Brocade Communications Systems, Inc. et al v. A10 Networks, Inc. et al

Filing 838

ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL by Judge Paul S. Grewal granting in part and denying in part 775 Administrative Motion to File Under Seal; granting in part and denying in part 794 Administrative Motion to File Under S eal; granting in part and denying in part 801 Administrative Motion to File Under Seal; granting in part and denying in part 807 Administrative Motion to File Under Seal; granting in part and denying in part 812 Administrative Motion to File Under Seal (psglc2, COURT STAFF) (Filed on 1/17/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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BROCADE COMMUNICATIONS SYSTEMS, )
INC., ET AL.,
)
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Plaintiffs,
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v.
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A10 NETWORKS, INC., ET AL.,
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Defendants.
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)

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Case No.: C 10-3428 PSG
ORDER GRANTING-IN-PART AND
DENYING-IN-PART BROCADE’S
AND A10’S ADMINISTRATIVE
MOTIONS TO FILE DOCUMENTS
UNDER SEAL
(Re: Docket Nos. 775, 794, 801, 807, 812)

Before the court are several motions by Brocade Communications Systems, Inc., et al,
(“Brocade”) and A10 Networks, Inc., et al (“A10”) to seal various nondispositive and dispositive

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motions and supporting exhibits. Because of the large number of documents designated for
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sealing, the court first reiterates the legal standards for sealing and then summarizes, in table
format, the motions, the parties’ requests, and the result of each request.
I. LEGAL STANDARD

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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.’” 1 Accordingly, when considering a sealing

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Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).
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Case No.: C 10-03428 PSG
ORDER

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request, “a strong presumption in favor of access is the starting point.” 2 Parties seeking to seal

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judicial records relating to dispositive motions bear the burden of overcoming the presumption

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with “compelling reasons” that outweigh the general history of access and the public policies

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favoring disclosure. 3

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Records attached to nondispositive motions are not subject to the strong presumption of
access. 4 Because the documents attached to nondispositive motions “are often unrelated, or only

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tangentially related, to the underlying cause of action,” parties moving to seal must meet the lower
“good cause” standard of Rule 26(c). 5

United States District Court
For the Northern District of California

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Both dispositive motions and nondispositive motions require a “particularized showing” 6

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that “specific prejudice or harm will result” if the information is disclosed. 7 “[B]road allegations

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of harm, unsubstantiated by specific examples or articulated reasoning” will not suffice. 8 A

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protective order sealing the documents during discovery may reflect the court’s previous
determination that good cause or compelling reasons exist to keep the documents sealed, 9 but a

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blanket protective order that allows the parties to designate confidential documents does not

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provide sufficient judicial scrutiny to determine whether each particular document should remain

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sealed. 10

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Id.

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Id. at 1178-79.

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See id. at 1180.

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

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Id.

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

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Id.

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See id. at 1179-80.

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See Civil L.R. 79-5(a).
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Case No.: C 10-03428 PSG
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In addition to making particularized showings of good cause, parties moving to seal

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documents must comply with the procedures established by Civil Local Rule 79-5. The rule allows

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sealing orders only where the parties have “establishe[d] that the document or portions thereof is

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privileged or protectable as a trade secret or otherwise entitled to protection under the law.” 11 As

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this court has previously pointedly noted, the rule requires parties to “narrowly tailor” their

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requests only to sealable material. 12

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II. DISCUSSION

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The motions to seal at issue here involve various post-trial motions by the parties. All of

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United States District Court
For the Northern District of California

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the motions, which include Brocade’s permanent injunction request, 13 A10’s request for judgment

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as a matter of law, 14 and Brocade’s request for entry of judgment pursuant to Fed. R. Civ. P.

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54(b), 15 involve dispositive decisions by this court. For those sealing requests, the parties must

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show compelling reasons for information to remain under seal. The court has considered each of
the documents the parties have designated for sealing and, as articulated in the table below,

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determined which documents may remain under seal or redacted, which documents must be
unsealed, and which sealing requests are overbroad and must be more narrowly tailored.
DN
775

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Request
A10’s and Chen’s Motion for
Judgment as a Matter of Law
under Rule 50(b) or, in the
Alternative, for a New Trial
(“JMOL Motion”)

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Id.

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Id.

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See Docket No. 783.

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See Docket No. 775.

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Result
A10’s request to redact portions of the JMOL
Motion is DENIED WITHOUT PREJUDICE. The
proposed redactions include both Brocade’s trade
secret information and experts’ damages estimates
based on A10’s revenues and expenses. Although
the trade secret information properly may be sealed
because of its proprietary nature, A10 has not
provided compelling reasons why its financial
information should not be disclosed. In light of the

See Docket No. 785.
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Case No.: C 10-03428 PSG
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highly publicized damages awards in this case, the
public has a right to inspect how the jury reached its
determinations and how the court determined that
the damages awards were either supported by
substantial evidence or not.

