Fortinet, Inc. v. Sophos, Inc. et al

Filing 202

ORDER RE: MOTIONS TO SEAL. Motions terminated: 194 178 . Signed by Magistrate Judge Donna M. Ryu on 08/20/15. (dmrlc2, COURT STAFF) (Filed on 8/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FORTINET, INC.,

Case No. 13-cv-05831-EMC (DMR)

Plaintiff,
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v.

ORDER RE: MOTIONS TO SEAL

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Re: Dkt. No. 178, 194

SOPHOS, INC., et al.,
Defendants.

United States District Court
Northern District of California

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Fortinet has filed a motion for sanctions that is now fully briefed. Associated with the

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motion for sanctions are Fortinet’s motions to file under seal portions of its motion for sanctions

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(and exhibits thereto) and certain exhibits to its reply. [Docket Nos. 178, 194.] This order

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addresses only the motions to seal.

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I.

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LEGAL STANDARDS

Civil Local Rule 79-5(b) states that “no document may be filed under seal (i.e., closed to

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inspection by the public) except pursuant to a court order that authorizes the sealing of the

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particular document, or portions thereof. A sealing order may issue only upon a request that

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establishes that the document, or portions thereof, are privileged, protectable as a trade secret or

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otherwise entitled to protection under the law (hereinafter referred to as ‘sealable’).” “The request

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must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil

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L.R. 79-5(d).” Id. Furthermore, “[r]eference to a stipulation or protective order that allows a

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party to designate certain documents as confidential is not sufficient to establish that a document,

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or portions thereof, are sealable.” Civ. L.R. 79-5(d)(1)(A).

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Pursuant to Civil Local Rule 79-5(e), a party must file under seal a document designated as
confidential by the opposing party or a document containing information so designated by an

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opposing party. “Within 4 days of the filing of the Administrative Motion to File Under Seal, the

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

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all of the designated material is sealable.” Civ. L.R. 79-5(e)(1). “If the Designating Party does

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not file a responsive declaration as required by subsection 79-5(e)(1) and the Administrative

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Motion to File Under Seal is denied, the Submitting Party may file the document in the public

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record no earlier than 4 days, and no later than 10 days, after the motion is denied.” Civ. L.R. 79-

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5(e)(2).

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II.

In Docket No. 178, Fortinet moves to seal documents or portions of documents as

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DOCKET NO. 178

summarized in the chart below:

United States District Court
Northern District of California

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Item
1

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4
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7
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10
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13

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Fortinet moves to seal
Portions of Motion for
Sanctions
Portions of Neukom
Decl.
Neukom Decl. Ex. C
Neukom Decl. Ex. S
Neukom Decl. Ex. T
Neukom Decl. Ex. V
Neukom Decl. Ex. Y
Neukom Decl. Ex. Z
Neukom Decl. Ex. AA
Neukom Decl. Ex. BB
Neukom Decl. Ex. CC
Neukom Decl. Ex. DD
Neukom Decl. Ex. EE

Rationale
Designated confidential by Sophos

Sophos’s response
Agrees is sealable

Designated confidential by Sophos

Agrees is sealable

Designated confidential by Sophos
Designated confidential by Sophos
Designated confidential by Sophos
Designated confidential by Sophos
Designated confidential by Sophos
Designated confidential by Sophos
Designated confidential by Sophos
Contains Fortinet trade secrets
Contains Fortinet trade secrets
Contains Fortinet trade secrets
Contains Fortinet trade secrets

Agrees is sealable
Agrees is sealable
Agrees is sealable
Agrees is sealable
Documents are not sealable after all
Documents are not sealable after all
Documents are not sealable after all
Disagrees, documents are not sealable
Disagrees, documents are not sealable
Disagrees, documents are not sealable
Disagrees, documents are not sealable

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Items 1-9 were designated confidential by Sophos. Sophos has filed the responsive

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declaration required by Civil Local Rule 79-5(e)(1). See Docket No. 186. For Items 7-9, Sophos

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concedes that “certain of the information contained therein was derived from materials designated

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as ‘Highly Confidential,’ [but] Sophos does not believe that these exhibits themselves are

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sealable.” Accordingly, the motion to seal is DENIED as to Items 7-9.

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For Items 1-6, Sophos has sufficiently explained why these documents are sealable, for

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they contain the confidential outcome of a non-public arbitration (Items 1-3, 6); or the serial

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numbers of various Sophos employees’ computers, which could enable a person to penetrate

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Sophos’ security networks (Items 4-5). The motion to seal is GRANTED as to Items 1-6.
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For Item 10-13, Fo
ms
ortinet assert that these documents contain Fort
ts
tinet’s disclo
osures of

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trad secrets, and that Forti
de
a
inet’s busine would be harmed if t
ess
e
these trade secrets were disclosed.

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Item 10 is Fort
m
tinet’s respon to Sopho interrog
nse
os’s
gatory reques
sting that Fo
ortinet “[i]dentify all

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trad secrets an
de
nd/or confide
ential inform
mation Fortin contends has been m
net
s
misappropriat by
ted

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Sop
phos.” Item 11-13 are Fortinet’s di
ms
isclosures an suppleme
nd
ental disclosu of trade secrets
ures
e

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pur
rsuant to Cal Code Civ. Proc. § 2019.20. Sopho contends that the info
l.
os
ormation con
ntained in

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Item 10-13 are not actuall trade secre and are th
ms
e
ly
ets
herefore not sealable. T court dec
t
The
clines to

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opi on the ul
ine
ltimate issue of whether Fortinet’s tr
e
rade secret d
disclosures have sufficien
ntly

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ide
entified items that can be regarded as trade secrets, because d
e
s
doing so cou encroach upon the
uld
h
pre
esiding judge authority to determin the merits of the misa
e’s
y
ne
s
appropriation of trade sec
n
crets claim.

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United States District Court
Northern District of California

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Ou of an abun
ut
ndance of cau
ution, the co GRANT the motio to seal as to Items 10ourt
TS
on
-13. See

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Syn
nopsys v. AT
TopTech, 13-cv-2965-MM (DMR) (N.D. Cal.), at Docket N 314, 34 (granting
MC
,
Nos.
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pla
aintiff’s moti to seal material relating to plaint
ion
m
tiff’s trade se
ecrets over d
defendant’s o
objection

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tha the materia was not se
at
al
ealable and noting that c
n
court was act
ting “out of an abundanc of
ce

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cau
ution” and ex
xplicitly not reaching the merits of p
e
plaintiff’s tra secret cla
ade
aim).

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III.

DOCK
KET NO. 194
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In Dock No. 194, Fortinet mo
ket
oves to seal e
exhibits filed with its Re
d
eply to the M
Motion for

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San
nctions. Sp
pecifically, Fortinet move to seal Ex
F
es
xhibits HH a II to the declaration o Grant
and
of

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Ma
argeson beca
ause they hav been desi
ve
ignated by S
Sophos as con
nfidential. I Sophos’s declaration
In

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pur
rsuant to Civ Local Rule 79-5(e)(1) Sophos sta
vil
),
ates, “Althou th[e]se d
ugh
documents h
have been

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des
signated by Sophos as ‘H
S
Highly Conf
fidential,’ So
ophos does n believe th these exh
not
hat
hibits are

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sea
alable.” See Docket No. 200. Fortin
net’s motion to seal is the
erefore DEN
NIED.

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IT IS SO ORDER
S
RED.
Da
ated: August 20, 2015
___
__________
___________
__________
________
Donna M. Ryu
Un
nited States M
Magistrate J
Judge

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