Federal Trade Commission v. Qualcomm Incorporated

Filing 1079

Order by Judge Lucy H. Koh granting in part and denying in part 1048 Administrative Motion to File Under Seal.(lhklc4, COURT STAFF) (Filed on 1/3/2019)

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 1 of 12

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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FEDERAL TRADE COMMISSION,

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Plaintiff,

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND
DENYING IN PART JOINT
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT
REPORT

v.
QUALCOMM INCORPORATED,
Defendant.

Re: Dkt. 1048

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Before the Court is the parties’ joint administrative motion to file under seal portions of the

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expert report of Dr. Edward Snyder (“Snyder Report”). ECF No. 1048. For the following

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reasons, the Court GRANTS in part and DENIES in part the parties’ motion to seal.

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“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 & Cty. 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. (internal quotation marks omitted).

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Parties seeking to seal judicial records relating to motions that are “more than tangentially
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 2 of 12

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related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092,

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1099 (9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons

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supported by specific factual findings that outweigh the general history of access and the public

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policies favoring disclosure,” Kamakana, 447 F.3d at 1178–79 (internal quotation marks and

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citation omitted). Compelling reasons justifying the sealing of court records generally exist “when

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such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to

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gratify private spite, promote public scandal, circulate libelous statements, or release trade

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secrets.” Id. at 1179 (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the

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production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further

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United States District Court
Northern District of California

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litigation will not, without more, compel the court to seal its records.” Id.
Records attached to motions that are “not related, or only tangentially related, to the merits

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of a case” are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at

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

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records attached only to non-dispositive motions because those documents are often unrelated, or

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only tangentially related, to the underlying cause of action.” (internal quotation marks and citation

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omitted)). Parties moving to seal records attached to motions unrelated or only tangentially

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related to the merits of a case must meet the lower “good cause” standard of Rule 26(c) of the

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Federal Rules of Civil Procedure. Ctr. for Auto Safety, 809 F.3d at 1098–99; Kamakana, 447 F.3d

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at 1179–80. The “good cause” standard requires a “particularized showing” that “specific

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prejudice or harm will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v.

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Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002) (citation omitted); see Fed. R. Civ. P.

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26(c). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning”

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will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation

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omitted).

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Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court
documents for, inter alia, the protection of “a trade secret or other confidential research,
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ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 3 of 12

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development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). The Ninth Circuit has

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adopted the definition of “trade secrets” set forth in the Restatement of Torts, holding that “[a]

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trade secret may consist of any formula, pattern, device or compilation of information which is

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used in one’s business, and which gives him an opportunity to obtain an advantage over

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competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972)

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(quoting Restatement (First) of Torts § 757 cmt. b). “Generally [a trade secret] relates to the

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production of goods . . . . It may, however, relate to the sale of goods or to other operations in the

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business . . . .” Id. (alterations in original). Furthermore, the United States Supreme Court has

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recognized that sealing may be justified to prevent judicial documents from being used “as sources
of business information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at

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Northern District of California

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598.

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In addition, parties moving to seal documents must comply with the procedures established

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by Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request

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that establishes the document is “sealable,” or “privileged, protectable as a trade secret or

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otherwise entitled to protection under the law.” Civ. L. R. 79-5(b). “The request must be

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narrowly tailored to seek sealing only of sealable material, and must conform with Civil [Local

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Rule] 79-5(d).” Id. Civil Local Rule 79-5(d), moreover, requires the submitting party to attach a

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“proposed order that is narrowly tailored to seal only the sealable material” and that “lists in table

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format each document or portion thereof that is sought to be sealed,” as well as an “unredacted

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version of the document” that “indicate[s], by highlighting or other clear method, the portions of

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the document that have been omitted from the redacted version.” Civ. L. R. 79-5(d)(1). The

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parties shall file concurrent with the administrative motion to file under seal all necessary

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declarations establishing that the information sought to be sealed is sealable. Id. Pursuant to the

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Court’s order at ECF No. 821, where the parties seek to seal information designated confidential

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by a third party and the parties are unable to file that third party’s declaration in support of sealing

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concurrently with the motion, the third party “will have seven days, rather than the four days

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ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 4 of 12

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prescribed in Civil Local Rule 79-5” to file the third party’s declaration in support of sealing.

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ECF No. 821 at 2.
Here, the information sought to be sealed consists of portions of the Snyder Report, which

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was attached to the FTC’s motion to exclude Dr. Snyder’s opinions. The Court concludes that the

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“compelling reasons” standard applies because the FTC’s motion is “more than tangentially

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related to the underlying cause of action.” Ctr. For Auto Safety, 809 F.3d at 1099. The motion’s

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subject matter—whether to allow the expert opinions of Dr. Edward Snyder, who submitted a 372-

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page expert report on whether Qualcomm’s conduct had anticompetitive effects—is central to the

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merits of the FTC’s claims in the instant case. See ECF No. 1014 at 4 (explaining, in previous

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order addressing motions to seal connected with motion to exclude Dr. Snyder, why compelling

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United States District Court
Northern District of California

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reasons standard applies). The Court previously denied without prejudice the motion to seal the

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Snyder Report because the parties sought to the seal the Snyder Report in its entirety. Id. at 5.

