France Telecom S.A. v. Marvell Semiconductor, Inc.

Filing 322

ORDER by Judge William H. Orrick granting 189 , 196 , 200 , 218 , 240 , 252 , 261 , 273 , 278 , 283 , 297 , 301 , and 304 Administrative Motions to File Under Seal; granting 309 motion styled as "Brief;" and denying as moot 221 Administrative Motion to File Under Seal and 226 joinder of AT&T. (jmdS, COURT STAFF) (Filed on 10/3/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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FRANCE TELECOM S.A.,

Case No. 12-cv-04967-WHO

Plaintiff,
v.
MARVELL SEMICONDUCTOR INC.,
Defendant.

ORDER REGARDING PARTIES’ AND
THIRD-PARTIES’ REQUEST TO SEAL
MOTIONS REGARDING TRIAL
EVIDENCE AND TRIAL TESTIMONY

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INTRODUCTION
Plaintiff France Telecom and defendant Marvell Semiconductor have filed several motions

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to seal material filed in connection with motions to exclude evidence at trial. See Dkt. Nos. 189,

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196, 200, 218, 221, 240, 252, 261, 273, 278, 283, 297, and 304. Third parties Nokia and AT&T

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likewise request that certain confidential financial and technical information relating to them be

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sealed. Dkt. Nos. 226 (AT&T), 309 (Nokia). Finally, Marvell requests that the Court seal

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portions of the trial transcripts that contain confidential sales data of third-party Blackberry/

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Research In Motion. Dkt. No. 301. I discuss the requests in turn.

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LEGAL STANDARD
Courts have recognized a “general right to inspect and copy public records and documents,

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including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

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& n. 7 (1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong

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presumption in favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu,

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447 F.3d 1172, 1178 (9th Cir. 2006) (citation omitted).

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A showing of “good cause” is sufficient to seal documents attached to non-dispositive
motions.” In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119

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(9th Cir. 2012). In contrast, because a trial is “at the heart of the interest in ensuring the ‘public’s

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understanding of the judicial process and of significant public events,” a party seeking to seal

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evidence at trial must articulate “compelling reasons” in favor of sealing. Kamakana, 447 F.3d at

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1178-79. “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in

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disclosure and justify sealing court records exist when such ‘court files might have become a

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vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public

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scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon, 435

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U.S. at 598. The Ninth Circuit has stated that “pricing terms, royalty rates, and guaranteed

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minimum payment terms” plainly fall within the definition of “trade secrets” for purposes of

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sealing motions.” In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008).
Motions regarding the admissibility of evidence at trial, such as motions in limine and

United States District Court
Northern District of California

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Daubert motions, are generally analyzed under the “good cause” standard, notwithstanding that

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they relate to the admissibility of evidence at trial. See, e.g., Apple Inc. v. Samsung Electronics

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Co., 727 F.3d 1214, 1222-23 (Fed. Cir. 2013) (“we are not aware of any Ninth Circuit precedent

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applying the ‘compelling reasons’ standard to non-dispositive motions regarding the admissibility

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of evidence at trial. The district court’s reasoning—that the admissibility of evidence was a closely

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contested issue—does not justify departure from the Ninth Circuit’s general rule”).

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DISCUSSION
I.

THE PARTIES’ MOTIONS TO SEAL
The parties seek to seek the following material:

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

Dkt. Nos. 189, 196: Marvell seeks to seal documents filed in connection its Daubert
motion to exclude testimony of Professor Cornell. A redacted version of the Daubert
motion has been filed and is available to the public at docket number 189-11. France
Telecom seeks to seal portions of its opposition to Marvell’s Daubert motion. A redacted
version of the opposition has been filed and is available to the public at docket number
196-3.



Dkt. No. 200: France Telecom seeks to seal documents submitted in connection with its
opposition to Marvell’s motions in limine. The documents contain information describing
the internal operation of Marvell’s communication processors, the source code for
Marvell’s accused products, Marvell’s internal testing policies, and purchase orders and
commercial invoices that contain Marvell’s confidential pricing and shipping terms.

