The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
6
7 AGIS SOFTWARE DEVELOPMENT LLC, Case No. 22-cv-04826-BLF
8 Plaintiff,
ORDER GRANTING
9 v. ADMINISTRATIVE MOTION TO
SEAL
10 GOOGLE LLC,
[Re: ECF No. 451]
11 Defendant.
12
13 On June 14, 2023, AGIS filed an administrative motion to seal portions of its opposition to
14 Defendants’ Motion for Summary Judgment and related exhibits. ECF No. 451. The Court
15 denied AGIS’s motion and directed AGIS to refile by September 4, 2023. See ECF No. 460.
16 AGIS did not refile. Upon further consideration, the Court recognizes that its order (ECF No.
17 460) may have been unclear. Thus, in the interest of efficiency, the Court reconsiders its prior
18 ruling and GRANTS AGIS’s Administrative Motion to Seal, ECF No. 451.
19 I. LEGAL STANDARD
20 “Historically, courts have recognized a ‘general right to inspect and copy public records
21 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of
22 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435
23 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong
24 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.
25 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to
26 motions that are “more than tangentially related to the underlying cause of action” bear the burden
27 of overcoming the presumption with “compelling reasons” that outweigh the general history of
1 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.
2 Records attached to motions that are “not related, or only tangentially related, to the merits
3 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809
4 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to
5 court records attached only to non-dispositive motions because those documents are often
6 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal
7 the documents attached to such motions must meet the lower “good cause” standard of Rule
8 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard
9 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the
10 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,
11 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated
12 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins.
13 Co., 966 F.2d 470, 476 (9th Cir. 1992).
14 II. DISCUSSION
15 The documents at issue in AGIS’s motion to seal are associated with AGIS’s Opposition to
16 Defendant’s Motion for Summary Judgment. These documents concern infringement and
17 invalidity of the patents at issue in the case. These issues are “more than tangentially related to the
18 merits of [the] case” and therefore the parties must provide “compelling reasons” for maintaining
19 the documents under seal. See Ctr. for Auto Safety, 809 F.3d at 1101; see also Finjan, Inc. v.
20 Juniper Network, Inc., No. C 17-5659 WHA, 2021 WL 1091512, at *1 (N.D. Cal. Feb. 10, 2021).
21 AGIS argues that compelling reasons exist to seal the material it seeks to seal that disclose:
22 “source code and technical information regarding the Accused Products that have been designated
23 highly confidential by Defendants”; “confidential communications regarding settlement
24 discussions and/or negotiations”; “confidential business information”; and “technical functionality
25 of the Accused Products.” ECF No. 451. Defendant Google does not object to the sealing of any
26 of the documents in its response. ECF No. 454.
27 The Court finds that compelling reasons exist to seal the identified portions of each
1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under
2 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG,
3 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential
4 business information” in the form of “business strategies” sealable under the compelling reasons
5 standard.).
6 Accordingly, AGIS’s Administrative Motion (ECF No. 451) is GRANTED. The Court
7 finds that AGIS’s request is not narrowly tailored because it seeks to seal several documents in
8 their entirety. Furthermore, the Court notes that AGIS should have filed separate motions
9 regarding sealing of its own material and Defendants’ material. The Court will overlook the
10 failure for this motion. However, future failures to comply with the standing order may result in
11 denial of a motion to seal with prejudice.
12
ECF No. Document Portion(s) to Seal Ruling
13 ECF Plaintiff AGIS Highlighted Portions at: Granted, as the highlighted portions
451-3 Software • Page 4: lines 8, 10, disclose information from Exhibits A-
14 Development 14; J, Z-DD, TT-WW, and BBB-DDD
LLC’s Response • Page 7: lines 5-8, 15- to AGIS’s Response in Opposition to
15 in Opposition 17; Defendants’ Motion for Summary
16 to Defendants’ • Page 10: lines 10-13; Judgment (Dkt. 434), which AGIS
Motion for • Page 11: lines 18-21, and/or Defendants have designated as
17 Summary • 22-24; highly confidential / RESTRICTED
Judgment ATTORNEYS’ EYES ONLY. These
• Page 12: lines 14-18;
18 highlighted portions contain highly
• Page 13: line 26;
confidential source code, settlement
19 • Page 14: lines 6-8, discussions and/or negotiations, and
10;
testimony from party witnesses.
