Ubiquiti Networks, Inc. v. Kozumi USA Corp. et al

Filing 126

ORDER RE: JOINT STATEMENT REGARDING CONFIDENTIALITY DESIGNATIONS (Dkt. No. 115-1). Signed by Magistrate Judge Jacqueline Scott Corley on 2/25/2013. (ahm, COURT STAFF) (Filed on 2/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

Northern District of California

United States District Court

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UBIQUITI NETWORKS, INC.,
Plaintiff,

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v.

Case No.: 12-cv-2582 CW (JSC)
ORDER RE: JOINT STATEMENT
REGARDING CONFIDENTIALITY
DESIGNATIONS (Dkt. No. 115-1)

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KOZUMI USA CORP., et al.,
Defendants.

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Pending before the Court is the parties’ Joint Statement Regarding Confidentiality

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Designations. (Dkt. No. 115-1). The Court’s December 13, 2012 Order denied Defendants’

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request for a determination that it had properly designated certain documents as “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (“AEO”) because there was insufficient

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information regarding the specific documents. Defendants renew their request for a

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determination regarding the confidentiality of certain documents. The Court finds that the

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AEO documents are properly designated, but declines to rule on the confidentiality of the

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other documents as it does not appear that the parties have adequately met and conferred and

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there is insufficient information before the Court to rule on the confidentiality of the

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remaining documents.
DISCUSSION

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court may enter a protective order “requiring that a trade secret or other confidential research,

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development, or commercial information not be revealed or be revealed only in a specified

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way.” See San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th

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Cir. 1999). “For good cause to exist, the party seeking protection bears the burden of

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showing specific prejudice or harm will result if no protective order is granted.” Phillips ex

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re. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). If the

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Northern District of California

Federal Rule of Civil Procedure 26(c) provides that upon a showing of “good cause” a

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United States District Court

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court determines that “particularized harm will result from disclosure of information to the

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public, then it balances the public and private interests to decide whether a protective order is

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necessary.” Id.

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The parties here entered into a Stipulated Protective Order (Dkt. No. 89) based on the

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Northern District’s Model Stipulated Protective Order for Standard Litigation which allows

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either party to designate material as “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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1. Documents Designated as AEO

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There are two documents at issue in this category, although the parties appear to have

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reached an agreement with respect to one of them. The parties appear to agree that document

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KOZ-008985 is subject to an AEO designation in its unredacted form, but that if Plaintiff

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redacted the password information, the document could be treated as non-confidential.

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The second document, WU-39370-WU39375, is a set of personal emails between

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William Wu and his brother concerning Mr. Wu’s divorce. Defendants contend that these

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documents are entitled to an AEO designation because of their highly confidential personal

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nature. The Court has reviewed the emails and finds that they are of the utmost personal

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nature and the Court cannot discern any need for Plaintiff to share these emails with their

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client nor other parties. Nor does Plaintiff advance such an explanation; instead, Plaintiff

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competitive disadvantage and that the documents do not meet the AEO standard in the

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Protective Order; that is, documents that the “disclosure of which to another Party or Non-

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Party would create a substantial risk of serious harm that could not be avoided by less

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restrictive means.” (Dkt. No. 87, ¶ 2.7.) The Court disagrees as to the later— exposure of this

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highly personal information could cause serious personal harm to Mr. Wu and his family,

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which is unwarranted given that the majority of matters discussed therein do not relate to the

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issues in this litigation. If Plaintiff has a good faith belief that these emails contain

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information which it needs to share with its client or in house counsel in order to litigate this

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case, it may file a supplemental letter brief to this effect. In the interim, the AEO designation

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Northern District of California

contends that Defendants have not shown that the documents would put Defendants at a

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United States District Court

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stands.

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2. Documents Designated as Confidential

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Following the Court’s December 13, 2012 Order, Defendants de-designated and re-

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designated numerous documents which they had previously designated as AEO. Defendants

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appear to seek a ruling from the Court that the re-designation of these documents as

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CONFIDENTIAL rather than AEO is proper. There are two over-arching problems with this

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request: 1) it does not appear that the parties have met and conferred regarding this matter,

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and 2) Defendants have provided samples from each category of documents which may not

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accurately reflect the contents of all documents within a category and thus seek a Court order

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passing on documents which the Court has not reviewed.

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First, as discussed in the Order re: Interpretation of the Protective Order filed today,

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the parties’ meet and confer efforts regarding confidentiality designations have been

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insufficient. It appears that Defendants only intended this Joint Statement to address the

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dispute regarding the two AEO designated documents, but Plaintiff objected to Defendants’

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re-designation of documents from AEO to CONFIDENTIAL so Defendants decided to

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include this dispute as well. However, it appears that Defendants did not advise Plaintiff of

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this until the day before this joint statement was submitted. As such, Plaintiff did not review

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all of the documents at issue and the parties necessarily did not meet and confer regarding

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these matters.

