The opinion
1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
9
10 SONOS, INC.,
11 Plaintiff, No. C 20-06754 WHA
No. C 21-07559 WHA
12 v.
13 GOOGLE LLC, OMNIBUS ORDER RE FINAL
MOTIONS TO SEAL
14 Defendant.
15
16 This omnibus order addresses the remaining omnibus motions to seal (Dkt. Nos. 831,
17 851). In accordance with prior orders, the parties have tailored their requests to seal
18 considerably (see Dkt. Nos. 817, 846). At this stage, the requests largely involve many
19 different filings of the same documents, and they have been granted at a higher rate than in past
20 sealing orders (see Dkt. Nos. 334, 518). The Court again thanks Sonos and its counsel for the
21 careful work narrowing its sealing requests (see Dkt. No. 846 at 1). For the reasons stated
22 herein, Sonos’s omnibus motion to seal is GRANTED. The Court now thanks Google and its
23 counsel for further narrowing its sealing requests and providing detailed charts (see Dkt.
24 Nos. 852–54). For the reasons stated herein, Google’s omnibus motion to seal is GRANTED IN
25 PART and DENIED IN PART.
26 There is a strong public policy in favor of openness in our court system and the public is
27 entitled to know to whom we are providing relief (or not). See Kamakana v. City & Cnty. of
1 attachments that are “more than tangentially related to the merits of a case” may be sealed only
2 upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp.,
3 LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Filings that are only tangentially related to the
4 merits may be sealed upon a lesser showing of “good cause.” Id. at 1097. The compelling
5 reasons standard applies to most judicial records. Evidentiary motions, such as motions in
6 limine and Daubert motions, can be strongly correlative to the merits of a case. Id. at 1098–
7 1100.
8 In addition, sealing motions filed in this district must contain a specific statement that
9 explains: (1) the legitimate private or public interests that warrant sealing; (2) the injury that
10 will result should sealing be denied; and (3) why a less restrictive alternative to sealing is not
11 sufficient. The material requested to be sealed must be “narrowly tailored to seal only the
12 sealable material.” Civ. L.R. 79-5(c). For example, “[t]he publication of materials that could
13 result in infringement upon trade secrets has long been considered a factor that would
14 overcome [the] strong presumption” in favor of access and provide compelling reasons for
15 sealing. Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). Compelling reasons
16 may also warrant sealing for “sources of business information that might harm a litigant’s
17 competitive standing,” especially where the public has “minimal interest” in the information.
18 See Nixon v. Warner Comms., Inc., 435 U.S. 589, 598 (1978).
19 Finally, “[s]upporting declarations may not rely on vague boilerplate language or
20 nebulous assertions of potential harm but must explain with particularity why any document or
21 portion thereof remains sealable under the applicable legal standard.” Bronson v. Samsung
22 Elecs. Am., Inc., 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) (citing Civ. L.R. 79-5).
23 “Reference to a stipulation or protective order that allows a party to designate certain
24 documents as confidential is not sufficient to establish that a document, or portions thereof, are
25 sealable.” Civ. L.R. 79-5(c).
26 1. SONOS’S OMNIBUS MOTION TO SEAL (DKT. NO. 831).
27 Regarding Sonos’s omnibus motion and related exhibits, this order rules as follows:
Dkt. Document to be Result Reasoning
1
No. Sealed
2 831-4 Proposed GRANTED. Sonos seeks to seal the proposed term
Term Sheet sheet containing the details of a licensing
3 agreement that the parties explored but
did not execute prior to this litigation.
4 Google seeks to seal this document as
well (see, e.g., Dkt. No. 854-3).
5
6 As Sonos observes, solely the existence
of this proposed term sheet was
7 discussed in open court at trial, not its
details (see Tr. 1038:6–1039:5).
8 According to Sonos, “the parties were
only able to consider a pre-litigation
9
license agreement because of the
10 understanding that those negotiations
would be confidential, subject to an
11 NDA, and subject to the restrictions on
use imposed by Federal Rule of Evidence
12 408” (Dkt. No. 831 at 4).
