The opinion
1 4C9Y2N08T9H; IpAro E h. aRcI CviHceM) AN (D.C. Bar No.
2 crichman@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
3 1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
4 Telephone: 202.955.8500
Facsimile: 202.467.0539
5
JASON C. LO (SBN 219030)
6 jlo@gibsondunn.com
JENNIFER J. RHO (SBN 254312)
7 jrho@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
8 333 South Grand Avenue
Los Angeles, CA 90071
9 Telephone: 213.229.7000
Facsimile: 213.229.7520
10
CAELI A. HIGNEY (SBN 268644)
11 CHigney@gibsondunn.com
JULIAN W. KLEINBRODT (SBN 302085)
12 JKleinbrodt@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
13 555 Mission Street, Suite 3000
San Francisco, CA 94105-0921
14 Telephone: (415) 393-8200
Facsimile: (415) 393-8306
15
16 UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
18
CASE NO. 4:21-CV-03958-JSW-SK
19 AliveCor, Inc.,
20 Plaintiff, JOINT CONSOLIDATED [PROPOSED]
ORDER REGARDING SEALING
21 v. DOCUMENTS
22 Apple Inc.,
23 Defendant.
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1 A. AliveCor Administrative Motions To Consider Sealing
2 AliveCor has filed several administrative motions to consider whether Apple’s confidential
3 business material should be sealed. (Dkt. Nos. 153, 161, 163, 169). Apple filed declarations in
4 support of sealing (see Dkt. Nos. 155, 165, 166, 175). The Court concludes Apple has demonstrated
5 that portions of the filings and exhibits should be maintained under seal, as reflected in the table
6 below.
7 B. Apple Administrative Motions To Consider Sealing
8 Apple has filed several administrative motions to consider whether AliveCor’s confidential
9 business material should be sealed. (Dkt. Nos. 158, 159). AliveCor filed a declaration in support of
10 the motions. (Dkt. No. 160). The Court concludes that AliveCor has demonstrated that portions of
11 certain exhibits should be maintained under seal, as reflected in the table below.
12 C. The Court’s Sealed Order Denying Motion For An Adverse Jury Instruction
13 The parties have conferred and jointly agree that certain portions of the Court’s Order
14 Denying Motion For An Adverse Jury Instruction, (Dkt. No. 178), filed conditionally under seal,
15 should remain sealed.
16 In determining whether to permit documents to be filed under seal, courts in the Ninth Circuit
17 apply two separate standards: (1) the “compelling reason” test for sealing information in connection
18 with motions for a determination on the merits of a claim or defense; and (2) the less-restrictive
19 “good cause” test for sealing information in connection with non-dispositive filings. Kamakana v.
20 City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006); Center for Auto Safety v.
21 Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir. 2016). Here, the less-restrictive good cause test applies
22 because the underlying dispute is non-dispositive; AliveCor’s motion does not determine the ultimate
23 merits of any claims in this case. The Court has “broad latitude” “to prevent disclosure of materials
24 for many types of information, including, but not limited to, trade secrets or other confidential
25 research, development, or commercial information.” Phillips v. Gen. Motors Corp., 307 F.3d 1206,
26 1211 (9th Cir. 2002) (emphasis in original); see also Kamakana, 447 F.3d at 1179 (“[C]ompelling
27 reasons sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist
28 when such court files might have become a vehicle for improper purposes, such as the use of records
1 to gratify private spite, promote public scandal, circulate libelous statements, or release trade
2 secrets.”) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)) (internal quotation
3 marks omitted)). As the Supreme Court has recognized, sealing is appropriate to prevent judicial
4 documents from being used “as sources of business information that might harm a litigant’s
5 competitive standing.” Nixon, 435 U.S. at 598. Accordingly, courts routinely seal information where
6 disclosure could harm a litigant’s competitive standing. See, e.g., Philips v. Ford Motor Co., No. 14-
7 CV-02989, 2016 WL 7374214, at *6 (N.D. Cal. Dec. 20, 2016) (concluding that the “need to avoid
8 competitive disadvantage in contract negotiations and undercutting by competitors is a compelling
9 reason that justifies sealing”); Vigdor v. Super Lucky Casino, Inc., No. 16-CV-05326, 2018 WL
10 4510734, at *2 (N.D. Cal. Sept. 18, 2018) (sealing “business and financial information relating to the
11 operations of Defendants”); Lathrop v. Uber Techs., Inc., No. 14-cv-05678-JST, 2016 WL 9185002,
12 at *2 (N.D. Cal. Jun. 17, 2016) (“[U]nder Ninth Circuit law . . . internal reports are appropriately
13 sealable under the ‘compelling reasons’ standard where that information could be used to the
14 company’s competitive disadvantage.”).
