Phoenix Technologies Ltd. v. VMware, Inc.

Filing 210

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART THE PARTIES ADMINISTRATIVE ( 120 , 124 , 143 , 148 , 157 , 166 ) MOTIONS TO FILE UNDER SEAL. (ndrS, COURT STAFF) (Filed on 12/6/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHOENIX TECHNOLOGIES LTD.,

Case No. 15-cv-01414-HSG

Plaintiff,
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v.
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VMWARE, INC.,
Defendant.

ORDER GRANTING IN PART AND
DENYING IN PART THE PARTIES’
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL
Re: Dkt. Nos. 120, 124, 143, 148, 157, 166

United States District Court
Northern District of California

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Before the Court are several administrative motions to file various documents under seal
pursuant to Civil Local Rule 79-5, relating to Plaintiff Phoenix Technologies (“Plaintiff”) and
Defendant VMware, Inc.’s (“Defendant”) cross-motions for summary judgment. See Dkt. Nos.

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120, 124, 143, 148, 157 & 166. No oppositions to the motions were filed. Having carefully
considered each of the requested redactions, the Court GRANTS IN PART and DENIES IN
PART the administrative motions to seal.
I.

LEGAL STANDARD

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Courts generally apply a “compelling reasons” standard when considering motions to seal

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documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010). “This standard

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

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judicial records and documents.’” Id. (quoting Kamakana v. City & Cnty. of Honolulu, 447 F.3d

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1172, 1178 (9th Cir. 2006)). “[A] strong presumption in favor of access is the starting point.”

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Kamakana, 447 F.3d at 1178 (citation and internal quotation marks omitted). To overcome this

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strong presumption, the moving party must “articulate compelling reasons supported by specific

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

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disclosure, such as the public interest in understanding the judicial process.” Id. at 1178-79

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(citations, internal quotation marks, and alterations omitted). “In general, compelling reasons

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sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist

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when such court files might have become a vehicle for improper purposes, such as the use of

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records to gratify private spite, promote public scandal, circulate libelous statements, or release

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trade secrets.” Id. at 1179 (citation and internal quotation marks omitted). The court must
“balance the competing interests of the public and the party who seeks to keep certain judicial

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records secret. After considering these interests, if the court decides to seal certain judicial
records, it must base its decision on a compelling reason and articulate the factual basis for its

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United States District Court
Northern District of California

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ruling, without relying on hypothesis or conjecture.” Id. (citations, brackets, and internal

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quotation marks omitted).

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Civil Local Rule 79-5 supplements the “compelling reasons” standard. The party seeking
to file under seal must “establish[ ] that the document, or portions thereof, are privileged,

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protectable as a trade secret or otherwise entitled to protection under the law. . . . The request
must be narrowly tailored to seek sealing only of sealable material . . . .” Civ. L.R. 79-5(b).

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Finally, records attached to motions that are only “tangentially related to the merits of a

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case” are not subject to the strong presumption of access. Ctr. for Auto Safety v. Chrysler Grp.,

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LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). Accordingly, parties moving to seal such records must

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meet the lower “good cause” standard of Rule 26(c) of the Federal Rules of Civil Procedure. Id. at

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1097. The “good cause” standard requires a “particularized showing” that “specific prejudice or

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harm will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors

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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (citation and internal quotation marks omitted); see

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also Fed. R. Civ. P. 26(c).

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II.

DISCUSSION
Here, the Court applies the “compelling reasons” standard because the documents at issue
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have more than a tangential relation to the merits of the case. See Ctr. for Auto Safety, 809 F.3d at
1101. The Court rules as follows:
Motion
120

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120
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120
120
120

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United States District Court
Northern District of California

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120
120
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120
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120
148

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148
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148
148

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Document
Plaintiff’s Motion for Summary
Judgment (“Plaintiff’s
Motion”), Exhibit 6
Plaintiff’s Motion, Exhibit 9
Plaintiff’s Motion, Exhibit 10
Plaintiff’s Motion, Exhibit 11
Plaintiff’s Motion, Exhibit 14
Plaintiff’s Motion, Exhibit 15
Plaintiff’s Motion, Exhibit 16
Plaintiff’s Motion, Exhibit 19
Plaintiff’s Motion, Exhibit 20
Plaintiff’s Motion, Exhibit 21
Plaintiff’s Motion, Exhibit 22
Plaintiff’s Motion, Exhibit 23
Plaintiff’s Motion, Exhibit 26
Plaintiff’s Motion, Exhibit 27
Plaintiff’s Motion, Exhibit 35
Plaintiff’s Motion, Exhibit 37
Plaintiff’s Motion, Exhibit 38
Plaintiff’s Motion, Exhibit 42
Plaintiff’s Motion, Exhibit 43

Ruling
GRANTED as to pp. 22; 23,
26, 29, 30, 32, 33, 34, 351

Reason
Confidential source code.

