Apple Inc. v. Qualcomm Incorporated

Filing 883

ORDER Granting 787 790 794 795 798 800 806 809 810 811 817 819 821 827 830 833 835 843 846 853 855 858 863 866 871 872 880 Motions to Seal. Signed by Judge Gonzalo P. Curiel on 2/21/19. (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-GPC-MDD]

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ORDER GRANTING Motions to Seal
[ECF Nos. 787, 790, 794, 795, 798, 800, 806, 809,
810, 811, 817, 819, 821, 827, 830, 833, 835, 836,
843, 846, 853, 855, 858, 863, 866, 871, 872, 880]

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Before the Court are numerous requests to seal portions of the parties’ motions in

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limine, Daubert motions, expert witness reports in support of pre-trial motions, motions

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for determination pursuant to Federal Rule of Civil Procedure 44.1, and joint pretrial

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brief identifying disputed contract provisions and the parties’ position on each disputed

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provision in Case No. 3:17-cv-00108-GPC-MDD, ECF Nos. 787, 790, 794, 795, 798,

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800, 806, 809, 810, 811, 817, 819, 821, 827, 830, 833, 835, 836, 843, 846, 853, 855, 858,

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863, 866, 871, 872, 880. No oppositions have been filed. Upon review of the moving

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papers, the information to be sealed, the applicable law, and for the following reasons, the

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Court GRANTS each of the 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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Parties seeking to seal documents in a dispositive motion must meet the high

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threshold requiring “compelling reasons” with specific factual findings to support a
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sealing. Kamakana, 447 F.3d at 1178-80 (9th Cir. 2006). However, for non-dispositive

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motions, the parties must show a lesser “particularized showing” under the “good cause”

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standard pursuant to Federal Rule of Civil Procedure 26(c). Id. at 1180. The

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“compelling reasons” test requires showing more than just “good cause.” Id. Documents

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filed under seal will be limited to only those documents, or portions thereof, necessary to

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protect such sensitive information.

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Although the “Ninth Circuit has yet to specify whether a party seeking to seal a

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complaint . . . must meet the ‘compelling reasons’ or ‘good cause’ standard,” see Harrell

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v. Cal. Forensic Med. Grp., Inc., 2015 WL 1405567, *1 (E.D. Cal. Mar. 26, 2015),

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district courts generally conclude that the “compelling reasons” standard applies because

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the complaint initiates the civil action. See, e.g., Baldwin v. U.S., 732 F. Supp. 2d 1142,

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1145 (D.N. Mar. 1, 2010); Robert Half Int’l v. Ainsworth, 2015 WL 4394805, *3 n.2

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(S.D. Cal. July 15, 2015); In re NVIDIA Corp. Deriv. Litig., 2008 WL 1859067 (N.D.

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Cal. Apr. 23, 2008). Accordingly, and especially considering the public’s interest in

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being able to access civil actions filed in the courts, the Court will apply the “compelling

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reasons” standard to the parties’ requests to seal portions of the complaint and other

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pleadings. The Court will also apply the “compelling reasons” standard to Qualcomm’s

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motions for injunction and related briefing as those submissions 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 the motions in limine and 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 providing the

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Court with a factual basis for their claims of undue prejudice through competitive harm.

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Furthermore, the parties’ proposed sealings hew to the lines that the Court has drawn in

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prior orders granting the parties’ motions to file under seal, especially with respect to

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documents and testimony designated as Highly Confidential. (See ECF Nos. 580, 561,

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768.) As such, the Court is satisfied that there is sufficient factual basis to justify the

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conclusion that compelling reasons exist for sealing the material at issue.

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Second, each of the parties has narrowly tailored its requests to the protectable

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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 information. Moreover,

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the basis for these respective motions do not rest on the disclosure of the more detailed,

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specific, and confidential information that the parties seek to protect. The primary issues

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within these reports are stated publicly in the motion papers and accompanying redacted

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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: February 21, 2019

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ECF No.