20 • Page 15: lines 16-27;
• Page 18: lines 20-26;
21 Furthermore, revealing the identity and
• Page 20: lines 6-8, nature of settlement discussions and/or
22 15-20; negotiations with AGIS would be
• Page 24: lines 10, harmful if its contents became known to
23 12-13, 18-24, 27-28; competitors of the parties, would cause
• Page 25: lines 3, 12- parties harm.
24
13, 17-20.
25 Finally, disclosure of source code of
Defendants that Defendants have
26 designated highly confidential, and
testimony from party witnesses
27
regarding the functionality of the
designated highly confidential by
1
Defendants would be harmful to
2 Defendants, and if its contents became
known to competitors of Defendants,
3 would cause competitive harm.
ECF Ex. A to AGIS Entire Document Granted, as this document discloses
4 451-4 Software’s source code and technical information
Response in regarding the Accused Products that
5
Opposition to have been designated highly
6 Defendants’ confidential by Defendants.
Motion for
7 Summary
Judgment
8 ECF Ex. B to AGIS Entire Document Granted, as this document discloses
451-5 Software’s source code and technical information
9
Response in regarding the Accused Products that
10 Opposition to have been designated highly
Defendants’ confidential by Defendants.
11 Motion for
Summary
12
Judgment
13 ECF Ex. C to AGIS Entire Document Granted, as this document discloses
451-6 Software’s excerpts of the deposition testimony of
14 Response in Joseph C. McAlexander III, the
Opposition to technical expert of AGIS Software. Mr.
15 Defendants’ McAlexander’s testimony includes
Motion for information regarding the functionality
16
Summary of the Accused Products, and contents
17 Judgment of documents and source code of the
Accused Products which have been
18 designated highly confidential by
Defendants.
19 ECF Ex. D to AGIS Entire Document Granted, as this document discloses
451-7 Software’s source code and technical information
20
Response in regarding the Accused Products that
21 Opposition to have been designated highly
Defendants’ confidential by Defendants.
22 Motion for
Summary
23 Judgment
ECF Ex. E to AGIS Entire Document Granted, as this document discloses
24
451-8 Software’s source code and technical information
25 Response in regarding the Accused Products that
Opposition to have been designated highly
26 Defendants’ confidential by Defendants.
Motion for
27
Summary
ECF Ex. F to AGIS Entire Document Granted, as this document discloses
1
451-9 Software’s source code and technical information
2 Response in regarding the Accused Products that
Opposition to have been designated highly
3 Defendants’ confidential by Defendants.
Motion for
4 Summary
Judgment
5
ECF Ex. G to AGIS Entire Document Granted, as this document discloses
6 451-10 Software’s source code and technical information
Response in regarding the Accused Products that
7 Opposition to have been designated highly
Defendants’ confidential by Defendants.
8 Motion for
Summary
9
Judgment
10 ECF Ex. H to AGIS Entire Document Granted, as this document discloses
451-11 Software’s source code and technical information
11 Response in regarding the Accused Products that
Opposition to have been designated highly
12
Defendants’ confidential by Defendants.
Motion for
13
Summary
14 Judgment
ECF Ex. I to AGIS Entire Document Granted, as this document discloses
15 451-12 Software’s source code and technical information
Response in regarding the Accused Products that
16
Opposition to have been designated highly
17 Defendants’ confidential by Defendants.
Motion for
18 Summary
Judgment
19 ECF Ex. J to AGIS Entire Document Granted, as this document discloses
451-13 Software’s excerpts of the deposition testimony of
20
Response in Yuval Shmuelevitz, the corporate
21 Opposition to witness of Waze Mobile Limited. Mr.
Defendants’ Shmuelevitz’s testimony includes
22 Motion for technical information regarding the
Summary functionality of the Waze Accused
23 Judgment Products, and contents of documents
and source code of the Waze Accused
24
Products, which Defendants have
25 designated highly confidential.
ECF Ex. Z to AGIS Entire Document Granted, as this document discloses
26 451-14 Software’s confidential communications regarding
Response in settlement discussions and/or
27
Opposition to negotiations between AGIS Software
Motion for nature of settlement discussions and/or
1
Summary negotiations with AGIS would be
2 Judgment harmful if its contents became known to
competitors of the parties, would cause
3 parties harm, and also violate the Fed.
