Guzik Technical Enterprises, Inc. v. Western Digital Corporation et al

Filing 465

OMNIBUS ORDER RE: SEALING MOTIONS by Judge Paul S. Grewal granting-in-part 298 , 309 , 316 , 327 , 342 , 348 , 363 , 365 , 367 , 371 , [379-2], 385 , 389 , 392 , 406 , 407 , 421 , 425 , and 456 (psglc2, COURT STAFF) (Filed on 11/27/2013)

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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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GUZIK TECHNICAL ENTERPRISES, INC.,

)
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Plaintiff and Counterclaim Defendant, )
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v.
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WESTERN DIGITAL CORPORATION, et al., )
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Defendants and Counterclaim Plaintiffs,
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and
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WESTERN DIGITAL (THAILAND)
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COMPANY LIMITED and
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WESTERN DIGITAL (MALAYSIA)
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SDN.BHD,
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Defendants.
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)

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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING
MOTIONS
(Re: Docket Nos. 298, 309, 316, 327, 342,
348, 363, 365, 367, 371, 379-2, 385, 389,
392, 406, 407, 421, 425, and 456)

Plaintiff Guzik Technical Enterprises (“GTE”) and Defendants Western Digital Corp., et al.
(collectively, “Western Digital”) have each filed various sealing motions. In the interest of
expediency the court presumes familiarity with the background of this case 1 and turns immediately

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to the motions before it.

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Unfamiliar readers are directed to three of the court’s recent summary judgment orders.
See Docket Nos. 442, 443, and 445.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

I. LEGAL STANDARDS

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A.

Sealing Motions

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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.’” 2 Accordingly, when considering a sealing

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request, “a ‘strong presumption in favor of access’ is the starting point.” 3 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
favoring disclosure. 4
Records attached to nondispositive motions, however, are not subject to the strong

United States District Court
For the Northern District of California

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presumption of access. 5 Because the documents attached to nondispositive motions “are often

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unrelated, or only tangentially related, to the underlying cause of action,” parties moving to seal

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must meet the lower “good cause” standard of Rule 26(c). 6 As with dispositive motions, the

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standard applicable to nondispositive motions requires a “particularized showing” 7 that “specific

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prejudice or harm will result” if the information is disclosed. 8 “Broad allegations of harm,

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unsubstantiated by specific examples of articulated reasoning” will not suffice. 9 A protective order

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sealing the documents during discovery may reflect the court’s previous determination that good

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2

Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)
(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)).
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Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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Id. at 1178-79.

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

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Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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cause exists to keep the documents sealed, 10 but a blanket protective order that allows the parties to

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designate confidential documents does not provide sufficient judicial scrutiny to determine whether

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each particular document should remain sealed. 11

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In addition to making particularized showings of good cause, parties moving to seal
documents must comply with the procedures established by Civil L.R. 79-5. Pursuant to
Civil L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document

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is “sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under
the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and

United States District Court
For the Northern District of California

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must conform with Civil L.R. 79-5(d).” 12 “Within 4 days of the filing of the Administrative

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Motion to File Under Seal, the Designating Party must file a declaration as required by subsection

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79-5(d)(1)(A) establishing that all of the designated material is sealable.” 13

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II. ANALYSIS

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A.

August 27, 2013 Presentation at Dispositive Motion Hearing

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The parties jointly seek leave to file portions of presentations from the hearing held before

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the undersigned on August 27, 2013 under seal. 14 In particular, the parties seek leave to file:

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(1) GTE’s presentation in opposition to Western Digital’s motion for summary judgment regarding

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GTE’s breach of contract claim, (2) GTE’s presentation in support of its motion to strike,

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

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

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

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

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See Docket No. 298.

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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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(3) GTE’s presentation in support of its motion for summary judgment of validity of the ’145

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patent, and (4) Western Digital’s presentation in support of its motion for summary judgment on

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the breach of contract claim. The court has reviewed the parties’ representations alongside the

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redacted presentations and believes that sealing is warranted. The parties joint request is

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GRANTED.

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B.

GTE’s Trial Brief

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GTE seeks leave to file portions of its trial brief as well as Exhibits A and D-H under seal. 15

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United States District Court
For the Northern District of California

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GTE filed a declaration in support of its request. 16 Western Digital filed a timely declaration in
support of GTE’s sealing request. 17 The court will address each in turn.