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Second, the Court notes that in many cases Defendants’ categories of documents are

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vague, overbroad, and according to Plaintiff, disingenuous. Defendants’ representative

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samples of documents are similarly unhelpful. The Court does not provide advisory opinions

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regarding the types of documents which might be entitled to a confidentiality designation. A

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party must make a motion to retain the confidentiality of a particular document or a narrow

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category of documents and make a showing with respect to each as to why it is entitled to

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protection based on the specifics of the case and the relevant caselaw.

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Accordingly, the parties are ordered to engage in further meet and confer regarding the

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re-designation of documents as confidential as set forth in the Order re: the Stipulated

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Protective Order concurrently filed today; the parties shall be prepared to do so following the

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hearing on February 28, 2013.

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In anticipation of this meet and confer, the Court provides the following guidance with
respect to the “categories” of documents identified by Defendant:

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1) Sales Records

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Documents which contain specific pricing, marketing, and customer information are

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generally considered confidential and thus may be designated as confidential. See, e.g., RSI

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Corp. v. Int’l Bus. Machines Corp., No. 08-CV-3414, 2012 WL 3095439, at *1 (N.D. Cal.

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July 30, 2012) (upholding a confidentiality designation for customer lists where the

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designating party represented that it did not publically disclose customer lists or revenue-by-

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customer information); Nutratech, Inc. v. Syntech (SSPF) Int’l, Inc., 242 F.R.D. 552, 555

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(C.D. Cal. 2007) (“Customer/supplier lists and sales and revenue information qualify as

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“‘confidential commercial information’” entitled to protection under Fed.R.Civ.P. 26(c)(7)).

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But see Medtronic Vascular, Inc. v. Abbott Cardiovascular Systems, Inc., No. 06-10666, 2007

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WL 4169628, at * 2 (N.D. Cal. 2007) (“Plaintiff’s general assertion that disclosure of

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business communications would chill business relations is not a sufficient allegation of

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specific harm. This general blanket argument would apply to all non-public

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communications.”).

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2) Payment and pension information about employees

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Employee payment and pension records in a non-employment case are generally the

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type of information that could properly be designated as confidential.

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3) Product development documents

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While the Court agrees that product development information might be subject to a

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confidentiality designation, the document submitted at WU-18772-WU18773 seems to relate

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to a product order rather than product development, which does not appear to be information

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that would generally be properly designated as confidential.

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4) Communications between Defendants and MicroTik

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If Defendants can produce a confidentiality agreement or admissible evidence

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confirming the expectation of confidentiality between Defendants and MicroTik, then

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communications between the two would likely be properly designated as confidential.

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5) Documents regarding other companies Mr. Wu owns or manages

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This category of documents is so vague as to be nearly meaningless and the document

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submitted as an example, WU-0196373-WU196374, is an invoice between Kozumi and

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another company. The Court fails to see how this document reveals the confidential

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interactions or internal workings of the third-party. The document may contain confidential

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pricing information, but Defendants have not raised this argument.

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6) Third-party financial documents

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This category of documents is similarly vague and overbroad and the “representative

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sample” documents of “third party financials [ ]certified and filed with the government” and

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“corporate meeting minutes and other documents” are not in English and no translation was

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provided.

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7) Documents with bank account information

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The Court agrees that personal bank account information is generally viewed as

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confidential.

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8) Internal Kozumi operations communications

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This category is also overbroad. While some internal communications such as those

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discussed above might properly be designated as confidential, Plaintiff has submitted

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documents which it contends fit within this category that do not appear to be confidential.

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9) Confidential internal business operations communication with Helen Chui

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It is improper to blanket designate all communications from a particular individual as

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confidential.

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10) Communications re: confidential business negotiations

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This category is hopelessly vague and the representative sample documents are not in

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Northern District of California

United States District Court

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English and no translation was provided.
The Court notes that the foregoing is offered as guidance and not a finding regarding

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the confidentiality of any particular document; however, Defendants should review their

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confidentiality designations with the foregoing parameters in mind. For those documents

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over which Defendants continue to assert a confidentiality designation, they shall come

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prepared to meet and confer with Plaintiff and explain the basis for the confidentiality

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designation as to each and every document. If a dispute remains as to a particular document,

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the parties may file a joint letter brief in accordance with the procedures described herein.

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This Order disposes of Docket No. 115-1.

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IT IS SO ORDERED.

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Dated: February 25, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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