Skillz Platform Inc. v. AviaGames Inc.

Filing 492

ORDER RE: 351 352 381 382 SEALING MOTIONS RELATED TO AVIAGAMES MOTIONS IN LIMINE. Signed by Judge Beth Labson Freeman on 11/13/23. (blflc2, COURT STAFF) (Filed on 11/13/2023)

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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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SKILLZ PLATFORM INC.,
Plaintiff,

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AVIAGAMES INC.,

[Re: ECF No. 351, 352, 381, 382]

Defendant.

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United States District Court
Northern District of California

ORDER ON SEALING MOTIONS RE:
AVIAGAMES MOTIONS IN LIMINE

v.

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Case No. 21-cv-02436-BLF

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Before the Court are Defendant AviaGames Inc.’s sealing motions relating to its motions

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in limine. ECF Nos. 351, 352, 381, 382. The Court has considered the motions, and its rulings

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are laid out below.

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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 and Cnty. 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)). Consequently, access to motions and their attachments that are

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“more than tangentially related to the merits of a case” may be sealed only upon a showing of

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“compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,

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1101–02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed

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upon a lesser showing of “good cause.” Id. at 1097.

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In addition, in this district, all parties requesting sealing must comply with Civil Local

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Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a

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document under seal, including an explanation of: (i) the legitimate private or public interests that

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warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive

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alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5

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requires the moving party to provide “evidentiary support from declarations where necessary.”

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Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable

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material.” Civ. L.R. 79-5(c)(3).
Further, when a party seeks to seal a document because it has been designated as

United States District Court
Northern District of California

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confidential by another party, the filing party must file an Administrative Motion to Consider

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Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing

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party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the

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party who designated the material as confidential must, within seven days of the motion’s filing,

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file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79-

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5(f)(3). A designating party’s failure to file a statement or declaration may result in the unsealing

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of the provisionally sealed document without further notice to the designating party. Id. Any

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party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4).

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II.

DISCUSSION
Because motions in limine seek to exclude evidence from the trial, the Court finds that

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they are more than tangentially related to the merits of the case and applies the compelling reasons

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standard. See MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103 WHA, 2022 WL

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1144634, at *1 (N.D. Cal. Mar. 9, 2022) (“Evidentiary motions such as motions in limine and

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Daubert motions can be strongly correlative to the merits of a case.”); Space Data Corp. v.

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Alphabet Inc., No. 16-CV-03260-BLF, 2019 WL 8012584, at *1 (N.D. Cal. July 18, 2019)

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(applying the compelling reasons standard to motions to seal related to motions in limine); Fed.

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Trade Comm'n v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 6575544, at *2 (N.D. Cal.

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Dec. 12, 2018) (same).

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A.

Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its
Motions in Limine (ECF No. 351)

AviaGames argues that the information it seeks to seal “describes and/or quotes from the

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Highly Confidential documents produced by AviaGames, including source code printouts, that
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contain aspects of AviaGames’ business practices and strategy, its products, and source code

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United States District Court
Northern District of California

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algorithms.” ECF No. 351 ¶ 3. Skillz did not file an opposition to the motion.

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Compelling reasons exist to seal trade secrets. Kamakana, 447 F.3d at 1179.

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“Confidential source code clearly meets the definition of a trade secret,” and it thus meets the

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compelling reasons standard. See Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846-

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LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012). And the “compelling reasons”

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standard is met for confidential business information that would harm a party’s competitive

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standing. See Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at

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*2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and

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proprietary information relating to the operations of both Plaintiff and Defendant”); Fed. Trade

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Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3,

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2019) (finding compelling reasons for “information that, if published, may harm [a party’s] or

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third parties’ competitive standing and divulges terms of confidential contracts, contract

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negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008)

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(finding sealable “business information that might harm a litigant’s competitive standing”).