13
Critically, the proposed term sheet was,
14 at most, only tangentially related to the
merits of this action. What’s more, its
15 disclosure could foreseeably cause the
parties competitive harm and chill others
16
from engaging in negotiations that could
17 avoid such costly and prolonged
litigation in other circumstances.
18
831-5 Proposed GRANTED. See entry for Dkt. No. 831-4.
19 Term Sheet
20
831-6 Excerpt of GRANTED. Both parties seek to seal material from
Bakewell Rebuttal this expert report excerpt. For rulings on
21 Expert Report the additional material that Google seeks
to seal, please refer to the entry for Dkt.
22 No. 854-5.
23 The material that Sonos seeks to seal, in
blue boxing, is narrowly tailored and
24
references confidential details of the
25 proposed term sheet, which can be sealed
for the reasons stated in the entry on the
26 proposed term sheet above. See entry for
Dkt. No. 831-4.
27
831-7 Google’s Response GRANTED. The material that Sonos seeks to seal is
1
to Sonos’s First narrowly tailored and references
2 Motion in Limine confidential details of the proposed term
sheet, which can be sealed for the
3 reasons stated in the entry on the
proposed term sheet above. See entry for
4 Dkt. No. 831-4.
5
831-8 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
6 Malackowski
Supplemental
7 Expert Report
831-9 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
8 Bakewell Rebuttal
Expert Report
9
831-10 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
10 Bakewell Rebuttal
Expert Report
11 831-11 Google’s Response GRANTED. See entry for Dkt. No. 831-7.
to Sonos’s First
12
Motion in Limine
13 831-12 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
Malackowski
14 Supplemental
Expert Report
15 831-13 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
Bakewell Rebuttal
16
Expert Report
17 831-14 Proposed GRANTED. See entry for Dkt. No. 831-4.
Term Sheet
18 831-15 Proposed GRANTED. See entry for Dkt. No. 831-4.
Term Sheet
19
831-16 Proposed GRANTED. See entry for Dkt. No. 831-4.
20 Term Sheet
831-17 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
21 Malackowski
Supplemental
22 Expert Report
23
831-18 Excerpt of GRANTED. See entry for Dkt. No. 831-7.
Bakewell Rebuttal
24 Expert Report
831-19 Proposed GRANTED. See entry for Dkt. No. 831-4.
25 Term Sheet
831-20 Proposed GRANTED. See entry for Dkt. No. 831-4.
26
Term Sheet
27
2. GOOGLE’S OMNIBUS MOTION TO SEAL (DKT. NO. 851).
Dkt. Document to be Result Reasoning
1
No. Sealed
2 852-1 Google’s GRANTED. This request is now narrowly tailored to a
Opposition to single source code flow for adding a
3 Sonos’s First device to a multizone group on page 10.
Motion for
4 Summary As Google observes, “[a]lthough the
Judgment general types of information that were
5
included in a join_group command were
6 discussed at trial, the source code
implementation of the same was not
7 disclosed” (Dkt. No. 852 at 5). Although
the Court doubts that competitive harm
8 would in fact befall Google if this
straightforward implementation were
9
disclosed, here, the public interest in this
10 material is satisfied by the detailed
discussion of join_group elsewhere.
11
852-2 Excerpt of ’966 GRANTED. This request is now narrowly tailored to
12
Patent the source code flow above, as well as
Infringement source code function calls and hierarchy
13
Contention Chart information that is considerably more
14 detailed. Again, the public interest in
this material is satisfied by discussion of
15 the relevant functions elsewhere. What’s
more, the potential for competitive harm
16
is higher here, as disclosure could enable
17 others to replicate how Google’s code is
structured or introduce security risks.