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Exhibit A is the 1996 contract between GTE and Read-Rite. Exhibit A may be filed under
seal.

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Exhibit D is the 2004 contract between GTE and Western Digital. Exhibit D may be filed
under seal.

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Exhibit E is Dr. Klopp’s expert report. It contains “significant references to and discussion

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regarding the technical features of GTE’s head/disk testers and components thereof, as well as

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comparisons to Western Digital’s head/disk testers.” 18 Exhibit E may be filed under seal.

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Exhibit F contains excerpts from Dr. Phinney’s expert report that contains “significant

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references to and discussion regarding the technical features of GTE’s head/disk testers, as well as

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software-related functionality.” 19 Exhibit F may be filed under seal.

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Exhibit G contains excerpts of Dr. Phinney’s rebuttal expert report. GTE believes this
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See Docket No. 342.

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See Docket No. 342-1.

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See Docket No. 376.

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Docket No. 342-1 at ¶ 6.

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Id. at ¶ 7.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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document contains information designated confidential by Western Digital. 20 GTE’s supporting

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declaration only offers a generalized statement that Exhibit G “has confidential information about

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Western Digital’s Accused Product and Western Digital’s confidentiality interest therefore

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overcomes the right of public access to the record, as a substantial probability exists that Western

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Digital’s overriding confidentiality interest will be prejudiced if the record is not sealed.” 21

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Western Digital’s declaration does not satisfy the good cause standard. Exhibit G may not be filed

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under seal.
Exhibit H contains financial data introduced during Mr. Wagner’s deposition. The exhibit

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United States District Court
For the Northern District of California

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“contains significant references to GTE’s confidential financial and sales information, including

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confidential pricing information and references to GTE’s operating margins.” 22 Exhibit H may be

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filed under seal.

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The underlying trial brief “contains significant references to and discussion of GTE’s

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business relationships, among other information that is referred to in the Requested Sealed
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Documents.” 23 Although GTE does not seek to seal the entire trial brief, it asks the court to seal a

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substantial portion of it. 24 After reviewing the trial brief the court agrees that some, but not all,

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proposed redactions are warranted. The following redactions may not be filed under seal:

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Page 4, lines 18-19, 25-26

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Page 5, lines 1-4, 27

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Page 7, lines 18-19

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Page 8, line 27
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See id. at ¶ 13.

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Docket No. 376 at ¶ 9.

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Docket No. 342-1 at ¶ 8.

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Id. at ¶ 9.

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See id. at ¶ 10.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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United States District Court
For the Northern District of California

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Page 20, lines 2-8, 11-16, 18-23

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Page 32, lines 13-15, 20

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Page 36, lines 15-20

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All other proposed redactions may remain.

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As detailed above, GTE’s request to seal portions of its trial brief and related exhibits is

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GRANTED-IN-PART.
C.

Western Digital’s Trial Brief

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Western Digital seeks leave to file a redacted version of its trial brief under seal, because it
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contains information designated by GTE as confidential. 25 GTE submitted a timely declaration

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supporting Western Digital’s sealing request. 26 After reviewing GTE’s declaration and the

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alongside the requested redactions, the court finds sealing to be warranted. Western Digital’s

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See Docket No. 348.

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See Docket No. 375.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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request is GRANTED.
D.

GTE’s MILs Nos. 1-10
GTE seeks leave to file portions of some of its motions in limine as well as supporting

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exhibits under seal. 27 Although Western Digital failed to comply with Civil L.R. 79-5(e)(1) and
filed a supporting declaration more than four days after GTE’s sealing motion, the court will
consider the declaration. 28 By its motion, GTE asks the court to seal portions of 20 documents.

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The court will address each in turn.
1.

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Exhibit 8 consists of excerpts from the deposition transcript of Mr. Pampinella.

United States District Court
For the Northern District of California

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Western Digital claims the testimony discusses Mr. Pampinella’s conversations “with

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Western Digital employees regarding confidential business matters.” 29 After reviewing

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Exhibit 8 in light of Western Digital’s declaration, the court finds that sealing the

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exhibit is not warranted. Exhibit 8 may not be filed under seal.

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2.

