Creagri, Inc. v. Pinnaclife Inc

Filing 181

ORDER by Judge Lucy H. Koh finding as moot 103 Administrative Motion to File Under Seal; finding as moot 106 Administrative Motion to File Under Seal; finding as moot 113 Administrative Motion to File Under Seal; finding as moot 118 A dministrative Motion to File Under Seal; finding as moot 121 Administrative Motion to File Under Seal; finding as moot 125 Administrative Motion to File Under Seal; denying 138 Administrative Motion to File Under Seal; granting 142 Admini strative Motion to File Under Seal; granting 143 Administrative Motion to File Under Seal; denying 145 Administrative Motion to File Under Seal; granting 151 Administrative Motion to File Under Seal; granting in part and denying in part [156 ] Administrative Motion to File Under Seal; granting in part and denying in part 158 Administrative Motion to File Under Seal; granting in part and denying in part 159 Administrative Motion to File Under Seal; granting in part and denying in p art 160 Administrative Motion to File Under Seal; granting in part and denying in part 161 Administrative Motion to File Under Seal; granting 163 Motion ; granting 170 Administrative Motion to File Under Seal; finding as moot 174 Stipulation (lhklc1, COURT STAFF) (Filed on 1/2/2014)

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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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CREAGRI, INC., a California corporation,

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Plaintiff,

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v.
PINNACLIFE INC., a Nevada corporation,

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Defendant.

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Case No.: 5:11-CV-06635-LHK
ORDER GRANTING IN PART AND
DENYING IN PART
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL

Pending before the Court are several Administrative Motions to Seal filed by the parties in

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connection with the Motion to Disqualify Dr. Visioli, the cross-Motions for Summary Judgment,

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and Daubert Motions. See ECF No. 79, 87, 92, 103, 106, 113, 118, 121, 125, 138, 142, 143, 145,

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151, 156, 158, 159, 160, 161, 170. This Court, having considered the motions, accompanying

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declarations, and relevant law, GRANTS in part and DENIES in part the motions.1

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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.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7

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(1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in

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Pending before the Court is also a Motion to Remove ECF No. 157, because ECF No. 157 was
inadvertently filed publicly. See ECF No. 163. The documents were re-filed under seal at ECF No.
158. The Court GRANTS the Motion to Remove ECF No. 157.
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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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favor of access’ is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178

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(9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.

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2003)).

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To overcome this strong presumption, a party seeking to seal a judicial record must

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articulate “compelling reasons supported by specific factual findings that outweigh the general

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history of access and the public policies favoring disclosure.” Id. at 1178-79 (internal quotation

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marks and citations omitted). “In general, ‘compelling reasons’ . . . exist when such ‘court files

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might have become a vehicle for improper purposes,’ such as the use of records to gratify private

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spite, promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179

United States District Court
For the Northern District of California

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(citing Nixon, 435 U.S. at 598). When ruling on a motion to seal court records, a “court must

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conscientiously balance the competing interests of the public and the party who seeks to keep

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certain judicial records secret.” Id. The Federal Circuit has held that the public’s interest is

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diminished where the documents that are subject to a motion to seal have not been considered by a

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court or a jury. See Apple, Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1226 (Fed. Cir. 2013). In

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such circumstances, the “public’s understanding of the judicial proceedings” would not be

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diminished by sealing the information. Id. at 1226-28.

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The Ninth Circuit has “carved out an exception to the presumption of access to judicial

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records . . . [that is] expressly limited to judicial records filed under seal when attached to a non-

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dispositive motion.” In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litigation, 686 F.3d

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1115, 1119 (9th Cir. 2012) (per curiam) (emphasis in original) (internal quotation marks and

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citation omitted). In such situations, the party seeking to seal need only demonstrate that there is

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“good cause” under Federal Rule of Civil Procedure 26(c) to seal. Motions to seal materials related

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to non-dispositive motions warrant this more lenient standard, in part, because such motions “are

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often unrelated, or only tangentially related, to the underlying cause of action.” Pintos v. Pac.

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Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotation marks and citation omitted).

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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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II.

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DISCUSSION
The parties to the instant litigation filed a number of administrative motions to seal along

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with the Motion to Disqualify Dr. Visioli and the cross-Motions for Summary Judgment. At the

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hearing on the Motion to Disqualify, the Court told the parties that the sealing requests were too

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broad and should be narrowed, and the Court asked the parties to meet and confer. The parties did

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so and submitted more narrow sealing requests. These narrowed sealing requests, see ECF Nos.

