Phoenix Technologies Ltd. v. VMware, Inc.

Filing 287

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART THE PARTIES ADMINISTRATIVE ( 181 , 182 , 230 , 247 , 279 , 280 ) MOTIONS TO FILE UNDER SEAL.(ndrS, COURT STAFF) (Filed on 4/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHOENIX TECHNOLOGIES LTD.,

Case No. 15-cv-01414-HSG

Plaintiff,
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v.
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VMWARE, INC.,
Defendant.

ORDER GRANTING IN PART AND
DENYING IN PART THE PARTIES’
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL
Re: Dkt. Nos. 181, 182, 230, 247, 279, 280

United States District Court
Northern District of California

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Pending before the Court are several administrative motions to file various documents

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under seal pursuant to Civil Local Rule 79-5, relating to Plaintiff Phoenix Technologies’

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(“Plaintiff”) and Defendant VMware, Inc.’s (“Defendant”) motions in limine (“MIL”) and

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charging conference statements. See Dkt. Nos. 181, 182, 230, 247, 279, 280. No oppositions to

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the motions were filed. Having carefully considered each of the requested redactions, the Court

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GRANTS IN PART and DENIES IN PART the administrative motions to seal.

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I.

LEGAL STANDARD

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Courts generally apply a “compelling reasons” standard when considering motions to seal

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documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010). “This standard

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derives from the common law right ‘to inspect and copy public records and documents, including

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judicial records and documents.’” Id. (quoting Kamakana v. City & Cnty. of Honolulu, 447 F.3d

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1172, 1178 (9th Cir. 2006)). “[A] strong presumption in favor of access is the starting point.”

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Kamakana, 447 F.3d at 1178 (citation and internal quotation marks omitted). To overcome this

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strong presumption, the moving party must “articulate compelling reasons supported by specific

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factual findings that outweigh the general history of access and the public policies favoring

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disclosure, such as the public interest in understanding the judicial process.” Id. at 1178-79

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(citations, internal quotation marks, and alterations omitted). “In general, compelling reasons

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sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist

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when such court files might have become a vehicle for improper purposes, such as the use of

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records to gratify private spite, promote public scandal, circulate libelous statements, or release

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trade secrets.” Id. at 1179 (citation and internal quotation marks omitted). The court must

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“balance the competing interests of the public and the party who seeks to keep certain judicial

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records secret. After considering these interests, if the court decides to seal certain judicial

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records, it must base its decision on a compelling reason and articulate the factual basis for its

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ruling, without relying on hypothesis or conjecture.” Id. (citations, brackets, and internal

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quotation marks omitted).
Civil Local Rule 79-5 supplements the “compelling reasons” standard. The party seeking

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United States District Court
Northern District of California

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to file under seal must “establish[ ] that the document, or portions thereof, are privileged,

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protectable as a trade secret or otherwise entitled to protection under the law. . . . The request must

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be narrowly tailored to seek sealing only of sealable material . . . .” Civ. L.R. 79-5(b).

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Finally, records attached to motions that are only “tangentially related to the merits of a

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case” are not subject to the strong presumption of access. Ctr. for Auto Safety v. Chrysler Grp.,

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LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). Accordingly, parties moving to seal such records must

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meet the lower “good cause” standard of Rule 26(c) of the Federal Rules of Civil Procedure. Id. at

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1097. The “good cause” standard requires a “particularized showing” that “specific prejudice or

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harm will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors

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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (citation and internal quotation marks omitted); see

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also Fed. R. Civ. P. 26(c).

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II.

DISCUSSION
Here, the Court applies the “compelling reasons” standard because the documents at issue

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have more than a tangential relation to the merits of the case. See Ctr. for Auto Safety, 809 F.3d at

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1099 (stating that “plenty of technically non-dispositive motions—including routine motions in

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limine—are strongly correlative to the merits of a case.”). The Court rules as follows:

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Motion
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Document
Plaintiff’s MIL No. 2
Plaintiff’s MIL No. 3

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Declaration of Whitty
Somvichian in Support of
Plaintiff’s MIL (“Somvichian
Decl.”), Exhibit 4
Somvichian Decl., Exhibit 5
Somvichian Decl., Exhibit 6
Somvichian Decl., Exhibit 7
Somvichian Decl., Exhibit 8

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Somvichian Decl., Exhibit 11
Somvichian Decl., Exhibit 12
Somvichian Decl., Exhibit 14

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Defendant’s MIL #1

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Defendant’s MIL #2
Defendant’s MIL #3

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182

Defendant’s MIL #4

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182

Defendant’s MIL #5

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182

Declaration of Michael A.
Jacobs in Support of
Defendant’s MIL # 1-5
(“Jacobs Decl.”), Exhibit 2
Jacobs Decl., Exhibit 3
Jacobs Decl., Exhibit 4
Jacobs Decl., Exhibit 5
Jacobs Decl., Exhibit 7
Jacobs Decl., Exhibit 9
Jacobs Decl., Exhibit 10
Jacobs Decl., Exhibit 13
Jacobs Decl., Exhibit 16
Jacobs Decl., Exhibit 17
Jacobs Decl., Exhibit 18
Jacobs Decl., Exhibit 21

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United States District Court
Northern District of California