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Although the Court finds compelling reasons to seal some of the information in

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AviaGames’ motions in limine and its exhibits, the Court finds that there are not compelling

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reasons to seal entire exhibits. In fact, such broad sealing requests are not “narrowly tailored to

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seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, AviaGames seeks to seal the

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entirety of four expert reports including the experts’ qualifications, for which there are no

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compelling reasons to seal.

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The Court rules as follows:
ECF No.
351-1

Document
AviaGames’ Motion in
Limine 1

Portions to Seal
Page 1:8–10

351-2

AviaGames’ Motion in
Limine 2

Highlighted
Portions

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Ruling
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive

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351-3

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351-4

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351-5

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351-6

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United States District Court
Northern District of California

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351-7

351-8

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Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

to seal specified redacted portions of these exhibits. The Court notes that redactions must be
“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).
B.

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Entire Document

The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed motion that seeks

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Ex. 1: Dr. Zagal’s
Supplemental Expert
Report dated October
13, 2023
Ex. 2: Mr. Bergman’s
Supplemental Expert
Report dated October
13, 2023
Ex. 8: Ex. B to Skillz’s
August 27, 2021
Infringement
Contentions
Ex. 9: Ex. B to Skillz’s
December 17, 2021
Amended Infringement
Contentions
Ex. 10: Dr. Zagal’s
Expert Report dated
May 26, 2023
Ex. 11: Dr. Zagal’s
Supplemental Report
dated June 19, 2023

harm.
DENIED as not narrowly
tailored.

Defendant AviaGames Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should be Sealed Relating to Its Motions in Limine
(ECF No. 352)

AviaGames filed an administrative motion to consider whether another party’s material
should be sealed in connection with its motions in limine. ECF No. 352. AviaGames identified
highlighted portions of its motions in limine and attached exhibits as containing information that
Skillz has designated as highly confidential. Id. at 1.
Skillz filed a statement in support of the motion. ECF No. 403. No party has filed an
opposition to the statement. Skillz states that the highlighted portions of ECF Nos. 352-1 and 3523 and the entirety of ECF Nos. 352-6, 352-7, 352-8, 352-9, 352-12, and 352-14 “contain
descriptions of Skillz’s proprietary technology, including explanations of Skillz’s efforts to
develop its own products.” Id. at 1. This information includes confidential business information

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about the development and operation of Skillz’s products, the release of which would cause Skillz

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to suffer competitive harm. Id. Because Skillz does not seek to seal ECF Nos. 352-2, 352-4, 352-

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5, 352-10, 352-11, and 352-13, the Court will DENY AviaGames’ motion with respect to those

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documents.

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source code and confidential business information that, if published, may harm a party’s

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competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at

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*2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

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United States District Court
Northern District of California

As noted above, compelling reasons exist to seal trade secrets, which includes confidential

Although the Court finds compelling reasons to seal some of the information that Skillz

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identifies in AviaGames’ motions in limine and the attached exhibits, the Court does not find

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compelling reasons to seal certain exhibits in their entirety. Such broad sealing requests are not

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“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, Skillz

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seeks to seal the entirety of two of Dr. Zagal’s expert reports, including his qualifications, for

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which there are no compelling reasons to seal.

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The Court rules as follows:
ECF No.
352-1

Document
AviaGames’ Motion in
Limine 1

Portions to Seal
Highlighted
Portions

352-2

AviaGames’ Motion in
Limine 2
AviaGames’ Motion in
Limine 4

Highlighted
Portions
Highlighted
Portions

Ex. 1: Dr. Zagal’s
Supplemental Expert
Report dated October
13, 2023
Ex. 2: Mr. Bergman’s
Supplemental Expert

Entire Document

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352-3
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352-4

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352-5

Entire Document
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Ruling
GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED because Skillz’s
statement did not request sealing.
GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED because Skillz’s
statement did not request sealing.
DENIED because Skillz’s
statement did not request sealing.

