Apple Inc. v. Qualcomm Incorporated

Filing 1143

ORDER Granting Motions to File Under Seal ( 887 890 894 897 900 903 906 909 912 915 916 920 924 925 930 934 935 940 944 947 950 951 956 957 962 964 968 969 972 976 991 995 1000 1004 1007 1011 1016 1021 1033 1049 1052 1056 1059 ). Signed by Judge Gonzalo P. Curiel on 4/9/19. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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12 IN RE:
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14 QUALCOMM LITIGATION,
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Case No. 3:17-CV-00108-GPC-MDD
[Consolidated with 3:17-CV-01010-GPCMDD]
ORDER GRANTING MOTIONS TO
SEAL
[ECF Nos.: 887, 890, 894, 897, 900, 903,
906, 909, 912, 915, 916, 920, 924, 925,
930, 934, 935, 940, 944, 947, 950, 951,
956, 957, 962, 964, 968, 969, 972, 976,
991, 995, 1000, 1004, 1007, 1011, 1012,
1016, 1021, 1033, 1049, 1052, 1056,
1059.]

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Before the Court are numerous requests to seal portions of the parties’ replies and

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responses to motions in limine, Daubert motions, expert witness reports in support of

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those briefings, and other pre-trial motions with respect to authenticity and foundation

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objections as well as trial order and evidence presentation in Case No. 3:17-cv-00108-

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GPC-MDD, ECF Nos. 887, 890, 894, 897, 900, 903, 906, 909, 912, 915, 916, 920, 924,

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925, 930, 934, 935, 940, 944, 947, 950, 951, 956, 957, 962, 964, 968, 969, 972, 976, 991,

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995, 1000, 1004, 1007, 1011, 1012, 1016, 1021, 1033, 1049, 1052, 1056, 1059. No

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oppositions have been filed. Upon review of the moving papers, the information to be

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sealed, the applicable law, and for the following reasons, the Court GRANTS each of the

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motions in their entirety.

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LEGAL STANDARD

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There is a presumptive right of public access to court records based upon the

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common law and the first amendment. See Nixon v. Warner Commc’ns, Inc., 435 U.S.

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589, 597 (1978); Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206,

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1212-13 (9th Cir. 2002). Nonetheless, access may be denied to protect sensitive

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confidential information. Courts are more likely to protect information covered by Rule

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26(c) of the Federal Rules of Civil Procedure, but are not limited by items listed in

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protective orders. See KL Group v. Case, Kay, & Lynch, 829 F.2d 909, 917-19 (9th Cir.

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1987) (letter to client from attorney); Kalinauskas v. Wong, 151 F.R.D. 363, 365-67

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(D. Nev. 1993) (confidential settlement agreement).

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“Unless a particular court record is one traditionally kept secret, a strong

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presumption in favor of access is the starting point.” Kamakana v. City & Cty. of

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Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto.

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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “In order to overcome this strong

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presumption, a party seeking to seal a judicial record must articulate justifications for

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sealing that outweigh the historical right of access and the public policies favoring

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disclosure.” Id. at 1178-79.

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The presumption of access is “based on the need for federal courts, although

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independent—indeed, particularly because they are independent—to have a measure of

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accountability and for the public to have confidence in the administration of justice.”

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United States v. Amodeo (Amodeo II ), 71 F.3d 1044, 1048 (2d Cir.1995); see also Valley

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Broad. Co. v. U.S. Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th Cir.1986) (explaining

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that the presumption of public access “promot[es] the public's understanding of the

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judicial process and of significant public events”).

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Accordingly, “[a] party seeking to seal a judicial record then bears the burden of
overcoming this strong presumption by meeting the ‘compelling reasons' standard.”

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Kamakana, 447 F.3d at 1178. Under this stringent standard, a court may seal records only

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when it finds “a compelling reason and articulate[s] the factual basis for its ruling,

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without relying on hypothesis or conjecture.” Id. at 1179. The court must then

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“conscientiously balance[ ] the competing interests of the public and the party who seeks

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to keep certain judicial records secret.” Id. (quoting Foltz, 331 F.3d at 1135) (alteration in

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original) (internal quotation marks omitted). What constitutes a “compelling reason” is

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“best left to the sound discretion of the trial court.” Nixon, 435 U.S. at 599.

