Optrics Inc v. Barracuda Networks Inc

Filing 306

ORDER by Judge Thomas S. Hixson denying 232 Administrative Motion to File Under Seal; granting in part and denying in part 285 Administrative Motion to File Under Seal; granting in part and denying in part 296 Administrative Motion to File Under Seal. (tshlc2S, COURT STAFF) (Filed on 6/16/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OPTRICS INC,
Plaintiff,

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BARRACUDA NETWORKS INC,

Re: Dkt. Nos. 232, 285, 296

Defendant.

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United States District Court
Northern District of California

ORDER RE: ADMINISTRATIVE
MOTIONS TO FILE UNDER SEAL

v.

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Case No. 17-cv-04977-RS (TSH)

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Before the Court are three motions to file under seal:

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(1) Barracuda’s February 25, 2020 Administrative Motion to File Under Seal documents

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that it filed in connection with its pending Motion for Sanctions (the “Sanctions

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Motion”), ECF No. 232;

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(2) Optrics’ May 21, 2020 Administrative Motion to File Under Seal documents that it

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filed in connection with its Opposition to the Sanctions Motion (the “Opposition”),

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ECF No. 285; and
(3) Barracuda’s June 4, 2020 Administrative Motion to File Under Seal documents that it

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filed in connection with its Reply in support of the Sanctions Motion (the “Reply”),

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ECF No. 296.

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The Court will proceed to discuss each motion in turn.

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A.

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Barracuda’s February 25 Motion
In Barracuda’s first motion to seal, it seeks to file under seal materials that it believes

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Optrics or its non-party e-vendor CloudNine Discovery designated as either “Highly Confidential

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– Attorneys’ Eyes Only” or “Confidential” under the Protective Order in this case.

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Under the Local Rules of this District, where a party seeks to file under seal any material

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designated as confidential by another party or a non-party, “[w]ithin 4 days of the filing of the

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Administrative Motion to File Under Seal, the Designating Party must file a declaration . . .

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establishing that all of the designated information is sealable.” Civ. L.R. 79-5(e)(1). “If the

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Designating Party does not file a responsive declaration as required by subsection 79-5(e)(1) and

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the Administrative Motion to File Under Seal is denied, the Submitting Party may file the

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document in the public record no earlier than 4 days, and no later than 10 days, after the motion is

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denied.” Id. at 79-5(e)(2).
To date, neither Optrics nor CloudNine has filed a responsive declaration to Barracuda’s

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February 25 motion. Accordingly, Barracuda’s first motion to file under seal is DENIED, and
Barracuda is DIRECTED to file in the public record the above-referenced documents no earlier

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United States District Court
Northern District of California

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than June 20 and no later than June 24, 2020.

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B.

Optrics’ May 21 Motion

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In Optrics’ motion to seal, Optrics seeks to file under seal portions of its Opposition and

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the declaration of Bording Ostergaard in support of its Opposition. See ECF No. 285. It asserts

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that the excerpts contain information designated as confidential by Barracuda and that Barracuda

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requested that Optrics file the information under seal. See Decl. of A. Hamill, ECF No. 285-2.

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Barracuda filed a declaration, as required by subsection 79-5(d)(1)(A), asserting the bases for

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sealing most of the portions Optrics seeks to seal. See Karineh Khachatourian Decl., ECF No.

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290. Barracuda does not, however, request sealing of footnote 1 of Optrics’ Opposition. Id.

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For non-dispositive motions such as the Sanctions Motion, only good cause needs to be

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shown for filing a document under seal. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th

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Cir. 2009) (“In light of the weaker public interest in nondispositive materials, we apply the ‘good

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cause’ standard when parties wish to keep them under seal.”). Courts in this district have found

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that good cause exists to seal confidential business information. See, e.g., Oracle USA, Inc. v.

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SAP AG, 2009 U.S. Dist. LEXIS 71365, at *4-5 (N.D. Cal. Aug. 12, 2009) (granting motion to

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seal where moving party “considered and treated the information contained in the subject

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documents as confidential, commercially sensitive and proprietary” and where “public disclosure

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of such information would create a risk of significant competitive injury and particularized harm
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and prejudice”) (citing Phillips v. General Motors Corp., 307 F. 3d 1206, 1211 (9th Cir. 2006)).

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Optrics’ sealing motion for the most part relates to material containing confidential business

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information and the motion is narrowly tailored, and as regards to that material sealing is

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appropriate. However, footnote 1 of the Opposition does not contain confidential business

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information or information that if disclosed would create a risk of harm to either party; the

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substance of that text is factual allegations going to the merits of the trademark dispute between

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the parties. Accordingly, Optrics’ sealing motion is GRANTED in part and DENIED in part.

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Optrics SHALL file a revised redacted version of its Opposition by June 23, 2020, leaving

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unredacted footnote 1 of the Opposition.

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United States District Court
Northern District of California

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C.

Barracuda’s June 4 Motion
Barracuda’s second motion to seal relates to portions of Barracuda’s Reply as well as

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exhibits to the reply declaration of Barracuda’s counsel, Karineh Khachatourian. See ECF No.

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296. Barracuda seeks to file under seal materials that it believes Optrics or third-party j2 Global

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have designated as either “Highly Confidential – Attorneys’ Eyes Only” or “Confidential” under

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the protective order in this case. Decl. of Nikolaus A. Woloszczuk ¶¶ 2, 3, ECF No. 296-1.

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Barracuda has no confidentiality interest in the exhibits or Reply excerpts, nor does it request that

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any of it be sealed.

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Optrics’ counsel filed a declaration stating that Optrics does not support sealing the

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portions of the Reply or the exhibit which Barracuda linked to it. Decl. of Andrew G. Hamill ¶ 3,

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ECF No. 300. j2’s counsel filed a declaration on behalf of j2 stating that j2 is unaware of any

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confidential information in the Reply at the page and line numbers cited by Barracuda. Decl. of

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Steve Paparzian ¶ 3, ECF No. 302. However, j2 did assert that Exhibit 7 to the Khachatourian

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reply declaration contains confidential information. Id. ¶ 4. Specifically, it asserts that this

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document “contains an internal, confidential email discussion regarding IT infrastructure that, if

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made publicly available, would create a risk of significant competitive injury and/or harm,

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including by disclosing sensitive details to potential third parties who could use this information to

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hack and/or otherwise harm J2’s IT infrastructure.” Id. And according to j2, it produced the

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exhibit pursuant to a subpoena issued by Barracuda and authorized by a magistrate judge in the
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Central District of California on the condition that the documents be produced pursuant to a

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protective order in that case. Ibid. Since those documents were produced under a protective order

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in another case, there is good cause for that document to be filed under the seal. See Phillips v.

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GMC, 307 F.3d 1206, 1213 (9th Cir. 2002) (“When a court grants a protective order for

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information produced during discovery, it already has determined that ‘good cause’ exists to

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protect this information from being disclosed to the public by balancing the needs for discovery

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against the need for confidentiality.”). The rest of the documents do not warrant sealing.

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Accordingly, Barracuda’s second sealing motion is sealing motion is GRANTED in part and

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DENIED in part. Barracuda SHALL file an unredacted version of its Reply and unredacted

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Exhibit 2 to Khachatourian’s declaration by June 23, 2020. Exhibit 7 shall remain under seal.

United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: June 16, 2020

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THOMAS S. HIXSON
United States Magistrate Judge

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