U.S. Ethernet Innovations, LLC v. Acer, Inc. et al

Filing 857

ORDER by Judge Claudia Wilken ADDRESSING MOTIONS TO SEAL (750) (765) (769) (777) (795) (798) (808) in case 4:10-cv-03724-CW; (449) (454) in case 4:10-cv-05254-CW (cwlc2S, COURT STAFF) (Filed on 8/14/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 U.S. ETHERNET INNOVATIONS, LLC, 5 Plaintiff, 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 v. ACER, INC.; ACER AMERICA CORPORATION; APPLE, INC.; ASUS COMPUTER INTERNATIONAL; ASUSTEK COMPUTER, INC.; DELL, INC.; FUJITSU, LTD.; FUJITSU AMERICA, INC.; GATEWAY, INC.; HEWLETT PACKARD CO.; SONY CORPORATION; SONY CORPORATION OF AMERICA; SONY ELECTRONICS INC.; TOSHIBA CORPORATION; TOSHIBA AMERICA, INC.; and TOSHIBA AMERICA INFORMATION SYSTEMS, INC., 16 17 INTEL CORPORATION; NVIDIA CORPORATION; MARVELL SEMICONDUCTOR, INC.; ATHEROS COMMUNICATIONS, INC.; and BROADCOM CORPORATION, Intervenors. 18 19 20 21 ORDER ADDRESSING MOTIONS TO SEAL (Docket Nos. 750, 765, 769, 777, 795, 798 and 808 in 10-3724 and 449 and 454 in 105254) Defendants, 14 15 No. C 10-3724 CW ________________________________/ AND ALL RELATED CLAIMS, COUNTERCLAIMS AND THIRD-PARTY CLAIMS ________________________________/ The Court addresses the pending motions to seal in the above 22 23 captioned cases as follows: 24 I. 25 Docket Nos. 750, 795 in Case No. 10-3724 On May 13, 2013, Plaintiff U.S. Ethernet Innovations, LLC 26 (USEI) moved to file under seal Exhibits A, C and E to the 27 declaration of Peter M. Jones in support of its motion regarding 28 sanctions based on party misconduct, as well as the portions of 1 its motion that directly quote or refer to those exhibits.1 2 Docket No. 750. 3 the entirety of its response to Defendants’ motion for partial 4 summary judgment, the declaration of Peter M. Jones in support 5 thereof and all exhibits attached to the declaration. 6 represents that the documents contain information that was 7 designated as confidential under the stipulated interim protective 8 order in this case and that it “expects that . . . one or more of 9 the defendants will file a declaration attempting to establish United States District Court For the Northern District of California 10 11 On June 6, 2013, USEI moved to file under seal USEI that the designated information is sealable.” If a party wishes to file a document that has been designated 12 as confidential by another party or to refer to such information 13 in a memorandum or other filing, it is required to file and serve 14 an administrative motion seeking a sealing order. 15 Rule 79-5(d). 16 establishing that the document is sealable within seven days 17 thereafter. 18 responsive declaration, the document will be made part of the 19 public record. Civil Local The designating party then must file a declaration Id. If the designating party does not file its Id. 20 21 22 As of the date of this Order, Plaintiff has not filed in the public record the Jones declaration itself or Exhibits B, D, F and G, which are not at issue in the pending motion to seal. Plaintiff has provided the Court with chambers copies of these documents and has filed a certificate of service attesting that it served copies of the motion, declaration and all exhibits on the other parties in this case. Docket No. 753. 1 23 24 25 26 27 28 In the future, the parties shall properly efile in the public docket all documents that they wish to offer in support of a motion and that are not at issue in a concurrently-filed motion to seal. 2 As of the date of this Order, no declaration in support of 1 2 these motions to seal has been filed. Accordingly, the motions to seal are DENIED (Nos. 750, 795 in 3 4 10-3724). 5 efile its unredacted motions, the Jones declarations and all 6 exhibits thereto in the public docket of this case. 7 II. 8 9 Within one day of the date of this Order, USEI shall Docket Nos. 765 in Case No. 10-3724, 449 in Case No. 10-5254 Intervenor Intel Corporation moves on behalf of all Defendants and Intervenors to file under seal the following United States District Court For the Northern District of California 10 documents offered in support of their motion for partial summary 11 judgment: (1) portions of the declaration of Itamar Sharoni; 12 (2) Exhibits 1, 2 and 3 to the Sharoni declaration; (3) the 13 declaration of Thomas Insley; (4) Exhibits A and B to the Insley 14 declaration; (5) portions of the declaration of Justin Constant; 15 (6) Exhibits A.1, A.3 and A.4 to the Constant declaration; and 16 (7) portions of their motion that contain information from these 17 other documents. 