Kewazinga Corp. v. Microsoft Corporation
Filing
316
ORDER: granting in part and denying in part 188 Letter Motion to Seal; granting in part and denying in part 204 Letter Motion to Seal; granting in part and denying in part 211 Letter Motion to Seal; granting in part and denying in part 227 Le tter Motion to Seal; granting in part and denying in part 241 Letter Motion to Seal; granting in part and denying in part 247 Letter Motion to Seal; granting in part and denying in part 264 Letter Motion to Seal; granting in part and denying in part 269 Letter Motion to Seal; granting in part and denying in part 282 Letter Motion to Seal; granting in part and denying in part 299 Letter Motion to Seal; granting in part and denying in part 307 Letter Motion to Seal. For the reasons s tated above, the parties have largely satisfied their burdens to demonstrate that the privacy interests and the risk of competitive harm that would result from disclosure outweigh the strong presumption of public access to the documents at issue. How ever, certain proposed redactions are not narrowly tailored to protect those interests. Accordingly, the parties' motions to redact and seal certain documents and exhibits are GRANTED in part, and DENIED as to the proposed redactions specified a bove. The parties are directed to submit revised jointly proposed redactions for those documents involving a third-party confidentiality interest, by no later than April 7, 2021. In light of the examples of inconsistent redactions provided above, the parties are strongly encouraged to review all of their proposed redactions in conjunction with the exhibits they have submitted on the public docket and to ensure the proposed redactions are uniform throughout. Any documents for which the Court has denied the parties' request to redact or seal must be filed on the public docket by no later than April 7, 2021.The Clerk of the Court is respectfully directed to terminate the motions at Dkt. Nos. 188, 204, 211, 227, 241, 247, 264, 269, 282, 299, and 307.SO ORDERED.. (Signed by Judge Gregory H. Woods on 3/31/2021) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KEWAZINGA CORP.,
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:
Plaintiff,
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-against:
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MICROSOFT CORPORATION
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/31/2021
1:18-cv-4500-GHW
ORDER
GREGORY H. WOODS, United States District Judge:
I.
INTRODUCTION
This is a patent infringement case regarding three patents which teach telepresence systems,
devices, and methods that enable one or more users to navigate imagery through a remote
environment. Plaintiff Kewazinga Corp. (“Kewazinga”) is a Delaware corporation that developed
the navigable telepresence technology at issue in this case. Defendant Microsoft Corporation
(“Microsoft”) is a Washington corporation that, as relevant here, uses the allegedly infringing
technology—navigable, street-level imagery known as “Streetside.” Kewazinga initiated this action
on May 21, 2018. Dkt. No. 1. On July 17, 2020, both parties moved for summary judgment. Dkt.
Nos. 187, 190. The following day, the parties each moved to exclude testimony from the other
party’s expert witnesses. Dkt. Nos. 193, 203. On August 20, 2020, Microsoft cross-moved for
summary judgment in opposition to Kewazinga’s motion for summary judgment. Dkt. No. 226. In
connection with those motions, the parties have submitted eleven motions to seal portions of their
briefs, statements of fact, and exhibits. As discussed below, those motions are granted in part and
denied in part.
II.
THE MOTIONS TO SEAL
On July 17, 2020, Microsoft moved to redact and seal portions of its Motion for Summary
Judgment and certain supporting exhibits (Exhibits 1, 3, 7, 8, 10, 12–17, 24, 28–30, 49 and 51). Dkt.
No. 188. The letters supporting that request assert that the proposed redactions include Microsoft’s
confidential and proprietary business information and confidential technical information, as well as
exhibits and information produced by and including information designated by a third party as
“Highly Confidential – Attorneys’ Eyes Only” pursuant to the Protective Order in this case (Dkt.
No. 30). See id., Dkt. No. 220.
On July 17, 2020, Microsoft moved to redact and seal portions of its Motion to Exclude the
Testimony of Kewazinga’s Experts and certain supporting exhibits (Exhibits 1–3, 8, 9, and 11–23).