18
852-3 Excerpt of GRANTED IN The request to seal the function name at
19 Almeroth PART, line 10 of page 33 is denied. Google has
20
Supplemental DENIED IN failed to demonstrate why that name is
Reply Expert PART. more sensitive than those of other
21 Report functions disclosed in surrounding lines.
The remainder of the request, with
22 respect to the source code trace, is
granted, seeing that it is narrowly
23 tailored, disclosure could cause Google
competitive harm, and the public interest
24
is satisfied by discussion of the
25 join_group functionality elsewhere.
26 852-4 Excerpt of GRANTED. This request is now narrowly tailored to
Almeroth Opening technical details regarding source code
27 Expert Report functionality and flow, disclosure of
harm. Again, the public interest in this
1
material is satisfied by discussion of
2 associated functionality elsewhere.
3 853-1 Excerpt of ’033 GRANTED IN Seeing that Google has provided no
Patent PART, explanation as to why disclosure of the
4 Infringement DENIED IN name of the data object on page 11
5
Contention Chart PART. should be sealed, and Google omitted
this material from the sealing chart (see
6 Dkt. No. 853 at 1), this order declines to
seal it. The remainder of Google’s
7 request is granted. See entry for Dkt.
No. 852-4.
8
9 853-2 Excerpt of ’033 GRANTED. See entry for Dkt. No. 852-4.
Patent
10 Infringement
Contention Chart
11 853-3 Excerpt of GRANTED IN As Google observes, it has removed
Google’s Third PART, requests to seal source code file names
12
Supplemental DENIED IN and descriptions of certain parameters
13 Objections and PART. (Dkt. No. 853 at 4). The bulk of the
Responses to remaining names and parameters that it
14 Sonos’s First Set of requests to seal were not at issue in this
Interrogatories litigation and, as such, the public interest
15 in their disclosure is de minimis.
16
That said, “watchNextToken” was
17 already disclosed (e.g., in the
infringement contentions chart for the
18 ’033 patent), so there is no justification
for sealing that parameter and associated
19 description. Meanwhile, the
“MdxRemoteQueueEvent” object was
20
directly relevant to the discussion of
21 remote queues and the MDx server in
this litigation, and Google has failed to
22 sufficiently explain why disclosure of
this object and associated description
23 would cause it harm. As such, Google’s
request is denied with respect to this
24
material.
25
853-4 Excerpt of GRANTED IN See entry for Dkt. No. 853-3.
26 Google’s Third PART,
Supplemental DENIED IN
27
Objections and PART.
Sonos’s First Set of
1
Interrogatories
2 853-5 Excerpt of GRANTED IN Google significantly reduced its request
MacLellan PART, to seal so as to “[c]ontain[] testimony
3 Deposition DENIED IN from a Google witness explaining the
Transcript PART. operation of specific source code lines
4 for casting and stream transfer
functionalities” (Dkt. No. 853 at 5). The
5
explanation of those specific source code
6 lines did not come up at trial, and there is
little public interest in their disclosure, so
7 the bulk of Google’s request is granted.
8 The highlighted text on pages 114, 165,
173 (only lines 17–25), 174, 183 (only
9
lines 18–25), and 195–96, however, is
10 not tailored to specific source code lines
but rather contains generalized
11 explanation of casting and stream
transfer functionalities, which were
12 discussed in support of Google’s
defenses in dispositive motion practice
13
and at trial. As such, there is substantial
14 public interest, and little potential for
harm, flowing from disclosure of such
15 material. Google’s request as to these
passages is denied.
16
17 853-6 Excerpt of ’033 GRANTED. See entry for Dkt. No. 852-4.
Patent
18 Infringement
Contention Chart
19 853-7 Excerpt of Schmidt GRANTED. See entry for Dkt. No. 852-4.
Opening Expert
20
Report
21 853-8 Excerpt of GRANTED IN Google is correct that the image on page
Bhattacharjee PART, 38 contains information from an internal
22 Rebuttal Expert DENIED IN document involving the transmission,
Report PART. storage, and processing of security
23 tokens and credentials not at issue in this
litigation. But Bhattacharjee’s boxed
24
items within this image were at issue in
25 this litigation. The image should be
redacted in a way that omits what was
26 not at issue and keeps what was at issue.
