Whitewater West Industries, LTD. v. Pacific Surf Designs, Inc. et al

Filing 271

ORDER Granting in Part and Denying in Part Motions to File Under Seal (ECF Nos. 189 198 201 203 206 213 218 221 224 226 234 237 240 243 245 249 253 ). Signed by Judge Roger T. Benitez on 4/11/19. (dlg)

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FILED

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APR 1 2 2019

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CLEPK u s o:s ... ·1:N: T COU RT
SOIJTH c RN ··l: S TRiCl ;J~ C AL ; Fo ~NIA

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BY

M ~6

')S:-"' t.JT''f

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WHITEWATER WEST INDUSTRIES,
LTD., a Canadian corporation,
Plaintiff,

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v.
PACIFIC SURF DESIGNS, INC., a
Delaware corporation, and FLOW
SERVICES, INC., a California
corporation,

Case No.: 3 :17-cv-01118-BEN-BLM

ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO
FILE UNDER SEAL
[ECF Nos. 189, 198, 201, 203, 206, 213,
218,221,224,226,234,237,240,243,
245, 249, 253.)

Defendants.

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Before the Court is Plaintiff Whitewater West Industries, Ltd. (" Whitewater" ) and

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Defendants Pacific Surf Designs, Inc. ("PSD") and Flow Services, Inc. ("Flow Services")

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numerous Motions to Seal. Specifically, there are seventeen Motions seeking to seal well

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over 1,000 pages of the public record. The Court addresses all the Motions to Seal in this

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Order.

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I.

The Right of Access to Judicial Records

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In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the Supreme Court

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recognized "a general right to inspect and copy public records and documents, including

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judicial records and documents." Id. at 597. The main reason for this general right is to
3: 17-cv-O111 8-BEN-BLM

accommodate " the citizen's desire to keep a watchful eye on the workings of . . .
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government. " Id. at 598. However. the Supreme Court also stated that "the right to inspect

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and copy judicial records is not absolute." id. at 589. "Every court has supervisory power

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over its own records and files, and access has been denied where court files might have

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become a vehicle for improper purposes," such as "to gratify private spite or promote

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public scandal," or to serve as a source of"business information that might harm a litigant's

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competitive standing." Id. (internal citations omitted).

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Except for certain documents "traditionally kept secret," federal courts begin a

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sealing analysis with "a strong presumption in favor of access to court records." Foltz v.

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State Farm Mut. Auto. Ins. Co., 331F.3d1122, 1135 (9th Cir. 2003). A party seeking to

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seal a judicial record then bears the burden of overcoming this strong presumption by

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meeting the "compelling reasons'' standard. Id.: Kamakana v. City & Cnty. of Honolulu,

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447 F.3d 1172, 1179 (9th Cir. 2006) (applying compelling reasons standard to dispositive

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motions); DISH Network, L.l.C. v. Sonicview USA, Inc. , No. 09-cv-1553-L, 2009 WL

l5

2579052. at

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dispositive for sealing analysis because the motion directly addresses the merits and seeks

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injuncti ve relief before tri al). That is, the party must "articulate (] compelling reasons

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supported by specific factual findings," Foltz, 33 1 F.3d at 11 35, that outweigh the general

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history of access and the public policies favoring disclosure, such as the "public interest in

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understanding the judicial process," Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.

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1995 ).

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(S.D. Cal. Aug. 20, 2009) (treating motion for preliminary injunction as

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"The mere fact that the production of rec ords may lead to a litigant's embarrassment,

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incrimination, or exposure to further litigation will not, without more, compel the court to

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seal its records." Kamakana, 447 F.3d at 1179. A party must satisfy the compelling

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reasons standard even if the motion, or its attachments, were previously filed under seal or

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protective order. Foltz, 33 1 F.3d at 11 36 (''[T]he presumption of access is not rebutted

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where ... documents subject to a protective order are filed under seal as attachments to a

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dispositive motion."). And " [s ]imply mentioning a general category of priv ilege, w ithout
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further elaboration or any specific linkage with the documents, does not satisfy the burden."