Dkt. No. 204. The letters supporting that request assert that the proposed redactions include
Microsoft’s confidential and proprietary business information and confidential technical
information, as well as exhibits and information produced by and including information designated
by a third party as “Highly Confidential – Attorneys’ Eyes Only” pursuant to the Protective Order in
this case. See id., Dkt. No. 221.
On July 18, 2020, Kewazinga moved to redact and seal portions of its Motion for Summary
Judgment, Local Rule 56.1 statement, Motion to Exclude Expert Testimony, and certain supporting
exhibits (Exhibits 4, 5, 8, 9, 20, 24, 37–40, 48, 49, 51–55, 60, 62 to the Motion for Summary
Judgment and Exhibits 2, 5, 7–14, 16–20 to the Motion to Exclude Expert Testimony). Dkt. No.
211. The letters supporting that request assert that the proposed redactions include Microsoft’s
confidential and proprietary business information and confidential technical information, as well as
exhibits designated “Confidential” or “Attorneys’ Eyes Only” by a third party. See id., Dkt. Nos.
222–23.
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On August 20, 2020, Microsoft moved to redact and seal portions of its Response to
Plaintiff Kewazinga’s Motion for Summary Judgment and Cross Motion for Summary Judgment,
Local Civil Rule 56.1(b) Responses To Plaintiff Kewazinga’s Local Civil Rule 56.1(a) Statement,
Local Rule 56.1(a) statement, and certain supporting exhibits to the Declaration of J. Christopher
Carraway (Exhibits 1, 4, 6, 9, 10–12, 17, 22, 36, 44, and 48) and to the Declaration of Kristin L.
Cleveland (Exhibit A). Dkt. No. 227. The letters supporting that request assert that the proposed
redactions include Microsoft’s confidential and proprietary business information and confidential
technical information, as well as confidential information of third parties. See id., Dkt. No. 263.
On August 20, 2020, Microsoft moved to redact and seal portions of its Response to
Plaintiff’s Motion to Exclude Testimony and Opinions of Defendant’s Experts and certain related
exhibits (Exhibits 1, 2, 9, 10, and 12). Dkt. No. 241. The letter supporting that request asserts that
Microsoft seeks to redact or seal documents containing its confidential and proprietary business
information and confidential technical information. Id.
On August 20, 2020, Kewazinga moved to redact and seal portions of its Opposition to
Microsoft’s Motion for Summary Judgment, Local Rule 56.1 statement, Opposition to Microsoft’s
Motion to Exclude Expert Testimony, and certain supporting exhibits (Exhibits 1, 2, 3, 7, 10, 11, 12,
13, 14, 29, 30, and 31 to the Opposition to the Motion for Summary Judgment and Exhibits 1, 3, 6,
7, 8, and 9 to the Opposition to the Motion to Exclude Expert Testimony). Dkt. No. 247. The
letters supporting that request assert that the proposed redactions include Microsoft’s confidential
and proprietary business information and confidential technical information, as well as exhibits and
information designated “Confidential” or “Attorneys’ Eyes Only” by a third party. Dkt. No. 258.
On September 3, 2020, Microsoft moved to redact and seal portions of its Reply in Support
of its Motion for Summary Judgment and two exhibits filed in support thereof (Exhibits 5 and 6).
Dkt. No. 264. The letter supporting that request asserts that the proposed redactions include
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Microsoft’s confidential and proprietary business information, and information designated
“Attorneys’ Eyes Only” by a third party. Id. The information appears to include confidential and
proprietary business information of that third party. Id.
