GoPro Hong Kong Ltd. v. 2B Trading, Inc. et al

Filing 56

ORDER re 17 , 19 , 28 Administrative Motions to File Under Seal. Signed by Judge James Donato on 2/27/2017. (jdlc1S, COURT STAFF) (Filed on 2/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GOPRO HONG KONG LTD.,
Petitioner,

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Re: Dkt. Nos. 17, 19, 28
2B TRADING, INC. and UNITED WORLD
BRANDS,

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United States District Court
Northern District of California

ORDER RE MOTIONS TO SEAL

v.

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Case No. 16-cv-05113-JD

Respondents.

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On September 6, 2016, Petitioner GoPro Hong Kong Ltd. filed a petition to confirm a

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Final Arbitration Award and for entry of judgment against respondents 2B Trading, Inc. and

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United World Brands. Dkt. No. 1. The Court confirmed the final award and entered judgment

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against 2B Trading and United World Brands on December 9, 2016 and January 31, 2017,

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respectively. Dkt. Nos. 42, 43, 53, 54. In the course of this litigation, GoPro filed three

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administrative motions to seal portions of its Final Arbitration Award, International Distribution

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Agreement and First Amendment to the International Distribution Agreement, and the Petition to

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Vacate the Arbitration Award filed by 2B Trading in Florida state court, under Civil Local Rule

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79-5. Dkt. Nos. 17, 19, 28. The Court grants the requests in their entirety.

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I.

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STANDARDS
In our circuit, a party seeking to seal documents filed in connection with a dispositive

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motion must establish “compelling reasons” to overcome a historically “strong presumption of

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access to judicial records.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79

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(9th Cir. 2006) (internal quotations omitted). This standard presents a “high threshold,” and “a

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‘good cause’ showing will not, without more, satisfy” it. Id. at 1180 (citations omitted). To meet

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the “compelling reasons” standard, a party seeking to seal material must show specific,

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individualized reasons for the sealing, “‘without relying on hypothesis or conjecture,’” such as

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“‘whether disclosure of the material could result in improper use of the material for scandalous or

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libelous purposes or infringement upon trade secrets.’” See Pintos v. Pacific Creditors Ass’n, 605

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F.3d 665, 679, 679 n.6 (9th Cir. 2009) (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th

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Cir. 1995)). The Ninth Circuit has found the compelling reasons standard met by “pricing terms,

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royalty rates, and guaranteed minimum payment terms” in a license agreement, as these are trade

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secrets used in the party’s business, conferring an opportunity to obtain advantage over

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competitors who do not know or use them. In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir.

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2008). However, “[s]imply mentioning a general category of privilege, without any further
elaboration or any specific linkage with the documents, does not satisfy the burden.” Kamakana,

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United States District Court
Northern District of California

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447 F.3d at 1184. Although GoPro’s motion to seal portions of the Final Award was initially filed

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in connection with an opposition to 2B Trading’s motion to dismiss, the Final Award was used in

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dispositive motions. Dkt. Nos. 17, 19, 20, 49. The motion to seal the Petition to Vacate the

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Arbitration Award, while filed in connection with a motion to strike, similarly seeks to seal

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language from the Final Award. Dkt. Nos. 27, 28. The International Distribution Agreement and

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First Amendment were filed with motions to confirm the Final Award. Dkt. Nos. 19, 20, 49.

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Consequently, GoPro does not dispute that the “compelling reasons” standard applies.
Under Civil Local Rule 79-5(b), a sealing request must also “be narrowly tailored to seek

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sealing only of sealable material,” and “establish[ ] that the document, or portions thereof, are

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

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ordering sealing, the district court must “articulate the rationale underlying its decision to seal.”

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

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II.

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This table summarizes GoPro’s administrative motions to seal:
Motion
(Dkt.
Documents Sought to be Sealed
No.)
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The Final Award
Exhibit A to the Declaration Of Melissa J. Baily In Support Of GoPro’s
Opposition To Respondents’ Motion To Dismiss (Dkt. No. 18-2)

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DETERMINATIONS

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Declarations
in Support
(Dkt. No.)
17-1, 17-2

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Motion
(Dkt.
No.)
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Documents Sought to be Sealed
International Distribution Agreement and First Amendment
Exhibit A to the Declaration Of Melissa J. Baily In Support Of GoPro’s
Motion To Confirm Final Award (Dkt. No. 20-2)
The Final Award
Exhibit B to the Declaration Of Melissa J. Baily In Support Of GoPro’s
Motion to Confirm Final Award (Dkt. No. 20-3)
Petition To Vacate Arbitration Award
Exhibit C to the Declaration Of Melissa J. Baily In Support Of GoPro’s
Motion To Strike (the petition quotes the Final Award that is the subject
of Dkt. No. 117) (Dkt. No. 27-4)

Declarations
in Support
(Dkt. No.)
19-1, 19-2

17-1, 17-2

17-1, 17-2

Overall, the motions to seal seek to protect confidential business information related to
GoPro’s distribution channels and practices. Outside of this litigation, GoPro requires its

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United States District Court
Northern District of California

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distributors to keep all terms of their distributorship agreements with GoPro confidential. Dkt.