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

Dkt. No. 218: France Telecom seeks to seal declarations filed in support of its motion for
confidential treatment of certain documents at trial. The declarations at issue discuss the
terms of France Telecom’s licenses. The declarations themselves have no bearing on any
issue discussed at trial.



Dkt. No. 221: Marvell seeks to prospectively seal hundreds of exhibits identified as
potential trial exhibits by France Telecom. The exhibits contain (i) source and hardware
code; (ii) non-public financial information; (iii) market research and planning/strategy
documents; (iv) joint development agreements; (v) technical documents; and (vii) third
party documents produced under protective order. The exhibits themselves were not
attached to the motion and many of them were never introduced at trial.



Dkt. No. 240: Marvell seeks to seal documents filed in connection with its motion to
exclude Rule 408 evidence. A redacted version of the motion to exclude Rule 408
evidence has been filed and is available to the public at docket number 240-3. The
documents at issue contain material inadmissible under Federal Rule of Evidence 408.



Dkt. No. 252: Marvell seeks to seal documents filed in connection with its motion to
exclude Non-3G Licensing Evidence. A redacted version of the motion to exclude Non3G Licensing Evidence has been filed and is available to the public at docket number 2523.



Dkt. No. 261: France Telecom seeks to seal certain exhibits submitted in support of its
motion to preclude lay witnesses from offering improper expert testimony at trial. The
motion to preclude lay witnesses from offering improper expert testimony at trial is
available to the public at docket number 260. The exhibits at issue contain Marvell’s
proprietary technical information, including hardware description language source code.



Dkt. Nos. 273, 278: Marvell seeks to seal certain exhibits filed in connection with its
motion to preclude France Telecom from presenting undisclosed damages and documents.
The motion to preclude is publicly-accessible at docket number 272. France Telecom
seeks to seal certain exhibits filed in connection with its opposition to the motion to
preclude. A redacted version of the opposition has been filed and is available to the public
at docket number 278-3. The documents at issue contain Marvell’s confidential sales and
pricing information.



Dkt. No. 283: Marvell seeks to seal documents filed in connection with its opposition to
France Telecom’s Motion to Preclude Impermissible Trial Testimony. The documents at
issue contain Marvell’s confidential sales and pricing information. Marvell’s opposition to
the motion to preclude is available to the public at docket number 281.

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Dkt. Nos. 297, 304: Marvell seeks to seal documents filed in connection with its Motion to
Strike Exhibits Containing Foreign Nonparty Sales. Marvell’s motion to strike is available
to the public at docket number 296. France Telecom seeks to seal portions of its
opposition to Marvell’s motion to strike. A redacted version of the opposition has been
filed and is available to the public at docket number 304-3. The documents at issue
contain Marvell’s confidential sales and pricing information.

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United States District Court
Northern District of California

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The requests above relate to material filed in connection with motions regarding the

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admissibility of evidence at trial; the requests do not seek to seal the evidence actually introduced

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at trial. The “good cause” standard, rather than the “compelling reasons” standard, therefore

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governs these requests. See, e.g., Apple, 727 F.3d at 1222-23.

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With the exception of the motion at docket number 221, the parties have established good

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cause for sealing the material discussed above. The information contains trade secrets, including

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terms of confidential licensing agreements and negotiations, confidential sales and pricing data,

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and proprietary source code and other technical information. In contrast, the public interest in

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access to this information is minimal as the information is not necessary to the public’s
understanding of the ultimate issues in this trial. The documents also contain material which was

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United States District Court
Northern District of California

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excluded at trial, such as the Rule 408 communications. There is no significant public interest in

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access to that material. See, e.g., Apple, 727 F.3d at 1222-23 (“evidence which a trial court rules

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inadmissible—either as irrelevant or inappropriate-seems particularly unnecessary to the public’s

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understanding of the court’s judgment”). The motions to seal at docket numbers 189, 196, 200,