Exhibit 9 consists of excerpts from the deposition transcript of Mr. Buttar. GTE relied

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on Western Digital’s designation that Exhibit 9 contained Western Digital’s confidential

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information. Western Digital submitted a written declaration that sealing Exhibit 9 was

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not warranted. 30 Exhibit 9 may not be filed under seal.

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3.

Exhibit 12 consists of excerpts from Dr. Messner’s expert report. This report contains

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“information regarding GTE’s head/disk testers and trade secrets” that GTE considers

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confidential. 31 The report also contains information “regarding the structure and

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See Docket No. 371.

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See Docket Nos. 410 and 431.

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Docket No. 410 at ¶ 9.

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Id. at ¶ 5.

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Docket No. 371-1 at ¶ 11.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

function of the accused products” that Western Digital considers highly sensitive. 32

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Western Digital acknowledges “that a redacted version of this document can be filed,

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however, subject to the agreement of the parties, will defer filing a redacted version

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until Guzik has a chance to further review this document.” 33 The docket reflects the

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parties’ apparent failure to file a redacted version of Exhibit 12. Exhibit 12 may not be

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filed under seal.

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4.

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Exhibit 21 consists of GTE’s interrogatory responses dated January 12, 2012. These
responses identify “technical descriptions of trade secrets” asserted by GTE against

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United States District Court
For the Northern District of California

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Western Digital. 34 Because GTE does not believe the entire exhibit needs to be

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redacted, it submitted proposed redactions. The redacted exhibit may be filed under

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seal.

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5.

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Exhibit 22 consists of excerpts from Dr. Klopp’s expert report. The report “contains
significant references to and discussion regarding the technical features of GTE’s

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head/disk testers” and “comparisons to Western Digital’s head/disk testers.” 35

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Western Digital filed a declaration supporting the sealing of Exhibit 22. Exhibit 22 may

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be filed under seal.

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6.

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Exhibit 23 consists of excerpts from Dr. Talke’s expert report. GTE relied on
Western Digital’s designation that Exhibit 23 contained Western Digital’s confidential

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information. Western Digital submitted a written declaration that sealing Exhibit 23

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was not warranted. 36 Exhibit 23 may not be filed under seal.

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Docket No. 410 at ¶ 10.

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Id.

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Docket No. 371-1 at ¶ 12.

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Id. at ¶ 13.

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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

7.

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Exhibit 24 consists of excerpts from Dr. Talke’s rebuttal expert report. This exhibit

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“identifies and discusses GTE’s design choices with respect to certain components of its

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head/disk tester products, which it treats as highly confidential and regards as valuable

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trade secret information.” 37 Exhibit 24 may be filed under seal.

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8.

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provides information “regarding the structure and function of the accused products” that

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Western Digital considers highly sensitive. 38 As with Exhibit 12, the court believes

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sealing all of Exhibit 25 is not warranted. The exhibit may not be filed under seal.

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9.

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United States District Court
For the Northern District of California

Exhibit 25 consists of excerpts from Dr. Messner’s rebuttal expert report. This exhibit

Exhibit 26 consists of excerpts from the deposition transcript of Dr. Talke that provide

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“descriptions of the function and structure” of Western Digital products. 39 Because

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Western Digital has not pointed out with particularity what information warrants

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sealing, it has not met the good cause standard. Exhibit 26 may not be filed under seal.

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10.

Exhibit 27 consists of excerpts from the deposition transcript of Dr. Messner. GTE

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relied on Western Digital’s designation that Exhibit 27 contained Western Digital’s

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confidential information. Western Digital submitted a written declaration that sealing

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Exhibit 27 was not warranted. 40 Exhibit 28 may not be filed under seal.

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Exhibit 28 consists of excerpts from Mr. Jestice’s expert report that “quotes and
borrows figures from confidential manuals (e.g., software and user guides) pertaining to

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GTE’s head/disk tester products” and includes significant citations to GTE’s source

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Id. at ¶ 5.

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Docket No. 431 at ¶ 5.

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Docket No. 410 at ¶ 12.

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Id. at ¶ 13.

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Id. at ¶ 5.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

code. 41 The exhibit may be filed under seal.

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12.

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Exhibit 29 consists of excerpts from the deposition transcript of Mr. Jestice. GTE relied

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on Western Digital’s designation that Exhibit 29 contained Western Digital’s

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confidential information. Western Digital submitted a written declaration that sealing

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Exhibit 29 was not warranted. 42 Exhibit 29 may not be filed under seal.

