Benedict v. Hewlett-Packard Company

Filing 443

SEALING ORDER RE 405 412 420 427 ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL. Signed by Judge Beth Labson Freeman.(blflc2S, COURT STAFF) (Filed on 7/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
Northern District of California

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ERIC BENEDICT, RICHARD BOWDERS,
KILRICANOS VIEIRA, and DAVID
MUSTAIN, on behalf of themselves and
classes of those similarly situated,

Case No. 13-cv-00119-BLF
SEALING ORDER
[Re: ECF Nos. 405, 412, 420, 427]

Plaintiffs,
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v.
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HEWLETT-PACKARD COMPANY,
Defendant.

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____________________________________
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ERIC BENEDICT,
Counterdefendant,

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v.
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HEWLETT-PACKARD COMPANY,
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Counterclaimant.
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Before the Court are four motions seeking leave to file under seal various documents in
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this litigation pursuant to Civil Local Rule 79-5. Plaintiff and Counterdefendant Eric Benedict
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moves to seal portions of two exhibits to a declaration in support of his Motion for Summary
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Judgment to the First Amended Counterclaim filed by Defendant and Counterclaimant Hewlett-

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Packard Company (“HP”). See (ECF No. 405). HP moves to seal a total of seventy-six

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documents, either in whole or in part, consisting of its Motion for Summary Judgment, Motion to

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Decertify the FLSA Collective Action, and various exhibits, declarations, and depositions

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submitted in support of those Motions and in support of its Opposition to Benedict’s Motion for

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Summary Judgment. See (ECF Nos. 412, 420, 427).
The Court has carefully reviewed each and every one of the documents requested for

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sealing and has considered the relevant law and declarations submitted thereto. For the reasons

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that follow, the Court GRANTS Benedict’s sealing motion filed under ECF No. 405; GRANTS
HP’s sealing motion filed under ECF No. 412; GRANTS IN PART and DENIES IN PART HP’s

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United States District Court
Northern District of California

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sealing motion filed under ECF No. 420; and GRANTS HP’s sealing motion filed under ECF No.

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427.

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I.

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LEGAL STANDARD
Courts recognize a “general right to inspect and copy public records and documents,

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including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

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& n.7 (1978); see also Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.

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2006). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in

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favor of access’ is the starting point.” Kamakana, 447 F.3d at 1178 (quoting Foltz v. State Farm

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Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

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A party “seeking to seal judicial records can overcome the strong presumption of access by

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providing ‘sufficiently compelling reasons’ that override the public policies favoring disclosure.”

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In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir.

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2012). “In general, ‘compelling reasons’ . . . exist when such ‘court files might have become a

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vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public

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scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179

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(citing Nixon, 435 U.S. at 598). “The mere fact that the production of records may lead to a

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

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compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136).
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However, the Ninth Circuit has “carved out an exception to the presumption of access to

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

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a non-dispositive motion.” In re Midland, 686 F.3d at 1119 (internal quotation marks and citation

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omitted). A party seeking to file documents under seal in relation to a non-dispositive motion

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must sh`ow only “good cause” for the sealing request. See Phillips ex rel. Estates of Byrd v. Gen.

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Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

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678 (9th Cir. 2010) (applying a “good cause” standard to all non-dispositive motions because such

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motions “are often unrelated, or only tangentially related, to the underlying cause of action”).

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Good cause may exist to seal documents that are “privileged, contain trade secrets, contain
confidential research, development or commercial information, or if disclosure of the information

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Northern District of California

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might harm a litigant’s competitive standing.” Dugan, 2013 WL 1435223, at *2.

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Motions to decertify FLSA collective actions are non-dispositive motions to which the

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“good cause” standard applies. See Brewer v. Gen. Nutrition Corp., No. 11-cv-3587, 2014 WL

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5873328, at *1 (N.D. Cal. Nov. 12, 2014); see also Dugan v. Lloyds TSB Bank, PLC, No. 12-CV-

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02549-WHA NJV, 2013 WL 1435223, at *1 (N.D. Cal. Apr. 9, 2013) (“[T]he vast majority of

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courts within this circuit treat motions for class certification as non-dispositive motions to which

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the ‘good cause’ standard applies.”); In re High-Tech Employee Antitrust Litig., No. 11-CV-

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02509-LHK, 2013 WL 163779, at *2 n.1 (compiling cases and, though recognizing that “there

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may be circumstances in which a motion for class certification is case dispositive,” stating that

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“the Court applies a ‘good cause’ standard here in accordance with the vast majority of other

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courts within this circuit”).

