Fujitsu Limited v. Belkin International, Inc. et al

Filing 475

ORDER re 258 Administrative Motion to File Under Seal Fujitsu Limited's Motion for Administrative Relief to File Certain Exhibits Under Seal filed by Fujitsu Limited, 326 Administrative Motion to File Under Seal Exhibits 4 and 5 to Joint Pretrial Statement, filed by Fujitsu Limited, 276 Administrative Motion to File Under Seal filed by Fujitsu Limited, 356 Administrative Motion to File Under Seal filed by Belkin International, Inc., Netgear, Inc., Belkin, Inc., D-Link Corporation, D-Link Systems, Inc., 331 Administrative Motion to File Under Seal Defendants Administrative Motion To File Exhibits 1, 2, And 9 Under Seal filed by Belkin International, Inc., Netgear, Inc., Belkin, Inc., D-Link Corporation, D-Link Systems, Inc., 374 Administrative Motion to File Under Seal Defendants Administrative Motion To File Exhibits Under Seal filed by Belkin International, Inc., Netgear, Inc. , Belkin, Inc., D-Link Corporation, D-Link Systems, Inc., 390 Administrative Motion to File Under Seal -- Fujitsu Limited's Administrative Motion to File Its Trial Brief Under Seal, filed by Fujitsu Limited, 283 Administ rative Motion to File Exhibit 47 Under Seal filed by Belkin International, Inc., Netgear, Inc., Belkin, Inc., D-Link Corporation, D-Link Systems, Inc., 316 Administrative Motion to File Under Seal Defendants' Administrative Mo tion to File Exhibits A and D Under Seal filed by Netgear, Inc., 263 Administrative Motion to File Under Seal Certain Exhibits to Motion for Summary Judgment of Invalidity filed by ZyXEL Communications, Inc., Belkin Internationa l, Inc., Netgear, Inc., Belkin, Inc., D-Link Corporation, ZyXEL Communications Corporation, D-Link Systems, Inc., 251 Joint Administrative Motion to File Under Seal filed by ZyXEL Communications, Inc., Belkin International, Inc., Netgear, Inc., Belkin, Inc., D-Link Corporation, ZyXEL Communications Corporation, D-Link Systems, Inc., 324 Administrative Motion to File Under Seal Certain Exhibits in Support of Consolidated Motions in Limine and Motions to Exclude Testimony of Defendants' Experts, filed by Fujitsu Limited, 337 Administrative Motion to File Under Seal Fujitsu Limited's Administrative Motion to File Certain Exhibits Under Seal, filed by Fujitsu Limited. Signed by Judge Lucy H. Koh on 12/03/12. (lhklc3, COURT STAFF) (Filed on 12/3/2012)

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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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FUJITSU LIMITED,

)
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Plaintiff,
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v.
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BELKIN INTERNATIONAL, INC.; BELKIN, )
INC.; D-LINK CORPORATION; D-LINK
)
SYSTEMS, INC.; NETGEAR, INC.; ZYXEL )
COMMUNICATIONS CORPORATION; and )
ZYXEL COMMUNICATIONS, INC.,
)
)
Defendants.
)
)

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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND
DENYING-IN-PART MOTIONS TO
SEAL

Before the Court are numerous administrative motions to seal related to the motions for

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summary judgment and summary adjudication that were resolved by Court Order at ECF No. 307,

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as well as administrative motions to seal various documents that were filed in anticipation of the

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trial that began on November 26, 2012. See ECF Nos. 251, 258, 263, 276, 283, 316, 324, 326, 331,

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337, 356, 374, and 390 (“Sealing Motions”). For the reasons stated herein, the Court GRANTS in

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part and DENIES in part the parties’ motions to seal.