18 its motion to seal. Intel has submitted a declaration in support of See Stephens Decl., Docket No. 449-1. 19 These documents are connected to a dispositive motion. To 20 establish that these documents are sealable, Intel “must overcome 21 a strong presumption of access by showing that ‘compelling reasons 22 supported by specific factual findings . . . outweigh the general 23 history of access and the public policies favoring disclosure.’” 24 Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010) 25 (citation omitted). 26 that the document is subject to a protective order or by stating 27 in general terms that the material is considered to be 28 confidential, but rather must be supported by a sworn declaration This cannot be established simply by showing 3 1 demonstrating with particularity the need to file each document 2 under seal. Civil Local Rule 79-5(a). 3 In its declaration in support of the motion to seal, Intel 4 represents that the portions of the Sharoni declaration and its 5 exhibits that it seeks to seal contain “internal code names of 6 Intel’s source code” and material related to its “source code 7 version control system.” 8 material is not available to the public, and public release could 9 result in a competitive disadvantage for Intel and security Stephens Decl., 2-3. United States District Court For the Northern District of California 10 concerns for Intel and its customers.” 11 material reflects how Intel develops and manages its confidential 12 source code for its Ethernet components, which is widely used by 13 non-party members of the public,” and that it “would be harmed if 14 this material were made public.” 15 generic statements do not meet the standard for sealing 16 information related to dispositive motions. 17 generally claims that it would be “harmed” by public disclosure 18 and that this would result in a “competitive disadvantage” for it 19 and in “security concerns” for it and its customers, Intel 20 provides no specific facts or explanation of, for example, what 21 these security concerns are, how it would be hurt competitively 22 and why it expects that this would result from public disclosure 23 of this material. 24 Id. Id. It states, “This It represents, “This However, such broad and Although Intel Similarly, Intel has not sufficiently supported its request 25 to seal the information contained in the Insley declaration and 26 its exhibits. 27 customer of Intel “who wishes to maintain as confidential the 28 information about it discussed in the Motion.” Intel seeks to redact the name of a third-party 4 Stephens Decl. 3. 1 However, although Intel represents that it has notified this 2 third-party customer “of the use of and protections for its 3 confidential information as part of this motion,” the third-party 4 customer has not submitted a declaration setting forth any reasons 5 that its identity should be maintained as confidential or that any 6 of its other information should be protected. 7 not provided any compelling reason to keep this customer’s 8 identity under seal. 9 of its sales of accused products to this customer and others. Further, Intel has Intel also seeks to redact financial records In United States District Court For the Northern District of California 10 support, it again makes generic statements that this information 11 “is closely guarded throughout the industry for competitive 12 reasons,” and “is competitively very sensitive and its public 13 release could cause competitive harm to Intel and its third-party 14 customer.” 15 explanation of how it would suffer competitive harm or specific 16 facts to support its sealing request. 17 Id. at 4. Intel, however, fails to provide an Intel has also not supported properly its request to seal a 18 portion of the Constant declaration and Exhibits A.1, A.3 and A.4 19 attached thereto. 20 same information at issue in the exhibits to the Insley 21 declaration and Intel has failed to support the sealing of it for 22 the reasons discussed above. 23 represents that the declaration contains information designated as 24 confidential by Intel’s third-party customer and other parties to 25 this case, including USEI and HP, none of these have filed a 26 declaration in support of sealing this information. 