Brickman v. Fitbit, Inc.

Filing 182

ORDER RE ADMINISTRATIVE MOTIONS TO SEAL. Signed by Judge James Donato on 8/4/2017. (jdlc3S, COURT STAFF) (Filed on 8/4/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES P BRICKMAN, et al., Plaintiffs, 8 Re: Dkt. No. 159, 165, 167, 174. FITBIT, INC., Defendant. 11 United States District Court Northern District of California ORDER RE ADMINISTRATIVE MOTIONS TO SEAL v. 9 10 Case No. 3:15-cv-02077-JD 12 13 This order resolves pending administrative motions to file documents under seal. Of the 14 pending motions, the ones at Dkt. Nos. 119, 121, 128, 129, 131, 133, 139, 145, and 152 are moot 15 in light of the Court’s prior order at Dkt. No. 146 and the parties’ joint omnibus motion at Dkt. 16 No. 159. In this order, the Court rules on the motions at Dkt. Nos. 159, 165, 167, and 174. 17 I. 18 GOVERNING STANDARDS In our circuit, in evaluating a motion to seal, two different standards apply depending on 19 whether the request is being made in connection with a dispositive motion or a non-dispositive 20 motion. 21 For dispositive motions, the historic, “strong presumption of access to judicial records” 22 fully applies, and a party seeking sealing must establish “compelling reasons” to overcome that 23 presumption. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 24 2006) (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). 25 This standard presents a “high threshold,” and “a ‘good cause’ showing will not, without more, 26 satisfy” it. Id. at 1180 (citations omitted). When ordering sealing in this context, the district 27 court must also “articulate the rationale underlying its decision to seal.” Apple Inc. v. Psystar 28 Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). 1 The non-dispositive motion context is different. There, “the usual presumption of the 2 public’s right of access is rebutted,” the “public has less of a need for access to court records 3 attached only to non-dispositive motions,” and the “public policies that support the right of 4 access to dispositive motions, and related materials, do not apply with equal force to non- 5 dispositive materials.” Kamakana, 447 F.3d at 1179-80 (citations omitted). Therefore, in that 6 context, materials may be sealed so long as the party seeking sealing makes a “particularized 7 showing” under the “good cause” standard of Federal Rule of Civil Procedure 26(c). Id. at 1180 8 (quoting Foltz, 331 F.3d at 1138). In either case, however, “[a]n unsupported assertion of ‘unfair 9 advantage’ to competitors without explaining ‘how a competitor would use th[e] information to obtain an unfair advantage’ is insufficient.” Hodges v. Apple, Inc., No. 13-cv-01128-WHO, 2013 11 United States District Court Northern District of California 10 WL 6070408, at *2 (N.D. Cal. Nov. 18, 2013) (quoting Dunbar v. Google, Inc., No. 5:12-cv- 12 003305-LHK, 2012 WL 6202719, at *4-5 (N.D. Cal. Nov. 18, 2013)). In our district, in addition to meeting the applicable standard under Kamakana, all parties 13 14 requesting sealing must also comply with Civil Local Rule 79-5, including that rule’s 15 requirement that the request must “establish[] that the document, or portions thereof, are 16 privileged, protectable as a trade secret or otherwise entitled to protection under the law,” i.e., is 17 “sealable.” Civil L.R. 79-5(b). The sealing request must also “be narrowly tailored to seek 18 sealing only of sealable material.” Id. 19 II. DISCUSSION 20 A. 21 The documents sought to be sealed in Dkt. No. 159 were filed in connection with a motion Documents Sought to be Sealed in Dkt. No. 159 22 for class certification, so the Court applies the “good cause” standard. Ochoa v. McDonald’s 23 Corp., No. 14-cv-02098-JD, 2015 WL 3545921, at *1 (N.D. Cal. June 5, 2015). Applying this 24 standard, the Court rules on the requests to seal as follows. In each case where a request is denied, 25 personally identifiable information of individuals may be redacted. 26 27 28 2 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Portion of Fitbit’s Reason for Sealing Document Sealed Documents relating to Plaintiffs’ Motion for Class Certification 119-3 Brief in Support of These portions of the brief Motion for Class identify and describe other Certification: exhibits that Fitbit has pages and lines requested to file under seal. 3:15-18, 22-28; Dkt. No. 159-1 (“Lee Decl. I”) 5:6-7; 11-13, 16¶ 16. 