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13.

Exhibit 30 consists of excerpts from Mr. Jestice’s expert report that “identifies file

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names for GTE’s highly confidential source code for its head/disk tester products,

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which relate to their functionality.” 43 Exhibit 30 may not be filed under seal.

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14.

United States District Court
For the Northern District of California

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Exhibit 33 consists of excerpts from Dr. Phinney’s expert report that makes

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“significant” reference to and discussion of “the technical features of GTE’s head/disk

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testers, as well as software-related functionality.” 44 Exhibit 33 may be filed under seal.

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15.

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Exhibit 34 consists of excerpts from Dr. Phinney’s expert rebuttal report that makes
“significant” reference to and discussion of “the technical features of GTE’s head/disk

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testers, as well as software-related functionality.” 45 Exhibit 34 may be filed under seal.

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16.

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Exhibit 35 consists of excerpts from Dr. Messner’s supplemental expert report that

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“refers to and quotes confidential technical information regarding GTE’s head/disk

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tester products from GTE’s V2002 tester user guide.” 46 The redacted exhibit may be

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filed under seal.

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17.

Exhibit 37 consists of excerpts from a Western Digital presentation prepared for

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Docket No. 431 at ¶ 7.

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Docket No. 410 at ¶ 5.

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Docket No. 431 at ¶ 9.

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Docket No. 371-1 at ¶ 14.

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Docket No. 371-1 at ¶ 15.

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Docket No. 431 at ¶ 13.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

Rule 408 settlement discussions “that contains confidential settlement information that

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Western Digital considers to be highly sensitive.” 47 Only page 25 of Exhibit 37 may be

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filed under seal.

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Western Digital designated confidential. Western Digital makes a general claim that

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sealing is warranted because some material in MIL Nos. 1, 4, and 8 makes reference to

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“the structure and function of the Accused Products.” 48 The general statements in

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Western Digital’s declaration do not point out with particularity why sealing is

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warranted. The motion may not be filed under seal.

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United States District Court
For the Northern District of California

GTE seeks leave to file its MIL No. 1 under seal, because it cites material that

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19.

GTE seeks leave to file its MIL No. 4 under seal, because it cites material that it

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believes is sealable. GTE argues the motion “contains significant references to and

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discussion of technical features” of GTE’s head/disk testers. 49 After reviewing the

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proposed redactions the court agrees that sealing is warranted. The redacted motion
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may be filed under seal.

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20.

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GTE seeks leave to file its MIL No. 8 under seal, because it cites material that

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Western Digital designated confidential. Western Digital makes a general claim that

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sealing is warranted because some material in MIL Nos. 1, 4, and 8 makes reference to

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“the structure and function of the Accused Products.” 50 The general statements in

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Western Digital’s declaration do not point out with particularity why sealing is

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warranted. The motion may not be filed under seal.
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GTE’s request is GRANTED-IN-PART.

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Docket No. 410 at ¶ 5.

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Docket No. 410 at ¶ 17.

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Docket No. 379-1 at ¶ 16.

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Docket No. 410 at ¶ 17.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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E.

GTE’s Opposition to Western Digital’s MIL No. 4
GTE seeks leave to file Exhibit 1 to the Declaration of Scott Kolassa under seal, because

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the exhibit contains excerpts Dr. Phinney’s expert report. 51 GTE represents that Exhibit 1

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“includes confidential information pertaining to GTE’s V2002 tester, including, but not limited to,

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the identification of components, processes, and photos” of the tester. 52 After reviewing Exhibit 1,

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the court is satisfied that the good cause standard has been met. GTE’s request is GRANTED.

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F.

GTE’s Opposition to Western Digital’s MIL No. 7
GTE seeks leave to file its opposition and Exhibits 1-3 under seal, in part, because it

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United States District Court
For the Northern District of California

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believed those documents contain Western Digital’s confidential information. 53 Although

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Western Digital failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting declaration more

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than four days after GTE’s sealing motion, the court will consider the declaration. 54 After

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reviewing the parties’ representations alongside the exhibits, the court is satisfied that the limited
redactions to GTE’s opposition and Exhibits 1-3 warrant sealing. GTE’s request is GRANTED

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G.