27 Intel states that Exhibit A.1 is a “confidential contract between 28 3Com and a third-party customer of Intel” and that both of these The Constant declaration contains some of the In addition, although Intel 5 Similarly, 1 parties have designated it as confidential under the protective 2 order in this case; however, neither has offered a declaration in 3 support of sealing and a blanket protective order is not 4 sufficient to permit the filing of documents under seal. 5 Civil Local Rule 79-5(a). 6 A.3 is a “confidential declaration from the director of 7 intellectual property at Intel’s third-party customer,” which 8 “discusses a confidential agreement and related practices” and has 9 been designated as confidential under the protective order by the See Further, Intel represents that Exhibit United States District Court For the Northern District of California 10 third-party customer. 11 filed and designating the document as confidential under the 12 protective order is not sufficient to allow filing under seal. 13 Intel represents that Exhibit A.4 is a contract governing 14 intellectual property rights that it maintains as confidential for 15 competitive reasons and that public disclosure would cause it and 16 the other party to the contract “competitive harm.” 17 is insufficient for the reasons set forth above. 18 Again, no supporting declaration has been This showing Finally, Intel seeks leave to file under seal the portions of 19 the motion for partial summary judgment that refer to the 20 information in the documents discussed above. 21 not provided sufficient reason to seal the underlying documents, 22 it also has not established that these portions of the motion 23 should be filed under seal. 24 Because Intel has Accordingly, Intel’s motion to seal is DENIED (Docket Nos. 25 765 in Case No. 10-3724, 449 in Case No. 10-5254). 26 of the date of this Order, Intel shall efile these unredacted 27 documents in the public docket of this case. 28 6 Within one day Alternatively, by 1 that time, it may withdraw the exhibits from the record and 2 disclaim its reliance on the redacted portions of its motion. 3 III. Docket No. 769 in Case No. 10-3724 4 Intervenor Nvidia Corporation moves to file under seal 5 portions of the declaration of Paul Sidenblad offered in support 6 of Defendants and Intervenors’ motion for partial summary judgment 7 and Exhibits A through F attached thereto. 8 declaration in support of the motion to seal. 9 Docket No. 769-1. United States District Court For the Northern District of California 10 Nvidia has filed a Gregorian Decl., The Court previously denied Nvidia’s first motion to seal 11 these documents, stating that, in its declaration in support of 12 its original motion, “NVIDIA only describes the subject matter of 13 the exhibits and makes conclusory statements that it considers the 14 material to be confidential or sensitive,” and that “NVIDIA has 15 failed to state what harm it would experience if this material 16 were publicly disclosed or to provide any specific reasons, 17 supported by facts, that could outweigh the public policy favoring 18 public access to court filings.” 19 Docket No. 760, 1-2. Nvidia still has failed to demonstrate that there are 20 compelling reasons to seal the documents at issue. 21 that Exhibits B, C and D are, respectively, “a confidential 22 summary of Nvidia’s MACs,” “a confidential technical specification 23 for the CK8G MAC,” and a “confidential MCP1 MAC Reference Manual.” 24 It states that these exhibits reflect “design and development” of 25 these products “by Nvidia’s engineers,” are “not available to the 26 public, and public release could result in a competitive 27 disadvantage for Nvidia.” 28 Nvidia has not presented specific facts to show how making this Gregorian Decl. ¶ 3.b-d. 7 Nvidia asserts However, 1 information available to the public would result in a “competitive 2 disadvantage” that outweighs the presumption of public access to 3 court documents; merely characterizing the documents as containing 4 trade secrets is insufficient, in the absence of facts in support 5 of this. 6 from Nvidia’s confidential source code version control system 7 showing changes made to Nvidia’s driver source code,” which it 8 does not make available to the public, customers or third parties. 9 Although it generally states that “public release could result in Similarly, Nvidia states that Exhibit E is “an excerpt United States District Court For the Northern District of California 10 a competitive disadvantage for Nvidia and security concerns for 11 Nvidia or its customers,” Nvidia again makes only general, 12 sweeping statements, without providing specific facts or 13 explanation of the possible harm that might occur. 