Abaxis, Inc. v. Cepheid
Filing
203
ORDER by Judge Lucy H. Koh denying 127 Administrative Motion to File Under Seal; denying 163 Administrative Motion to File Under Seal; denying 168 Administrative Motion to File Under Seal; denying 169 Administrative Motion to File Under Seal; granting in part and denying in part 176 Administrative Motion to File Under Seal; denying 180 Administrative Motion to File Under Seal; denying 182 Administrative Motion to File Under Seal; denying 184 Administrative Motion to File Under Seal (lhklc4, COURT STAFF) (Filed on 8/8/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
For the Northern District of California
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ABAXIS, INC.,
Plaintiff,
v.
CEPHEID,
Defendant.
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING
ADMINISTRATIVE MOTIONS TO
SEAL
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Before the Court are administrative motions to seal related to Cepheid’s motion for
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summary judgment, Abaxis’s Daubert motion, Abaxis’s motion for relief from Magistrate Judge
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Lloyd’s non-dispositive pretrial order, and the parties’ July 27, 2012 joint case management
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statement (“Sealing Motions”). See Dkt. Nos. 127, 163, 168, 169, 176, 180, 182, 184.
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Historically, courts have recognized a “general right to inspect and copy public records and
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documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S.
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589, 597 & n. 7 (1978). Unless a particular court record is one “traditionally kept secret,” a “strong
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presumption in favor of access” is the starting point. Foltz v. State Farm Mutual Auto. Insurance
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Company, 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to seal a judicial record then bears
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the burden of overcoming this strong presumption by meeting the “compelling reasons” standard.
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Id. at 1135. That is, the party must “articulate[ ] compelling reasons supported by specific factual
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findings,” id. (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1102-03 (9th
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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Cir. 1999)), that outweigh the general history of access and the public policies favoring disclosure,
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such as the “ ‘public interest in understanding the judicial process.’ ” Hagestad, 49 F.3d at 1434
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(quoting EEOC v. Erection Co., 900 F.2d 168, 170 (9th Cir. 1990)).
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The Ninth Circuit has explained that the “strong presumption of access to judicial records
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applies fully to dispositive pleadings, including motions for summary judgment and related
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attachments” because “the resolution of a dispute on the merits, whether by trial or summary
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judgment, is at the heart of the interest in ensuring the “public’s understanding of the judicial
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process and of significant public events.” Kamakana v. City and County of Honolulu, 447 F.3d
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1172, 1177 (9th Cir. 2006). The Ninth Circuit has carved out an exception to the strong
United States District Court
For the Northern District of California
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presumption of openness for pre-trial, non-dispositive motions. The Ninth Circuit applies a “good
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cause” showing to keep sealed records attached to non-dispositive motions. Id. at 1180. Thus the
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Court applies a two tiered approach: “judicial records attached to dispositive motions [are treated]
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differently from records attached to non-dispositive motions. Those who seek to maintain the
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secrecy of documents attached to dispositive motions must meet the high threshold of showing that
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‘compelling reasons’ support secrecy” while a showing of good cause will suffice at earlier stages
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of litigation. Id.
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As Judge Alsup explained in Oracle America v. Google, Inc., 10-CV-03561-WHA, at ECF
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No. 540, “The United States district court is a public institution, and the workings of litigation must
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be open to public view. Pretrial submissions are a part of trial.” Accordingly, Judge Alsup advised
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counsel that “unless they identify a limited amount of exceptionally sensitive information that truly
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deserves protection, the motions will be denied outright.” Id.
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I. Sealing Motions related to Cepheid’s motion for summary judgment
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Abaxis seeks to seal a broad swath of material related to Cepheid's motion for summary
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judgment. This material includes seventeen full exhibits submitted by Cepheid in support of its
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motion for summary judgment (see Dkt. No. 174), ten full exhibits submitted by Abaxis in its
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opposition to Cepheid's motion (see Dkt. No. 180), and one full exhibit submitted by Cepheid in
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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support of its reply to Abaxis's opposition (see Dkt. No. 187), as well as portions of the briefing
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that quote from, refer to, or otherwise rely on these exhibits. See Dkt. Nos. 174, 180, and 187.
