Electronic Arts Inc. v. Zynga Inc.

Filing 20

Ex Parte Application to file UNDER SEAL PORTIONS OF ITS COUNTERCLAIM FOR BREACH OF CONTRACT AND VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 17200 re 18 Answer to Complaint, Counterclaim filed by Zynga Inc.. (Attachments: # 1 Declaration, # 2 Proposed Order)(Butler, Timothy) (Filed on 9/14/2012) Modified on 9/17/2012 (ysS, COURT STAFF). Modified on 9/17/2012 (ysS, COURT STAFF). Modified on 9/17/2012 (ewn, COURT STAFF).

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QUINN EMANUEL URQUHART & SULLIVAN, LLP
Claude M. Stern (Bar No. 96737)
[e-mail]
Karin Kramer (Bar No. 87346)
[e-mail]
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, California 94065-2139
Telephone:
[phone]
Facsimile:
[phone]
PAUL HASTINGS LLP
Bradford K. Newman (Bar No. 178902)
[e-mail]
Peter C. Meier (Bar No. 179019)
[e-mail]
1117 S. California Avenue
Palo Alto, CA 94304-1106
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant/Counter-Claimant
ZYNGA INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELECTRONIC ARTS INC.,

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Plaintiff,
vs.
ZYNGA INC.,

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CASE NO. CV 12 4099 SI
ZYNGA INC.’S EX PARTE APPLICATION
TO FILE UNDER SEAL PORTIONS OF
ITS COUNTERCLAIM FOR BREACH OF
CONTRACT AND VIOLATION OF
CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200

Defendant.

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ZYNGA INC.,
Counter-Claimant,

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vs.
ELECTRONIC ARTS INC.,
Counter-Defendant.

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Case No. CV 12 4099 SI

ZYNGA’S EX PARTE APP.
TO FILE UNDER SEAL

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Pursuant to Civil Local Rules 7-10, 79-5, and this Court’s Standing Order, Defendant and

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Counter-Claimant Zynga Inc. (“Zynga”) respectfully applies Ex Parte for an order to file under

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seal portions of its Counterclaim for Breach Of Contract And Violation Of California Business

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And Professions Code Section 17200, and exhibits A and B thereto.

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Zynga files this Ex Parte Application on the compelling grounds that these documents

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contain information that the parties have previously agreed is confidential, the dissemination of

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which to third parties could adversely impact both parties’ interests. The proposed sealing is

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narrowly tailored and only seeks to protect those limited portions of the Counterclaim that contain

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reference to the substance of the confidential settlement agreements or the agreements

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themselves. Zynga has lodged the above-referenced documents in an envelope labeled as

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follows: “DOCUMENT SUBMITTED UNDER SEAL AND CHAMBERS COPY.”

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Under California law, protecting information subject to a confidentiality agreement

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justifies granting a limited application to seal. California courts hold that there is an “overriding

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interest” in sealing records that are protected from disclosure by a confidentiality agreement.

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Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1283 (2003) (“We agree

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with defendant that its contractual obligation not to disclose can constitute an overriding

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interest....”); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1222

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n.46 (1999) (acknowledging that courts have found “the enforcement of binding contractual

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obligations not to disclose” to be an “overriding interest” that supports closure of documents to

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the public) (citing Publicker Industries v. Cohen, 733 F.2d 1059, 1073 (1984)).

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The information sought to be sealed is entitled to protection under the law as Zynga seeks

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to seal only those specific documents, or portions of documents, that constitute, contain, or reveal

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aspects of settlement agreements entered into by the parties to this lawsuit and which Zynga is

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bound by contract to maintain as confidential. Zynga’s compelling reasons for maintaining the

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confidential nature of this information overcomes any right of public access to court documents,

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and that overriding interest supports sealing the record. If disclosed to a third party, this

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information would reveal confidential information. The proposed sealing, which is limited to the

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portions outlined in the accompanying Declaration of Stephen N. Yang and Proposed Order, is
Case No. CV 12 4099 SI

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ZYNGA’S EX PARTE APP.
TO FILE UNDER SEAL

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narrowly tailored, as the non-confidential information in those documents is being publicly filed.

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No less restrictive means exist to achieve the overriding interest of protecting this information. In

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the absence of an order sealing the confidential settlement agreements and references to such

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agreements, the parties’ interests would be seriously prejudiced.

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Zynga’s request for an order sealing the documents mentioned above complies with Local

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Rules. The portions of the document sought to be filed under seal is being contemporaneously

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filed in paper form with the Clerk, as required by Local Rule 79-5. This request is based upon

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this Ex Parte Application, the accompanying Declaration of Stephen N. Yang, and all exhibits

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attached thereto filed in support of Zynga’s Counterclaim for Breach Of Contract And Violation

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Of California Business And Professions Code Section 17200, all of which contain the factual

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basis in support of this Ex Parte Application, all other documents which are being or will be filed

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or lodged in support thereof, all other documents on file herein, and such other and further

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evidence as the Court may consider prior to its ruling.

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DATED: September 14, 2012

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QUINN EMANUEL URQUHART & SULLIVAN
CLAUDE M. STERN
KARIN KRAMER

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PAUL HASTINGS LLP
BRADFORD K. NEWMAN
PETER C. MEIER

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By:

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/s/ Bradford K. Newman

Attorney for Defendant/Counter-Claimant
Zynga Inc.

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Case No. CV 12 4099 SI

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ZYNGA’S EX PARTE APP.
TO FILE UNDER SEAL

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ECF ATTESTATION

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I, Timothy A. Butler, am the ECF User whose ID and Password are being used to file this:

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ZYNGA INC.’S EX PARTE APPLICATION TO FILE UNDER SEAL PORTIONS OF ITS

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COUNTERCLAIM FOR BREACH OF CONTRACT AND VIOLATION OF CALIFORNIA

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BUSINESS AND PROFESSIONS CODE SECTION 17200. In compliance with Civil Local

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Rule 5-1(i)(3), I hereby attest that Bradford K. Newman has concurred in this filing.

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Dated: September 14, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By:

/s/ Timothy A. Butler

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Case No. CV 12 4099 SI

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ZYNGA’S EX PARTE APP.
TO FILE UNDER SEAL