Opinion

Demartini v. Microsoft Corporation

Court
District Court, N.D. California
Filed
Jun 26, 2023
Cited by
0 cases
Authority
More cited than 18.9%

stating a court must balance the interests of the public against the party seeking 17 to seal judicial records

How later courts described this case

  • stating a court must balance the interests of the public against the party seeking 17 to seal judicial records
  • finding the court must “conscientiously balance the 10 competing interest of the public and the party who seeks to keep certain judicial records secret”
  • stating documents may be sealed to 5 prevent harm but not embarrassment

Written by the judges who cited it.

The opinion

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 DANTE DEMARTINI, et al., Case No. 22-cv-08991-JSC

8 Plaintiffs,

ORDER RE MOTIONS TO SEAL AND

9 v. DISCOVERY DISPUTE

10 MICROSOFT CORPORATION, Re: Dkt. Nos. 88, 89, 119, 133, 134, 161,

11 Defendant. 162, 167, 173, 185, 186

12 Before the Court are several party and non-party (“designating parties”) requests to seal

13 from public disclosure information designated as varying degrees of confidential, including

14 portions of Plaintiffs’ first amended complaint, portions of and exhibits to Plaintiffs’ motion for

15 preliminary injunction and related papers, portions of and exhibits to Microsoft’s motion to

16 dismiss, and portions of and an exhibit to parties’ joint letter brief. The Court rules on these

17 motions below. (Dkt. Nos. 88, 89, 119, 133, 134, 161, 162, 167, 173, 185.)1 Designating parties

18 are given notice they have 14 days from the date of this Order to respond to this Court’s denial

19 without prejudice of any portion of a document or exhibit that those parties believe should be

20 partially or wholly sealed due to compelling reasons in compliance with this Court’s local rules.

21 (See Dkt. Nos. 88, 133, 134.) This Court also addresses Plaintiffs’ request to undesignate “Exhibit

22 K” below. (Dkt. No. 186.)

23 I. LEGAL STANDARD

24 There is a right of public access to judicial records and documents. Nixon v. Warner

25 Commc'ns, Inc., 435 U.S. 589, 597 (1978). In considering motions to seal, courts recognize that

26 “a strong presumption in favor of access is the starting point.” Kamakana v. City & County of

27

1 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (cleaned up). Designating parties seeking to seal

2 judicial records relating to motions that are “more than tangentially related to the underlying cause

3 of action,” Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016), bear the

4 burden of overcoming the presumption with “compelling reasons supported by specific factual

5 findings that outweigh the general history of access and the public policies favoring disclosure,

6 such as the public interest in understanding the judicial process,” Kamakana, 447 F.3d at 1178–79

7 (cleaned up). A court must identify “a compelling reason [to impose the restriction] and articulate

8 the factual basis for its ruling, without relying on hypothesis or conjecture.” Id. at 1179; see also

9 Ctr. for Auto Safety, 809 F.3d at 1097 (finding the court must “conscientiously balance the

10 competing interest of the public and the party who seeks to keep certain judicial records secret”)

11 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).

12 In addition, designating parties moving to seal their own or another party’s materials must

13 comply with Civil Local Rule 79-5. The rule supplements the “compelling reasons” standard.

14 Scramoge Tech. Ltd. v. Apple, Inc., No. 22-cv-03041-JSC, 2023 WL 3168322, at *5 (N.D. Cal.

15 Apr. 17, 2023). Parties’ requests must be “narrowly tailored to seek sealing only of sealable

16 material.” Civil L.R. 79-5. Parties “must explore all reasonable alternatives to filing documents

17 under seal . . . and avoid wherever possible sealing entire documents.” Id. at 79-5(a). A request to

18 seal needs to include “a specific statement” with the reasons for keeping a document under seal

19 explaining the interests warranting sealing, the injury that will result without sealing, and why a

20 less restrictive alternative is not sufficient. Id. at 79-5(c)(1). Under Civil Local Rule 79-5(f),

21 parties seeking to seal documents designated confidential by another party or non-party must file a

22 statement or response in accordance with Civil Local Rule 79-5(c)(1).

