Cisco Systems Inc-v-Arista Networks, Inc

Filing 521

OMNIBUS ORDER REGARDING 419 , 422 , 426 , 438 , 462 , 467 , 470 , 475 , 476 , 491 , 494 , 498 DAUBERT SEALING MOTIONS. Signed by Judge Beth Labson Freeman on 9/16/2016.(blflc4S, COURT STAFF) (Filed on 9/16/2016)

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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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CISCO SYSTEMS INC,

Case No. 14-cv-05344-BLF

Plaintiff,
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OMNIBUS ORDER REGARDING
DAUBERT SEALING MOTIONS

v.
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ARISTA NETWORKS, INC.,
Defendant.

[Re: ECF 419, 422, 426, 438, 462, 467, 470,
475, 476, 491, 494, 498]

United States District Court
Northern District of California

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Before the Court are the parties’ administrative motions to file under seal portions of their

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briefing and exhibits in connection with the parties’ Daubert motions. ECF 419, 422, 426, 438,

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462, 467, 470, 475, 476, 491, 494, 498. For the reasons stated below, the motions are GRANTED

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IN PART AND DENIED IN PART.

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I.

LEGAL STANDARD
“Historically, courts have recognized a ‘general right to inspect and copy public records

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and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

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U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are

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“more than tangentially related to the merits of a case” may be sealed only upon a showing of

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“compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,

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1101–02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed

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upon a lesser showing of “good cause.” Id. at 1097. In addition, sealing motions filed in this

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district must be “narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b).

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A party moving to seal a document in whole or in part must file a declaration establishing that the

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identified material is “sealable.” Civ. L.R. 79-5(d)(1)(A). “Reference to a stipulation or

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protective order that allows a party to designate certain documents as confidential is not sufficient

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to establish that a document, or portions thereof, are sealable.” Id.

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II.

DISCUSSION

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The Court has reviewed the parties’ sealing motions and respective declarations in support

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thereof. The Court finds the parties have articulated compelling reasons to seal certain portions of

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most of the submitted documents. The proposed redactions are also narrowly tailored. The

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Court’s rulings on the sealing request are set forth in the tables below:

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A.
ECF 419
Identification of Documents
to be Sealed
Arista’s Motion to Strike
Expert Opinions and
Testimony of Dr. Kevin C.
Almeroth
Exhibit 1 to the Declaration of
Ryan Wong in Support of
Arista’s Motion to Strike
Expert Opinions and
Testimony of Dr. Kevin C.
Almeroth (“Wong Daubert
Declaration”) (Excerpts from
the “Opening Expert Report of
Kevin Almeroth Regarding
Copy” dated June 3, 2016)

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United States District Court
Northern District of California

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Exhibit 2 to the Wong Daubert
Declaration (Excerpts from the
“Rebuttal Expert Report of
Kevin Almeroth” dated June
17, 2016)

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Description of Documents

Court’s Order

Cisco does not seek to seal the
highlighted portions.

DENIED.

Paragraphs ¶¶ 83-86, 118, 119
and pages 437-661 (“Copying
Exhibit 6”) contain
information about Cisco’s
source code.

GRANTED as to Paragraphs
¶¶ 83-86, 118, 119 and pages
437-661; and ¶¶ 73, 74, 78, 79,
112, 118, 138-142, 145, 147,
148, 152, 153, 157, 195, 203,
219 (and associated images on
pages 107 through 115), 220,
239-242, 246, 250-52, 257 and
footnotes 99, 102; and
DENIED as to remainder.

Paragraphs ¶¶ 73, 74, 78, 79,
112, 118, 138-142, 145, 147,
148, 152, 153, 157, 195, 203,
219 (and associated images on
pages 107 through 115), 220,
239-242, 246, 250-52, 257 and
footnotes 99, 102 contain
information of Arista’s
software and business
strategies.
Paragraphs ¶¶ 104, 134, 137,
138, 142, 143, 144-47, 149,
154 and footnotes 106, 112
contain information of Arista’s
software, products, and
business strategies, as well as
discussion of a confidential
ITC order.

GRANTED as to Paragraphs
¶¶ 104, 134, 137, 138, 142,
143, 144-47, 149, 154 and
footnotes 106, 112; and
DENIED as to remainder.

