Avago Technologies Fiber IP (Singapore) PTE. Ltd. v. IPtronics Inc. et al

Filing 498

OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND MOTION TO FILE SUR-REPLY by Judge Paul S. Grewal granting 462 ; denying 465 ; granting-in-part and denying-in-part 477 ; denying 479 ; granting 496 . (psglc1S, COURT STAFF) (Filed on 1/12/2015)

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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AVAGO TECHNOLOGIES, INC., et al.,

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Plaintiffs,
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v.
IPTRONICS INC., et al.,

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Defendants.

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS
TO SHORTEN TIME, MOTIONS TO
SEAL AND MOTION TO FILE SURREPLY
(Re: Docket Nos. 462, 465, 477, 479, 496)

Plaintiffs have filed two motions to shorten time and two motions to seal. Defendants have
filed a motion to file a sur-reply. The court DENIES the motions to shorten time, GRANTS-INPART the motions to seal and GRANTS the motion to file a sur-reply.

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I.
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Pursuant to Civil L.R. 6-3, Plaintiffs seek to shorten time on motions to compel at Docket

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Nos. 463 and Docket No. 478.1 Plaintiffs must make efforts “to obtain a stipulation to the time

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See Docket Nos. 465, 479.

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY

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change.”2 “If the motion is to shorten time for the Court to hear a motion,” Plaintiffs must

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“[d]escribe[] the moving party’s compliance with Civil L.R. 37-1(a).”3 Local Rule 37-1(a)

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provides that the “Court will not entertain a request or a motion to resolve a disclosure or discovery

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dispute unless, pursuant to Fed. R. Civ. P. 37, counsel have previously conferred for the purpose of

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attempting to resolve all disputed issues.”4 A conference between counsel must be a direct

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dialogue in person or by telephone.5 A party may be sanctioned for failing to confer as required.6

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Plaintiffs contend they have diligently sought discovery, the March 3, 2015 fact discovery

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cut-off deadline is fast approaching and a hearing date of January 27, 2015 would prejudice

United States District Court
For the Northern District of California

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Plaintiffs as to any follow-up on the motions to compel.7 Defendants and Counterclaimants oppose

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because “there is no good cause and [Plaintiffs] ignored the rules”—there was no meet and confer.8

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The court agrees with Defendants that the parties must follow the Civil Local Rules and engage in

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genuine efforts to meet and confer. Plaintiffs’ motions to shorten time are DENIED.

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II.
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Defendants and Counterclaimants move to file a sur-reply in support of Plaintiffs’ motion

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to compel the production of documents because Plaintiffs filed in their reply “new and factually

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Civil L.R. 6-3(a)(2).

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Civil L.R. 6-3(a)(4).

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Civil L.R. 37-1(a).

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See Civil L.R. 1-5(n) (“The mere sending of a written, electronic . . . communication . . . does not
satisfy a requirement to ‘meet and confer’ or to ‘confer.’ Rather, this requirement can be satisfied
only through direct dialogue and discussion – either in a face to face meeting or in a telephone
conversation.”).

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See, e.g., Civil L.R. 37-1(a).

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See Docket Nos. 465, 479.

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Docket No. 483 at 1.

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY

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incorrect arguments” not previously raised.9 Having considered the papers and arguments, the

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court GRANTS Defendants’ motion. Defendants’ proposed sur-reply and supporting declaration

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are deemed filed as of the date of this order.

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III.

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In two motions, Plaintiffs seek to file 13 documents under seal.10 “Historically, courts have
recognized a ‘general right to inspect and copy public records and documents, including judicial
records and documents.’”11 Accordingly, when considering a sealing request, “a ‘strong
presumption in favor of access’ is the starting point.”12 Parties seeking to seal judicial records

United States District Court
For the Northern District of California

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relating to dispositive motions bear the burden of overcoming the presumption with “compelling

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reasons” that outweigh the general history of access and the public policies favoring disclosure.13

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However, “while protecting the public's interest in access to the courts, we must remain
mindful of the parties' right to access those same courts upon terms which will not unduly harm
their competitive interest.”14 Records attached to nondispositive motions therefore are not subject

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to the strong presumption of access.15 Because the documents attached to nondispositive motions

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“are often unrelated, or only tangentially related, to the underlying cause of action,” parties moving

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to seal must meet the lower “good cause” standard of Rule 26(c).16 As with dispositive motions,

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See Docket No. 496 at 1.

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See Docket Nos. 462, 477.