23 A request to seal may be supported by compelling reasons if the documents or portions of

24 documents at issue are “sources of business information that might harm a litigant’s competitive

25 standing.” Ctr. for Auto Safety, 809 F.3d at 1097; see also Nixon, 435 U.S. at 598. “The mere fact

26 that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure

27 to further litigation will not, without more, compel the court to seal its records.” Kamakana,

1 terms, details of confidential licensing negotiations, and business strategies” can be “compelling

2 reasons” to prevent competitors from leveraging this information to harm the designating parties

3 in future negotiations. See Exeltis USA Inc. v. First Databank, Inc., No. 17-cv-04810-HSG,

4 2020 WL 2838812, at *1 (N.D. Cal. 2020) (citation omitted); In re Qualcomm Litig., No. 3:17-cv-

5 0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. 2017). If publicly disclosing that

6 information would harm a designating party’s competitive standing and divulge terms of

7 confidential contracts or contract negotiations, compelling reasons may exist to seal that

8 information. See FTC v. Qualcomm Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D.

9 Cal. Jan. 3, 2019).

10 The Court balances the public’s understanding of the judicial process against such

11 confidential information within the context of the gravamen of this case, the alleged anti-

12 competitive effects of the Microsoft-Activision merger on Plaintiff recreational video gamers. See

13 Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR, 2021 WL 1925460, at *1 (N.D. Cal.

14 Apr. 30, 2021) (balancing confidentiality of third-party information “with the [c]ourt’s ultimate

15 resolution of the instant dispute which should be transparent in its analysis”); Ctr. for Auto Safety,

16 809 F.3d at 1097 (stating a court must balance the interests of the public against the party seeking

17 to seal judicial records). The Court also considers a more lenient approach when sealing non-party

18 information, but this distinction is not dispositive. See Epic Games, Inc., 2021 WL 1925460, at

19 *1.

20 Accordingly, the Court makes the following findings based upon the current state of the

21 record:2

22 II. MOTIONS TO SEAL

23 A. Plaintiffs’ First Amended Complaint

24 A complaint is more than tangentially related to the underlying cause of action because it

25 forms the foundation of the lawsuit. See In re Yahoo! Inc. Customer Data Security Breach Litig.,

26

27

2 Designating parties are advised that if the Court decides that certain now-sealed information is

1 No. 16-MD-02752-LHK, 2018 WL 9651897, at *2 (N.D. Cal. Jan. 3, 2018) (citing cases); Ctr. for

2 Auto Safety, 809 F.3d at 1099. Accordingly, this Court applies the “compelling reasons” standard

3 to Plaintiffs’ first amended complaint (“FAC”). Plaintiffs move to consider sealing material in

4 their FAC that Microsoft and Sony have designated as highly confidential and highly confidential

5 – outside counsel only, respectively. (Dkt. Nos. 88, 89.)

6 1. Microsoft’s Materials

7 Microsoft filed a statement and declaration modifying Plaintiffs’ motion which this Court

8 considers, but it is overbroad. (See Dkt. No. 114.) Microsoft requests to seal “sensitive business

9 information” from three categories: confidential contracts, business strategy, and competitive

10 analysis. (Id at 2.) For example, Microsoft requests redactions regarding Microsoft and

11 Activision’s competitive relationship or the value of Activision games to Microsoft given the

12 public merger, but this is important to understanding how the merger would affect competition and

13 it does not appear to reveal information that would damage Microsoft’s competitive position.

14 (See, e.g., Dkt. No. 88-3 ¶¶ 11, 159, 182, 252.) For other information designated as confidential,

15 Microsoft has not provided compelling reasons that would outweigh the public’s presumption of

16 access to understanding the merits. (See, e.g., id. ¶¶ 22, 92.)

17 2. Sony’s Materials

18 Sony, a non-party, has provided sufficient compelling reasons for sealing each part of the

19 FAC containing non-public confidential information about Sony’s cloud and gaming services and

20 subscription services, internal business data, console competition research, observations about

21 consumer behavior and engagement, and other strategy decisions that would cause injury to Sony.

22 (See Dkt. No. 113.) Further, Sony’s proposed redactions are narrow enough as to not significantly

23 reduce the public’s understanding of the FAC or the Court’s analysis of it as other allegations

24 provide enough information and context.

25 Accordingly, Plaintiffs’ motions are GRANTED in part, DENIED in part as detailed

26 below. (Dkt. Nos. 88, 89.)

27

Portions of Materials Requested to

1 Designating Party Ruling

be Sealed

2 FAC ¶¶ 40, 310 Microsoft DENIED with prejudice. Microsoft

did not address sealing portions of

3 these paragraphs and as such they

are unsealed.

4 FAC ¶¶ 80-83, 108-109, 205, 228, Microsoft GRANTED. Microsoft provides

257, 285-286, 288 (lines 52:1-7), compelling reasons to protect its

5

303, 327 confidential business strategy and

6 prevent competitive harm.