On September 3, 2020, Kewazinga moved to redact and seal its Reply in Support of its
Motion for Summary Judgment, Reply in Support of its Motion to Exclude Expert Testimony, Local
Rule 56.1 Statements, and certain supporting exhibits (Exhibits 1, 13, 14, 16, 17, 18, 19, 20, 21, and
22 to the Reply in Support of the Motion for Summary Judgment and Exhibits 3 and 4 to the Reply
in Support of its Motion to Exclude Expert Testimony). Dkt. No. 269. The letters supporting this
request assert that the proposed redactions include Microsoft’s confidential and proprietary business
information, the confidential personally identifiable information of Microsoft employees, and
information designated “Confidential” or “Attorneys’ Eyes Only” by a third party. See id.; Dkt. No.
293.
On September 3, 2020, Microsoft moved to redact and seal portions of its Reply in Support
of its Motion to Exclude Testimony and Opinions of Plaintiff’s Experts and related Declaration and
related exhibit (Exhibit No. 2). Dkt. No. 282. The letters supporting this request assert that the
proposed redactions include Microsoft’s confidential and proprietary financial information and the
confidential information of a third party. See id; Dkt. No. 294.
On September 17, 2020, Kewazinga moved to redact and seal Exhibit B to its Request for
Leave to file a Sur-reply. Dkt. No. 299. The letter supporting this request asserts that the proposed
redactions include Microsoft’s confidential and proprietary financial information. See id.; Dkt. No.
303.
On October 2, 2020, Kewazinga moved to redact and seal its Sur-reply in Opposition to
Microsoft’s Motion for Summary Judgment, and Exhibit 1 thereto. Dkt. No. 307. The letter
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supporting this request asserts that the proposed redactions include Microsoft’s confidential and
proprietary financial information. See id.; Dkt. No. 313.
III.
LEGAL STANDARD
There is a long-established “general presumption in favor of public access to judicial
documents.” Collado v. City of New York, 193 F. Supp. 3d 286, 288 (S.D.N.Y. 2016). The Second
Circuit has defined “judicial documents” as documents filed with a court that are “relevant to the
performance of the judicial function and useful in the judicial process[.]” Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (quotation omitted); see also Lytle v. JPMorgan Chase, 810 F.
Supp. 2d 616, 620–621 (S.D.N.Y. 2011). The presumption of access is “based on the need for
federal courts . . . to have a measure of accountability and for the public to have confidence in the
administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). Applications
to seal documents must therefore be “carefully and skeptically review[ed] . . . to insure that there
really is an extraordinary circumstance or compelling need” to seal the documents from public
inspection. Video Software Dealers Ass’n v. Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994).
“The burden of demonstrating that a document submitted to a court should be sealed rests
on the party seeking such action[.]” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir.
1997). “Documents may be sealed if specific, on the record findings are made demonstrating that
closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch,
435 F.3d at 120 (quotation omitted); see also Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814
F.3d 132, 141 (2d Cir. 2016) (requiring that a court make specific, rigorous findings before sealing a
document or otherwise denying public access). “[T]he decision as to access [to judicial records] is
one best left to the sound discretion of the trial court, a discretion to be exercised in light of the
relevant facts and circumstances of the particular case.” Nixon v. Warner Commc’ns, 435 U.S. 589, 599
(1978).
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Higher values that may justify the sealing of documents include national security concerns,
attorney-client privilege, law enforcement interests, or the privacy interests of third parties. See
E.E.O.C. v. Kelley Drye & Warren LLP, No. 10 Civ. 655 (LTS) (MHD), 2012 WL 691545, at *2
(S.D.N.Y. Mar. 2, 2012) (collecting cases). “Courts commonly find that documents that contain
trade secrets, confidential research and development information, marketing plans, revenue
information, pricing information, and the like satisfy the sealing standard.” Rensselaer Polytechnic Inst.
v. Amazon.com, Inc., 2019 WL 2918026, at *2 (N.D.N.Y. June 18, 2019) (internal quotations omitted);
Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999) (“Documents falling
into categories commonly sealed are those containing trade secrets, confidential research and
development information, marketing plans, revenue information, pricing information, and the
like.”).
