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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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U.S. ETHERNET INNOVATIONS, LLC,

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Plaintiff,

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United States District Court
For the Northern District of California

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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.,

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INTEL CORPORATION; NVIDIA
CORPORATION; MARVELL
SEMICONDUCTOR, INC.; ATHEROS
COMMUNICATIONS, INC.; and
BROADCOM CORPORATION,
Intervenors.

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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,

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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

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captioned cases as follows:

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I.

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Docket Nos. 750, 795 in Case No. 10-3724
On May 13, 2013, Plaintiff U.S. Ethernet Innovations, LLC

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(USEI) moved to file under seal Exhibits A, C and E to the

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declaration of Peter M. Jones in support of its motion regarding

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sanctions based on party misconduct, as well as the portions of

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its motion that directly quote or refer to those exhibits.1

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Docket No. 750.

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the entirety of its response to Defendants’ motion for partial

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summary judgment, the declaration of Peter M. Jones in support

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thereof and all exhibits attached to the declaration.

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represents that the documents contain information that was

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designated as confidential under the stipulated interim protective

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order in this case and that it “expects that . . . one or more of

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the defendants will file a declaration attempting to establish

United States District Court
For the Northern District of California

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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

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as confidential by another party or to refer to such information

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in a memorandum or other filing, it is required to file and serve

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an administrative motion seeking a sealing order.

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Rule 79-5(d).

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establishing that the document is sealable within seven days

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thereafter.

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responsive declaration, the document will be made part of the

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public record.

Civil Local

The designating party then must file a declaration

Id.

If the designating party does not file its

Id.

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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.
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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.
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As of the date of this Order, no declaration in support of

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these motions to seal has been filed.
Accordingly, the motions to seal are DENIED (Nos. 750, 795 in

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10-3724).

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efile its unredacted motions, the Jones declarations and all

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exhibits thereto in the public docket of this case.

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II.

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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

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documents offered in support of their motion for partial summary

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judgment: (1) portions of the declaration of Itamar Sharoni;

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(2) Exhibits 1, 2 and 3 to the Sharoni declaration; (3) the

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declaration of Thomas Insley; (4) Exhibits A and B to the Insley

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declaration; (5) portions of the declaration of Justin Constant;

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(6) Exhibits A.1, A.3 and A.4 to the Constant declaration; and

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(7) portions of their motion that contain information from these

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other documents.

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its motion to seal.

Intel has submitted a declaration in support of
See Stephens Decl., Docket No. 449-1.

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These documents are connected to a dispositive motion.

To

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establish that these documents are sealable, Intel “must overcome

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a strong presumption of access by showing that ‘compelling reasons

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supported by specific factual findings . . . outweigh the general

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history of access and the public policies favoring disclosure.’”

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Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010)

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(citation omitted).

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that the document is subject to a protective order or by stating

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in general terms that the material is considered to be

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confidential, but rather must be supported by a sworn declaration

This cannot be established simply by showing

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demonstrating with particularity the need to file each document

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under seal.

Civil Local Rule 79-5(a).

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In its declaration in support of the motion to seal, Intel

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represents that the portions of the Sharoni declaration and its

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exhibits that it seeks to seal contain “internal code names of

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Intel’s source code” and material related to its “source code

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version control system.”

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material is not available to the public, and public release could

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result in a competitive disadvantage for Intel and security

Stephens Decl., 2-3.

United States District Court
For the Northern District of California

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concerns for Intel and its customers.”

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material reflects how Intel develops and manages its confidential

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source code for its Ethernet components, which is widely used by

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non-party members of the public,” and that it “would be harmed if

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this material were made public.”

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generic statements do not meet the standard for sealing

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information related to dispositive motions.

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generally claims that it would be “harmed” by public disclosure

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and that this would result in a “competitive disadvantage” for it

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and in “security concerns” for it and its customers, Intel

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provides no specific facts or explanation of, for example, what

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these security concerns are, how it would be hurt competitively

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and why it expects that this would result from public disclosure

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of this material.