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3:17-cv-00108-GPC-MDD

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787

Apple

790

Apple

794

Qualcomm

795

Apple

798

Qualcomm

800

Apple

Movant

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Document to be Sealed

Unredacted portions of Apple and the CMs’
Memorandum of Points and Authorities in
Support of Their Apportionment Daubert
Motion, Appendices A and B to the
Apportionment Daubert Brief, Exhibits A-O to
Apple’s and the CMs’ Appendix of Exhibits
Unredacted portions of Apple and the CMs’
Memorandum of Points and Authorities in
Support of the Unwilling Licensee Daubert
Motion, Exhibits A, B, C, D, E, F, GH, I, J, K,
and M
Unredacted portions of Qualcomm’s Comparable
License Daubert Motion and the Denning Decl.
Exhibits
Unredacted portions of Memorandum of Points
and Authorities in Support of Apple Inc. and the
Contract Manufacturers’ Daubert Motion to
Exclude Qualcomm Expert Oliver Hart, and
Exhibits 1 and 2 to the Declaration of Lauren A.
Degnan
Unredacted portions of 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 (“Daubert Motion No.
2”), Exhibits 1-17 to the February 17, 2019
Declaration of Nathan E. Denning in Support of
Qualcomm’s Foreign Exhaustion Daubert
Motion (“Denning Dec. Exhibits”), and
unredacted portions of the Foreign Exhaustion
Daubert Motion
Unredacted portions of Memorandum of Points
and Authorities in Support of Apple Inc. and the
CMs’ Daubert Motion to Exclude Qualcomm
Expert Testimony Regarding its 243 Standard
Essential and Non-Standard Essential Patents
and Exhibits 9-16, 19 to the Declaration of Seth
M. Sproul
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806

Qualcomm

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Qualcomm

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Qualcomm

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Apple

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Qualcomm

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Compal
Electronics,
Inc., and
others
(collectively,
the “CMs”)
Qualcomm

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Unredacted portions of Daubert Motion No. 3 to
Exclude the Opinions and Testimony of Dr.
Jeffrey Leitzinger Concerning Royalty
“Overcharges”, Exhibits 1, 2 and 4-8 to the
February 14, 2019 Declaration of Nathan E.
Denning in Support of Qualcomm’s Daubert
Motion No. 3
Unredacted portions of Daubert Motion No. 4 to
Exlude Expert Testimony Regarding Exhaustion
and “Substantial Embodiment,” Exhibits 1 to 28
to the Feburary 14, 2019 Declaration of Nathan
E. Denning in Support of Qualcomm’s Daubert
Motion No. 4
Unredacted portions of Daubert Motion No. 5
and Motion in Limine to Exclude Testimony
Suggesting a Required Component-Level
Royalty Base, Exhibits 1 to 10 to the February
14, 2019 Declaration of Nathan E. Denning in
Support of Qualcomm’s Daubert Motion No. 5
Certain Documents Offered in Support of
Apple’s and the CMs’ Daubert Motion To
Exclude Regression Analysis of Qualcomm
Expert Professor Aviv Nevo (“Nevo Daubert
Motion”)
Unredacted Daubert Motion to Exclude Certain
Opinions and Testimony of Rémy Libchaber and
Stephen Wicker (“Sixth Daubert Motion”),
Exhibits 3 and 4 to the February 14, 2019
Declaration of Nathan E. Denning in Support of
Qualcomm’s Sixth Daubert Motion (“Denning
Decl. Exhibits”)
Exhibits attached to the Declaration of Samuel
D. Eisenberg in support of Apple Inc. (“Apple”)
and the CMs’ Daubert motion to exclude
Qualcomm Incorporated (“Qualcomm”) expert
Dr. Jonathan Putnam
Unredacted Daubert Motion No. 7 to Exclude
the Opinions and Testimony of Friedhelm
Rodermund (“Daubert Motion No. 7”), Exhibits
1, 3, 4, 7, 8 and 11 to the February 14, 2019
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Qualcomm

