Cisco Systems Inc-v-Arista Networks, Inc

Filing 688

OMNIBUS ORDER RE 612 , 616 , 617 , 631 , 632 , 641 , 652 , 660 , 662 PRETRIAL SEALING MOTIONS. Signed by Judge Beth Labson Freeman on 11/29/2016. (blflc4S, COURT STAFF) (Filed on 11/29/2016) Modified on 11/29/2016 (srnS, COURT STAFF).

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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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v.

OMNIBUS ORDER RE PRETRIAL
SEALING MOTIONS

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ARISTA NETWORKS, INC.,

[Re: ECF 612, 616, 617, 631, 632, 641, 652,

Defendant.
660, 662]

United States District Court
Northern District of California

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This order addresses administrative motions to file under seal portions of its briefing and

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exhibits filed by Arista Networks, Inc. (“Arista”) and Cisco Systems Inc. (“Cisco”) in support of

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their trial briefs. ECF 612, 616, 617, 631, 632, 641, 652. It also addresses the motions to file

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under seal portions of the Court’s Order re motions in limine and a pretrial conference transcript.

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ECF 660, 662. For the reasons stated below, the motions are GRANTED IN PART and DENIED

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

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

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the submitted documents. The proposed redactions are also narrowly tailored. The Court’s

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rulings on the sealing requests are set forth in the tables below:

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United States District Court
Northern District of California

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A.
ECF 612
Identification of Documents
to be Sealed
Exhibit 9 to the Declaration
of Ryan Wong In Support of
Defendant Arista Networks,
Inc.’s Opening Brief re
Analytic Dissection (“Wong
Declaration”) (Cisco
Interrogatory Responses,
Exhibit G)
Exhibit 10 to the Wong
Declaration (Cisco
Interrogatory Responses,
Exhibit H)
Exhibit 11 to the Wong
Declaration (Compilation of
Deposition Transcript
Excerpts)

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Exhibit 13 to the Wong
Declaration (Cisco
document)

Description of Documents

Court’s Order

The entire document contains
information relating to highly
confidential source code of
Cisco and Arista.

GRANTED.

The entire document contains
information relating to highly
confidential source code of
Cisco and Arista.

GRANTED.

Pages 9:21-23 of the Li
excerpt; and pages 8:11-19 of
the Liu excerpt are previously
filed under seal per the Court’s
August 24, 2016 order (ECF
487) at 24. The excerpts
contain Cisco’s confidential
business information
pertaining to its source code.
Entire document contains
Cisco’s confidential business
information regarding Cisco’s
product design.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 21.

GRANTED.

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GRANTED.

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Exhibit 14 to the Wong
Declaration (Cisco
document)

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Exhibit 15 to the Wong
Declaration (Li Deposition
Excerpts)

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United States District Court
Northern District of California

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Exhibit 16 to the Wong
Declaration (March 31, 2016
Remaker Deposition
Excerpts)

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Exhibit 17 to the Wong
Declaration

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Exhibit 18 to the Wong
Declaration (Sweeney
Deposition Excerpts)

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Exhibit 20 to the Wong
Declaration (Black Opening
Expert Report)

Entire document contains
Cisco’s confidential business
information regarding Cisco’s
product design.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 21.
Pages 9:21-23; 152:8-20;
227:19-22; 236:22-24 contain
personal information about the
witness and confidential
information about Cisco’s
product development.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 18.
Pages 27:1-29:25; 38:2-45:25;
50:2-57:25; 62:1-73:24; 82:185:19 contain confidential
information about Cisco’s
product development.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 19.
Entire document contains
Cisco’s confidential business
information regarding Cisco’s
product development.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 20-21.
Entire document discusses and
discloses internal, non-public
information regarding the
development and development
process of the Arista EOS
software, including details
regarding how certain
technologies were integrated
into Arista’s products.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 21.
Portions previously ordered
filed under seal: Paragraphs ¶¶
298, 397, 519, 525, and 678(i);
portions quoting or referencing
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GRANTED.

GRANTED.

GRANTED.

GRANTED.

GRANTED.

GRANTED.

deposition of Philip Kasten;
highlighted portions of
Paragraphs ¶¶ 120, 123-125,
132, 161, 433, 438, 448459, 461-471, 478-482, 498,
500-502, 504, 508, 510, 514,
515, 570, 580, 636, 689-691,
696, 700 and footnotes 32, 35,
40, and 128 contain Cisco’s
and Arista’s confidential
business information.