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182

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Jacobs Decl., Exhibit 22
Jacobs Decl., Exhibit 23
Defendant’s Opposition to
Plaintiff’s MIL No. 2

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Defendant’s Opposition to
Plaintiff’s MIL No. 4
Defendant’s Opposition to
Plaintiff’s MIL No. 5
Declaration of Michael A.
Jacobs in Opposition to

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230

Ruling
GRANTED
DENIED as to 2:21; 3:10-12;
3:21-22; 3:27; 4:1;
GRANTED as to 93:17-95:11

Reason
Confidential Business Agreement.
No Declaration in Support

DENIED
DENIED
GRANTED
GRANTED as to 111:12,
111:18-113:21; 127:15
GRANTED
GRANTED
DENIED as to 2:1-28

No Declaration in Support
No Declaration in Support
Confidential Business Information.
Confidential Business Information.

DENIED as to rest of Exhibit
DENIED as to 3:7-9; 3:15-17;
3:21-22; 3:27; 4:25; 4:25-26
GRANTED as to 1:19; 2:24-28
GRANTED as to 1:20; 1:21;
1:22
GRANTED as to 1:8; 1:9; 1:10;
2:23; 2:24
GRANTED as to 1:12; 1:13;
2:13; 2:15
DENIED

Confidential Business Agreement.

Confidential Business Agreement.
Confidential Business Information.
No Declaration in Support

No Declaration in Support.
No Declaration in Support
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.
No Declaration in Support

DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
DENIED
GRANTED
GRANTED
GRANTED
GRANTED as to 409:1-15,
409:22-410:1, 410:5-15,
410:24-411:4, 411:12-18,
411:23-412:3, 412:6, 413:14
DENIED
DENIED
GRANTED as to 1:2-3; 1:2224; 2:4; 3:3; 3:4-5; 3:7; 3:1011; 3:28-4:4; 4:13; 4:27; and
5:1
DENIED as to 1:4-6; 1:7-9

No Declaration in Support
No Declaration in Support
No Declaration in Support
No Declaration in Support
No Declaration in Support
No Declaration in Support
No Declaration in Support
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.
Confidential Business Information.

DENIED as to 1:8-12; 1:14-15

No Declaration in Support

GRANTED as to 333:20-335:6

Confidential Business Information.

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No Declaration in Support
No Declaration in Support
Confidential Business Information.

No Declaration in Support

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230

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230

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230

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230

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United States District Court
Northern District of California

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247

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247

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279
280

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280

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DENIED

No Declaration in Support

DENIED as to 50:1-51:25

No Declaration in Support

GRANTED

Proprietary Third Party Information.

DENIED as to 44:1-48:25

No Declaration in Support

DENIED

No Declaration in Support

DENIED as to 45:1-48:25

No Declaration in Support

DENIED

No Declaration in Support

GRANTED as to 5:6-7; 5:n.3;
5:n.5
DENIED

Confidential Commercial
Information.
No Declaration in Support.

DENIED
DENIED as to 8:10 8:13-16

No Declaration in Support
No Declaration in Support

DENIED as to 122:7 122:17-18
123:3 123:6 123:8 124:2

No Declaration in Support

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Confidential Business Agreement.

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GRANTED

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Confidential Business Agreement.

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GRANTED

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Confidential Business Information.

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GRANTED as to 227:11-229:2

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Confidential Business Agreement.

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GRANTED

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Plaintiff’s MIL Nos. 1-5
(“Jacobs Decl. in Opposition”),
Exhibit 12
Jacobs Decl. in Opposition,
Exhibit 13
Jacobs Decl. in Opposition,
Exhibit 14
Jacobs Decl. in Opposition,
Exhibit 15
Jacobs Decl. in Opposition,
Exhibit 18
Jacobs Decl. in Opposition,
Exhibit 21
Jacobs Decl. in Opposition,
Exhibit 22
Jacobs Decl. in Opposition,
Exhibit 25
Jacobs Decl. in Opposition,
Exhibit 26
Jacobs Decl. in Opposition,
Exhibit 30
Jacobs Decl. in Opposition,
Exhibit 36
Jacobs Decl. in Opposition,
Exhibit 38
Plaintiff’s Opposition to
Defendant’s MIL No. 5
Declaration of Whitty
Somvichian in Support of
Plaintiff’s Opposition to
Defendant’s MIL Nos. 1-5,
Exhibit 77
Trial Exhibit 163
VMware’s Charging
Conference Statement
Gonzalez Exhibit 1

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III.

CONCLUSION
While Civil Local Rule 79-5(f)(3) typically requires the parties to file all required revised

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redacted versions within 7 days, in the interest of receiving all revised documents in advance of

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the April 17, 2017 charging conference, the parties are ORDERED to file all revised documents

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by 5:00 p.m. on April 12, 2017. In addition, while VMware attorney Krystia Przepiorski provided

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a specific reason for sealing Exhibits 19 and 20 to the Declaration of Michael A. Jacobs in

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Opposition to Plaintiff’s MIL Nos. 1-5, see Dkt. No. 230-2, such a request was not included in the

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motion to seal itself, see Dkt. No. 230. The Court will thus allow VMware the opportunity to file

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such a request by 5:00 p.m. on April 12, 2017, if it chooses to do so.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: 4/10/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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