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Id.

Id.

It states, “This

It represents, “This

However, such broad and

Although Intel

Similarly, Intel has not sufficiently supported its request

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to seal the information contained in the Insley declaration and

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its exhibits.

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customer of Intel “who wishes to maintain as confidential the

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information about it discussed in the Motion.”

Intel seeks to redact the name of a third-party

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Stephens Decl. 3.

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However, although Intel represents that it has notified this

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third-party customer “of the use of and protections for its

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confidential information as part of this motion,” the third-party

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customer has not submitted a declaration setting forth any reasons

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that its identity should be maintained as confidential or that any

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of its other information should be protected.

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not provided any compelling reason to keep this customer’s

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identity under seal.

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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

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support, it again makes generic statements that this information

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“is closely guarded throughout the industry for competitive

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reasons,” and “is competitively very sensitive and its public

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release could cause competitive harm to Intel and its third-party

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customer.”

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explanation of how it would suffer competitive harm or specific

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facts to support its sealing request.

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Id. at 4.

Intel, however, fails to provide an

Intel has also not supported properly its request to seal a

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portion of the Constant declaration and Exhibits A.1, A.3 and A.4

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attached thereto.

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same information at issue in the exhibits to the Insley

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declaration and Intel has failed to support the sealing of it for

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the reasons discussed above.

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represents that the declaration contains information designated as

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confidential by Intel’s third-party customer and other parties to

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this case, including USEI and HP, none of these have filed a

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declaration in support of sealing this information.

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Intel states that Exhibit A.1 is a “confidential contract between

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3Com and a third-party customer of Intel” and that both of these

The Constant declaration contains some of the

In addition, although Intel

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Similarly,

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parties have designated it as confidential under the protective

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order in this case; however, neither has offered a declaration in

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support of sealing and a blanket protective order is not

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sufficient to permit the filing of documents under seal.

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Civil Local Rule 79-5(a).

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A.3 is a “confidential declaration from the director of

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intellectual property at Intel’s third-party customer,” which

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“discusses a confidential agreement and related practices” and has

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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

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third-party customer.

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filed and designating the document as confidential under the

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protective order is not sufficient to allow filing under seal.

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Intel represents that Exhibit A.4 is a contract governing

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intellectual property rights that it maintains as confidential for

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competitive reasons and that public disclosure would cause it and

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the other party to the contract “competitive harm.”

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is insufficient for the reasons set forth above.

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Again, no supporting declaration has been

This showing

Finally, Intel seeks leave to file under seal the portions of

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the motion for partial summary judgment that refer to the

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information in the documents discussed above.

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not provided sufficient reason to seal the underlying documents,

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it also has not established that these portions of the motion

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should be filed under seal.

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Because Intel has

Accordingly, Intel’s motion to seal is DENIED (Docket Nos.

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765 in Case No. 10-3724, 449 in Case No. 10-5254).

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of the date of this Order, Intel shall efile these unredacted

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documents in the public docket of this case.

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Within one day

Alternatively, by

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that time, it may withdraw the exhibits from the record and

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disclaim its reliance on the redacted portions of its motion.

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III. Docket No. 769 in Case No. 10-3724

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Intervenor Nvidia Corporation moves to file under seal

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portions of the declaration of Paul Sidenblad offered in support

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of Defendants and Intervenors’ motion for partial summary judgment

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and Exhibits A through F attached thereto.

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declaration in support of the motion to seal.

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Docket No. 769-1.

United States District Court
For the Northern District of California

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Nvidia has filed a
Gregorian Decl.,

The Court previously denied Nvidia’s first motion to seal

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these documents, stating that, in its declaration in support of

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its original motion, “NVIDIA only describes the subject matter of

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the exhibits and makes conclusory statements that it considers the

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material to be confidential or sensitive,” and that “NVIDIA has

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failed to state what harm it would experience if this material

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were publicly disclosed or to provide any specific reasons,

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supported by facts, that could outweigh the public policy favoring

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public access to court filings.”