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Previously, some courts applied a “compelling reason” or “good cause” standard

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for sealing depending on whether the pending motion was dispositive or non-dispositive.

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E.g., Kamakana, 447 F.3d at 1180 (9th Cir. 2006) (parties seeking to seal documents in a

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dispositive motion must provide “compelling reasons” to support a sealing whereas for

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non-dispositive motions the parties must show a lesser “particularized showing” under

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the “good cause” standard pursuant to Federal Rule of Civil Procedure 26(c)); Phillips ex

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rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (when a

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party attaches a sealed discovery document to a nondispositive motion, the usual

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presumption of the public's right of access is rebutted).

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Other courts rejected this binary approach. In re Midland National Life Insurance

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Company Annuity Sales Practices Litigation, 686 F.3d 1115 (9th Cir.2012), is one such

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case that rejected the literal dispositive/nondispositive label. In that case, an intervenor
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moved to unseal documents attached to a Daubert motion. Id. at 1118. The district court,

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like the district court here, concluded that the documents should remain under seal

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because “the Daubert motion was non-dispositive,” as it “would not have been a

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determination on the merits of any claim or defense.” Id. at 1119. The Ninth Circuit

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rejected the district court's focus on whether the motion was literally “dispositive”: “That

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the records are connected to a Daubert motion does not, on its own, conclusively resolve

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the issue.” Id. As the motion, in effect, “pertain[ed] to central issues bearing on

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defendant's summary judgment motion,” we treated that motion as dispositive. Id.

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Similarly, the court in Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1100

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(9th Cir. 2016) observed that it would not allow the technically nondispositive nature of a

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Daubert motion to cloud the reality that it was able to significantly affect the disposition

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of the issues in the case.

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Here, the motions to seal relate to numerous evidentiary and pre-trial motions.

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This Court will apply the “compelling reasons” standard to these motions and related

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briefing as those submissions pertain to central issues at trial and are “more than

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tangentially related to the underlying cause of action.” Ctrs. for Auto Safety v. Chrysler

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Grp., 809 F.3d 1092, 1099 (9th Cir. 2016).

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Compelling reasons for sealing information exist “when such ‘court files might

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have become a vehicle for improper purposes,’ such as the use of records to gratify

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private spite, promote public scandal, circulate libelous statements, or release trade

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secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). Trade secrets

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“may consist of any formula, pattern, device or compilation of information which is used

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in one’s business, and which gives him an opportunity to obtain advantage over

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competitions who do not know or use it.” Restatement (First) of Torts § 757 cmt. b.

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Because trade secrets concern proprietary and sensitive business information not

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available to the public, sealing may be warranted where disclosure would harm a

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litigant’s competitive standing. Nixon, 425 U.S. at 598.

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The Ninth Circuit has explicitly recognized that compelling reasons exist for the

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sealing of “pricing terms, royalty rates, and guaranteed minimum payment terms” of

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license agreements. See In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008).

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Courts in this circuit have also recognized that information subject to confidentiality

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agreements may also meet the “compelling reasons” standard when accompanied by a

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particularized factual showing. See Foltz, 331 F.3d at 1137-38.

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DISCUSSION
The overwhelming majority of information that the parties seek to seal constitutes

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confidential business information of the parties, including trade secrets, proprietary

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business records, discussions of internal strategy, company dealings, and materials

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designated as “Highly Confidential.” For the reasons that follow, the Court concludes

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that the parties have demonstrated that compelling reasons exist for sealing the

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information subsumed by these categories.

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First, the Court is convinced that good cause exists to seal the unredacted portions

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of these motions and the requisite exhibits that detail sensitive financial terms, royalty

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agreements, proprietary business strategies, and confidential licensing negotiations. Each

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of the parties has articulated that public disclosure of the information they seek to seal

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would harm their competitive standing by concurrently releasing such information to

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market competitors. Additionally, the parties have submitted declarations for each of

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these motions and provied the Court with a factual basis for their claims of undue

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prejudice through competitive harm. Furthermore, the parties’ proposed sealings hew to

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the lines that the Court has drawn in prior orders granting the parties’ motions to file

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under seal, especially with respect to documents and testimony designated as Highly

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Confidential. See ECF Nos. 580, 561, 768. As such, the Court is satisfied that there is

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sufficient factual basis to justify the conclusion that compelling reasons exist for sealing

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the material at issue.