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Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)).

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Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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Id. at 1178-79.

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Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).

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See id. at 1180.

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Id. at 1179 (internal quotations and citations omitted).

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY

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the standard applicable to nondispositive motions requires a “particularized showing”17 that

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“specific prejudice or harm will result” if the information is disclosed.18 “Broad allegations of

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harm, unsubstantiated by specific examples of articulated reasoning” will not suffice.19 A

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protective order sealing the documents during discovery may reflect the court’s previous

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determination that good cause exists to keep the documents sealed,20 but a blanket protective order

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that allows the parties to designate confidential documents does not provide sufficient judicial
scrutiny to determine whether each particular document should remain sealed.21
In addition to making particularized showings of good cause, parties moving to seal

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United States District Court
For the Northern District of California

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documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to

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Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document

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is “sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under

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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and
must conform with Civil L.R. 79-5(d).”22 “Within 4 days of the filing of the Administrative

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Id.

Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002);
see Fed. R. Civ. P. 26(c).

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Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).

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See Kamakana, 447 F.3d at 1179-80.

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See Civ. L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order that allows a party to
designate certain documents as confidential is not sufficient to establish that a document, or
portions thereof, are sealable.”).

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Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a “proposed
order that is narrowly tailored to seal only the sealable material” which “lists in table format each
document or portion thereof that is sought to be sealed,” Civ. L.R. 79-5(d)(1)(b), and an
“unreadacted version of the document” that indicates “by highlighting or other clear method, the
portions of the document that have been omitted from the redacted version.”
Civ. L.R. 79-5(d)(1)(d).

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY

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Motion to File Under Seal, the Designating Party must file a declaration as required by subsection
79-5(d)(1)(A) establishing that all of the designated material is sealable.”23
With these standards in mind, the courts rules on the instant motions as follows:

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Motion
Docket No.
462
Docket No.
477

Document to be Sealed
Exhibit C to the
Declaration of Adrienne
Hunacek Miller
Avago’s Motion to
Compel

Result
Highlighted portions indicated
in Docket No. 462-4
SEALED.
14:4-23, 17:1-18 SEALED.
Remainder UNSEALED.

Docket No.
477
Docket No.
477

Exhibit 5 to the Stagg
Motion Declaration
Exhibit 10 to the Stagg
Motion Declaration

UNSEALED.

Docket No.
477

Exhibit 11 to the Stagg
Motion Declaration

Docket No.
477

Exhibit 12 to the Stagg
Motion Declaration

Highlighted portions indicated
in Docket No. 477-10
SEALED.
UNSEALED.

Docket No.
477

Exhibit 13 to the Stagg
Motion Declaration

Docket No.
477

Exhibit 14 to the Stagg
Motion Declaration

Docket No.
477

Exhibit 15 to the Stagg
Motion Declaration

UNSEALED.

Docket No.
477
Docket No.
477
Docket No.
477
Docket No.
477

Exhibit 16 to the Stagg
Motion Declaration
Exhibit 17 to the Stagg
Motion Declaration
Exhibit 18 to the Stagg
Motion Declaration
Exhibit 21 to the Stagg
Motion Declaration

UNSEALED.

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United States District Court
For the Northern District of California

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12:11-15 SEALED.
Remainder UNSEALED.

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Highlighted portions indicated
in Docket No. 477-14
SEALED.
UNSEALED.

UNSEALED.
UNSEALED.
187:3-10 and 21-25 SEALED;
remainder UNSEALED.

Reason/Explanation
Narrowly tailored to
confidential business
information.
Only sealed portions
narrowly tailored to
confidential business
information and
supported by a
declaration.
Not supported by a
declaration.
Only sealed portions
narrowly tailored to
confidential business
information and
supported by a
declaration.
Narrowly tailored to
confidential business
information.
Blank page filed; not
properly supported
by a declaration.
Narrowly tailored to
confidential business
information.
Blank page filed; not
properly supported
by a declaration.
Blank page filed; not
properly supported
by a declaration.
Not supported by a
declaration.
Not supported by a
declaration.
Not supported by a
declaration.
Narrowly tailored to
confidential business
information.

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Civ. L.R. 79-5(e)(1).

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY

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SO ORDERED.
Dated: January 12, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
For the Northern District of California

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Case No.: 5:10-cv-02863-EJD
OMNIBUS ORDER RE: MOTIONS TO SHORTEN TIME, MOTIONS TO SEAL AND
MOTION TO FILE SUR-REPLY