28; 6:1-2, 8-12, 18-24; 7:3-13, 1728; 8:1-23; FN3; 22:4-5. 119-5 Declaration of These portions of the Patrick J. Perotti: declaration identify and pages and lines describe other exhibits that 2:12-15, 22-27; Fitbit has requested to file 3:1-9, 13-27; 4:1under seal. Lee Decl. I ¶ 15. 2, 10-13. 119-8 Exhibit 2 to Perotti This internal document details Declaration: entire the results of confidential and document. proprietary market research, Fitbit’s development and understanding of the Fitbit consumer demographic, analysis of industry competitors, and a comparison of device functionality as it relates to consumer interests. Its disclosure could cause Fitbit competitive harm, have a chilling effect on internal business discussions, and prevent Fitbit from discussing and responding to the needs of its customers. Lee Decl. I ¶¶ 12-13. 119-9 Exhibit 3 to Perotti The excerpted deposition Declaration: entire testimony discusses proprietary document. business, engineering, and technical information relating to the development and implementation of Fitbit’s sleep-tracking technology. Publication of the information could disadvantage Fitbit’s ability to compete and would give competitors access to free Dkt. No. 3 Granted/Denied Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these portions of the brief. Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these portions of the declaration. Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these “Talking Points” and “FAQs.” Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). Granted in part. Pages 118121 may be sealed because Fitbit has shown a concrete likelihood of competitive harm that could be caused by their disclosure. The request to seal the remainder of the deposition testimony is denied because Fitbit has not shown any concrete likelihood of competitive or other harm that 1 Dkt. No. Portion of Document Sealed 2 3 119-10 Exhibit 4 to Perotti Declaration: entire document. 119-11 Exhibit 5 to Perotti Declaration: entire document. 119-12 Exhibit 6 to Perotti Declaration: entire document. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fitbit’s Reason for Sealing Granted/Denied research and development. Lee Decl. I ¶¶ 4-6. The excerpted deposition testimony discusses proprietary business, engineering, and technical information relating to the development and implementation of Fitbit’s sleep-tracking technology. Publication of the information could disadvantage Fitbit’s ability to compete and would give competitors access to free research and development. Lee Decl. I ¶¶ 4-6. These internal documents detail the results of confidential and proprietary market research, Fitbit’s development and understanding of the Fitbit consumer demographic, analysis of industry competitors, and a comparison of device functionality as it relates to consumer interests. Their disclosure could cause Fitbit competitive harm, have a chilling effect on internal business discussions, and prevent Fitbit from discussing and responding to the needs of its customers. Lee Decl. I ¶¶ 12-13. This graphic details the results of confidential and proprietary market research, Fitbit’s development and understanding of the Fitbit consumer demographic, analysis of industry competitors, and a comparison of device functionality as it relates to consumer interests. Its disclosure could cause Fitbit competitive harm. Lee Decl. I ¶¶ 12-13. could be caused by its disclosure. Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of the excerpted deposition testimony. Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). 4 Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these internal documents. Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of this graphic. 1 Dkt. No. 2 119-13 3 Portion of Document Sealed Exhibit 7 to Perotti Declaration: entire document. 4 5 6 7 8 9 119-15 Exhibit 9 to Perotti Declaration: entire document. 119-16 Exhibit 10 to Perotti Declaration: entire document. 119-17 Exhibit 11 to Perotti Declaration: entire document. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fitbit’s Reason for Sealing Granted/Denied These marketing materials detail the results of confidential and proprietary market research, Fitbit’s development and understanding of the Fitbit consumer demographic, analysis of industry competitors, and a comparison of device functionality as it relates to consumer interests. Their disclosure could cause Fitbit competitive harm. Lee Decl. I ¶¶ 12-13. These internal emails between Fitbit employees reflect sensitive internal business discussions, confidential engineering strategy, and proprietary details about Fitbit technology. Disclosure of the emails could chill internal business discussions, and allow competitors to develop marketing strategies specifically aimed at undercutting Fitbit’s market share. Lee Decl. I ¶¶ 9-11. These emails between Fitbit employees and third parties reflect sensitive business discussions, confidential engineering strategy, and proprietary details about Fitbit technology. Disclosure of the emails could chill internal business discussions, and allow competitors to develop marketing strategies specifically aimed at undercutting Fitbit’s market share. Lee Decl. I ¶¶ 9-11. These emails between Fitbit employees and third parties reflect sensitive business discussions, confidential engineering strategy, and Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these marketing materials. Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” See Civil L.R. 795(b). 5 Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these emails. Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these emails. Additionally, this request is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). Denied. Fitbit has not shown a concrete likelihood of competitive or other harm that could be caused by disclosure of these emails. Additionally, 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dkt. No. Portion of Document Sealed Fitbit’s Reason for Sealing Granted/Denied proprietary details about Fitbit this request is not “narrowly technology. Disclosure of the tailored to seek sealing only of emails could chill internal sealable material.” Civil L.R. business discussions, and allow 79-5(b). competitors to develop marketing strategies specifically aimed at undercutting Fitbit’s market share. Lee Decl. I ¶¶ 9-11. 119-18 Exhibit 12 to These emails detail the results Denied. Fitbit has not shown a Perotti of confidential and proprietary concrete likelihood of Declaration: entire market research, Fitbit’s competitive or other harm that document. development and understanding could be caused by disclosure of the Fitbit consumer of these emails. Additionally, demographic, analysis of this request is not “narrowly industry competitors, and a tailored to seek sealing only of comparison of device sealable material.” Civil L.R. functionality as it relates to 79-5(b). consumer interests. Their disclosure could cause Fitbit competitive harm, have a chilling effect on internal business discussions, and prevent Fitbit from discussing and responding to the needs of its customers. Lee Decl. I ¶¶ 12-13. 119-21 Exhibit 15 to These internal emails reflect Denied. Fitbit has not shown Perotti sensitive business discussions, any concrete likelihood of Declaration: entire confidential engineering competitive or other harm that document. strategy, and proprietary details could be caused by disclosure about Fitbit technology. Their of this email. Additionally, disclosure could chill internal this request is not “narrowly business discussions, and allow tailored to seek sealing only of competitors to develop sealable material.” Civil L.R. marketing strategies 79-5(b). specifically aimed at undercutting Fitbit’s market share. Lee Decl. I ¶¶ 9-11. Documents relating to Fitbit’s Opposition to the Class Certification Motion 122 Brief in These portions of the brief Granted. Each requested Opposition to contain information drawn from portion is sealable either for Class sealable portions of exhibits privacy reasons or because Certification: and documents filed in Fitbit has established a pages and lines connection with the brief, and concrete likelihood of 1:23; 2:1; 3:8-12; should be sealed for the same competitive or other harm from 6 1 Dkt. No. 2 3 4 5 122-1 6 7 8 9 10 122-2 United States District Court Northern District of California 11 12 13 122-3 14 15 16 122-4 17 18 19 20 21 22 23 122-8 24 25 Portion of Document Sealed 6:13-19; FN7; 7:18, 12-15; 18-23; FN8; 8:1-15, 2023; FN9; 9:3; 13:7-10; 21:4; FN22. Declaration of Conor Heneghan: pages and lines 1:26; 2:2, 4, 6, 8-9, 11, 13, 15-24, 2728; 3:1-3, 5-7, 13, 16, 18, 20, 22-27; 4:1-2, 4, 6, 8-13, 16-17, 20-22, 25. Exhibit Y to the Heneghan Declaration: entire document. Fitbit’s Reason for Sealing Granted/Denied reasons as