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Kamakana, 447 F.3d at 1184. A party's failure to meet the burden of articulating specific

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facts showing a "compelling reason" means that the '"default posture of public access

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prevails." Id. at 1182.

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In turn, the cou11 must "conscientiously balance [] the competing interests" of the

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public and the party who seeks to keep certain judicial records secret. Foltz. 33 I F .3d at

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1135. After considering these interests, if the court decides to seal certain judicial records,

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it must " base its decision on a compelling reason and articulate the factual bas is for its

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ruling, without relying on hypothesis or conjecture." Hages tad, 49 F .3d at 1434 (citing

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Valley Broadcasting Co. v. U.S. Dist. Ct., 798 F .2d 1289, 1295 (9th Cir.1986)).

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In ruling on motions to seal in Related Case No. 15-cv-1879, this Court has

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recognized that "compelling reasons sufficient to outweigh the public's interest in

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disclosure and justify sealing court records exist when such court files might .. . become a

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vehicle for improper purposes, such as the u se of records to . .. release trade secrets."

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Kamakana , 447 F.3d at 1179. A "trade secret may consist of any formula, pattern, device

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or compilation of information which is used in one's business, and which g ives him an

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opportunity to obtain an advantage over competitors who do not know or use it."

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Restatement of Torts § 757 cmt. b.

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Similarly, other "sources of business information that might harm a litigant's

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competitive standing" may also constitute a compelling reason to seal, see Nixon, 435 U .S.

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at 598, as a company ' s confidential profit, cost, and pricing information if publicly

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disclosed could put the company at a competitive disadvantage, see Apple, Inc. v. Samsung

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Elec. Co., 727 F.3d 1214, 1225 (Fed. Cir. 20 13) ("[I]t seems clear that if Apple's and

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Samsung's suppliers have access to their profit, cost, and margin data, it could give the

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suppliers an advantage in contract negotiations, which they could use to extract price

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increases for components.").

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Ill

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Ill
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II.

Discussion

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The Court has previously expressed to the parties how seriously it takes the public

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right of access to judicial records. A party seeking to seal documents must satisfy the

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compelling reasons standard.

In its August 3, 20 l 7 Order (Doc. No. 40), the Court

5 admonished the parties that going forward, if a motion to seal is denied, the document wi ll
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immediately be publicly filed on CM /ECF. The fact that the Court has sealed a document

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once does not mean that the Court will seal the document again, particularly at trial.

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Moreover, the fact that both sides agree to seal or that the documents are designated

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confidential under a protective order is insufficient cause for sealing.

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A.

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Plaintiff Whitewater has fi led eight Motions to Seal. The Motions are unopposed,

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and Plaintiff asserts that all documents sought to be sealed in each Motion have been

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designated as "CONF IDENTIAL-FOR COUNSEL ONLY" pursuant to the Protective

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Order entered by the Court on Decembe r 18, 2015, in the related FSL Action. 1 The Cou1t

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will review each motion in turn .

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Plaintiffs' Motions to Seal

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Motion to File Under Seal, 1112118 - (Doc. No. 198.)

Exhibit I and Portions of its Daubert Motion to Strike or Exclude
the Report and Testimony of James T. Carmichael (Doc. No. 199.)

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Plaintiff seeks to file under seal portions of its Daubert Motion to Strike or Exclude

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the Report and Testimony of James T. Carmichael and Exhibit 1 to the Declaration for

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Roger L. Scott in support of the Motion .2 The Court finds that Plaintiff has not narrowly

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tailored its request to seal to only those portions of Exhibit l that contain business, financial

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and technical information that would place the designating party at a competitive

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On December 18, 2015, the Court entered the Protective Order stipulated by the parties
in Flowrider Surf, Ltd. , et al v. Pac~fic Surf Designs, Inc .. No. 3: 15-cv-01879-BEN-BLM
(the "FSL Action"). (FSL Action, Doc. Nos. 23, 24.)
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Plaintiff simultaneously filed a redacted version of the Daubert Motion with t he motion
to seal. (Doc. No. 197.)
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disadvantage. In this case, Plaintiff seeks to entirely seal the expert report of James T.