In Mirlis v. Greer, the Second Circuit summarized the three steps that the Court must follow
to determine whether the presumption of public access attaches to a particular document and bars
sealing. See 952 F.3d 51, 59 (2d Cir. 2020). First, the Court determines whether the document is a
“judicial document,” namely, “one that has been placed before the court by the parties and that is
relevant to the performance of the judicial function and useful in the judicial process.” Id.
(quotation omitted). Second, if the materials are “judicial documents,” the Court “proceeds to
‘determine the weight of the presumption of access to that document.’” Id. (quoting United States v.
Erie Cty., 763 F.3d 235, 239, 241 (2d Cir. 2014)). “The weight to be accorded is ‘governed by the
role of the material at issue in the exercise of Article III judicial power and the resultant value of
such information to those monitoring the federal courts.’” Id. (quoting Amodeo, 71 F.3d at 1049).
“Finally, the court must identify all of the factors that legitimately counsel against disclosure of the
judicial document, and balance those factors against the weight properly accorded the presumption
of access.” Id.
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IV.
DISCUSSION
For the most part, the parties have made an adequate showing to justify their proposed
redactions. There are a few exceptions to that conclusion, as discussed further below.
At the outset, the Court notes that it cannot assess the motions as to two of the documents
because there is information missing from the versions filed under seal. Dkt. No. 215-2 appears to
be missing pages and Dkt. No. 245-4 contains a redaction for which the Court has not been
provided the underlying text. The Court cannot evaluate these proposed redactions with the
information given, and thus, the requests as to those two documents are denied without prejudice.
a. Judicial Documents
Step one of the Mirlis test is easily satisfied. Here, all of the documents at issue were
submitted to the Court in support of motions for summary judgment and motions in limine.
Therefore, they “would reasonably have the tendency to influence” the Court’s decision on the
outstanding motions. Brown v. Maxwell, 929 F.3d 41, 49–50 (2d Cir. 2019). This is true, regardless of
“which way the court ultimately rules or whether the document ultimately in fact influences the
court’s decision.” Id. (citations omitted).
b. Weight of the Presumptive Right of Access
With respect to step two of the Mirlis test, the weight of the presumption of public access to
the information the parties seek to shield from the public is significant. As stated previously, “[t]he
weight to be accorded is ‘governed by the role of the material at issue in the exercise of Article III
judicial power and the resultant value of such information to those monitoring the federal courts.’”
Mirlis, 952 F.3d 51, 59 (2d Cir. 2020) (quoting Amodeo, 71 F.3d at 1049).
The significant majority of the documents were submitted to the court as “supporting
material in connection with [the parties’] motion[s] for summary judgment.” Lugosch, 435 F.3d at
123. Accordingly, there is a strong presumption of public access. See id. at 121 (“Our precedents
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indicate that documents submitted to a court for its consideration in a summary judgment motion
are—as a matter of law—judicial documents to which a strong presumption of access attaches,
under both the common law and the First Amendment.”). Indeed, the presumption here is at its
“highest: ‘documents used by parties moving for, or opposing, summary judgment should not
remain under seal absent the most compelling reasons.’” Id. at 123 (quoting Joy v. North, 692 F.2d
880, 893 (2d Cir. 1982)).
That said, certain of the information that is sought to be redacted carries less weight, because
it does not bear directly on the analysis conducted by the Court in its resolution of the motions.
The Court has considered the weight to be accorded to each of the relevant materials sought to be
redacted. However, because there are a large number of requested redactions, rather than describing
the weight accorded to each data point that is the subject of a sealing request, the Court will
categorize the weight of the documents presented to the Court in connection with the motion for
summary judgment in general terms as “significant.” The Court analyzes the weight to be accorded
to certain specific requests below where relevant.