In other words, Bhattacharjee’s boxed
27 items, as well as “Watch Next Service”
and “Player Service,” should not be
1
redacted.
2
The remainder of Google’s request to
3 seal is granted. The pertinent material
was either not at issue in this litigation or
4 was sufficiently technically detailed that
it could cause competitive harm to
5
Google, with the public interest served
6 by surrounding description that Google
does not seek to seal.
7
853-9 YouTube Music GRANTED. Google seeks to seal an internal working
8 Internal Document document in which employees discussed
casting with YouTube Music, public
9
disclosure of which could cause Google
10 competitive harm.
11 853-10 Excerpt of ’033 GRANTED. See entry for Dkt. No. 852-4.
Patent
12
Infringement
Contention Chart
13
853-11 YouTube Music GRANTED. Google seeks to seal an internal Wiki
14 Internal Wiki entry discussing YouTube Music
playback, public disclosure of which
15 could cause Google competitive harm.
16
853-12 Excerpt of GRANTED. Google seeks to seal the personal home
17 Nicholson address of a Google employee, public
Deposition disclosure of which could cause privacy
18 Transcript and security issues for that employee and
his family.
19
20
853-13 YouTube Music GRANTED. See entry for Dkt. No. 853-11.
Internal Wiki
21 853-14 Excerpt of GRANTED. See entry for Dkt. No. 852-4.
Bhattacharjee
22 Rebuttal Expert
Report
23
853-15 Excerpt of GRANTED. See entry for Dkt. No. 853-8. Note that
24 Bhattacharjee the image that this order previously
Rebuttal Expert declined to redact in full is not included
25 Report in this particular excerpt, so Google’s
request as to this particular excerpt is
26 granted in its entirety for the reasons
stated previously.
27
853-16 Internal YouTube GRANTED. Google seeks to seal an internal slide
1
Slide Deck deck discussing the operation, design,
2 and architecture of the Streaming Watch
functionality with employee
3 commentary, public disclosure of which
could cause Google competitive harm.
4
5
853-17 Excerpt of Schmidt GRANTED. See entry for Dkt. No. 852-4.
Opening Expert
6 Report
853-18 Excerpt of Schmidt GRANTED. See entry for Dkt. No. 852-4.
7 Opening Expert
Report
8
853-19 Excerpt of ’033 GRANTED. See entry for Dkt. No. 852-4.
Patent
9
Infringement
10 Contention Chart
853-20 Excerpt of GRANTED IN Here, Google requests to seal more
11 Google’s Third PART, material than it did in a prior request
Supplemental DENIED IN involving the same excerpt. This
12
Objections and PART. document should be redacted as set out
13 Responses to previously for the reasons discussed
Sonos’s First Set of previously. See entry for Dkt. No. 853-3.
14 Interrogatories
853-21 Bhattacharjee GRANTED IN The images on pages 15 and 18 should
15 Declaration PART, be redacted as set out previously for the
16
DENIED IN reasons discussed previously. See entry
PART. for Dkt. No. 853-8.
17
With respect to the image on page 18, the
18 portion to the left of “MDx session
server” and the descriptive bubbles
19 should also be disclosed because they
were directly at issue in this case and
20
these steps were discussed in open court
21 and in prior orders.
22 This order otherwise grants the request to
seal technical details regarding source
23 code functionality and flow where the
public interest in this material is satisfied
24
by discussion of associated functionality
25 elsewhere.
26 853-22 Google’s Motion GRANTED. See entry for Dkt. No. 852-4.
to Strike Slide
27
Deck
1
854-1 Excerpt of GRANTED IN Google requests to seal “references to the
Bhattacharjee PART, existence and terms of patent licensing
2 Rebuttal Expert DENIED IN and purchase agreements that were not at
Report PART. issue at trial and thus not discussed in
3 open court” (Dkt. No. 854 at 2). At the
outset, only one agreement on one page
4 is at issue here, and no terms are
referenced. To eliminate the risk of
5
competitive harm to Google that
6 disclosure of the existence of this
agreement could cause, all that is
7 necessary is redaction of the name of the
other party to the agreement. The mere
8 fact that Google licensed patents related
to the routing of data between devices —
9
and that the agreement was finalized in
10 January 2023 — does not subject Google
to a risk of competitive harm. It is well-
11 established that Google licenses such
patents.