FAC ¶¶ 66, 78-79 Microsoft GRANTED. Microsoft provides

7 compelling reasons to protect its

business information and prevent

8

competitive harm.

9 FAC ¶¶ 333, 335-338 Microsoft GRANTED. Microsoft provides

compelling reasons to protect

10 confidential contracts.

FAC ¶¶ 41, 73, 192, 301, 313 Microsoft GRANTED. Microsoft provides

11 compelling reasons to protect its

competitive analysis and prevent

12

competitive harm.

13 FAC ¶¶ 11, 22, 54-55, 57, 71-72, Microsoft DENIED without prejudice.

76, 92, 159, 182, 199, 205, 252, Microsoft failed to meet its burden

14 271, 275, 280, 288 (lines 52:8-9), to provide compelling reasons why

304-305, 323, 332, 353, 362, 375- these paragraphs should be sealed

15 376 that outweigh a public’s right to

access judicial materials related to

16

the merits and the Court’s analysis.

17 FAC ¶¶ 66, 300, 303, 308-312, Sony GRANTED. Sony provides

316, 326 compelling reasons to protect its

18 confidential business information

and prevent competitive harm.

19

20

B. Microsoft’s Motion to Dismiss Materials

21

Microsoft has moved to seal the exhibits attached to its motion to dismiss in their entirety.

22

(Dkt. No. 119.) Upon review of Microsoft’s exhibits, this Court finds that these documents are

23

contracts with confidential terms or discussions of those terms that would harm the party’s

24

negotiating position moving forward. Accordingly, sealing is warranted under both the “good

25

cause” and “compelling reasons” standards. Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF

26

(JSC), 2015 WL 3988132, at *4-5 (N.D. Cal. June 30, 2015); see Qualcomm Inc., 2019 WL

27

95922, at *3.

1 Microsoft’s motion is GRANTED as detailed below. (Dkt. No. 119.)

Portions of Materials Requested to

2 Designating Party Ruling

be Sealed

3 Kilaru Decl., Exs. A-E Microsoft GRANTED. Microsoft provides

compelling reasons to protect

4 confidential contracts and

discussions thereof in deposition

5 testimony.

6

7 C. Plaintiffs’ Motion for Preliminary Injunction and Related Documents

8 Plaintiffs seek to consider sealing materials in and exhibits to Plaintiffs’ motion for

9 preliminary injunction. Denying a preliminary injunction does not change the presumption of

10 public access regarding judicial records related to that motion for preliminary injunction. See Ctr.

11 for Auto Safety, 809 F.3d at 1102. In their FAC, Plaintiffs request primarily injunctive relief. (See

12 Dkt. No. 83-3 ¶¶ 386-92.) Here, the motion for preliminary injunction is more than tangentially

13 related to the merits of the case where this preliminary injunctive relief would have resolved that

14 portion of their claims in Plaintiffs’ FAC. See Ctr. for Auto Safety, 809 F.3d at 1102.

15 Accordingly, this Court applies the “compelling reasons” standard to judicial records related to

16 Plaintiffs’ motion.

17 1. Plaintiffs’ Motion for Preliminary Injunction

18 Plaintiffs seek to consider sealing materials and exhibits that Microsoft and Sony have

19 designated highly confidential and highly confidential – outside counsel only, respectively. (Dkt.

20 Nos. 133, 134.)

21 a. Microsoft’s Materials

22 Microsoft filed a statement contending that all materials referenced in and attached to

23 Plaintiffs’ motion should be sealed. (Dkt. No. 158.) Microsoft’s request is overbroad. Microsoft

24 states the material contains “internal, confidential business strategies and analyses” such as

25 “internal strategy presentations, discussions, and analysis used in Microsoft’s decision-making”

26 that competitors could use to obtain a competitive advantage. (Id. at 2.) Microsoft has provided

27 compelling reasons to seal some portions of Plaintiffs’ material and exhibits, but for others, the

1 explained how the 12/17/19 email from Matt Booty in Exhibit K would harm rather than just

2 embarrass Microsoft should the information become public.3 See Kamakana, 447 F.3d at 1179

3 (stating compelling reasons based on specific factual findings must outweigh presumption in favor

4 of public access to judicial records); Nixon, 435 U.S. at 598 (stating documents may be sealed to

5 prevent harm but not embarrassment). It also has not provided compelling reasons as to why the

6 expert’s qualifications and conclusions should be sealed in the expert’s report, Exhibit A to the

7 Seidel Decl.

8 b. Sony's Materials

9 Sony filed a statement and declaration narrowing Plaintiffs’ request to seal certain

10 information. (Dkt. No. 179; see Dkt. No. 177 (granting Sony’s request to file out of time).)