The presumption of public access for the remaining documents—submitted in connection
with the parties’ motions in limine—is “generally somewhat lower than the presumption applied to
material introduced . . . in connection with dispositive motions such as motions for dismissal or
summary judgment.” Brown, 929 F.3d at 50. Nonetheless, the Court “must still articulate specific
and substantial reasons for sealing such material.” Id.
c. Identification and Balancing of Countervailing Interests
Step three of the Mirlis test requires that the Court consider the countervailing interests that
weigh against public disclosure. “Foremost among the competing concerns that a court weighing
disclosure must consider is ‘the privacy interest of the person resisting disclosure.’” Mirlis, 952 F.3d
at 61 (quoting Amodeo, 71 F.3d at 1050 (reiterating that “the privacy interests of innocent third
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parties . . . should weigh heavily in a court’s balancing equation”)). “Such interests establish a
“venerable common law exception to the presumption of access.” Amodeo, 71 F.3d at 1051. In
determining the proper weight to accord an asserted privacy interest, a court should consider both
“the degree to which the subject matter is traditionally considered private rather than public,” as well
as “[t]he nature and degree of the injury” to which the party resisting disclosure would be subjected
were the privacy interest not protected. Id. The latter inquiry entails “consideration not only of the
sensitivity of the information and the subject but also of how the person seeking access intends to
use the information.” Id.
Here, the parties have identified four countervailing interests. The Court will discuss each of
these in turn.
i. Confidential Personally Identifiable Information
Microsoft seeks to redact the personally identifiable information (e-mail addresses) of its
employees. The personal information of non-parties, including e-mail addresses, is not relevant to
the adjudication of the motions at hand. Because of the significant privacy interests of non-parties,
and the lack of relevance of this information to any issue in this litigation, the request to redact the
e-mail addresses of Microsoft’s employees is granted. See Saint-Jean v. Emigrant Mortg. Co., No. 11CV-2122 (SJ), 2016 WL 11430775, at *8 (E.D.N.Y. May 24, 2016); see also Burgess v. Town of
Wallingford, No. 3:11-CV-1129 CSH, 2012 WL 4344194, at *11 (D. Conn. Sept. 21, 2012) (ordering
the redaction of “such individual pieces of information as a ‘home address, e-mail address, phone
number, and the like[ ]”’ because “‘[t]he Internet has revolutionized the scope and manner in which
information is available for public access . . . and has also, unfortunately, provided criminals with a
new medium through which to commit crimes’” and there was “minimal countervailing public
interest in the disclosure of such personally identifying information.” (quoting Sec. Indus. and Fin.
Markets Ass’n v. Garfield, 469 F . Supp. 2d 25, 36 (D. Conn. 2007)).
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ii. Confidential and Proprietary Business Information
Microsoft seeks to seal and redact documents containing its confidential and proprietary
business information. Microsoft asserts that exposure of this information would be disadvantageous
and prejudicial to Microsoft, as it could allow competitors to develop products that compete with
Microsoft, or it could be used by third parties to gain an advantage over Microsoft in business
negotiations.
“The demonstration of a valid need to protect the confidentiality of confidential and
proprietary business information may be a legitimate basis to rebut the public’s presumption of
access to judicial documents.” Lexington Furniture Indus., Inc. v. Lexington Co., AB, No. 19-CV-6239
(PKC), 2021 WL 1143694, at *2 (S.D.N.Y. Mar. 24, 2021). Examples of commonly sealed
documents include those containing “trade secrets, confidential research and development
information, marketing plans, revenue information, pricing information, and the like.” Cumberland,
184 F.R.D. at 506; see also CSL Silicones, Inc. v. Midsun Group, Inc., No. 3:14-CV-1897 (CSH), 2017 WL
4750701, at *3 (D. Conn. July 12, 2017) (“[C]onfidential ‘commercial information’ of a business—
including trade secrets, confidential research, internal business documents and information about a
business’s operations—has been recognized repeatedly as a proper subject for sealing.”) (citations
omitted); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015)
(granting motion to redact documents containing advertising expenditures and plans, merchandising
strategies, policies, and sales); Hesse v. SunGard Sys. Int’l, No. 12 CIV. 1990 CM JLC, 2013 WL
174403, at *2 (S.D.N.Y. Jan. 14, 2013) (permitting the sealing of “billing rates and project pricing, as
well as details of specific projects completed for several clients”); GoSMiLE, Inc. v. Dr. Johnathan
Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y. 2011) (granting motion to seal “highly
proprietary material concerning the defendants’ marketing strategies, product development, costs
and budgeting”).