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156-61, supersede the parties’ earlier, broader sealing requests, see ECF Nos. 79, 92, 103,2 106,

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113, 118, 121, 125. Thus, the Court DENIES AS MOOT the parties’ earlier, broader sealing

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requests. ECF Nos. 79, 92, 103, 106, 113, 118, 121, 125. Accordingly, the Court addresses the

United States District Court
For the Northern District of California

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merits of only the narrower sealing requests below.

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Accompanying the parties’ narrower sealing requests were declarations from counsel. See

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e.g., ECF Nos. 130, 156-1. These declarations, particularly those of CreAgri, relied on broad,

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general statements regarding the designation of material as “Confidential” or “Highly

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Confidential” under the protective order and offered little to no basis for why the specific

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information merited sealing. For example, CreAgri provides one conclusory statement that fifteen

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exhibits, totaling more than 75 pages are sealable because they “concern CreAgri’s confidential

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business and technical information regarding its business, competition, and products.” ECF No.

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156-1 at 4.

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Despite such broad declarations, where the parties have met the standards for sealing, the

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Court below grants the sealing requests. Where the parties clearly cannot meet the standards,

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because, for example, information sought to be sealed was already publicly disclosed, the Court

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denies with prejudice the sealing requests. Where the parties may be able to meet the standards for

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sealing, but have not yet done so, the Court denies the sealing requests without prejudice. With

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The Court notes that on Pinnaclife’s initial Administrative Motion to File Under Seal its Motion
for Summary Judgment, a user can see under the redactions by copying and pasting from the pdf
into a word processor. See ECF No. 103-1. The Court encourages the parties to review all of their
redacted documents to determine whether this is the case with respect to other documents and to
move to remove any such documents. In this order, the Court does not deny any sealing motions on
the basis that information sought to be sealed is effectively publicly available due to improper
redacting.
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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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respect to this last category, the Court will consider sealing requests that are either more narrowly

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tailored or are supported by declarations addressing why the specific information sought to be

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sealed meets the relevant sealing standards.

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ECF No.
87

Document Title3
Opposition to Motion to
Disqualify Dr. Visioli

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Pinnaclife’s Surreply in
Opposition to CreAgri’s
Motion to Disqualify Dr.
Visioli

142

Pinnaclife’s Motion to
Exclude Testimony of
Jeffrey Redman

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United States District Court
For the Northern District of California

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Ruling and Rationale
DENIED. The redacted information relates to general
terms of the consultation agreement between Dr. Visioli
and CreAgri. This information is critical to
understanding the Motion to Disqualify. Accordingly,
the public interest is high. Further, the terms of the
agreement were discussed on the record in open court
extensively by counsel for both parties during the
October 31, 2013, hearing on the Motion to Disqualify.
The only additional information sought to be sealed are
broad and vague statements regarding Dr. Visioli’s
work for a CreAgri partner. CreAgri has not offered any
specific argument or basis for why this information is
sealable, and the CreAgri partner has not separately
sought to keep this information sealed. Accordingly, the
Court cannot find that “good cause” supports the
sealing request.
DENIED. The sealing requests here relates to items in
the 10-B meeting minutes. Specifically, most of the
redacted material is specific ingredients to add to
HIDROX that were discussed during these meetings.
However, at the hearing on the Motion to Disqualify,
CreAgri’s counsel stated almost all of these additional
ingredients on the record in open court. Furthermore,
the declaration in support of the sealing request, ECF
No. 139, provides no reasons why CreAgri regards
these ingredients as highly sensitive or what harm could
result from their disclosure. Because the information
was already publicly disclosed and because CreAgri
does not persuasively contend that there are reasons to
redact the information, the Court finds no “good cause”
to seal the identified information.
GRANTED. The Court did not rule on the underlying
motion, but rather, denied it as moot in the summary
judgment order. Public access to the records cited in
this motion will not further the public’s understanding
of the reasoning underlying the Court’s decisions. See
Apple, Inc., 727 F.3d 1214 at 1226 (sealing warranted
when there was no “indication that th[e] information
was essential to the district court’s rulings”); id. at 1228
(information not relied on by district court in its orders
“is irrelevant to the public’s understanding of the
judicial proceedings”); see also Valley Broad. Co. v.
U.S. Dist. Ct. for Dist. of Nev., 798 F.2d 1289, 1294
(9th Cir. 1986) (presumption of public access to judicial
records grounded in need to promote “the public’s

Many of the motions contain accompanying declarations.
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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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145

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United States District Court
For the Northern District of California

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151
156-60

Pinnaclife’s Motion to
Exclude Testimony of
Jeffrey Redman
Declaration in Support of
CreAgri’s Motion to
Preclude Testimony of Dr.
Visioli

understanding of the judicial process and of significant
public events”). Given that the public’s interest in
accessing the documents at issue in a motion on which
the Court did not rule on the merits is low and that there
is some interest on the part of the parties in maintaining
the confidentiality of the technology and business
practices discussed, the Court finds that there is “good
cause” to seal the document.
GRANTED. This appears to contain the same
information as ECF No. 142.