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Exhibit 3 to the Wong Daubert
Declaration (Excerpts from the
deposition of Dr. Kevin

Testimony of Dr. Almeroth at
145:22-24 contains
information regarding Arista’s
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GRANTED as to 145:22-24,
and 289:21-291:14; and
DENIED as to remainder.

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Almeroth)

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Exhibit 4 to the Wong Daubert
Declaration (Cisco’s
Supplemental Objections and
Responses to Defendant’s
Interrogatory No. 20)

customer information.
Testimony at 289:21-291:14,
contains information about
Cisco’s confidential
technology.
Contains information
regarding Cisco’s technology
and source code.

GRANTED.

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United States District Court
Northern District of California

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B.
ECF 422
Identification of Documents
to be Sealed
Arista’s Motion to Strike
Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit A to the Declaration
of Elizabeth k. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit B to the Declaration
of Elizabeth K. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit C to the Declaration
of Elizabeth K. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit D to the Declaration
of Elizabeth K. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
Exhibit E to the Declaration
of Elizabeth K. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and

Description of Documents

Court’s Order

Page 2, lines 10-13; page 6,
lines 10-26; page 7, lines 4-6
contain information of
Arista’s marketing and sales
strategies.
Information about Arista’s
and Cisco’s sales, customers,
competitive strategies.

GRANTED as to 2:10-13,
6:10-26, and 7:4-6; and
DENIED as to remainder.

Portions of the document
from 154:1-157:17, 157:18166:19, 194:21-196:10 and
218:8-18 contain information
about Cisco’s sales strategies,
competitive strategies and
customers.
Contains parties’ detailed
confidential business
information.

GRANTED as to 154:1157:17, 157:18-166:19,
194:21-196:10 and 218:8-18;
and DENIED as to
remainder.

Highlighted portions contain
parties’ detailed confidential
business information.

GRANTED.

Contains detailed parties’
confidential business
information.

GRANTED.

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GRANTED.

GRANTED.

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United States District Court
Northern District of California

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Testimony of Dr. Judith A.
Chevalier
Exhibit F to the Declaration
of Elizabeth K. McCloskey in
Support of Arista’s Motion to
Strike Expert Opinions and
Testimony of Dr. Judith A.
Chevalier
C.
ECF 426
Identification of Documents
to be Sealed
Cisco’s Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert Dr.
John Black
Cisco’s Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert William
M. Seifert
Cisco’s Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert Cate M.
Elsten
Exhibit 1 to the Declaration
of Andrew M. Holmes “Black
Opening Report”

Contains confidential
business, product, and
customer information.

Description of Documents

GRANTED.

Court’s Order

Arista does not seek to seal
the highlighted portions.

DENIED.

Arista does not seek to seal
the highlighted portions.

DENIED.

Pages 4, 5, 6:3, and 7:7
contains Arista’s confidential
business and sales
information.
Paragraphs ¶¶ 120, 123-125,
132, 161, 433, 438, 448-459,
461-471, 478-482, 498, 500502, 504, 508, 510, 514, 515,
570, 580, 636, 689-691, 696,
700 and footnotes 32, 35, 40,
and 128 contain information
related to Cisco’s source
code, third-party source code,
as well as Cisco’s business
information.

GRANTED as to pages 4, 5,
6:3, and 7:7; and DENIED as
to remainder.

Paragraph 397 contains
confidential information
related to Arista EOS
software. Paragraphs ¶¶ 519,
525, and 678(i) contain
information related to
Arista’s source code.
Paragraphs ¶¶ 375-377
contain confidential
information related to
Juniper’s software.
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GRANTED as to Paragraphs
¶¶ 120, 123-125, 132, 161,
375-377, 397, 433, 438, 448459, 461-471, 478-482, 498,
500-502, 504, 508, 510, 514,
515, 519, 525, 570, 580, 636,
678(i), 689-691, 696, 700 and
footnotes 32, 35, 40, and 128;
and redacted portions on page
141, 142, and 143 of Exhibit
A to non-party Dell’s
declaration, ECF 442; and
DENIED as to remainder.