R. Evid. 408. See Powertech Tech., Inc.
4 v. Tessera, Inc., 2013 WL 12324116, at
*19 (N.D.Cal. Apr. 15, 2013) (granting
5
a motion to seal a draft license
6 agreement with a third party). Rubino
Decl. ¶ 4.
7 ECF Ex. AA to AGIS Entire Document Granted, as this document discloses
451-15 Software’s confidential business information
8 Response in regarding third- party Advanced
Opposition to Ground Information Systems’ product,
9
Defendants’ LifeRing. Disclosure of this
10 Motion for confidential business information
Summary would be harmful to Advanced Ground
11 Judgment Information Systems if its contents
became known to competitors of the
12 Advanced Ground Information
Systems, because it includes
13
confidential technical information. See
14 Powertech Tech., Inc.
v. Tessera, Inc., 2013 WL 12324116,
15 at *19 (N.D.Cal. Apr. 15, 2013)
(granting a motion to seal a draft
16
license agreement with a third party).
17 Rubino Decl. ¶ 4.
ECF Ex. BB to AGIS Entire Document Granted, as this document discloses
18 451-16 Software’s excerpts of the deposition testimony of
Response in Malcolm K. Beyer, Jr., the corporate
19 Opposition to witness of AGIS. Mr. Beyer’s
Defendants’ testimony includes information
20
Motion for regarding confidential settlement
21 Summary discussions and/or negotiations
Judgment between AGIS Software and Google.
22 Revealing the identity and nature of
settlement discussions and/or
23 negotiations with AGIS would be
harmful if its contents became known
24
to competitors of the parties, would
25 cause parties harm, and also violate the
Fed. R. Evid. 408. See Powertech
26 Tech., Inc. v. Tessera, Inc., 2013 WL
12324116, at *19 (N.D.Cal.
27 Apr. 15, 2013) (granting a motion to
third party). Rubino Decl. ¶ 4.
1
ECF Ex. CC to AGIS Entire Document Granted, as this document discloses
2 451-17 Software’s excerpts of the deposition testimony of
Response in Malcolm K. Beyer, Jr., the corporate
3 Opposition to witness of AGIS. Mr. Beyer’s
Defendants’ testimony includes information
4 Motion for regarding confidential settlement
Summary discussions and/or negotiations
5
Judgment between AGIS Software and Google.
6 Revealing the identity and nature of
settlement discussions and/or
7 negotiations with AGIS would be
harmful if its contents became known
8 to competitors of the parties, would
cause parties harm, and also violate the
9
Fed. R. Evid. 408. See Powertech
10 Tech., Inc. v. Tessera, Inc., 2013 WL
12324116, at *19 (N.D.Cal.
11 Apr. 15, 2013) (granting a motion to
seal a draft license agreement with a
12 third party). Rubino Decl. ¶ 4.
ECF Ex. DD to AGIS Entire Document Granted, as this document discloses
13
451-18 Software’s excerpts of the deposition testimony of
14 Response in Malcolm K. Beyer, Jr., the corporate
Opposition to witness of AGIS. Mr. Beyer’s
15 Defendants’ testimony includes information
Motion for regarding confidential settlement
16
Summary discussions and/or negotiations
17 Judgment between AGIS Software and Google.
Revealing the identity and nature of
18 settlement discussions and/or
negotiations with AGIS would be
19 harmful if its contents became known
to competitors of the parties, would
20
cause parties harm, and also violate the
21 Fed. R. Evid. 408. See Powertech
Tech., Inc. v. Tessera, Inc., 2013 WL
22 12324116, at *19 (N.D.Cal.
Apr. 15, 2013) (granting a motion to
23 seal a draft license agreement with a
third party). Rubino Decl. ¶ 4.
24
ECF Ex. TT to AGIS Entire Document Granted, as this document discloses
25 451-19 Software’s excerpts of the deposition testimony of
Response in Malcolm K. Beyer, Jr., the corporate
26 Opposition to witness of AGIS. Mr. Beyer’s
Defendants’ testimony includes information
27 Motion for regarding confidential settlement
Judgment between AGIS Software and Google.
1
Revealing the identity and nature of
2 settlement discussions and/or
negotiations with AGIS would be
3 harmful if its contents became known
to competitors of the parties, would
4 cause parties harm, and also violate the
Fed. R. Evid. 408. See Powertech
5
Tech., Inc. v. Tessera, Inc., 2013 WL
6 12324116, at *19 (N.D.Cal.