DENIED WITHOUT PREJUDICE. The unredacted
version of this declaration is publically accessible. If the
parties move to remove this document, they may refile a
new administrative motion to seal, which the Court will
consider.
Pinnaclife’s Revised Motion GRANTED. The ruling on ECF No. 142 is equally
to Exclude Testimony of
applicable here.
Jeffrey Redman
Documents associated with GRANTED as to all the documents related to CreAgri’s
Motion to Disqualify Dr.
Motion for Summary Judgment (Infringement). See
Visioli and CreAgri’s
Exs. K-R. The Court did not rule on this underlying
Motion for Summary
motion on the merits. Instead, the Court dismissed this
Judgment (Infringement)
this underlying motion without prejudice because the
Court granted Pinnaclife’s Motion for Summary
Judgment of Invalidity. See ECF No. 177. Accordingly,
the Court’s rationale with respect to ECF No. 142 is
applicable here.
Exhibit A: DENIED. The ruling on ECF No. 87 is
equally applicable here.

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Exhibit C: DENIED. The ruling on ECF No. 87 is
equally applicable here.

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Exhibit E:

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

Page 1, Lines 19-22; Page 2, Lines 3-4, 11-12,
19-20, Page 4, Lines 12-15: DENIED. This
material relates to the consultation agreement
and the broad terms of CreAgri’s agreement
with a partner. “Good cause” does not support
sealing these for the reasons stated in this
Court’s order on ECF No. 87.



Page 2, Line 25 to Page 3, Line 2: DENIED.
“Good cause” does not support sealing this
broad answer to a deposition question, in which
Dr. Visioli merely conceded that he had
conversations with Dr. Crea that he considered
confidential.



Page 4, Lines 1-2: DENIED. “Good cause” does
not support sealing the broad statement by Dr.
Visioli that he and Dr. Crea discussed potential

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ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

distributors for CreAgri’s products.

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Page 4, Lines 3-5: DENIED. “Good cause” does
not support sealing broad statements about what
Dr. Crea thought his patents covered.



Page 4, Lines 22-26: DENIED. These broad and
vague statements regarding the nature of Dr.
Visioli’s conversations with Dr. Crea are not
sealable.



Page 5, Lines 1-5: DENIED. The discussion
about Dr. Visioli’s relationship with 10-B was
stated in open court by CreAgri’s counsel at the
hearing on the Motion to Disqualify.



Page 5, Lines 14-18: GRANTED as to the word
preceding “delivery” on Line 16. How CreAgri
planned to deliver HIDROX is potentially a
trade secret. The remaining information is not
sealable. Accordingly, the remainder of the
sealing motion is DENIED.



Page 5, Lines 19-22: DENIED. “Good cause”
does not support sealing broad, general
statements about communications between Dr.
Visioli and Dr. Crea.

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United States District Court
For the Northern District of California

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Exhibit G:


Declaration of Dr. Crea: GRANTED in part and
DENIED in part. The mere fact that Dr. Visioli
had conversations with Dr. Crea is not a trade
secret. See ¶ 2. Nor are broad, vague statements
about the nature of Dr. Visioli’s work for
CreAgri, which was discussed at length at the
hearing on the Motion to Disqualify Dr. Visioli.
See ¶ 4. The existence, dates, and general topics
of conversation of the 10-B International
meeting minutes were also discussed in open
court during the hearing on the Motion to
Disqualify Dr. Visioli. See ¶¶ 5-8. The title and
contents of this PowerPoint presentation are not
sealable, because nothing in the record supports
a finding that the presentation itself was
confidential. See ¶ 15; see also ECF No. 179 at
11-12. The fact that Dr. Crea sent Dr. Visioli an
email and the email’s subject line is not
confidential and thus the motion to seal this
information is DENIED. See ¶ 18. However, the
Court finds that “good cause” supports the
sealing of the contents of the email that concern
the specific nature of the discussions between
CreAgri and its partners regarding the
development of new products. See ¶ 17. Thus,

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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

the Court GRANTS the motion to seal the
contents of the email.