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Exhibit 2 to the Holmes
Declaration “Black Rebuttal
Report”

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United States District Court
Northern District of California

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Exhibit 4 to the Holmes
Declaration

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Exhibit 5 to the Holmes
Declaration “Seifert Report”

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Exhibit 6 to the Holmes
Declaration

Portions redacted on page
141, 142, and 143 of Exhibit
A to non-party Dell’s
declaration, ECF 442, contain
Dell’s confidential customer
information.
Paragraphs ¶¶ 50-51, 55, 148,
155, 156, 159, 160, 165, and
170 contain information
related to Cisco’s source
code, third-party source code,
and confidential business
information.
Paragraphs ¶¶ 148, 155, 156,
160-166, and 169-171 contain
confidential information
related to Arista’s source
code.
Arista does not seek to seal
this exhibit, which contains
excerpts of Dr. Black’s
deposition transcript.
Paragraphs ¶¶ 90 (including
footnote 78), 96 (including
charts on Pages 43 and 44),
97 (including footnote 88), 98
(including footnotes 89–91),
99 (including footnote 92),
100(i), 100(ii) (including
footnote 94), 100(iv)
(including footnote 95),
100(v) (including footnote
97), 101, 103 (including
footnote 106), 108, and 109
contain Arista’s confidential
sales and customer
information.
Portions of paragraph 79
contain confidential
information of Juniper’s
software and trade secrets.
Pages 135-36 (13:42:25–
13:43:52) contain Arista’s
confidential business
information.
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GRANTED as to Paragraphs
¶¶ 50-51, 55, 148, 155, 156,
159, 160-166 and 169-171;
and DENIED as to
remainder.

DENIED.

GRANTED as to Paragraphs
¶¶ 90 (including footnote 78),
96 (including charts on Pages
43 and 44), 97 (including
footnote 88), 98 (including
footnotes 89–91), 99
(including footnote 92),
100(i), 100(ii) (including
footnote 94), 100(iv)
(including footnote 95),
100(v) (including footnote
97), 101, 103 (including
footnote 106), 108, and 109;
and portions of ¶ 79 relating
to Juniper’s software and
trade secrets; and DENIED as
to remainder.

GRANTED as to pages 13536 (13:42:25–13:43:52); and
DENIED as to remainder.

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Exhibit 7 to the Holmes
Declaration “Elsten June 3,
2016 Report”

Pages 7, 9, 14, 15, 21-28, 32,
and 33 contain Cisco’s
confidential business
information.

GRANTED as to pages 7, 9,
14, 15, 17, 21-28, 32 and 33;
and DENIED as to
remainder.

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Exhibit 8 to the Holmes
Declaration “Elsten Rebuttal
Report”
Exhibit 9 to the Holmes
Declaration

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United States District Court
Northern District of California

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Exhibit 10 to the Holmes
Declaration

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Exhibit 12 to the Holmes
Declaration “Clark June 3,
2016 Report”
Exhibit 13 to the Holmes
Declaration (Excerpts of the
“Clark Rebuttal Report”)
D.
ECF 438
Identification of Documents
to be Sealed
Arista’s Corrected Motion to
Strike Expert Opinions and
Testimony of Dr. Kevin C.
Almeroth

Pages 9, 17, 22-23 contain
Arista’s confidential business,
product and customer
information.
Contains parties’ confidential
business and customer
information.
58:2-65:25 contain
information related to Cisco’s
customers and Cisco’s
confidential business
information.
Pages 58-60, 62–65, 81, and
212-215 contain Arista’s
confidential customer and
business information.
Contains Cisco’s business
information and competitive
intelligence and related
strategies.
Paragraphs ¶¶ 170-191
contain information related to
Juniper’s software and trade
secrets.
Arista does not seek to seal
these excerpts of Dr. Clark’s
Rebuttal Report.
Description of Documents
Cisco does not seek to seal the
highlighted portions.

E.
ECF 462
Identification of Documents
Description of Documents
to be Sealed
Arista’s Opposition to Cisco’s Highlighted text on page 8 at
Motion to Exclude Expert
lines 25-26 contains Cisco’s
Opinion Testimony of Dr. John confidential litigation
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GRANTED.

