Windy City Innovations, LLC v. Facebook, Inc.

Filing 216

ORDER RE: PENDING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND MOTION TO UNLOCK THE DECLARATION OF SHANE O'REILLY by Judge Yvonne Gonzalez Rogers ; denying as moot and documents stricken 127 Administrative Motion to File Under Seal; deny ing as moot and documents stricken 130 Administrative Motion to File Under Seal; denying as moot and documents stricken 132 Administrative Motion to File Under Seal; denying as moot 151 Administrative Motion to File Under Seal; denying a s moot 154 Administrative Motion to File Under Seal; denying as moot 159 Administrative Motion to File Under Seal; denying as moot 161 Administrative Motion to File Under Seal; denying as moot 166 Motion ; denying as moot 175 Administr ative Motion to File Under Seal; denying as moot 180 Administrative Motion to File Under Seal; denying as moot 184 Administrative Motion to File Under Seal; denying as moot 187 Administrative Motion to File Under Seal; denying as moot 190 Administrative Motion to File Under Seal; denying as moot 194 Administrative Motion to File Under Seal; denying as moot 198 Administrative Motion to File Under Seal; granting 209 Administrative Motion to File Under Seal; granting 213 Administrative Motion to File Under Seal. (fs, COURT STAFF) (Filed on 9/25/2019) Modified on 9/25/2019 (fs, COURT STAFF). Modified on 9/25/2019 (fs, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 WINDY CITY INNOVATIONS, LLC, 7 8 9 Plaintiff, v. FACEBOOK, INC., et al., 10 Defendant, 11 Northern District of California United States District Court 12 Case No.: 16-CV-1730 YGR ORDER RE: PENDING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL AND MOTION TO UNLOCK THE DECLARATION OF SHANE O’REILLY Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 166, 175, 180, 184, 187, 190, 194, 198, 209, 213 Currently pending before the Court are administrative motions to seal various 13 documents filed in connection with the parties’ papers in support of and in opposition to 14 Facebook’s Motion to Dismiss and Motion for Summary Judgment and the parties’ Daubert 15 motions. (Dkt. Nos. 127, 130, 132, 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, 198, 209, 16 213.) In addition, Facebook filed an Administrative Motion to Unlock Declaration of Shayne 17 O'Reilly. (Dkt. No. 166.) The Court has reviewed the filings in connection with the pending 18 motions thoroughly, and ORDERS as follows: 19 1. With respect to the motions to seal at Docket Nos. 127, 130, and 132, submitted 20 in connection with Facebook’s Motion to Dismiss on standing grounds, that motion to dismiss 21 was withdrawn at the request of Facebook in favor of incorporating its arguments into the 22 motion for summary judgment. (Dkt. No. 149.) Thus, the motion to seal is DENIED AS MOOT 23 and the documents filed provisionally under seal in connection with those motions are 24 STRICKEN. 25 2. The filings at Docket Nos. 209 and 213 are Joint Administrative Motions to Seal 26 which narrowed the scope of the sealing sought in the motions filed in connection with the 27 summary judgment and Daubert motions and withdrew the original motions. In light of this, 28 1 the motions filed at Docket Nos. 