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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.” 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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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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presumption in favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu,

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447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins.Co., 331 F.3d

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1122, 1135 (9th Cir. 2003)). In order to overcome this strong presumption, a party seeking to seal

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a judicial record must articulate justifications for sealing that outweigh the public policies favoring

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disclosure. See id. at 1178–79. Because the public’s interest in non-dispositive motions is

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relatively low, a party seeking to seal a document attached to a non-dispositive motion need only

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demonstrate “good cause.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010)

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(applying a “good cause” standard to all non-dispositive motions because such motions “are often

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unrelated, or only tangentially related, to the underlying cause of action”) (internal quotation marks

United States District Court
For the Northern District of California

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and citation omitted).
Conversely, “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, 447 F.3d at 1179 (quoting Valley

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Broadcasting Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)). Thus,

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a party seeking to seal a judicial record attached to a dispositive motion or presented at trial must

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articulate “compelling reasons” in favor of sealing. See id. at 1178. “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. at 1179 (citing Foltz,

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331 F.3d at 1136). “In general, ‘compelling reasons’ . . . 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. (citing Nixon,

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435 U.S. at 598). For purposes of sealing, the Ninth Circuit has adopted the definition of “trade

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secrets” set forth in the Restatement of Torts, holding that “[a] trade secret may consist of any

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formula, pattern, device or compilation of information which is used in one’s business, and which

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gives him an opportunity to obtain an advantage over competitors who do not know or use it.”

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Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972) (quoting Restatement of Torts § 757, cmt. b).

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Additionally, “compelling reasons” may exist if sealing is required to prevent judicial documents

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ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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from being used “‘as sources of business information that might harm a litigant’s competitive

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standing.’” Id. at 569 (9th Cir. 2008) (citing Nixon, 435 U.S. at 598).

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Litigants’ Administrative Motions to Seal

II.

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A. Motions Pursuant to Civil Local Rule 79-5(d)
Civil Local Rule 79-5(d) governs motions to seal documents designated as confidential by

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another party. This rule requires “the designating party . . . [to] file with the Court and serve a

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declaration establishing that the designated information is sealable” within seven days of the

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motion.

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United States District Court
For the Northern District of California

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Many of the documents that Fujitsu seeks to seal were designated as confidential by
Defendants. Specifically, Defendants designated as confidential:
(1) the May 4, 2012 Expert Report of Dr. Tim A. Williams Regarding Infringement
of U.S. Patent No. 36,769, attached as Exhibit A to the Declaration of Tim A.
Williams in support of Fujitsu’s Motion for Summary Judgment and Summary
Adjudication of Infringement, ECF No. 257, as well as Exhibit 13—an excerpt
from a D-Link sales spreadsheet (DKUS N-0787)—that was filed in connection
with Fujitsu’s Motion for Summary Judgment and Summary Adjudication of
Infringement, see ECF No. 258;
(2) Exhibits 27-B, 35, and 36, filed in connection with Fujitsu’s Opposition to
Defendants’ Motion for Summary Adjudication of No Willful Infringement and
No Active Inducement, see ECF No. 276;
(3) Exhibits 4 and 5, which were submitted in connection with the parties’ Joint
Pretrial Statement, ECF No. 326;

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(4) Exhibits 3, 8, and 23, filed in connection with Fujitsu’s Opposition to
Defendants’ Joint Daubert Motion and Motions in Limine, see ECF No. 337;
and

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(5) Fujitsu’s trial brief, see ECF No. 390.

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However, Defendants did not file declarations establishing why these documents must be filed
under seal. Accordingly, pursuant to Civil Local Rule 79-5(d), Fujitsu’s motions to seal these
documents, filed at ECF Nos. 258, 276, 326, 337, and 390, are DENIED without prejudice. If any
portion of these exhibits has or will become part of the public trial record, Defendants shall not
seek to have that portion of the exhibit filed under seal.
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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In addition, Defendants designated as confidential portions of Fujitsu’s Consolidated

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Motions in Limine and Motions to Exclude Testimony of Defendants’ Experts, as well as Exhibits

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13–14, 19–23, 25–33, and 37–39, which were filed in connection with these motions. As

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Defendants did not file declarations establishing why these documents must be filed under seal, the

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portion of Fujitsu’s motion seeking to seal these documents, filed at ECF No. 324, is DENIED

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without prejudice. If any portion of these exhibits has or will become part of the public trial

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record, Defendants shall not seek to have that portion of the exhibit filed under seal.

