Federal Trade Commission v. Qualcomm Incorporated

Filing 936

Order by Judge Lucy H. Koh Granting in Part and Denying in Part 854 Administrative Motion to File Under Seal; Granting in Part and Denying in Part 862 Administrative Motion to File Under Seal. (lhklc4, COURT STAFF) (Filed on 11/21/2018)

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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, et al.,
Plaintiffs,

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND
DENYING IN PART
ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL

v.

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QUALCOMM INCORPORATED, et al.,

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Defendants.

Re: Dkt. Nos. 854, 862

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Before the Court are Plaintiff Federal Trade Commission’s (“FTC”) and Defendant

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Qualcomm Incorporated’s (“Qualcomm”) joint administrative motions to seal the parties’ briefing

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on Qualcomm’s motion for leave to take the trial deposition of an expert witness and related

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exhibits. ECF Nos. 854 & 862.

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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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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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Parties seeking to seal judicial records relating to motions that are “more than tangentially

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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
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.

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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
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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documents for, inter alia, the protection of “a trade secret or other confidential research,

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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 Supreme Court has recognized that
sealing may be justified to prevent judicial documents from being used “as sources of business

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United States District Court
Northern District of California

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information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 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). Where

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the moving party seeks to file under seal a document containing information designated

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confidential by the opposing party, “[w]ithin 4 days of the filing of the Administrative Motion to

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File Under Seal, the [opposing party] must file a declaration as required by subsection 79-

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5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L. R. 79-5(e)(1).

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Here, the information sought to be sealed consists of portions of the parties’ briefing on
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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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Qualcomm’s motion for leave to take the trial deposition of Qualcomm’s expert witness, Professor

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Bénedicté Fauvarque-Cosson. ECF Nos. 854 & 862. Qualcomm appears to contend that the

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Court should apply the good cause standard. ECF No. 854 at 3 (citing the “good cause” standard

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from Phillips).

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However, Qualcomm’s motion concerned whether Qualcomm could preserve the trial
testimony of Professor Fauvarque-Cosson, who would provide “the only expert testimony

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addressing the subject of her report.” See ECF No. 863-1 at 2. The Ninth Circuit has held that

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“routine motions in limine [] are strongly correlative to the merits of a case.” Ctr. for Auto Safety,

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809 F.3d at 1099. Similarly, this Court has previously explained that the inclusion or exclusion of

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material at issue in a motion in limine may “critically affect[] the outcome of a case,” such that the

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United States District Court
Northern District of California

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material is subject to the compelling reasons standard. Fujitsu Ltd. v. Belkin Int’l, Inc., No. 10-

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CV-03972-LHK, 2012 WL 6019754, at *5 (N.D. Cal. Dec. 3, 2012) (citing In re Midland Nat’l

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Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120 (9th Cir. 2012)). While

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Qualcomm’s motion was not a motion in limine, the motion concerned Qualcomm’s presentation

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of evidence in its merits case. The Court thus applies the “compelling reasons” standard to the

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information the parties seek to seal.

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Generally, the information the parties seek to seal relates to Professor Fauvarque-Cosson’s

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appointment to a judgeship in France. The parties originally sought to seal the entirety of the

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parties’ briefing on Qualcomm’s motion for leave to take the trial deposition of an expert witness

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and attached exhibits. See ECF Nos. 854 & 862. Then, on September 19, 2018, Qualcomm filed

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a notice stating that Professor Fauvarque-Cosson’s judicial appointment had become public. ECF

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No. 863. As a result, Qualcomm revised the sealing request to seek to seal only the possible

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effective dates of Professor Fauvarque-Cosson’s appointment and information related to Professor

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Fauvarque-Cosson’s conversations with French government officials regarding her appointment.