11 For the most part, Sony has provided in detail compelling reasons for this Court to seal its

12 information. (See Dkt. No. 179.) Sony explains that the confidential and internal data, including

13 platform user and franchise data, and economic and commercial analysis that are not publicly

14 accessible outside the company could “unfairly enable [Sony]’s competitors to gain insight into

15 [Sony]’s strategic thinking and business strategy” because it would be “immensely valuable to

16 competitors in developing their own strategy against [Sony], and to prospective and current

17 business partners in negotiating with [Sony].” (Dkt. No. 179-1.) These are “sources of business

18 information that might harm a litigant’s competitive standing.” Ctr. for Auto Safety, 809 F.3d at

19 1097. This Court also considers that Sony did not voluntarily put at issue its information. See

20 United States v. Bazaarvoice, Inc., No. 13-cv-00133-WHO, 2014 WL 11297188, at *1 (N.D. Cal.

21 Jan. 21, 2014).

22 However, Sony’s requests to seal Plaintiffs’ expert report in its entirety, Exhibit A to the

23 Seidel Decl., because it relies on its data and analysis is overbroad. (See Dkt. No. 179 at 1, 6; Dkt.

24 No. 133 at 4; Dkt. No. 158 at 2.) The expert’s qualifications and conclusions speak to the merits

25 of the case and pose limited competitive harm. Weighing the competitive harm the report could

26 inflict with the public’s right of access to judicial records, this Court declines to seal portions of

27

1 the report. Namely, the cover page, the table of contents, the Section 1 Qualifications, the Section

2 2 Report’s Instructions, the Section 3 Summary and Conclusion, and the Section 6.6 Summary.

3 Accordingly, Plaintiffs’ motions are GRANTED in part, DENIED in part as detailed

4 below. (Dkt. Nos. 133, 134.)

Portions of Materials Requested to

5 Designating Party Ruling

be Sealed

6 Plaintiffs’ Motion for Preliminary Microsoft GRANTED. Microsoft provides

Injunction 2:8-10, 12:16-17 (after compelling reasons to protect its

7 “industry”), 16:12-21, 17:20-26, business information, business

18:5-7, 18:24-28, 19:21-23, 19:27- strategy, confidential contracts,

8 20:1, 20:4-7, 21:7-9, 24:12-14 and competitive analysis and

prevent competitive harm.

9

Plaintiffs’ Motion for Preliminary Microsoft DENIED without prejudice.

10 Injunction 2:26-3:8, 12:11-14, Microsoft failed to meet its burden

12:15-16 (through “industry”), to provide compelling reasons why

11 12:26-28, 16:6-7, 16:10, 20:21-22, these paragraphs should be sealed

20:24, 21:14, 21:21-23, 22:16-25, that outweigh a public’s right to

12 22:27-28, 23:13-14, 23:24, 23:25- access judicial materials related to

24:5, 24:9, 27:25-26 the merits and the Court’s

13

analysis.

14 Seidel Decl., Exs. I, J, M, Q, R, S, Microsoft GRANTED. Microsoft provides

T, W, X, Y, CC compelling reasons to protect its

15 business strategy and competitive

analysis and prevent competitive

16

harm.

17 Seidel Decl., Ex. K Microsoft DENIED as moot as to the

12/17/19 Booty email, GRANTED

18 as to remainder. Microsoft failed

to show how that email would

19 competitively harm it and that

email has since been disclosed in

20

another proceeding.

21 Seidel Decl., Ex. U Microsoft DENIED without prejudice.

Microsoft failed to meet its burden

22 to provide compelling reasons why

these paragraphs should be sealed

23 that outweigh a public’s right to

access judicial materials related to

24

the merits and the Court’s

25 analysis.

Plaintiffs’ Motion for Preliminary Sony DENIED with prejudice. Sony did

26 Injunction 4:20-21, 15:5, 17:9, not address sealing portions of

23:10-11 these paragraphs and as such they

27

are unsealed.

Plaintiffs’ Motion for Preliminary Sony GRANTED. Sony provides

1

Injunction 15:10-12, 16:23-26, compelling reasons to protect its

2 18:1-3, 19:23-25, 20:1-4, 20:12- business information and prevent

15, 20:25-21:6, 21:9-13, 21:17-19, competitive harm.

