Eyetalk365, LLC v. Zmodo Technology Corporation Limited
Filing
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ORDER re ECF No. 177 Motion to Seal. The Sealed Exhibit (ECF No. 85), in Case No. 3:17-cv-00686, and Sealed Exhibit (ECF No. 179 ), in Case No. 2:17-cv-02714, referenced in Zmodo's motions shall remain under seal until August 23, 2018. See order for further details and instructions. Signed by Magistrate Judge Peggy A. Leen on 8/15/2018. (Copies have been distributed pursuant to the NEF - LH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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EYETALK365, LLC,
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v.
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Case No. 3:17-cv-00686-RCJ-PAL
Plaintiff,
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ZMODO TECHNOLOGY CORPORATION
LIMITED,
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ORDER
Defendant.
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(Mot. to Seal – ECF No. 84)
EYETALK365, LLC
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Case No. 2:17-cv-02714-RCJ-PAL
Plaintiff,
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v.
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ORDER
ZMODO TECHNOLOGY CORPORATION
LIMITED,
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(Mot. to Seal – ECF No. 177)
Defendant.
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These matters are before the court on Defendant Zmodo Technology Corporation Limited’s
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(“Zmodo”) Motion to Seal (ECF No. 84) in Case No. 3:17-cv-00686, and Motion to Seal (ECF
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No. 177) in Case No. 2:17-cv-02714.1 These motions are referred to the undersigned pursuant to
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28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
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The motions seek leave to file under seal Plaintiff’s Eyetalk365, LLC’s (“Eyetalk”)
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Objections and Answers to Zmodo’s First Set of Requests for Production, served August 1, 2018.
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This document is submitted to the court as Exhibit B to Zmodo’s Motion to Compel Discovery
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Relating to Plaintiff’s Motion to Disqualify, which is filed in both cases. See Sealed Exhibit (ECF
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No. 85), Case No. 3:17-cv-00686; Sealed Exhibit (ECF No. 179), Case No. 2:17-cv-02714.
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Zmodo filed Exhibit B under seal because counsel for Eyetalk designated the document as “Highly
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Case No. 2:17-cv-02714 was transferred to this district from the Western District of North Carolina.
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Confidential – Attorneys’ Eyes Only” pursuant to the protective orders entered in these cases.
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Protective Order (ECF No. 33), Case No. 3:17-cv-00686; Protective Order (ECF No. 109), Case
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No. 2:17-cv-02714. Zmodo expressed no position regarding the confidentiality of the document.
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As the party who designated Exhibit B confidential, Eyetalk is required to meet the
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standards articulated by the Ninth Circuit in Kamakana v. City and County of Honolulu, 447 F.3d
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1172 (9th Cir. 2006), to overcome the presumption of public access to judicial files, records,
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motions, and any exhibits. See also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092
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(9th Cir. 2016) (finding that the standards courts apply to sealing requests turn on the relevance of
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the documents to the substantive merits of a case—not on the relief sought). Under Kamakana
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and its progeny, a party must make a particularized showing to overcome the presumption of public
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accessibility. The mere fact that one party designated information as confidential under a
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protective order does not satisfy this standard. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470,
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475–76 (9th Cir. 1992) (explaining that blanket protective orders are over inclusive by nature and
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do not include a finding of “good cause”).
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Additionally, if a sealing order is permitted, it must be narrowly tailored. Press-Enterprise
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Co. v. Superior Ct. of Cal., 464 U.S. 501, 512 (1984). Only those portions of a motion and/or
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exhibit that contain specific reference to confidential documents or information may be filed under
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seal. See In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 425 (9th Cir. 2011); Foltz
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v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003). The remainder of the
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motion and other exhibits that do not contain confidential information, must be filed as publicly-
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accessible documents. See LR IA 10-5(b) (“The court may direct the unsealing of papers filed
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under seal, with or without redactions, after notice to all parties and an opportunity to be heard.”).
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Pursuant to Kamakana and LR 10-5, the party designating any document(s) as confidential must
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submit a memorandum of points and authorities presenting articulable facts that identify the
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interests in favor of a document’s continued secrecy, and showing that these specific interests
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outweigh the public’s interests in transparency.
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Here, Zmodo seeks leave to file Exhibit B under seal because Eyetalk has marked the
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document “Highly Confidential – Attorneys’ Eyes Only.” However, this statement alone does not
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overcome the presumption of public access. The court appreciates that the motions were filed to
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comply with Zmodo’s obligation to treat documents designated by opposing counsel as
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confidential, but the mere statement that Eyetalk designated the documents as confidential does
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not establish a particularized showing for sealing. As the party who designated the document
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confidential, Eyetalk is required to meet the standards articulated in Kamakana and its progeny.
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The court will allow Exhibit B to remain sealed temporarily so the parties and their counsel
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may confer about what, if any, portion of the document should be sealed. If Eyetalk determines
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that Exhibit B should remain sealed, Eyetalk must file an appropriate memorandum of points
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and authorities on or before August 23, 2018, making a particularized showing why the
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documents should remain under seal. If Eyetalk determines that only a portion of Exhibit B
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warrants sealing, Eyetalk must file a redacted version along with its memorandum of points and
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authorities. Pursuant to Kamakana and its progeny, any memorandum of points and authorities
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or motion to file under seal must set forth either good cause or compelling reasons to support the
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sealing Accordingly,
request.
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IT IS ORDERED:
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1. The Sealed Exhibit (ECF No. 85), in Case No. 3:17-cv-00686, and Sealed Exhibit (ECF
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No. 179), in Case No. 2:17-cv-02714, referenced in Zmodo’s motions shall remain
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under seal until August 23, 2018.
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2. With respect to filing documents under seal, the parties must comply with: (i) the Local
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Rules of Practice regarding electronic filing and filing under seal, (ii) the Ninth
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Circuit’s opinions in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th
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Cir. 2006), and its progeny, and (iii) the appropriate CM/ECF filing procedures.
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3. As the designating party, Eyetalk shall have until August 23, 2018, to review Exhibit
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B and FILE either: (i) an appropriate memorandum of points and authorities
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indicating the document should remain under seal, or (ii) a notice indicating that the
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document does not require sealing.
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4. To support any sealing request, a memorandum of points and authorities must make a
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particularized showing why the document(s) or portion thereof should remain under
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seal. If only a portion of the document(s) warrants sealing, the memorandum must
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attach a proposed redacted version. The memorandum may also include a supporting
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declaration or affidavit and/or proposed order granting the motion to seal.
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5. If no memorandum of points and authorities is timely filed in compliance with this
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Order, the Clerk of the Court will be directed to unseal the documents to make them
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available on the public docket.
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DATED this 15th day of August, 2018.
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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE
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