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The parties have complied with the Court’s instruction to refile the motion to seal portions of the

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Snyder Report with a chart with a row for each portion of the Snyder Report sought to be sealed.

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See id.

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The Court now turns to the substance of the sealing motion. Qualcomm and several third

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parties have designated as confidential material in the Snyder Report pursuant to the protective

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orders governing this and related cases involving Qualcomm. See ECF No. 1048 at 2. Qualcomm

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and the third parties have filed declarations in support of sealing. ECF Nos. 828, 830, 832, 834,

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835, 837, 840, 841, 743, 845, 849, 850. For example, Qualcomm attests that portions of the

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Snyder Report reveal Qualcomm’s confidential information relating to “commercial and

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operational strategies, sales and pricing negotiations and strategies, . . . competitive positioning for

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sales of certain products and for certain customers, product development, and finances. ECF No.

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850-2, ¶ 11. Similarly, third party MediaTek declares that the Snyder Report “contains detailed,

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non-public and confidential . . . information of MediaTek regarding its commercial negotiations

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and agreements with customers, its competitive strategy, and its research and development

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 5 of 12

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activities.” ECF No. 849, ¶ 4; see also ECF No. 832, ¶ 9 (Samsung declaring that the Snyder

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Report “contains, cites and directly quotes from a myriad of confidential sources containing

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Samsung’s highly confidential documents, data and testimony”).

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Applying the compelling reasons standard, the Court grants in part and denies in part the
parties’ motion to seal. As explained, in Kamakana, the Ninth Circuit held that compelling

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reasons exist to seal court records when the records may be used to “release trade secrets.” 447

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F.3d at 1179 (citing Nixon, 435 U.S. at 598). Moreover, “the common law right of inspection has

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bowed before the power of a court to insure that its records are not used . . . as sources of business

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information that might harm a litigant’s competitive standing.” In re Elec. Arts, Inc., 298 F.

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App’x 568, 569 (9th Cir. 2008) (quoting Nixon, 435 U.S. at 598). Thus, to the extent that the

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United States District Court
Northern District of California

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instant motion seeks to seal information that, if published, may harm Qualcomm’s or third parties’

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competitive standing and divulges terms of confidential contracts, contract negotiations, or trade

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secrets, the Court agrees with the parties that compelling reasons exist to seal this information.

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However, not all information that the motion seeks to seal is sealable. The parties have not

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articulated “compelling reasons” to keep such information from the public. For example, the

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motion seeks to seal Apple’s commonsense statement that Apple “looks for the highest quality

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suppliers and competitive pricing” when sourcing modem chips. See ECF No. 1048-5, ¶ 134. In

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addition, the parties also seek to seal the readily available information that Apple selected Intel to

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supply modem chips for Apple’s 2018 iPhone. Id. ¶ 310; see ECF No. 929 (Qualcomm public

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filing referring to Apple’s selection of Intel as a “public fact”). Accordingly, with the Ninth

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Circuit’s sealing case law in mind, the Court rules on the instant motion as follows:

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Document
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report

Page/Line

Ruling
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED

¶ 32(c)
¶ 32(g)
¶ 35(b)
¶ 36(c)
¶ 37(a)
¶ 37(b), second sentence
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 6 of 12

Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report

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Northern District of California

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Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report

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¶ 37(b), remainder
¶ 76 & associated footnotes1
¶ 77
¶ 86, n.167
¶ 89
¶ 96
¶ 97
¶ 102
¶ 103
¶ 103, n.220
¶ 106
¶ 108
¶ 110, n.230
¶ 112, n.234, beginning with “Q”
¶ 112, remainder
¶ 133
¶ 134
¶ 135
¶ 137
¶ 142
¶ 158, nn.317-319
¶ 160
¶ 161
¶ 165, portion of first sentence up
until “that”
¶ 165, remainder
¶ 170, “John Moynihan”
¶ 170, remainder
¶ 171
¶ 175, n.358
¶ 181
¶ 202
¶ 202, n.384
¶ 206, n.386
¶ 207
¶ 207, n.388
¶ 208, nn.389-90
¶ 211
¶ 211, nn.394-95
¶ 212

GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.