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Exhibits A, N, Q, S, T, U, W, X,
Y to the Declaration of Scott
Mosko ISO the JMOL Motion

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United States District Court
For the Northern District of California

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A10 may move again to redact only the trade secret
information in its motion.
The request to redact Exhibit A is DENIED
WITHOUT PREJUDICE. The proposed redactions
include information about the Aho-Corasick
algorithm, which is within the public domain, and
Brocade’s copyrighted implementation code of the
algorithm. Neither party has provided compelling
reasons why this information, which is not
confidential in any event, should be sealed.
Because the proposed redactions also include
discussions of trade secrets, which properly may be
sealed, A10 may move again with narrowly tailored
redactions addressing the trade secret testimony.
The request to seal Exhibits S and T are also
DENIED WITHOUT PREJUDICE. Exhibit S
consists of a settlement agreement between A10
and a third party. Exhibit T consists of a licensing
agreement resulting from the settlement. Although
licensing information such as pricing terms, royalty
rates, and minimum payment terms properly may
be redacted, A10 has not provided compelling
reasons for the entire agreement to be sealed. A10
may bring another motion with narrowly tailored
redactions limited to the financial terms in the
agreement.

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A10 requests the following exhibits be sealed in
their entirety. The court DENIES those requests for
the reasons stated below.
• Exhibit N consists of a chart by James
Malackowski, Brocade’s damages expert,
containing A10’s financial information and his
estimates for Brocade’s damages. As the court
noted above, damages information is important
for the public to review in light of the
substantial awards in this case. A10 has not
provided compelling reasons for why this
information should be sealed.
• Exhibit Q is an exhibit where Brocade discloses
its primary and secondary competitors. Neither
party has provided a declaration explaining why
this information would be detrimental if
disclosed. Because neither party has provided
compelling reasons to seal this exhibit, sealing
the contents is inappropriate.

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Case No.: C 10-03428 PSG
ORDER

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794
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United States District Court
For the Northern District of California

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801
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Exhibit X consists of an email from David
Cheng regarding personnel in the company.
Neither party has provided a supporting
declaration showing compelling reasons to seal
the information in this email.
Exhibit Y consists of emails among Brocade
engineers regarding A10’s product. Neither
party has provided a supporting declaration
showing compelling reasons to seal the
information in the email chain.

A10’s request to seal Exhibits U and W are
GRANTED because they consist of proprietary
information.
Brocade’s Opposition to A10’s
The request to seal the entire opposition is DENIED
Motion for Judgment as a Matter WITHOUT PREJUDICE. Although Brocade
of Law Under Rule 50(b) or, in
correctly identifies source code and trade secret
the Alternative, For a New Trial references that, as proprietary information, properly
may be sealed, the opposition also includes
discussions of the patent claims, copyright claims,
and contract claims that are not confidential.
Brocade may move again with narrowly tailored
redactions limited to the proprietary information in
the opposition.
A10’s Opposition to Brocade’s
Because the proposed redactions are limited to
Motion for Entry of Permanent
Brocade’s trade secret information, A10’s request
Injunction (“Opposition to
to seal portions of the declaration is GRANTED.
Permanent Injunction”)
Exhibit A to the Declaration of
Because the proposed redactions are limited to
Scott Mosko ISO A10’s
Brocade’s trade secret information, A10’s request
Opposition to Permanent
to seal portions of the declaration is GRANTED.
Injunction
Declaration of David Klausner
Because the proposed redactions are limited to
ISO A10’s Opposition to
Brocade’s trade secret information, A10’s request
Permanent Injunction
to seal portions of the declaration is GRANTED.
Exhibits B, D, and E
The request to seal Exhibit B in its entirety is
DENIED. Exhibit B consists of a report by James
Malackowski explaining his damages estimates
regarding A10’s trade secret misappropriation. The
report does not provide details about the trade
secrets and primarily discusses how much of a head
start they gave A10. Neither Brocade nor A10
provides compelling reasons for why this
information should be sealed.

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The request to seal Exhibit D is GRANTED
because it consists entirely of descriptions of
Brocade’s trade secrets.