14 Finally, Nvidia represents that Exhibit A is “a confidential 15 agreement between 3com and Nvidia,” which they agreed to keep 16 confidential “due to the proprietary nature of the information.” 17 Gregorian Decl. ¶ 3.a. 18 “would provide competitive information about Nvidia’s business 19 practices and technology.” 20 that a document should be kept confidential is insufficient to 21 establish that it should be sealed. 22 that it includes “proprietary” or “competitive information” is not 23 enough, in the absence of specific facts that show that this 24 information is worthy of protection from public access. Nvidia also states that public disclosure Id. However, the parties’ agreement Further, a general assertion 25 Accordingly, Nvidia has not established that there are 26 compelling reasons to seal Exhibits A through E to the Sidenblad 27 declaration. 28 itself that “discuss information contained in and/or related to Nvidia seeks to seal the portions of the declaration 8 1 the foregoing Exhibits.” Gregorian Decl. ¶ 3.g. Because Nvidia 2 has failed to establish that the exhibits are sealable, it also 3 has not shown that the declaration itself should be sealed. Accordingly, Nvidia’s motion to seal is DENIED (Docket No. 4 5 769 in Case No. 10-3724). 6 Order, Nvidia shall efile the Sidenblad declaration and Exhibits A 7 through E thereto in the public docket of this case. 8 Alternatively, by that date, Nvidia may withdraw the exhibits from 9 the record. United States District Court For the Northern District of California 10 IV. Within one day of the date of this Docket No. 777 in Case No. 10-3724 11 On May 28, 2013, Intel moved to file under seal Exhibit 2 to 12 the declaration of Seth M. Sproul in support of its opposition to 13 USEI’s motion regarding sanctions. 14 declaration, Intel represents that Exhibit 2 consists of excerpts 15 from the deposition “testimony from third-party subpoena recipient 16 Richard Baker,” which includes “confidential information of Mr. 17 Baker, defendant Hewlett-Packard’s predecessor in interest (3Com) 18 and a third party customer of 3Com.” 19 Decl. ¶ 2. 20 showing that it served a copy of Exhibit 2 upon all counsel of 21 record in this case. 22 In its motion and supporting Mot. at 2; see also Sproul Intel has also submitted a certificate of service Docket No. 779 in 10-3724. The Court previously warned all parties to this case that, 23 when filing motions to seal, they “shall make clear which party or 24 non-party has designated as confidential each purportedly sealable 25 document and, if relevant, shall provide proof of service upon 26 non-parties.” 27 Intel has not identified the third-party customer of 3Com whose 28 confidential information is in Exhibit 2--although it appears to Docket No. 760, 5. However, in the instant motion, 9 1 be the same third-party customer addressed above--and has not 2 provided of service of the motion or exhibit upon Mr. Baker or the 3 third-party 3Com customer. Within one day of the date of this Order, Intel shall provide 4 5 proof of service of the motion to seal, Exhibit 2, this Order and 6 Civil Local Rule 79-5 upon Mr. Baker and the third-party 3Com 7 customer. 8 party 3Com customer must file and serve with the Court a 9 declaration establishing that Exhibit 2 is sealable, or must Within seven days thereafter, Mr. Baker and the third- United States District Court For the Northern District of California 10 withdraw the designation of confidentiality. 11 Baker and the third-party 3Com customer that their failure to file 12 a declaration in support of sealing may result in Exhibit 2 being 13 made part of the public record, pursuant to Civil Local Rule 79- 14 5(d). 15 V. 16 The Court warns Mr. Docket No. 798 in Case No. 10-3724 Intervenor and Third Party Plaintiff Broadcom Corporation 17 moves to file under seal the entirety of Exhibit G to the 18 declaration of Jason H. Liss in support of its opposition to Third 19 Party Defendant Parallel Technology, LLC’s motion to dismiss and 20 portions of its opposition brief that disclose the contents of 21 Exhibit G. 22 motion to seal. 23 Broadcom has submitted a declaration in support of its See Liss Decl., Docket No. 798-1. As noted above, Broadcom must demonstrate facts that show 24 that compelling reasons support the filing of these documents 25 under seal and outweigh the presumption of public access to court 26 records. 