GTE’s Opposition to Western Digital’s MIL No. 8

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GTE seeks leave to file Exhibit A under seal, 55 because the exhibit consists of “a claim

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chart comparing GTE’s V2002 tester to asserted claims of U.S. Patent No. 6,023,145.” 56 GTE

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argues sealing is warranted, because the document “contains extensive technical descriptions of

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GTE’s V2002” tester and Dr. Phinney relied on confidential information in preparing the

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See Docket No. 379 at 2.

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Docket No. 379-1 at 2.

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53

See Docket 392.

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See Docket No. 437.

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See Docket No. 385.

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Docket No. 385-1 at 1.
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OMINBUS ORDER RE: SEALING MOTIONS

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document. 57 After reviewing the parties’ representations alongside the claim chart, the court agrees

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that the exhibit warrants sealing. GTE’s request is GRANTED.

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H.

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GTE’s Opposition to Western Digital’s MIL No. 9
GTE seeks leave to file portions of its opposition under seal, because it relies on

Western Digital’s designation that certain information in its opposition was confidential. 58
Although Western Digital failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting

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declaration more than four days after GTE’s sealing motion, the court will consider the
declaration. 59 After reviewing the request the court is convinced sealing the motion is not

United States District Court
For the Northern District of California

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warranted. GTE’s request is DENIED.

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I.

Western Digital’s MILs

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Western Digital seeks leave to file Exhibits 1-2, 10-12, 14, 16, 23-24, and 27-28 in support
of its motions in limine under seal. 60 Western Digital relies on GTE’s designation that the

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information in Exhibits 10-12 and 16 contains GTE’s confidential information. Western Digital
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relies in part on GTE’s designation that Exhibits 14 and 28 contain GTE’s confidential information

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and also represents that those exhibits contain Western Digital financial and business information.

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Western Digital represents that Exhibits 1-2, 23-24, and 27 “disclose information about the

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structure and function of the Accused Products as well as confidential information about

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Western Digital’s business operations.” 61 GTE filed a timely declaration supporting the sealing of

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Exhibits 10-12, 14, 16, and 28. Because it did not believe sealing the entirety of certain exhibits

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was warranted, GTE submitted more limited redactions to Exhibits 11-12, 16, and 28. The court
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57

Id.

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58

See Docket No. 406.

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59

See Docket No. 438.

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See Docket No. 327.

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61

Docket No. 327-1 at ¶ 5.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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has reviewed the exhibits in light of the parties’ representations and rules as follows:

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Exhibit 1 may be sealed in part. Only Exhibit A to Exhibit 1 may be sealed.

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Exhibit 2 may be sealed.

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Exhibit 10 may be sealed.

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The more narrowly-tailored redactions to Exhibit 11 may be sealed.

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The more narrowly-tailored redactions to Exhibit 12 may be sealed.

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Only paragraphs 514-515 of Exhibit 14 may be sealed.

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The more narrowly-tailored redactions to Exhibit 16 may be sealed.

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United States District Court
For the Northern District of California

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Exhibit 23 may be sealed.

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Exhibit 24 may be sealed.

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Exhibit 27 may be sealed.

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The more narrowly-tailored redactions to Exhibit 28 may be sealed.

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Western Digital’s request is GRANTED-IN-PART.
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J.

Western Digital’s Opposition to GTE’s MILs
Western Digital seeks leave to file Exhibits B-G, I, and L in support of its opposition to

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GTE’s motions in limine under seal. 62 Western Digital represents that Exhibits B-D and G contain

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confidential information related to Western Digital’s business operations as well as the structure

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and function of Western Digital products. 63 These generic representations do not point out with

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particularity why these documents satisfy the good cause standard. Exhibits B, C, and G is may
not be sealed. 64

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Although GTE failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting

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declaration more than four days after Western Digital’s sealing motion, the court will consider the

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See Docket No. 425.

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See id.

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64

Exhibit D may be sealed on the basis of GTE’s declaration.
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Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

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declaration. 65 After reviewing the parties’ representations alongside the relevant exhibits, the court

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is convinced that sealing Exhibits D-F, I, and L is warranted. Western Digital’s request is

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GRANTED-IN-PART.

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K.

