Novadaq Technologies v. Karl Storz GmbH & Co. K.G. et al

Filing 173

OMNIBUS ORDER RE: MOTIONS TO SEAL by Judge Paul S. Grewal granting in part and denying in part 124 ; denying 128 ; granting in part and denying in part 135 ; denying 136 ; denying 143 ; denying 149 ; granting 150 ; granting in part and denying in part 151 ; granting 160 . (psglc1S, COURT STAFF) (Filed on 7/1/2015)

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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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NOVADAQ TECHNOLOGIES INC.
Plaintiffs,
v.
KARL STORZ GMBH & CO. KG., et al.,
Defendants.

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Case No. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS
TO SEAL
(Re: Docket Nos. 124, 128, 135, 136,
143, 149, 150, 151, 160)

Before the court are nine administrative motions to seal various documents. “Historically,

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

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including judicial records and documents.’”1 Accordingly, when considering a sealing request, “a

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

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records 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

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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. 5:14-cv-04853-PSG
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. 5:14-cv-04853-PSG
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

Result

Exhibit A to Welsh
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

124-7

Exhibit E to Welsh
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

124-9

Exhibit F to Welsh
Declaration

Page 2 SEALED; remainder
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

124-11

Exhibit G to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

124-13

Exhibit I to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

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Reason/Explanation

124-5

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United States District Court
For the Northern District of California

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). 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. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

128-4

Novadaq’s Opposition to
Karl Storz’s Motion for
Leave to File Motion for
Reconsideration

UNSEALED.

No supporting
declaration filed.

128-6

Declaration of Jennifer
Lee Taylor

UNSEALED.

No supporting
declaration filed.

128-8

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Exhibit 1 to Taylor
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information
and no supporting
declaration filed.

128-10

Exhibit 2 to Taylor
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information
and no supporting
declaration filed.

128-12

Exhibit 3 to Taylor
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information
and no supporting
declaration filed.

135-4

Karl Storz’s Reply to
Motion for Leave to File
Motion for
Reconsideration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

135-6

Declaration of Walter B.
Welsh

Designations highlighted in
yellow at 1:13-15 SEALED;
remainder UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

135-8

Exhibit K to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

136-3

Novadaq’s Opposition to
Karl Storz’s Motion for
Leave to File Motion for
Reconsideration

UNSEALED.

No supporting
declaration filed.

136-5

Exhibit A to Taylor
Declaration

UNSEALED.

No supporting
declaration filed.

143-4

Novadaq’s Opposition to
Karl Storz’s Motion to
Extend Time

UNSEALED.

No supporting
declaration filed.

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United States District Court
For the Northern District of California

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Case No. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

143-6

Exhibit L to Taylor
Declaration

UNSEALED.

No supporting
declaration filed.

143-8

Exhibit M to Taylor
Declaration

UNSEALED.

No supporting
declaration filed.

149-4

KS’ Motion to Compel
Depositions

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-6

Exhibit A to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-8

Exhibit L to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-10

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Exhibit O to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-12

Exhibit P to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-14

Exhibit T to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

149-16

Exhibit U to Welsh
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

150-4

Novadaq’s Motion for
Rule 37(b)(2) Sanctions
for Defendants’ Violation
of Four Discovery Orders

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

150-6

[PROPOSED] Order
Granting Novadaq’s
Motion for Rule 37(b)(2)
Sanctions for Defendants’
Violation of Four
Discovery Orders

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

151-1

Declaration of Jennifer
Lee Taylor in support of
Novadaq’s Motion for
Rule 37(b)(2) Sanctions
for Defendants’ Violation
of Four Discovery Orders

Designations highlighted in
yellow SEALED.

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. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

151-2

Exhibit H to Taylor
Declaration

Designations redacted in black
at Docket No. 169-3 SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

151-3

Exhibit I to Taylor
Declaration

Designations redacted in black
at Docket No. 169-4 SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

151-5

Declaration of Joyce Liou
in support of Novadaq’s
Motion for Rule 37(b)(2)
Sanctions for Defendants’
Violation of Four
Discovery Orders

UNSEALED.

Not narrowly tailored
to confidential
business information.

151-6

Exhibit A to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

151-7

Exhibit B to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

151-8

Exhibit C to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

151-9

Exhibit D to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

151-10

Exhibit F to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

151-11

Exhibit G to Liou
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

151-12

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Exhibit H to Liou
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

151-14

Exhibit K to Liou
Declaration

Designations highlighted in
yellow SEALED.

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. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

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151-15

Exhibit O to Liou
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.

151-16

Exhibit P to Liou
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.

151-17

Exhibit T to Liou
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information;
Novadaq will re-file
with highlights to
more narrowly tailor
by July 8, 2015.

151-18

Exhibit U to Liou
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information;
Novadaq shall re-file
with highlights to
more narrowly tailor
by July 8, 2015.

151-19

Exhibit Y to Liou
Declaration

UNSEALED.

Not narrowly tailored
to confidential
business information.

160-4
(originally
filed at
100-3)

Novadaq’s Opposition to
Defendants’ Motion for
Protective Order
Regarding Dr. Storz

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-6
(originally
filed at
100-8)

Exhibit 4 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-8
(originally
filed at
100-11)

Exhibit 7 to Foran
Declaration

Designations highlighted in
yellow SEALED.

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. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

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160-10
(originally
filed
at100-12)

Exhibit 8 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-12
(originally
filed
at100-14)

Exhibit 10 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-14
(originally
filed at
100-15)

Exhibit 11 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-16
(originally
filed at
100-16)

Exhibit 12 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-23
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-24
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-25
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-26
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-27
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-28
(originally
filed at
100-21)

Exhibit 20 to Foran
Declaration

SEALED.

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. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL

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160-30
(originally
filed at
100-22)

Exhibit 21 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-32
(originally
filed at
100-23)

Exhibit 22 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-34
(originally
filed at
100-24)

Exhibit 23 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-36
(originally
filed at
100-25)

Exhibit 24 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-38
(originally
filed at
100-27)

Exhibit 26 to Foran
Declaration

Designations highlighted in
yellow SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

160-40
(originally
filed at
100-29)

Exhibit 28 to Foran
Declaration

Designations highlighted in
yellow SEALED.

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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SO ORDERED.
Dated: July 1, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No. 5:14-cv-04853-PSG
OMNIBUS ORDER RE: MOTIONS TO SEAL