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In this District, a party seeking to seal judicial records must follow Civil Local Rule 79-5,

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which requires, inter alia, that a sealing request be “narrowly tailored to seek sealing only of

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sealable material.” Civ. L.R. 79-5(b). The submitting party must make a “particularized showing

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of ‘good cause’” for each individual document it seeks to seal. See Kamakana, 447 F.3d 1172,

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1180. “[B]road allegations of harm, unsubstantiated by specific examples or articulated

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reasoning,” are insufficient. In re High-Tech Employee Antitrust Litig., 2013 WL 163779, at *2

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(citing Beckman Indus. Inc. v. Int’l Ins. Co., 996 F.2d 470, 476 (9th Cir. 1992)).
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II.

DISCUSSION
With these standards in mind, the Court addresses the sealing motions at bar, first, with

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Benedict’s sealing request (hereafter referred to by docket number, “ECF No. 405”), and then with
HP’s sealing requests with respect to its Motion to Decertify the FLSA Collective Action
(hereinafter “ECF No. 412”), its Opposition to Benedict’s Motion for Summary Judgment
(hereinafter “ECF No. 420”), and finally its Motion for Summary Judgment (hereinafter “ECF No.
427”). The Court has reviewed all of the documents sought to be sealed and, having considered

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the relevant law and declarations submitted thereto, makes the following rulings.
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A.

ECF No. 405

Benedict requests leave from the Court to file under seal portions of two documents in
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United States District Court
Northern District of California

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connection with his Motion for Summary Judgment to HP’s First Amended Counterclaim. See
(ECF No. 401). The first document, appended as “Exhibit A” to the Declaration of Jahan C.
Sagafi in support of the Motion, (ECF No. 403), is a letter detailing terms of HP’s offer of
employment to Benedict, and seeks to redact only Benedict’s personal contact information, salary
offer, and personal account access information. “Exhibit B” of the same Declaration is an email

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correspondence between Benedict and HP, and seeks to redact only email addresses of the
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respective parties. Counsel for Benedict, Mr. Daniel M. Hutchinson, attested in his declaration in
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support of the Motion that HP does not oppose the sealing of the identified information. Benedict
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submits that this information sought for redaction, narrowly tailored, should be sealed because it
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“is sensitive and confidential, and immaterial to Plaintiff’s Motion for Summary Judgment.”

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(ECF No. 405) at 1.
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The Court agrees, and finds that Benedict has identified interests sufficient to meet the
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“compelling reasons” standard for sealing in dispositive motions. The information requested for

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sealing is narrowly-tailored, and relates to personal, identifiable information that has no bearing on
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the substance of the claims at issue in HP’s First Amended Counterclaim, which alleges breach of
contract claims stemming from Benedict’s purported violation of confidentiality agreements. The

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public interests in favor of access to this information are therefore minimal, and the interests to
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override the general policy in favor of disclosure are great. As such, ECF No. 405 is hereby
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GRANTED.

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B.

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Next, HP requests leave to file under seal forty documents, some in whole and some in

ECF No. 412

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part, related to its Motion to Decertify the FLSA Collective Action. See (ECF No. 413). The

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request includes redacting portions of its Motion identifying employee salaries and HP’s

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confidential business information. In addition, the documents identified for filing under seal also

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include portions of thirteen depositions and various exhibits attached to them, as well as employee

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performance evaluations spanning the course of several years. HP submits that these various

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documents contain HP’s confidential and proprietary business information, employees’ personal
information such as performance reviews and salary information, and information identifying

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Northern District of California

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HP’s customers, customer contacts, and the particular services it provides for them. (ECF No.

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412) at 2.

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In support of this administrative motion, HP submits a declaration from Mr. Michael

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Menz, the company’s Senior Manager of Global Security Investigations and Forensics, who

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represents that the aforementioned information is “highly commercially sensitive, confidential,

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and/or proprietary and [are] trade secret[s],” and “information about its employees, such as private

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salary information and performance reviews.” (ECF No. 412-1) ¶¶ 5, 6. Menz further represents

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that the company maintains policies and protocols to preserve the integrity of its confidential

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business information and takes reasonable steps to limit the disclosure of employee information,

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“in the normal course of business.” Id. ¶¶ 4, 6.