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United States District Court
Northern District of California

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Exhibit 22 to the Wong
Declaration (Black Rebuttal
Expert Report)

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Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 14, and
August 26, 2016 order (ECF
490) at 2.
Paragraphs ¶¶ 148, 155, 156,
160-166, and 169-171; and 5051, 55, 148, 155, 156, 159,
160, 165, and 170 contain
Cisco’s and Arista’s
confidential information.

GRANTED.

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Exhibit 30 to the Wong
Declaration (April 4, 2016
Lougheed Deposition
Excerpts)

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Exhibit 32 to the Wong
Declaration (Kasten
(Juniper) Deposition
Excerpts)

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Exhibit 33 to the Wong

Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 22.
Pages 259:15-260:22; 261:1822; 267:4-295:1; 296:23298:16, 346:18-374:18; 379:225 contain confidential
information regarding Cisco’s
source code and product
development.
Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 19-20.
Entire document contains
confidential information and
trade secret information of
non-party, Juniper Networks,
Inc. regarding its proprietary
software.
Previously filed under seal per
the Court’s October 27, 2016
order (ECF 604) at 2.
Pages 50:6; 54:12 contain
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GRANTED.

GRANTED.

GRANTED.

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Declaration (Dell
Corporation Representative
Deposition Excerpts)

identity of the customer of Mr.
Cato’s previous employer,
which constitutes confidential
business information.

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Exhibit 36 to the Wong
Declaration (Liu Deposition
Excerpts)

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United States District Court
Northern District of California

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Exhibit 38 to the Wong
Declaration (Black
Supplemental Report)

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Exhibit 39 to the Wong
Declaration (September 16,
2016 Lougheed Deposition
Excerpts)

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Exhibit 42 to the Wong
Declaration (November 20,
2016 Lougheed Deposition
Excerpts)

Previously filed under seal per
the Court’s August 26, 2016
order (ECF 490) at 2.
Pages 167-172 contain Cisco’s
confidential business
information about Cisco’s
product development.
Previously filed under seal per
the Court’s October 27, 2016
order (ECF 604) at page 3.
Paragraphs 13, 23, 35, 59, 76,
78, 80, 84, 85, 98, 99, 100 and
footnote 11 contain
confidential source code,
discussions of related
confidential third-party source
code, as well as confidential
information about Cisco’s
licenses, business
development, and competitive
intelligence.
Previously filed under seal per
the Court’s October 27, 2016
order (ECF 604) at 2.
Pages 506, 583-584, 587-588,
and 626 contain confidential
information about Cisco’s
source code and product
development.
Previously filed under seal per
the Court’s October 27, 2016
order (ECF 604) at 3.
Pages 55:2-56:18, 95:9-99:14;
178:11-13 contain confidential
information about Cisco’s
source code and product
development.
Previously filed under seal per
the Court’s August 24, 2016
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GRANTED.

GRANTED.

GRANTED.

GRANTED.

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Exhibit 44 to the Wong
Declaration (March 30, 2016
Remaker Deposition
Excerpts)

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Exhibit 45 to the Wong
Declaration (Patil Email)

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United States District Court
Northern District of California

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B.
ECF 616
Identification of Documents
to be Sealed
Cisco’s Trial Brief Re:
Analytic Dissection
Exhibit A to the
Declaration of Kevin C.
Almeroth in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (copy of
his Opening report
dated June 3, 2016)

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Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 22.
Entire document contains
confidential business
information regarding Cisco’s
product development.

GRANTED.

Previously filed under seal per
the Court’s August 24, 2016
order (ECF 487) at 20.

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order (ECF 487) at 18.
Page 8:17-18 contains personal GRANTED.
information related to the
witness.

Exhibit C to the
Declaration of Kevin C.
Almeroth in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (Evidence
of Command Copying Table)

Description of Documents
Arista does not seek to seal the
highlighted portions.
The highlighted portions
contain Cisco’s and Arista’s
confidential business
information including
information regarding product
architecture, development,
support and documentation;
customer communications,
sales, sales strategies, and
testing and analysis
procedures.
The Court has previously
granted the sealing of the
highlighted portions of this
document. ECF 487 at 5-10.
Highlighted portions contain
Arista’s source code and the
development timeline of
Arista’s products.

