Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1400

Administrative Motion to File Under Seal (Emergency Motion by Non-Party Motorola Mobility LLC to Seal Exhibits, Close Courtroom and Seal Portions of Transcript) filed by Motorola Mobility LLC. (Attachments: # 1 Declaration Thomas V. Miller, # 2 Declaration Jennifer A. Golinveaux, # 3 Proposed Order)(Golinveaux, Jennifer) (Filed on 7/26/2012)

EXHIBIT A

quinn emanuel

trial lawyers | los angeles

865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL: [phone] FAX: [phone]

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July 21, 2012
VIA FEDERAL EXPRESS
Vice President for Patents, Trademarks &
Licensing
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Re:

Notice of Disclosure of Confidential Documents

To Whom It May Concern:
My firm represents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and
Samsung Telecommunications America, LLC, in several litigations with Apple Inc., involving
claims of patent infringement. One action is pending in the United States District Court for the
Northern District of California denominated Apple Inc. v. Samsung Electronics Co., Ltd., et.al,
Case No. 5:11-cv-01846-LHK. Trial will start on July 29, 2012, and we are in the process of
designating trial exhibits.
We are writing to inform you that Samsung has designated as potential trial exhibits documents
that contain your company’s confidential business information. A list of the documents is
attached as Appendix A. Pursuant to a recently issued court order, the Court will not allow
Samsung to seal any such documents unless “compelling reasons” are shown, to warrant secrecy.
(See the attached July 17, 2012 and July 20, 2012 Orders.) The Court made clear that a showing
of “good cause” would not be sufficient for sealing and provided the following guidance
quinn emanuel urquhart & sullivan, llp
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regarding what specific factual findings might constitute “compelling reasons”:
[W]here a party seeks to file under seal documents attached to a
dispositive motion, the strong presumption of public access can be
overcome only by an “‘articulat[ion of] compelling reasons
supported by specific factual findings,” and the Court must
“‘conscientiously balance[] the competing interests’ of the public
and the party who seeks to keep certain judicial records secret.” “A
‘good cause’ showing will not, without more, satisfy a ‘compelling
reasons’ test.” The Ninth Circuit has explained that “compelling
reasons” that justify sealing court records generally exist “when
such ‘court files might have become a vehicle for improper
purposes,’ such as the use of records to gratify private spite,
promote public scandal, circulate libelous statements, or release
trade secrets.”
July 20, 2012 Order Denying Motions to Seal and Remove Incorrectly Filed Documents, at 2
(internal citations omitted).
Samsung has not identified any compelling reasons, under that standard, to warrant a request for
sealing of these documents. To the extent that your company believes it can make such a
showing, and if you want to try to obtain a court order to seal the information in these
documents, we recommend that you consider filing a motion to intervene as a third party and
then a motion to seal. Otherwise, the documents and information identified in Appendix A will
be available to the public as a result of the upcoming trial. Please let us know if you have any
questions.
Sincerely,

Melissa Dalziel
Enclosures
02198.51855/4869250.1

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APPENDIX A

S-794-ITC005216440–
5216462

Bates Range
July 1, 2005

Effective
Date
Dec. 31, 2010

Expiration
Date
5 years, 6
months

Term of
Agreement
REDACTED

Monetary
Consideration
REDACTED

Includes
Rights to
UMTSRelated
Patents?

REDACTED

Includes
Rights to
Other
Patents?

Cross
License?

Licensor

Motorola, Inc

Motorola, Inc

Licensee

Samsung
Electronics
Co Ltd

Samsung
Electronics
Co Ltd
6/30/2005

9/30/2000

Cellular
Cross
License
Agreement
License
Extension
Agreement

Effective
Date

Title

6/30/2005

N/A

Date Last
Signed

6/30/2005

12/31/2004

Term

REDACTED

REDACTED

Licensed Products/Technology

Geographic
Scope

N/A

Worldwide

Exhibit 3A
Summary of Samsung License Agreements

Trial Exhibit 630 contains the following information about Motorola:

REDACTED

REDACTED

Payments

S-794-ITC- 00528087
1 to S-794- ITC005280874

S-794-1TC005280285 to S-794ITC- 005280348

Trial Exhibit 630: Exhibits 3A and 3B to the Expert Report of David Teece, an expert retained by Apple, dated March 22, 2012.
Exhibit 3A is a table summarizing the key terms of various contracts between Samsung and third parties to the litigation. Exhibit 3B
contains a table summarizing the key terms of various contracts between Apple and third parties to the litigation.

Source

REDACTED

Trial Exhibit 82: Samsung presentation titled "Samsung - Motorola Licensing Discussions," dated May 2, 2005 (S-794-ITC005280718-S-794-ITC-005280737). A copy of the document is attached.