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352-6

Report dated October
13, 2023
Ex. 4:
SKLZPAT00057289

Entire Document

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352-7

Ex. 5:
SKLZPAT00466825
Ex. 6:
SKLZPAT00212701

Entire Document

352-9

Ex. 7:
SKLZPAT00016164

Entire Document

352-10

Ex. 8: Ex. B to Skillz’s
August 27, 2021
Infringement
Contentions
Ex. 9: Ex. B to Skillz’s
December 17, 2021
Amended Infringement
Contentions
Ex. 10: Dr. Zagal’s
Expert Report dated
May 26, 2023
Ex. 11: Dr. Zagal’s
Supplemental Report
dated June 19, 2023
Ex. 12: Dr. Zagal’s
deposition transcript

Entire Document

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352-8
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Entire Document

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10

United States District Court
Northern District of California

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352-11

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352-12

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352-13

352-14

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GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED as not narrowly
tailored.
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED because Skillz’s
statement did not request sealing.

Entire Document

DENIED because Skillz’s
statement did not request sealing.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED because Skillz’s
statement did not request sealing.

Entire Document

DENIED as not narrowly
tailored.

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The above denials are WITHOUT PREJUDICE to Skillz filing a renewed statement that seeks to

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seal specified redacted portions of these exhibits. The Court notes that redactions must be

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“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

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C.

Defendant AviaGames Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should be Sealed Relating to Its Motions in Limine #2
and #4 (ECF No. 381)

AviaGames filed an administrative motion to consider whether another party’s material
should be sealed in connection with motions in limine #2 and #4. ECF No. 381. AviaGames
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identified highlighted portions of its motions in limine and attached exhibits as containing

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information that Skillz has designated as highly confidential. Id. at 1.

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opposition to the statement. Skillz states that the highlighted portions of ECF Nos. 381-1 and 381-

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2 and the entirety of ECF Nos. 381-3, 381-4, 381-5, 381-6, 381-7, 381-8, 381-9, 381-10, 381-11,

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381-12 “contain descriptions of Skillz’s proprietary technology, including explanations of Skillz’s

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efforts to develop its own products.” Id. at 1. This information includes confidential business

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information about the development and operation of Skillz’s products, the release of which would

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cause Skillz to suffer competitive harm. Id.

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United States District Court
Northern District of California

Skillz filed a statement in support of the motion. ECF No. 428. No party has filed an

As noted above, compelling reasons exist to seal trade secrets, which includes confidential

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source code and confidential business information that, if published, may harm a party’s

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competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at

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*2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

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As above, the Court finds compelling reasons to seal some of the information that Skillz

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identifies in AviaGames’ motions in limine #2 and #4 and the attached exhibits, but the Court does

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not find compelling reasons to seal certain exhibits in their entirety. Such broad sealing requests

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are not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example,

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Skillz seeks to seal the entirety of two of Dr. Bergman’s expert reports, including his

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qualifications, for which there are no compelling reasons to seal.

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The Court rules as follows:
ECF No.
381-1

Document
AviaGames’ Motion in
Limine 2

Portions to Seal
Highlighted
Portions

381-2

AviaGames’ Motion in
Limine 4

Highlighted
Portions

381-3

Ex. 13: Opening Report Entire Document
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Ruling
GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive
harm.
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED as not narrowly

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381-4

2

of Jim W. Bergman
Exhibit 14:
SKLZPAT0005708

Entire Document

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4

381-5

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7

381-6

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Exhibit 15: Second
Supplemental Expert
Report of Jim Bergman
served October 13,
2023
Exhibit 16:
SKILPAT00000798

Entire Document

Exhibit 19: June 6,
2023 deposition
transcript of Casey
Chafkin
Exhibit 20: Jim
Bergman Deposition
Transcript (excerpted)
Exhibit 21: Andrew
Paradise Deposition
Transcript
Exhibit 22: Opening
Expert Report of Jose
P. Zagal Regarding
Infringement
Exhibit 23: May 12,
2023 deposition
transcript of Casey
Chafkin
Exhibit 24: Jose Zagal
Deposition Transcript
(excerpted)

Entire Document

Entire Document

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381-7

United States District Court
Northern District of California

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12

381-8

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14

381-9

15
16

381-10

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381-11

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381-12

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tailored.
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED as not narrowly
tailored.

GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

The above denials are WITHOUT PREJUDICE to Skillz filing a renewed statement that seeks to
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seal specified redacted portions of these exhibits. The Court notes that redactions must be
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“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

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D.

Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its
Motions in Limine #2 and #4 (ECF No. 382)

AviaGames argues that the information it seeks to seal “describes and/or quotes from the
Highly Confidential documents produced by AviaGames, including source code printouts, that
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contain aspects of AviaGames’ business practices and strategy, its products, and source code

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algorithms.” ECF No. 382 ¶ 3. Skillz did not file an opposition to the motion.

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4

source code and confidential business information that, if published, may harm a party’s

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competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at

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*2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

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United States District Court
Northern District of California

As noted above, compelling reasons exist to seal trade secrets, which includes confidential

As above, the Court finds compelling reasons to seal some of the information in

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AviaGames’ motions in limine #2 and #4 and the attached exhibits, but the Court finds that there

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are not compelling reasons to seal entire exhibits. In fact, such broad sealing requests are not

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“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example,

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AviaGames seeks to seal the entirety of three expert reports including the experts’ qualifications,

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for which there are no compelling reasons to seal.

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The Court rules as follows:
ECF No.
382-2

Document
AviaGames’ Motion in
Limine No. 2 to
Exclude New “Bot”
Arguments

Portions to Seal
Highlighted
Portions

382-3

AviaGames’ Motion in
Limine No. 4 to
Exclude Certain
Opinions of Jim. W.
Bergman and Jose P.
Zagal
Ex. 13: Opening Report
of Jim W. Bergman
Exhibit 15: Second
Supplemental Expert
Report of Jim Bergman
served October 13,
2023
Exhibit 20: Jim
Bergman Deposition
Transcript (excerpted)
Exhibit 22: Opening
Expert Report of Jose

Highlighted
Portions

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22

382-4

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382-5

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25
26

382-6

27
28

382-7

Entire Document
Entire Document

Ruling
GRANTED as containing
confidential source code and
confidential business
information, the release of which
would cause a party competitive
harm.
GRANTED as containing
confidential business
information, the release of which
would cause a party competitive
harm.
DENIED as not narrowly
tailored.
DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED as not narrowly
tailored.

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P. Zagal Regarding
Infringement

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2

The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed motion that seeks

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to seal specified redacted portions of these exhibits. The Court notes that redactions must be

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“narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

United States District Court
Northern District of California

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III.

ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motions

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in Limine (ECF No. 351) is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN

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PART. AviaGames may file a renewed motion with more narrow redactions within 7 days of the

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date of this Order.

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2.

Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another

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Party’s Material Should be Sealed Relating to Its Motions in Limine (ECF No. 352) is GRANTED

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IN PART and DENIED WITHOUT PREJUDICE IN PART. Skillz may file a renewed statement

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in support of sealing with more narrow redactions of the documents for which the Court denied

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sealing as not narrowly tailored within 7 days of the date of this Order.

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3.

Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another

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Party’s Material Should be Sealed Relating to Its Motions in Limine #2 and #4 (ECF No. 381) is

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GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. Skillz may file a

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renewed statement in support of sealing with more narrow redactions within 7 days of the date of

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this Order.

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4.

Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motions

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in Limine #2 and #4 (ECF No. 382) is GRANTED IN PART and DENIED WITHOUT

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PREJUDICE IN PART. AviaGames may file a renewed motion with more narrow redactions

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within 7 days of the date of this Order.

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Dated: November 13, 2023
______________________________________
BETH LABSON FREEMAN
United States District Judge
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