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Second, each of the parties has narrowly tailored its requests to the protectable
portions of the filings that advance confidential business information. The majority of
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the redacted materials are comprised of limited excerpts of exhibits and sentences of the

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full reports that implicate the parties’ confidential, non-public business practices and

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information. Moreover, the basis for these respective motions do not rest on the

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disclosure of the more detailed, specific, and confidential information that the parties

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seek to protect. The primary issues within these reports are stated publicly in the motion

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papers and accompanying unredacted exhibits.

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Accordingly, the Court finds that the requests to seal are narrowly tailored and

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sufficiently particularized such that they do not impede upon the public’s ability to

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understand the nature of the proceedings and the factual basis for the parties’ claims. As

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such and in the light of the aforementioned compelling reasons justifying sealing, the

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Court GRANTS each of the motions to seal or file redacted versions identified by the

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following table in its entirety.

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IT IS SO ORDERED.

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Dated: April 9, 2019

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ECF No.

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3:17-cv-00108-GPC-MDD

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887

Qualcomm

890

Qualcomm

894

Qualcomm

897

Qualcomm

900

Qualcomm

Movant

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Document to be Sealed

Unredacted Memorandum of Points and
Authorities in Opposition to
Apple’s Motion in Limine No. 6 to Exclude
Evidence of Apple’s Indemnification of the
CMs (“Memorandum”) and Exhibits 1-14 to the
March 1, 2019 Declaration of Anders
Linderot in Support of Qualcomm’s Opposition
to Apple’s Motion in Limine No. 6 to
Exclude Evidence of Apple’s Indemnification of
the CMs (“Linderot Declaration
Exhibits”)
Exhibits 1 and 2 to the Declaration of James W.
Carlson in Support of
Qualcomm’s Opposition to the Apple and the
Contract Manufacturers’ Motion in Limine
No. 11 (the “Carlson Declaration”).
Unredacted Opposition to Apple Inc. and the
Contract Manufacturers’
Motion in Limine No. 9 (“Motion in Limine No.
9”), Exhibit 1 to the March 1, 2019
Declaration of Nathan E. Denning in Support of
Qualcomm’s Opposition to Motion in
Limine No. 9 (“Denning Decl. Exhibit”)
Portions of its Opposition to Apple Inc. and the
Contract Manufacturers’
(collectively, “Apple”) Motion in Limine No. 7
(“Opposition to Motion in Limine
No. 7”), Exhibits 1 to 3, 6 and 7 to the March 1,
2019 Declaration of Nathan E. Denning
in Support of Qualcomm’s Opposition to Motion
in Limine No. 7 (“Denning Decl.
Exhibits”)
Unredacted Opposition to Apple and the
Contract Manufacturers’
(collectively “Apple”) Motion in Limine No. 12
(“Motion in Limine No. 12”), an

