Pecover et al v. Electronic Arts Inc.

Filing 438

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART PLAINTIFFS' 424 MOTION TO FILE UNDER SEAL. (ndr, COURT STAFF) (Filed on 2/4/2013) Modified on 2/5/2013 (cpS, COURT STAFF).

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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,

v.

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ELECTRONIC ARTS, INC.,
Defendant.

United States District Court
For the Northern District of California

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ORDER GRANTING IN
PART AND DENYING
IN PART
PLAINTIFFS’ MOTION
TO FILE UNDER SEAL
(Docket No. 424)

Plaintiffs,

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No. C 08-2820 CW

________________________________/
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.

Docket No. 424.

On January 16, 2013,

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the Court granted permission to seal Exhibit B to the Scarlett
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Declaration and deferred ruling on the remainder of the motion to
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seal.

Docket No. 430.

On that date, the parties filed a

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stipulation indicating that various non-parties, as well as
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Defendant Electronic Arts, Inc. (EA), had designated as
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confidential certain material in the exhibits to the Paynter
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Declaration.

Docket No. 431.

The Court granted the non-parties

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and EA until January 31, 2013 to file declarations in further
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support of the motion to seal.

Docket No. 432.

On January 31,

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2013, EA and non-parties National Football League (NFL), National
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Football League Players Association (NFLPA) and Collegiate
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Licensing Corporation (CLC) filed declarations in further support

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of Plaintiffs’ motion to seal.

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Docket Nos. 434-37.

To establish that these documents are sealable, parties “must

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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).

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established simply by showing that the document is subject to a

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

United States District Court
For the Northern District of California

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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.

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Civil Local Rule 79-5(a).

No party or non-party has provided reason to seal any portion

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of Exhibit F to the Paynter Declaration.

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and CLC have each provided compelling reasons sufficient to

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support the sealing of certain portions of Exhibits A through E to

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that declaration.

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below, along with a numerical code that indicates the reason that

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each section has been found to be sealable, and grants permission

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to file those sections under seal, as set forth in the table.

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However, EA, NFL, NFLPA

The Court identifies these portions in a table

The designating party has shown that the sections labeled

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with a number one on the table contain information about its

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pricing models, revenue data, and marketing and sales strategies,

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including budgets, spending and internal analysis of third party

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game reviews, and that public disclosure would provide its

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competitors with insight into its currently implemented business

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strategies, negatively impact it in future business transactions
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and negotiations and place it at a competitive disadvantage.

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designating party has shown that the sections labeled with a

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number two contain details of specific license terms, such as

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royalty tiers and minimum financial guarantees and the scope of

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exclusive and non-exclusive rights granted, in consummated or

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proposed license agreements, and that they should be sealed

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because, in future negotiations, potential business partners could

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use the information to gain a bargaining advantage over the

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designating party or its clients, and competitors could use the

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United States District Court
For the Northern District of California

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information to gain a commercial advantage over the designating

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party or its clients when competing for licenses.

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party has shown that the sections labeled with a number three

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provide the financial details of its research and development

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spending, including the development budgets of specific game

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titles not at issue in this litigation.

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shown that the portions labeled with a number four include details

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of its negotiations for licensing agreements, including its

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strategy, priorities and assessments of the risks and

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opportunities associated with future business strategies and

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licensing relationships, and that public disclosure could harm its

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business relationships, provide its competitors with information

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to use to gain a business advantage over it and allow its

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licensing partners to obtain an advantageous bargaining position

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in future negotiations.

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that the sections labeled with a number five reveal its internal

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assessment of key market factors and projection of future trends

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in the video game market as well as its strategies for future

The

The designating

The designating party has

Finally, the designating party has shown

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3

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marketing and development, and that public disclosure would harm

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future negotiations and business dealings for it or its clients.

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The Court denies permission to file under seal other portions

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of these exhibits, for which compelling reasons to seal were not

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shown.

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Ex.

