Radware, LTD. et al v. A10 Networks, Inc.

Filing 275

ORDER re: 254 256 258 259 260 Administrative Motions to Seal. Signed by Judge Ronald M. Whyte on 2/9/2015. (rmwlc1, COURT STAFF) (Filed on 2/9/2015)

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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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RADWARE LTD., an Israeli Company;
RADWARE, INC., a New Jersey Corporation,

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Plaintiffs and Counter-Defendants,

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ORDER RE: SEALING MOTIONS

v.

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Case No. C-13-02021-RMW

A10 NETWORKS, INC., a California
Corporation,

[Docket Nos. 254, 256, 258, 259, 260]
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Defendant and Counter-Claimant.

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Before the court are five administrative motions to seal documents. The entirety of the
Administrative Motion to File Under Seal Portions of Radware’s Reply in Support of its Motion to
Dismiss, Dkt. No. 259, is denied as moot as Radware withdrew and re-filed the document with
additional redactions at A10’s request. See Dkt. No. 260 at 2. The court addresses the remaining
four motions, Dkt. Nos. 254, 256, 258, and 260, below.
A. Legal Standard
“Historically, courts have recognized a ‘general right to inspect and copy public records and
documents, including judicial records and documents.’” 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)). Accordingly, when considering a sealing request, “a ‘strong presumption in favor
of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
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Case No.: 13-CV-02021
ORDER RE: MOTIONS TO SEAL

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1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to dispositive motions

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bear the burden of overcoming the presumption with “compelling reasons” that outweigh the

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general history of access and the public policies favoring disclosure. Id. at 1178-79.

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However, “while protecting the public’s interest in access to the courts, we must remain

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mindful of the parties’ right to access those same courts upon terms which will not unduly harm

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their competitive interest.” Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29

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(Fed. Cir. 2013).

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a trial court has broad
discretion to permit sealing of court documents for, inter alia, the protection of “a trade secret or

United States District Court
For the Northern District of California

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other confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G).

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The Ninth Circuit has adopted the definition of “trade secrets” set forth in the Restatement of Torts,

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holding that “[a] trade secret may consist of any formula, pattern, device or compilation of

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information which is used in one’s business, and which gives him an opportunity to obtain an

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advantage over competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th

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Cir. 1972) (quoting Restatement of Torts § 757, cmt. b). “Generally it relates to the production of

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goods. . . . It may, however, relate to the sale of goods or to other operations in the business. . . .”

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Id. In addition, the Supreme Court has recognized that sealing may be justified to prevent judicial

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

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competitive standing.” Nixon, 435 U.S. at 598.

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In addition to making particularized showings of good cause, parties moving to seal

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documents must comply with the procedures established by Civ. L. R. 79-5. Pursuant to Civ. L.

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R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is

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“sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under

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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and

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must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b) (requiring the submitting party to attach

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a “proposed order that is narrowly tailored to seal only the sealable material” which “lists in table

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format each document or portion thereof that is sought to be sealed,” and an “unreadacted version

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Case No.: 13-CV-02021
ORDER RE: MOTIONS TO SEAL

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of the document” that indicates “by highlighting or other clear method, the portions of the

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document that have been omitted from the redacted version.”).

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United States District Court
For the Northern District of California

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With these standards in mind, the courts rules on the instant motions as follows.
B. Sealing Order
Motion
Document to be Sealed
to Seal
254-3
A10’s Notice of Motion and
Motion for Order Enforcing
Settlement
Agreement and Dismissing
Claims
254-5
Exhibit 1 to the Declaration
Dean G. Dunlavey
(Settlement Agreement)
254-6
Exhibit 2 to the Declaration
Dean G. Dunlavey
(Attorney emails)

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GRANTED as to portions of the
motion which set forth portions of
the settlement agreement and term
sheet: 2:9–2:19. DENIED as to the
rest of the document.
Narrowly tailored to confidential
business information.

GRANTED
DENIED

Not privileged as the
communications included opposing
counsel; contains no specific terms
from confidential documents.
Not privileged as the
communications included opposing
counsel; contains no specific terms
from confidential documents.
Narrowly tailored to confidential
business information.