Apr. 15, 2013) (granting a motion to
7 seal a draft license agreement with a
third party). Rubino Decl. ¶ 4.
8 ECF Ex. UU to AGIS Entire Document Granted, as this document discloses
451-20 Software’s excerpts of the deposition testimony of
9
Response in Malcolm K. Beyer, Jr., the corporate
10 Opposition to witness of AGIS. Mr. Beyer’s
Defendants’ testimony includes information
11 Motion for regarding confidential settlement
Summary discussions and/or negotiations
12 Judgment between AGIS Software and Google.
Revealing the identity and nature of
13
settlement discussions and/or
14 negotiations with AGIS would be
harmful if its contents became known
15 to competitors of the parties, would
cause parties harm, and also violate the
16
Fed. R. Evid. 408. See Powertech
17 Tech., Inc. v. Tessera, Inc., 2013 WL
12324116, at *19 (N.D.Cal.
18 Apr. 15, 2013) (granting a motion to
seal a draft license agreement with a
19 third party). Rubino Decl. ¶ 4.
ECF Ex. VV to AGIS Entire Document Granted, as this document discloses
20
451-21 Software’s excerpts of the deposition testimony of
21 Response in Malcolm K. Beyer, Jr., the corporate
Opposition to witness of AGIS. Mr. Beyer’s
22 Defendants’ testimony includes information
Motion for regarding confidential settlement
23 Summary discussions and/or negotiations
Judgment between AGIS Software and Google.
24
Revealing the identity and nature of
25 settlement discussions and/or
negotiations with AGIS would be
26 harmful if its contents became known
to competitors of the parties, would
27 cause parties harm, and also violate the
Tech., Inc. v. Tessera, Inc., 2013 WL
1
12324116, at *19 (N.D.Cal.
2 Apr. 15, 2013) (granting a motion to
seal a draft license agreement with a
3 third party). Rubino Decl. ¶ 4.
ECF Ex. WW to Entire Document Granted, as this document discloses
4 451-22 AGIS excerpts of the deposition testimony of
Software’s Malcolm K. Beyer, Jr., the corporate
5
Response in witness of AGIS. Mr. Beyer’s
6 Opposition to testimony includes information
Defendants’ regarding confidential settlement
7 Motion for discussions and/or negotiations
Summary between AGIS Software and Google.
8 Judgment Revealing the identity and nature of
settlement discussions and/or
9
negotiations with AGIS would be
10 harmful if its contents became known
to competitors of the parties, would
11 cause parties harm, and also violate the
Fed. R. Evid. 408. See Powertech
12 Tech., Inc. v. Tessera, Inc., 2013 WL
12324116, at *19 (N.D.Cal. Apr. 15,
13
2013) (granting a motion to seal a draft
14 license agreement with a third party).
Rubino Decl. ¶ 4.
15 ECF Ex. BBB to Entire Document Granted, as this document discloses
451-23 AGIS excerpts of the deposition testimony of
16
Software’s Andrew Lookingbill, the corporate
17 Response in witness of Waze Mobile Limited. Mr.
Opposition to Lookingbill’s testimony includes
18 Defendants’ information regarding the corporate
Motion for structure and/or identities of
19 Summary employees of Defendants, which
Judgment Defendants have designated highly
20
confidential.
21 ECF Ex. CCC to Entire Document Granted, as this document discloses
451-24 AGIS excerpts of the deposition testimony of
22 Software’s Micah Mason, the corporate witness of
Response in Defendants. Mr. Mason’s testimony
23 Opposition to includes information regarding the
Defendants’ technical functionality of the Accused
24
Motion for Products, and contents of documents
25 Summary and source code of the Accused
Judgment Products, which Defendants have
26 designated highly confidential.
ECF Ex. DDD to Entire Document Granted, as this document discloses
27 451-25 AGIS excerpts of the deposition testimony of
I Response in Defendants. Mr. Secor’s testimony
Opposition to includes information regarding the
2 Defendants’ technical functionality of the Accused
Motion for Products, and contents of documents
3 Summary and source code of the Accused
Judgment Products, which Defendants have
4 designated highly confidential.
5 Il. ORDER
6 For the foregoing reasons, IT IS HEREBY ORDERED that AGIS’s Motion to Seal at ECF
7 |! No. 451 is GRANTED.
8
9 || Dated: September 6, 2023
BETH LABSON FREEMAN
11 United States District Judge
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