Motorola, Inc.
(“Motorola”)

Samsung License
Partner

Summary of Samsung Licenses

Trial Exhibit 77: Summary of the key terms of various Samsung licenses with third parties, including Motorola. Trial Exhibit 77
contains the following information about your company:

MOTOROLA

Motorola, Inc

Samsung
Electronics
Co Ltd

Wireless
Communicat
ion Cross
License
Agreement

Title

7/1/2005

Effective
Date

9/25/2005

Date Last
Signed

12/31/2010

Term

REDACTED

Licensed Products/Technology

Worldwide

Geographic
Scope

REDACTED

REDACTED

Payments

REDACTED

S-794-ITC-005216440
to S-794-ITC005216462

Source

REDACTED

REDACTED

REDACTED

REDACTED

REDACTED

Trial Exhibit 631: Exhibits 4A-4B to the Teece Report. Exhibit 4A contains a table titled “Initial Royalty Rates
REDACTED
” Exhibit 4B contains a table titled REDACTED
Trial Exhibit 631 contains the following
information about your company:

Licensor

Licensee

Case5:11-cv-01846-LHK Document1256 Filed07/17/12 Page1 of 3

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

United States District Court
For the Northern District of California

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APPLE, INC., a California corporation,

)
)
Plaintiff,
)
v.
)
)
SAMSUNG ELECTRONICS CO., LTD., a
)
Korean corporation; SAMSUNG
)
ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
)
TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
)
)
Defendants.
)
)
)

Case No.: 11-CV-01846-LHK
ORDER DENYING SEALING
MOTIONS

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

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judgment that were resolved by Court Orders at ECF Nos. 1156 & 1158, as well as administrative

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motions to seal various documents that have been filed in anticipation of the trial currently set for

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July 30, 2012. Specifically, the parties seek to seal documents and portions of documents related

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to the motions for summary judgment, Daubert motions, pending claim construction statements,

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motions in limine, and other documents that pertain to and presumably will be used in the

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upcoming trial. See, e.g. ECF Nos. 1236, 1233, 1208, 1206, 1201, 1186, 1185, 1184, 1183, 1179,

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1140, 1139, 1125, 1122, 1090, 1089, 1069, 1063, 1061, 1060, 1059, 1052, 1023, 1024, 1022, 1020,

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1013, 1007, 1004, 997, 991, 930, 927, 925, and 847 (hereafter “Sealing Motions”).

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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Case5:11-cv-01846-LHK Document1256 Filed07/17/12 Page2 of 3

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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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Cir.1999)), that outweigh the general history of access and the public policies favoring disclosure,

United States District Court
For the Northern District of California

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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 also carved out an exception to the strong

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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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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Case5:11-cv-01846-LHK Document1256 Filed07/17/12 Page3 of 3

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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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Similarly, this Court explained at the June 29, 2012 case management conference that “the
whole trial is going to be open.” Hr’g Tr. at 78. In light of the Ninth Circuit’s admonition in

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Kamakana regarding the presumption of openness and the high burden placed on sealing

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documents at this late, merits stage of the litigation, it appears that the parties have overdesignated

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confidential documents and are seeking to seal information that is not truly sealable under the

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“compelling reasons” standard. As one example, the parties have sought to redact descriptions of

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trial exhibits that will presumably be used in open court. See, e.g. Exhibit A to Samsung’s

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United States District Court
For the Northern District of California

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Objections to Apple’s Exhibit List. Accordingly, the Sealing Motions are DENIED without

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prejudice.

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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 it seeks 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.

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Dated: July 17, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Case5:11-cv-01846-LHK Document1269 Filed07/20/12 Page1 of 3

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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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APPLE, INC., a California corporation,

)
)
Plaintiff,
)
v.
)
)
SAMSUNG ELECTRONICS CO., LTD., a
)
Korean corporation; SAMSUNG
)
ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
)
TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
)
)
Defendants.
)
)
)

Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO
SEAL AND REMOVE INCORRECTLY
FILED DOCUMENTS

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Before the Court are several administrative motions to seal documents and to remove

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incorrectly filed documents. See ECF Nos. 1160, 1150, 1147, 1132, 1080, 1123, 1039, 1033, 1035,

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1039, and 9531 (“Motions to Seal”).

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Courts have historically 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,’” courts

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generally apply “a ‘strong presumption in favor of access.’” Kamakana v. City & Cnty. of

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

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1

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In light of the Court’s Order Denying without prejudice the administrative motions to seal at
ECF No. 1256, Samsung’s request for an extension of time to file Civil Local Rule 79-5(d)
declarations to seal documents is DENIED as moot. See ECF No. 1150.
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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Case5:11-cv-01846-LHK Document1269 Filed07/20/12 Page2 of 3

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331 F.3d 1122, 1135 (9th Cir. 2003)). Where a party seeks to file under seal documents attached

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only to a non-dispositive motion, however, a showing of “good cause” often outweighs the public’s

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interest in access, because “the public has less of a need for access to court records attached only to

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non-dispositive motions because those documents are often unrelated, or only tangentially related,

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to the underlying cause of action.” Id. at 1179 (internal quotation marks and citations omitted).