those exhibits and documents. Lee Decl. I ¶ 30. its disclosure. These portions of the declaration contain, discuss, or reflect plaintiffs’ personal sleep tracking data recorded using their Fitbit devices. Lee Decl. I ¶ 30. Granted for privacy reasons. This spreadsheet contains plaintiffs’ personal sleep tracking data recorded using their Fitbit devices. Lee Decl. I ¶ 30. Exhibit Z to the This spreadsheet contains Heneghan plaintiffs’ personal sleep Declaration: entire tracking data recorded using document. their Fitbit devices. Lee Decl. I ¶ 30. Declaration of These portions of the Yuen Sheltuen Yuen: Declaration reflect business pages and lines strategy, internal policies, 2:11-13, 24-28; procedures, and processes 3:1-18. related to product and technology research, design, development, and market analysis, which could be used by Fitbit’s competitors to Fitbit’s disadvantage. Lee Decl. I ¶ 20. Exhibit 1 to the These portions of the Grandner Declaration of Report reference specific tests, William Stern: ¶ internal validations, and 39; ¶¶ 41-47; ¶¶ analyses performed relating to 49-52; ¶ 60. Fitbit’s devices and competing devices. Lee Decl. I ¶ 19. Granted for privacy reasons. 26 27 28 122-10 Exhibit 3 to the Declaration of William Stern: Granted for privacy reasons. Denied. Fitbit has not shown any concrete likelihood of competitive or other harm that could be caused by disclosure of these portions of the declaration. Granted. Fitbit and Dr. Grandner have shown a concrete likelihood of competitive or other harm that could be caused by the disclosure of these portions of the report. Some portions of the Ugone Granted. Each requested Report contain statistics and portion is sealable either for sensitive information relating to privacy reasons or because 7 Portion of Document Sealed FN32; ¶¶ 37-39; FN97; FN98; ¶ 56; ¶ 58(b); FN 136; ¶ 64; FN153; FN154; Exh. 5. Fitbit’s Reason for Sealing Exhibit 1 to the Perotti The excerpted deposition testimony reflects Fitbit’s 1 Dkt. No. 2 26 consumer purchase habits and Fitbit has established a preferences, and reflect Fitbit’s concrete likelihood of internal policies, procedures, competitive or other harm from and processes related to market its disclosure. research and analysis. Lee Decl. I ¶ 18. Others contain, discuss, or reflect plaintiffs’ personal sleep tracking data recorded using their Fitbit devices. Id. ¶ 30. Documents relating to Plaintiffs’ Reply re: Motion for Class Certification 131-3 Reply in support The brief contains confidential Denied. Fitbit has not shown of Class information regarding Fitbit’s any concrete likelihood of Certification: research and development competitive or other harm that pages and lines relating to its sleep-tracking could be caused by disclosure 1:8-9, 20; 2:7-8; technology. Lee Decl. I ¶ 36. of these portions of the brief. 3:7; 5:2-4. 131-8 Exhibit 2 to the The excerpted deposition Denied. Fitbit has not shown Perotti testimony contains confidential any concrete likelihood of Declaration: entire information regarding Fitbit’s competitive or other harm that document. research and development could be caused by disclosure relating to its sleep-tracking of the excerpted deposition technology. Lee Decl. I ¶ 36. testimony. Documents relating to Fitbit’s Motion to Strike the Burke/Rosen Report 123-2 Exhibit 1 to the The Burke and Rosen report N/A. Plaintiffs withdrew the Stern Declaration: contains confidential Burke and Rosen report, portions of pages 1 information regarding Fitbit’s mooting this request. Dkt. No. and 2. internal policies, procedures, 146. and processes related to product and technology research, design, and development, and market analysis. Lee Decl. I ¶ 38. Documents relating to Plaintiffs’ Opposition to the Motion to Strike the Burke/Rosen Report 129-4 Opposition to These portions of the brief N/A. Plaintiffs withdrew the Defendant’s include confidential Burke and Rosen report, Motion to Strike information regarding Fitbit’s mooting this request. Dkt. No. the Burke and research and development 146. Rosen Report: relating to its sleep-tracking pages and lines technology. Lee Decl. I ¶ 41. 1:8, 24-28; 2:1-4; 3:15-17, 23; 8:310. 