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Docket No. 760, 1-2.

Nvidia still has failed to demonstrate that there are

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compelling reasons to seal the documents at issue.

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that Exhibits B, C and D are, respectively, “a confidential

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summary of Nvidia’s MACs,” “a confidential technical specification

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for the CK8G MAC,” and a “confidential MCP1 MAC Reference Manual.”

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It states that these exhibits reflect “design and development” of

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these products “by Nvidia’s engineers,” are “not available to the

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public, and public release could result in a competitive

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disadvantage for Nvidia.”

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Nvidia has not presented specific facts to show how making this

Gregorian Decl. ¶ 3.b-d.

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Nvidia asserts

However,

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information available to the public would result in a “competitive

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disadvantage” that outweighs the presumption of public access to

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court documents; merely characterizing the documents as containing

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trade secrets is insufficient, in the absence of facts in support

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of this.

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from Nvidia’s confidential source code version control system

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showing changes made to Nvidia’s driver source code,” which it

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does not make available to the public, customers or third parties.

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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

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a competitive disadvantage for Nvidia and security concerns for

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Nvidia or its customers,” Nvidia again makes only general,

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sweeping statements, without providing specific facts or

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explanation of the possible harm that might occur.

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Finally, Nvidia represents that Exhibit A is “a confidential

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agreement between 3com and Nvidia,” which they agreed to keep

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confidential “due to the proprietary nature of the information.”

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Gregorian Decl. ¶ 3.a.

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“would provide competitive information about Nvidia’s business

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practices and technology.”

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that a document should be kept confidential is insufficient to

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establish that it should be sealed.

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that it includes “proprietary” or “competitive information” is not

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enough, in the absence of specific facts that show that this

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information is worthy of protection from public access.

Nvidia also states that public disclosure

Id.

However, the parties’ agreement

Further, a general assertion

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Accordingly, Nvidia has not established that there are

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compelling reasons to seal Exhibits A through E to the Sidenblad

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declaration.

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itself that “discuss information contained in and/or related to

Nvidia seeks to seal the portions of the declaration

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the foregoing Exhibits.”

Gregorian Decl. ¶ 3.g.

Because Nvidia

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has failed to establish that the exhibits are sealable, it also

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has not shown that the declaration itself should be sealed.
Accordingly, Nvidia’s motion to seal is DENIED (Docket No.

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769 in Case No. 10-3724).

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Order, Nvidia shall efile the Sidenblad declaration and Exhibits A

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through E thereto in the public docket of this case.

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Alternatively, by that date, Nvidia may withdraw the exhibits from

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the record.

United States District Court
For the Northern District of California

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IV.

Within one day of the date of this

Docket No. 777 in Case No. 10-3724

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On May 28, 2013, Intel moved to file under seal Exhibit 2 to

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the declaration of Seth M. Sproul in support of its opposition to

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USEI’s motion regarding sanctions.

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declaration, Intel represents that Exhibit 2 consists of excerpts

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from the deposition “testimony from third-party subpoena recipient

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Richard Baker,” which includes “confidential information of Mr.

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Baker, defendant Hewlett-Packard’s predecessor in interest (3Com)

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and a third party customer of 3Com.”

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Decl. ¶ 2.

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showing that it served a copy of Exhibit 2 upon all counsel of

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record in this case.

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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,

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when filing motions to seal, they “shall make clear which party or

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non-party has designated as confidential each purportedly sealable

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document and, if relevant, shall provide proof of service upon

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non-parties.”

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Intel has not identified the third-party customer of 3Com whose

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confidential information is in Exhibit 2--although it appears to

Docket No. 760, 5.