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In light of the Ninth Circuit’s admonition in Kamakana regarding the presumption of
openness and the high burden placed on sealing documents at this late, merits stage of the
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litigation, it appears that Abaxis has overdesignated confidential documents and is seeking to seal
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information that is not truly sealable under the “compelling reasons” standard. Particularly glaring
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sealing excesses include deposition testimony that an event “was in the public,” and deposition
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testimony as to the formula for calculating the volume of a sphere. See Dkt. 174, Ex. A at 4; id.,
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Ex. A at 20 n.10. Furthermore, Abaxis has provided only general assertions that the entirety of the
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United States District Court
For the Northern District of California
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designated material contains confidential business information of Abaxis or third parties. See Dkt.
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Nos. 174, 180, and 187. Accordingly, the sealing motions related to Cepheid’s motion for
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summary judgment, Dkt. Nos. 169, 180, and 184, are DENIED without prejudice.
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II. Sealing Motions related to Abaxis’s Daubert motion
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Both parties seek to seal material related to Abaxis’s Daubert motion to exclude testimony
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of Cepheid’s expert Dr. Williams. See Dkt. Nos. 169, 180, 184. These Daubert Sealing Motions
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have a more limited scope than the Sealing Motions related to Cepheid’s motion for summary
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judgment, and the Court addresses the Daubert Sealing Motions in greater detail in an attempt to
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provide the parties with further guidance.
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A. Motion to seal Abaxis’s Daubert motion
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Abaxis filed an administrative motion to seal exhibits Exs. 3-6 of the Rodriguez Declaration
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in support of Abaxis’s Daubert motion, and to seal portions of Abaxis’s brief that quote from, cite
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to, or otherwise rely on these exhibits. See Dkt. No. 168. These exhibits were designated
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confidential by Cepheid. See id. However, Cepheid states that Ex. 3 and Ex. 6, Dr. Williams’
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expert reports, are confidential only to the extent that these reports refer to Abaxis’s own
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confidential information. See Dkt. No. 175. Consequently, if Abaxis seeks to seal any portion of
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these expert reports, Abaxis must submit a narrowly tailored motion including proposed redactions.
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Ex. 4 contains deposition testimony, portions of which may relate to Cepheid’s trade secret
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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technology. However, the Court notes that the most relevant portion of the testimony simply states
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that IVEK pumps are thirty year old technology that “[e]verybody in the industry uses,” which is
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not sealable trade secret information. Further, the Court finds that the resume of third party Mr.
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Chang, a current Cepheid employee, Ex. 5, is not sealable under the “compelling reasons”
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standard. Accordingly, the Court DENIES without prejudice the motion to seal portions of
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Abaxis’s Daubert motion and related exhibits because this sealing motion has not identified “a
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limited amount of exceptionally sensitive information,” See Oracle America, 10-CV-03561-WHA,
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at ECF No. 540; Dkt. No. 168.
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B. Motion to seal Cepheid’s Daubert opposition
United States District Court
For the Northern District of California
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Cepheid filed an administrative motion to seal Exs. A and K of the Carlson Declaration in
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support of Cepheid’s Daubert opposition, and to seal portions of Cepheid’s brief that quote from,
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cite to, or otherwise rely on these exhibits. See Dkt. No. 176. Abaxis had previously designated
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these exhibits confidential. See id. However, Abaxis’s declaration in support of this sealing
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motion de-designates Ex. A, and seeks to redact only a narrowly tailored portion of the second
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exhibit, Ex. K, which discusses Abaxis’s technical trade secret information. See Dkt. No. 181.
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Furthermore, Abaxis does not seek to redact any portion of Cepheid’s opposition brief. See id.
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Accordingly, the Court GRANTS Cepheid’s administrative motion to seal Cepheid’s Opposition,
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as limited in Abaxis’s supporting declaration and proposed order. See Dkt. No. 181.