GRANTED as to 58:2-65:25;
and pages 58-60, 62–65, 81,
and 212-215; and DENIED
as to remainder.

GRANTED.

GRANTED as to ¶¶ 170-191;
and DENIED as to
remainder.
DENIED.

Court’s Order
DENIED.

Court’s Order
GRANTED as to the
highlighted text at 8:25-26;
and DENIED as to remainder.

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United States District Court
Northern District of California

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Black
Exhibit 4 to the Declaration of
Ryan Wong in Support of
Arista’s Opposition to Exclude
Expert Opinion Testimony of
John Black (“Wong Opp.
Declaration”) (Excerpts from
the deposition transcript of Dr.
Kevin C. Almeroth, taken on
June 28, 2016)
Exhibit 5 to the Wong Opp.
Declaration (Excerpts from the
“Rebuttal Expert Report of
Kevin Almeroth” dated June
17, 2016)
F.
ECF 467
Identification of Documents
to be Sealed
Arista’s Opposition to Cisco’s
Motion to Exclude Expert
Testimony from Arista’s
Expert Cate M. Elsten

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Exhibit A to the Declaration of
Eduardo E. Santacana in
Support of Arista’s Opposition
to Cisco’s Motion to Exclude
Expert Testimony from
Arista’s Expert Cate M. Elsten
G.
ECF 470
Identification of Documents
to be Sealed
Arista Network Inc.’s
Opposition to Cisco’s Motion
to Exclude Expert Opinion
Testimony of William M.
Seifert
Exhibit 1 to the Declaration of
Andrea Nill Sanchez in
Support of Arista Network
Inc.’s Opposition to Cisco
Systems, Inc.’s Motion to
Exclude Opinion Testimony of
William M. Seifert (“Exhibit
1”)
Exhibit 4 to the Declaration of

settlement.
Cisco does not seek to seal
these excerpts of Dr.
Almeroth’s deposition
transcript.

Cisco does not seek to seal
these excerpts of Dr.
Almeroth’s Rebuttal Report.

Description of Documents
Highlighted portions contain
Arista’s confidential business
and product information.
Highlighted text on page 8 at
lines 1-4 contains Cisco’s
confidential business
information.
Cisco does not seek to seal this
exhibit, which contains
excerpts of Dr. Chevalier’s
deposition transcript.

Description of Documents

DENIED.

DENIED.

Court’s Order
GRANTED.

DENIED.

Court’s Order

Cisco did not file a declaration
in support of sealing the
highlighted portions of this
exhibit that cite to Mr.
Seifert’s deposition transcript.
Cisco did not file a declaration
in support of sealing this
exhibit, which contains
excerpts of Mr. Seifert’s
deposition transcript.

DENIED.

Excerpts from the Expert

GRANTED.

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DENIED.

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Andrea Nill Sanchez in
Support of Arista Network
Inc.’s Opposition to Cisco
Systems, Inc.’s Motion to
Exclude Opinion Testimony of
William M. Seifert (“Exhibit
4”)

Report of Judith A. Chevalier
(submitted on June 24, 2016)
contain Arista’s confidential
business information, such as
marketing and sales strategies.

Exhibit 5 to the Declaration of
Andrea Nill Sanchez in
Support of Arista Network
Inc.’s Opposition to Cisco
Systems, Inc.’s Motion to
Exclude Opinion Testimony of
William M. Seifert (“Exhibit
5”)

Excerpts from the Rebuttal
Expert Report on Fair Use of
Judith A. Chevalier (submitted
on June 17, 2016) contain
Arista’s confidential customer
and product information.

GRANTED.

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United States District Court
Northern District of California

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H.
ECF 475
Identification of Documents
to be Sealed
Cisco’s Opposition to
Arista’s Corrected Motion
to Strike Expert Opinions
and Testimony of Dr.
Kevin C. Almeroth.