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The request to seal Exhibit E is DENIED. Exhibit
E consists of presentation slides regarding
Brocade’s rivals and certain revenue and expense
data. Neither party has provided compelling
reasons for this information to remain under seal,
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Case No.: C 10-03428 PSG
ORDER

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Exhibit D to the Declaration of
Scott Mosko ISO A10’s
Response to Plaintiff’s Motion
for Entry of Judgment Pursuant
to Fed. R. Civ. P. 54(b)

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807

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Exhibit DD to the Supplemental
Declaration of Scott Mosko ISO
A10’s Reply ISO the Motion for
Judgment as a Matter of Law

United States District Court
For the Northern District of California

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Exhibit GG to the Supplemental
Declaration of Scott Mosko ISO
A10’s Reply ISO the Motion for
Judgment as a Matter of Law

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Exhibit II to the Supplemental
Declaration of Scott Mosko ISO
A10’s Reply ISO the Motion for
Judgment as a Matter of Law

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812

Exhibit A to the Declaration of
Bas de Blank ISO Brocade’s
Reply ISO the Motion for Entry
of Permanent Injunction

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Portions of Brocade’s Reply ISO
the Motion for Entry of

and the court is not persuaded that disclosure of the
information would be harmful.
The request to seal Exhibit D is DENIED. The
exhibit consists of a chart of estimates of patent
infringement damages by James Malackowski that
is based on A10’s product revenues. As the court
noted above, damages information is important for
the public to review in light of the substantial
awards in this case. A10 has not provided
compelling reasons for why this information should
be sealed.
The request to redact portions of Exhibit DD is
DENIED WITHOUT PREJUDICE. Although
some of the redactions include proprietary
information such as source code or trade secret
descriptions, many of the proposed redactions
include details about damages methodology and
references to the Aho-Corasick algorithm and
Brocade’s copyrighted implementation code.
Neither party has provided compelling reasons for
this information to be sealed, and the court is not
persuaded that this information would be harmful if
disclosed.
The request to seal Exhibit GG in its entirety is
DENIED. The exhibit consists of a summary of
A10’s revenues, sales and costs associated with its
AX Series devices and an estimate of Brocade’s
patent infringement damages based on those
figures. As the court noted above, damages
information is important for the public to review in
light of the substantial awards in this case. A10 has
not provided compelling reasons for why this
information should be sealed.
The request to seal Exhibit II is DENIED. Exhibit
II consists of presentation slides regarding
Brocade’s rivals and certain revenue and expense
data. Neither party has provided compelling
reasons for this information to remain under seal,
and the court is not persuaded that disclosure of the
information would be harmful.
The request to seal Exhibit A is DENIED. Exhibit
A consists of a report provided to A10’s audit
committee describing A10’s financial status and the
methodologies used to reach those conclusions.
Neither party has provided compelling reasons why
this information should remain under seal, and the
court is not persuaded that any harm would result if
the information were disclosed.
Brocade seeks to redact portions of its reply brief
that reference Exhibit A. Because the court finds
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Case No.: C 10-03428 PSG
ORDER

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Permanent Injunction
Declaration of Izhak Rubin ISO
Brocade’s Reply ISO the Motion
for Entry of Permanent
Injunction and Exhibit A to the
declaration
Exhibits A, B, and C to the
Declaration of Christina Von der
Ahe ISO Brocade’s Reply ISO
the Motion for Entry of
Judgment Pursuant to Fed. R.
Civ. P. 54(b)

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United States District Court
For the Northern District of California

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The request to seal Exhibit B is GRANTED
because it consists of discovery responses
disclosing proprietary source code and trade secret
descriptions.

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that Exhibit A should not remain under seal, the
request to redact references to it in the reply brief is
DENIED.
The request to seal the declaration and Exhibit A is
GRANTED. Both the declaration and the exhibit
consist of detailed descriptions of Brocade’s
various trade secrets, which are proprietary and
therefore properly may remain under seal.
The requests to seal Exhibits A and C are DENIED
WITHOUT PREJUDICE. The exhibits consist of
Brocade’s supplemental responses to A10’s
interrogatories. Within those responses are
references to Brocade’s trade secrets and source
code, which properly may be sealed. But the
exhibits also includes boilerplate objections,
descriptions of steps Brocade takes to ensure
confidentiality of its trade secrets, a table of the
software versions in which the trade secrets are
practiced, a table of Brocade’s customers, and a
table of copyright registrations. Brocade has not
provided good cause or compelling reasons why
this information should remain under seal and the
court is not persuaded that harm would result if the
contents were disclosed. Brocade may move again
for narrowly tailored redactions limited to its trade
secrets.

Any documents that purport to comply with the court’s determinations above shall be filed

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within fourteen days.

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IT IS SO ORDERED.

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Dated: January 17, 2013

_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: C 10-03428 PSG
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