TVIIM, LLC v. McAfee, Inc.

Filing 300

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART 296 MOTION TO SEAL. (ndrS, COURT STAFF) (Filed on 8/28/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TVIIM, LLC,

Case No. 13-cv-04545-HSG
Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO SEAL

v.
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MCAFEE, INC.,

Re: Dkt. No. 296

Defendant.

United States District Court
Northern District of California

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Pending before the Court is Defendant McAfee, Inc.’s motion to seal portions of its motion

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for attorneys’ fees and costs, and related documents. Dkt. No. 296. No opposition to the motion

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to seal was filed, and the time to do so has passed.

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I.

LEGAL STANDARD

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“[A] ‘compelling reasons’ standard applies to most judicial records. This standard derives

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from the common law right ‘to inspect and copy public records and documents, including judicial

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records and documents.’” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010)

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(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7). “[A] ‘strong presumption in

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favor of access’ is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,

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1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th

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Cir. 2003)). To overcome this strong presumption, the party seeking to seal a judicial record

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related to a dispositive motion must “articulate compelling reasons supported by specific factual

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findings that outweigh the general history of access and the public policies favoring disclosure,

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such as the public interest in understanding the judicial process” and “significant public events.”

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Id. at 1178-79 (internal citations, quotation marks, and alterations omitted). “In general,

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‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing

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court records exist when such ‘court files might have become a vehicle for improper purposes,’

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such as the use of records to gratify private spite, promote public scandal, circulate libelous

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statements, or release trade secrets.” Id. at 1179 (citing Nixon, 435 U.S. at 598). “The mere fact

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that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure

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to further litigation will not, without more, compel the court to seal its records.” Id.

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The court must “balance the competing interests of the public and the party who seeks to

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keep certain judicial records secret. After considering these interests, if the court decides to seal

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certain judicial records, it must base its decision on a compelling reason and articulate the factual

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basis for its ruling, without relying on hypothesis or conjecture.” Id. at 1179. Civil Local Rule

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79-5 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file
a document or portions of it under seal must “establish[] that the document, or portions thereof,

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United States District Court
Northern District of California

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are privileged, protectable as a trade secret or otherwise entitled to protection under the law. . . .

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The request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-

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5(b).
Records attached to nondispositive motions are not subject to the strong presumption of

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access. See Kamakana, 447 F.3d at 1179. Because the documents attached to nondispositive

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motions “are often unrelated, or only tangentially related, to the underlying cause of action,”

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parties moving to seal must meet the lower “good cause” standard of Rule 26(c) of the Federal

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Rules of Civil Procedure. Id. at 1179–80 (internal quotation marks omitted). The “good cause”

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standard requires a “particularized showing” that “specific prejudice or harm will result” if the

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information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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1210–11 (9th Cir. 2002) (internal quotation marks omitted); see Fed. R. Civ. P. 26(c). “Broad

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allegations of harm, unsubstantiated by specific examples of articulated reasoning” will not

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suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
Because Defendant’s motion for attorneys’ fees and costs is a nondispositive motion, the

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Court applies the “good cause” standard to Defendant’s motion to seal.
II.

DISCUSSION

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Defendant seeks to seal certain portions of documents to which various entities and

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individuals maintain a claim of confidentiality. Certain of those entities and individuals—namely,
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TVIIM, LLC, Enterprise Information Management, Inc., Eric Knight, Curtis Vock, Paul Jonjak,

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and Kevin Reynolds—did not file a declaration within four days of the filing of the motion to seal,

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as required by Civil Local Rule 79-5(e)(1). The Court therefore finds that the information

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designated as confidential by those entities and individuals and contained in the documents sought

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to be sealed is not sealable information. Accordingly, Defendant’s motion to seal is DENIED as

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to the information on page six of the motion for attorneys’ fees and costs and in Exhibits 4-5, 8-9,

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18, and 24 to the Mueller Authentication Declaration. Pursuant to Civil Local Rule 79-5(e)(2),

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Defendant may file those documents in the public record no earlier than four days and no later

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than ten days after the date of this Order.

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Joseph J. Mueller, partner at WilmerHale and counsel for Defendant, avers that certain

United States District Court
Northern District of California

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portions of the motion for attorneys’ fees and costs and related documents contain “confidential

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business information” concerning special fee arrangements between WilmerHale and Defendant,

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and between WilmerHale and litigation support vendors. Dkt. No. 296-2 at ¶¶ 5-6. Mueller states

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that disclosure of such information would put WilmerHale at competitive disadvantage. Id. April

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Tate Tishler, who is a graphics consultant at Core Legal Concepts, one of the litigation support

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vendors retained by WilmerHale in connection with this case, likewise avers that the disclosure of

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information related to special fee arrangements would put Core Legal Concepts at a competitive

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business disadvantage. Dkt. No. 299 at ¶ 5.

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The Court agrees that the proposed redactions related to WilmerHale’s fee arrangements

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contain sealable material. The Court further finds that the proposed redactions are “narrowly

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tailored” to seal only sealable material, as required by Civil Local Rule 79-5. The Court therefore

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GRANTS Defendant’s motion to seal the proposed redactions on (1) page 24 of the motion for

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attorneys’ fees and costs; (2) Mueller Fees and Costs Declaration; (3) McAfee’s Bill of Costs; (4)

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Schedules to McAfee’s Bill of Costs; and (5) Exhibits A-D to McAfee’s Bill of Costs.

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IT IS SO ORDERED.
Dated: August 28, 2015
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HAYWOOD S. GILLIAM, JR.
United States District Judge
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