2 Carmichael, Ph.D. This Court has previously denied requests to entirely seal expert reports
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finding the practice to be excessive and against public policy. The Cou1t finds Plaintifr s

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Motion does not provide sufficient justification to seal Exhibit 1 in its entirety.

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Therefore, the Court DENIES Plaintiff's Motion to Seal.

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2.

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Motion to File Under Seal, 1112/ 18-(Doc. No. 201.)

Exhibits 1, 15, 16, 19 an£121 in Support ofits Motion for Summary
Judgment (Doc. No. 202.)

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Plaintiff seeks to file under seal portions of its Motion for Summary Judgment and

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Exhibits 1, 15, 16, 19 and 21 to the Declaration of Roger L. Scott. The Court finds that the

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Motion and Exhibits l and 15 include sensitive information regarding PSD's finances,

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customers and/or products which Plaintiff has narrowly tailored its request to seal to only

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those portions of the Motion and Exhibits 1 and 15 that, if disclosed, would place Plaintiff

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at a competitive disadvantage.

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The Court is not persuaded the information contained in Exhibits 16, 19, and 21

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warrants sealing. As to Exhibits 16 and 19, the Plaintiff seeks to entirely seal the expert

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reports of Edward Pribonic. As discussed supra, such requests are deemed excessive and

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denied as Exhibits 16 and 19 are here. Moreover, Exhibit 21 seeks to seal excerpts of

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James T. Carmichael's October 11, 2018 deposition transcript. The Court does not find

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the information contained in Exhibit 21 relates to PSD's Customers, Products or Finances

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in order to justify it being sealed. Thus, the Court denies Plaintiffs request to seal Exhibit

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21 as well.

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Therefore, the Court GRANTS Plaintiffs Motion to Seal in part and ORDERS the

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Motion and Exhibits l and 15 filed under seal. The Court DENIES Plaintiffs Motion to

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Seal Exhibits 16, I 9 and 21.

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Ill

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Ill

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Ill
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3.
2

Motion to File Under Seal, 11 /2 6118-(Doc. No. 213.)

Exhibits 1, 2, 6 and 7 and Portions of its Opposition to Defendant's
DAUBERT mu/ IN LIM/NE Motion to Exclude Expert Testimony
and Evidence (Doc. No. 214.)

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Plaintiff seeks to fil e under seal portions of its Opposition to Defendant's Daubert
and In Limine Motion to Exclude Expert Testimony, Evidence and Exhibits 1, 2, 6 and 7
to the Declaration of Roger L. Scott. The Court finds Plaintiff narrowly tailored the request
to seal to only those portions of the Opposition and Exhibits l and 2 that, if disclosed,
would place the designating party at a competitive di sadvantage.

Tn this case, the

Opposition includes direct quotations from the confidential deposition transcripts of Dr.
Glen Stevick ("Stevick") and Dr. Robert L. Vigil ("Vigil").
Plaintiffs have not persuaded the Court Exhibit 7 warrants sealing. Plaintiff seeks
to entirely seal Vigil's expert report. Unnecessarily sealing expert reports in their entirety
is excessive and is hereby denied.
Therefore, the Court GRANTS Plaintiffs Motion to Seal in part and ORDERS
portions of the Opposition and Exhibits 1, 2 and 6 filed under seal. The Court DENIES
Plaintiffs Motion to Seal Exhibit 7.
4.

Motion to File Under Seal, 12/3/ 18 - (Doc. No. 234.)

Exhibits 23, 24 and 25 in Support of its Reply in Support of Motion
for Summary Judgment (Doc. No. 235.)

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Plaintiff seeks to file under seal certain portions of its Reply in Support of Motion

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for Summary Judgment and Exhibits 23, 24 and 25. The Co u11 finds that Plaintiff has

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natTowly tailored its request to only those portions of the Reply containing direct quotations

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from the confidential deposition transcripts of Richard Alleshouse ("Alleshouse") and

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Yong Yeh (" Yeh") which the Court concurs would place the Plaintiff at a competitive

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disadvantage if disclosed.