27 129-7 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 8 Granted/Denied N/A. Plaintiffs withdrew the Burke and Rosen report, 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 Portion of Fitbit’s Reason for Sealing Granted/Denied Document Sealed Declaration: entire business strategy, internal mooting this request. Dkt. No. document. policies, procedures, and 146. processes related to product and technology research, design, development, and market analysis, which could be used by Fitbit’s competitors to Fitbit’s disadvantage. Lee Decl. I ¶ 41. 129-9 Exhibit 3 to the This portion of the rebuttal N/A. Plaintiffs withdrew the Perotti declaration reflects Fitbit’s Burke and Rosen report, Declaration: confidential product mooting this request. Dkt. No. ¶ 11. development information, 146. technology, and contemplated product functionality that is not publicly known, and which could be used by Fitbit’s competitors to Fitbit’s disadvantage. Lee Decl. I ¶ 42. Documents relating to Fitbit’s Reply re: Motion to Strike the Burke/Rosen Report 140 Reply in support These portions of the brief N/A. Plaintiffs withdrew the of Motion to Strike reflect confidential Fitbit Burke and Rosen report, the Burke and product development mooting this request. Dkt. No. Rosen Report: information, technology, and 146. pages and lines contemplated product 2:20; 4:11-18; functionality, as well as 7:23-24; FN8-11; information regarding product 8:1-2. development costs and pricing. Lee Decl. I ¶ 43. Dkt. No. 19 20 21 22 23 24 25 26 27 Documents relating to Notice of Filing of Deposition Testimony of Harvey Rosen 145-4 Exhibit 2 to the These portions of Dr. Rosen’s N/A. Plaintiffs withdrew the Bartela testimony discuss pricing Burke and Rosen report, Declaration: pages sheets, Fitbit’s cost of goods, mooting this request. Dkt. No. and lines 61:17-25; internal research goals and 146. 62:1-4; 63:3-7, 23- development, and the 25; 64:6-25; 65:1- technology underlying the 18; 66:2-8, 16-18; different features available in 70: 10-25; 71:1different Fitbit products. Lee 25; 72:1-25; 73:1- Decl. I ¶ 44. 25; 74:1-25; 75:125; 76:1-25; 77:18. 28 9 1 2 B. Documents Sought to be Sealed in Dkt. Nos. 165, 167, and 174 The documents sought to be sealed in Dkt. Nos. 165, 167, and 174 were filed in connection 3 with a motion for summary judgment, so the “compelling reasons” standard applies. Kamakana, 4 447 F.3d at 1178-80. Applying this standard, the Court rules on the requests to seal as follows. In 5 each case where a request is denied, personally identifiable information of individuals may be 6 redacted. 7 Dkt. No. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Portion of Fitbit’s Reason for Sealing Granted/Denied Document Sealed Documents relating to Plaintiffs’ Brief Opposing Summary Judgment 165-2 Plaintiffs’ These portions of the brief Denied. Fitbit has not shown Opposition to identify and describe other any concrete likelihood of Fitbit’s Motion for exhibits that Fitbit has competitive or other harm that Summary requested to file under seal. could be caused by disclosure Judgment: pages Dkt. No. 168 (“Lee Decl. II”) ¶ of these portions of the brief. and lines 1:10, 25; 15. 2:1-7, 11; 4:13-18, 26-27; 6:22-27; 7:1, 3-6, 8-20, 2527; 8:1-2; 9:11; 13:23; 14:1-6. 165-7 Exhibit 1 to the These internal emails discuss Denied. Fitbit has not shown Perotti proprietary business, any concrete likelihood of Declaration: entire engineering, and technical competitive or other harm that document. information relating to the could be caused by disclosure development of Fitbit’s sleepof these emails. Additionally, tracking technology. They this request is not “narrowly concern highly confidential tailored to seek sealing only of issues relating to sleep tracking, sealable material.” Civil L.R. including how Fitbit developed 79-5(b). the proprietary algorithm used in its devices. Lee Decl. II ¶ 5. 165-11 Exhibit 5 to the The excerpted deposition Denied. Fitbit has not shown Perotti testimony discusses proprietary any concrete likelihood of Declaration: entire business, engineering, and competitive or other harm that document. technical information relating could be caused by disclosure to the development and of the testimony. Additionally, implementation of Fitbit’s this request is not “narrowly sleep-tracking technology, an tailored to seek sealing only of important, proprietary Fitbit sealable material.” Civil L.R. technology. The testimony 79-5(b). concerns highly confidential issues relating to sleep tracking, including Fitbit’s scientific research regarding the sleep10 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dkt. No. Portion of Document Sealed Fitbit’s Reason for Sealing Granted/Denied tracking algorithm, Fitbit’s scientific research supporting its sleep-tracking technology, the procedures for validating the sleep-tracking function, and the pricing of products. Lee Decl. II ¶ 9. 