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Finally, Defendants indicate that Fujitsu designated as confidential Exhibits 1 and 2, filed in
connection with Defendants’ Opposition to Fujitsu’s Motions in Limine and Motions to Exclude

United States District Court
For the Northern District of California

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Testimony of Defendants’ Experts. See ECF No. 331. Fujitsu did not file a declaration

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establishing that the designated information is sealable. Therefore, the portion of Defendants’

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motion seeking to seal Exhibits 1 and 2 is DENIED without prejudice. If any portion of these

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exhibits has or will become part of the public trial record, Fujitsu shall not seek to have that portion

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of the exhibit filed under seal.

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B. Defendants’ Administrative Motion to Seal Exhibits in Connection with the Motions
for Summary Judgment and Summary Adjudication
Defendants seek to seal multiple exhibits that were filed in connection with their Motion for
Summary Judgment of Invalidity. As Defendants’ Motion for Summary Judgment of Invalidity is
a dispositive motion, Defendants must articulate “compelling reasons supported by specific factual
findings that outweigh . . . the public policies favoring disclosure.” Kamakana, 447 F.3d at 1178–
79 (internal quotation marks and citations omitted). The Court does not find that Defendants have
articulated sufficient reasons to compel the Court to seal Defendants’ exhibits.
First, Defendants move to seal two exhibits—Exhibits 5 and 36—that were submitted in
connection with Defendants’ Motion for Summary Judgment of Invalidity. See ECF No. 263.
Exhibit 5 contains portions of the June 14-15, 2012 deposition transcript of Fujitsu’s technical
expert, Dr. Williams. Exhibit 36 contains portions of Dr. Williams’s expert report regarding
infringement of the ’769 patent. Defendants allege that the deposition testimony and expert report

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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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contain confidential descriptions of the design and operation of Defendants’ accused products in

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this case.

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The Court is not persuaded that Defendants’ interest in sealing these exhibits outweighs the

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public’s interest in accessing this information. Defendants’ justification for sealing is vague,

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overly broad, and unsupported by specific facts. To the extent that Defendants contend that these

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exhibits must be sealed because the descriptions of Defendants’ accused products constitute trade

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secrets, Defendants have not identified any details to support such a designation. Consequently, it

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is not clear how disclosing any of the information contained within Exhibits 5 and 36 would enable

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competitors to obtain an unfair advantage. See Kamakana, 447 F.3d at 1179. Furthermore, as Dr.

United States District Court
For the Northern District of California

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Williams’s report and deposition are crucial to Fujitsu’s allegations of patent infringement, the

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subject of these exhibits is highly relevant to the merits of the case. Therefore, there is a strong

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presumption in favor of public access, and Defendants have not sufficiently articulated compelling

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reasons to overcome this presumption. Thus, Defendants’ motion to seal Exhibits 5 and 36 in

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connection with their summary judgment motion, see ECF No. 263, is DENIED without

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prejudice.1 Defendants should not seek to re-file under seal any portion of these exhibits that is

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disclosed publicly during trial.

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Second, in connection with Defendants’ reply in support of its Motion for Summary

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Judgment of Invalidity, Defendants seek to file a document under seal that they contend consists of

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confidential settlement negotiations. See ECF No. 283. However, Defendants fail to articulate

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how the disclosure of this document could “become a vehicle for improper purposes,’ such as the

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use of records to gratify private spite, promote public scandal, circulate libelous statements, or

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release trade secrets.” Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598). Therefore,

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Defendants’ Administrative Motion to File Exhibit 47 Under Seal, ECF No. 283, is DENIED

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Defendants’ motion to seal Exhibit 36 also is denied because Defendants designated Dr.
Williams’s infringement report as confidential when Fujitsu filed it in connection with its Motion
for Summary Judgment and Summary Adjudication of Infringement. See ECF No. 257 (filing
Exhibit A to the Declaration of Tim A. Williams under seal); ECF No. 258 (seeking leave to file
Exhibit A under seal because Defendants deemed it confidential). However, as discussed in Part
II.A infra, Defendants did not file a declaration establishing why this document must be filed under
seal. But see Civ. L. R. 79-5(d).
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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without prejudice. Defendants should not seek to re-file under seal any portion of this exhibit that

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is disclosed publicly during trial.