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Therefore, the Court GRANTS Plaintiffs Motion to Seal and ORDERS portions of
the Reply and Exhibits 23, 24, and 25 filed under seal.
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5.
2

Motion to File Under Seal, 12/3/ 18 - (Doc. No. 237.)

Exltibit 1 in Support of its Reply i11 Support of IN LIMINE Motion
No. 2 to Exclude Argument, Testimony, and Evi<lence regt1rding
Prior Lawsuits involving the '589 Patent (Doc. No. 238.)

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Plaintiff seeks to file under seal certain portions of its Reply in Support of Motion

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In Limine No. 2 to Exclude Argument, Testimony, and Evidence Regarding Prior Lawsuits

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Involving the '589 Patent and Exhibit l to the Declaration of Roger L Scott. The Court

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finds that Plaintiff has narrowly tailored its request to seal to the Reply to direct quotations

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from the confidential deposition transcripts of Alleshouse.
Therefore, the Court GRANTS Plaintiff's Motion to Seal and ORDERS portions of

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its Reply and Exhibit 1 filed under seal.

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6.

Motion to File Under Seal, 12/3/18 - (Doc. No. 240.)

Opposition Exhibits 1 and 2 in Support of its Reply in Support of
Motion JN LIM/NE No. 4 to Exclude Any Argument, Testimony, or
Evidence regarding the Arbitration Between Plaintiff {Ind Wave
Loch, LLC. (Doc. No. 241.)

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Plaintiff seeks to file under seal certain portions of its Reply in Supp011 of Motion

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Jn Limine No. 4 to Exclude Argument, Testimony, and Evidence Regarding the Arbitration

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Between Plaintiff and Wave Loch, LLC and Exhibits l and 2. The Court finds that Plaintiff

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has narrowly tailored its request to only those portions of its Reply that contain information

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that, if disclosed, would place it at a competitive disadvantage.

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The Court declines to seal the entire expert reports of James T. Carmichael and

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Lewis contained in Exhibits I and 2. Entirely sealing expert reports is excessive and is

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hereby denied.

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Therefore, the Court GRANTS Plaintiffs Motion to Seal in part and ORDERS

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portions of the Reply fil ed under seal. Plaintiffs request to Seal Exhibits 1 and 2 is

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DENIED.

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///
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7.

2

Motion to File Under Seal, 12/3/18 - (Doc. No. 243.)

Portions of ibi Reply in Support ofits DAUBERT Motion to Exclude
the Report and Testimony of James T. Carmichael (Doc. No. 244.)

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Plaintiff seeks to file under seal certain portions of its Reply in Support of Daubert

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Motion to Exclude the Report and Testimony of James T. Carmichael. The Court finds

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that Plaintiff has narrowly tailored its request to only those portions of the Reply containing

7 sensitive information regarding PSD's finances, customers and/or products, which
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disclosure of this information would place it at a competitive disadvantage.
Therefore, the Court GRANTS Plaintiffs Motion to Seal and ORDERS the
portions of the Reply filed under seal.

II

8.

Motion to File Under Seal, 12/3118 - (Doc. No. 249.)

Exhibits 2 and 3 in Support of its Errata to Evidence Submitted in
Support of Motion/or Summary Judgment (Doc. No. 250.)

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Plaintiff seeks to file under seal Exhibits 2 and 3 in support of its Errata to Evidence

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Submitted in Support of Plaintiffs Motion for Summary Judgment. The Court finds that

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Plaintiff has narrowly tailored its request to seal to only those portions of Exhibit 2 that

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contain information that, if disclosed, would place it at a competitive disadvantage.

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The Cou11 is not persuaded Exhibit 3 warrants sealing.

Exhibit 3 seeks to seal

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excerpts of James T. Carmichael's October 11, 2018 deposition transcript. The Court fails

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to find how any of the information contained in Exhibit 3 relates to PSD's Customers,

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Products or Finances.