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No. 17-1 (Walker Decl.) ¶ 4. Nonetheless, GoPro carefully followed the local rules to ensure each

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request was narrowly tailored. The Court grants each motion in its entirety.
Dkt. No. Reason For Request To File Under Seal
Ruling
(to be
sealed)
18-2
The Final Award: portions of paragraphs 144-148, Granted. The number of
151, and 180 and footnotes 24, 25, and 32.
unauthorized sales and the
geographic distributions of
registrations that GoPro
The information in these paragraphs and footnotes
considers indicative of gray
relates to GoPro, Inc.’s “secret shopper program,”
customer registration data, distributor supply levels, marketing constitute trade
secret details. See In re Elec.
and other details relevant to brand protection and
Arts, Inc., 298 F. App’x at 569.
channel governance. Certain portions of these
paragraphs (mostly unit numbers, dollar figures, and The request is narrowly tailored
to seal only phrases and
percentages) must be kept confidential in order for
specific numbers of the 75-page
GoPro, Inc. to effectively administer its brand
Final Award.
protection and channel governance programs and
protocols.
18-2
The Final Award: portions of paragraphs 68(c)-(e), Granted. The sealed portions
94, 98, and 163 and footnotes 15 and 16.
represent sensitive distribution
agreement terms, including
The information in these paragraphs and footnotes
minimum purchase
relates to certain terms of a contract negotiated
requirements, minimum volume
between GoPro Hong Kong Ltd. and its former
targets, pricing and payment
distributors for Colombia. GoPro actively protects
terms, reporting requirements,
the confidentiality of the terms of its distributorship marketing expenditure
agreements (including by requiring its distributors to requirements, and liability
keep those terms confidential), and those terms must exclusions. See Ovonic Battery

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Dkt. No. Reason For Request To File Under Seal
(to be
sealed)
be kept confidential in order for the GoPro entities
to effectively administer their distribution network.

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20-2

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First Amendment To International Distribution
Agreement: portions of paragraphs 2, 3, 5, and 6
and Exhibit B

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United States District Court
Northern District of California

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20-3

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International Distribution Agreement: portions of
paragraphs 1, 3(a)-(d), 4(a)-(b), 5, 6(b), 6(d), 6(e),
7(a)-(c), 9(a)-(b), 10(b)-(d), 11(a), 11(b), 11(d), 12,
13, and Exhibit B.

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The GoPro entities actively protect the
confidentiality of all of the terms of distributorship
agreements (including by requiring distributors to
keep those terms confidential). The disclosure of
the subset of terms enumerated here would affect the
ability of the GoPro entities to effectively administer
their distribution network and would place those
entities at a competitive disadvantage in negotiating
with distributors and customers going forward.
The Final Award: Exhibit B to the Declaration Of
Melissa J. Baily In Support Of GoPro’s Motion to
Confirm Final Award
Same as Final Award in Dkt. No. 18-2
Petition To Vacate Arbitration Award: The
portions of page 17, quoting paragraph 180 of the
Final Award.
Same as Final Award in Dkt. No. 18-2

Ruling

Co. v. Sanyo Electric Co., Ltd.,
No. 14-cv-01637-JD, 2014 WL
2758756, at *3 (N.D. Cal. Jun.
17, 2014). The request is
narrowly tailored to specific
terms that would place GoPro
at a competitive disadvantage if
made public.
Granted. The request is
narrowly tailored to include
only sensitive, confidential
business information including
pricing, forecasts, distributor
obligations, marketing
expenditures, termination and
post-termination rights and
obligations, and liability. See
Ovonic Battery Co., 2014 WL
2758756, at *4.

Granted for the reasons in Dkt.
No. 18-2 above.

Granted for the reasons in Dkt.
No. 18-2 above.

IT IS SO ORDERED.
Dated: February 27, 2017

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JAMES DONATO
United States District Judge

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