Phoenix Technologies Ltd. v. VMware, Inc.
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS ( 460 , 482 ) ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL.(ndrS, COURT STAFF) (Filed on 2/14/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PHOENIX TECHNOLOGIES LTD.,
Plaintiff,
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v.
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VMWARE, INC.,
Defendant.
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United States District Court
Northern District of California
Case No.15-cv-01414-HSG
ORDER GRANTING DEFENDANT’S
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL
Re: Dkt. Nos. 460, 482
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Pending before the Court are two unopposed motions to seal by Defendant VMware, Inc.
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See Dkt. Nos. 460, 482. For the reasons set forth below, the Court GRANTS the motions.
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I.
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BACKGROUND
On August 17, 2017, Defendant filed a motion for attorney’s fees and costs. Dkt. No. 462.
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Also on August 17, Defendant filed a Bill of Costs, Dkt. No. 461, accompanied by a motion to
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seal certain documents relating to the motion for attorney’s fees and the Bill of Costs, Dkt. No.
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460. On September 14, 2017, Defendant filed an Amended Bill of Costs. Dkt. No. 478. No
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motion to seal accompanied that filing. Then, on September 20, 2017, Defendant filed a Second
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Amended Bill of Costs, Dkt. No. 483, accompanied by another motion to seal portions of the
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latter. Dkt. No. 482.
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While Defendant was not clear as to the relation between the two motions to seal, it
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appears that the second motion, Dkt. No. 482, does not supersede or moot the first motion, Dkt.
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No. 460. For example, in its first motion, Defendant sought to seal portions of Exhibit 1 to the
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Declaration of Michael A. Jacobs, filed in support of the motion for attorney’s fees, as well as the
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following documents filed in support of the Bill of Costs: Schedule E, Schedule F, the Declaration
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of Claudia Galvez, and Exhibit 1 to the Declaration of Farhad Hajimirzaee. See Dkt. No. 460. In
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its second motion, Defendant sought only to seal the Second Revised Schedule F, which it filed in
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support of its Second Amended Bill of Costs. See Dkt. No. 482.
Given this ambiguity, the Court will address each of the requests for sealing in both
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motions.
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II.
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LEGAL STANDARD
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, 678 (9th Cir. 2010) (quoting Kamakana
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v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from
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the common law right ‘to inspect and copy public records and documents, including judicial
records and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in
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United States District Court
Northern District of California
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favor of access is the starting point.” Kamakana, 447 F.3d at 1178 (quotation omitted). To
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overcome this strong presumption, the party seeking to seal a judicial record attached to a
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dispositive motion must “articulate compelling reasons supported by specific factual findings that
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outweigh the general history of access and the public policies favoring disclosure, such as the
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public interest in understanding the judicial process” and “significant public events.” Id. at 1178-
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79 (quotation omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s
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interest in disclosure and justify sealing court records exist when such ‘court files might have
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become a vehicle for improper purposes,’ such as the use of records to gratify private spite,
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promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179
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(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the
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production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further
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litigation will not, without more, compel the court to seal its records.” Id.
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The Court must “balance[] the competing interests of the public and the party who seeks to
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keep certain judicial records secret. After considering these interests, if the court decides to seal
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certain judicial records, it must base its decision on a compelling reason and articulate the factual
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basis for its ruling, without relying on hypothesis or conjecture.” Id. Civil Local Rule 79-5
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supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a
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document or portions of it under seal must “establish[] that the document, or portions thereof, are
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privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . The
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request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b).
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Records attached to nondispositive motions are not subject to the strong presumption of
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access. See Kamakana, 447 F.3d at 1179. Because the documents attached to nondispositive
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motions “are often unrelated, or only tangentially related, to the underlying cause of action,”
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parties moving to seal must meet the lower “good cause” standard of Rule 26(c) of the Federal
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Rules of Civil Procedure. Id. at 1179-80 (quotation omitted). The “good cause” standard requires
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a “particularized showing” that “specific prejudice or harm will result” if the information is
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disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir.
2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific
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United States District Court
Northern District of California
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examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966
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F.2d 470, 476 (9th Cir. 1992) (quotation omitted).
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III.
ANALYSIS
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Because a motion for attorney’s fees and costs and a bill of costs are nondispositive
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motions, the Court applies the “good cause” standard to Defendant’s motions to seal. Defendant’s
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overarching argument is that the material it seeks to seal “contains or discusses highly confidential
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business information about the negotiated payments that VMware made to its contract attorneys,
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e-discovery vendors, and graphics consultants supporting VMware in this lawsuit.” Dkt. No. 460
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at 2; see also Dkt. No. 482 at 1. The Court considers each document in turn.
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A.
Exhibit 1 to the Declaration of Michael A. Jacobs in Support of Defendant’s
Motion for Attorney’s Fees and Costs
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Defendant moves to seal portions of Exhibit 1 to the Declaration of Michael A. Jacobs in
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support of its motion for attorney’s fees and costs, Dkt. No. 460 at 1, which Defendant contends
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“contain[s] highly sensitive business information involving the confidential information about the
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amount it paid contract attorneys through Hire Counsel,” Dkt. No. 460-1 (Declaration of Claudia
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Galvez in Support of the Motion to Seal, or “Galvez Decl.”) ¶ 3. Hire Counsel “assist[ed] with
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legal staffing during discovery,” and Defendant argues the portion of the declaration which it
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seeks to have sealed “constitute[s] VMware’s and its third party vendors’ highly sensitive business
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information.” Id. ¶ 4.