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Exhibits 1, 12-17: DENIED. There is no “good
cause” to seal these routine emails scheduling
and inquiring about meetings.



Exhibits 2-4: DENIED WITHOUT
PREJUDICE. CreAgri seeks to seal in full the
minutes of 10-B International’s meetings that
Dr. Visioli and Dr. Crea attended. However,
substantial portions of these meeting minutes
were discussed in open court. These disclosed
items are discussed in the Court’s Order
Denying the Motion to Disqualify Dr. Visioli,
ECF No. 179. The Court further finds that
statements such as when the meetings were
adjourned are not sealable. Furthermore, as
discussed above, the declarations in support of
sealing this information, ECF Nos. 92-1, 156-1,
conclusorily state that the material is sealable
without explaining why the information
contained in the minutes is confidential. In light
of these deficiencies, the Court denies the
motion to seal these exhibits, but does so
without prejudice. The Court will consider a
more narrowly tailored sealing request that
redacts no information already made public and
that is accompanied by a declaration that
provides more detail about why the material
contained in these exhibits is sealable.



Exhibits 5-6: DENIED. There is no “good
cause” to seal this email celebrating the
acceptance of a paper for publication, as the
parties have offered only a broad, conclusory
statement for why this information is
confidential. This paper was in fact published.



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Exhibits 8-11: DENIED. There is no “good
cause” to seal this email exchange attaching a
PowerPoint presentation created by a party with
whom the parties and record indicate there is no
non-disclosure agreement. See ECF No. 179 at
11-12.

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161

Documents associated with
Pinnaclife’s Motion for

Exhibit I: DENIED WITHOUT PREJUDICE. The
redactions, 15 pages out of a 20-page excerpt from Dr.
Visioli’s deposition, are overbroad. For example,
objections to questions and identification of exhibits are
redacted. Furthermore, Dr. Visioli’s statement that he
did not feel like his relationship with Dr. Crea ended on
bad terms is redacted.
GRANTED as to all the documents related to CreAgri’s
Motion for Summary Judgment (Infringement). See
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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

Summary Judgment
(Invalidity) and CreAgri’s
Motion for Summary
Judgment (Infringement).

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The Court rules as follows with respect to the remaining
documents, which are related to Pinnaclife’s Motion for
Summary Judgment:

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Exhibit 2: GRANTED. Exhibit 2 is the unredacted
version of Pinnaclife’s motion for summary judgment
of invalidity. Pinnaclife seeks to seal portions of its
motion relating to invalidity arguments that the Court
did not reach. Accordingly, the Court’s rationale with
respect to ECF No. 142 is applicable to these portions.

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Exhibit 4: DENIED WITHOUT PREJUDICE. The
unredacted version of this declaration is publically
accessible. See ECF No. 161-3. If the parties move to
remove the unredacted version of the document, they
may refile a new administrative motion to seal, which
the Court will consider.

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170

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Exs. K-R. The Court did not rule on this underlying
motion on the merits. Instead, the Court dismissed this
this underlying motion without prejudice because the
Court granted Pinnaclife’s Motion for Summary
Judgment of Invalidity. See ECF No. 177. Accordingly,
the Court’s rationale with respect to ECF No. 142 is
applicable here.

III.

CreAgri’s Opposition to
Pinnaclife’s Motion to
Exclude Testimony of
Bruce German

Exhibit 11: DENIED WITHOUT PREJUDICE. This
exhibit includes portions of Dr. Crea’s deposition. The
portions sought to be sealed were filed publicly (and
likely inadvertently) as part of Exhibit C to the Marshall
Declaration in Support of Defendant Pinnaclife Inc.’s
Motion for Summary Judgment or in the Alternative
Summary Adjudication of Claims. Compare ECF No.
161-3 at 39-40 with Exhibit 11 at 7-8. Accordingly, if
the parties move to remove the publicly filed document,
they may refile a new administrative motion to seal,
which the Court will consider.
GRANTED. The ruling on ECF No. 142 is equally
applicable here.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part the pending

Administrative Motions to Seal. For the sealing requests denied without prejudice, the parties may
file revised sealing requests within ten days. Failure to do so will result in the denial of these
motions with prejudice. The Clerk shall close the file.
IT IS SO ORDERED.

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11-CV-06635-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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Dated: January 2, 2014

_________________________________
LUCY H. KOH
United States District Judge

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For the Northern District of California

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ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
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