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

Filing 270

OMNIBUS ORDER RE: MOTIONS TO SEAL by Judge Paul S. Grewal granting-in-part 212 ; granting-in-part 223 ; denying 229 ; granting-in-part 236 ; granting 245 ; granting-in-part 247 ; denying 255 ; granting-in-part 257 (psglc2S, COURT STAFF) (Filed on 10/8/2015) Modified on 10/8/2015 (psglc2S, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NOVADAQ TECHNOLOGIES, INC.,

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Plaintiff,

OMNIBUS ORDER RE: MOTIONS TO
SEAL

v.

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(Re: Docket Nos. 212, 223, 229, 236, 245,
247, 255, 257)

KARL STORZ GMBH & CO. K.G., et al.,

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United States District Court
Northern District of California

Case No. 14-cv-04853-PSG

Defendants.

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Before the court are several administrative motions to seal. “Historically, courts have
recognized a ‘general right to inspect and copy public records and documents, including judicial
records and documents.’”1 Accordingly, when considering a sealing request, “a ‘strong
presumption in favor of access’ is the starting point.”2 Parties seeking to seal judicial 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 disclosure.3

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However, “while protecting the public's interest in access to the courts, we must remain
mindful of the parties' right to access those same courts upon terms which will not unduly harm
their competitive interest.”4 Records attached to nondispositive motions therefore are not subject

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

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OMNIBUS ORDER RE: MOTIONS TO SEAL

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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

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

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motions, the standard applicable to nondispositive motions requires a “particularized showing”7

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that “specific prejudice or harm will result” if the information is disclosed.8 “Broad allegations of

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harm, unsubstantiated by specific examples of articulated reasoning” will not suffice.9 A

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protective order sealing the documents during discovery may reflect the court’s previous

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determination that good cause exists to keep the documents sealed,10 but a blanket protective order

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that allows the parties to designate confidential documents does not provide sufficient judicial

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scrutiny to determine whether each particular document should remain sealed.11
In addition to making particularized showings of good cause, parties moving to seal

United States District Court
Northern District of California

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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

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under the law.” “The request must be narrowly tailored to seek sealing only of sealable material,

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and must conform with Civil L.R. 79-5(d).”12 “Within 4 days of the filing of the Administrative

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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).
See Kamakana, 447 F.3d at 1179-80.

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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Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a “proposed
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OMNIBUS ORDER RE: MOTIONS TO SEAL

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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
With these standards in mind, the courts rules on the instant motions as follows:

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Motion

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Document to be Sealed

Result

Reason/Explanation

to Seal

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212

Novadaq’s Motion to
Strike the Expert Report
of Jesse David

Designations highlighted in
yellow at Docket No. 212-2
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

212

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Exhibit 1 to Novadaq’s
Motion to Strike

Designations highlighted in
black at Docket No. 218-1
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

212

Exhibit 2 to Novadaq’s
Motion to Strike

Designations highlighted in
black at Docket No. 218-2
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

212

Exhibit 8 to Novadaq’s
Motion to Strike

Designations highlighted in
black at Docket No. 218-3
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Defendants’ Motion for
Summary Judgment of No
Willful Infringement and
No Monetary Damages

Designations highlighted in
yellow at Docket No. 223-4
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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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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OMNIBUS ORDER RE: MOTIONS TO SEAL

223

Defendants’ Motion for
Summary Judgment of
Non-Infringement
Because There Is No
Confusion

Designations highlighted in
yellow on pages 1:6-7, 2:13-14,
4:15-16, 7:25-8:3, 11:3-8,
14:25, 16:14-23, 17:24, 18:1316, 18:22-26 at Docket No.
223-6 SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Defendants’ Motion for
Summary Judgment of
Non-Infringement Based
on Right of Priority and
Abandonment

Designations highlighted in
yellow on pages 9:16-21,
14:13-17:15 at Docket No. 2238 SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Declaration of Thomas
Prescher in Support of
Defendants’ Motions for
Summary Judgment

Designations highlighted in
yellow at Docket No. 227-1
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 5 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-10
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 7 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-12
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 8 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 9 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-16
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 11 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

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Exhibit 12 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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OMNIBUS ORDER RE: MOTIONS TO SEAL

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223

Exhibit 22 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit 23 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 27 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

223

Exhibit 29 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

223

Exhibit 38 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

223

Exhibit 39 to the Welsh
Declaration

Docket No. 223-32 at pages 2229, 38-41, 54-81 SEALED; all
other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 40 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 43 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-36
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 44 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-38
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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OMNIBUS ORDER RE: MOTIONS TO SEAL

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223

Exhibit 45 to the Welsh
Declaration

Designations highlighted in
yellow at Docket No. 223-40
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 56 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit 57 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit 59 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit 60 to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

223

Exhibit 61 to the Welsh
Declaration

Docket No. 223-50 at Bates
numbers NVDQ000029765-70,
NVDQ000031395-401,
NVDQ000043145-52,
NVDQ000122549-50,
NVDQ000121283-86
SEALED; Docket No. 223-51
at Bates numbers KS01354748, NVDQ000484777-78,
NVDQ000602619-20,
NVDQ000607369 SEALED;
all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

223

Exhibit 62 to the Welsh
Declaration

Docket No. 223-53 at Bates
numbers NVDQ000848099106 SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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OMNIBUS ORDER RE: MOTIONS TO SEAL

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223

Exhibit 66 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 67 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 68 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

223

Exhibit 72 to the Welsh
Declaration

SEALED

Narrowly tailored to
confidential business
information.