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Therefore, the Court GRANTS Plaintiff s Motion to Seal in pa1t and ORDERS
Exhibit 2 filed under seal. The Court DENIES Plaintiffs Motion to Seal Exhibit 3.

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B.

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Defendants PSD and Flow Services have filed nine Motions to Seal. The Motions

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are unopposed, and Defendants assert all documents sought to be sealed in each Motion

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have been designated as "CONFIDENTIAL" or "CONFIDENTIAL- FOR COUNSEL

Defendants' Motions to Seal

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ONLY" pursuant to the Protective Order in the Related FSI , Action . The Comt addresses
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each motion in turn.
1.

Motion to File Under Seal. 1111/18 - (Doc. No. 189.)

Exhibits A, B, C, D, E, F, G, H, J, K, M, 0, S, T, U, V, W, X and Y
to Declaration of Christopher M. Franich in Support of their

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Motion for Summary Judgment (Doc. No. 190.)

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Defendants seek to file under seal Exhibits A , B , C, D, E, F, G, H, J, K, M , 0, S, T,

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U, Y, W, X and Y to the Declaration of Christopher M. Franich in support of their Motion

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for Summary Judgment.

The Court finds that Defendants have narrowly tailored the

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request to seal to only those portions of the Declaration and Exhibits A, C, D, E, F, G, H,

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J, K , M, 0, S, T, U, V, W~ X, and Y. The Court finds that PSD would be competitively

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and economically disadvantaged if this information was publicly disclosed.

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Defendants have not persuaded the Court Exhibit B warrants sealing.

The

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Defendants seek to entirely seal Exhibit B containing the expert report of James T.

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Carmichael which is excessive and is hereby denied.

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Therefore, the Court GRANTS in part Defendants' Motion to Seal. The Court

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ORDERS portions of the Declaration in Support of its Motion for Summary Judgment and

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Exhibits A, C, D, E, f , G, H, J, K, M, 0, S, T, U, V, W, X, and Y filed under seal. The

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Court DENIES Defendants ' request to seal Exhibit B.

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2.

Motion to File Under Seal, 11 /2/ 18 - (Doc. No. 203.)

Exhibits A, B, C, D, E, I and Jin Support of Defendants'
DAUBERT and JN LIM/NE Motion to Exclude Expert Evidence
and Testimony (Doc. No. 208.)

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Defendants seek to file under seal Exhibits A , B, C, D, E, I a nd J. The Court finds

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the Defendants have natTowly tailored their request to exhibits A, C, E, I and J, which, if

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disclosed, would place them at a competitive disadvantage.

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The Court is not persuaded Exhibits B and D warrant sealing. Exhibits B and D

2 contain the expert reports of Robert L. Vigil, Ph.D. , and Glen Stevick, Ph.D. Entirely
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sealing expert reports is excessive and is hereby denied.

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Therefore, the Court GRANTS in part Defendants Motion to Seal and ORDERS

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Exhibits A, C, E, I and J filed under seal. The Court DENIES Defendants Motion to Seal

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as to Exhibits B and D.

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3.

Motion to File Under Seal, 11 /2/ 18 - (Doc. No. 206.)

Exhibits A, B, C, D, E, 1 and Jin Support of Defendants'
DAUBERT and IN LIM/NE Motion to Exclude Expert Evidence
and Testimony (Doc. No. 207.)

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Defendants seek to file under seal Exhibits A, B, D, G, I and J. The Court finds the

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Defendants have nan-owly tailored their request to only those exhibits A, C, E, I and J,

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which, if disclosed, would place them at a competitive disadvantage.

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The Court is not persuaded Exhibits B and D warrant sealing. Exhibits B and D

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contain the expert reports of Robert L. Vigil, Ph.D. and Glen Stevick, Ph.D. Entirely

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sealing expert reports is excessive and is hereby denied.