12
13 854-2 Google’s GRANTED IN Google seeks to seal a portion of a
Opposition to PART, sentence related to the proposed term
14 Sonos’s Motion to DENIED IN sheet discussed above. To mitigate the
Realign the Parties PART. risk of competitive harm, however, all
15 that is necessary is a narrower redaction,
excluding the text after “sheet” in line 8.
16
17 854-3 Proposed GRANTED. See entry for Dkt. No. 831-4.
Term Sheet
18 854-4 Sonos’s First GRANTED IN Google seeks to seal “references to the
Motion in Limine PART, existence and terms of patent licensing
19 DENIED IN and purchase agreements that were not at
20
PART. issue at trial and thus not discussed in
open court” (Dkt. No. 854 at 2). No
21 terms are referenced here, however.
22 To mitigate the risk of competitive harm
that disclosure of the existence of these
23 agreements could cause, all that is
necessary is redaction of the names of the
24
other parties to the agreements that are
25 not public. It is well-established that
Google licenses such patents, and the
26 dates of these agreements could not give
rise to competitive harm.
27
Note that many of the names of the other
1
parties to the agreements have become
2 public, as Google observes in its chart
(see, e.g., Dkt. No. 854 at 3 (“IIF”), 28
3 (“Garnet”)). These names should be
unredacted.
4
5
854-5 Excerpt of GRANTED IN Google seeks to seal more from this
Bakewell Rebuttal PART, excerpt than Sonos. See entry for Dkt.
6 Expert Report DENIED IN No. 831-6.
PART.
7 Specifically, the request to seal
compensation information is granted
8 seeing that Google’s compensation rates
for engineers are not generally known,
9
and their disclosure could cause
10 competitive harm.
11 Meanwhile, the request to seal
information about the proposed term
12 sheet negotiated between Sonos and
Google prior to this litigation is granted
13
in part and denied in part. The second
14 sentence in paragraph 501 should be
unredacted as follows to reflect what has
15 been made public: “Sonos produced
several negotiation documents with
16
Google, including a . . . ‘non-binding’
17 Confidential Patent License and Business
Engagement Agreement (‘the . . . Sonos
18 – Google Term Sheet’). The . . . Sonos –
Google Term Sheet was a proposal; it
19 was neither finalized nor executed.”
(Here, the date may be redacted seeing
20
that it has not been made known publicly
21 and could cause competitive harm.)
And, “term sheet” should be unredacted
22 in line 2 of paragraph 502.
23 Finally, the request to seal information
related to the existence and terms of
24
other patent licensing agreements that
25 were not discussed in open court is
granted in part and denied in part. These
26 redactions should be narrowed consistent
with the instruction above. See entry for
27 Dkt. No. 854-4. In addition, the fact
should be unredacted because this was
1
disclosed at trial.
2
The parties shall meet and confer on the
3 refiling of this excerpt in compliance
with this order.
4
5
854-6 Google’s Response GRANTED IN Here too, Google must revisit how
to Sonos’s First PART, references to other patent licensing
6 Motion in Limine DENIED IN agreements are redacted, further
PART. narrowing them as set out above. See
7 entry for Dkt. No. 854-4. The remaining
requests to seal related to references to
8 the proposed term sheet are granted for
the reasons already stated. See entry for
9
Dkt. Nos. 831-7.
10
854-7 Google’s Response GRANTED. See entry for Dkt. No. 831-7.
