Amazon.com, Inc. et al v. Personal Web Technologies, LLC et al

Filing 363

ORDER on Administrative Motions to Consider Whether Another Party's Material Should Be Sealed; re 859 863 in 5:18-md-02834-BLF. Signed by Judge Susan van Keulen on 4/13/2023. (svklc1, COURT STAFF) (Filed on 4/13/2023)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

In re PERSONALWEB TECHNOLOGIES,
LLC ET AL. PATENT LITIGATION.

10

ORDER ON ADMINISTRATIVE
MOTIONS TO CONSIDER WHETHER
ANOTHER PARTY’S MATERIAL
SHOULD BE SEALED

11

Re: -2834 Dkt. Nos. 859, 863

9

United States District Court
Northern District of California

Case No. 18-md-02834-BLF (SVK)
Case No. 18-cv-00767-BLF (SVK)
Case No. 18-cv-05619-BLF (SVK)

12
13
14

Before the Court are Amazon’s administrative motions to consider whether other parties’
material should be sealed. Dkt. 859, 863 (“Motions to Seal”). The subject of the Motions to Seal
are certain documents filed with (1) the Joint Submission Regarding Amazon’s Motion to Compel

15
Production of Documents that the PersonalWeb Investors Have Improperly Withheld as Privileged
16

(Dkt. 860), and (2) the Supplemental Submission Regarding Amazon’s Motion to Compel

17
Production of Documents that the PersonalWeb Investors Have Improperly Withheld as Privileged
18
19

(Dkt. 864). Dkt. 859, 863. The subject documents were designated as “Attorneys’ Eyes Only” or
“Confidential” by non-party investors in PersonalWeb under the stipulated protective order in this

20
case. Id.
21
22
23

This District’s Civil Local Rules require that when a filing party seeks to seal a document
because it has been designated as confidential by another party or non-party (the “Designating
Party”), the filing party must file an Administrative Motion to Consider Whether Another Party’s

24
Material Should Be Sealed, as Amazon has done by filing the Motions to Seal. Civ. L.R. 79-5(f).
25
The Designating Party is then required to file a statement and/or declaration within 7 days that
26
includes:
27
28

(1) a specific statement of the applicable legal standard and the reasons for keeping

1

a document under seal, including an explanation of:

United States District Court
Northern District of California

2
3

(i) the legitimate private or public interests that warrant sealing;

4

(ii) the injury that will result if sealing is denied; and

5

(iii) why a less restrictive alternative to sealing is not sufficient;

6

(2) evidentiary support from declarations where necessary; and

7

(3) a proposed order that is narrowly tailored to seal only the sealable material, and

8

which lists in table format each document or portion thereof that is sought to be

9

sealed.

10

Civ. L.R. 79-5(f)(3); 79-5(c)(1). For records attached to motions that re “not related, or only

11

tangentially related, to the merits of the case,” such as discovery motions, the party seeking to seal

12

court records must show “good cause” to overcome the “strong presumption in favor of access” to

13

judicial records and documents. See Ctr. For Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099

14

(9th Cir. 2016); Kamakana v. City & Cnty. Of Honolulu, 447 F.3d 1172, 1178, 1179 (9th Cir.

15

2006).

16

The Motion to Seal at Dkt. 859 was filed on March 24, 2023, but as of the date of this

17

Order the Designating Party (non-party Brilliant Digital Entertainment) has not filed the

18

declaration/statement required under Civil Local Rule 79-5(f)(3). By contrast, the Designating

19

Parties (non-parties Brilliant Digital Entertainment, Monto Holdings, Europlay Capital Advisors,

20

and Claria Innovations (collectively, the “Investors”)) did file a response to the Motion to Seal at

21

Dkt. 863. Dkt. 866. In their response, the Investors acknowledge the requirements set forth above

22

but argue that it is “overly burdensome” to respond to each document that Amazon has

23

provisionally filed under seal in the time frame stated in Rule 79-5. Id. at 2. They further state

24

that “when the Court has already decided that certain documents should be shielded from public

25

access pursuant to a protective order, the party designating the same as confidential or attorneys

26

eyes only is not required to come forward with a showing of good cause for sealing when such

27

documents are filed with a non-dispositive motion.” Id. at 2-3 (citing Phillips ex rel Estate of

28

Byrd v. General Motion Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)).
2

United States District Court
Northern District of California

1

To the extent the Investors suggest that the subject documents should be sealed simply

2

because they designated the documents as confidential under the Amended Protective Order in this

3

case, this District’s Civil Local Rules, as well as the Amended Protective Order itself, provide

4

otherwise. See Civ. L.R. 79-5(c) (“Reference to a stipulation or protective order that allows a

5

party to designate certain documents as confidential is not sufficient to establish that a document,

6

or portions thereof, are sealable.”); Dkt. 427 § 1 (acknowledgments in the Amended Protective

7

Order in this case that “this order does not confer blanket protections on all disclosures or

8

responses to discovery” and “the protection it affords from public disclosure and use extends only

9

to the limited information or items that are entitled to confidential treatment under the applicable

10

legal principles” and stating that “Civil Local Rule 79-5 sets forth the procedures that must be

11

followed and the standards that will be applied when a party seeks permission from the Court to

12

file material under seal”); id. at § 15.4 (stating that “[p]ursuant to Civil Local Rule 79-5, a sealing

13

order will issue only upon a request establishing that the Protected Material at issue is privileged,

14

protectable as a trade secret, or otherwise entitled to protection under the law”); see also Dkt. 786

15

(order granting stipulation to extend provisions of Amended Protective Order to Investors).

16

Simply put, “a blanket protective order that allows the parties to designate confidential documents

17

does not provide sufficient judicial scrutiny to determine whether each particular document should

18

remain sealed.” Jones v. PGA Tour, Inc., No. 22-cv-4486-BLF, 2023 WL 2232094, at *1 (N.D.

19

Cal. Feb. 23, 2023); see also Phillips, 307 F.3d at 1211 n.1 (“the burden of proof will remain with

20

the party seeking protection when the protective order was a stipulated order and no party had

21

made a ‘good cause’ showing”).

22

In the present circumstances, the Court declines the Investors’ suggestion that “the

23

resources of the Court are better utilized focusing on the merits of Amazon’s underlying motion to

24

compel as opposed to being side-tracked on a document-by-document determination of good cause

25

for the claimed confidential treatment” and that the Court simply “enter the proposed order

26

granting Amazon’s motion.” Dkt. 866 at 3. Although the Investors did not seek additional time to

27

file the statements/declarations required under Civil Local Rule 79-5(f)(3) in connection with the

28

Motions to Seal, the Court will provide them one final opportunity to do so. The Investors must
3

1

file the required statements/declarations in response to the Motions to Seal at Dkts. 859 and 863

2

no later than April 27, 2023. Failure to file the statements/declarations by this deadline will result

3

in denial of the Motions to Seal without further notice to the Investors or other Parties.

4
5

SO ORDERED.
Dated: April 13, 2023

6
7
SUSAN VAN KEULEN
United States Magistrate Judge

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4