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Therefore, the Court GRANTS in part Defendants Motion to Seal and ORDERS

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Exhibits A, C, E, I and J filed under seal. The Court DENIES Defendants Motion to Seal

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as to Exhibits B and D.

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4.

Motion to File Under Seal, l 1126/ 18 - (Doc. No. 218.)

Exhibits A, B, D, G, I and Jin Support of Defendants' Opposition
to Plaintiff's Motion IN LIM/NE No. 2 to Exclude any Argument,
Testimony, or Evidence (Doc. No. 219.)

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Defendants seek to file under seal portions of its Opposition to Plaintiffs Motion In

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Limine No. 2 and Exhibits A, B, D, G, I and J. The Court find s that the Defendants have

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narrowly tailored their request to only those portions of the Opposition and Exhibits B, D,

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G, I and J containing business, financial and technical information that, if disclosed, would

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place them at a competitive disadvantage.
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The Court is not persuaded Exhibit A warrants sealing. Exhibit A contains the expert

2 report of Robert L. Vigil, Ph.D. Entirely sealing expert reports is excessive and is hereby
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denied.

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Therefore, the Court GRANTS in part Defendants' Motion to Seal. The Cou11

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ORDERS portions of the Opposition and Exhibits 8, D, G, I and J be filed under seal. The

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Court DENIES Defendants Motion to Seal as to Exhibit A.

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5.

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Motion to File Under Seal, 11 126118 - (Doc. No. 22 I.)

Exhibits A, B, C, E, F, G and I in Support of Defendants'
Opposition to Plaintiff's Motion JN LIMINE No. 4 to Exclude any
Argument, Testimony, or Evide11ce regarding the Arbitration
between Plaintiff and Wave Loch, LLC (Doc. No. 222.)

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1I
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Defendants seek to file under seal portions of their Opposition to Plaintiff's Motion

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In Limine No. 4 and Exhibits A, B, C, E, F, G and I in support of their Opposition. The

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Court finds that the Defendants have naiTowiy tailored the request to only those portions

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of their Opposition and Exhibits A, B, C, F, G and I that contain business, financial and

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technical information that, if disclosed, would place them at a competitive disadvantage.

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The Court is not persuaded that the information contained in Exhibit E warrants

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sealing. Exhibit E seeks to seal entirely the expert report of Robert L. Vigil, Ph.D. This

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Court has repeatedly denied sealing entirely expert reports as excessive and does the same

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here as to Exhibit E.

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Therefore, the Court GRANTS in part Defendant's Motion to Seal. The Court

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ORDERS portions the Opposition and Exhibits A, B , C , F , G and I be filed under seal.

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The Court DENIES Defendants Motion to Seal as to Exhibit E.

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Ill

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Ill

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Ill

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Ill

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Ill
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3: 17-cv-O111 8- BEN-BLM

6.
2

Motion to File Under Seal, 11 /26/ 18 - (Doc. No. 224.)

Exhibits A and Bin Support of Defendant's Opposition to Plaintiff's
Motion IN LIM/NE No. 3 to Exclude a11y Argument, Testimony, or
Evidence regarding U.S. Patent No. 8,088,016 (Doc. No . 225.)

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4

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Defendants seek to file under seal certain portions of its Opposition to Plaintiffs

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Motion In Limine No. 3 and Exhibits A and B.

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narrowly tailored its request to only those portions of its Opposition that contains

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information that, if disclosed, would place the designating party at a competitive

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di sadvantage. Upon review, the Court concurs that disclosure of this information would

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place them at a competitive disadvantage. However, the Court declines to seal the entire

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expert reports of Vigil and Stevick contained in Exhibits A and B.

The Court finds that Defendant has

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Therefore, the Court GRANTS Defendants' Motion to Seal in part and ORDERS

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portions of its Opposition filed under seal. Defendant's request to Seal Exhibits A and B

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is DENIED.

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7.

Motion to File U nder Seal, 11126/18 - (Doc. No. 226.)

