2014)

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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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ORDER:

Plaintiff,

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No. C 12-03762 SI

KWAN SOFTWARE ENGINEERING, INC., a
California corporation d/b/a VERIPIC, INC.,

(1) DENYING PLAINTIFF’S MOTION
TO FILE UNDER SEAL; AND

v.

(2) GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO
FILE UNDER SEAL

FORAY TECHNOLOGIES, LLC, a Delaware
Limited Liability Company,
Defendant.

/

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On February 25, 2014, defendant filed a motion for attorney’s fees. Docket No. 156. On March

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25, 2014, plaintiff filed its opposition to defendant’s motion. Docket No. 166. On April 1, 2014,

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defendant filed its reply. Docket No. 175. By the present motions, plaintiff moves to file under seal its

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opposition and documents that were filed in support of its opposition, and defendant moves to file under

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seal documents that were filed in support of its reply. Docket Nos. 168, 177. In each of the motions,

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the parties state that they moved to file these documents under seal because the documents were

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designated as confidential by another party pursuant to the protective order in this action, but the parties

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do not take a position as to whether the information is entitled to be filed under seal. See id.

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Under Civil Local Rule 79-5(e), where “the Submitting Party is seeking to file under seal a

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document designated as confidential by the opposing party or a non-party pursuant to a protective order

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. . . [,] [w]ithin 4 days of the filing of the Administrative Motion to File Under Seal, the Designating

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Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that all of the

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designated material is sealable.” To date, a Rule 79-5(d)(1)(A) declaration has been filed with respect

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only to exhibit C to the declaration of James Greenan in support of Foray’s Reply to Its Motion for

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Attorney’s Fees. Docket No. 178, Shah Decl. A Rule 79-5(d)(1)(A) declaration has not been filed with

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respect to any of the other documents sought to be filed under seal. Therefore, Court denies the parties’

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motions to seal the documents, except for Exhibit C to the declaration of James Greenan.
Exhibit C is a transcript of the March 21, 2014 hearing before Judge Arand in the parallel state

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court action.1 In the declaration of David Shah, plaintiff argues that Exhibit C should be filed under seal

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because it is subject to a proposed protective order that is pending before Judge Arand in the state

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United States District Court
For the Northern District of California

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action. Docket No. 178, Shah Decl. ¶¶ 2-7. The proposed protective order would only allow the

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transcript to be used for the purposes of the March 21, 2014 state court hearing. Id. ¶¶ 5-6. Plaintiff

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explains that if the exhibit is filed in the public record, it would essentially moot its requested protective

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order. Id. ¶ 9. In a response to the Shah declaration, defendant states that it does not oppose plaintiff’s

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request to seal Exhibit C. Docket No. 179.

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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. Kamakana v. City and County of

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Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006); see also Fed. R. Civ. P. 26(c). Because a motion

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for fees and costs is a non-dispositive motion, the “good cause” standard applies. Muench Photography,

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Inc. v. Pearson Educ., Inc., 2013 U.S. Dist. LEXIS 178495, at *3 (N.D. Cal. Dec. 18, 2013). After

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reviewing the Shah declaration and its attached exhibits, the Court concludes that plaintiff has shown

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good cause to seal Exhibit C, and its request to seal is narrowly tailored.2

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Accordingly, the Court DENIES plaintiff’s motion to file under seal and GRANTS IN PART

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and DENIES IN PART defendant’s motion to file under seal. Only exhibit C to the declaration of James

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Greenan in support of Foray’s Reply to Its Motion for Attorney’s Fees may be filed under seal. All

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The parallel state court action is Kwan Software Engineering, Inc. v. Foray Technologies, LLC,
Santa Clara County Superior Court No. 1-09-cv-149780 (filed Aug. 14, 2009).
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If Judge Arand declines to adopt plaintiff’s proposed protective order, then plaintiff must
publicly file an unredacted version of Exhibit C or a further declaration establishing good cause to seal
the exhibit within seven days from the date of Judge Arand’s denial.
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other exhibits previously filed by the parties under seal must be publicly filed as unredacted

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versions of the documents within seven days from date of this Order as required by Civil Local

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Rule 79-5(f)(2). This Order resolves Docket Nos. 168, 177.

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IT IS SO ORDERED.

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Dated: April 18, 2014
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SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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