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Qualcomm

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Qualcomm

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Apple

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Apple

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Declaration of Nathan E. Denning in Support of
Qualcomm’s Daubert Motion No. 7 (“Denning
Decl. Exhibits”), and unredacted versions of
Exhibits 5 and 6 to the Declaration of Nathan E.
Denning in Support of Qualcomm’s Daubert
Motion No. 7 (“Denning Declaration Redacted
Exhibits”)
Unredacted Motion in Limine No. 1 to Exclude
Testimony and Argument Concerning Royalty
Stacking (“Motion in Limine No. 1”), Exhibits 1
to 9 to the February 15, 2019 Declaration of
Nathan E. Denning in Support of Qualcomm’s
Motion in Limine No. 1 (“Denning Decl.
Exhibits”)
Unredacted Motion in Limine No. 2 to Exclude
Evidence of Qualcomm’s Public Relations
Strategy (“Motion in Limine No. 2”), Exhibits 14 to the February 15, 2019 Declaration of Nathan
E. Denning in Support of Qualcomm’s Motion in
Limine No. 2 (“Denning Decl. Exhibits”)
Exhibits 3 and 5-8 to the February 15, 2019
Declaration of Nathan E. Denning in Support of
Qualcomm’s Motion in Limine No. 4 to Exclude
Evidence of Certain SEP Disclosures (“Denning
Declaration Sealed Exhibits”), and unredacted
versions of Exhibits 1 and 2 to the February 15,
2019 Declaration of Nathan E. Denning in
Support of Qualcomm’s Motion in Limine No. 4
to Exclude Evidence of Certain SEP Disclosures
(“Denning Declaration Redacted Exhibits”)
Unredacted portions of the Memorandum of
Points and Authorities in Support of Apple’s
Motion in Limine No. 4 to Exclude Evidence or
Argument Concerning Apple’s Alleged Misuse
of Qualcomm’s Trade Secrets and Hiring of
Qualcomm’s Employees, and Exhibit 4 to the
Declaration of Aleksandr Gelberg
Unredacted portions of the Memorandum of
Points and Authorities in Support of Apple
Inc.and the CMs’ Motion in Limine No. 2 To
Exclude Qualcomm Fact Witness Testimony
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843

Apple

846

Apple

853

CMs

855

Qualcomm

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CMs

863

Apple

866

Apple

871

Apple

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Regarding the Relative Value of Qualcomm’s
Portfolio, and Exhibits 1-6 and 8-13 to the
Declaration of Lauren A. Degnan
Unredacted portions of Memorandum of Points
and Authorities in Support of Apple Inc. and the
Contract Manufacturers’ Motion in Limine No. 1
to Exclude Testimony and Argument Regarding
Apple Non-SEP Litigation, and Exhibit 2 to the
Declaration of Seth M. Sproul
Unredacted portions of 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, and
Exhibits 1-4 to the Declaration of Aamir Kazi
Exhibits attached to the Declaration of Ryan
Iwahashi in support of Apple Inc. and the CMs’
Motion in limine to Preclude Belatedly Disclosed
Evidence
Unredacted Motion in Limine to Exclude
Hearsay Evidence from Unretained Experts
(“Motion in Limine No. 3”), Exhibits 1, 2, and 5
through 10 to the February 15, 2019 Declaration
of Nathan E. Denning in Support of Qualcomm’s
Motion in Limine No. 3 (“Denning Decl.
Exhibits”)
Exhibit attached to the Declaration of Ryan
Iwahashi in support of Apple and the CMs’
Motion in limine to Exclude Qualcomm
Improper Expert Testimony
Exhibits A, B, D, E, F, G, H, I, J, K, L, and M to
the Appendix of Exhibits to Apple and the
Contract Manufacturers’ Motion in Limine No. 7
To Exclude Evidence Concerning Unrelated
Apple Agreements
Certain Documents Offered in Support of
Apple’s Motion in Limine No. 5 to Exclude
Evidence of 2015 Meeting
Certain documents in support of Apple and the
CMs’ Motion in Limine No. 9 To Exclude
Evidence or Argument that Competitors Who
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872

Qualcomm

880

Qualcomm

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Will Benefit from Remedy Are in Asia or that
Qualcomm Is an Asset to National Security
(“Motion in Limine No. 9”)
Unredacted Opening Memorandum for
Determination of French Law Pursuant to
Federal Rule of Civil Procedure 44.1 (“Rule 44.1
Motion”), Exhibits 4, 8, 9, 19, 21-24, 27-28, 30,
35-43, 52-54, 56-57, 63, and 65 to the February
15, 2019 Declaration of Nathan E. Denning in
Support of Qualcomm’s Rule 44.1 Motion
(“Denning Decl. Exhibits”)
Unredacted Joint Pretrial Brief Identifying
Disputed Contract Provisions and the Parties’
Position on Each Disputed Provision (“Joint
Contract Brief”); Exhibits 1 – 14 to the
Declaration of Nathan E. Denning in Support of
the Joint Contract Brief (“Contract Compendium
Exhibits”); Exhibits 1, 3 – 6, 8 – 9, 11 – 17, 20 –
35, 37, 39 – 40, 44 – 46 and 48 – 49 to the
Declaration of Anders Linderot in Support of the
Joint Contract Brief (“Linderot Decl. Exhibits”);
Exhibits A – D to the Declaration of Edward H.
Takashima in Support of the Joint Contract Brief
(“Takashima Declaration”)

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