Skillz Platform Inc. v. AviaGames Inc.

Filing 494

ORDER RE: 355 367 369 371 SEALING MOTIONS RELATED TO SKILLZ MOTIONS IN LIMINE. Signed by Judge Beth Labson Freeman on 11/13/23. (blflc2, COURT STAFF) (Filed on 11/13/2023)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
7

SKILLZ PLATFORM INC.,
Plaintiff,

8
v.

9
10

AVIAGAMES INC.,
Defendant.

11

United States District Court
Northern District of California

Case No. 21-cv-02436-BLF
ORDER ON SEALING MOTIONS RE:
SKILLZ PLATFORM MOTIONS IN
LIMINE
[Re: ECF No. 355, 367, 369, 371]

12
Before the Court are Plaintiff Skillz Platform Inc.’s sealing motions relating to its motions

13
14

in limine. ECF Nos. 355, 367, 369, 371. The Court has considered the motions, and its rulings

15

are laid out below.

16
17

I.

LEGAL STANDARD
“Historically, courts have recognized a ‘general right to inspect and copy public records

18

and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of

19

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

20

U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

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

5
6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14
15

II.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

Dec. 12, 2018) (same).

24
25

A.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #1
(ECF No. 355)

26

Skillz filed an administrative motion to consider whether another party’s material should

27

be sealed in connection with its motion in limine #1. ECF No. 355. Skillz identified exhibit 1 in

28

support of its motion in limine as containing information that AviaGames has designated as highly
2

1

United States District Court
Northern District of California

2

confidential. Id. at 1.
AviaGames filed a statement in support of the motion. ECF No. 403. No party has filed

3

an opposition to the statement. AviaGames states that the exhibit contains “confidential business

4

communications and descriptions of the operation of its source code that reveal sensitive details

5

regarding the technical operation of AviaGames’ products.” Id. ¶ 4.

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

the Court finds that AviaGames’ request to seal the entire document is not “narrowly tailored to

21

seal only the sealable material.” Civ. L.R. 79-5(c)(3). Much of the content of the exhibit

22

discusses publicly available information, for which there are no compelling reasons to seal.

23
24
25
26
27
28

The Court rules as follows:
ECF No.
355-2

Document
Portions to Seal
Exhibit 1 to the
Entire Document
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s
Motion in Limine No. 1
3

Ruling
DENIED as not narrowly
tailored.

to Exclude Evidence or
Argument Relating to
Unasserted or
Invalidated Claims and
Patents

1
2
3
4

The above denial is WITHOUT PREJUDICE to AviaGames filing a renewed statement that seeks

5

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

6

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

7
8

United States District Court
Northern District of California

9

B.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #2
(ECF No. 367)

Skillz filed an administrative motion to consider whether another party’s material should

10

be sealed in connection with its motion in limine #2. ECF No. 367. Skillz identified its motion in

11

limine #2 and certain attached exhibits as containing information that AviaGames has designated

12

as highly confidential. Id. at 1.

13

AviaGames filed a statement in support of the motion. ECF No. 393. No party has filed

14

an opposition to the statement. AviaGames requests that Skillz’s motion in limine #2 and exhibit

15

1 remain under seal because they discuss AviaGames’ confidential business information,

16

including AviaGames’s business plan, structure and strategy. Id. ¶¶ 1–2. AviaGames requests

17

that exhibits, 2, 6, and 7 and the proposed order should remain under seal because they contain

18

confidential business information relating to the backend operation of AviaGames’ servers and

19

source code. Id. ¶¶ 3–6. The Court observes that Skillz’s motion and AviaGames’ statement fail

20

to discuss exhibit 5, which Skillz also filed under seal. Because the Court believes this is an

21

oversight on the part of the parties, the Court DENIES sealing with respect to exhibit 5 without

22

prejudice to AviaGames filing a statement in support of sealing it.

23

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

24

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

25

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

26

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

27
28

Although the Court finds compelling reasons to seal some of the information that
AviaGames identifies in Skillz’s motion in limine #2 and the attached exhibits, the Court does not
4

1

find compelling reasons to seal certain exhibits in their entirety. Such broad sealing requests are

2

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

3

AviaGames seeks to seal the entirety Dr. Bergman’s supplemental expert report, including his

4

qualifications, and the entirety of the proposed order, including the caption.

5
6
7

The Court rules as follows:
ECF No.
367-2

8
9
10

367-3

United States District Court
Northern District of California

11
12
13
14
15
367-4
16
17
18
19
20
21

367-5

22
23
24
25
26
27
28

367-6

Document
Plaintiff Skillz
Platform Inc.’s Motion
in Limine No. 2 to
Exclude Reasonable
Royalty Opinion of
Brian Napper
Exhibit 1 to the
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s
Motion in Limine No. 2
to Exclude Reasonable
Royalty Opinion of
Brian W. Napper
Exhibit 2 to the
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s
Motion in Limine No. 2
to Exclude Reasonable
Royalty Opinion of
Brian W. Napper
Exhibit 5 to the
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s
Motion in Limine No. 2
to Exclude Reasonable
Royalty Opinion of
Brian W. Napper
Exhibit 6 to the
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s

Portions to Seal
Highlighted
Portions

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

Entire Document

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

Entire Document

DENIED as not narrowly
tailored.