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Court’s Order
DENIED.
GRANTED.

GRANTED.

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United States District Court
Northern District of California

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Exhibit F to the
Declaration of Kevin C.
Almeroth in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (Evidence
of Hierarchy Copying Table)

Highlighted portions contain
Arista’s source code and the
development of Arista’s
products.

GRANTED.

Exhibit G to the
Declaration of Kevin C.
Almeroth in Support of
Cisco’s Trial Brief Re:
Analytic Dissection
(Interrogatory 2, Evidence of
Help Description Copying)
Exhibit H to the
Declaration of Kevin C.
Almeroth in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (copy of
Kevin Almeroth’s Rebuttal
report dated June 17, 2016)

Entire document contains
Cisco’s and Arista’s
confidential business
information regarding source
code.

GRANTED.

Highlighted portions of contain GRANTED.
Cisco and Arista’s confidential
business information.

The Court has previously
granted the sealing of the
highlighted portions of this
document. ECF 487 at 10-13.
Exhibit 1 to the
Highlighted portions contain
Declaration of Drew
discussions of Cisco’s
Holmes in Support of
confidential source code and
Cisco’s Trial Brief Re:
discussions of related
Analytic Dissection (excerpt of confidential third-party source
Opening Expert Report of Dr.
code.
John Black)
The Court has previously
granted the sealing of the
highlighted portions of this
document. ECF 487 at 14-15.
Exhibit 2 to the
Highlighted portions contain
Declaration of Drew
Cisco’s confidential source
Holmes in Support of
code.
Cisco’s Trial Brief Re:
Analytic Dissection (copy of
The Court has previously
Cisco’s Supplemental Exhibit
granted a motion to seal these
F to Cisco’s Supplemental
portions.
Responses to Interrogatory
Nos. 16 & 19)
Exhibit 4 to the
Arista does not seek to seal
Declaration of Drew
this exhibit.
Holmes in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (First
Supplemental Exhibit I to
Interrogatory No. 31 (Oct. 14,
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GRANTED.

GRANTED.

DENIED.

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2016))
Exhibit 11 to the
Declaration of Drew
Holmes in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (Excerpts
of Deposition Transcript of
Adam Sweeney)
Exhibit 13 to the
Declaration of Drew
Holmes in Support of
Cisco’s Trial Brief Re:
Analytic Dissect (Excerpt from
the deposition of Phillip
Remaker)

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United States District Court
Northern District of California

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Exhibit 16 to the
Declaration of Drew
Holmes in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (Arista’s
supplemental discovery
responses to Cisco’s
Interrogatory No. 9.)

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Exhibit 17 to the
Declaration of Drew
Holmes in Support of
Cisco’s Trial Brief Re:
Analytic Dissection (Arista’s
supplemental discovery
responses to Cisco’s
Interrogatory No. 26.)

Pages 174:3-175:3; 176:7-25;
and 216:1-219:25 contain
Arista’s confidential business
information and product
development.

GRANTED as to pages 174:3175:3; 176:7-25; and 216:1219:25; and DENIED as to
remainder.

Cisco’s declaration states that
the “highlighted portions”
contain confidential
information about Cisco’s
product development. Jenkins
Decl. ¶ 10, ECF 616-1.
However, the motion seeks to
seal the entire exhibit and no
document with partial
redaction or highlighted
portions has been provided.
The following portions of this
document contain Arista’s
confidential information
relating to product design and
development:
 The table starting on page
8, line 13, and ending on
Page 9, line 28;
 The table starting on page
10, line 6, and ending on
Page 12, line 3;
 The table starting on page
12, line 13, and ending on
Page 16, line 11;
 The table starting on page
16, line 20, and ending on
Page 23, line 15;
 The information on page
23, lines 16 through 27.
The table starting on page 7,
line 11, and ending on page 18,
line 13 contains Arista’s
confidential business
information regarding internal
product design and
development.

DENIED.

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GRANTED as to the table
starting on page 8, line 13, and
ending on page 9, line 28; the
table starting on page 10, line
6, and ending on page 12, line
3; the table starting on page 12,
line 13, and ending on page 16,
line 11; the table starting on
page 16, line 20, and ending on
page 23, line 15; the
information on page 23, lines
16 through 27; and DENIED
as to remainder.