229

Novadaq’s Motion for
Partial Summary
Judgment

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit G to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit H to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit I to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit J to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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Exhibit K to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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United States District Court
Northern District of California

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Exhibit L to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit M to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit O to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

229

Exhibit P to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

236

Defendants’ Opposition to
Novadaq’s Motion to
Strike the Expert Report
of Jesse David

Designations highlighted in
yellow at Docket No. 236-4
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

236

Exhibit 1 to the Keeler
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

236

Exhibit 2 to the Keeler
Declaration

SEALED

Narrowly tailored to
confidential business
information.

236

Exhibit 3 to the Keeler
Declaration

SEALED

Narrowly tailored to
confidential business
information.

236

Exhibit 4 to the Keeler
Declaration

SEALED

Narrowly tailored to
confidential business
information.

236

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Exhibit 5 to the Keeler
Declaration

SEALED

Narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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236

Exhibit 6 to the Keeler
Declaration

SEALED

Narrowly tailored to
confidential business
information.

245

Defendants’ Opposition to
Novadaq’s Motion for
Partial Summary
Judgment

Designations highlighted in
yellow at Docket No. 245-4
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Novadaq’s Consolidated
Opposition to Defendants’
Motions for Summary
Judgment

Designations highlighted in
yellow at Docket No. 247-4
SEALED; designations
highlighted in green at Docket
No. 247-4, except for
designations on pages 25 and
35, SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 9 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-6
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 10 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-8
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 11 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 14 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-11
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 19 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-13
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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Exhibit 20 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 25 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 26 to the Taylor
Declaration

Designations highlighted in
black at Docket No. 253-1
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 30 to the Taylor
Declaration

SEALED

Narrowly tailored to
confidential business
information.

247

Exhibit 31 to the Taylor
Declaration

Designations highlighted in
black at Docket No. 253-2
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 32 to the Taylor
Declaration

SEALED

Narrowly tailored to
confidential business
information.

247

Exhibit 33 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 34 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 40 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

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United States District Court
Northern District of California

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Exhibit 46 to the Taylor
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

247

Exhibit 47 to the Taylor
Declaration

Designations highlighted in
black at Docket No. 253-3
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 50 to the Taylor
Declaration

Designations highlighted in
black at Docket No. 253-4
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 57 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-27
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 58 to the Taylor
Declaration

SEALED

Narrowly tailored to
confidential business
information.

247

Exhibit 59 to the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-30
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 60 the Taylor
Declaration

Designations highlighted in
yellow at Docket No. 247-32
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 61 to the Taylor
Declaration

Designations highlighted in
black at Docket No. 253-5
SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

247

Exhibit 65 to the Taylor
Declaration

SEALED

Narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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Novadaq’s Reply in
Support of Motion for
Partial Summary
Judgment

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Defendants’ Omnibus
Reply to Novadaq’s
Consolidated Opposition
to Defendants’ Motions
for Summary Judgment

Designations highlighted in
yellow on pages 6:2-3, 6:9-10,
11:12-16 at Docket No. 257-4
SEALED; designations
highlighted in green at Docket
No. 257-4 SEALED; all other
designations UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

257

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Exhibit A to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Exhibit B to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Exhibit C to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Exhibit D to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Exhibit F to the Welsh
Declaration

UNSEALED

No declaration in
support filed with the
court as required by
Civ. L.R. 79-5(e)(1).

257

Exhibit H to the Welsh
Declaration

Designations boxed in red at
Docket No. 257-16 SEALED;
all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

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United States District Court
Northern District of California

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Exhibit J to the Welsh
Declaration

Designations boxed in red at
Docket No. 257-18 SEALED;
all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

257

Exhibit K to the Welsh
Declaration

Designations boxed in red at
Docket No. 257-20 SEALED;
all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

257

Exhibit L to the Welsh
Declaration

Designations boxed in red at
Docket No. 257-22 SEALED;
all other designations
UNSEALED.

Only sealed portions
narrowly tailored to
confidential business
information.

257

Exhibit M to the Welsh
Declaration

UNSEALED

Entire presentation
not narrowly tailored
to confidential
business information.

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United States District Court
Northern District of California

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SO ORDERED.
Dated: October 8, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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