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C. Defendants’ Response to Fujitsu’s Status Report Re Efforts to Narrow the Case

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In connection with Defendants’ Response to Fujitsu’s Status Report Re Efforts to Narrow

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the Case, Defendants move to seal two exhibits—Exhibit A, Dr. Williams’s expert report regarding

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infringement, and Exhibit B, portions of Dr. Williams’s deposition transcript. See ECF No. 251.

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Since Fujitsu’s Status Report Re Efforts to Narrow the Case is not a dispositive motion, Defendants

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need only show “good cause” to seal these exhibits. Kamakana, 447 F.3d at 1179–1180.

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However, because all of Exhibit A and part of Exhibit B were also filed as part of dispositive

United States District Court
For the Northern District of California

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motions for which the Court has denied sealing, the Court DENIES-IN-PART and GRANTS-IN-

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PART Defendants’ motion as set forth more fully below. Cf. Rushford v. New Yorker Magazine,

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Inc., 846 F.2d 249, 252 (4th Cir. 1988) (“Once the [sealed discovery] documents are made part of

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a dispositive motion . . . they lose their status of being raw fruits of discovery.”) (emphasis added

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and quotation omitted).

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First, the Court DENIES Defendants’ motion to seal Exhibit A. As discussed previously,

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Defendants failed to file a declaration establishing why Dr. Williams’s expert report regarding

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infringement must be filed under seal when Fujitsu filed it in connection with its Motion for

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Summary Judgment and Summary Adjudication of Infringement. See infra Part II.A; ECF No.

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258. In addition, Defendants failed to set forth compelling reasons for sealing parts of the report

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when Defendants filed it as Exhibit 36 in support of their Motion for Summary Judgment of

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Invalidity. See infra Part II.B; ECF No. 263. Therefore, in accordance with Parts II.A and II.B of

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this Order, the Court DENIES Defendants’ request to file Dr. Williams’s expert report regarding

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infringement under seal in connection with its Response to Fujitsu’s Status Report Re Efforts to

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Narrow the Case. ECF No. 251.

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Second, the Court DENIES-IN-PART and GRANTS-IN-PART Defendants’ motion to seal

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Exhibit B, which contains portions of Dr. Williams’s deposition transcript. See ECF No. 252-3

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(seeking to file under seal pages 1, 54–55, 72–74, 85–86, 93–94, 105–106, 110–113, 212–221,

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256–259, and 262 of Dr. Williams’s deposition transcript). As discussed previously, Defendants
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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failed to set forth compelling reasons for filing parts of Dr. Williams’s deposition transcript under

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seal when including it as Exhibit 5 to Defendants’ Motion for Summary Judgment of Invalidity.

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See infra Part II.B; ECF No. 263. Therefore, the parts of Exhibit B that were also filed as Exhibit 5

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to Defendants’ summary judgment motion have “los[t] their status of being raw fruits of discovery”

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and may not remain under seal. Rushford, 846 F.2d at 252. Within seven days, Defendants must

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file publicly pages 1, 54–55, 85, and 262 of Dr. Williams’s deposition transcript.

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In contrast, the Court finds that Defendants have alleged “good cause” to file under seal the

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parts of Exhibit B that were not also filed as Exhibit 5 to Defendants’ summary judgment motion—

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pages 72–73, 86, 93–94, 105–106, 110–113, and 212–221 of Dr. Williams’s deposition transcript.

