Tessera, Inc. v. Toshiba Corporation

Filing 175

ORDER GRANTING IN PART MOTION TO SEAL by Hon. Beth Labson Freeman granting in part and denying in part 172 . (blflc4S, COURT STAFF) (Filed on 8/15/2016)

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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.

ORDER GRANTING IN PART MOTION
TO SEAL

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TOSHIBA CORPORATION,

[Re: ECF 172]

Defendant.

United States District Court
Northern District of California

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Plaintiff Tessera, Inc. renews its motion to file under seal three documents relating to its

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motion for summary judgment. See Mot., ECF 172. Tessera’s motion is GRANTED IN PART

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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

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Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This

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

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United States District Court
Northern District of California

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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.

Tessera’s sealing motion is resolved under the compelling reasons standard, because its

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DISCUSSION

motion for summary judgment is more than tangentially related to the merits of this case.

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United States District Court
Northern District of California

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ECF
No.
172-4

Document to
be Sealed
Ex. 5 to
Tessera’s
motion for
partial
summary
judgment

Result

Reasoning

Pages

Only sealed material contains
confidential business information. The
following unsealed material is not
confidential business information but
rather describes routine business
practices:
 whether Toshiba keeps records of its
semiconductor manufacturing;
 whether Toshiba maintains
organizational charts;
 what standard documents Toshiba
provided to its third-party auditor;
and
 whether Toshiba has employees who
are knowledgeable about the
technical specifications of Toshiba’s
products.

85,
86:1-10,
98-101,
110-113,
127-129,
146-150,
152:13-153:25

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SEALED.
Pages
82-84,
86:11-89:25,
126,
151:1-152:12,
162

Conversations between counsel
regarding the length of the deposition
also are not confidential business
information.

UNSEALED.

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172-6

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Ex. 19 to
Tessera’s
motion for
partial
summary
judgment

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Pages

Only sealed material contains
confidential business information.
The following unsealed material is not
confidential business information:
 whether Powertech Technology Inc.
makes packages for Toshiba;
 a general approximation of the
number of package models Toshiba
makes;
 the witness’s estimate of the number
of patents Tessera owns;
 the witness’s proficiency with
English;
 the witness’s preparation for
deposition; and
 whether Toshiba received an audit
report from its third-party auditor
(without discussing the contents or
import of the report).

176:1-178:10,
179:2-15,
182:10-186:3,
246:25-250:13,
260-267,
292-295,
320:1-3
SEALED.

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Pages

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179:11-180:1,
179:16-182:9,
186:4-187:18,
244-246,
250:14-251:25,
320:4-25

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United States District Court
Northern District of California

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Conversations between counsel
regarding whether the deposition is
complete also are not confidential
business information.
Only sealed material contains
confidential business information. The
following unsealed material is not
confidential business information:
 whether the witness negotiated the
terms of the contract (without
discussing the terms or contents of
the contract);
 whether the witness was prepared to
testify about the contract (without
discussing the terms or contents of
the contract);
 whether the witness was testifying
on Toshiba’s behalf; and
 the witness’s preparation for
deposition.

UNSEALED.

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172-8

Ex. 28 to
Tessera’s
motion for
partial
summary
judgment

Pages
26-33,
56:5-6,
57:4-12,
SEALED.
Pages
1-5,
54-56:4,
56:7-57:3,
57:13-25,
82-86,
98-100

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UNSEALED.
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IT IS SO ORDERED.

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Dated: August 15, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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