XimpleWare, Inc. v. Versata Software, Inc. et al

Filing 138

ORDER RE: MOTION TO SEAL by Magistrate Judge Paul Singh Grewal granting-in-part and denying-in-part 129 . (psglc1S, COURT STAFF) (Filed on 11/14/2014)

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United States District Court
For the Northern District of California

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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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XIMPLEWARE CORP.,

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Plaintiff,
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v.
VERSATA SOFTWARE, INC. F/K/A
TRILOGY SOFTWARE, INC. et al.,
Defendants.

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Case No.: 5:13-cv-05161-PSG
ORDER RE: MOTION TO SEAL
(Re: Docket No. 129)

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Before the court is one administrative motion to seal five documents.1 “Historically, courts

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

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judicial records and documents.’”2 Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.”3 Parties seeking to seal judicial records

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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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See Docket No. 129.

Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).
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Case No.: 5:13-cv-05161-PSG
ORDER RE: MOTIONS TO SEAL

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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.4

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

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to the strong presumption of access.6 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).7 As with dispositive motions, the

United States District Court
For the Northern District of California

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standard applicable to nondispositive motions requires a “particularized showing”8 that “specific

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prejudice or harm will result” if the information is disclosed.9 “Broad allegations of harm,

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unsubstantiated by specific examples of articulated reasoning” will not suffice.10 A protective

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order sealing the documents during discovery may reflect the court’s previous determination that
good cause exists to keep the documents sealed,11 but a blanket protective order that allows the

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parties to designate confidential documents does not provide sufficient judicial scrutiny to
determine whether each particular document should remain sealed.12

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Id. at 1178-79.

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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-05161-PSG
ORDER RE: MOTIONS TO SEAL

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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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
must conform with Civil L.R. 79-5(d).”13 “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
79-5(d)(1)(A) establishing that all of the designated material is sealable.”14
With these standards in mind, the courts rules on the instant motion as follows:

United States District Court
For the Northern District of California

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Document to be Sealed
Result
Aviva USA Corp.’s May
Highlighted portions at 2;
23, 2014 correspondence to 5 ¶¶ 3-5 SEALED,
XimpleWare Corp. (Ex. 1
remainder UNSEALED.
to Customer Defendants’
Fed. R. Civ. P. 11 Motion)

Reason/Explanation
Only sealed portions narrowly tailored
to confidential business information.
Unsealed portions are public
knowledge and not declared as
confidential.

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Metropolitan Life
Insurance Company’s May
30, 2014 correspondence to
XimpleWare Corp. (Ex. 2
to Customer Defendants’
Fed. R. Civ. P. 11 Motion)
Pacific Life Insurance
Company’s May 23, 2014
correspondence to
XimpleWare Corp. (Ex. 3
to Customer Defendants’
Fed. R. Civ. P. 11 Motion)

Highlighted portions at 2;
5 ¶ 3; 7 ¶¶ 3-4 SEALED,
remainder UNSEALED.

Highlighted portions at
5 ¶¶ 3-5, SEALED;
remainder UNSEALED.

Aviva may resubmit to correct this
deficiency within four days.
Only sealed portions narrowly tailored
to confidential business information.
Unsealed portions are public
knowledge.
Only sealed portions narrowly tailored
to confidential business information.
Unsealed portions are public
knowledge.

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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
“unreadacted 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). The Civil Local Rules have recently been amended shortening the time
available to the designating party to file a supporting declaration from seven days to four days. As
this rule change was only recently implemented the court applies the prior form of Civ. L.R. 79-5
for the purposes of this order.
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Case No.: 5:13-cv-05161-PSG
ORDER RE: MOTIONS TO SEAL

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Wellmark, Inc.’s May 27,
2014 correspondence to
XimpleWare Corp. (Ex. 4
to Customer Defendants’
Fed. R. Civ. P. 11 Motion)
XimpleWare Corp.’s
August 13, 2014
confidential
correspondence to
Customer Defendants (Ex.
6 to Customer Defendants’
Fed. R. Civ. P. 11 Motion)

Highlighted portions at
5 ¶¶ 3-5, SEALED;
remainder UNSEALED.

Only sealed portions narrowly tailored
to confidential business information.
Unsealed portions are public
knowledge.

UNSEALED.

Lacks supporting declaration.
Ximpleware may seek reconsideration
upon filing a declaration within four
days.

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SO ORDERED.

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Dated: November 14, 2014

United States District Court
For the Northern District of California

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: 5:13-cv-05161-PSG
ORDER RE: MOTIONS TO SEAL