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By contrast, where a party seeks to file under seal documents attached to a dispositive
motion, the strong presumption of public access can be overcome only by an “‘articulat[ion of]

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compelling reasons supported by specific factual findings,” and the Court must “‘conscientiously

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balance[] the competing interests’ of the public and the party who seeks to keep certain judicial

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United States District Court
For the Northern District of California

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records secret.” Id. at 1178-79 (quoting Foltz, 331 F.3d at 1135). “A ‘good cause’ showing will

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not, without more, satisfy a ‘compelling reasons’ test.” Id. at 1180. The Ninth Circuit has

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explained that “compelling reasons” that justify sealing court records generally exist “when such

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‘court files might have become a vehicle for improper purposes,’ such as the use of records to

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gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.”

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Id. at 1179 (quoting Nixon, 435 U.S. at 598). “The mere fact that the production of records may

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lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without

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more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). “Unlike private

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materials unearthed during discovery, judicial records are public documents almost by definition,

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and the public is entitled to access by default. This fact sharply tips the balance in favor of

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production when a document, formerly sealed for good cause under Rule 26(c), becomes part of a

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judicial record.” Id. at 1180 (internal citation omitted).

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The pending Motions to Seal relate to the preliminary injunction, Samsung’s motion to stay

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the preliminary injunction, or the potential evidence at trial. Although the preliminary injunction

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and Samsung’s motion to stay are non-dispositive, they cannot fairly be characterized as

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“unrelated, or only tangentially related, to the underlying cause of action.” Kamakana, 447 F.3d. at

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1179. To the contrary, these motions implicate the very core of Apple’s claims and Apple’s

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desired relief in bringing suit against Samsung. As evidenced by the plethora of media and general

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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Case5:11-cv-01846-LHK Document1269 Filed07/20/12 Page3 of 3

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public scrutiny of the preliminary injunction proceedings, the public has a significant interest in

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these court filings, and therefore the strong presumption of public access applies.

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Regarding the motion to seal potential evidence at trial, the Court has made clear to the

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parties that all evidence introduced at trial will be open to the public, with the narrow exception of

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“exceptionally sensitive information that truly deserves protection.” Order at 2, ECF No. 1256

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(citing Oracle Am. v. Google, Inc., No. 10-CV-03561-WHA, at ECF No. 540). With a July 30,

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2012 trial date, this case has reached a stage of the proceedings where “the presumption of

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openness will apply to all documents[,] and only documents of exceptionally sensitive information

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that truly deserve protection will be allowed to be redacted or kept from the public.” ECF No.

United States District Court
For the Northern District of California

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1256 at 3.
Therefore, the Court now determines that the strong public interest in the proceedings in

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this case merits imposition of the heightened “compelling reasons” standard on the pending

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Motions to Seal that governs the sealing of documents attached to dispositive motions or evidence

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submitted in trial. See Kamakana, 447 F.3d at 1178-79.

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The Court has reviewed the Motions to Seal. While some of the information may have

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been sealable under the more pliant “good cause” standard, much of it failed to meet even that

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lower burden. For example, some of the information sought to be sealed includes names of

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document custodians, descriptions of features of devices, and photographs of items that are in the

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public record. Moreover, none of the information sought to be sealed satisfies the more stringent

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“compelling reasons” standard. In light of these findings, the Court DENIES the pending

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administrative motions to seal and to remove incorrectly filed documents.

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IT IS SO ORDERED.

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Dated: July 20, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-01846-LHK
ORDER DENYING MOTIONS TO SEAL

Date Admitted:__________ By:_________

Apple Inc. v. Samsung Elecs.

United States District Court
Northern District of California
No. 11-CV-01846-LHK (PSG)

PLAINTIFF’S EXHIBIT NO. 82

Plaintiff's Exhibit No. 82.2

Plaintiff's Exhibit No. 82.3

Plaintiff's Exhibit No. 82.4

Plaintiff's Exhibit No. 82.5

Plaintiff's Exhibit No. 82.6

Plaintiff's Exhibit No. 82.7

Plaintiff's Exhibit No. 82.8

Plaintiff's Exhibit No. 82.9

Plaintiff's Exhibit No. 82.10

Plaintiff's Exhibit No. 82.11

Plaintiff's Exhibit No. 82.12

Plaintiff's Exhibit No. 82.13

REDACTED

Plaintiff's Exhibit No. 82.14

REDACTED

Plaintiff's Exhibit No. 82.15

REDACTED

Plaintiff's Exhibit No. 82.16

Plaintiff's Exhibit No. 82.17

REDACTED

Plaintiff's Exhibit No. 82.18

Plaintiff's Exhibit No. 82.19

REDACTED

Plaintiff's Exhibit No. 82.20