United States District Court
For the Northern District of California

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Defendants contend that good cause exists because Dr. Williams’ deposition was designated as

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“Highly Confidential – Attorneys’ Eyes Only” under the Protective Order. See Phillips ex rel.

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Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (“When a court

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grants a protective order for information produced during discovery, it already has determined that

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‘good cause’ exists to protect this information from being disclosed to the public by balancing the

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needs for discovery against the need for confidentiality.”). Defendants also assert that this exhibit

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contains confidential descriptions of the design and operation of Defendants’ accused products in

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this case. The Court is satisfied that Defendants’ justifications for sealing rise to the level of “good

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cause.” See Pintos, 605 F.3d at 678 (justifying the lower standard that applies to non-dispositive

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materials because “private materials unearthed during discovery . . . are not part of the judicial

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record”). Accordingly, the Court GRANTS Defendants’ request to file Exhibit B under seal pages

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72–73, 86, 93–94, 105–106, 110–113, and 212–221 of Dr. Williams’s deposition transcript. If,

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during trial, any of these pages becomes part of the public record, Defendants must publicly file the

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part of the exhibit used during trial within seven days of the public disclosure.

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D. Administrative Motions to Seal Exhibits in Connection with Pretrial Daubert
Motions and Motions in Limine
The parties also move to seal exhibits from their Daubert motions and motions in Limine
that were filed in preparation for trial. As the Ninth Circuit stated recently in In re Midland Nat.
Life Ins. Co. Annuity Sales Practices Litigation, 686 F.3d 1115 (9th Cir. 2012) (per curiam),
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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whether “records are connected to a Daubert motion does not, on its own, conclusively resolve”

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whether the exhibits “fall into the exception for sealed discovery documents.” Id. at 1119–20.

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Rather, the critical inquiry is whether the motion is connected to a proceeding that is “potential[ly]

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case dispositive.” Id. Therefore, the Ninth Circuit concluded in Midland that the district court

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erred by failing to apply the “compelling reasons” standard on a Daubert motion because it was

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connected to a pending motion for summary judgment. In so doing, the Court emphasized that the

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records at issue related to “central issues bearing on defendant’s summary judgment motion.” Id.

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Here, Defendants move to seal three exhibits—Exhibits A and D which were filed in

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connection with Defendants’ Daubert Motion and Motions in Limine, ECF No. 316, and Exhibit 9,

United States District Court
For the Northern District of California

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which was filed in connection with Defendants’ Opposition to Fujitsu’s Motions in Limine and

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Motions to Exclude Testimony of Defendants’ Experts, ECF No. 331. Exhibit A is a copy of the

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expert report of Paul K. Meyer, Fujitsu’s damages expert. See ECF No. 316. Exhibit D is an

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attachment to Mr. Meyer’s expert report. Id. Defendants also seek to seal Exhibit 9, which is an

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excerpt from the deposition of Dr. Russell Mangum, D-Link System’s and D-Link Corporation’s

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damages expert. ECF No. 331.

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The Court finds that these three exhibits relate to the resolution of the case on the merits as

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they are essential to each party’s calculation of damages. Mr. Meyer and Dr. Mangum will be

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testifying extensively at trial regarding the substance of these expert reports. Moreover, complete

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exclusion of either expert’s testimony, through a Daubert motion, could have critically affected the

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outcome of the case. See Midland, 686 F.3d at 1120. Accordingly, the Court applies a

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“compelling reasons” standard to Defendants’ motions to seal these exhibits. See Kamakana, 447

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F.3d at 1178–79.

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The Court is not persuaded that Defendants have set forth “compelling reasons” to justify

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maintaining these exhibits under seal. Defendants allege that Exhibits A, D, and 9 contain

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financial information of Defendants and third parties, and that public disclosure of this information

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would create a substantial risk of adversely affecting Defendants’ and third parties’ businesses.