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Upon review, the Court finds that for the majority of the proposed redactions, Microsoft’s
concerns outweigh the public’s right to access this information at this stage of the case and that the
proposed redactions are narrowly tailored to protect only this sensitive business information. The
redacted information includes confidential information about Microsoft’s business models, including
details of Microsoft’s sources of revenue and the amounts of its revenue and sales; quantitative
details about Microsoft’s user base for certain offerings; quantitative details about usage of specific
product features; specific revenue amounts from certain offerings; and information regarding
settlement agreements with third parties, which include confidentiality obligations to those third
parties. Thus, for most of Microsoft’s proposed redactions, it is clear that the information should
remain private; if that information were to be disclosed, it could indeed harm Microsoft or
advantage its competitors. Therefore, that information should remain sealed. See Amodeo, 71 F.3d at
1051 (“Commercial competitors seeking an advantage over rivals need not be indulged in the name
of monitoring the courts . . . .”); Skyline Steel, LLC v. PilePro, LLC, 101 F. Supp. 3d 394, 412–13
(S.D.N.Y. 2015) (sealing “highly confidential sales information, including pricing information”).
However, the Court notes the following proposed redactions which appear to be overbroad.
For these redactions, it is not clear from Microsoft’s application that the risk of harm to Microsoft
outweighs the public’s right to access information contained in judicial documents, particularly when
the information sought to be redacted does not appear to be specific or confidential: Dkt. Nos.
202-6; 202-7 at ¶ 28; 202-15 at 5; 1 202-15 at ¶ 58; 212 at 19-24, 32; 218 at 9-10, and 218-3 at 224. 2
With those exceptions aside, balancing the factors that counsel against disclosure—here,
Microsoft’s interest in protecting its business information—against the presumption of access, the
Court finds that the presumption of access is overcome.
For consistency, the Court refers to the ECF page numbers in all citations to the docket.
In connection with their motions to seal, the parties have, in some instances, submitted the same portions of the same
document for the Court’s review. The Court’s rulings apply consistently to any duplicate requests.
1
2
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iii. Confidential Technical Information
Microsoft also seeks to prevent the disclosure of its confidential technical information. The
documents that Microsoft seeks to redact or seal contain information regarding confidential and
proprietary data collection procedures, image processing procedures, specific hardware used to
perform these procedures, and confidential details about Microsoft’s source code, including specific
algorithms and the names of specific variables and functions in that source code.
Unsealing Microsoft’s technical information could allow competitors an unfair advantage,
and would thus be highly prejudicial to Microsoft. See, e.g., Uni-Sys., LLC v. United States Tennis Ass’n,
Inc., No. 17CV147KAMCLP, 2018 WL 6179433, at *7 (E.D.N.Y. Nov. 27, 2018) (granting motion
to seal documents “contain[ing] sensitive or proprietary technical” information); Avocent Redmond
Corp. v. Raritan Americas, Inc., No. 10 CIV. 6100 PKC, 2012 WL 3114855, at *16 (S.D.N.Y. July 31,
2012) (“The parties may file the following documents under seal because they include engineering
schematics, confidential source code and confidential deliberations about future products, the
disclosure of which could unfairly allow competitors to develop competing products . . . .”).
However, some of the proposed redactions are not narrowly tailored, as they seek to redact
publicly available information. For example, compare the tweening theory described at Dkt. No.
245-1 ¶ 377 with the information filed publicly at Dkt. No. 228 at 39. And, the deposition transcript
at Dkt. No. 218-11 at 25–26 contains proposed redactions for information left unredacted at Dkt.
