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

Filing 176

ORDER RE: MOTIONS TO SEAL by Judge Paul S. Grewal granting-in-part and denying-in-part 172 ; granting-in-part and denying-in-part 175 . (psglc1S, COURT STAFF) (Filed on 7/10/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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

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Case No. 5:14-cv-04853-PSG
ORDER RE: MOTIONS TO SEAL
(Re: Docket Nos. 172, 175)

Before the court are two administrative motions to seal 10 documents. “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.’”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
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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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.

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

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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

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to seal must meet the lower “good cause” standard of Rule 26(c).6 As with dispositive motions, the

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standard applicable to nondispositive motions requires a “particularized showing”7 that “specific

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prejudice or harm will result” if the information is disclosed.8 “Broad allegations of harm,
unsubstantiated by specific examples of articulated reasoning” will not suffice.9 A protective order
sealing the documents during discovery may reflect the court’s previous determination that good

United States District Court
For the Northern District of California

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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

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each particular document should remain sealed.11

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In addition to making particularized showings of good cause, parties moving to seal
documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to
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

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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.

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

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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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United States District Court
For the Northern District of California

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Motion to
Seal

Document to be Sealed

Result

Reason/Explanation

172-3
(originally
filed at 15211)

Exhibit L to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

172-4
(originally
filed at 15212)

Exhibit M to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

172-5
(originally
filed at 15213)

Exhibit N to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

174-1, 172-6 Exhibit O to Liou
Declaration
(originally
filed at 15115

Designations redacted in
black at Docket No. 174-1
SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

172-7
(originally
filed at 15116)

Exhibit P to Liou
Declaration

UNSEALED.

Public information.
See Docket No. 174
at 2.

172-8
(originally
filed at 15215)

Exhibit Q to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

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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).

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

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United States District Court
For the Northern District of California

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172-9
(originally
filed at 15216)

Exhibit R to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

172-10
(originally
filed at15217)

Exhibit S to Liou
Declaration

UNSEALED.

No supporting
declaration filed.

172-11
(originally
filed at 15117)

Exhibit T to Liou
Declaration

UNSEALED.

Public information.
See Docket No. 174
at 2.

174-2
(originally
filed at 17212)

Exhibit U to Liou
Declaration

Designations redacted in
black at Docket No. 174-2
SEALED.

Sealed portions
narrowly tailored to
confidential business
information.

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SO ORDERED.

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Dated: July 10, 2015

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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

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