Creative Mobile Technologies, LLC v. Flywheel Software, Inc.

Filing 8

ORDER by Judge Magistrate Sallie Kim granting in part and denying in part 4 Plaintiff's Administrative Motion to File Under Seal. (sklc2S, COURT STAFF) (Filed on 5/19/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CREATIVE MOBILE TECHNOLOGIES,
LLC,
Plaintiff,

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v.

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FLYWHEEL SOFTWARE, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-02560-SK
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
Regarding Docket No. 4

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Plaintiff CREATIVE MOBILE TECHNOLOGIES, LLC moves to file portions of the text

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of the Complaint and Exhibit A in its entirety under seal. (Dkt. 4.) The Court GRANTS in part

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and DENIES in part the motion.

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A.

LEGAL STANDARD
A party seeking to seal a document filed with the court must (1) comply with Civil Local

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Rule 79-5; and (2) rebut “a strong presumption in favor of access” that applies to all documents

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other than grand jury transcripts or pre-indictment warrant materials. Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citation and quotations

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omitted).

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Local Rule 79-5 requires, as a threshold, that the request: (1) “establishes that the

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document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to

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protection under the law” and (2) is “narrowly tailored to seek sealing only of sealable material.”

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Civ. L.R. 79-5(b). An administrative motion to seal must also fulfill the requirements of Civil

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Local Rule 79-5(d). “Reference to a stipulation or protective order that allows a party to designate

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certain documents as confidential is not sufficient to establish that a document, or portions thereof,

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are sealable.” Civil L.R. 79-5(d)(1)(A).
The showing required for overcoming the strong presumption of access depends on the

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type of motion to which the document is attached. “[A] ‘compelling reasons’ standard applies to

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most judicial records. This standard derives from the common law right to ‘inspect and copy

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public records and documents, including judicial records and documents.’” Pintos v. Pacific

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Creditors Association, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Nixon v. Warner

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Communications, Inc., 435 U.S. 589, 597 n.7 (1978)). To overcome this strong presumption, the

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party seeking to seal a judicial record 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.” Kamakana, 447 F.3d at 1178-79 (internal citations omitted).
Records attached to motions that are only “tangentially related to the merits of the case”

United States District Court
Northern District of California

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are not subject to the strong presumption of access.” Center for Auto Safety v. Chrysler Group

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LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). Instead, a party need only make a showing under the

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good cause standard of Rule 26(c) to justify the sealing of the materials. Id. at 1097. A court

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may, for good cause, keep documents confidential “to protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). Thereafter, a

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district court must “articulate [the]…reasoning or findings underlying its decision to seal.” Apple

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Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011).

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B.

DISCUSSION

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Plaintiff seeks to file under seal Exhibit A, the entire contract between itself and Defendant

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Flywheel Software, Inc., as well as those portions of the Complaint that refer to the obligations set

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forth in the contract. The basis of Plaintiff’s motion is that the parties are bound by the

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confidentiality provision found at paragraph 8 of Exhibit A, and Defendant has not consented to

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the disclosure of the terms of the agreement. (Dkt. 4-1, ¶¶ 3 and 4.)

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As noted above, a stipulation, or in this case, a contract term, is insufficient to render a

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document confidential. This basis for Plaintiff’s request alone is insufficient to seal Exhibit A.

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However, given that the Defendant has not yet appeared and that Defendant may argue that the

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terms of Exhibit A contain trade secret information, this Court is willing for present purposes of
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this filing, to permit the redaction of portions of Exhibit A and the Complaint in an effort to more

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“narrowly tailor” the sealing of those portions of the Exhibit A which arguably, although not

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definitively, may be considered protected trade secret. The Court will revisit this issue in the

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future at which time sealing may be refused. This information includes the following:

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Complaint (Dkt. 1): at page 7: lines 6-7; and page 9: line 25;

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Exhibit A (Dkt. 4-6), numbered paragraphs 1, 2, 3, 6, 7, 9, 10.

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C.

CONCLUSION
The Court grants in part and denies in part Plaintiff’s administrative motion to file under

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seal, as described immediately above. The Plaintiff shall file a redacted version of the Complaint

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and Exhibit A which comports with this order within 7 days, as required by Civil Local Rule 79-

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United States District Court
Northern District of California

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5(f)(3).

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IT IS SO ORDERED.
Dated: May 19, 2016
______________________________________
SALLIE KIM
United States Magistrate Judge

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