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903

Qualcomm

906

Qualcomm

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Qualcomm

912

Qualcomm

915

Qualcomm

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Unredacted March 1, 2019 Declaration of James
W. Carlson in Support of Qualcomm’s
Opposition to Motion in Limine No. 12
(“Carlson Declaration”), and Exhibits 2 to 7 to
the Carlson Declaration (“Carlson Decl.
Exhibits”)
Unredacted Opposition to Apple Inc.’s Motion in
Limine No. 8, Exhibits
1 to 3 to the March 1, 2019 Declaration of
Nathan E. Denning in Support of Qualcomm’s
Opposition to Motion in Limine No. 8 (“Denning
Decl. Exhibits”)
Unredacted Opposition to the Contract
Manufacturers’ Motion in
Limine No. 15 (“Opposition to the CMs’ Motion
in Limine No. 15”), Exhibits 1 to 7 to
the March 1, 2019 Declaration of Nathan E.
Denning in Support of Qualcomm’s
Opposition to the CMs’ Motion in Limine No. 15
(“Denning Decl. Exhibits”)
Unredacted Opposition to Apple Inc. and the
Contract Manufacturers’
Motion in Limine No. 1, Exhibits 5-6 and 10-12
to the March 1, 2019 Declaration of
Nathan E. Denning in Support of Qualcomm’s
Opposition to Apple Inc. and the Contract
Manufacturers’ Motion in Limine No. 1
(“Denning Decl. Exhibits”)
Unredacted Opposition to Apple Inc.’s Motion in
Limine No. 4
(“Opposition to Motion in Limine No. 4”),
Exhibits 1, 4-5, and 11-15 to the March 1,
2019 Declaration of James W. Carlson in
Support of Qualcomm’s Opposition to Motion
in Limine No. 4 (“Carlson Decl. Exhibits”)
Unredacted Opposition to Apple’s and the CMs’
Daubert Motion Re:
243 Patents (ECF 804) (“Opposition to Daubert
Motion Re: 243 Patents”), Exhibits 9 –
11 to the March 1, 2019 Declaration of Nathan
E. Denning in Support of Qualcomm’s
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Opposition to Daubert Motion Re: 243 Patents
(“Denning Decl. Exhibits”)

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Apple

920

Apple

924

Apple

925

Qualcomm

930

Qualcomm

934

Qualcomm

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Portions of Apple Inc. and the Contract
Manufacturers’ Opposition to Qualcomm’s
Daubert Motion No. 6 to Exclude
Certain Testimony of Rémy Libchaber and
Stephen Wicker, and Exhibit 2 to the
Declaration of Aamir Kazi in Support Thereof
Portions of Apple Inc. and
the Contract Manufacturers’ Opposition to
Qualcomm Incorporated’s Motion In
Limine No. 3 To Exclude Hearsay Evidence
From Unretained Experts
Portions of Apple and the Contract
Manufacturers’ Opposition to Qualcomm
Incorporated’s Daubert Motion No. 5
and Motion in Limine To Exclude Testimony
Suggesting a Required ComponentLevel Royalty Base (“Opposition”), and certain
exhibits to the Appendix of
Exhibits in support of Apple and the Contract
Manufacturers’ Opposition
(“Appendix of Exhibits”)
Exhibits 4-5, 7-8 and 10 to the February 15,
2019 Declaration of Anders
Linderot in Support of Qualcomm’s Opposition
to Apple and the CMs’ Motion in Limine
No. 13 (“Linderot Decl. Exhibits”)
Exhibits 1, 2, 5, 7 and 8 to the March 1, 2019
Declaration of Nathan E.
Denning in Support of Qualcomm’s Opposition
to Apple Inc. and the Contract
Manufacturers’ Motion in Limine No. 2
(“Denning Decl. Exhibits”)
Unredacted Opposition to Apple’s and the CMs’
Daubert Motion Re:
Apportionment and EMVR (“Apportionment
Daubert Opposition”) and Exhibits 1 - 15
to the March 1, 2019 Declaration of Nathan E.
Denning in Support of the Apportionment
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935