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Under the good cause standard for this non-dispositive motion, the Court finds that HP has

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articulated particularized reasons sufficient to warrant sealing the requested documents, or

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portions thereof. The Court has reviewed all of the exhibits requested for sealing, and observes

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that the information ECF No. 412 seeks to keep from disclosure to the public include trade secrets

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and confidential business information that, if disclosed, may harm HP’s competitive standing and

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its employees. Accordingly, the Court finds that HP has shown good cause to seal the requested

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documents and therefore GRANTS ECF No. 412.

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C.

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ECF No. 420

In ECF No. 420, HP requests leave from the Court to file under seal nine documents
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related to its Opposition to Benedict’s Motion for Summary Judgment of HP’s First Amended
Counterclaim. HP submits that this administrative motion “seeks to redact only limited instances
of information consisting of: (a) HP’s confidential and proprietary business information; and (b)
information identifying HP’s customer’s customer contacts, the particular services it provides for
them, and its customers’ confidential and proprietary business information.” (ECF No. 420) at 2,

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5.
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However, the Court is puzzled by this representation because, far from “limited instances
of information,” ECF No. 420 seeks to seal all nine documents in their entirety such that, with the

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exception of Exhibit 9, broadly sweeps together what appears to be both sealable and substantial
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Northern District of California

non-sealable information. Specifically, the Court notes that Exhibits 1 through 4 are identical to
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Exhibits A and B in Benedict’s ECF No. 405, supra, for which Benedict has merely sought to

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redact limited portions of the two documents, and not seal the entirety of the Exhibits, as HP seeks
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to do here. In addition, HP’s ECF No. 420 also requests leave to seal the entirety of Exhibit 5, a

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104-page deposition transcript, without regard to what portions of the transcript may include non16
sealable information. Exhibits 6 and 8 are declarations of counsel for HP, but HP fails to
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articulate any compelling reason for why these Exhibits should be screened from disclosure in
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their entirety. Finally, the Court observes that Exhibit 7 appears to contain substantial proprietary
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business information, but again, HP fails to differentiate between sealable and non-sealable
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information in its administrative request for this Exhibit. HP provides little guidance to the Court
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what compelling reasons would justify sealing the entirety of these aforementioned eight Exhibits,
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and it is not the responsibility of the Court to narrowly tailor the sealing requests on HP’s behalf to
comply with this District’s Civil Local Rules.

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The only exhibit the Court finds appropriate for sealing in full is Exhibit 9, which is an
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internal company document that specifies in sharp detail the classification and responsibilities of
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several of HP’s employee positions. It also includes information to a high degree of specificity of
HP’s company structure. After careful review, the Court concludes that Exhibit 9 is sealable in its

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entirety, based on this Exhibit’s collection of confidential and proprietary business information.
For these reasons, ECF No. 420 is GRANTED as to Exhibit 9, but DENIED as to Exhibits

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1 through 8 for failure to comply with Civil Local Rule 79-5, which requires that requests to seal

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be narrowly tailored. Should HP choose to do so, no later than ten days from the date of this

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Order, it may resubmit narrowly-tailored versions of Exhibits 1 through 8 which shall specify

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which, if any, of these exhibits—and what specific portions thereof—must be sealed, along with

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the compelling reason or reasons in support of each.

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D.

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Finally, in ECF No. 427, HP seeks leave to file under seal twenty-seven documents related

ECF No. 427

to its Motion for Summary Judgment. HP submits that this Motion seeks to redact only limited

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Northern District of California

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instances of information consisting of the company’s confidential and proprietary business

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information, and information identifying HP’s customers, customer contacts, the particular

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services it provides for them, and its customers’ confidential and proprietary business information.

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(ECF No. 427) at 2, 5. In his declaration, Mr. Menz attests that HP, in the normal course of

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business, treats this information as confidential, and takes reasonable steps to limit the disclosure

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of it. (ECF No. 427-1) ¶¶ 3–6. Moreover, Mr. David Wong, the company’s Ethics Training and

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Engagement Manager, explained that HP takes measures to limit access to this information, which

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includes “non-public, commercial valuable, confidential and proprietary technology and trade

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secret information.” (ECF No. 427-2) ¶¶ 2–4, 12.