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GTE’s Motion to Exclude Portions of Dr. Messner’s Testimony
GTE seeks leave to file Exhibits B and D-H under seal. 66 As to Exhibits B and D-G, GTE

relies on Western Digital’s representation that those documents contain confidential information.

7
8
9

GTE offers a detailed declaration regarding Exhibit H that demonstrates why sealing a portion of it
is warranted. GTE’s request to seal Exhibit H is GRANTED.
Although Western Digital failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting

United States District Court
For the Northern District of California

10
11

declaration more than four days after GTE’s sealing motion, the court will consider the

12

declaration. 67 After reviewing the parties’ representations alongside the exhibits, the court is

13

convinced that some sealing is warranted.

14
Western Digital’s request to seal Exhibit B is GRANTED.
15
Western Digital’s request to seal Exhibit D is GRANTED-IN-PART. Exhibits E and K of

16
17

Exhibit D (Dr. Phinney’s expert report) report may be sealed. The other material in Exhibit D may

18

not be sealed.

19
20
21
22

Western Digital’s request to seal Exhibits E, F, and G is DENIED. Western Digital’s
boilerplate declaration that the documents contain “testimony regarding the structure and function
of the Accused Products” does not point out with particularity why those documents warrant
sealing. 68

23
24
25

65

See Docket No. 440.

26

66

See Docket No. 309.

27

67

See Docket No. 319.

28

68

Id. at 2.
15

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

1

L.

Western Digital’s Opposition to GTE’s Motion to Exclude Portions of Dr. Messner’s
Testimony

2
3
4

Western Digital seeks leave to file Exhibits 1-3, 7, and 9 under seal. 69 All of the exhibits
purportedly contain Western Digital’s confidential information “regarding the structure and
function” of the accused products or “Western Digital’s business operations.” 70 The court notes

5
6

that page three of Western Digital’s declaration supporting its sealing motion was apparently

7

copied in error from Western Digital’s declaration supporting the sealing of documents related to

8

Western Digital’s opposition to GTE’s motion to exclude portions of Mr. Pampinella’s

9

testimony. 71 Moreover, although Western Digital relies, in part, on GTE’s designation that

United States District Court
For the Northern District of California

10
11

Exhibits 1 and 3 are confidential, GTE did not file a timely, indeed apparently any, supporting
declaration. Because Western Digital has not pointed out with particularity why these documents

12
must be sealed, Western Digital’s request is DENIED.
13
14

M.

GTE’s Reply to Its Motion to Exclude Portions of Dr. Messner’s Testimony
GTE seeks leave to file Exhibit B under seal, because it relies on Western Digital’s

15
16

designation that Exhibit B contains Western Digital’s confidential information. 72 Although

17

Western Digital failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting declaration more

18

than four days after GTE’s sealing motion, the court will consider the declaration. 73 In its

19

declaration Western Digital identified that Exhibit B contains excerpts from the 30(b)(6) deposition

20
21

testimony of Dave Terrill regarding the structure and function of Western Digital’s accused

22
23
69

See Docket No. 365.

70

Docket No. 365-1 at 2.

71

See id. at 3.

72

See Docket No. 389.

73

See Docket No. 435.

24
25
26
27
28

16
Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

1

products including specific source code modules. 74 Western Digital proposed a more

2

narrowly-tailored redactions that it believes warrant sealing. After reviewing the redacted exhibit

3

the court is convinced those redactions to Exhibit B are warranted. GTE’s request to seal Exhibit B

4

is GRANTED-IN-PART.

5

N.

6
7
8
9

GTE’s Motion to Exclude Portions of Mr. Pampinella’s Testimony
GTE seeks leave to file its motion to exclude portions of Mr. Pampinella’s testimony and

Exhibit 1 under seal. 75 GTE claims sealing these documents is warranted because they contain
excerpts of Mr. Pampinella’s deposition testimony that was designated confidential pursuant to the

United States District Court
For the Northern District of California

10

protective order in this case. GTE’s motion may not be sealed because the motion merely

11

describes Mr. Pampinella’s understanding of damages law.