Portion1

Party

Granted

Code Denied

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A

pp.
7:12-13,
8:11-12
& n.25

EA

X

1

A

pp.
19:1214,
20:1-9,
20:1820,
21:6-14
& n. 83

EA

X

2

15

A

p. 21:13

EA

X

1

16

A

p. 22:19

EA; CLC

X

2

A

Exs. 12, 4-12,
14, 1826

EA

X

1

A

All
other
portions

None

B

p. 17,
n.31

EA

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United States District Court
For the Northern District of California

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These sections are also identified in the table below.
Notes

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18
19
20
21

X

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23

X

4

24
25
1

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EA has provided chambers copies of these exhibits, in which
it has identified the portions of each page that it and the
non-parties have designated as confidential. Where permission is
granted to file certain pages, exhibits, footnotes or lines under
seal, the Court refers only to the portions thereof that have been
identified as confidential in these chambers copies.
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1

Ex.

Portion1

Party

Granted

Code Denied

2

B

pp.
22:14,
23:1-3,
24:4-18

EA

X

3

B

p. 25:611

EA

X

2

B

p. 43:4

EA

X

3

B

p. 47,
n.99

EA

X

4

B

Exs. 4-6

EA

X

3

B

All
other
portions

None

C

p. 6 &
nn.18-19

EA

X

1

14

C

p. 9

EA, CLC

X

2

15

C

p. 17:68

EA

C

p. 17,
n.68

EA

X

1

C

p. 18,
n.73

EA

X

4

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4
5

Notes

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United States District Court
For the Northern District of California

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X

12
13

16

X

17
18
19
20
21
22
23
24
25
26
27
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This portion
is marked as
confidential
by EA in the
chambers
copy but is
not
addressed in
its
declaration.
Its content
is also
contained in
the first
two bullet
points of
note 68.

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Ex.

Portion1

Party

Granted

Code Denied

Notes

2

C

p. 18-19
& n.74

NFL

X as to p.
19 & n.74
only

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X as to p.
18

No portion
of p. 18 is
identified
in the
chambers
copy.

C

p. 19 &
n.78

EA

X

4

C

p. 20 &
n.80

EA

X

The same
information
is disclosed
in Exhibit
D, p. 38,
¶ 60, which
EA does not
seek to
seal.

C

p. 20 &
nn.81-83

NFL

X

4

C

p. 22 &
n.85

EA

X

4

C

p. 22 &
n.88

NFL

X

2, 4

C

p. 23

EA

X

2

C

p. 23 &
nn.89,
91

NFL

X

2, 4

C

p. 25 &
nn.99,
100

EA

X

4

C

p. 26,
n.105

EA

X

4

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United States District Court
For the Northern District of California

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Ex.

Portion1

Party

Granted

Code Denied

2

C

p. 26 &
nn.10406

NFLPA

X as to p.
26:3-4,
26:7-9 &
nn.104 & 106
& the
portion of
n.105 also
designated
by EA

2, 4 X as to p.
26:5-6 and
the
remainder
of n.105

C

pp. 2728 &
n.113

EA

X

2, 4

C

p. 29-30
&
nn.12021

EA

X

4

C

p. 29-30
&
nn.12021

CLC

X, except as
to p. 30:910, before
n.127

4

C

p. 31 &
nn.130,
133

EA

X

2, 4

C

p. 31 &
nn.130,
132

CLC

X

2, 4

C

pp. 3233 &
n.139

EA

X

2, 4

C

p. 34 &
nn.155,
156

EA

X

2, 4

C

p. 35

NFLPA

X

2

3
4
5
6
7
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United States District Court
For the Northern District of California

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25
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X as to p.
30:9-10,
before
n.127

Notes

1

Ex.

Portion1

Party

Granted

Code Denied

2

C

pp. 3536 &
nn.159,
163-64

EA, CLC
(p. 36
only),
NFL (p.
36
only)

X, except:
in the
sentence
preceding
n.168, from
the start of
the sentence
through the
word “deal”;
and the
entire
sentence
preceding
n.170

2, 4 X as to the
remainder

C

p. 64,
n.241

EA

C

p. 65,
n.246

CLC

C

p. 66 &
n.249

NFL

C

p. 67

EA

X

2

C

pp. 7374

EA,
NFL,
NFLPA,
CLC

X

2, 4

C

p. 77,
n.282

EA

X

1

C

p. 84 &
n.304

NFL

X

4

C

p. 85,
n.308

EA

X

1

C

p. 86

EA

X

2

C

pp. 9697 &
nn.337,
339

EA

X

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United States District Court
For the Northern District of California

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X

X

5

X

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Notes

1

Ex.

