Waymo LLC v. Uber Technologies, Inc. et al

Filing 707

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part #515 Administrative Motion to File Under Seal; granting in part and denying in part #526 Administrative Motion to File Under Seal; granting in part and denying in part #529 Motion to Strike. (ahm, COURT STAFF) (Filed on 6/23/2017)

Case 3:17-cv-00939-WHA Document 707 Filed 06/23/17 Page 1 of 5

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No.17-cv-00939-WHA (JSC)

v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.

ORDER GRANTING IN PART AND
DENYING IN PART
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL ACQUISITION
DOCUMENTS
Re: Dkt. No. 515, 526, 529

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This Order addresses the parties’ motions filed in connection with Defendant Uber’s

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motion to file under seal acquisition documents pursuant to the Court’s May 25, 2017 oral order.

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(Dkt. No. 515.) After carefully considering the parties’ submissions, the motions are GRANTED

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in part and DENIED in part for the reasons set forth below.

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DISCUSSION

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There is a presumption of public access to judicial records and documents. Nixon v.

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Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “It is well-established that the fruits of pre-

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trial discovery are, in the absence of a court order to the contrary, presumptively public. [Federal

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Rule of Civil Procedure] 26(c) authorizes a district court to override this presumption where ‘good

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cause’ is shown.” San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir.

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1999). Sealing is appropriate only where the requesting party “establishes that the document, or

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portions thereof is privileged or protectable as a trade secret or otherwise entitled to protection

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under the law.” N.D. Cal. Civ. L.R. 79–5(a). A party must “narrowly tailor” its request to

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sealable material only. Id.

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Case 3:17-cv-00939-WHA Document 707 Filed 06/23/17 Page 2 of 5

Uber seeks to seal, in their entirety, twelve documents connected to its acquisition of

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Ottomotto:

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1. Agreement and Plan of Merger (Ottomotto) (Dkt. No. 515-3)

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2. Exhibits to Agreement and Plan of Merger (Ottomotto) (Dkt. No. 515-4)

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3. Indemnification Agreement (Dkt. No. 515-5)

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4. Exhibit A to Indemnification Agreements (Dkt. No. 515-6)

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5. Exhibit B to Indemnification Agreements (Dkt. No. 515-7)

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6. Agreement and Plan of Merger (Otto Trucking) (Dkt. No. 515-8)

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7. Exhibits to Agreement and Plan of Merger (Otto Trucking) (Dkt. No. 515-9)
8. Company Disclosure Schedules (Otto Trucking) (Dkt. No. 515-10)

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United States District Court
Northern District of California

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9. Company Disclosure Schedules (Ottomotto) (Dkt. No. 515-11)

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10. Agreement and Plan of Merger (Ottomotto) (Dkt. No. 515-12)

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11. Agreement and Plan of Merger (Otto Trucking) (Dkt. No. 515-13)

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12. Draft Term Sheet (Dkt. No. 515-14)

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Uber argues that the documents listed above contain “highly confidential business information”

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that “could be used by competitors to Uber’s detriment, including in the context of negotiating

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business deals.” (Dkt. No. 515 at 2.1) In addition, Uber argues that its “competitive standing

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could be significantly harmed” if the Court made the Draft Term Sheet public, because the

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document discusses market strategy information and proprietary designs for Uber’s custom

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LiDAR system. (Id. at 3.)

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Plaintiff Waymo opposes Uber’s motion, arguing Uber’s “contention in their Motion that

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the Acquisition Documents should be sealed in their entirety is not consistent with the manner in

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which [Uber] designated these same documents in their production to Waymo.” (Dkt. No. 526-3.)

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Waymo seeks to file under seal portions of its Opposition because Uber has designated such

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portions as confidential. (Dkt. No. 526.) Uber filed a Declaration in Support of Waymo’s motion

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to seal its Opposition, arguing that portions of the Opposition contain “highly confidential

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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Case 3:17-cv-00939-WHA Document 707 Filed 06/23/17 Page 3 of 5

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sensitive business information” that could be used by Uber’s competitors to its detriment, as well

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as proprietary designs and market strategy information. (Dkt. No. 555 at 2-3.)