DENIED

256-3

Radware’s Motion to
Dismiss, at 1:16–1:18 and
2:9–2:10.
Exhibit 3 to Radware’s
Notice of Motion and
Motion to Dismiss
(Settlement Agreement)

GRANTED
GRANTED

Narrowly tailored to confidential
business information.

A10’s Opposition to
Radware’s Motion to
Dismiss

GRANTED in part
and DENIED in
part

GRANTED as to portions of the
motion which set forth portions of
the settlement agreement and term
sheet: 1:6–1:7 (after “on dismissal
that” until “(D.I. 256-3 at 2).”);
2:14–2:21; 3:26–4:1 (until “Neither
the”); 4:2–4:3 (after “Agreement”
until “This is”); 6:16–6:18 (after
“Agreement” until “As the
parties”); 7:2–7:11 (after
“Agreement” until the end of line
11); 7:12–7:13 (after “parties’
agreement” until the end of line
13); 8:3–8:5 (after “claims that”
until “(D.I. 256-3 at 1).”); 8:6–8:7
(after “agreement” until “(See
generally”); 8:11–8:12 (after
“agreement,” until the end of line
12); 8:14–8:18 (from the beginning
of line 14 until “Consistent”); 8:19–
8:27 (after “provision” until the end
of line 27); 9:3 (after “Cannot”

256-9

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GRANTED in part
and DENIED in
part

Exhibit 3 to the Declaration
Dean G. Dunlavey
(Attorney emails)

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Reason/Explanation

254-7

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Ruling

258-3

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Case No.: 13-CV-02021
ORDER RE: MOTIONS TO SEAL

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258-5

Exhibit 1 to the Declaration
Dean G. Dunlavey (Term
Sheet)
Exhibit 2 to the Declaration
Dean G. Dunlavey
(Attorney emails)

GRANTED

258-7

Exhibit 3 to the Declaration
Dean G. Dunlavey
(Attorney emails)

DENIED

260-3

Radware’s Reply in Support
of its Motion to Dismiss, at
1:2–1:4; 1:17–1:19; 1:20–
1:21; 1:21–1:24.
Radware’s Reply in Support
of its Motion to Dismiss, at
1:29–2:1.
Radware’s Reply in Support
of its Motion to Dismiss, at
2:1–2:2.
Radware’s Reply in Support
of its Motion to Dismiss, at
2:3–2:4.
Radware’s Reply in Support
of its Motion to Dismiss, at
2:8–2:10; 2:12–2:16; 2:17–
3:11; 3:21–3:24; 4:1–4:13;
4:13–4:16; 4:17–5:5; 5:5–
5:7.
Radware’s Reply in Support
of its Motion to Dismiss, at
5:7–5:9.

GRANTED

Radware’s Reply in Support
of its Motion to Dismiss, at
5:10–5:15; 6:1–6:5; 6:11–
6:18.

GRANTED

258-6

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United States District Court
For the Northern District of California

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260-3

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260-3
260-3

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260-3

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260-3

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DENIED

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260-3

Not privileged as the
communications included opposing
counsel; contains no specific terms
from confidential documents.
Not privileged as the
communications included opposing
counsel; contains no specific terms
from confidential documents.
Narrowly tailored to confidential
business information.

DENIED

Not narrowly tailored to
confidential business information.

GRANTED

Narrowly tailored to confidential
business information.

DENIED

Not narrowly tailored to
confidential business information.

GRANTED

Narrowly tailored to confidential
business information.

GRANTED in part
and DENIED in
part

GRANTED as to yellowhighlighted redactions, which are
narrowly tailored to confidential
business information. DENIED as
to green-highlighted redactions,
which are not.
Narrowly tailored to confidential
business information.

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until the end of line 3); 9:4–9:5
(after “argues” until “which states
that”). DENIED as to the rest of the
document.
Narrowly tailored to confidential
business information.

The court will file redacted versions of the above documents unless either party objects and
files a motion for reconsideration within 5 days of this order.
IT IS SO ORDERED.
Dated: February 9, 2015

_________________________________
RONALD M WHYTE
United States District Judge

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Case No.: 13-CV-02021
ORDER RE: MOTIONS TO SEAL