Apple

940

Qualcomm

944

Qualcomm

947

CMs

950

Apple

951

Apple

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Daubert Opposition (“Denning Decl. Exhibits”)
Portions of Apple Inc. and the
CMs’ Opposition to Qualcomm’s Daubert
Motion No. 4 To Exclude Expert
Testimony Regarding Exhaustion and
“Substantial Embodiment” (Apple and the
CMs’ Opposition to Daubert No. 4)
Unredacted Opposition to Apple’s and the CMs’
Daubert Motion Re:
Certain Nevo Opinions (the “Opposition to
Daubert Re: Nevo Opinions”), Exhibits 2-4
and 6 to the March 1, 2019 Declaration of
Nathan E. Denning in Support of the
Opposition to Daubert Re: Nevo Opinions
(“Denning Decl. Exhibits”)
Unredacted Opposition to Apple Inc. and the
CMs’ Daubert Re: Certain
Huber, Putnam, and Stasik Opinions
(“Qualcomm’s “Unwilling Licensee”
Opposition”),
Exhibits 2 to 4 and 6 to 9 to the March 1, 2019
Declaration of Nathan E. Denning in
Support of Qualcomm’s “Unwilling Licensee”
Opposition (“Denning Decl. Exhibits”)
Opposition to Qualcomm’s Daubert
Motion No. 3 to Exclude the Testimony of Dr.
Jeffrey Leitzinger
Portions of Apple Inc. and the Contract
Manufacturers’ Opposition to Qualcomm’s
Daubert Motion No. 2 to Exclude
Portions of the Expert Report of Paul K. Meyer
and to Forbid Improper
Extrapolation of Dr. Valenti’s Opinions, and
Exhibits 2–6 and 8–9 to the
Declaration of Benjamin C. Elacqua in support
thereof
Portions of Apple and the Contract
Manufacturers’ (“CMs’”) Opposition to
Qualcomm Incorporated’s Motion in
Limine No. 7 to Exclude the Opinions and
Testimony of Friedhelm Rodermund
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956

Qualcomm

957

Apple

962

Qualcomm

964

Qualcomm

968

Qualcomm

969

Apple

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(“Opposition”), and portions of an exhibit to the
Appendix of Exhibits in support
of Apple’s Opposition
Unredacted Opposition to Apple Inc.’s Motion
In Limine No. 5,
Exhibits 3-6 and 7-11 to the March 1, 2019
Declaration of Nathan E. Denning in Support
of Qualcomm’s Opposition to Apple’s Motion In
Limine No. 5 (“Denning Decl.
Exhibits”)
Portions of Apple and the Contract
Manufacturers’ Opposition to Qualcomm
Incorporated’s Motion in Limine No. 2
To Exclude Evidence of Qualcomm’s Public
Relations Strategy (“Opposition”),
and certain exhibits to the Appendix of Exhibits
in support of Apple and the
Contract Manufacturers’ Opposition
Exhibits 7 and 8 to the March 1, 2019
Declaration of Nathan E. Denning
in Support of Qualcomm’s Opposition to Apple
Inc. and the Contract Manufacturers’
Daubert Motion No. 3 (“Denning Decl.
Exhibits”)
Portions of its Opposition to Apple
Inc. and the Contract Manufacturers’ Daubert
Motion to Exclude Qualcomm Expert
Oliver Hart (“Brief”) and the entirety of Exhibit
A thereto (“Exhibit A”).
Portions of its Opposition to Apple
Inc. and the Contract Manufacturers’ Daubert
Motion to Exclude Certain Opinions of
Qualcomm Expert Jonathan Putnam (“Brief”), as
well as the entirety of Exhibits 1-3,
9, and 11-12 thereto
Portions of Apple Inc. (“Apple”) and the
Contract Manufacturers’ Opposition to
Qualcomm Inc.’s Motion in Limine No. 1 to
Exclude Evidence and Argument Concerning
Royalty Stacking, and Exhibits 1–2 to
the Declaration of Aleksandr Gelberg
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972

Apple

976

Qualcomm

991

Apple

995

Qualcomm

1000

Qualcomm

1004

Qualcomm

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Portions of Apple and the Contract
Manufacturers’ (“CMs’”) Opposition to
Qualcomm Incorporated’s
(“Qualcomm’s”) Daubert Motion No. 1 To
Exclude Inadmissible Comparable
License Analysis (“Opposition”), the Declaration
of Shira Liu in Support of the
Opposition, and certain exhibits to the Appendix
of Exhibits in support of the
Opposition
Portions of its Opposition to Apple
Inc. and the Contract Manufacturers’ Motion in
Limine No. 3 to exclude evidence or
argument that Apple and the CMs make, use,
offer to sell, sell, or import Qualcomm’s
patented technology (“Brief”)
Portions of Apple Inc. and the Contract
Manufacturers’ Reply in Support of Their
Daubert Motion To Exclude Qualcomm
Expert Oliver Hart
Unredacted Reply in Further Support of Its
Daubert Motion No. 1 to
Exclude Inadmissible Comparable License
Analyses (“Reply”)
Portions of its unredacted Reply in Further
Support of its Daubert Motion
No. 5 and Motion in Limine to Exclude
Testimony Suggesting a Required ComponentLevel Royalty Base (“Reply in Further Support
of Daubert Motion No. 5”), Exhibit 1 to
the March 8, 2019 Declaration of Nathan E.
Denning in Support of Qualcomm’s Daubert
Motion No. 5 (“Denning Decl. Exhibit”)
Unredacted Reply in Further Support of
Qualcomm’s Daubert Motion
No. 4 To Exclude Expert Testimony Regarding
Exhaustion and “Substantial
Embodiment” (Valenti, Wicker, Akl, Bims,
Lanning, Stark, Stevenson, Wells, Libchaber,
Meyer and Simcoe) (“Reply ISO Daubert
Motion No. 4”), Exhibits 29, 30 and 32 – 36 to
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1007

