Opinion

Dekker v. Vivint Solar, Inc.

Court
District Court, N.D. California
Filed
May 5, 2022
Cited by
0 cases
Authority
More cited than 18.8%

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

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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

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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

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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

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of public visibility.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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