The opinion
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6 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 GERRIE DEKKER, et al.,
11 Plaintiffs, No. C 19-07918 WHA
12 v.
13 VIVINT SOLAR, INC., et al., OMNIBUS ORDER RE
MOTIONS TO SEAL
14 Defendants.
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17 This order handles the motions to seal filed in conjunction with plaintiff’s opposition to
18 Vivint’s motion for summary judgment as well as the motion for class certification and related
19 filings.
20 1. THE LEGAL STANDARD.
21 There is a strong public policy in favor of openness in our court system and the public is
22 entitled to know to whom we are providing relief (or not). See Kamakana v. City & Cty. of
23 Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 2006). Consequently, access to motions and their
24 attachments that are “more than tangentially related to the merits of a case” may be sealed only
25 upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp.,
26 LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Filings that are only tangentially related to the
27 merits may be sealed upon a lesser showing of “good cause.” Id. at 1097. The compelling
1 limine and Daubert motions can be strongly correlative to the merits of a case. Id. at 1098–
2 1100.
3 In addition, sealing motions filed in this district must contain a specific statement that
4 explains: (1) the legitimate private or public interests that warrant sealing; (2) the injury that
5 will result should sealing be denied; and (3) why a less restrictive alternative to sealing is not
6 sufficient. The material requested to be sealed must be “narrowly tailored to seal only the
7 sealable material.” Civil L.R. 79-5(c). For example, “[t]he publication of materials that could
8 result in infringement upon trade secrets has long been considered a factor that would
9 overcome [the] strong presumption” in favor of access and provide compelling reasons for
10 sealing. Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). Compelling reasons
11 may also warrant sealing for “sources of business information that might harm a litigant’s
12 competitive standing,” especially where the public has “minimal interest” in the information
13 because it “is not necessary to the public’s understanding of the case.” See Nixon v. Warner
14 Comms., Inc., 435 U.S. 589, 598 (1978).
15 Finally, “[s]upporting declarations may not rely on vague boilerplate language or
16 nebulous assertions of potential harm but must explain with particularity why any document or
17 portion thereof remains sealable under the applicable legal standard.” Bronson v. Samsung
18 Elecs. Am., Inc., 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) (citing Civ. L.R. 79-5).
19 “Reference to a stipulation or protective order that allows a party to designate certain
20 documents as confidential is not sufficient to establish that a document, or portions thereof, are
21 sealable.” Civ. L.R. 79-5(c).
22 2. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT.
23 Plaintiff filed conditionally under seal certain material supporting her opposition to
24 Vivint’s motion for partial summary judgment (Dkt. No. 190). Vivint filed a declaration in
25 support of sealing these documents (Dkt. No. 198). The sealing requests that this order grants
26 are narrowly tailored. This order rules as follows:
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Dkt. Document to be Result Reasoning
1
No. Sealed
2 190-5 Exhibit 1 GRANTED. Contains specific and detailed
(VSLR0000954) to the confidential information, the public
3 Declaration of Corey disclosure of which could cause
B. Bennett in Support Vivint competitive harm (Chang Decl.
4 of Plaintiff’s ¶ 5).
Opposition to
5
Defendants’ Motion
6 for Partial Summary
Judgment
7 190-6 Exhibit 2 (Excerpts of DENIED. First, Vivint’s request is overbroad
deposition transcript of and not narrowly tailored. For
8 Colton Burr) to the example, Vivint seeks to seal the
Declaration of Corey following exchange: “Q. Generally
9
B. Bennett in Support speaking, Vivint Solar has written
10 of Plaintiff’s policies regarding the calculation of
Opposition to customer default payments; right? A.
11 Defendants’ Motion Vivint Solar’s default payment
for Partial Summary calculation is on the face of the
12
Judgment customer agreement, and that how we
manage to. So we rely upon the
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specific calculation as referred to in
14 the customer agreement” (Depo. 32).
These and other portions of the
15 document clearly do not qualify for
sealing. Other proposed redactions go
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to the very heart of this litigation,
17 concerning, e.g., whether Vivint
attempted to calculate the loss it
18 would incur due to a customer default
(id. at 109–10, 112, 140). For these
19 and other requested redactions, there
exists a particular strong presumption
20
of public visibility.
21
Second, Vivint’s justifications for
22 sealing do not qualify as compelling.
Simply being marked as highly
23 confidential is insufficient. Vivint
also explains that that material
24
addresses “Vivint Solar’s strategy for
25 marketing to investors; its method for
calculating the contract termination
26 fees, including default payments; non-
public data and statistics regarding
27 customer terminations; and non-public
operations” (Chang Decl. ¶ 6). But
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many of the proposed redactions cover
2 these issues at a high level of
abstraction and Vivint has failed to
3 explain how those general statements
would harm its competitive standing.
4 For example: “Q. Has Vivint Solar
ever hired a third-party appraiser to
5
determine its losses in the event of
6 customer default? A. No” (Depo.
140). Without more, Vivint has failed
7 to provide compelling reasons for
sealing.
8 208 Plaintiff’s Opposition DENIED. As an initial matter, the proposed
to Defendants’ Motion redactions here include material at the
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for Partial Summary heart of our litigation so there is a
10 Judgment. strong presumption of public visibility
in this instance. Vivint argues the
11 proposed redactions should be sealed
for the same reasons given for exhibit
12 2 (Chang Decl. ¶ 7). For the same
reasons given above, the request is
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denied.
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15 3. CLASS CERTIFICATION.
16 Vivint moves to seal material it submitted in opposition to plaintiff’s motion for class
17 certification (Dkt. Nos. 193, 212, 213, 217). Vivint also filed declarations in support of sealing
18 material plaintiff lodged conditionally under seal (Dkt. Nos. 199, 221). This order rules as
19 follows:
20 Dkt. Document to be Result Reasoning
No. Sealed
21
193-15 Class Certification DENIED. Vivint’s proposed redactions are not
22 Motion Exhibit 4 narrowly tailored. For example,
(Excerpts of Vivint seeks to seal the following
23 deposition transcript exchange: “So there are two tabs on
of Colton Burr) this Excel Document. We are on the
24 ‘Default Price’ notes tab. And it
appears to summarize what goes into
25
default payment calculations under
26 different PPA versions; is that fair?
A. Yes, that’s correct” (Depo. 40). It
27 also seeks to seal testimony regarding
seal general or public material,
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Vivint’s overbroad request also seeks
2 to seal material at the heart of this
litigation, such as Vivint’s efforts to
3 document its pecuniary loss in the
event of a customer default (id. at 109,
4 140).
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Further, for the reasons stated above
6 for Dkt. No. 190-6, Vivint has failed
to adequately explain how the
7 disclosure of this information would
disadvantage Vivint in future
8 negotiations or competition with third
parties (see Chang Decl. ¶ 5).
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193-17 Class Certification GRANTED. See entry for Dkt. No. 190-5.
10 Motion Exhibit 6
(VSLR0000954)
11 193-18 Class Certification GRANTED. See entry for Dkt. No. 190-5.
Motion Exhibit 7
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(VSLR0000955)
13 193-14 Class Certification DENIED. Vivint says exhibit 2 should be sealed
Exhibit 2 (Declaration for the same reasons it provides for
14 of Nora Ostrofe) exhibits 4, 6, and 7 — Dkt. Nos. 193-
15, 193-17, and 193-18, respectively
15 (Chang Decl. ¶¶ 6, 8, 10). First, for
the same reasons stated above for Dkt.
16
No. 193-15, Vivint’s stated
17 justifications do not qualify as
compelling. Second, Vivint seeks to
18 seal page 7, lines 4–5 and 19–22 for
the same reasons provided for 193–17
19 and 193-18. However, the material in
question here lacks the specific details
20
contained within the underlying cited
21 documents and, as such, do not
implicate the concerns regarding
22 competitive harm. Further, the request
is overbroad and contains information
23 explicitly from the (public) 1.0 version
of the PPA. Because of this, this order
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cannot determine what specific
25 information would cause competitive
harm should it be disclosed. Vivint
26 does not provide this information.
Because Vivint’s reasons for sealing
27 fail to provide sufficient detail to
would result from disclosure, its
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reasoning cannot be called
2 compelling.
3 Further, Vivint provides an additional
justification to seal page 7, lines 11–
4 15 on the basis they reference a
document Vivint uses for tax purposes
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(Chang Decl. ¶ 11). But merely
6 referencing this document does not
harm Vivint competitively, and Vivint
7 does not provide a compelling reason
to think otherwise.
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See also entry for Dkt. No. 190-6.
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193-13 Plaintiff’s Motion for DENIED. Vivint contends plaintiff’s motion for
10 Class Certification class certification should be sealed for
the same reasons as exhibits 4, 6, and
11 7 — Dkt. Nos. 193-15, 193-17, and
193-18, respectively (Chang Decl. ¶¶
12 6, 8, 10). For the same reasons
provided for Dkt. No. 193-14, these
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justifications fail.
14 193-22 Plaintiff’s Proposed DENIED. Vivint contends plaintiff’s proposed
Trial Plan trial plan should be sealed for the
15 same reasons as exhibits 4 (Chang
Decl. ¶ 6). For the same reasons
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provided for Dkt. No. 193-15, these
17 justifications do not qualify as
compelling.
18 213-7 Exhibit 3 (Excerpts of DENIED. See entries for Dkt. Nos. 190-6 and
deposition transcript 193-15.
19 of Colton Burr) to
Declaration of Esther
20
Kim Chang in
21 Support of Opposition
213-13 Exhibit 8 GRANTED. Contains specific and detailed
22 (VSLR0005089) to confidential information regarding
Chang Declaration appraised values of particular Vivint
23 systems, the public disclosure of
which could cause Vivint competitive
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harm (Chang Decl. ¶ 6).
25 213-15 Exhibit 9 GRANTED. Exhibit 9 is a third-party appraisal of a
(VSLR0005924) to typical residential solar panel
26 Chang Declaration installation in California with an
effective date of June 13, 2012.
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Vivint generally argues that the
competitively sensitive and would
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affect its relationships with investors
2 and competitors alike (Chang Decl. ¶
7). Vivint introduced this exhibit to
3 supports its argument on an important
merits issue in this litigation. This
4 counsels against sealing. But at this
stage, the relevancy of the document
5
lies in its existence, not necessarily in
6 its details. Consequently, this order
will keep the substance of the
7 appraisal confidential for now. This
order forewarns Vivint, however, that
8 farther along in these proceedings,
should the document be admitted at
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trial or its substance otherwise
10 addressed in further detail, the sealing
calculus would be different, and it
11 would be unlikely Vivint could
continue to justify keeping the
12 document under seal.
213-17 Exhibit 10 (Excerpts DENIED. Vivint seeks to seal pages 8–74 of the
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of deposition transcript of Expert Ostrofe’s
14 transcript of Nora deposition. This request is flatly
Ostrofe) to Chang overbroad. It includes questions
15 Declaration regarding the metes and bounds of the
opinions Ostrofe was providing and
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other general question (Depo. 29–31),
17 broad questions about renewable
energy finance (id. at 63–69), and
18 conversation regarding logistical
issues that arose during the course of
19 the deposition (id. at 190). Vivint’s
explanation that all of this material is
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competitively sensitive is boilerplate
21 and does not raise to the level of a
compelling reason to seal.
22 212-4 Defendants’ DENIED. Vivint seeks to seal two portions of its
Opposition to opposition. First, Vivint contends
23 Plaintiff’s Motion for page 17, lines 20–27 should be sealed
Class Certification for the same reasons as exhibit 3
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(Chang Decl. ¶ 5). For the reasons
25 given above, those arguments fail.
Second, Vivint argues lines 24–27 of
26 page 17 should be sealed for the
additional reasons provided for
27 Exhibits 8 and 9 (id. ¶¶ 6, 7).
lacks the specific details contained
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within the underlying cited documents
2 and, as such, do not implicate the
concerns regarding competitive harm.
3 This information also goes to the heart
of this litigation so there is a strong
4 presumption of public visibility in this
instance. Vivint’s justifications do not
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rank as compelling for this proposed
6 redaction.
7 Further, Vivint contends lines 10–13
of page 20 should be sealed for the
8 same reasons as the Ostrofe
declaration (Chang Decl. ¶ 9). This
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request is denied for the same reasons
10 just provided as well as those set out
in the entry for Dkt. No. 193-14.
11 217-4 Exhibit 5 to DENIED. See entries for Dkt. Nos. 190-6 and
Declaration of Corey 193-15.
12 B. Bennett in Support
of Application for
13
Leave to File Under
14 Seal (Excerpts of
deposition transcript
15 of Colton Burr)
217-3 Plaintiff’s Reply in DENIED. The excerpts that Vivint seeks to seal
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Support of Plaintiff’s — Page 8, lines 3–7, and Page 13,
17 Motion for Class lines 18–26 — go to the heart of this
Certification litigation so there is a strong
18 presumption of public visibility in this
instance. Vivint provides no more
19 than a boilerplate statement that
competitive harm would result if the
20
excerpts were disclosed (Chang Decl.
21 ¶¶ 4–5). Further, Vivint does not
provide a compelling reason to seal
22 for the same explanation provided in
the entries for Dkt Nos. 109-6 and
23 193-15.
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1 CONCLUSON
2 The administrative motions to seal are GRANTED IN PART and DENIED IN PART. The
3 parties shall refile all relevant documents in full compliance with this order by no later than
4 JUNE 2. IT ISSO ORDERED.
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6 Dated: May 5, 2022. Pee
7 {A _ LN ot
LLIAM ALSUP
8 UNITED STATES DISTRICT JUDGE
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