Defendants' Opposition to Plaintiff's Motion for Summary
Judgment; Exhibit A to the Declaration of Edward M. Pribonic; and
Exhibits A, B, D, E, F, H, I, J, L and M to the Declaration of
Charanjit Brahma (Doc. No . 227 .)

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Defendants seek to tile under seal its Opposition to Plaintiff s Motion for Summary

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Judgment, Exhibit A to the D eclaration of Edward M. Pribonic; and Exhibits A, 8, D, E,

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F, H, I, J, L and M . The Court find s that the Defendants have narrowly tailored their request

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to o nly those pmtions of the Opposition, Exhibit A to the Declaration of Edward M.

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Pribonic and Exhibits B, D, E, F, H, I, J, L and M to the Decl aration of Charanjit Brahma

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that contain business, financial and technical information that, if di sclosed, would place

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them at a competitive disadvantage if disclosed. However, the Court declines to seal the

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entire expett report of Glen Stevick Ph.D. contained in Exhibit A.

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1

Therefore, the Court GRANTS in part Defendants' Motion to Seal. The Court

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ORDERS portions ofDefendants Opposition and Exhibits A to the Declaration of Edward

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M. Pribonic and Exhibits B, D, E, F, H, I, J, L, and M filed under seal. Defendants request

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to seal Exhibit A is DENIED. Additionally, the Court advises the Defendant that future

5 requests to seal outside of those motions covered by this Order shall be summarily
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DENIED unless they include a brief description of each exhibit sought to be sealed.

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8.

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Motion to File Under Seal, 1213118 - (Doc. No. 245.)

Exhibits C, D, E, and F Under Seal in Support of Defendants' Rep(y
Memorandum of Points and Authorities in Support of Defendants'
DAUBERT and JN LIM/NE Motion to Exclude Expert Testimony
and Evidence (Doc. No. 246.)

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10

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Defendants seek to file under seal portions of their Reply Memora ndum of Points

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and Authorities in Support of Defendants' Daubert Motion and Motion In Limine and

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Exhibits C, D, E and F. The Court finds that the Defendants have narrowly tailored their

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request to only those portions of their Reply and Exhibits D, E and F that contain business,

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financial and technical information that, if disclosed, would place them at a competitive

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disadvantage.

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The Court is not persuaded that the information contained in Exhibit C warrants

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sealing. Exhibit C seeks to seal entirely the Supplemental expert report of Glen Stevick

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Ph.D. This Court has repeatedly denied sealing entirely expert reports as excessive and

2I

does the same here as to Exhibit C.

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Therefore, the Court GRANTS in part Defendants' Motion to Seal. The Court

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ORDERS portions the Reply and Exhibits D, E and F be filed under seal. The Court

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DENIES Defendants Motion to Seal as to Exhibit C.

25

Ill

26

Ill

27

I/I

28

Ill
13

3: 17-cv-O I 118-£3EN-1:3LM

9.
2

Motion to File Under Seal. 3/26/18 - (Doc. No. 253.)

Defendants' Memorandum of Contentions of Fact and Law and
Defendants' Trial Ew\:hibit List (Doc. No. 255.)

3

Defendants seek to file under seal, pursuant to § 2(f) of the Southern District of

4

5

California Electronic Case Filing Administrative Policies and Procedures and the parties

6

stipulated Protective Order, an Order filing under seal their Memorandum of Contentions

7

of Fact and Law and Trial Exhibit List.

8

Therefore, the Court GRANTS Defendants' Motion to Seal. The Court ORDERS

9

the Memorandum of Contentions of Fact and Law and Trial Exhibit List be filed unde1

10

seal.

1I

III.

Conclusion

12

ln sum, the Court finds that most of the parties ' various Motions to Seal are narrowly

13

tailored such that they do not impede upon the public's ability to understand the nature of

14

the proceedings and the factual basis for the pa11ies' claims. As such and considering the

15

compelling reasons justifying sealing, the Court GRANTS the Motions to Seal as

16

described above and as identified by the following table in its entirety. Furthe1more, any

17

and all documents the Couit declined to seal shaJl be filed in the public record accordingly

18

Doc. No.