12
13

GTE believes sealing of Exhibit 1 is warranted, in part, because Western Digital designated
Mr. Pampinella’s expert report confidential. Although Western Digital did not satisfy

14
Civil L.R. 79-5(e)(1) and nominally filed a late declaration in support of GTE’s sealing motion, the
15
16

court would have considered that declaration. The court observes, however, that no supporting

17

declaration was ever filed, just two proposed orders. 76 For its part, GTE represents that Exhibit 1

18

includes financial information pertaining to GTE’s historical sales and excerpts from Mr. Wagner’s

19

report which it has designated confidential pursuant to the protective order in this case. After

20

reviewing the report the court believes some sealing is warranted. GTE may seal paragraphs 59-61

21
22

of the exhibit on page 24. GTE’s request to seal Exhibit 1 is GRANTED-IN-PART.
O.

23

Western Digital’s Opposition to GTE’s Motion to Exclude Portions of Mr.
Pampinella’s Testimony

24

Western Digital seeks leave to file its opposition and supporting Exhibits A-D under seal

25
26

74

See id. at ¶ 4.

27

75

See Docket No. 456.

28

76

See Docket Nos. 320 and 320-1.
17

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

1

because those documents contain “highly sensitive confidential financial and business information

2

required to be filed under seal pursuant to the parties’ Protective Order in this action.” 77 Although

3

Western Digital relies, in part, on GTE’s designation of some of the information in these Exhibits

4

as confidential, GTE did not file a timely, indeed apparently any, supporting declaration. Because

5

Western Digital has not pointed out with particularity why these documents must be sealed,

6

Western Digital’s request is DENIED. The exhibits and the opposition may not be filed under seal.

7
8

P.

GTE’s Reply to Its Motion to Exclude Portions of Mr. Pampinella’s Testimony
GTE seeks leave to file its reply and Exhibits 1-3 entirely under seal. 78 GTE relies on

9

United States District Court
For the Northern District of California

10

Western Digital’s designation that Exhibits 1-2 contain Western Digital’s confidential information.

11

As to Exhibit 3, GTE represents the exhibit contains its “financial information relating to the sale

12

of its head/disk testers that is confidential and proprietary to GTE.” 79 Although Western Digital

13
14

failed to comply with Civil L.R. 79-5(e)(1) and filed a supporting declaration more than four days
after GTE’s sealing motion, the court will consider the declaration. 80 Western Digital represents

15
16

that Exhibit 1 contains “information regarding Western Digital’s design and development of one of

17

Western Digital’s internal testers” and includes “citations to deposition testimony” from its fact

18

witnesses. 81 Exhibit 2 contains its “financial and business information which it considers to be

19

highly sensitive.” 82 After reviewing the request the court is convinced that some sealing is

20

warranted.

21

GTE’s reply may be sealed in part: page 2, lines 21-22 and page 3 lines 1-9 may be sealed.

22
23

77

Docket No. 367-1 at ¶ D.

24

78

See Docket No. 407.

25

79

Docket No. 407-1 at ¶ 8.

26

80

See Docket No. 439.

27

81

Id. at ¶ 5.

28

82

Id. at ¶ 6.
18

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

Portions of Exhibit 1 (¶¶ 23-24 and 59-61) may also be sealed.

1
2

Exhibit 2 may not be sealed.

3

Portions of Exhibit 3 (¶¶ 62-64 and 71-72) may also be sealed.

4

GTE’s request is GRANTED-IN-PART.

5

Q.

6
7
8
9

Western Digital’s Motion to Exclude Mr. Wagner
Western Digital seeks leave to file Exhibits A-C and E-H as well as a redacted version

Western Digital’s underlying motion citing those exhibits under seal. 83 Western Digital relies on
GTE’s designation or its own belief that Exhibits A-C and E-G contain GTE’s confidential

United States District Court
For the Northern District of California

10

information. Western Digital does not explain with particularity why Exhibit H requires sealing. 84

11

Western Digital’s request as to Exhibit H therefore is DENIED.

12
13
14

Although GTE failed to comply with Civil L.R. 79-5(e)(1) by filing a supporting
declaration within than four days of Western Digital’s sealing motion, the court will consider the
declaration. 85 After reviewing the parties’ representations alongside the exhibits the court believes

15
16

some sealing is warranted.
Exhibit A is the Mr. Wagner’s expert report that cites confidential information of Western

17
18

Digital and GTE including the price Western Digital paid for GTE’s V2002 tester and detailed

19

descriptions of GTE’s trade secrets. 86 Paragraphs 31-34, 38-41, 48-65, 71-73, 82-83, 87, 92-113,

20

119-121, and 124-154 may be sealed.