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C. Motion to seal Cepheid’s Daubert reply
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Abaxis filed an administrative motion to seal portions of its Daubert reply that relate to Ex.
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3 of the Rodriguez Declaration filed in support of Abaxis’s Daubert motion. See Dkt. No. 182.
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Abaxis seeks to seal the reply passages related to Ex. 3 on the grounds that Cepheid designated Ex.
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3 confidential. Id. These passages include potentially confidential information relating to Abaxis’s
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commercial agreements with third parties, and likely non-confidential information such as Dr.
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William’s opinions as to the scope of prior art patents. Id. Cepheid has not filed a supporting
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declaration as required by Civil Local Rule 79-5(d). However, Cepheid has previously declared
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that Ex. 3, Dr. Williams’ opening expert report, is confidential only to the extent that the report
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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refers to confidential Abaxis information. See Dkt. No. 175 (Cepheid’s 79-5(d) declaration in
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support of Abaxis’s motion to seal Abaxis’s Daubert motion). As the Court explained in ruling on
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Abaxis’s motion to seal Abaxis’s Daubert motion, if Abaxis seeks to seal trade secrets contained in
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any portion of Dr. William’s expert report or the related Daubert briefing, Abaxis must submit a
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narrowly tailored motion. Accordingly, the Court DENIES without prejudice Abaxis’s
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administrative motion to seal portions of its Daubert reply brief.
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III. Motion to file under seal portions of Abaxis’ motion for relief from Magistrate Judge
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Lloyd’s non-dispositive pretrial Order
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Abaxis filed an administrative motion to seal portions of its motion for relief that discuss
United States District Court
For the Northern District of California
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evidence that Cepheid had designated confidential. See Dkt. No. 163. Cepheid’s supporting
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declaration limited the requested sealing to only a single sentence. See Dkt. No. 164. The Court
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DENIES this motion to seal with prejudice because it appears the purportedly confidential material
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has since been discussed in open court. See Dkt. No. 201 at 84:14-22.
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IV. Motion to file under seal portions of the parties’ February 27, 2012 joint case
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management statement
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Cepheid seeks to seal a single sentence in the parties’ February 27, 2012 joint case
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management statement. See Dkt. Nos. 127 and 132. This sentence does not appear to contain any
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information that is not readily apparent in the surrounding paragraph. Accordingly, the Court
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DENIES with prejudice the administrative motion to seal the joint case management statement.
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V. Conclusion
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The Court DENIES without prejudice the Sealing Motions related to Cepheid’s motion for
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summary judgment. See Dkt. Nos. 169, 180, and 184. The Court DENIES without prejudice the
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Sealing Motions related to Abaxis’s Daubert motion and Daubert reply. See Dkt. No. 168 and
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182. The Court GRANTS Cepheid’s motion to seal portions of its Daubert opposition, as limited
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in Abaxis’s supporting declaration. See Dkt. Nos. 176 and 181. The Court DENIES with prejudice
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Abaxis’s motion to file under seal portions of its motion for relief. See Dkt. No. 163. The Court
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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DENIES with prejudice the administrative motion to seal portions of the February 27, 2012 joint
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case management statement. See Dkt. No. 127.
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The parties may file renewed motions to seal within one week of the date of this Order.
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However, the parties are ORDERED to carefully scrutinize the documents they seek to seal. At this
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stage of the proceedings, the presumption of openness will apply to all documents and only
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documents of exceptionally sensitive information that truly deserve protection will be allowed to
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be redacted or kept from the public. Nearly all of the documents which met the lower, “good
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cause” standard do not meet the higher, “compelling reasons” standard for trial.
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IT IS SO ORDERED.
United States District Court
For the Northern District of California
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Dated: August 8, 2012
_________________________________
LUCY H. KOH
United States District Judge
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Case No.: 10-CV-2840-LHK
ORDER GRANTING AND DENYING ADMINISTRATIVE MOTIONS TO SEAL
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