19

189

20
21

198

201

22
23

203

24

25

26
27

28

206

Movant

Document(s) to be Sealed

PSD/Flow 1 Documents lodged at Docket Number 190 as Defendant's
Services : Motion to Seal Exhibits A, C, E, I and J.
Whitewater NI A
Whitewater Documents lodged at Docket Number 202 as Plaintiffs'
Motion to Seal Exhibits l and 15 in Support of its Motion for
Summary Judgment.
PSD/Flow Documents lodged at Docket Number 208 as Defendants'
Services
Motion to File Exhibits A , C, E, I and J in Support of
Defendants' DAUBERT and IN LIMINE Motion to Exclude
Expert Evidence and Testimony.
PSD/Flow Documents lodged at Docket Number 207 as Defendants'
Services
Motion to File Exhibits A , C, E, I and J in Support of
Defendants' DAUBERT and IN LIM/NE Motion to Exclude
Expert Evidence and Testimony.
14
3: 17-cv-0 111 8-BEN-BLM

1

213

2
3
4

218

5

6

221

7
8
9

10

224

11
12

226

13

14
15

234

16
17

237

18

19

20
21

22

240
243

23
24
25
26

27

245

Whitewater Documents lodged at Docket Number 208 as Plaintiffs'
Motion to Seal Exhibits 1, 2 and 6 and Portions of its
Opposition to Defendants' DAUBERTMotion IN LIM/NE to
Exclude Ex2ert Testimony and Evidence.
-·PSD/Flow Documents lodged at Docker Number 219 as Defendants'
Services
Motion to File Exhibits B, D, G, I and J in Support of
Defendants' DAUBERT and IN LIMINE Motion to Exclude
Expert Evidence and Testimony.
PSD/Flow Documents lodged at Docket Number 222 as Defendants '
Services
Motion to File Exhibits A, B , C , F, G and I in Support of
Defendants ' Opposition to Plaintiffs Motion IN LIMINE No.
4 to Exclude any Argument, Testimony, or Evidence
regarding the Arbitration between Plaintiff and Wave Loch,
LLC.
PSD/Flow NIA
Services
PSD/Flow Documents lodged at Docket Number 227 as Defendants'
Services
Opposition to Plaintiffs Motion for Summary Judgment;
Exhibit A to the Declaration of Edward M. Pribonic and
Exhibits B, D, E, F, H, I, J, L, and M to the Declaration of
Charanj it Brahma.
Whitewater Documents lodged at Docket Number 200 as Plaintiffs'
Motion to Seal Exhibits 23, 24 and 25 in Support of its Reply
in Support of Motion for Summary Judgment.
Whitewater Documents lodged at Docket Number 238 as Plaintiffs'
Motion to Seal Exhibit l in Support of its Reply in Suppo11 of
Motion IN LIMINE NO. 2 to Exclude Argument, Testimony,
and Evidence regarding prior lawsuits involving the '589
Patent.
Whitewater NIA
Whitewater Documents lodged at Docket Number 244 as Plaintiffs'
Motion to Seal Portions of its Reply in Support of its
DAUBERT Motion to Exclude the Repm1 and Testimony of
James T. Carmichael.
PSD/Flow Documents lodged at Docket Number 246 as Defendants'
Services
Motion to File Exhibits D, E, and F in Support of Defendants'
Reply Memorandum of Points and Authorities in Support of
Defendants' DAUBERT and IN LIMINE Motion to Exclude
Expert Testimony and Evidence.

28
15
3 17-cv-O 1118-R EN-BUv

249
2

3

4

253

Whitewater Documents lodged at Docket Number 250 as Plaintiffs'
Motion to Seal Exhibits 2 in Support of its Errata to Evidence
submitted in Su ort of Motion for Summa 'Jud ment.
PSD/Flow Documents lodged at Docket Number 255 as Defendants'
Services
Memorandum of Contentions of Fact and Law and
Defendants' Trial Exhibit List.

16
3: 17-cv-0111 8-BEN- BLM