Exhibit 1 to the
Declaration of John M.
Neukom in Support of
Cisco’s Opposition to
Arista’s Corrected Motion
to Strike Expert Opinions
and Testimony of Dr.
Kevin C. Almeroth.
(“Neukom Declaration”)
Exhibit 2 to the Neukom
Declaration

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Exhibit 3 to the Neukom
Declaration

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I.
ECF 476
Identification of Documents
to be Sealed
Cisco’s Opposition to

Description of Documents

Court’s Order

Highlighted text on page 4 at
lines 7-13 and 16-20, page 7 at
lines 26-28, page 8 at line 1,
page 9 at lines 24-26, page 10
at lines 18-20 contains Arista’s
confidential product and
customer information.
Paragraphs ¶¶ 72-74 (including
the image shown on Page 29)
contains Arista’s confidential
product and business
information.

GRANTED as to highlighted
text at 4:7-13, 4:16-20; 7:2628; 8:1; 9:24-26; 10:18-20; and
DENIED as to remainder.

Arista does not seek to file
under seal this exhibit, which
contains excerpts of Dr.
Almeroth’s deposition
transcript.
Arista does not seek to file
under seal this exhibit, which
contains excerpts of Dr.
Black’s deposition transcript.

DENIED.

Description of Documents
Highlighted text on page 1 at
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Granted as to paragraphs ¶¶
72-74, including the image on
page 29; and DENIED as to
remainder.

DENIED.

Court’s Order
GRANTED as to 1:24-26; 8:9-

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Arista’s Motion to Exclude
Expert Opinion Testimony
From Dr. Judith A.
Chevalier

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United States District Court
Northern District of California

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Exhibit 1 to the
Declaration of Sara E.
Jenkins in Support of
Cisco’s Opposition to
Arista’s Motion to Exclude
Expert Opinion Testimony
From Dr. Judith A.
Chevalier

lines 24-26, page 8 at lines 913 and footnote 3, page 9 at
lines 6-26, page 10 at lines 324 contains Arista’s
confidential product, customer,
and business information.
Excerpts from Anshul
Sadana’s deposition transcript
contain Arista’s confidential
customer and product
information.

J.
ECF 491
Identification of Documents
Description of Documents
to be Sealed
Defendant Arista Networks,
Highlighted portions contain
Inc.’s Reply in Support of its
Arista’s confidential software
Motion to Strike Expert
and business information.
Opinions and Testimony of Dr.
Judith A. Chevalier
Cisco did not file a declaration
in support of sealing the
highlighted text at 1:13-14.
K.
ECF 494
Identification of Documents
to be Sealed
Defendant Arista Networks,
Inc.’s Reply in Support of its
Motion to Strike Expert
Opinions and Testimony of Dr.
Kevin C. Almeroth

Description of Documents
Highlighted portions on page 5
at lines 7-11 and line 17
contain Arista’s confidential
software, sales, and product
information.

13 & n.3; 9:6-26; 10:3-24; and
DENIED as to remainder.

GRANTED.

Court’s Order
GRANTED as to highlighted
portions at 1:20, 24; 4:3-4; 5:911; and DENIED as to 1:1314.

Court’s Order
GRANTED as to the
highlighted portions at 5:7-11
and 17; and DENIED as to
remainder.

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Cisco did not file a declaration
in support of sealing the
remaining highlighted
portions.

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L.
ECF 498
Identification of Documents
to be Sealed
Cisco’s Reply in Support
of Its Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert Dr.
John Black
Cisco’s Reply in Support

Description of Documents

Court’s Order

Arista did not file a declaration
in support of sealing this
exhibit.

DENIED.

Arista did not file a declaration

DENIED.

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of Its Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert
William M. Seifert
Cisco’s Reply in Support
of Its Motion to Exclude
Expert Opinion Testimony
From Arista’s Expert Cate
M. Elsten

in support of sealing this
exhibit.

Highlighted portions contain
Arista’s confidential product,
sales, and customer
information.

GRANTED.

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III.

ORDER
For the foregoing reasons, the sealing motions at ECF 419, 422, 426, 438, 462, 467, 470,

475, 476, 491, 494, 498 are GRANTED IN PART and DENIED IN PART. Under Civil Local
Rule 79-5(e)(2), for any request that has been denied because the party designating a document as

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United States District Court
Northern District of California

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confidential or subject to a protective order has not provided sufficient reasons to seal, the

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submitting party must file the unredacted (or lesser redacted) documents into the public record no

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earlier than 4 days and no later than 10 days form the filing of this order.

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IT IS SO ORDERED.
Dated: September 16, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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