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Unless the Court specifically addresses the relevant footnote, where the Court grants the motion
to seal a portion of a paragraph in the Snyder Report and the parties also seek to seal the
associated footnote(s), the Court also grants the motion to seal the associated footnote.
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 7 of 12

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Snyder Report
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Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report

¶ 235
¶ 237(ii), n.461
¶ 237(iv), second sentence &
n.470
¶ 239
¶ 239, n.484
¶ 243
¶ 243, nn.498-500
¶ 244
¶ 243, n.503
¶ 246
¶ 246, n.514
¶ 247 & nn.515, 517
¶ 248, nn.522-23
¶ 250
¶ 253, n.534
¶ 262
¶ 263, n.557
¶ 268
¶ 270, nn.578, 580-81
¶ 271(iii)
¶ 272, first sentence
¶ 272, remainder
¶ 274
¶ 275
¶ 286
¶ 287, nn.637-38, 640
¶ 288, nn.643-44
¶ 290, first sentence
¶ 290, remainder
¶ 291
¶ 292
¶ 293
¶ 296
¶ 297
¶ 303-05
¶ 306, nn.728-29, 731
¶ 307, nn.733-34
¶ 308, n.736
¶ 309
¶ 310, last sentence
¶ 310, remainder
¶ 315
¶ 317, between “for example” and
“resulting”
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GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.

Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 8 of 12

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Snyder Report
Snyder Report
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Snyder Report

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¶ 317, remainder
¶¶ 318-20
¶ 322, first sentence
¶ 322, remainder
¶¶ 324-25
¶ 327, first sentence
¶ 327, remainder
¶¶ 328-31
¶ 332, second sentence from
“However” to “support”
¶ 332, remainder
¶ 333
¶ 334
¶ 335
¶ 336
¶ 337
¶¶ 339-41
¶¶ 344-46
¶ 349
¶¶ 352-54
¶ 356
¶¶ 358
¶ 359, from “This execution” to
“leading smartphones”
¶ 359, remainder
¶ 361
¶ 364
¶ 365 (sentence associated with
n.975 only)2
¶ 366
¶ 368
¶ 370
¶ 373
¶ 374
¶ 376, from “HiSilicon’s” to
“strength in execution”
¶ 376, remainder
¶¶ 379-80
¶¶ 382-85
¶ 388

GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.

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When filing the redacted version of the Snyder Report, the parties also redacted the sentence
associated with n.976. ECF No. 1048-4 at 242. However, no party or third party in fact seeks to
seal that sentence. See ECF No. 1048. The parties shall remove the redaction when refiling the
redacted Snyder Report in accordance with this order.
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ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

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¶ 395
¶ 403
¶¶ 406-07
¶¶ 411-12
¶ 434
¶ 436, “Via Telecom” in first
sentence
¶ 436, remainder
¶¶ 437-40
¶ 444
¶ 449
¶ 451
¶ 466(a)
¶¶ 468(a)-(b)
¶ 469
¶ 471(d)
¶ 472(e), last sentence
¶¶ 472(a), (c)-(e), remainder
¶ 473
¶ 502
¶ 509
¶ 511
¶ 517
¶¶ 518-20
¶ 525
¶ 527(a), (c)-(e)
¶ 528
¶ 529
¶¶ 531-32
¶¶ 536-37
¶¶ 541-42
¶¶ 547-50
¶ 552
¶ 554
¶ 556
¶ 562
n.177
n.201
nn.221-23
n.227
n.228
n.238
n.239
n.242
n.244
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GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
DENIED.
GRANTED.
DENIED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.

Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

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n.245
n.247
n.248
n.252
n.257
n.260
n.263
n.268
n.269
n.272
n.277
n.296
n.312
n.315
n.317
n.322
n.328
n.337
nn.342-43
n.344, first line
n.344, remainder
n.345
n.350-54
n.356
n.480
n.496
n.501
n.509
n.510
n.512
n.513
n.515
n.518
n.527
n.535
n.536
n.542
n.545
n.561
n.576
n.581
n.594
nn.597-98
n.604

GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
DENIED.
GRANTED.
DENIED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
10

Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 11 of 12

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United States District Court
Northern District of California

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Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report
Snyder Report

n.605
n.609
n.611
n.615
n.630
n.732
n.737
n.751
n.783
nn.788-89
n.828
n.842
n.857
n.860
n.875
n.886
n.904
n.906
n.920
n.932
n.933, first line
n.933, remainder
n.946
n.960
n.972
n.974
n.978
n.981
n.986
n.1258
n.1301
n.1303
n.1304
n.1305
n.1307
n.1392
n.1430
n.1439
n.1461
n.1477
n.1510
n.1517
n.1576

GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
DENIED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.
GRANTED.

IT IS SO ORDERED.
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT

Case 5:17-cv-00220-LHK Document 1079 Filed 01/03/19 Page 12 of 12

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Dated: January 3, 2019
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE
UNDER SEAL SNYDER EXPERT REPORT