15 The parties indicated that limited portions of this Court’s Order Denying Motion For An
16 Adverse Jury Instruction should remain sealed. The language the parties indicate should be sealed
17 includes information that Apple has determined to be highly confidential. This includes Apple’s
18 competitively sensitive business strategy information and non-public information about Apple’s data
19 management practices, including its practices regarding document management and storage, which, if
20 revealed, could cause Apple economic harm and put it at a competitive disadvantage or reveal to bad
21 actors insights into how Apple maintains and processes its confidential information. See, e.g.,
22 Lathrop, 2016 WL 9185002, at *2. The narrow material that Apple seeks to maintain under seal is
23 not public and would be harmful to Apple if publicly disclosed.
24 The information that Apple seeks to protect is important to its business and its internal
25 processes. Public disclosure of this information would risk competitors gaining an unfair business
26 advantage by gaining insight into its internal processes and data management systems. Apple takes
27 many steps, and undertakes substantial efforts, to safeguard such information, and keeping that
28 information confidential is important to its effectiveness. Apple operates in an intensely competitive
1 environment. Given the confidential and non-public information reflected in the portions of the
2 document that Apple seeks to seal, Apple has serious and legitimate concerns that competitors will
3 exploit any release of Apple’s highly sensitive, proprietary information in order to gain competitive
4 advantage.
5 The Court concludes Apple has demonstrated that portions of the Court’s Order Denying
6 Motion For Adverse Jury Instruction should remain sealed, as reflected in the table below.
7 D. Table Summarizing Portions Of Documents To Remain Sealed
8 For good cause shown, the Court Orders that the portions of the documents identified below,
9 by page and line number, should remain under seal.
10
11
Document Name Dkt. No. Page & Lines
12
Exhibit N to the Declaration 158-5 Entire document
13 of Jason Lo in Support of
Apple’s Opposition to
14 AliveCor’s Motion for An
Adverse Jury Instruction
15 Exhibit O to the Declaration 159-1 Entire document
of Jason Lo in Support of
16 Apple’s Opposition to
AliveCor’s Motion for An
17 Adverse Jury Instruction
Plaintiff AliveCor, Inc.’s 153-1 Page 1:8-12 (ending at “Watch”);
18 Motion for An Adverse Jury Page 3:10-11 (starting at “Ex. P”;
Instruction Page 3:13-23 (starting at
19 how”);
Page 3:n2;
20 Page 4:1-4 (ending at “market”);
Page 4:8-10 (ending at “2021”);Page 5:13 (starting at
21 “on”);
Page 8:20-28 (starting at “Mr. Cha”);
22 Page 9:2-5 (starting at “Apple”);
Page 11:14 (starting at word after “ESI” and ending at
23 word before “thus”)
Declaration of Adam 153-2 Page 1:26 (starting at “how to”);
24 Wolfson in Support of Page 3:16 (starting at the word after “ESI”);
Plaintiff AliveCor, Inc.’s Page 4:3-4
25 Motion for An Adverse Jury
Instruction
26 AliveCor Reply in Support of 162, 161-1, Page 3:15-16 (from word after “to any” to “Apple
Motion for an Adverse Jury 163-5 Watch”);
27 Instruction Page 4:10-13 (starting at “specifically”);
Page 5:1-2 (starting at “about” and ending at “apps”);
28 Page 5:3-4 (starting at “and who” and ending at
“apps”);
1 Document Name Dkt. No. Page & Lines
2
Page 5:8-9 (starting at “who argued” and ending at
3
“Ex. A”);
Page 5:14-16 (starting at “And, he” and ending at
4
“pressure”);
Page 5:23-24 (starting at “What Apple”);
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Page 5:n3 (starting at “Apple” and ending at
“AliveCor”);
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Page 6:1-2 (ending at “retain them”);
Page 6:6-7 (starting at “on his” and ending at “the
7
company”);
Page 6:13-15 (starting at “Apple had” and ending at
8
“preserve them”);
Page 6:22-25 (starting at “because four” and ending at
9
“Mr. Cha”);
Page 8:10 (starting at “he” and ending at “AliveCor”);
10
Page 8:14-16 (starting at “but” and ending at
“benefit”);
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Page 8:n6 (ending at “Health app”);
Page 9:3-4 (starting at “it never” and ending at
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“AliveCor”);
Page 9:14-16 (starting at word after “was the” and
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ending at “AliveCor”);
Page 9:22-23 (starting at “or even” and ending at the
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word before “to its”);
Page 11:4-7 (starting at “Apple’s now”);
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Page 12:2-3 (starting at “He” and ending at “Apple”);
Page 12:6-9 (starting at “about”);
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Page 12:25 (starting at word after “Apple’s” and
ending at word before “lurked”).