No. 202-7 at 8–9 or that is publicly available at Dkt. No. 192-15 at 8–9. Those exhibits contain the
same pages from the same deposition, but the parties seek to redact information that has already
been provided to the public. Little weight should be accorded to Microsoft’s privacy interests in
such instances.
And, as with Microsoft’s confidential proprietary information, for some of the redactions, it
is not apparent from the motions to seal and the information in the documents why disclosure of
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the information would be harmful to Microsoft. See, e.g., Dkt. No. 218-11 at 42–43 (redacting
descriptions of exhibits in deposition appendix, including “expert report of Riley”); see also Dkt.
Nos. 218-10 at 9; 249-1 at 9, 14 n.90 (see main text on same page); 249-3 at 58–59.
The Court further notes that the proposed redactions at Dkt. No. 218-11 contain
information necessary to resolve the issues raised in the parties’ summary judgment motions and
motion in limine regarding Ms. Riley’s apportionment method. The presumption of public access
weighs heavily in favor of unsealing that information, irrespective of the inconsistent redactions.
Likewise, the redacted information found at Dkt. Nos. 250 at 3–8 and ¶ 402 and 283-2 at 32–33 is
necessary for the Court’s analysis of the parties’ “array of cameras” arguments. Here too, the
presumption of public access to viewing judicial documents for dispositive motions such as the ones
here outweighs the potential harm to Microsoft, and the request is denied as to those requests.
Accordingly, with the exception of the proposed redactions described above, the Court finds
that the countervailing privacy concerns outweigh the public’s need for public access.
iv. Confidential Third-Party Information
Both Microsoft and Kewazinga seek to redact and seal documents containing confidential
third-party information. For this category of documents, the parties have provided little briefing,
without any supporting law. The basis for the parties’ requests appears to be the fact that the
documents and information were designated as “Highly Confidential,” “Confidential,” or
“Attorney’s Eyes Only” under the protective order in this action. However, the application of a
protective order to discovery documents does not necessarily mean that those documents meet the
“higher threshold imposed by the First Amendment with respect to judicial documents.” Newsday
LLC v. County of Nassau, 730 F.3d 156, 166 (2d Cir. 2013) (collecting cases); see also Johnson v. Federal
Bureau of Prisons, No. 16 CV 3919, 2017 WL 5197143, at *3 (E.D.N.Y. Nov. 9, 2017) (“[A]lthough it
is true that a protective order may provide guidance to the parties regarding what documents it
13
might be appropriate to seal and how such documents should be presented to the Court, the
decision to allow documents to be filed under seal in connection with motions and court
proceedings is a wholly separate inquiry governed by a different standard than whether to maintain
documents disclosed in discovery in confidence.”).
Indeed, as the Second Circuit has explained, “protective orders are useful to prevent
discovery from being used as a club by threatening disclosure of matters which will never be used at
trial.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). But “[a]t the adjudication stage . . . very
different considerations apply.” Id. “An adjudication is a formal act of government, the basis of
which should, absent exceptional circumstances, be subject to public scrutiny.” Id.; see also Lugosch,
435 F.3d at 121 (same). Thus, the fact that the documents were given those designations under the
Protective Order does not alone satisfy the parties’ burden to demonstrate that the documents should be
redacted or sealed. See SEC v. TheStreet.Com, 273 F.3d 222, 231 (2d Cir. 2001) (“While Martindell
established a general and strong presumption against access to documents sealed under protective order
when there was reasonable reliance upon such an order, . . . we have held more recently in United States v.
Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”) that a subspecies of sealed documents in civil
cases—so-called ‘judicial documents’—deserve a presumption in favor of access.”).
The privacy interests of “innocent third parties” should indeed weigh heavily in the Court’s
balancing equation, and the Court has seriously considered those privacy interests here. Amodeo, 71
F.3d at 1050. “Such interests, while not always fitting comfortably under the rubric ‘privacy,’ are a
venerable common law exception to the presumption of access.” Id. at 1051. “However, the fact
that a third party’s privacy interests are at stake does not obviate the need for the proposed
redactions to be narrowly tailored to protect those interests.” Wiav Sols. Inc. v. HTC Corp., No.
19CV4978PGGKHP, 2021 WL 871415, at *1 (S.D.N.Y. Mar. 9, 2021).
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Based on the wan applications made by the parties, the Court cannot conclude that the
strong presumption of public access is overcome by the heavy weight of the third parties’ privacy
interests. At the outset, the presumption of public access is significant as to many of these
documents; the parties’ motions have asked the Court to rule on issues that rely solely on the
interpretation of documents that have been sealed in their entirety. For example, the Court has been
asked to evaluate whether agreements between Kewazinga and a third party, Sarnoff, deprive
Kewazinga of standing to pursue its infringement claims, and whether Kewazinga is able to assert
that it conceived of CIP-claimed subject matter prior to the filing date of its CIP patent application,
based on its relationship with Sarnoff. The documents that the parties have asked the Court to
consider in connection with those issues appear to contain some sensitive information that might
properly remain sealed, such as financial terms. The same is true for certain settlement agreements
submitted by the parties. However, there are substantial portions of the agreements and documents
that the Court will need to discuss to exercise its Article III judicial power and adjudicate the issues
that have been raised by the parties. See, e.g., Dkt. Nos. 202-11; 202-16; 218-6 ¶¶ 216–17, 218-16.
Furthermore, the parties’ proposed redactions are not narrowly tailored. It appears that
some of the parties’ proposed redactions are overbroad and certain of the redactions cite to publicly
filed documents. For example, it is not obvious to the Court why the parties have redacted the
information at Dkt. No. 218-6 ¶¶ 261–62. The proposed redactions include information about a
separate lawsuit, information that is available in a publicly-filed complaint. And, the proposed
redactions at ¶ 222 of the same document include information contained in the publicly-filed
patents. Redacting this sort of information—or any information that does not invoke the legitimate
privacy interests of the interested parties—is improper.
And finally, certain of the parties’ proposed redactions are inconsistent. For example,
compare the redacted information at Dkt. No. 218-6 ¶ 217 with the information in Kewazinga’s
15
publicly filed opposition at Dkt. No. 246 at 48. Such redactions are fruitless and do not serve the
privacy interests of the third parties because the information is already available to the public.
Accordingly, the Court denies without prejudice the requests to redact and seal exhibits
asserting this basis for privacy protection. Instead, the parties are directed to resubmit proposed
redactions. The Court will review these revised redaction requests and expects that the parties will
only submit proposed redactions narrowly tailored to protect the privacy interests of the relevant
third parties.
V.
CONCLUSION
For the reasons stated above, the parties have largely satisfied their burdens to demonstrate
that the privacy interests and the risk of competitive harm that would result from disclosure
outweigh the strong presumption of public access to the documents at issue. However, certain
proposed redactions are not narrowly tailored to protect those interests. Accordingly, the parties’
motions to redact and seal certain documents and exhibits are GRANTED in part, and DENIED as
to the proposed redactions specified above.
The parties are directed to submit revised jointly proposed redactions for those documents
involving a third-party confidentiality interest, by no later than April 7, 2021. In light of the
examples of inconsistent redactions provided above, the parties are strongly encouraged to review all
of their proposed redactions in conjunction with the exhibits they have submitted on the public
docket and to ensure the proposed redactions are uniform throughout. Any documents for which
the Court has denied the parties’ request to redact or seal must be filed on the public docket by no
later than April 7, 2021.
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The Clerk of the Court is respectfully directed to terminate the motions at Dkt. Nos. 188,
204, 211, 227, 241, 247, 264, 269, 282, 299, and 307.
SO ORDERED.
Dated: March 31, 2021
New York, New York
_____________________________________
GREGORY H. WOODS
United States District Judge
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