However, in the instant motion,

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be the same third-party customer addressed above--and has not

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provided of service of the motion or exhibit upon Mr. Baker or the

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third-party 3Com customer.
Within one day of the date of this Order, Intel shall provide

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proof of service of the motion to seal, Exhibit 2, this Order and

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Civil Local Rule 79-5 upon Mr. Baker and the third-party 3Com

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customer.

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party 3Com customer must file and serve with the Court a

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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

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withdraw the designation of confidentiality.

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Baker and the third-party 3Com customer that their failure to file

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a declaration in support of sealing may result in Exhibit 2 being

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made part of the public record, pursuant to Civil Local Rule 79-

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5(d).

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V.

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The Court warns Mr.

Docket No. 798 in Case No. 10-3724
Intervenor and Third Party Plaintiff Broadcom Corporation

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moves to file under seal the entirety of Exhibit G to the

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declaration of Jason H. Liss in support of its opposition to Third

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Party Defendant Parallel Technology, LLC’s motion to dismiss and

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portions of its opposition brief that disclose the contents of

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Exhibit G.

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motion to seal.

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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

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that compelling reasons support the filing of these documents

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under seal and outweigh the presumption of public access to court

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records.

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Exhibit G consists of a January 27, 2004 settlement and
license agreement between Broadcom and 3Com.
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In the declaration

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in support of the motion to seal, Broadcom represents that this

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agreement “contains highly sensitive Broadcom information,” which

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“includes, for example, (1) lump sum and ongoing royalty amounts

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that Broadcom agreed to pay to 3Com, and (2) the structure and

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scope of the technology licenses negotiated by the parties.”

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Decl. ¶ 3.

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agreement “would be prejudicial to Broadcom in negotiating

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licenses and other agreements with other market participants.”

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Id.

United States District Court
For the Northern District of California

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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

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reasons to seal the lump sum and royalty amounts that Broadcom

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agreed to pay 3Com in the agreement and the portions of the

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opposition brief that refer to these amounts.

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has not offered compelling reasons to seal the remainder of the

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material.

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the licensing agreement and instead addresses only limited

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portions of the document.

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reason that the five pages of provisions related to dispute

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resolution should be sealed.

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clear what terms of the agreement actually describe the “structure

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and scope of the technology licenses” and how public disclosure of

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these terms would negatively impact its ability to negotiate

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agreements with others.

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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

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Broadcom’s motion to seal (Docket No. 798 in Case No. 10-3724).

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

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under seal unredacted versions of its opposition brief and Exhibit
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G and shall file in the public record versions in which it has

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redacted only the payment terms.

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Broadcom may withdraw Exhibit G from the record.

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VI.

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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

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motion for partial summary judgment and the entirety of Exhibit

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A.1 to the declaration of Carmen Bremer in support of the reply.

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Exhibit A.1 contains an opposition brief filed by 3Com in a

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United States District Court
For the Northern District of California

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separate earlier case, 3Com Corp. v. Realtek Semiconductor Corp.

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Case No. 03-2177 (N.D. Cal.), in response to a motion for partial

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summary judgment there.

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brief under seal in the prior litigation.

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compelling reasons to file it under seal here.

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The court granted permission to file this
Thus, the Court finds

Intel represents that it seeks to file under seal portions of

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the reply brief that refer to the contract between 3Com and the

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third-party customer of Intel discussed above and another contract

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between two parties to this litigation.

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averments that these entities maintain these agreements as

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confidential and that public release would cause them competitive

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harm.

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contract have filed declarations in support of the motion to seal.

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Because Intel has not provided specific facts that show compelling

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reasons to maintain this information under seal, the Court DENIES

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the motion to seal to the extent that Intel seeks to seal portions

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of the reply brief.

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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
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454 in Case No. 10-5254).

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Order, Intel shall file under seal Exhibit A.1 and shall file in

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the public record an unredacted version of the reply brief.

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Alternatively, by that date, Intel may disclaim reliance on the

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redacted portions of its reply brief.

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Within one day of the date of this

IT IS SO ORDERED.

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Dated: August 14, 2013

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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