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Exhibit A to Declaration of 161-2 Entire document
Adam Wolfson in Support of
18
AliveCor’s Reply in Support
of AliveCor’s Motion for an
19
Adverse Jury Instruction
Exhibit B to Declaration of 161-3 Entire document
20
Adam Wolfson in Support of
AliveCor’s Reply in Support
21
of AliveCor’s Motion for an
Adverse Jury Instruction
22
Exhibit C to Declaration of 154-5, 163-1 Page 15 (from word after “smart watch OR” to word
Adam Wolfson in Support of before “apple watch”);
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AliveCor’s Motion for an Page 15 (from word after “smart watch OR” to word
Adverse Jury Instruction before “NEAR/30 (fda”);
24
Page 15 (from word after “smart watch OR” to word
before “NEAR/30 (application”);
25
Page 15 (from word after “smart watch OR” to word
before “NEAR/30”);
26
Page 15 (from word after “irregular rhythm notification
OR” to word before “OR irregular heart rhythm
27
notification”),
Page 19 (from the word after “after it” to the word
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before “that prevented”);
1 Document Name Dkt. No. Page & Lines
2
Page 19 (“from the word before “it was by” to the word
3
before “that literally”);
Page 24 (from the word after “next day the” to the
4
word before “in an encrypted”);
Page 24 (from the word after “has not revealed that” to
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the word before “But we are”),
Page 31 (from the word after “will be providing” to the
6
word before “Your suggestion”),
Page 37 (from the word after “company) compiles” to
7
the word before “to form”);
Page 37 (from the word after “release version.” To the
8
end of paragraph);
Page 37 (from the word after “5.1.1.1 as to the” to the
9
word before “and for WatchOS 5.1.2”);
Page 43 (from the word after “Srinivasan, about” to the
10
word before “The correspondence”);
Page 43 (from the word after “Quinn Emanuel is” to
11
the end of sentence);
Page 43 (from the word after “August 10, 2022 email”
12
to “attached”);
Page 44 (from the word after “forward for” to the word
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before “As we explained”);
Page 44 (from the word after “firm regularly” to the
14
end of sentence);
Page 44 (from the word after “Quinn has” to the word
15
before “is not adequate”);
Page 44 (from the word after “Srinivasan’s letter” to
16
the end of sentence);
Page 44 (from the word after “previously, noted” to the
17
word before “We are hopeful”);
Page 46 (from the word after “proposal for” to the
18
word before “as described”);
Page 47 (from the word after “are aware that” to the
19
word before “Cooperation with”).
Exhibit E to Declaration of 154-7, 163-2 Page 3 (from the word after “called upon” to the word
20
Adam Wolfson in Support of before “Please inform”)
AliveCor’s Motion for an
21
Adverse Jury Instruction
Exhibit F to Declaration of 154-8, 163-3 Page 1 (the phone number after “identified as”)
22
Adam Wolfson in Support of
AliveCor’s Motion for an
23
Adverse Jury Instruction
Exhibit G to Declaration of 154-9, 163-4 Page 2 (the sentence listed after the numbered
24
Adam Wolfson in Support of paragraph “2” starting with “In the”)
AliveCor’s Motion for an
25
Adverse Jury Instruction
AliveCor, Inc.’s Opposition 169-1 Page 1:22-24 (starting with “and Apple” and ending
26
to Defendant Apple, Inc.’s with “AliveCor’s motion”);
Administrative Motion for Page 1:26-28 (starting with “which AliveCor” and
27
Leave to File Sur-Reply to ending with “materials”).
AliveCor, Inc.’s Motion for
28
Adverse Jury Instruction
1
31 Order Denying Motion For |Dkt. No. 178 [Page 2:3 (from word after “and” to word before “See”);
4 Adverse Jury Instruction Page 2:5-8 (from word after “(Cha Depo. 255:8-11)” to
end of line 8);
5 Page 2:28-3:1 (from word after “deposition” to end of
sentence);
6 Page 7:20-21 (from word after “searched” to word
before “and produced”);
7 Page 9:5 (from word after “deleted” to word before
“before Apple’’).
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g || IT IS SO ORDERED
10 || DATED: June 2, 2023
J _ WHITE
1] UMited States District Judge.
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