Qualcomm

1011

Apple

1012

Apple

1016

Qualcomm

1021

Qualcomm

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the March 8, 2019 Declaration of Nathan E.
Denning in Support of Qualcomm’s Reply
ISO Daubert Motion No. 4 (“Denning Decl.
Exhibits”)
Unredacted Reply in Further Support of its
Daubert Motion No. 3 to
Exclude the Opinions and Testimony of Dr.
Jeffrey Leitzinger Concerning Royalty
“Overcharges” (“Reply”)
Portions of Apple and the
CMs’ Opposition to Qualcomm Incorporated’s
Motion for Determination of French
Law Pursuant to Fed. R. Civ. P. 44.1
(“Opposition”), and Exhibits D, F-I, L-N, P, TY,
DD, FF-HH to the Declaration of Benjamin C.
Elacqua in support thereof
Portions of Apple and the Contract
Manufacturers’ (“CMs’”) Reply in Support of
Their Daubert Motion To Exclude
Regression Analysis by Qualcomm Expert
Professor Aviv Nevo (“Reply”)
Unredacted Reply in Further Support of its
Daubert Motion No. 2 to
Exclude Portions of the Expert Report of Paul K.
Meyer and to Forbid Improper
Extrapolation of Dr. Valenti’s Opinions
(“Reply”) and Exhibits 26 and 29 to the March 8,
2019 Declaration of Anders Linderot in Support
of Qualcomm’s Reply in Further
Support of its Daubert Motion No. 2 to Exclude
Portions of the Expert Report of Paul K.
Meyer and to Forbid Improper Extrapolation of
Dr. Valenti’s Opinions (“Linderot
Declaration Exhibits”)
Unredacted Opposition to Apple’s and the
Contract Manufacturers’
Motion for Determination of French Law
Pursuant to Federal Rule of Civil Procedure
44.1 (“Opposition Brief”), Exhibits 7, 27-31 and
33 to the March 8, 2019 Declaration of

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Qualcomm

1049

Qualcomm

1052

Apple,
Qualcomm,
and CMs

1056

Apple

1059

Qualcomm

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Nathan E. Denning in Support of Qualcomm’s
Opposition Brief (“Denning Decl.
Exhibits”)
Exhibits 68-69, 71-74 and 77 to the March 15,
2019 Declaration of Nathan
E. Denning in Support of Qualcomm’s Reply
Memorandum in Further Support of Its
Motion for Determination of French Law
Pursuant to Federal Rule of Civil Procedure
44.1(“Denning Decl. Exhibits”)
Exhibit 1 to the Declaration of Nathan
E. Denning in Support of the Motion Regarding
BCPA Evidence (“Exhibit”)
Unredacted versions of
Attachments 1A-1B, 1G-1J, 2A-2B and 8 to the
parties’ Final Joint Trial Notebook
(“Trial Notebook Attachments”)
Portions of Apple and the Contract
Manufacturers’
Opposition to Qualcomm Incorporated’s Motion
Regarding BCPA Evidence
(“Opposition”), and certain exhibits to the
Appendix of Exhibits in support of the
Opposition
Unredacted Motion To Set the Order of
Presentation at Trial and To
Permit the Presentation of Limited Evidence
Outside the Presence of the Jury (“Motion”)

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