3 22:6-8, 23:14, 27:27-28:3

Seidel Decl., Ex. A Sony, Microsoft DENIED without prejudice as to

4 cover page, the table of contents,

Sections 1-3, Section 6.6,

5

GRANTED as to remainder. Sony

6 and Microsoft provide compelling

reasons to protect their respective

7 confidential business information

and strategy and prevent

8 competitive harm.

Seidel Decl., Exs. B-F, G, L Sony GRANTED. Sony provides

9

compelling reasons to protect its

10 business information and prevent

competitive harm.

11

12

2. Microsoft’s Opposition to Plaintiffs’ Motion for Preliminary Injunction

13

Microsoft requests this Court seal some of its and Activision’s materials and exhibits filed

14

in support of its opposition to Plaintiffs’ motion for preliminary injunction and designated as

15

confidential and highly confidential – outside counsel only, respectively. (Dkt. Nos. 161, 162.)

16

a. Microsoft’s Materials

17

Microsoft provides a limited but compelling factual basis to redact the valuation of the

18

merger and confidential agreements arising out of the same because it could harm Microsoft’s

19

competitive standing and future negotiations with competitors. Santelices v. Apttus Corp., No. 19-

20

cv-07414-HSG, 2020 WL 5870509, at *4 (N.D. Cal. Oct. 2, 2020) (finding compelling reasons to

21

seal company’s internal valuation analysis of merger where court did not rely on documents in its

22

analysis). The public’s interest in disclosure of this information is minimal given that the bond did

23

not factor into the Court’s analysis when it denied Plaintiffs’ motion for preliminary injunction.

24

Plaintiffs oppose Microsoft’s request as deficient. (Dkt. No. 176.) However, Microsoft has

25

provided a narrowly tailored request supported by a factual basis that allows this Court to grant

26

sealing portions of its opposition and related exhibits. (See Dkt. No. 161.)

27

b. Activision’s Materials

1

Activision filed a statement and declaration in support, narrowing Microsoft’s request to

2

certain page and line redactions which this Court now considers. (Dkt. No. 183.) Activision

3

provides compelling reasons for sealing portions of Microsoft’s opposition to Plaintiffs’ motion

4

for preliminary injunction related to confidential contract terms and negotiating strategy, the terms

5

of a proposed agreement, and a decision about whether Activision would participate in newly-

6

developed services. (Id.) As a non-party, the compelling reasons test is more lenient. See Epic

7

Games, Inc., 2021 WL 1925460, at *1. Sealing this information prevents competitive harm by

8

keeping confidential the specific terms and business decisions made by Activision. See Ctr. for

9

Auto Safety, 809 F.3d at 1097; In re Qualcomm Litig., 2017 WL 5176922, at *2 (finding

10

compelling reasons to seal information subject to confidentiality agreements that could harm a

11

party’s future negotiating position); Finisar Corp., 2015 WL 3988132, at *5 (same).

12

Microsoft’s motions are GRANTED as detailed below. (Dkt. Nos. 161, 162.)

13 Portions of Materials Requested to

Designating Party Ruling

be Sealed

14

Microsoft’s Opposition 15:3, 15:9- Microsoft GRANTED. Microsoft provides

15 15, 15:19, 15:20, 15 n.12, 16:17- compelling reasons to protect

18 business strategy and prevent

16 competitive harm.

Kilaru Decl., Exs. C, D, E Microsoft GRANTED. Microsoft provides

17

compelling reasons to protect

18 confidential contracts and

discussions thereof in deposition

19 testimony.

Stuart Decl., ¶¶ 8, 15-21 Microsoft GRANTED. Microsoft provides

20 compelling reasons to protect

confidential contracts and business

21

strategy and prevent competitive

22 harm.

Stuart Decl., Exs. B, C Microsoft GRANTED. Microsoft provides

23 compelling reasons to protect

confidential contracts and business

24 strategy and prevent competitive

harm.

25

26 Microsoft’s Opposition 8:25-26 Activision GRANTED. Activision provides

compelling reasons to protect

27 confidential contracts and prevent

Kilaru Decl., Ex. B 187:1-190:25 Activision GRANTED as redacted, DENIED

1

with prejudice as to remainder.

2 Activision provides compelling

reasons to protect confidential

3 contracts and prevent competitive

harm.