Portion1

Party

Granted

Code Denied

2

C

p. 98,
n.343

EA

X

2, 3

C

p. 98,
n.345

EA

X

3

C

p. 99

EA

X

2

C

p. 99,
n.349

EA

X

1

C

pp. 10405 &
n.364

EA

X as to
104:5-6 and
n.364

2, 4 X as to
104:19105:2

C

p. 107

EA

X

4

C

Ex. 58

EA,
NFL,
NFLPA,
CLC

X

2, 4

C

Exs. 8184

EA

X

3

C

All
other
portions

None

D

p. 11,
¶ 19

EA; CLC
(last
portion
only)

X

2, 5

D

p. 21,
¶ 31

EA

X

1

D

p. 27,
n.90

EA, CLC

X

2

D

p. 30,
¶ 48

EA

X

2

D

p. 38,
¶ 59

EA

X

2, 4

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United States District Court
For the Northern District of California

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X

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23
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25
26
27
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Notes

1

Ex.

Portion1

Party

Granted

Code Denied

2

D

p. 30,
n.123

EA,
NFLPA

X

2

D

p. 30,
nn.12729

EA

X

D

All
other
portions

None

X

E

pp. 1-2
& n.2

NFL,
CLC

X

4

E

p. 11,
n.17

CLC

X

5

E

p. 11,
n.17

EA

20

E

p. 23

EA

X

2

21

E

p. 25,
n.42

EA

X

2

E

p. 26 &
n.44

EA

X

4

E

p. 2627, n.46

CLC

X

4

E

p. 27,
n.47

EA

X

2

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4
5
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United States District Court
For the Northern District of California

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X

22
23
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25
26
27
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Notes

These
footnotes
are marked
as
confidential
by EA in the
chambers
copy
provided to
the Court,
but not
addressed in
its
supporting
declaration.

1

Ex.

Portion1

Party

Granted

Code Denied

2

E

pp. 2829 &
nn.52-54

EA

X

2

E

pp. 2830 & n.
52

NFL

X

2

E

p. 28 &
n.54

CLC

X as to n.54

2

E

p. 30 &
n.64

EA,
CLC,
NFLPA

X

2

E

p.31

EA

X as to the
identified
portion in
the sentence
that begins,
“He argues
. . .”

2

3
4
5

Notes

6
7
8
9

X as to p.
28
Although
NFLPA does
not address
this page or
footnote in
its
declaration,
EA and CLC
have
provided
compelling
reasons to
seal the
identified
sections.

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11

X as to the
identified
portion
in the
sentence
beginning,
“Professor
Kalt claims
. . .”

1

Ex.

Portion1

Party

Granted

Code Denied

Notes

2

E

p. 32-33
& n.72

EA;
CLC;
NFLPA

X, except as
to the
portion that
reads, “and
that this is
‘proconsumer.’”

2, 3 X as to the
portion
that reads,
“and that
this is
‘proconsumer.’”

Although
NFLPA does
not address
this page or
footnote in
its
declaration,
EA and CLC
have
provided
compelling
reasons to
seal the
identified
sections,
except as
indicated.

E

p. 33 &
nn.73-74

NFL

X

2, 4

14

E

p. 34

EA

X

2

15

E

p. 37-38

EA

X

3

16

E

p.38-39,
n.95

EA

X

2,
3, 4

E

p. 42-43
& n.104

EA

X

2, 4

E

All
other
portions

None

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5
6
7
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United States District Court
For the Northern District of California

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17
18
19
20

X

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For the reasons set forth above, Plaintiffs’ motion to file

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under seal is granted in part and denied in part (Docket No. 424).

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Within one day of the date of this Order, the parties shall file

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Exhibits A through E to the Paynter Declaration under seal and

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shall file in the public record Exhibit F and versions of Exhibits

27

A through E that have been redacted in accordance with this order.

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By that time, the parties shall also ensure that the redacted
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versions of Exhibits A through E and the complete Exhibit F are

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made available on the settlement website located at

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www.easportslitigation.com.

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IT IS SO ORDERED.

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Dated: 2/4/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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