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, and 198 are 2 DENIED AS MOOT. 3 a. 4 summary judgment, replacement versions of the following documents were filed at 5 Docket No. 211: 6 In light of the parties’ withdrawal of certain prior sealing requests in connection 7 • • 8 • 9 • • 10 11 Facebook’s Motion for Summary Judgment; Exhibits 1, 2, 3, 8, 10, 18, 19 and 20 to the Declaration of Phillip E. Morton in Support of Facebook’s Motion for Summary Judgment; Exhibits A, B, M, N, O, S, V, AA, BB, CC, DD, EE and GG to the Declaration of Warren J. McCarty, III in Support of Windy City’s Opposition to Facebook’s Motion for Summary Judgment; Facebook’s Reply in Support of Motion for Summary Judgment; and Exhibit 24 to the Declaration of Phillip E. Morton in Support of Facebook’s Reply in Support of Motion for Summary Judgment. Northern District of California United States District Court 12 b. 13 In light of the parties’ withdrawal of certain prior sealing requests in connection the Daubert motions, replacement versions of the following documents were filed at 14 Docket No. 212: 15 16 • 17 • 18 • 19 • 20 • 21 22 Exhibit 13 to the Declaration of Phillip E. Morton in support of Facebook’s opening brief re: Facebook’s Daubert; Windy City’s Daubert, opening brief (Facebook’s opposing brief and Windy City’s reply brief were filed publicly); Exhibit B to the Declaration of Warren J. McCarty, III in support of Windy City’s opening brief re: Windy City’s Daubert; Exhibit C to the Declaration of Warren J. McCarty, III in support of Windy City’s opening brief re: Windy City’s Daubert; and Exhibit J to the Declaration of Warren J. McCarty, III in support of Windy City’s opening brief re: Windy City’s Daubert. 3. With respect to the motion to unlock the declaration of Shane O’Reilly (Dkt. No. 23 166), the motion indicates that the declaration at Dkt. No. 159 was filed inadvertently in 24 connection with Facebook’s motion for summary judgment but was intended to support 25 Facebook’s motion to seal at Dkt. No. 159. Facebook requested that the documents be 26 unlocked, removed from the summary judgment papers and filed with the administrative 27 motion to seal. As the motion to seal has been withdrawn, the motion to unlock is DENIED AS 28 MOOT. 2 1 4. The Joint Administrative Motion to File Under Seal Summary Judgment 2 Briefing and Associated Documents (Dkt. No. 209) is GRANTED. The Court finds that the 3 parties have offered compelling reasons to seal the documents or portions of documents set 4 forth below: 5 6 7 8 9 10 11 Northern District of California United States District Court 12 13 14 15 16 17 18 19 20 21 22 Facebook’s Separate Statement of Undisputed Material Facts at 12: 4-5 (Fact 70) Declaration of Phillip E. Morton In Support of Motion for Summary Judgment: Exhibit 14 at p. 2 Exhibit 21 at p. 132:18 and 11; 133: 2, 10, 18 and 21 Exhibit 23 (in its entirety) Windy City’s Opposition to Facebook’s Motion for Summary Judgment at p. 14:10; 19:12; 21: 2-3; 25:11-12 Windy City’s Responsive Separate Statement of Facts at 17:24-25 (Fact 70) Declaration of Warren J. McCarty III Declaration In Support of Windy City’s Opposition to Motion for Summary Judgment: Exhibit F at pp. 1-3 Exhibit G at pp. 4-15 Exhibit H at pp. 1, 2-7 Exhibit I at pp. 30 and 173 Exhibit J at pp. 1-3 Exhibit K at pp. 1-6 Exhibit P as indicated in the document Exhibit Q (in its entirety) Exhibit R at p. 46 fn.196 and p. 146:10-11 Exhibit T at pp. 124-125 