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The Court finds that the redactions proposed in HP’s Motion for Summary Judgment, in

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the declarations of Peter Halton, Steve Ray, and Joe Luminoso in support of the Motion for

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Summary Judgment, and in the portions identified in Exhibits A–J, L–O, and P–W, are sealable

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because they contain confidential and private information about HP’s business strategy and trade

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secrets, including internal operations information, product and services lines, customer and

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account information, and internal company structure and employee information. Accordingly,

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HP’s request for leave to file under seal in ECF No. 427 is GRANTED.

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III.

ORDER
For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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(1) The Court GRANTS the requests to file under seal the documents, or portions
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thereof, listed in the following table.
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Motion to Seal
Exhibit Letters
for Reference

Items HP May File Under Seal
ECF No. 405

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Exhibit A

Portions of Exhibit A to the Declaration of Jahan Sagafi

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Exhibit B

Portions of Exhibit B to the Declaration of Jahan Sagafi
ECF No. 420

United States District Court
Northern District of California

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Defendant Hewlett Packard Company’s Motion to Decertify FLSA
Collective Action

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Exhibit 1

Excerpts from the deposition of Michelle Albert

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Exhibit 4

Excerpts from the deposition of George Davis

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Exhibit 5

Excerpts from the deposition of Eric Benedict and excerpts from
Exhibit 12 attached thereto

Exhibit 8

Excerpts from the deposition of Andrew Kennedy

Exhibit 10

Excerpts from the deposition of Ken Shropshire

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Exhibit 11

Excerpts from the deposition of David Mustain

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Exhibit 13

Exhibit 7 from the deposition of Whitney Ihling

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Exhibit 15

Excerpts from the deposition of Jennifer Chia-Chen Chang

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Exhibit 16

Excerpts from the deposition of Brian Jessen

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Exhibit 17

Excerpts from the deposition of Howard Greenspan

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Exhibit 18

Excerpts from Exhibit 6 from the deposition of Howard Greenspan

Exhibit 19

Excerpts from Exhibit 7 from the deposition of Howard Greenspan

Exhibit 20

Excerpts from Exhibit 8 from the deposition of Howard Greenspan

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Exhibit 21

Excerpts from the deposition of Chad Austin

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Exhibit 23

Excerpts from the deposition of Kilricanos Vieira

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Exhibit 24

Excerpts from the deposition of Donald Ford

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Exhibit 26

Excerpts from Exhibit 37-A from the deposition of David Mustain

Exhibit 27

Excerpts from Exhibit 6 from the deposition of Kilricanos Vieira

Exhibit 28

Exhibit 42 from the deposition of David Mustain

Exhibit 30

Exhibit 4 from the deposition of Anthony Kennedy

Exhibit 31

Exhibit 5 from the deposition of Anthony Kennedy

Exhibit 32

Excerpts from the deposition of John Reese

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Exhibit 33

Exhibit 5 from the deposition of John Reese

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Exhibit 34

Exhibit 6 from the deposition of John Reese

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Exhibit 35

Exhibit 7 from the deposition of John Reese

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Exhibit 37

Exhibit 16 from the deposition of Brian Jessen

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Exhibit 38

Excerpts from Exhibit 19 from the deposition of Brian Jessen

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Exhibit 39

Exhibit 22 from the deposition of Brian Jessen

Exhibit 40

Excerpts from Exhibit 5 from the deposition of Jennifer Chang

Exhibit 41

Exhibit 4 from the deposition of Adam O’Toole

Exhibit 43

2010 Performance Review maintained for Ann Holiday

Exhibit 44

2011 Performance Review maintained for Ann Holiday

Exhibit 44

2010 Performance Review maintained for Ann Holiday

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Exhibit 45

FY14 Year-End Performance Review for Janet Aman

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Exhibit 46

FY15 Accelerated Performance Review for Janet Aman

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Exhibit 47

Document titled, “Janet Aman, Accomplishments for Q1 & Q2
FY15”