DENIED
DENIED
DENIED
DENIED
GRANTED
DENIED
GRANTED
DENIED
GRANTED
GRANTED
GRANTED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
GRANTED

Plaintiff’s Motion, Exhibit 44
Plaintiff’s Motion, Exhibit 45
Plaintiff’s Motion, Exhibit 47
Plaintiff’s Motion, Exhibit 48
Plaintiff’s Motion, Exhibit 51
Plaintiff’s Motion, Exhibit 54
Plaintiff’s Motion, Exhibit 59
Plaintiff’s Motion, Exhibit 60
Plaintiff’s Motion , Exhibit 61
Plaintiff’s Motion, Exhibit 62
Plaintiff’s Motion, Exhibit 63
Plaintiff’s Motion, Exhibit 65
Plaintiff’s Motion, Exhibit 68
Plaintiff’s Motion, Exhibit 71
Plaintiff’s Motion, Exhibit 72
Plaintiff’s Opposition to
Defendant’s Motion for
summary judgment (“Plaintiff’s
Opp.”)
Plaintiff’s Opp., Exhibit 74
Plaintiff’s Opp., Exhibit 75
Plaintiff’s Opp., Exhibit 76
Plaintiff’s Opp., Exhibit 77

DENIED
DENIED
DENIED
GRANTED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED as to pp. 2, 3, 4, 7, 12,
13, 19

No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Business Agreement.
No Declaration in Support.
Confidential Business Agreement.
No Declaration in Support.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Product Development
Information.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Copyright Information.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.

GRANTED
GRANTED as to 146, 147
DENIED
GRANTED

Confidential Business Information.
Confidential Business Information.
No Declaration in Support.
Confidential Product Development
Information.

Two of Plaintiff’s motions to file documents under seal refer to entire pages rather than the
discrete portions of text on each page that have been redacted. See Dkt. Nos. 120, 148. Unless
otherwise stated, the Court’s order applies only to the previously proposed redactions.
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148

Plaintiff’s Opp., Exhibit 79
Plaintiff’s Opp., Exhibit 80
Plaintiff’s Opp., Exhibit 81
Plaintiff’s Opp., Exhibit 82
Plaintiff’s Opp., Exhibit 84
Plaintiff’s Opp., Exhibit 85
Plaintiff’s Opp., Exhibit 87
Plaintiff’s Opp., Exhibit 88

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157

Plaintiff’s Opp., Exhibit 101
Plaintiff’s Opp., Exhibit 102
Plaintiff’s Opp., Exhibit 104
Plaintiff’s Opp., Exhibit 105
Plaintiff’s Reply to Defendant’s
Motion for Summary Judgment
(“Plaintiff’s Reply”), Exhibit
106
Plaintiff’s Reply, Exhibit 107
Plaintiff’s Reply, Exhibit 108
Plaintiff’s Reply, Exhibit 112
Plaintiff’s Reply, Exhibit 115
Defendant’s Motion for
Summary Judgment
(“Defendant’s Motion”)

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United States District Court
Northern District of California

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157
157
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157
124

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Defendant’s Motion, Exhibit 2

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Defendant’s Motion, Exhibit 3
Defendant’s Motion, Exhibit 5
Defendant’s Motion, Exhibit 6

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124

Defendant’s Motion, Exhibit 7
Defendant’s Motion, Exhibit 8
Defendant’s Motion, Exhibit 9
Defendant’s Motion, Exhibit 10
Defendant’s Motion, Exhibit 11
Defendant’s Motion, Exhibit 12
Defendant’s Motion, Exhibit 13
Defendant’s Motion, Exhibit 14
Defendant’s Motion, Exhibit 18

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124

Defendant’s Motion, Exhibit 29
Defendant’s Motion, Exhibit 33
Defendant’s Motion, Exhibit 35
Defendant’s Motion, Exhibit 37
Defendant’s Motion, Exhibit 38

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GRANTED as to 53, 161-62
DENIED
GRANTED
GRANTED as to 46, 47, 48, 49
GRANTED as to 1, 3
GRANTED as to 94, 95
GRANTED
GRANTED as to 9:3-11:25;
30:4-25; 51, 53
GRANTED
GRANTED
DENIED
DENIED
DENIED

Confidential Business Information.
No Declaration in Support.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.

DENIED
DENIED
DENIED
DENIED
GRANTED as to 5:21-22;
10:3-4

No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Business Information.

DENIED as to 4:24-27; 8:3-7,
13-14; 9:18-22; 10:5-9, 11-12;
11:11, 15-16, 22-24; 12:10-13,
19-25; 13:5-9, 11-12, 21-24,
28; 14:1-9, 15-16; 15:4-5, 1113; 18:1, 25, 27-28; 20:9-12,
24-25; 21:12-14, 20-28; 22:1;
23:4-24; 24:1-17 & n.16; 25:13,
21; 28:17
DENIED as to pp. 22 ¶ 68; 23
¶¶ 69-70; 26 ¶ 85; 29 ¶ 92; 32 ¶
102; 34 ¶ 114; 35 ¶ 118
DENIED
DENIED
GRANTED as to 510:17514:25; 589:10-19
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
DENIED
GRANTED as to 39:3, 13, 1516, 18-20; 44:21, 24-25; 45:16;
46:11-12
DENIED
DENIED
DENIED
DENIED
GRANTED as to
PHX00000597, PHX00000598,

No Declaration in Support.