165-12 Exhibit 6 to the These emails discuss Denied. Fitbit has not shown Perotti proprietary business, any concrete likelihood of Declaration: entire engineering, and technical competitive or other harm that document. information relating to the could be caused by disclosure development of Fitbit’s sleepof these emails. Additionally, tracking technology. They this request is not “narrowly concern highly confidential tailored to seek sealing only of issues relating to sleep tracking, sealable material.” Civil L.R. including how Fitbit developed 79-5(b). the proprietary algorithm used in its devices. Lee Decl. II ¶ 5. 165-13 Exhibit 7 to the These emails discuss Denied. Fitbit has not shown Perotti proprietary business, any concrete likelihood of Declaration: entire engineering, and technical competitive or other harm that document. information relating to the could be caused by disclosure development of Fitbit’s sleepof these emails. tracking technology. They concern highly confidential issues relating to sleep tracking, including how Fitbit developed the proprietary algorithm used in its devices. Lee Decl. II ¶ 5. Documents relating to Plaintiffs’ Brief Opposing Motion to Strike the Montgomery-Downs Report 167-1 Plaintiffs’ These portions of the brief Denied. Fitbit has not shown Opposition to identify and describe other any concrete likelihood of Fitbit’s Motion to exhibits that Fitbit has competitive or other harm that Strike: pages and requested to file under seal. could be caused by disclosure lines 11:28; 12:4. Lee Decl. II ¶ 16. of these portions of the brief. Documents relating to Fitbit’s Reply re: Motion for Summary Judgment 176 Fitbit’s Reply These portions of Fitbit’s brief Denied. Fitbit has not shown Memorandum in reflect confidential information any concrete likelihood of Support of Motion regarding Fitbit’s (1) competitive or other harm that for Summary proprietary business, could be caused by disclosure Judgment: pages engineering, development, and of these portions of the brief, and lines 3:1-2, technical information; (2) and plaintiffs’ privacy interests 19-20; FN3; 7:12; proprietary market research, will not be harmed by their 11:14. manufacturing and disclosure. development costs; and (3) confidential user data. Dkt. No. 11 1 2 Dkt. No. Portion of Document Sealed 176-2 Exhibit L to the Declaration of William L. Stern: entire document. 176-3 Exhibit M to the Stern Reply Declaration: pages and lines 26:20-25; 27:1-22; 28:1-4. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 Fitbit’s Reason for Sealing 174-1 (“Lee Decl. III”) ¶¶ 3-9. Dr. Grandner’s deposition transcript includes testimony regarding Fitbit’s proprietary sleep tracking technology, including hardware, software, algorithms, and other technology. It also contains testimony describing specific tests, internal validations, and analyses performed by Fitbit relating to Fitbit’s products. Lee Decl. III ¶¶ 10-13. These portions of Dr. Winter’s deposition transcript discuss his confidential consulting work for third parties. This information is not public and relates to projects concerning confidential product development. Lee Decl. III ¶ 14. Granted/Denied Denied without prejudice. The Court finds that some material in the deposition transcript may be sealable, but that the request to seal the entire document is not “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b). Fitbit may file a supplemental motion to seal portions of the transcript within 7 days of this order. Granted. Fitbit has demonstrated compelling reasons for sealing these portions of the transcript based on the confidential nature of the information and the competitive harm to third parties threatened by its disclosure. 16 17 18 III. CONCLUSION To the extent that an administrative motion to file under seal discussed in this order was 19 denied with respect to a document, the parties should file an unredacted version of the document 20 within 7 days of this order. 21 22 IT IS SO ORDERED. Dated: August 4, 2017 23 24 JAMES DONATO United States District Judge 25 26 27 28 12

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