4 Kilaru Decl., Ex. F 49:1-53:25, Activision GRANTED as redacted, DENIED

64:1-65:25, 77:1-78:23 with prejudice as to remainder.

5

Activision provides compelling

6 reasons to protect confidential

contracts and prevent competitive

7 harm.

Kilaru Decl., Ex. G 112:2-113:24 Activision GRANTED as redacted, DENIED

8 with prejudice as to remainder.

Activision provides compelling

9

reasons to protect confidential

10 contracts and prevent competitive

harm.

11

12

3. Plaintiffs’ Reply and Corrected Reply

13

Plaintiffs filed two motions to consider sealing Microsoft’s materials designated as highly

14

confidential in Plaintiffs’ reply and corrected reply. (Dkt. Nos. 167, 173.) Microsoft filed a

15

statement in support of sealing the same materials in each document. (Dkt. No. 180.) Plaintiffs

16

oppose Microsoft’s statement in support of sealing, arguing that the materials regarding the issue

17

of the bond go toward the public’s understanding of the judicial process and Microsoft failed to

18

provide compelling reasons for keeping information related to the valuation of the merger sealed.

19

(Dkt. No. 184.)

20

Microsoft provides a compelling factual basis to redact the valuation of the merger because

21

it could harm Microsoft’s competitive standing and future negotiations with competitors. See

22

Santelices, 2020 WL 5870509, at *4 (finding compelling reasons to seal company’s internal

23

valuation analysis of merger where Court did not rely on documents in its analysis). The public’s

24

interest in disclosure of this information is minimal given that the bond did not factor into the

25

Court’s analysis when it denied Plaintiffs’ motion for preliminary injunction, and it is not central

26

to the ongoing merits of the case.

27

Plaintiffs’ motions are GRANTED as detailed below. (Dkt. Nos. 167, 173.)

1

Portions of Materials Requested to

2 Designating Party Ruling

be Sealed

3 Plaintiffs’ Reply 11:16, 11:23, Microsoft GRANTED. Microsoft provides

12:25 compelling reasons to protect its

4 business strategy and analysis and

prevent competitive harm.

5 Plaintiffs’ Corrected Reply 11:16, Microsoft GRANTED. Microsoft provides

11:23, 12:25 compelling reasons to protect its

6

business strategy and analysis and

7 prevent competitive harm.

8

9 D. Joint Letter Brief Regarding Exhibit K

10 The parties filed a joint letter brief regarding the sealability of Exhibit K to the Seidel

11 Decl., attached as Exhibit 1 to the Williams declaration in support of the parties’ joint letter brief,

12 hereinafter “Exhibit K”. The sealability of Exhibit K is also addressed in connection with the

13 preliminary injunction motion. Microsoft asks to seal both Exhibit K and an excerpt thereof in the

14 joint letter brief. (Dkt. No. 199.)

15 The Court DENIES sealing of Exhibit K for the entire 12/17/2019 email from Matt Booty;

16 the rest of Exhibit K may be sealed. (Dkt. No. 185.) The unsealed portion has been made public

17 in another proceeding. See FTC v. Microsoft Corp., No. 23-cv-02880-JSC. Given that Exhibit K

18 was at issue in an administrative motion to seal, the discovery dispute joint letter was unnecessary

19 and the Court declines to find that Microsoft waived its right to a confidentiality designation of

20 any of Exhibit K. (Dkt. No. 186.)

Portions of Materials Requested to

21 be Sealed Designating Party Ruling

Parties’ Joint Letter Brief: Microsoft DENIED as moot.

22

quotation following “three years

23 old. It states that . . .”

Ex. 1 to the Declaration of Steven Microsoft DENIED as moot as to the

24 N. Williams (Ex. K) 12/17/19 Booty email, GRANTED

as to remainder.

25

26

27

1 CONCLUSION

2 The Court rules on these requests to seal based on the current state of the record. If any

3 party or non-party believes that any portion of these documents or exhibits not ordered sealing do

4 || warrant sealing under the compelling reasons standard, then within 14 days of this Order, it shall

5 submit narrowly tailored motions to seal in compliance with Civil Local Rule 79-5. If no such

6 || motions are filed, then the parties shall file versions of these documents pursuant to this Order as

7 needed within 21 days of this Order.

8 This Order disposes of Dkt. Nos. 88, 89, 119, 133, 134, 161, 162, 167, 173, 185, 186.

9 IT IS SO ORDERED.

10 Dated: June 26, 2023

11

JAQQUELINE SCOTT CORL

13 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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