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While there may be a limited amount of exceptionally sensitive information contained in these

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exhibits, Defendants’ broad request to seal does not specify which sections of these exhibits
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ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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contain particularly sensitive information, why this information must remain confidential, or how

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its disclosure might become a vehicle for improper purposes. As much of the information

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contained in these exhibits is likely to be discussed publicly during trial, the Court is not convinced

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that Defendants’ interest in sealing these documents outweighs the need for public access.

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Therefore, the Court DENIES without prejudice Defendants’ Motions to Seal Exhibits A and D

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filed in connection with Defendants’ Daubert Motion and Motions In Limine, ECF No. 316, and

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DENIES without prejudice Defendants’ Motion to Seal Exhibit 9, filed in connection with

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Defendants’ Opposition to Fujitsu’s Motions in Limine and Motions to Exclude Testimony of

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Defendants’ Experts, ECF No. 331. Defendants should not seek to re-file under seal any portion of

United States District Court
For the Northern District of California

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these exhibits that is disclosed publicly during trial.
Fujitsu also seeks to seal exhibits attached to its Motions in Limine and Motions to Exclude

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Testimony of Defendants’ Experts. Specifically, Fujitsu seeks to file under seal: (1) Exhibit 9,

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excerpts from the transcript of the March 22, 2012 deposition of Hiroshi Fuji, the Rule 30(b)(6)

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witness; (2) Exhibit 10, Bates numbered JIV_TR00044-JIC_TR 00055; and (3) Exhibit 34, a patent

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license agreement produced by Fujitsu. ECF No. 324. The Court finds that the substance of

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Fujitsu’s Motions in Limine and Motions to Exclude Testimony of Defendants’ Experts relates

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directly to the underlying causes of action and the issues to be resolved at trial. Accordingly, the

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Court applies a “compelling reasons” standard to Fujitsu’s motion to seal these exhibits.

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For Exhibit 9, Fujitsu has designated 350:1–353:9 of Mr. Fuji’s deposition transcript as

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highly confidential because it contains proprietary information relating to Fujitsu’s internal

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evaluations that Fujitsu does not disclose to the public or to its competitors. However, the Court

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already found the substance of this testimony to be “highly probative” when ruling on Fujitsu’s

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Motion in Limine #3. See ECF No. 365. In addition, this portion of the deposition transcript is

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related closely to the deposition testimony that was already presented during trial. Since Fujitsu

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has not articulated facts sufficient to overcome the strong presumption in favor of granting public

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access to this information, the Court DENIES the motion to seal this exhibit without prejudice.

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Exhibit 10 contains documents Bates Numbered FUJ0020153 – FUJ0020163, which
Defendants Listed as DTX 575 in their Third Amended Trial Exhibit List and the Court admitted
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ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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into evidence at trial on November 27, 2012. See ECF Nos. 409, 411, 413, and 466. Since this

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Exhibit is already part of the public trial record, the Court DENIES Fujitsu’s motion to seal Exhibit

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10 with prejudice.

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Finally, for Exhibit 34, Fujitsu has designated its Patent License Agreement with Agere

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System, Inc. to be confidential. Pursuant to Paragraph 1.05 of the agreement, Fujitsu contends that

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it is required to maintain the confidentiality of the terms of the agreement absent court order.

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However, both parties have stipulated to the admissibility of this exhibit, and it was admitted into

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evidence at trial on December 3, 2012. See ECF No. 423. Since this Exhibit is part of the public

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trial record, the Court DENIES Fujitsu’s motion to seal Exhibit 34 with prejudice.

United States District Court
For the Northern District of California

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E. Defendants’ Stipulation Regarding Sales of Defendants’ Accused Products

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Finally, Defendants seek to file under seal three exhibits attached to their Stipulation

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Regarding Sales of Defendants’ Accused Card Interface Device and Kits, which Defendants filed

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initially at ECF Nos. 355 & 356, and then revised and re-filed at ECF Nos. 373 & 374. In the

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stipulation, Defendants request “that the Court enter an Order Providing that Exhibits 1, 2, 3 . . . be

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deemed for purposes of the upcoming trial to accurately reflect the yearly net revenues of each of

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Defendants’ accused card interface devices, kits, and external devices at issue in that trial.” See

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ECF No. 373 (emphasis added).