27 28 Exhibit G consists of a January 27, 2004 settlement and license agreement between Broadcom and 3Com. 10 In the declaration 1 in support of the motion to seal, Broadcom represents that this 2 agreement “contains highly sensitive Broadcom information,” which 3 “includes, for example, (1) lump sum and ongoing royalty amounts 4 that Broadcom agreed to pay to 3Com, and (2) the structure and 5 scope of the technology licenses negotiated by the parties.” 6 Decl. ¶ 3. 7 agreement “would be prejudicial to Broadcom in negotiating 8 licenses and other agreements with other market participants.” 9 Id. United States District Court For the Northern District of California 10 11 Liss Broadcom asserts that public disclosure of the Broadcom also notes that article 13 of the agreement requires it to keep the document confidential. Id. at ¶ 4. The Court finds that Broadcom has established compelling 12 reasons to seal the lump sum and royalty amounts that Broadcom 13 agreed to pay 3Com in the agreement and the portions of the 14 opposition brief that refer to these amounts. 15 has not offered compelling reasons to seal the remainder of the 16 material. 17 the licensing agreement and instead addresses only limited 18 portions of the document. 19 reason that the five pages of provisions related to dispute 20 resolution should be sealed. 21 clear what terms of the agreement actually describe the “structure 22 and scope of the technology licenses” and how public disclosure of 23 these terms would negatively impact its ability to negotiate 24 agreements with others. 25 However, Broadcom In its declaration, it fails to address the entirety of For example, Broadcom provides no Further, Broadcom does not make Accordingly, the Court GRANTS in part and DENIES in part 26 Broadcom’s motion to seal (Docket No. 798 in Case No. 10-3724). 27 Within one day of the date of this Order, Broadcom shall file 28 under seal unredacted versions of its opposition brief and Exhibit 11 1 G and shall file in the public record versions in which it has 2 redacted only the payment terms. 3 Broadcom may withdraw Exhibit G from the record. 4 VI. 5 Alternatively, by that date, Docket Nos. 808 in Case No. 10-3724, 454 in Case No. 10-5254 Intel moves on behalf of all Defendants and Intervenors to file under seal a portion of their reply brief in support of their 7 motion for partial summary judgment and the entirety of Exhibit 8 A.1 to the declaration of Carmen Bremer in support of the reply. 9 Exhibit A.1 contains an opposition brief filed by 3Com in a 10 United States District Court For the Northern District of California 6 separate earlier case, 3Com Corp. v. Realtek Semiconductor Corp. 11 Case No. 03-2177 (N.D. Cal.), in response to a motion for partial 12 summary judgment there. 13 brief under seal in the prior litigation. 14 compelling reasons to file it under seal here. 15 The court granted permission to file this Thus, the Court finds Intel represents that it seeks to file under seal portions of 16 the reply brief that refer to the contract between 3Com and the 17 third-party customer of Intel discussed above and another contract 18 between two parties to this litigation. 19 averments that these entities maintain these agreements as 20 confidential and that public release would cause them competitive 21 harm. 22 contract have filed declarations in support of the motion to seal. 23 Because Intel has not provided specific facts that show compelling 24 reasons to maintain this information under seal, the Court DENIES 25 the motion to seal to the extent that Intel seeks to seal portions 26 of the reply brief. 27 28 Intel makes only general Further, none of the other entities that are party to the Accordingly, the Court GRANTS in part and DENIES in part Intel’s motion to seal (Docket Nos. 808 in Case No. 10-3724 and 12 1 454 in Case No. 10-5254). 2 Order, Intel shall file under seal Exhibit A.1 and shall file in 3 the public record an unredacted version of the reply brief. 4 Alternatively, by that date, Intel may disclaim reliance on the 5 redacted portions of its reply brief. 6 Within one day of the date of this IT IS SO ORDERED. 7 8 9 Dated: August 14, 2013 CLAUDIA WILKEN United States District Judge 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 13

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