Exhibit U at pp. 1-3 Exhibit W at pp. 1-2 Exhibit X (in its entirety) Exhibit Y (in its entirety) Exhibit Z as indicated in the document 23 24 5. The Joint Administrative Motion to File Under Seal Daubert Briefing and 25 Associated Documents and Exhibits is GRANTED. The Court finds that the parties have offered 26 compelling reasons to seal the documents or portions of documents set forth below: 27 28 Facebook’s Opening Brief in Support of its Daubert Motion: pages (i): 9; 14:21; 2: 1-5, 7-8, 10, 12, 14, 17; 3:9-15, 18-20; 4: 4-10, 16, and 21; 5: 5-6, 8-11, 18; 7: 25; 8: 8-9; 11: 12-14, 18-20; 12: 2-3, 11-12; 13:12-13. 3 1 2 3 4 5 6 7 8 9 10 11 Northern District of California United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Declaration of Phillip E. Morton in Support of Facebook’s Opening Brief in Support of Daubert Motion Exhibit 1 (Weinstein Expert Report) at: o p. 15, image o ¶¶ 49-54 at pp. 23-27 o 29:9-33:10 (including fns. 112-139); o 34:4-39 (including fns. 143-179); o 39:9-41:2 (including fns. 183-191); o 41:8-42:5 5; o 42:11-43:22; and o 46 fn. 196; o 47:10-11, fn. 203; o 49:16; o 50:1, fn. 211; o 51:9-15; o 53: 10-13; o 54, image o 54:14-55:5 o 55:7-56:4; o 59:7-60:10 o 60:11-63:8; o 63:10-16, fns. 258, 260 o 64:1-17 o 65:8-11 o 66: 5, 7-11; o 72: 15-17; o ¶¶ 162-170 at p.73-76 o 75: 13, 15-16; o 76: 1-2, 4-5, 7-8; o 74 at note 292, 293, and 294 o Exhibit 2 at pp. 4-8 o Exhibit 2 at pp. 8-12 o Exhibit 5; o Exhibit 7 (figures in table); o Exhibit 9; o Exhibit 10 o Exhibit 10 (figures in items 10 and 11-14); o Exhibit 11 Exhibit 2: o Exhibit 2 at figures in items 10 and 11-14. o Exhibit 2 at figures 1, 2, 4, 5, 6, 7, 8, 9, 10, 11-14 and note 3. Exhibit 3 (AOL-Windy City Settlement) in its entirety. 28 4 1 2 3 4 5 6 7 8 9 10 11 Northern District of California United States District Court 12 13 14 15 16 Exhibit 4 (Weinstein deposition transcript excerpts) at o 63:17-64:19; o 65:5-8; 65:15-18; o 85:18-25; o 86:3-11; o 86:18-87:2; o 92:3-6; 92:21-24; o 94:18-24; o 97:18—98:3; o 98:5-21; o 99:1-19; o 99:24-100:5; o 102:1-14; o 103:1-25; o 104:10-13; o 106:5-8; 106:15-20; o 122:7-17; o 130:10; o 132: 18, 22; o 133: 2, 10, 18, 21 o 140:3-7; o 145:3-6; o 147:3-16. Exhibit 5 (Microsoft-Windy City Settlement) in its entirety Exhibit 8 (Exhibit 9 to the Weinstein Expert Report) in its entirety 17 18 Exhibit 9 (Microsoft data) in its entirety 19 Exhibit 10 (Microsoft data) in its entirety 20 Exhibit 11 (Microsoft correspondence) in its entirety 21 22 23 24 25 26 27 28 Exhibit 12 (Jones Rebuttal Expert Report) at o 85, image; o 86:2-5 (including image), fn. 31 o 87:16-20. Exhibit 15 (Jones Expert Report) at o 19:16-21 (image); o 23:3-8 (including image); o 23:24-24:2 (including image); o 24:17-22 (including image); and o 25:1-2, fn 46 o 30:17-31 line13 (Table); o 31:14-35:14 (including images and fns. 50-51); 5 1 2 3 4 5 6 7 8 9 10 11 Northern District of California United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o 36:1-14 (image); o 36:17-47:7 (including images, deposition transcript excerpts, and fns. 62-63); o 48:9-55:13 (including images, deposition transcript excerpts, and fns.76-80, 88-91 ); o 57:23-58:8; o 61:7-63:4 (including deposition transcript excerpt, and fns. 101, 102); o 63:12-25; o 70:17-22; o 95:17-96:3; o 100:14-18; o 103:18-104:3; o 110:24-111:16; o 118:13-18; o 