Entire Document

DENIED because neither party
supported sealing.

Entire Document

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

5

1
2
3

367-7

4
5
6
7
8

367-8

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

Motion in Limine No. 2
to Exclude Reasonable
Royalty Opinion of
Brian W. Napper
Exhibit 7 to the
Entire Document
Declaration of
Christopher Campbell
in Support of Plaintiff
Skillz Platform Inc.’s
Motion in Limine No. 2
to Exclude Reasonable
Royalty Opinion of
Brian W. Napper
[PROPOSED] Order
Entire Document
Granting Skillz’s
Motion in Limine No. 2

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

DENIED as not narrowly
tailored.

The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed statement that
seeks 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).
C.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #3
(ECF No. 369)

Skillz filed an administrative motion to consider whether another party’s material should
be sealed in connection with its motion in limine #3. ECF No. 369. Skillz identified its motion in
limine #3 and certain attached exhibits as containing information that AviaGames has designated
as highly confidential. Id. at 1.
AviaGames filed a statement in support of the motion. ECF No. 394. No party has filed
an opposition to the statement. AviaGames requests that the highlighted portions of Skillz’s
motion in limine #3 and the entirety of exhibits A, B, and C should remain under seal because they
discuss or include confidential business information relating to the backend operation of
AviaGames’ servers and source code. Id. ¶¶ 1–4.
As noted above, compelling reasons exist to seal trade secrets, which includes confidential
source code and confidential business information that, if published, may harm a party’s
competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at
*2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

28
6

1
2

AviaGames identifies in Skillz’s motion in limine #3 and the attached exhibits, the Court does not

3

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

4

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

5

AviaGames seeks to seal the entirety Mr. Napper’s expert report, including his qualifications.

6

Similarly, AviaGames puzzlingly seeks to seal the entirety of its opposition to Skillz’s motion for

7

leave to file a third amended complaint in the copyright case, a document that AviaGames filed on

8

the public docket in the copyright case with redactions, rather than sealing it in its entirety.

9
10
11

United States District Court
Northern District of California

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

The Court rules as follows:
ECF No.
369-2

12

Document
Plaintiff’s Notice of
Motion and Motion in
Limine No. 3

Portions to Seal
Highlighted
Portions

13
14

369-3

15
16
17

369-4

18
19
369-5
20
21
22

Exhibit A to the
Entire Document
Declaration of
Christopher Campbell
in Support of Plaintiff’s
Motion in Limine 3
Exhibit B to the
Entire Document
Declaration of
Christopher Campbell
in Support of Plaintiff’s
Motion in Limine 3
Exhibit C to the
Entire Document
Declaration of
Christopher Campbell
in Support of Plaintiff’s
Motion in Limine 3

Ruling
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.

DENIED as not narrowly
tailored.

23

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

24

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

25

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

26
27
28

D.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether
Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #4
(ECF No. 371)

Skillz filed an administrative motion to consider whether another party’s material should
7

1

be sealed in connection with its motion in limine #4. ECF No. 371. Skillz identified its motion in

2

limine #4 as containing information that AviaGames has designated as highly confidential. Id. at

3

1.
AviaGames filed a statement in support of the motion. ECF No. 395. No party has filed

4
5

an opposition to the statement. AviaGames argues that the highlighted portions of Skillz’s motion

6

in limine #4 discuss AviaGames’ confidential business information. Id. ¶ 1.
As noted above, compelling reasons exist to seal trade secrets, which includes confidential

7
8

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

9

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

10

*2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.
The Court finds compelling reasons to seal in the information identified in the highlighted

United States District Court
Northern District of California

11
12

portions of Skillz’s motion in limine #4 and finds that AviaGames’ request to seal is “narrowly

13

tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).
The Court rules as follows:

14
15
16

ECF No.
371-2

17
18
19
20
21

III.

Document
Plaintiff’s Notice of
Motion and Motion in
Limine to Exclude
Evidence Regarding
Employee Wealth and
Compensation and
Skillz’s Financial
Condition

Portions to Seal
Highlighted
Portions

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

ORDER

22

For the foregoing reasons, IT IS HEREBY ORDERED that:

23

1.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether

24

Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #1 (ECF No. 355) is

25

DENIED WITHOUT PREJUDICE. AviaGames may file a renewed statement in support of

26

sealing with more narrow redactions within 7 days of the date of this Order.

27
28

2.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether

Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #2 (ECF No. 367) is
8

1

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

2

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

3

this Order.

4

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether

5

Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #3 (ECF No. 369) is

6

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

7

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

8

this Order.

9

United States District Court
Northern District of California

3.

4.

Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether

10

Another Party’s Material Should Be Sealed Relating to Its Motion in Limine #4 (ECF No. 371) is

11

GRANTED.

12
13
14
15

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

16
17
18
19
20
21
22
23
24
25
26
27
28
9