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Confidential Business Agreement.
Confidential Business Presentation.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.

Relevant Pages Not Included in
Exhibit 2.
No Declaration in Support.
No Declaration in Support.
Confidential Business Information.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
Confidential Business Agreement.
No Declaration in Support.
Confidential Business Information.

No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Business and Personal
Information.

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Defendant’s Motion, Exhibit 39
Defendant’s Motion, Exhibit 40

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Defendant’s Motion, Exhibit 41
Defendant’s Motion, Exhibit 42
Defendant’s Motion, Exhibit 46
Defendant’s Motion, Exhibit 47
Defendant’s Motion, Exhibit 48
Defendant’s Motion, Exhibit 60

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Defendant’s Motion, Exhibit 61
Defendant’s Motion, Exhibit 63
Defendant’s Motion, Exhibit 64
Defendant’s Motion, Exhibit 65

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124

Defendant’s Motion, Exhibit 66
Defendant’s Motion, Exhibit 67

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Defendant’s Motion, Exhibit 69

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Defendant’s Motion, Exhibit 72

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United States District Court
Northern District of California

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Defendant’s Opposition to
Plaintiff’s Motion for summary
judgment (“Defendant’s Opp.”)

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Defendant’s Opp., Exhibit A
Defendant’s Opp., Exhibit B
Defendant’s Opp., Exhibit E
Defendant’s Opp., Exhibit F
Defendant’s Opp., Decl. of
Todd C. Mowry
Defendant’s Opp., Decl. of
Todd C. Mowry, Exhibit 2
Defendant’s Reply to Plaintiff’s
Motion for Summary Judgment
(“Defendant’s Reply”)
Defendant’s Reply, Decl. of
Michael A. Jacobs, Exhibit 77
Defendant’s Reply, Decl. of
Michael A. Jacobs, Exhibit 78
Defendant’s Reply, Decl. of

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143
166

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166

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166

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166

PHX00000599, PHX00000600,
PHX00000601-04,
PHX00000605, PHX00000606
GRANTED as to 101:10-17
GRANTED as to 2:22-28, 3:122, 4:5-6, 7:8, 8:12-28, 9:1-10,
15-17
GRANTED
DENIED
6:17-24
9:25
DENIED
GRANTED as to
PHX00019323
DENIED
DENIED
DENIED
GRANTED as to 142:17-19;
143:24-144:4
GRANTED
GRANTED as to licensing and
pricing information on p.
PHX00050644
GRANTED as to as to licensing
and pricing information on p.
PHX00050546
GRANTED as to 1, 3: ¶ 4: ¶ 6;
Schedule A

Confidential Business Information.
Confidential Business and Personal
Information.
Confidential Business Agreement.
No Declaration in Support.
Confidential Business Information.
Confidential Personal Information.
No Declaration in Support.
Confidential Personal Information.
No Declaration in Support.
No Declaration in Support.
No Declaration in Support.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.

Confidential Business Information.

Confidential Business Information.

DENIED as to 11: Header C, ¶¶
21-23; 12: ¶¶ 23, 25; 13: ¶ 26;
19: ¶¶ 44-45; 20: ¶ 46; 22: ¶ 53;
23: ¶ 55; 26: ¶ 62, n.95; 28: ¶
69; 30: ¶ 73; 31: Header F, ¶¶
77-78; 32: ¶ 80; 33: ¶¶ 84-85;
40: ¶ 103 n.175, Schedules B, C
DENIED as to 2:12, 17-18;
6:10-15, 20-23; 7:23-24; 8:2-5;
10:5-7; 13:25; 15:2-4; 18:16,
21, 23-25; 21:13-14; 22:9;
25:20-21
DENIED
DENIED
DENIED
GRANTED
DENIED as to 2:19-21; 6:7-8

Relevant Pages Not Included in
Exhibit 72.

DENIED

No Declaration of Support.

GRANTED as to 7:

Confidential Business Information.

DENIED as to 12:7-9
DENIED

No Declaration of Support.
No Declaration of Support.

DENIED

No Declaration of Support.

DENIED

No Declaration of Support.

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No Declaration of Support.

No Declaration of Support.
No Declaration of Support.
No Declaration of Support.
Confidential Customer Agreement.
No Declaration of Support.

Michael A. Jacobs, Exhibit 79

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III.

CONCLUSION
Pursuant to Civil Local Rule 79-5(f)(3), the parties must, within 7 days, file the necessary

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revised versions of the documents listed in the chart above. Defendant may also file, within 7
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days of this Order, unredacted versions of Exhibits 2 and 72 to Defendant’s Motion for Summary
Judgment that include all relevant pages to which Defendant’s motion to seal refers.

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IT IS SO ORDERED.
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Dated: 12/6/2016
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______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

United States District Court
Northern District of California

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