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The Court finds that these three exhibits are related to the resolution of the case on the

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merits as they are essential to each party’s calculation of damages. Accordingly, Defendants “must

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articulate compelling reasons supported by specific factual findings” to justify maintaining these

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exhibits under seal. Kamakana, 447 F.3d at 1178–79. While Defendants allege generally that the

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information contained in Exhibits 1, 2, and 3 includes “highly confidential financial information,”

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see ECF No. 374-1, Defendants do not allege with any specificity how or why disclosure of this

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information would outweigh the strong presumption of public access. Moreover, Fujitsu already

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disclosed the total revenue of sales of Defendants’ accused products in this trial. Therefore,

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Defendants’ motions to file under seal the exhibits attached to the stipulations regarding sale of

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Defendants’ accused products, ECF Nos. 356 & 374, are DENIED with prejudice.

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III.

Conclusion
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART the

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parties’ administrative motions to seal documents. For each exhibit to a prior motion where the

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Court has denied Fujitsu’s motion to seal, Fujitsu shall re-file that exhibit consistent with this Order

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within seven days. Defendants shall do the same for any exhibit to a prior motion for which its

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motion to seal has been denied or granted-in-part and denied-in part. In addition, if any portion of

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the exhibits that the parties wish to file under seal becomes part of the public trial record, the

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parties must file that portion publicly within seven days of disclosure during trial.

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United States District Court
For the Northern District of California

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Administrative Exhibit Number filed
Motion to File Under Seal
Under Seal
Exhibits A & B, attached
ECF No. 251
to the Declaration of
William R. Overend in
Support of Defendants’
Response to Fujitsu’s
Status Report Re Efforts
to Narrow the Case, filed
at ECF No. 252.
Exhibit A attached with
ECF No. 258
Declaration of Dr. Tim A.
Williams, ECF No. 257,
and Exhibit 13, attached
to the Declaration of
Thomas E. Garten in
Support of Fujitsu’s
Motion for Summary
Judgment and Summary
Adjudication Regarding
Infringement, ECF No.
256.
Exhibits 5 & 36, attached
ECF No. 263
to the Declaration of
Joshua S. Wyde in
Support of Defendants’
Motion for Summary
Judgment of Invalidity,
ECF No. 262.

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27
28

ECF No. 276

Exhibits 27-B, 35, and
36, attached to the
Declaration of Thomas E.

Ruling
GRANTED-IN-PART, DENIED-IN-PART. The
Court DENIES Defendants’ motion to seal Exhibit
A and DENIES-IN-PART, GRANTS-IN-PART
Defendants’ motion to seal Exhibit B.

DENIED without prejudice. Defendants did not
submit a declaration establishing why these
documents must be filed under seal pursuant to
Civil Local Rule 79-5(d).
If any portion of these exhibits has or will become
part of the public trial record, Defendants shall not
seek to have that portion of the exhibit filed under
seal.

DENIED without prejudice. Defendants have not
sufficiently articulated facts that support a
“compelling reason” to keep this information from
the public.
Defendants should not seek to re-file under seal any
portion of these exhibits that is disclosed publicly
during trial.
DENIED without prejudice. Defendants did not
submit a declaration establishing why these
documents must be filed under seal pursuant to
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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1
2
3
4
5
6

ECF No. 283

7
8
9

United States District Court
For the Northern District of California

10

ECF No. 316

11
12
13
14

ECF No. 324

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16
17
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19
20
21
22
23

