Tessera, Inc. v. Toshiba Corporation

Filing 170

OMNIBUS ORDER RE: ADMINISTRATIVE MOTIONS TO SEAL DOCUMENTS by Judge Beth L. Freeman denying 139 ; granting in part and denying in part 140 ; granting in part and denying in part 144 . (blflc4, COURT STAFF) (Filed on 8/9/2016)

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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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TESSERA, INC.,

Case No. 5:15-cv-02543-BLF

Plaintiff,
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v.
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TOSHIBA CORPORATION,
Defendant.

OMNIBUS ORDER RE:
ADMINISTRATIVE MOTIONS TO
SEAL DOCUMENTS
[Re: ECF 139, 140, 144]

United States District Court
Northern District of California

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Before the Court are three administrative motions to seal, one from Plaintiff Tessera, Inc.,

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and two from Defendant Toshiba Corp. See Mots., ECF 139, 140, 144. All three sealing motions

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relate to the briefing on the parties’ cross-motions for summary judgment. See id. Tessera’s

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motion, located at ECF 140, is GRANTED IN PART and DENIED IN PART, Toshiba’s first

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sealing motion, located at ECF 139, is DENIED as moot, and Toshiba’s second sealing motion,

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located at ECF 144, is GRANTED IN PART and DENIED IN PART.

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I.

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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 & County 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)). Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.

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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to

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motions that are “more than tangentially related to the underlying cause of action” bear the burden

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of overcoming the presumption with “compelling reasons” that outweigh the general history of

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access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d

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1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178-79.

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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.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228-29 (Fed.

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Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the

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merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto

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Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need

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for access to court records attached only to non-dispositive motions because those documents are

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often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving

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to seal the documents attached to such motions must meet the lower “good cause” standard of
Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This

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United States District Court
Northern District of California

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standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the

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information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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1210-11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by

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specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co.,

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966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during discovery

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may reflect the court’s previous determination that good cause exists to keep the documents

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sealed, see Kamakana, 447 F.3d at 1179-80, but a blanket protective order that allows the parties

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to designate confidential documents does not provide sufficient judicial scrutiny to determine

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whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A) (“Reference

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to a stipulation or protective order that allows a party to designate certain documents as

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confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).

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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 Civ. L.R.

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79-5(b), a sealing order is appropriate only upon a request that establishes the document is

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“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).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the

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submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable
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material” which “lists in table format each document or portion thereof that is sought to be

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sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by

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highlighting or other clear method, the portions of the document that have been omitted from the

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redacted version.” Civ. L.R. 79-5(d)(1)(d). “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.” Civ. L.R. 79-5(e)(1).

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II.

Toshiba’s second sealing motion, located at ECF 144, is an amended version of its first

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DISCUSSION

sealing motion, located at ECF 139. Toshiba’s first sealing motion, ECF 139, thus is DENIED as
moot. The remaining sealing motions are resolved under the compelling reasons standard,

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United States District Court
Northern District of California

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because the parties’ summary judgment briefing is more than tangentially related to the merits of

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this case.

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140-6

Document to
be Sealed
Tessera’s
motion for
partial
summary
judgment
Ex. 1

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140-7

Ex. 2

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140-8

Ex. 3

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140-9

Ex. 4

140-10

Ex. 5

140-12

Ex. 7

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140-13

Ex. 8

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140-14

Ex. 9

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140-15

Ex. 10

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ECF
No.
140-4

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18

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Result

Reasoning

Designations highlighted
in yellow SEALED.

SEALED.

Sealed material contains confidential
business information.

Sealed material contains confidential
business information.
SEALED.
Sealed material contains confidential
business information.
SEALED.
Sealed material contains confidential
business information.
SEALED.
Sealed material contains confidential
business information.
UNSEALED.
Not narrowly tailored to confidential
business information.
Designation highlighted in Sealed material contains confidential
yellow SEALED.
business information.
SEALED.
Sealed material contains confidential
business information.
SEALED.
Sealed material contains confidential
business information.
SEALED.
Sealed material contains confidential
business information.
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140-16

Ex. 11

SEALED.

2

140-17

Ex. 12

SEALED.

3

140-18

Ex. 14

SEALED.

4

140-19

Ex. 15

SEALED.

140-20

Ex. 16

SEALED.

140-21

Ex. 17

SEALED.

140-22

Ex. 18

SEALED.

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140-23

Ex. 19

UNSEALED.

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140-24

Ex. 20

SEALED.

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140-25

Ex. 21

SEALED.

140-26

Ex. 22

SEALED.

140-27

Ex. 24

SEALED.

140-28

Ex. 25

SEALED.

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140-29

Ex. 26

SEALED.

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140-30

Ex. 27

SEALED.

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140-31

Ex. 28

UNSEALED.

140-32

Ex. 29

UNSEALED.

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Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Not narrowly tailored to confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Not narrowly tailored to confidential
business information.
Not narrowly tailored to confidential
business information.

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United States District Court
Northern District of California

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139-41

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Toshiba’s first
motion for
summary
judgment

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United States District Court
Northern District of California

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139-6

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139-7

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139-8
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139-9

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139-10

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139-11

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139-13

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139-15

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Liang Decl. in
support of
Toshiba’s
motion for
summary
judgment
Ex. 2 to Liang
Decl.
Ex. 3 to Liang
Decl.
Ex. 4 to Liang
decl.
Ex. 8 to Liang
Decl.
Ex. 9 to Liang
Decl.
Ex. 10 to
Liang Decl.
Ex. 11 to
Liang Decl.