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See id. at 1–3. Now that Professor Fauvarque-Cosson’s appointment has become effective, the

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possible effective dates of her appointment are no longer confidential, and the Court DENIES the

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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parties’ sealing requests to the extent that the requests seek to seal such information.
However, the Court concludes that compelling reasons exist to seal information related to

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Professor Fauvarque-Cosson’s conversations with French government officials regarding her

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appointment. Professor Fauvarque-Cosson attested in a declaration that such information about

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the internal government processes leading to her appointment is “not public” and that the French

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government had asked her “to keep it in strict confidence.” ECF No. 854-4. The Court concludes

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that the French government’s interest in the strict confidentiality of its judicial appointment

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processes provides a compelling reason to seal information related to Professor Fauvarque-

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Cosson’s conversations with French government officials regarding her appointment. See Heath
v. Google LLC, No. 15-CV-01824-BLF, 2018 WL 4561773, at *3 (N.D. Cal. Sept. 20, 2018)

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United States District Court
Northern District of California

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(concluding that compelling reasons existed to seal “confidential information about [a company’s]

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hiring process”).
Thus, with the Ninth Circuit’s sealing case law in mind, the Court rules on the instant

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motions as follows:
Motion to
Seal

854

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854

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854

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854

Document

Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness

Page/Line

Ruling

1:10

DENIED. The effective date
of the appointment is no
longer confidential.

1:12–13,
between
“matter” and “.”

GRANTED.

1:23–24

DENIED. The effective date
of the appointment is no
longer confidential.

2:13–14,
between “on”
and “,” and after
“learned”

GRANTED.

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

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2

Motion to
Seal

854

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4

854

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6

854

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9

854

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United States District Court
Northern District of California

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854

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13

854

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854

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854

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854

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854

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854

Document

Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Qualcomm’s Motion for
Leave to Take the Trial
Deposition of an Imminently
Unavailable Witness
Declaration of Professor
Bénedicté Fauvarque-Cosson

Page/Line

Ruling

2:16–18,
between “on”
and “.”

GRANTED.

2:19–20,
between
“informed” and
“.”
2:21–3:1

GRANTED.

3:2–7

GRANTED

3:8–9

DENIED.

n.2, after
“FauvarqueCosson”

GRANTED.

4:17–20

GRANTED.

6:2

DENIED. The effective date
of the appointment is no
longer confidential.

6:9–15

DENIED. The effective date
of the appointment is no
longer confidential.

6:21

DENIED. The effective date
of the appointment is no
longer confidential.

¶¶ 5–8, 10, 13

GRANTED.

GRANTED.

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL

1

Motion to
Seal

Document

Page/Line

Ruling

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854

Declaration of Professor
Bénedicté Fauvarque-Cosson

First six
sentences of ¶ 11

GRANTED.

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854

Declaration of Professor
Bénedicté Fauvarque-Cosson

862

FTC’s Opposition to
Qualcomm’s Motion for
Leave
FTC’s Opposition to
Qualcomm’s Motion for
Leave

Portion of
seventh sentence
of ¶ 11
1:5–6, up to “.”

DENIED. The effective date
of the appointment is no
longer confidential.
GRANTED.

1:23–25,
between “.” And
“Decl.”

GRANTED.

FTC’s Opposition to
Qualcomm’s Motion for
Leave
FTC’s Opposition to
Qualcomm’s Motion for
Leave

4:2–4, between
“contrary” and
“Decl”
5:22–26,
between “trial”
and
“Qualcomm”

GRANTED.

FTC’s Opposition to
Qualcomm’s Motion for
Leave
Excerpts from the Deposition
of Professor Bénedicté
Fauvarque-Cosson

5:27–6:7,
beginning with
“other than”
Entire Document

GRANTED.

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862

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862

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United States District Court
Northern District of California

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862

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862

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862

GRANTED.

DENIED. Qualcomm no
longer seeks to seal this
information. ECF No. 863.

IT IS SO ORDERED.

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Dated: November 21, 2018
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 17-CV-00220-LHK
ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER
SEAL