Exhibit 48

FY2014 Year-End Performance Review for Thomas Chan

Exhibit 49

2012 Performance Review for Al Ericson

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United States District Court
Northern District of California

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Exhibit 50

FY2014 Year-End Performance Review for Larry Fry

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Exhibit 52

Excerpts from the Declaration of Teresa Rowe

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ECF No. 420
Exhibit 9

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Exhibit L to the Max Fischer Declaration
ECF No. 427

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Defendant Hewlett-Packard Company’s Motion for Summary
Judgment Against Plaintiffs David Mustain and Eric Benedict

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Exhibit A

Transcript excerpts from David Mustain’s deposition held on June 8,
2015

Exhibit B

Excerpts of Exhibit 2 of David Mustain’s deposition

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Exhibit C

Exhibit 7 of David Mustain’s deposition

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Exhibit D

Excerpts of Exhibit 10 of David Mustain’s deposition

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Exhibit E

Excerpts of Exhibit13 of David Mustain’s deposition

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Exhibit F

Excerpts of Exhibit 14 of David Mustain’s deposition

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Exhibit G

Excerpts of Exhibit 15 of David Mustain’s deposition

Exhibit H

Excerpts of Exhibit 17 of David Mustain’s deposition

Exhibit I

Excerpts of Exhibit 18 of David Mustain’s deposition

Exhibit J

Excerpts of Exhibit 22 of David Mustain’s deposition

Exhibit L

Excerpts of Exhibit 25-A of David Mustain’s deposition

Exhibit M

Excerpts of Exhibit 26 of David Mustain’s deposition

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Exhibit N

Exhibit 41 to David Mustain’s deposition

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Exhibit O

Exhibit 42 to David Mustain’s deposition

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Exhibit P

Exhibit 46 of David Mustain’s deposition

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Exhibit Q

Transcript excerpts from Eric Benedict’s deposition held on
December 5, 2013

Exhibit R

Transcript excerpts from Eric Benedict’s deposition held on May 20,
2016

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United States District Court
Northern District of California

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Exhibit S

Exhibit 8 of Eric Benedict’s deposition

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Exhibit T

Excerpts of Exhibit 11 of Eric Benedict’s deposition

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Exhibit U

Excerpts of Exhibit 13 of Eric Benedict’s deposition

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Exhibit V

Excerpts of Exhibit 37 of Eric Benedict’s deposition

Exhibit W

Excerpts of Exhibit 50 of Eric Benedict’s deposition

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Excerpts of the Declaration of Wayne Gorden in Support of
Defendant Hewlett-Packard Company’s Motion for Summary
Judgment Against David Mustain and Eric Benedict

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Excerpts of the Declaration of Peter Halton in Support of Defendant
Hewlett-Packard Company’s Motion for Summary Judgment Against
David Mustain and Eric Benedict

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Excerpts of the Declaration of Steve Ray in Support of Defendant
Hewlett-Packard Company’s Motion for Summary Judgment Against
David Mustain and Eric Benedict

United States District Court
Northern District of California

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Excerpts of the Declaration of Joe Luminoso in Support of Defendant
Hewlett-Packard Company’s Motion for Summary Judgment Against
David Mustain and Eric Benedict

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(2) The Court DENIES HP’s request to file under seal the documents, or portions
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thereof, listed in the following table. HP is given leave to re-file, no later than
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ten (10) days from the date of this Order, narrowly-tailored versions of the
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following documents, which shall identify what specific portions thereof must
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be sealed, along with the compelling reason or reasons in support of each.
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Motion to Seal
Exhibit Letters
for Reference

Items HP May File Not Under Seal
ECF No. 420

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Exhibit 1

Exhibit A to the Ans Gregory Declaration

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Exhibit 2

Exhibit B to the Ans Gregory Declaration

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Exhibit 3

Exhibit A to the Max Fischer Declaration

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Exhibit 4

Exhibit B to the Max Fischer Declaration

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Exhibit 5

Exhibit C to the Max Fischer Declaration

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Exhibit 6

Don Billings Declaration

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Exhibit 7

Exhibit B to the Lazerson Declaration

Exhibit 8

David Carpenter Declaration

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IT IS SO ORDERED.
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Dated: July 1, 2016
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United States District Court
Northern District of California

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______________________________________
BETH LABSON FREEMAN
United States District Judge

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