Designations highlighted
in yellow at

Only sealed portions contain confidential
business information.

4:7-21, 23-24,
5:1-4, 22-24,
6:6-15, 17-28,
7:1-9, 11-14, 17-23, 2627,
8:1-18,
9:1-14, 16-18, 22-24, n.6,
10:1-2, 4-6, 10-14,
13:14-20, 22-24,
14:5-9,
15:2,
16:1-5, 21, 24,
17:2-3, 6-25,
18:12, 16, 20-28,
19:1-4, 6-9,
20:2-3, 5-6
SEALED; remainder
UNSEALED.
Designations highlighted
in yellow at

Only sealed portions contain confidential
business information.

¶¶ 33, 36, 38, 40
SEALED; remainder
UNSEALED.
SEALED.
SEALED.
SEALED.
SEALED.
UNSEALED.
SEALED.
UNSEALED.

Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Does not contain confidential business
information.
Sealed material contains confidential
business information.
Does not contain confidential business
information.

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Toshiba did not re-file the documents to be sealed with its amended sealing motion, and so the
documents are identified by the ECF numbers assigned to the first sealing motion. The documents
to be sealed are located at ECF 139, 141.
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139-17

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139-18

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139-19

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139-21

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139-22

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139-23
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139-24
139-25

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139-26

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United States District Court
Northern District of California

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139-27

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139-28

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139-29
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15

139-30

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139-31

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141-1

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141-2

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141-3

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21
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141-4
141-5

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141-6

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141-7

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141-8

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141-9

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141-10

Ex. 12 to
Liang Decl.
Ex. 13 to
Liang Decl.
Ex. 14 to
Liang Decl.
Ex. 15 to
Liang Decl.
Ex. 16 to
Liang Decl.
Ex. 17 to
Liang Decl.
Ex. 18 to
Liang Decl.
Ex. 19 to
Liang Decl.
Ex. 20 to
Liang Decl.
Ex. 21 to
Liang Decl.
Ex. 22 to
Liang Decl.
Ex. 23 to
Liang Decl.
Ex. 24 to
Liang Decl.
Ex. 25 to
Liang Decl.
Ex. 26 to
Liang Decl.
Ex. 27 to
Liang Decl.
Ex. 28 to
Liang Decl.
Ex. 29 to
Liang Decl.
Ex. 30, part 1
to Liang Decl.
Ex. 30, part 2
to Liang Decl.
Ex. 30, part 3
to Liang Decl.
Ex. 30, part 4
to Liang Decl.
Ex. 30, part 5
to Liang Decl.
Ex. 30, part 6
to Liang Decl.

UNSEALED.

Does not contain confidential business
information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.

SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
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Ex. 30, part 7
to Liang Decl.
Ex. 30, part 8
to Liang Decl.
Ex. 31, part 1
to Liang Decl.
Ex. 31, part 2
to Liang Decl.
Ex. 31, part 3
to Liang Decl.
Ex. 31, part 4
to Liang Decl.
Ex. 31, part 5
to Liang Decl.
Ex. 32 to
Liang Decl.
Ex. 33 to
Liang Decl.
Ex. 34, part 1
to Liang Decl.

SEALED.

141-21

Ex. 34, part 2
to Liang Decl.

UNSEALED.

141-22

Ex. 34, part 3
to Liang Decl.

UNSEALED.

141-24

Ex. 36, part 1
to Liang Decl.

UNSEALED.

141-25

Ex. 36, part 2
to Liang Decl.

UNSEALED.

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141-26

SEALED.

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141-27

Ex. 37 to
Liang Decl.
Ex. 38 to
Liang Decl.
Ex. 35 to
Liang Decl.

1

141-11

2

141-12

3

141-13

4

141-14

5

141-15

6
141-16
7
8

141-17
141-18

10

141-19

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United States District Court
Northern District of California

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141-20

12
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SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
SEALED.
UNSEALED.

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15
16
17
18
19
20

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24
25

141-28

SEALED.
Designations highlighted
in yellow SEALED.

Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Does not contain confidential business
information. Patents are public
information.
Does not contain confidential business
information. Patents are public
information.
Does not contain confidential business
information. Patents are public
information.
Not narrowly tailored to confidential
business information; several of the
documents contained in this exhibit are
public information.
Not narrowly tailored to confidential
business information; several of the
documents contained in this exhibit are
public information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.
Sealed material contains confidential
business information.

The parties may renew their motions to seal the documents the Court has identified as not

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narrowly tailored. Any renewed motions must comport with Civ. L.R. 79-5(d) and be filed by

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August 16, 2016.

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Furthermore, when Toshiba amended its motion to seal, it submitted only the amended

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motion, a declaration in support, and a proposed order. See ECF 144. It did not submit the

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redacted and unredacted version of the documents to be sealed, presumably because the

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documents were already filed with Toshiba’s first motion to seal. See ECF 139. Civ. L.R. 79-

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5(d)(C)-(D) explicitly requires parties to filed redacted and unredacted versions of the documents

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sought to be filed under seal. The Court nonetheless has ruled on the amended motion to seal for

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the sake of expediency, but going forward, any amended motion to seal must fully comply with

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Civ. L.R. 79-5(d) and include the redacted and unredacted versions of the documents to be sealed.

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Any amended motion that does not comply with Civ. L.R. 79-5(d) will be denied.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: August 9, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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