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Uber also filed a Motion to Strike Waymo’s Opposition, arguing that Waymo’s Opposition
violates procedural rules in the Protective Order in effect for this case. (Dkt. No. 529 at 2.)
1. Uber’s Acquisition Documents

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A. The Draft Term Sheet (Dkt. No. 515-14)

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As explained in the Court’s order granting in part and denying in part the parties’ previous

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motions to seal (Dkt. No. 550), at a minimum, the Court will not seal the portions of the Draft

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Term Sheet that Uber did not seek to seal in connection with Waymo’s Reply Brief. (Dkt. No.
488-1.) To the extent Uber seeks to seal these portions in its Draft Term Sheet, the motion is

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United States District Court
Northern District of California

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DENIED. In addition, Exhibit C to the Draft Term Sheet is squarely relevant to the issues

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presently before the Court and Uber has not demonstrated good cause to seal the Exhibit. This

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information does not reveal Uber’s confidential corporate structure, is not marketing strategy, and

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is not technical.

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Accordingly, the Court:

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i. DENIES sealing of any portion of the Draft Term Sheet which Uber previously publicly

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filed (Dkt. No. 488-1);

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ii. DENIES sealing of the paragraph starting with “The exercise of the Put . . .” in the

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“Put/Call Closing Conditions” section. (Dkt. No. 515-14 at 4);

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iii. DENIES sealing of Exhibit C to the Term Sheet and its Attachments except for the

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following which may be sealed: (1) the indented paragraph beginning with “If the Closing

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occurs . . . .” (Id. at 51); (2) the timing referenced in the last paragraph on the same page;

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iv. GRANTS sealing of the remainder of the Draft Term Sheet.

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B. The Indemnification Agreement (Dkt. Nos. 515-5, 515-6, 515-7)

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In accordance with the Court’s previous orders (Dkt. Nos. 550 and 653), the Court

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DENIES sealing of the indemnification agreement and its exhibits, except for the following, which

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may be sealed:

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i. The timing terms in section 2.3(a) (Dkt. No. 515-5 at 9);
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ii. The financial terms in section 2.5(a)-(b) (Id. at 9-10);

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iii. Mr. Levandowski’s personal contact information (Id. at 13);

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iv. Mr. Ron’s personal contact information (Id. at 14.)

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C. Other Acquisition Documents

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The Court GRANTS Uber’s motion to seal the remainder of the acquisition documents,

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with the following exceptions:

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i. The Uber/Otto Merger Agreement (Dkt. No. 515-3): Uber may file under seal the

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portions highlighted in Exhibit B to the declaration of Jeff Nardinelli in support of

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Waymo’s Opposition to Defendants’ Administrative Motion to File Documents under Seal
(Dkt. No. 526-7), except for the portions challenged by Waymo’s Opposition. (Dkt. No.

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United States District Court
Northern District of California

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526-3 at 3.)

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ii. Exhibits to the Merger Agreement (Dkt. No. 515-4): Uber may file under seal the

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portions highlighted in Exhibit C to the declaration of Jeff Nardinelli in support of

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Waymo’s Opposition to Defendants’ Administrative Motions to File under Seal (Dkt. No.

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526-8), except for the portions challenged by Waymo’s Opposition. (Dkt. No. 526-3 at 3.)

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2. Waymo’s Motion to Seal its Opposition
The Court DENIES Waymo’s motion to seal the highlighted portions of its Opposition

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(Dkt. No. 526-3 at 2-3). The Court GRANTS Waymo’s motion to seal Exhibits A-C to the

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Nardinelli Declaration in Support of the Opposition (Dkt. Nos. 526-6, 526-7, 526-8), except for

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the portions challenged by Waymo’s Opposition. (As explained in Dkt. No. 526-3 at 2-3.)

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3. Uber’s Motion to Strike
Uber argues that Waymo’s Opposition violates the Patent Local Rule 2-2 Interim Model

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Protective Order in effect in this case (“Protective Order”) (Dkt. No. 60), which requires Waymo

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to “provide written notice of each designation it is challenging” and “attempt to resolve each

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challenge in good faith.” However, parties have just four days to oppose an administrative motion

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to file under seal. Civil L.R. 7-11(b). A party cannot seek judicial intervention regarding a

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Protective Order challenge until 14 days after the meet-and-confer process has stalled; Uber’s

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position would negate the local rule.
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Case 3:17-cv-00939-WHA Document 707 Filed 06/23/17 Page 5 of 5

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Accordingly, the Court DENIES Uber’s Motion to Strike Waymo’s Opposition to

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Defendants’ Administrative Motion to File under Seal Acquisition Documents. (Dkt. No. 529.)

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CONCLUSION

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For the reasons stated above, the parties’ administrative motions to file under seal are

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GRANTED in part and DENIED in part. The parties shall file public versions of their briefs and

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exhibits consistent with this Order by no later than June 30th, 2017. See N.D. Cal. Civ. L.R. 79-

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5(f)(3).

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This Order disposes of Docket Nos. 515, 526 and 529.

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IT IS SO ORDERED.

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Dated: June 23, 2017

United States District Court
Northern District of California

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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