2-Way Computing, Inc. v. Sprint Nextel Corporation et al

Filing 212

ORDER granting 187 Motion to Seal and granting 199 Motion to Seal. Signed by Magistrate Judge Peggy A. Leen on 1/29/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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2-WAY COMPUTING, INC.,

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Plaintiff,

ORDER

v.

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Case No. 2:11-cv-00012-JCM-PAL

(Mtn to Seal – Dkt. #187)
(Mtn to Seal – Dkt. #199)

NEXTEL FINANCE COMPANY, et al.,
Defendants.

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This matter is before the court on Plaintiff 2-Way Computing, Inc.’s Unopposed Motion

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for Leave to File Under Seal (Dkt. #187) and Defendants Nextel Finance Company’s, Sprint

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Solutions, Inc.’s, Sprint United Management Company’s, Nextel Boost of California, LLC’s, and

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Nextel Communications, Inc.’s (“Defendants”) Unopposed Motion for Leave to File Under Seal

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(Dkt. #199). The court has considered the Motions.

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I.

Plaintiff’s Motion to Seal (Dkt. #187).

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Plaintiff requests an order pursuant to LR 10-5(b) granting it leave to file portions of its

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(a) Opposition to Defendants’ Motion in Limine to Preclude the Testimony of Plaintiff’s Expert

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Wayne E. Stark Regarding Literal Infringement of Claim 6 of the ‘797 Patent (Dkt. #189); and

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(b) Opposition to Defendants’ Motion to Exclude the Testimony of Michele M. Riley (Dkt.

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#188), including certain exhibits, under seal.

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incorporate and attach material deemed confidential under the Protective Order (Dkt. #39) and

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Amended Protective Order (Dkt. #99) entered by the court.

Plaintiff asserts first that the Oppositions

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Second, Plaintiff represents that, along with the Oppositions themselves, the following

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exhibits contain information related to the development and operation of the proprietary iDEN

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technology at issue in this lawsuit, including how devices that use iDEN technology operate:

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Exhibit 1 to the Declaration of Cheryl Burgess: the opening expert report of
Wayne E. Stark;

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Exhibit 2 to the Burgess Declaration: excerpts from the rebuttal expert report of
Anthony Acampora; and

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

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Exhibit 3 to the Burgess Declaration: excerpts from the deposition transcript of
Wayne E. Stark.

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Third, Plaintiff asserts that Exhibit 4 to the Burgess Declaration, the expert report of

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Michele Riley, contains confidential financial information about Sprint’s sale of the accused

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products. Because of the confidential, proprietary, and private nature of these materials, Plaintiff

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contends public disclosure could result in improper use and would put Sprint and non-parties

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Motorola Mobility, Inc., and Motorola Solutions, at a competitive disadvantage.

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In the Ninth Circuit, it is well-established that the “fruits of pretrial discovery are, in the

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absence of a court order to the contrary, presumptively public.” San Jose Mercury News v.

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United States District Court, 187 F.3d 1096, 1103 (9th Cir.1999). However, where a party

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shows good cause1 for limiting access to documents and information produced during discovery

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and attached to non-dispositive motions, the materials may be filed under seal. See Kamakana v.

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City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). The court finds Plaintiff has stated

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good cause to file portions of the Oppositions and certain exhibits to the Oppositions, as set forth

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above, under seal. Id. at 1179 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598

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(1978) (compelling reasons where material could be a “vehicle for improper purposes,”

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including the release of trade secrets)

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Good cause to seal court records exist where the material might “become a vehicle for

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improper purposes,” including the release of trade secrets. See Kamakana, 447 F.3d at 1179

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(citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). The Ninth Circuit has

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adopted the Restatement’s definition of “trade secret,” which includes any “formula, pattern,

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Although Plaintiff argues the compelling reasons standard, good cause is the standard to apply
because motions in limine are, by definition, non-dispositive evidentiary motions. See Luce v.
United States, 469 U.S. 38, 40 n.2 (1984) (stating a motion in limine seeks “to exclude
anticipated prejudicial evidence before the evidence is offered”).
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device or compilation of information which is used in one’s business, and which gives him an

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opportunity over competitors who does not know or use it.” Apple Inc. v. Samsung Electronics

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Co., Ltd., 727 F.3d 1214, 1222 (Fed Cir. 2013) (applying Ninth Circuit law and citing

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Restatement (First) of Torts § 757 cmt. B). The court finds Plaintiff has made a particularized

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showing of good cause to file the Oppositions and the exhibits specified above under seal.

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II.

Defendants’ Motion to Seal (Dkt. #199).

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Defendants seek an order permitting them to file portions of their Reply in Support of

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Defendants’ Motion in Limine to Preclude the Testimony of Wayne E. Stark (Dkt. #200).

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Defendants assert that the court has previously determined that compelling reasons existed to

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seal documents related to iDEN, and devices that use iDEN, work when it granted leave to file

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documents under seal in connection with Defendants’ Motions for Summary Judgment (Dkt.

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##157, 159). Defendants contend the redactions to the Reply also relate to the functionality of

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the proprietary iDEN technology. For the reasons set forth above, the court finds Defendants

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have stated good cause to file portions of the Reply under seal.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff’s Motion to File Under Seal (Dkt. #187) is GRANTED.

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2. Defendants’ Motion to File Under Seal (Dkt. #199) is GRANTED.

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Dated this 29th day of January, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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