21

Exhibit B is the 1996 Agreement. That document may be sealed to avoid adversely affect

22
GTE’s “ability to negotiate terms of other agreements” with other customers outside the context of
23
24
25

83

See Docket No. 316.

26

84

See Docket No. 316-1 at F.

27

85

See Docket No. 321.

28

86

See Docket No. 321 at ¶ 4.
19

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

1

this litigation. 87

2

Exhibit C is the 2004 Agreement. It too may be sealed.

3

Exhibit E is Dr. Klopp’s expert report. GTE represents that the report “includes detailed

4

descriptions of Guzik’s trade secret information, including pictures of components of Guzik’s

5

tester components embodying Guzik’s trade secret information and excerpts of confidential

6

deposition testimony regarding such information.” 88 It may be sealed.

7
Exhibit F is GTE’s third amended response to Western Digital’s second set of

8
9

interrogatories. GTE represents this document contains descriptions of trade secret information

United States District Court
For the Northern District of California

10

regarding its testing equipment, but acknowledges that the entire document does not need to be

11

sealed. Accordingly, GTE submitted a more narrowly-tailored redacted document for the court’s

12

review. After reviewing those redactions the court agrees that sealing is warranted as to those

13

portions of Exhibit F.

14
Exhibit G contains excerpts from the deposition transcript of Mr. Wagner. Those excerpts
15
16

include the price Western Digital paid for GTE’s V2002 tester and some of Western Digital’s

17

confidential information. The court will only permit sealing of line 15 on page 95 of Exhibit G.

18

All other information may not be filed under seal.

19
20
21

The underlying motion to exclude Mr. Wagner may be sealed in part. The redactions at
page 1, lines 15, 22-23; page 5 lines 12, 16-23; page 6 line 23; page 9 lines 2, 4, 13; and page 10
lines 25-26 may be sealed.

22
Western Digital’s request is GRANTED-IN-PART.
23
24

R.

GTE’s Opposition to Western Digital’s Motion to Exclude Mr. Wagner
GTE seeks leave to file portions of its opposition and Exhibit A, excerpts from

25
26
27

87

Id. at ¶ 5.

28

88

Id. at ¶7.
20

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS

1

Mr. Wagner’s deposition transcript, under seal. 89 GTE represents that these documents warrant

2

sealing, because they include “financial information relating to the sale” of GTE’s head/disk

3

testers. 90 After reviewing both the opposition and Exhibit A the court finds that the good cause

4

standard has not been satisfied. GTE’s request is DENIED.

5

S.

6

Western Digital’s Reply to Its Motion to Exclude Mr. Wagner
Western Digital seeks leave to file portions of its reply and Exhibits 1-3 under seal. 91 The

7
8

court considers each in turn.
Western Digital seeks leave to file Exhibit 1 under seal because GTE designated Exhibit 1

9

United States District Court
For the Northern District of California

10

confidential. GTE has not filed a declaration supporting the sealing of Exhibit 1. Thus, Exhibit 1

11

will not be sealed.

12
13
14

Exhibit 2 contains excerpts from Mr. Pampinella’s expert rebuttal report that contains
Western Digital’s “highly confidential business information” that falls within the protective order
in this case. 92 Western Digital has not pointed out with particularity why Exhibit 2 warrants

15
16

sealing. Exhibit 2 will not be sealed.

17

Exhibit 3 contains excerpts from the deposition transcript of Mr. Wagner. Western Digital

18

relies, in part, on GTE’s designation that this transcript is confidential and also represents that this

19

document contains Western Digital’s “business information which it considers to be highly

20

sensitive.” 93 GTE has not filed a declaration supporting the sealing of Exhibit 3. Western Digital

21

has not pointed out with particularity why Exhibit 3 warrants sealing. Exhibit 3 will not be sealed.

22
The court has also reviewed the proposed redactions to Western Digital’s underlying reply
23
24

89

See Docket No. 363.

25

90

Docket No. 363-1 at ¶ 5.

26

91

See Docket No. 421.

27

92

Docket No. 421-1 at ¶ 5.

28

93

Id. at ¶ 6.
21

Case No.: 5:11-cv-03786-PSG
OMINBUS ORDER RE: SEALING MOTIONS