Pecover et al v. Electronic Arts Inc.

Filing 430

ORDER by Judge Claudia Wilken GRANTING IN PART, AND DEFERRING IN PART, PLAINTIFFS 424 MOTION TO SEAL. (ndr, COURT STAFF) (Filed on 1/16/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEOFFREY PECOVER; and ANDREW
OWENS, on behalf of themselves
and all others similarly
situated,

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United States District Court
For the Northern District of California

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ORDER GRANTING IN
PART, AND
DEFERRING IN PART,
PLAINTIFFS’ MOTION
TO SEAL (Docket
No. 424)

Plaintiffs,

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No. C 08-2820 CW

v.
ELECTRONIC ARTS, INC., a Delaware
Corporation,
Defendant.
________________________________/

On January 3, 2013, Plaintiffs moved, pursuant to Civil Local

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Rule 79-5, to seal Exhibit B to the Scarlett Declaration and

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Exhibits A through F to the Paynter Declaration submitted in

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support of their motion for final approval of the class action

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settlement in this case.

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that Defendant Electronic Arts, Inc. has designated certain

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information contained in these exhibits as confidential.

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Defendant timely filed the declaration of Jacob Schatz in support

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of the motion to seal.

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Docket No. 424.

Plaintiffs represented

Docket No. 428 (Schatz Decl.).

Because Defendant designated the documents at issue as

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confidential, it must file a declaration establishing that the

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documents are sealable.

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“must overcome a strong presumption of access by showing that

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‘compelling reasons supported by specific factual findings . . .

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outweigh the general history of access and the public policies

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favoring disclosure.’”

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665, 679 (9th Cir. 2010) (citation omitted).

Civil Local Rule 79-5(d).

To do so, it

Pintos v. Pac. Creditors Ass’n, 605 F.3d
This cannot be

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established simply by showing that the document is subject to a

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protective order or by stating in general terms that the material

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is considered to be confidential, but rather must be supported by

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a sworn declaration demonstrating with particularity the need to

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file each document under seal.

Civil Local Rule 79-5(a).

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Exhibit B to the Scarlett Declaration contains a license

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agreement entered into between Defendant and NFL Properties LLC in

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2010.

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many others it enters into, that is subject to periodic re-bidding

Defendant explains that this is a short-term license, like

United States District Court
For the Northern District of California

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and renegotiation, and that public disclosure of the information

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contained therein would cause it harm by providing its licensors a

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commercial advantage over it in future negotiations and by giving

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its competitors, other potential licensees, information that they

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could use to negotiate for better license terms or additional

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license rights.

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Defendant has provided compelling reasons that support the sealing

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of Exhibit B to the Scarlett Declaration.

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Schatz Decl. ¶ 6.

Thus, the Court finds that

However, Defendant’s request to seal the entirety of Exhibits

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A through F to the Paynter Declaration is overly broad and not

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narrowly tailored to seek only the sealing of sealable material.

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Defendant has also not established compelling reasons that

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outweigh the public’s interest in access to the documents, which

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is particularly strong in light of the pending motion for final

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approval of a class action settlement.

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of expert reports originally filed by Plaintiffs in connection

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with their motion for class certification.

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are Plaintiffs’ merits expert reports.

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Exhibits A and B “have already been sealed by this Court” and that
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Exhibits A and B consists

Exhibits C through F

Defendant represents that

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Exhibits C through F contain “trade secrets and other highly

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confidential material that is indistinguishable from, and in many

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cases identical to, the highly confidential information contained

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in Plaintiffs’ class certification reports.”

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Schatz Decl. ¶ 5.

However, the Court did not previously grant permission to

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file the entirety of Exhibits A and B under seal.

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Court granted permission to seal only portions of these documents

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under seal.

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Mason Declarations).

Instead, the

See Docket No. 198, 60, 67 (addressing the MacKieIndeed, the majority of these documents were

United States District Court
For the Northern District of California

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filed in the public record.

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236-1.

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F contain, for example, “the financial metrics of EA’s licensing

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agreements, forward-looking business strategies, confidential

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negotiations and negotiation tactics, and confidential research

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and development activities,” it does not identify which portions

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of these documents contains such information nor does it explain

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what compelling reasons might support restriction of public

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access.

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are “confidential” are insufficient.

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that portions of Exhibits C through F are not sealable.

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example, Exhibit C contains, among other things, the resume of

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Plaintiffs’ expert and a list of publicly available websites that

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he reviewed in preparing his opinions.

See, e.g., Docket Nos. 78-1, 231-1,

Further, although Defendant states that Exhibits C through

General averments that the activities or tactics at issue
In addition, it is clear
For

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Accordingly, for the reasons set forth above, the Court

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GRANTS in part and DEFERS in part Plaintiffs’ motion to file under

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seal (Docket No. 424).

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within four days of the date of this Order, Plaintiffs shall

In accordance with General Order 62,

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electronically file Exhibit B to the Scarlett Declaration under

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seal.

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Within three days of the date of this Order, Defendant shall

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lodge with the Court a version of A through F to the Paynter

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Declaration, in which it has clearly identified the sealable

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portions of the documents with notations or highlighting in the

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text.

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sworn declaration in support of the motion to seal, setting forth

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in a table similar to the below example, the reason or reasons

By that date, Defendant shall also file a supplemental

United States District Court
For the Northern District of California

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that each identified portion of the documents is sealable:

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Document

Portion

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Paynter Declaration

None

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Exhibit A

All

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Exhibit A

1:18-2:5

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Exhibit B

1-2

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Exhibit B

Reason that it is sealable

3-10

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At that time, Defendant also shall submit the supplemental

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declaration in a word processing format to the Court’s proposed

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order email box, [e-mail].

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Defendant’s failure to comply with the terms of this Order

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will result in denial of the remainder of the motion to seal and

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these documents being made part of the public record.

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IT IS SO ORDERED.

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Dated: 1/16/2013

CLAUDIA WILKEN
United States District Judge

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