Upon review of the exhibit, the Court finds that the negotiated pricing terms Defendants
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seek to seal constitute “business information that might harm a litigant’s competitive standing” if
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publicly disclosed. See Nixon, 435 U.S. at 598 (citation omitted). Moreover, the redaction is
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sufficiently “narrowly tailored” such that Defendant is seeking to seal only those portions of the
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exhibit that might put sensitive business information at risk. Accordingly, the Court grants
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Defendant’s motion as to this exhibit.
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B.
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Schedules E and F in Support of Defendant’s Bill of Costs; Declaration of
Claudia Galvez in Support of Defendant’s Bill of Costs; Exhibit 1 to the
Declaration of Farhad Hajimirzaee in Support of Defendant’s Bill of Costs
Defendant next moves to seal portions of Schedules E and F, the Declaration of Claudia
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United States District Court
Northern District of California
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Galvez (in Support of the Bill of Costs), and Exhibit 1 to the Declaration of Farhad Hajimirzaee,
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all of which it filed in support of its Bill of Costs. Dkt. No. 460 at 1. With the exception of
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Schedule F, Defendant argues these documents “reveal highly-confidential pricing terms charged
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by Discovia and OpenAxes, third-party vendors who provided VMware with eDiscovery services
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in this lawsuit.” Id.; see also Galvez Decl. ¶ 5 (characterizing these documents as “contain[ing]
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highly sensitive business information involving the confidential information about the amount it
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paid third-party e-discovery and visual aid vendors”). Schedule F “contains invoices from Impact
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Trial Consulting and Core TrialTech, third-party vendors who provided VMware with trials
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graphics, foam boards, and deposition designation clips during trial.” Dkt. No. 460 at 3.
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Defendant seeks to seal Schedule F because it contains the “negotiated rates” the vendors charged
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VMware. See id.; see also Galvez Decl. ¶ 7 (“Both Impact Trial Consulting’s and Core
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TrialTech’s financial information is contained in the invoices attached in Schedule F.”).
Upon review of Exhibit 1 to the Hajimirzaee Declaration, the Declaration of Claudia
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Galvez (in Support of the Bill of Costs), and Schedules E and F, the Court finds that the pricing
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and rates information therein is sealable material, see Nixon, 435 U.S. at 598, and sufficiently
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narrowly tailored. Accordingly, the Court grants Defendant’s motion as to these documents.
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//
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//
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C.
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Second Revised Schedule F in Support of Defendant’s Second Amended Bill of
Costs
Last, Defendant moves to seal portions of the Second Revised Schedule F, which it filed in
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support of its Second Amended Bill of Costs. Dkt. No. 482 at 1.1 Defendant contends that the
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Second Revised Schedule F contains invoices from Impact Trial Consulting and CoreTrial Tech,
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as well as “Impact’s internal descriptions of [its] invoices.” Id. at 1-2. It claims an “interest[] in
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maintaining the confidentiality of highly-sensitive business and pricing information.” Id. at 2; see
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also Dawson Decl. ¶ 4.
Upon review of the Second Revised Schedule F, the Court finds that the pricing
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information and billing designations therein are sealable material, see Nixon, 435 U.S. at 598, and
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sufficiently narrowly tailored. Accordingly, the Court grants Defendant’s motion as to the Second
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United States District Court
Northern District of California
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Revised Schedule F.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motions to seal. Under Civil
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Local Rule 79-5(f)(1), the unredacted versions of the documents specified in Defendant’s motions
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will remain under seal and the public will have access only to the redacted versions originally filed
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by Defendant:
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Exhibit 1 to the Declaration of Michael A. Jacobs. See Dkt. No. 460-3 (redacted);
Dkt. No. 460-4 (sealed).
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2.
Schedule E. See Dkt. No. 460-9 (redacted); Dkt. No. 460-10 (sealed).
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3.
Schedule F. See Dkt. No. 460-11 (redacted); Dkt. No. 460-12 (sealed).
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4.
Declaration of Claudia Galvez (in Support of the Bill of Costs). See Dkt. No. 4607 (redacted); Dkt. No. 460-8 (sealed).
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5.
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Exhibit 1 to the Declaration of Farhad Hajimirzaee. See Dkt. No. 460-5 (redacted);
Dkt. No. 460-6 (sealed).
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In its original Bill of Costs, Defendant sought to seal Schedule F. See Dkt. No. 460 at 3; Galvez
Decl. I ¶ 7. Defendant then filed an Amended Bill of Costs, and a Revised Schedule F. See Dkt.
No. 478. No motion to seal accompanied the Amended Bill of Costs. Defendant thereafter
revised Schedule F again, and here seeks to seal the Second Revised Schedule F. See Dkt. No.
482-1 (Declaration of Shaelyn Dawson, or “Dawson Decl.”) ¶ 3.
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Second Revised Schedule F. See Dkt. No. 482-2 (redacted); Dkt. No. 482-3
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(sealed).
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IT IS SO ORDERED.
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Dated: 2/14/2018
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HAYWOOD S. GILLIAM, JR.
United States District Judge
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United States District Court
Northern District of California
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