118:21-119:10; o 124:14-125:2; o 131:20-133:21 (including deposition transcript excerpts); o 140:1-141:16 (including deposition transcript excerpts); o 141:23-25; o 144:1-145:7 (including images and deposition transcript excerpt); o 145:16-24; o 146:4-149:11 (including deposition transcript excerpts, and fn. 190); o 149:13-153:25 (including images and deposition transcript excerpts); o 156:1-25 (including images); o 160:3-165:10 (including images, deposition transcript excerpts, and fn. 208); o 173:3-26 (Table); o Appendix SC at p. 1 (Table of contents Description for S. 2.10, 2.11 and 2.15); and o Appendix X1 at p. 359 (S.3, image at top); and o Appendix X1 at pp. 360-387 (S. 3, including images) o Appendix SC at pp. 2-26 (S. 1-S. 2.12); o Appendix SC at pp. 28-29 (after Source filename-S. 2.13); o Appendix SC at pp. 30-31 (after Source filename-S. 2.16); and o Appendix SC at pp. 31- 54 (S. 3.1-S. 3.14) Windy City’s Opposition to Facebook’s Daubert Motion pages 8:25-28; 9:1-2; 12:5-6, 23-24; 13:2-7, 10-11; 14:7; 17:6-8. McCarty Declaration in Support of Windy City’s Opposition to Facebook’s Daubert Motion Exhibit A (excerpts of Bakewell Expert Report) at o ¶¶ 15, 118-119, 122-135, 137, 138, 139-48, 150, 152-53, 157, 159, 161, 16363, 166-68, 169, 174, 176, 177; 178- 180; 183; 186; 187; 208, 215, 249, 255, 268, 269 o footnotes 15, 262, 300, 301, 355, 356 o p. 66 (table) o p. 82, Table Row 11 under “Comments” column; o portions of Exhibit 1 tables (terms of licenses and confidential user data). 6 o o o o o o o 1 2 3 4 5 o o o 6 7 8 o o o 9 10 o 11 o Northern District of California United States District Court 12 13 o 14 o o 15 Exhibit 1.0 (All figures regarding two Facebook agreements); Exhibit 2.0 (Tables); Exhibit 2.1 (Tables); Exhibit 3.0 (Table and Summary Box); Exhibit 3.1 (Table and Summary Box); Exhibit 3.2 (Table and Summary Box); Exhibit 4.0 (Figures for Facebook Royalty Base, Effective Royalty Rate, and Effective Royalty); Exhibit 4.1 (Figures in box at right); Exhibit 4.2 (Figures in box at right); Exhibit 5.0 (Figures for Facebook Royalty Base, Effective Royalty Rate, and Effective Royalty); Exhibit 5.1 (Figures in box at right); and Exhibit 5.2 (Figures in box at right) Exhibit 6.0 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right; fn.2); Exhibit 6.1 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right; fn.2); Exhibit 7.0 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right); Exhibit 7.1 (Figures in rows for Amounts paid by Facebook and Amount Paid Per Year of Operating Freedom; Figures in box at right); Exhibit 9.0 (Table); Exhibit 9.1 (Table) 16 Exhibit B (deposition of Alma Chao) at 23:8-9, 28:20-22, and 30:2-31:1. 17 Exhibit D (Subpoena to Microsoft, portions consisting of the Windy City and Microsoft confidential agreement attached) 18 19 20 e. Facebook’s Reply in Support of Facebook’s Daubert pages 2:10-11, 16; 3:4; 5:23; 6:6-7, 11-13, 16-19; 7:27; 8:7-8, 11-12; 9:13-15, 1819, 21. 21 22 23 24 25 26 27 This order terminates Docket Nos. 127, 130, and 132 (denied as moot and documents stricken); Docket Nos. 151, 154, 159, 161, 175, 180, 184, 187, 190, 194, and 198 (denied as moot); and Docket Nos. 209 and 213 (granted). IT IS SO ORDERED. Date: September 25, 2019 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 28 7

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