Proofpoint, Inc. v. BTM Comercio de Equipamentos e Softwares de Informatica et al

Filing 63

ORDER GRANTING #48 PLAINTIFF'S UNOPPOSED ADMINISTRATIVE MOTION TO SEAL. Signed by Judge Beth Labson Freeman on 3/26/2018. (blflc2S, COURT STAFF) (Filed on 3/26/2018)

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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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PROOFPOINT, INC.,
Plaintiff,

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v.

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Case No. 17-cv-06065-BLF

BTM COMERCIO DE EQUIPAMENTOS E
SOFTWARES DE INFORMATICA, et al.,

ORDER GRANTING PLAINTIFF’S
UNOPPOSED ADMINISTRATIVE
MOTION TO SEAL
[Re: ECF 48]

Defendants.

United States District Court
Northern District of California

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Before the Court is Plaintiff Proofpoint, Inc.’s (“Proofpoint”) motion to file under seal

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portions of its opposition to Defendants’ motion to dismiss, or alternatively to stay, and supporting

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materials. ECF 48. The motion is unopposed. For the reasons discussed below, the Court

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GRANTS Proofpoint’s motion to seal.

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

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United States District Court
Northern District of California

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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.

DISCUSSION
Because Proofpoint’s sealing motion relates to a motion to dismiss a complaint, which is

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more than tangentially related to the merits of the case, the instant motion is resolved under the

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compelling reasons standard. The Court has reviewed Proofpoint’s sealing motion and the

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declaration of Michael Yang in support thereof. See ECF 50 (“Yang Decl.”). The Court also

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United States District Court
Northern District of California

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notes that Defendants have stipulated to the proposed redactions. See ECF 48-1.
According to the Yang declaration, some of the documents relied on in the opposition and

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attached as exhibits contain confidential and commercially sensitive information regarding

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Proofpoint’s contracts with Defendants. Yang Decl. ¶ 18. Yang represents that Proofpoint’s

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distributor and reseller contracts are confidential and proprietary to Proofpoint and are not publicly

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available. Id. Proofpoint also seeks to seal additional exhibits attached to the Declaration of

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David Ho. See ECF 59. Proofpoint requests a narrowly tailored redaction of these exhibits to

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remove contact information of current and former Proofpoint employees, such as email addresses

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and telephone numbers, as well as confidential pricing information negotiated between Proofpoint

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and its channel partners. Yang Decl. ¶¶ 19-20. In addition, Proofpoint moves to file under seal

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the Declaration of Craig Hirst, and portions of Proofpoint’s Opposition brief that rely on and

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paraphrase the Hirst Declaration, because Mr. Hirst describes Proofpoint’s confidential and

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proprietary information that, if publicly disclosed, could cause substantial harm to Proofpoint’s

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competitive advantage. Id. ¶ 21.

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The Court finds that Proofpoint has articulated compelling reasons to seal the requested

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portions of the opposition and supporting materials. The proposed redactions are also narrowly

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tailored to exclude only sealable material. The Court’s rulings on the sealing motion are set forth

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in the table below:

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ECF
No.
50-1

Document to be
Sealed
Yang Declaration,
Exhibit 1: Indirect
Reseller
Agreement
between BTM
and Proofpoint

50-1

Yang Declaration,
Exhibit 2: Indirect
Reseller
Agreement
between Sybex
and Proofpoint

50-1

Yang Declaration, GRANTED.
Exhibit 3: Limited
International
Reseller
Agreement
between Synus
and Proofpoint

50-1

Yang Declaration,
Exhibit 4: Direct
Reseller
Agreement
between
BBCenter and
Proofpoint

GRANTED.

50-1

Yang Declaration,
Exhibit 5: Hosted
Service Provider
Agreement
between BTM
and Proofpoint

GRANTED.

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Result

Reasoning

GRANTED.

The entire exhibit contains highly confidential
information on Proofpoint’s reseller contract
with BTM, which is confidential, proprietary
to Proofpoint, not publicly available, and the
disclosure of which would cause competitive
and business harm to Proofpoint, a leading
provider of cybersecurity solutions to
enterprises around the world. Yang Decl.
¶ 18, ECF 50.
The entire exhibit contains highly confidential
information on Proofpoint’s reseller contract
with Sybex, which is confidential, proprietary
to Proofpoint, not publicly available, and the
disclosure of which would cause competitive
and business harm to Proofpoint, a leading
provider of cybersecurity solutions to
enterprises around the world. Yang Decl.
¶ 18.
The entire exhibit contains highly confidential
information on Proofpoint’s reseller contract
with Synus, which is confidential, proprietary
to Proofpoint, not publicly available, and the
disclosure of which would cause competitive
and business harm to Proofpoint, a leading
provider of cybersecurity solutions to
enterprises around the world. Yang Decl.
¶ 18.
The entire exhibit contains highly confidential
information on Proofpoint’s reseller contract
with BBCenter, which is confidential,
proprietary to Proofpoint, not publicly
available, and the disclosure of which would
cause competitive and business harm to
Proofpoint, a leading provider of cybersecurity
solutions to enterprises around the world.
Yang Decl. ¶ 18.
The entire exhibit contains highly confidential
information on Proofpoint’s hosted service
provide agreement with BTM, which is
confidential, proprietary to Proofpoint, not
publicly available, and the disclosure of which
would cause competitive and business harm to
Proofpoint, a leading provider of cybersecurity
solutions to enterprises around the world.
Yang Decl. ¶ 18.

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United States District Court
Northern District of California

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GRANTED.

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59

Ho Declaration,
GRANTED as to
Exhibit 13:
the highlighted
October 5, 2015
portions.
email chain
between Charles
Drehmer and
Proofpoint
representative
titled “Re: PO #70
#71 – BTM,” with
attachments

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Hirst Declaration

GRANTED.

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Proofpoint’s Brief
in Opposition to
Motion to
Dismiss

GRANTED as to
highlighted
portions at page
6, line 22
through page 7
line 13.

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United States District Court
Northern District of California

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The redacted portions of the exhibit contain
contact information of current and former
Proofpoint employees, such as emails and
telephone numbers. Yang Decl. ¶ 19.
Proofpoint’s cybersecurity solutions protect its
customers from attacks perpetrated by third
party bad actors who often use personal
information to refine and enhance their
cyberattacks and to fraudulently induce
victims into harmful communications and
transactions. Id. As such, Proofpoint has a
vested interest in limiting unnecessary public
access to personal information in order to limit
the ability of bad actors to misuse such
information. Id. Exhibit 13 also contains
sensitive, confidential pricing information
negotiated between Proofpoint and its channel
partners, disclosure of which would cause
business harm to Proofpoint. Id. ¶ 20.
The entire Hirst Declaration contains highly
confidential information describing the inner
workings, process, and timing of how
Proofpoint deploys a cluster for its end users.
Yang Decl. ¶ 21. This information is
confidential and proprietary to Proofpoint and,
if publicly disclosed, could cause substantial
harm to Proofpoint’s competitive marketing
advantage. Id.
The redacted portions of Proofpoint’s
opposition describe in detail the technology
involved in this dispute, which is highly
sensitive commercial information regarding
the timing of how Proofpoint deploys a cluster
for its end users, as described in the Hirst
Declaration (ECF 57). If disclosed, this
information could cause business harm to
Proofpoint. Yang Decl. ¶¶ 21.

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For the foregoing reasons, the sealing motion at ECF 48 is GRANTED.

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IT IS SO ORDERED.

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Dated: March 26, 2018

______________________________________
BETH LABSON FREEMAN
United States District Judge
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