GRANTED as to the table
starting at 7:11, and ending at
18:13; and DENIED as to
remainder.

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C.
ECF 617
Identification of Documents
to be Sealed
Arista’s Opening Brief re
Analytic Dissection

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United States District Court
Northern District of California

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D.
ECF 631
Identification of Documents
to be Sealed
Cisco’s Trial Brief re:
Copyrighted Work

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E.
ECF 632
Identification of Documents
to be Sealed
Exhibit 1 to the Declaration
of Audrey Hadlock ISO
Arista’s Brief Re Defining
Cisco’s Copyrighted Works
(Cisco Interrogatory
Responses)
F.
ECF 641
Identification of Documents
to be Sealed
Cisco’s Trial Brief

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G.
ECF 652
Identification of Documents
to be Sealed
Cisco’s Response to
Arista’s Brief re: Analytic
Dissection

Description of Documents

Court’s Order

Third-party Juniper Networks
seeks to seal highlighted
portions of the footnote on
page 12, except for the last line
of the footnote, and the
highlighted portions at 19:2023. These portions contain
confidential information
relating to Juniper’s software.
No other parties seek to seal
the remaining portions.

GRANTED as to highlighted
portions of the footnote on
page 12, except for the last line
of the footnote, and the
highlighted portions at 19:2023; and DENIED as to
remainder.

Description of Documents

Court’s Order

The highlighted portion at 2:79 contains confidential
information regarding Arista’s
product development.
Description of Documents
Cisco has not filed a
declaration in support of
sealing this exhibit.

Description of Documents
Arista has not filed a
declaration in support of
sealing the highlighted
portions of this exhibit.
Description of Documents

GRANTED as to the
highlighted portion of
2:7-9; and DENIED as to
remainder.
Court’s Order
DENIED.

Court’s Order
DENIED.

Court’s Order

Portions at 2:20-3:5 and 11:19- GRANTED as to pages 2:2028 contain confidential
3:5 and 11:19-28; and
information relating to design
DENIED as to remainder.
and development of Arista
software and product
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Exhibit 1 to the
Declaration of John M.
Neukom (November 20,
2015 excerpt of deposition
transcript of Kirk
Lougheed)

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United States District Court
Northern District of California

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Exhibit 2 to the
Declaration of John M.
Neukom (March 17, 2016
excerpt of the deposition
transcript of the Anshul
Sadana)
H.
ECF 660
Identification of Documents
to be Sealed
Court’s Order re Motions in
Limine

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I.
ECF 662
Identification of Documents
to be Sealed
November 3, 2016 Pretrial
Conference Transcript

development strategies.
Although Cisco submitted a
declaration in support of
sealing portions of the exhibit
containing information relating
to Cisco’s product
development and architecture,
the portions designated to be
sealed in the motion do not
correspond to the highlighted
portions in the unredacted
exhibit. Accordingly, the
Court cannot assess what
portions are sought to be
redacted and whether they are
narrowly tailored.
Arista does not seek to seal
this exhibit.

Description of Documents
Portions at 7:15, 7:28, 8:2, and
12:19-21, starting with
“Arista’s Senior Vice
President” and ending with
“publicly,” contain Arista’s
confidential business
information.
Description of Documents

DENIED. Compare ECF 652
(designating portions at 131:1135:25; 141:1-143:25; 166:1169:25 to be sealed) with ECF
652-5; see also Civil L.R. 795(d)(1).

DENIED.

Court’s Order
GRANTED.

Court’s Order

Highlighted portions at 59:22- GRANTED.
25; 60:1-2; 62:12-16; 65:1117; 66:2-4, 8-17; 93:19-20, and
93:23 contain confidential
information relating to the
International Trade
Commision’s determination
that is under seal.

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III.

ORDER
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the

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aforementioned sealing motions. Under Civil Local Rule 79-5(e)(2), for any request that has been
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denied because the party designating a document as confidential or subject to a protective order
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has not provided sufficient reasons to seal, the submitting party must file the unredacted (or lesser
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redacted) documents into the public record no earlier than 4 days and no later than 10 days form
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the filing of this order. With respect to the motions at ECF 660 and 662, Arista is ordered to file
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redacted versions of the Court’s Order re motions in limine and of the pretrial conference

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transcript within 10 days from the filing of this order.
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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: November 29, 2016
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______________________________________
BETH LABSON FREEMAN
United States District Judge

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