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218, 240, 252, 261, 273, 278, 283, 297, and 304 are GRANTED.
In docket number 221, Marvell sought to prospectively seal hundreds of exhibits identified

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as potential trial exhibits by France Telecom. The exhibits contain (i) source and hardware code;

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(ii) non-public financial information; (iii) market research and planning/strategy documents; (iv)

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joint development agreements; (v) technical documents; and (vii) third party documents produced

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under protective order. The exhibits themselves were not attached to the motion and many of

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them were never introduced at trial. The motion, as filed, is DENIED AS MOOT. To the extent

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that the exhibits were actually introduced at trial, Marvell shall file a further motion to seal

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identifying the exhibits at issue, stating why compelling reasons exist to seal them, and file

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redacted versions of the exhibits at issue on the publicly-accessible docket.

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II.

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THIRD-PARTY REQUESTS FOR CONFIDENTIAL TREATMENT
Third-party Nokia “requests sealing of any portion of the trial transcript and any exhibit in

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the record (including any demonstrative) that references any financial term associated with

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Nokia’s license agreement with France Telecom.” Dkt. No. 309. The information at issue—terms
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of a license agreement—constitutes trade secrets and is properly sealed. See, e.g., In re Elec. Arts,

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Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (directing district court to seal trial exhibit where the

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information at issue—pricing terms, royalty rates, and guaranteed minimum payment terms in a

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licensing agreement—“plainly falls within the definition of ‘trade secrets’”). Nokia’s motion is

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GRANTED. The Court will REDACT references to any term associated with Nokia’s license

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agreement with France Telecom from the trial transcript. Trial exhibit 41 (Nokia’s license

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agreement with France Telecom) is ordered SEALED.

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Third-party AT&T Mobility LLC has requested that an AT&T document entitled Device
Requirements (Trial Exhibit 539), which describes technical details for the operation of devices
operating on AT&T’s network, be sealed. Dkt. No. 226. The document at issue was never

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United States District Court
Northern District of California

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introduced at trial. AT&T’s motion is DENIED AS MOOT.

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Marvell requests that the Court seal portions of the trial transcripts that contain confidential

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sales data of third-party Blackberry/Research In Motion. Dkt. No. 301. Marvell submitted

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proposed redactions at docket numbers 301-4 and 301-5. The non-public sales information at

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issue is among the types of competitively sensitive information that qualifies as a trade secret and

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is properly sealed at trial. See, e.g., Apple, 727 F.3d at 1221.

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CONCLUSION
The parties’ motions to seal at docket numbers 189, 196, 200, 218, 240, 252, 261, 273,

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278, 283, 297, and 304 are GRANTED. Marvell’s motion to seal at docket number 221 is

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DENIED AS MOOT. To the extent that the exhibits referenced in that motion were actually

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introduced at trial, Marvell shall, within seven days of this order, file a further motion to seal

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identifying the exhibits at issue, stating why compelling reasons exist to seal them, and file

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redacted versions of the exhibits at issue on the publicly-accessible docket.

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Nokia’s motion to seal at docket number 309 is GRANTED. The Court will REDACT

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references to any term associated with Nokia’s license agreement with France Telecom from the

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trial transcript. Trial exhibit 41 (Nokia’s license agreement with France Telecom) is ordered

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SEALED.

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AT&T Mobility LLC’s motion to seal is DENIED AS MOOT as the document at issue
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was never introduced at trial. Dkt. No. 226.

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Marvell’s request to redact portions of the trial transcripts relating to sales data of

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Blackberry/Research In Motion, as proposed in docket numbers 301-4 and 301-5, is GRANTED.

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Dkt. No. 301. The Court will REDACT the proposed portions.

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If either party wishes to seal an exhibit introduced at trial which is not otherwise
addressed above, the parties shall move the Court to do so within 7 days of this order.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: October 3, 2014
______________________________________
WILLIAM H. ORRICK
United States District Judge

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