NetApp, Inc. v. Nimble Storage, Inc. et al

Filing 159

OMNIBUS ORDER RE: MOTIONS TO SEAL by Judge Paul S. Grewal granting-in-part 143 ; granting 147 ; granting 148 ; granting 149 ; granting-in-part 150 ; granting-in-part 151 ; granting 157 (psglc2S, COURT STAFF) (Filed on 9/22/2015)

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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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NETAPP, INC.,
Plaintiff,

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v.

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NIMBLE STORAGE, INC., et al.
Defendants.

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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS
TO SEAL
(Re: Docket Nos. 143, 147, 148, 149, 150,
151, 157)

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Before the court are several administrative motions to seal. “Historically, courts have

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recognized a ‘general right to inspect and copy public records and documents, including judicial

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records and documents.’” 1 Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.” 2 Parties seeking to seal judicial records

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relating to dispositive motions bear the burden of overcoming the presumption with “compelling
reasons” that outweigh the general history of access and the public policies favoring disclosure. 3

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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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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL

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.” 4 Records attached to nondispositive motions therefore are not subject

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to the strong presumption of access. 5 Because the documents attached to nondispositive motions

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“are often unrelated, or only tangentially related, to the underlying cause of action,” parties moving
to seal must meet the lower “good cause” standard of Rule 26(c). 6 As with dispositive motions, the
standard applicable to nondispositive motions requires a “particularized showing” 7 that “specific
prejudice or harm will result” if the information is disclosed. 8 “Broad allegations of harm,

United States District Court
For the Northern District of California

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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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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
each particular document should remain sealed. 11

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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

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

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Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).

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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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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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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL

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is “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).” 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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With these standards in mind, the courts rules on the instant motions as follows:

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Motion
to Seal

Only sealed portions
narrowly tailored to
confidential business
information.

143

Proposed Order Granting
NetApp’s Motion to
Enforce Settlement
Agreement

Docket No. 143-6 at 1:6-2:8
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

143

Exhibit H to the
Khachatourian Declaration

SEALED

Narrowly tailored to
confidential business
information.

143

Declaration of Richard
Cheng in Support of
NetApp’s Motion to
Enforce Settlement
Agreement

Designations highlighted in
yellow at Docket No. 143-18
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

143

Declaration of Troy
Dunham in Support of
NetApp’s Motion to
Enforce Settlement
Agreement

Designations highlighted in
yellow at Docket No. 143-20
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

143

Exhibit B to the Dunham

SEALED

Narrowly tailored to
confidential business

United States District Court
For the Northern District of California

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Reason/Explanation

NetApp’s Notice of Motion Designations highlighted in
and Motion to Enforce
yellow at Docket No. 143-4
Settlement Agreement
SEALED; all other designations
UNSEALED.

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Result

143

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Document to be Sealed

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Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) 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,” Civ. L.R. 79-5(d)(1)(b), 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.”
Civ. L.R. 79-5(d)(1)(d).
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Civ. L.R. 79-5(e)(1).
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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL

Declaration

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information.

143

Exhibit C to the Dunham
Declaration

SEALED

Narrowly tailored to
confidential business
information.

143

Exhibit D to the Dunham
Declaration

SEALED

Narrowly tailored to
confidential business
information.

143

Exhibit E to the Dunham
Declaration

SEALED

Narrowly tailored to
confidential business
information.

143

Exhibit F to the Dunham
Declaration

SEALED

Narrowly tailored to
confidential business
information.

147

NetApp’s Motion for
Extension of Time

Designations highlighted in
yellow at Docket No. 147-4
SEALED, all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

147

NetApp’s Motion for
Expedited Briefing

Designations highlighted in
yellow at Docket No. 147-6
SEALED, all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

147

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Consolidated Declaration
of Karineh Khachatourian
in Support of Motion for
Extension of Time and
Motion for Expedited
Briefing

Designations highlighted in
yellow at Docket No. 147-8
SEALED, all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

147

Exhibit B to the
Consolidated
Khachatourian Declaration

Designations highlighted in
yellow at Docket No. 147-10
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

148

Nimble Storage, Inc.’s
Opposition to Motion for
Extension of Time

Designations highlighted in
yellow at Docket No. 148-4
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

148

Declaration of Patrick
Premo in Support of
Opposition to Motion for
Extension of Time

Docket No. 148-6 SEALED; all
other designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

148

Exhibit 1 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

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United States District Court
For the Northern District of California

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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL

148

Exhibit 2 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

149

NetApp’s Reply in Support
of Motion for Extension of
Time

Designations highlighted in
yellow at Docket No. 149-4
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

150

Defendants’ Opposition to
Motion to Enforce
Settlement Agreement

Designations highlighted in
yellow at Docket No. 150-4 at
1:18-2:26, 3:7-7:8, 7:16-22;
7:25-13:2, 13:10-15:17, 16:4-6,
16:22-17:10, 17:25-18:27, 19:68 SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

150

Declaration of Patrick
Premo in Support of
Opposition to Motion to
Enforce Settlement
Agreement

Designations highlighted in
yellow at Docket No. 150-6
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

150

Exhibit 1 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Exhibit 2 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Exhibit 3 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Exhibit 4 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Exhibit 5 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

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Exhibit 6 to Premo
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Declaration of Sebastian
Kaplan in Support of
Opposition to Motion to
Enforce Settlement
Agreement

Designations highlighted in
yellow at Docket No. 150-16
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
For the Northern District of California

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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL

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150

Exhibit 1 to Kaplan
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Exhibit 2 to Kaplan
Declaration

SEALED

Narrowly tailored to
confidential business
information.

150

Declaration of Joel
Brillhart in Support of
Opposition to Motion to
Enforce Settlement
Agreement

Designations highlighted in
yellow at Docket No. 150-20
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

151

NetApp’s Reply in Support
of Motion to Enforce
Settlement Agreement

Designations highlighted in
yellow at Docket No. 151-4
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

151

Supplemental Declaration
of Karineh Khachatourian
in Support of NetApp’s
Motion to Enforce
Settlement Agreement

Designations highlighted in
yellow at Docket No. 151-9 at
1:11-14, 1:25-4:19, 5:10-6:3
SEALED; all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

151

Exhibit C to Supplemental
Khachatourian Declaration

SEALED

Narrowly tailored to
confidential business
information.

151

Supplemental Declaration
of Troy Dunham in
Support of NetApp’s
Motion to Enforce
Settlement Agreement

SEALED

Narrowly tailored to
confidential business
information.

151

Supplemental Declaration
of Richard Cheng in
Support of NetApp’s
Motion to Enforce
Settlement Agreement

SEALED

Narrowly tailored to
confidential business
information.

157

Defendants’ Objection to
Reply Evidence Lodged in
Support of NetApp’s
Motion to Enforce
Settlement Agreement

SEALED

Narrowly tailored to
confidential business
information.

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United States District Court
For the Northern District of California

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SO ORDERED.

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Dated: September 22, 2015
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Case No. 5:13-cv-05058-LHK
OMNIBUS ORDER RE: MOTIONS TO SEAL