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

Filing 190

ORDER RE: MOTION TO SEAL by Magistrate Judge Paul Singh Grewal granting-in-part and denying-in-part 189 . (psglc1S, COURT STAFF) (Filed on 7/22/2015)

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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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NOVADAQ TECHNOLOGIES INC.,
Plaintiff,

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v.

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KARL STORZ GMBH & CO. KG et al.,
Defendants.

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Case No. 5:14-cv-04853-PSG
ORDER RE: MOTION TO SEAL
(Re: Docket No. 189)

Before the court is an administrative motion 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

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“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
ORDER RE: MOTION 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
ORDER RE: MOTION 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 court 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

Docket No. Exhibit 2 (previously
189-4
submitted at Docket No.
180-36)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 4 (previously
189-6
submitted at Docket No.
180-37)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 6 (previously
189-8
submitted at Docket No.
180-38)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 8 (previously
189-10
submitted at Docket No.
180-39)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 10 (previously
189-12
submitted at Docket No.
180-40)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 12 (previously
189-14
submitted at Docket No.
180-41)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 14 (previously
189-16
submitted at Docket No.
180-42)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

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

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Docket No. Exhibit 16 (previously
189-18
submitted at Docket No.
180-43)

Designations boxed in
red SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 18 (previously
189-20
submitted at Docket No.
180-44)

Pages 6, 7, 15, 68-72
SEALED. Remainder
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

Docket No. Exhibit 20 (previously
189-22
submitted at Docket No.
180-45)

Pages 4, 18, 21, 38,
66, 67, 72, 78, 79
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 22 (previously
189-25
submitted at Docket No.
180-46)

Pages 5, 6, 10, 11, 13,
16, 21, 26-30, 32, 3740 SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 22 (previously
189-26
submitted at Docket No.
180-46)

Pages 1-2, 8, 15, 18,
19, 30, 35 SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 22 (previously
189-27
submitted at Docket No.
180-46)

Pages 3, 11, 17, 19
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 24 (previously
189-31
submitted at Docket No.
180-47)

Pages 6, 7, 11, 12, 14,
17, 21, 25, 30, 31, 5460, 63, 67-71, 73, 74
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 24 (previously
189-32
submitted at Docket No.
180-47)

Page 4 SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 24 (previously
189-33
submitted at Docket No.
180-47)

Pages 8-12, 15, 16, 21, Sealed portions narrowly
26, 30 SEALED.
tailored to confidential
business information.

Docket No. Exhibit 26 (previously
189-37
submitted at Docket No.
180-48)

Pages 7, 8, 11, 13, 16,
20, 24, 28, 29
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 26 (previously
189-38
submitted at Docket No.
180-48)

Pages 22-28
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 26 (previously
189-39
submitted at Docket No.
180-48)

Pages 2, 5-10, 13, 14,
17 SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 26 (previously
189-40
submitted at Docket No.

Pages 7-12, 15, 21, 22, Sealed portions narrowly
26 SEALED.
tailored to confidential

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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
ORDER RE: MOTION TO SEAL

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180-48)

business information.

Docket No. Exhibit 28 (previously
189-42
submitted at Docket No.
180-49)

Pages 5, 8, 12-17, 2123, 25, 28-34, 38
SEALED.

Sealed portions narrowly
tailored to confidential
business information.

Docket No. Exhibit 28 (previously
189-43
submitted at Docket No.
180-49)

Pages 18-23, 26, 32,
33, 37 SEALED.

Sealed portions narrowly
tailored to confidential
business information.

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SO ORDERED.

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Dated: July 22, 2015

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

United States District Court
For the Northern District of California

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