ECF No. 326

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Garten in Support of
Fujitsu’s Opposition to
Defendants’ Motion for
Summary Adjudication of
No Willful Infringement
and No Active
Inducement, ECF No.
274.
Exhibit 47 to Second
Declaration of Joshua S.
Wyde in Support of Reply
to Fujitsu’s Response to
Defendants’ Motion for
Summary Judgment of
Invalidity, ECF No. 282.
Exhibits A and D, filed
in connection with the
Declaration of Seth B.
Herring in Support of
Daubert Motion and
Motions in Limine, ECF
No. 319.
Portions of Fujitsu’s
Consolidated Motions in
Limine and Motions to
Exclude Testimony of
Defendants’ Experts;
Exhibits 9, 10, 13, 14, 19,
20, 21, 22, 23, 25, 26, 27,
28, 29, 30, 31, 32, 33, 34,
37, 38, 39, attached to the
Declaration of Brianne
Bharkhda in Support of
Fujitsu’s Consolidated
Motions in Limine and
Motions to Exclude
Testimony of Defendants’
Experts, ECF No. 322.
Exhibits 4 & 5 to the
Joint Pretrial Statement,
ECF No. 325.

Civil Local Rule 79-5(d).

Exhibits 1, 2, & 9,
attached to Declaration of
Seth B. Herring in
Support of Opposition to
Motions, ECF No. 333.

Exhibits 1 & 2 are DENIED without prejudice.
Fujitsu did not submit a declaration establishing
why these documents must be filed under seal
pursuant to Civil Local Rule 79-5(d).

If any portion of these exhibits has or will become
part of the public trial record, Defendants shall not
seek to have that portion of the exhibit filed under
seal.

DENIED without prejudice. Defendants have not
sufficiently articulated facts that support a
“compelling reason” to keep this information from
the public.

DENIED without prejudice. Defendants have not
sufficiently articulated facts that support a
“compelling reason” to keep this information from
the public.

DENIED without prejudice.
In accordance with Civil Local Rule 79-5(d),
Defendants did not submit a declaration establishing
why Exhibits 13–14, 19–23, 25–33, and 37–39, as
well as the redacted portions of Fujitsu’s
Consolidated Motions in Limine and Motions to
Exclude Testimony of Defendants’ Experts, must be
filed under seal. If any portion of these documents
has been or will be disclosed publicly during trial,
the parties shall not seek to have that portion of the
exhibit filed under seal.
Fujitsu’s motion to seal Exhibit 9 is DENIED
without prejudice and its motion to seal Exhibits 10
and 34 is DENIED with prejudice.
DENIED without prejudice. Defendants did not
submit a declaration establishing why these
documents must be filed under seal pursuant to
Civil Local Rule 79-5(d).

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26
27
28

ECF No. 331

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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1
2
3

ECF No. 337

4
5
6
7
8
9

ECF No. 356 &
374

United States District Court
For the Northern District of California

10
11
12
13
14

ECF No. 390

Exhibit 9 is also DENIED without prejudice.
Defendants have not sufficiently articulated facts
that support a “compelling reason” to keep this
information from the public.
DENIED without prejudice. Defendants did not
submit a declaration establishing why these
documents must be filed under seal pursuant to
Civil Local Rule 79-5(d).

Exhibits 3, 8, 23,
attached to Declaration of
Thomas E. Garten in
Support of Fujitsu’s
Opposition to
Defendants’ Joint Daubert If any portion of these exhibits has or will become
Motion and Motions in
part of the public trial record, Defendants shall not
Limine, ECF No. 335.
seek to have that portion of the exhibit filed under
seal.
Exhibits 1, 2, and 3, filed DENIED with prejudice. The total revenue of sales
in connection with
of Defendants’ accused products was already
Defendants’ Stipulation
disclosed in the trial.
and Proposed Order
Regarding Sales Of
Defendants Accused Card
Interface Devices and
Kits, ECF No. 355, 373.
Fujitsu’s trial brief, ECF DENIED without prejudice. Defendants did not
No. 389.
submit a declaration establishing why this document
must be filed under seal pursuant to Civil Local
Rule 79-5(d).

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IT IS SO ORDERED.
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Dated: December 3, 2012

________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-03972-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL