The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
6
7 MATT JONES, et al., Case No. 22-cv-04486-BLF
8 Plaintiffs,
ORDER REGARDING MOTIONS TO
9 v. SEAL JOINT STATEMENTS
10 PGA TOUR, INC., [Re: ECF Nos. 180, 253, 254]
11 Defendant.
12
13 Before the Court are three motions to seal materials submitted with two joint requests for
14 case management conferences. See ECF Nos. 180, 253, 254.
15 Defendant PGA Tour, Inc.’s (the “TOUR”) motion at ECF No. 180 seeks to seal certain
16 portions of the parties’ Joint Statement Regarding Request for Case Management Conference
17 submitted December 14, 2022 (“December Joint Statement”). Plaintiff LIV Golf, Inc. (“LIV”)
18 submitted a statement in support. See ECF No. 188.
19 The TOUR’s motions at ECF Nos. 253 and 254 seeks to seal certain lines of the parties’
20 Joint Statement Requesting Case Management Conference submitted February 5, 2023 (“February
21 Joint Statement”). LIV submitted a statement in support of the request to seal materials it
22 designated as confidential. See ECF No. 272.
23 I. LEGAL STANDARD
24 “Historically, courts have recognized a ‘general right to inspect and copy public records
25 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of
26 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435
27 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong
1 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to
2 motions that are “more than tangentially related to the underlying cause of action” bear the burden
3 of overcoming the presumption with “compelling reasons” that outweigh the general history of
4 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d
5 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178-79.
6 However, “while protecting the public's interest in access to the courts, we must remain
7 mindful of the parties' right to access those same courts upon terms which will not unduly harm
8 their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228-29 (Fed.
9 Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the
10 merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto
11 Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need
12 for access to court records attached only to non-dispositive motions because those documents are
13 often unrelated, or only tangentially related, to the underlying cause of action.”).
14 Parties moving to seal the documents attached to such motions must meet the lower “good
15 cause” standard of Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations
16 omitted). This standard requires a “particularized showing,” id., that “specific prejudice or harm
17 will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,
18 307 F.3d 1206, 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm,
19 unsubstantiated by specific examples of articulated reasoning” will not suffice. Beckman Indus.,
20 Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents
21 during discovery may reflect the court’s previous determination that good cause exists to keep the
22 documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows
23 the parties to designate confidential documents does not provide sufficient judicial scrutiny to
24 determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A)
25 (“Reference to a stipulation or protective order that allows a party to designate certain documents
26 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).
27 In addition to making particularized showings of good cause, parties moving to seal
1 79-5(b), a sealing order is appropriate only upon a request that establishes the document is
2 “sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under
3 the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and
4 must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the
5 submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable
6 material” which “lists in table format each document or portion thereof that is sought to be
7 sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by
8 highlighting or other clear method, the portions of the document that have been omitted from the
9 redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the filing of the Administrative
10 Motion to File Under Seal, the Designating Party must file a declaration as required by subsection
11 79-5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L.R. 79-5(e)(1).
12 II. DISCUSSION
13 The instant sealing motions are brought in connection with documents that do not relate to
14 the merits of the case, and thus the lower “good cause” standard applies. See Ctr. for Auto Safety,
15 809 F.3d at 1099; see also Int’l Swimming League, Ltd. v. Federation Internationale de
16 Natation, No. 18-cv-07394-JSC, 2021 WL 624172, at *1 (N.D. Cal. Jan. 19, 2021) (applying good
17 cause standard for sealing case management statement).
18 A. December Joint Statement
19 1. TOUR Request
20 The Court finds that the TOUR has not demonstrated that good cause exists the seal the
21 portions of the December Joint Statement it requests to seal. The good cause standard requires a
22 “particularized showing” that specific prejudice or harm will result if the information is disclosed.
23 Phillips, 307 F.3d at 1210-11. The TOUR argues in general terms that the proposed redactions
24 “serve to protect the TOUR’s sensitive internal communications,” ECF No. 180, at 2, and that
25 “public disclosure of this information related to the TOUR’s business would cause harm to the
26 TOUR,” Goldberg Decl. ¶ 5, ECF No. 180-1. But the TOUR offers no explanation as to how
27 prejudice or harm would result from disclosure of the information. The TOUR’s “broad
1 establish good cause for the requested redactions. See Beckman Indus., 966 F.2d 470 at 476.
2 Accordingly, the Court DENIES the TOUR’s request to seal portions of the December Joint
3 Statement.
4 2. LIV Request
5 LIV has demonstrated that good cause exists to seal the certain portions of the December
6 Joint Statement but not others. LIV requests to seal portions of the December Joint Statement that
7 it contends contains “information regarding its formation and internal decision-making.”
8 Loffhagen Decl. (“Loffhagen Decl. I”), ECF No. 188-1 ¶ 3. LIV contends that “[d]isclosure of
9 this information would seriously harm LIV Golf, including by allowing competitors to exploit the
10 information for competitive gain.” Id. This general assertion of harm is not a “particularized
11 showing” of harm or prejudice because it in no way explains how LIV would be harmed by the
12 disclosure of this information. Without a particularized showing of harm or prejudice, the Court
13 has no basis to find good cause for sealing this portion of the December Joint Statement. See
14 Phillips, 307 F.3d at 1210-11 (good cause standard requires a “particularized showing” that
15 “specific prejudice or harm will result” if the information is disclosed).
16 LIV has, however, demonstrated good cause for sealing portions of the December Joint
17 Statement that contain “particulars of its contracts with Performance54.” Loffhagen Decl. I ¶ 4.
18 As LIV explains, disclosure of this “private, commercially sensitive information” would harm LIV
19 by “hamstring[ing] LIV Golf’s ability to negotiate different terms” and by enabling competitors to
20 “exploit the information to offer better terms and counter LIV Golf’s proposals.” Id.
21 Accordingly, the Court finds that LIV has shown good cause to seal this information. The Court
22 therefore GRANTS IN PART and DENIES IN PART in part LIV’s request to seal portions of the
23 December Joint Statement as set forth in the table at the end of this order.
24 B. February Joint Statement
25 1. TOUR Request
26 The Court finds that the TOUR has established good cause to seal the portions of the
27 February Joint Statement it seeks to seal. The TOUR declares that the portions of the February
1 TOUR operations and corporate decision-making and (2) sensitive details about the TOUR’s
2 operations and business relationships with other golf tours. Shetty Decl. ¶¶ 2-4, ECF No. 253-1.
3 The TOUR further declares that public disclosure of the information would result in competitive
4 harm to the TOUR and damage its business relationships. Id. Upon review of the materials the
5 TOUR seeks to seal, the Court finds that the TOUR has demonstrated good cause to seal these
6 portions of the February Joint Statement. Accordingly, the Court GRANTS the TOUR’s request.
7 2. LIV Request
8 The Court finds that LIV has established good cause to seal the portions of the February
9 Joint Statement it seeks to seal. The excerpts LIV seeks to seal quote and describe the contents of
10 a Shareholder Agreement that sets out LIV’s investor rights and corporate governance and
11 describe certain investors’ involvement in LIV’s operations and decision-making. Loffhagen
12 Decl. (“Loffhagen Decl. II”), ECF No. 272-1, ¶¶ 2-3. LIV declares that “[d]isclosure of the
13 contents of the Shareholder Agreement would harm LIV by prejudicing LIV’s ability to obtain
14 outside funding,” because “[t]he current investment structure gives certain investors rights that
15 may deter outside funders or change the terms that those funders demand.” Id. ¶ 2. The
16 declaration also explains that public disclosure of the involvement of certain investors in LIV’s
17 operations and decision-making would harm LIV because “[c]ompetitors may exploit this
18 information . . . by seeking to influence LIV’s investors.” Id. ¶ 3. The Court finds that this
19 particularized showing of the harm LIV would suffer if the excerpts it seeks to seal were publicly
20 disclosed demonstrates good cause for sealing the excerpts. Accordingly, the Court GRANTS the
21 LIV’s request to seal portions of the December Joint Statement.
22 III. ORDER
23 For the foregoing reasons, IT IS HEREBY ORDERED that the parties SHALL meet and
24 confer and file public redacted versions of the December Joint Statement and February Joint
25 Statement with the redactions permitted in the table below by no later than March 3, 2023.
26 //
27 //
1
ECF Document Portion(s)
2 Requested to Be
Sealed
3 180-2 | Joint Statement Highlighted DENIED as to the highlighted portions at
Regarding Request | portions at 5:15- | 5:15-17, as LIV has not demonstrated good
4 for Case 17; 6:1-2; 17:2- cause for sealing.
Management 6; 21:10-11
5 Conference GRANTED as to the highlighted portions at
submitted December 6:1-2 and 17:2-6, as containing private,
6 14, 2022 commercially sensitive contract terms, the
disclosure of which could cause LIV
7 competitive harm.
8 DENIED as to highlighted portions at
21:10-11, as the TOUR has not
9 demonstrated good cause for sealing.
253-2 | Joint Statement Highlighted GRANTED as to the highlighted portions at
10 Regarding Request | portions at 6:10- | 6:10-15, 6:16-17, as containing confidential
for Case 15; 6:16-19; information about LIV’s Shareholder
11 Management 19:9; 19:11-12; Agreement, the disclosure of which would
Conference 19:16-17; 19:23- | prejudice LIV’s ability to obtain outside
12 submitted February | 26 funding, pursue a franchise model in the
B 5, 2023 future, and obtain future business.
GRANTED as to the highlighted portions at
6:18-19, as containing confidential
information regarding participation of
2 15 LIV’s investors in LIV’s internal decision-
2 making, disclosure of which would harm
16 LIV by allowing competitors to exploit the
information, deterring potential business
partners, and reducing opportunities for
outside funding.
Z 18
GRANTED as to the highlighted portions at
19 19:9, 19:23-26, as containing competitively
sensitive information about internal TOUR
20 operations and decision-making.
21 GRANTED as to the highlighted portions at
19:11-12, 19:16-17, as containing sensitive
22 information about the TOUR’s operations
73 and business relationships with other tours.
24
Dated: February 23, 2023
26 BETH LABSON FREEMAN
7 United States District Judge
28