11 to Sonos’s Fourth
Motion in Limine
12
854-8 Excerpt of GRANTED IN Google seeks to seal numbers of Google
13 Malackowski PART, Home App installs broken down by
Supplemental DENIED IN quarter between November 5, 2019, and
14 Expert Report PART. November 15, 2022, for the ’966 patent.
As Google acknowledges, the total
15 number of installs between November
2020 and Q4 2022 was discussed during
16
trial (Dkt. No. 854 at 6). Google
17 suggests that disclosing this data at a
more granular level on a quarterly basis
18 would cause it competitive harm, but
Google has not sufficiently explained
19 how. Accordingly, Google may only
redact to omit the downloads that took
20
place outside of the time period
21 discussed during trial.
22 854-9 Proposed GRANTED. See entry for Dkt. No. 831-4.
Term Sheet
23 854-10 Excerpt of GRANTED IN Google’s request to seal information
24
Malackowski PART, regarding “loss leading” is granted in
Supplemental DENIED IN part and denied in part. Expressly
25 Expert Report PART. without going into numbers,
Malackowski testified at trial about
26 Google products being loss leaders (see
Tr. 1120:7–15). As such, his broad
27
opinions to that effect should not be
Google has generally not garnered gross
1
profits on the sales of the physical
2 hardware devices which enable Google’s
infringement.”). The figures and studies
3 he cites, however, which were never
made part of the public record, may be
4 redacted as confidential business
information.
5
6 Meanwhile, Google’s proposed
redactions involving the terms of other
7 licenses should be further tailored as set
out above. See entry for Dkt. No. 854-4.
8
9
854-11 Excerpt of GRANTED IN See entry for Dkt. No. 854-10. In this
Malackowski PART, longer excerpt, the figures that
10 Supplemental DENIED IN Malackowski used in calculating the
Expert Report PART. reasonable royalty damages for the zone
11 scene patents should be disclosed on
page 10. As discussed, with respect to
12 the ’966 patent, the total number of
installs of the Google Home app is
13
already in the public record, and breaking
14 it down by quarter should not cause
Google competitive harm. See entry for
15 Dkt. No. 854-8. Likewise, with respect
to the ’885 patent, the total number of
16
infringing units is already in the public
17 record, and breaking them down by
quarter should not cause Google
18 competitive harm.
19 Meanwhile, the redactions with respect
to the direct control (’033 patent)
20
damages calculations on page 9 are
21 acceptable because this information
never became a part of the public record
22 and involves Google’s otherwise
confidential business information.
23
24
854-12 Excerpt of GRANTED. As noted previously, Google’s
Malackowski compensation rates for engineers are not
25 Supplemental generally known, and their disclosure
Expert Report could cause Google competitive harm.
26 See entry for Dkt. No. 854-5.
27
854-13 Sonos’s Opposition GRANTED. Google seeks to seal language regarding
1
to Google’s Fourth its net revenues and profits, as well as a
2 Motion in Limine reference to the details of the proposed
term sheet. Neither are generally known,
3 and their disclosure could cause Google
competitive harm.
4
5
854-14 Excerpt of GRANTED. Google seeks to seal subscription and
Malackowski advertising revenue data and usage
6 Supplemental metrics related to the Pixel and the ’033
Expert Report patent. Such information is not generally
7 known and was never made public over
the course of this litigation, and
8 disclosure of such information could
cause Google competitive harm.
9
10 854-15 Excerpt of GRANTED. Google seeks to seal references to
Bakewell Rebuttal lifetime value analyses for unaccused
11 Expert Report Google products that were never made
public over the course of this litigation,
12
disclosure of which could cause Google
competitive harm.
13
14 854-16 Excerpt of Chan GRANTED. Google seeks to seal references to the bill
Deposition of materials for the Nest Mini and the
15 Transcript Nest Audio. Such information is not
generally known and was never made
16
public over the course of this litigation,
17 and disclosure of such information could
cause Google competitive harm.
18
854-17 Excerpt of GRANTED. See entry for Dkt. No. 854-10. Note that
19 Malackowski here Google did not even request to seal
Supplemental the broad “loss leader” language that it
20
Expert Report requested to seal with submission of the
21 overlapping excerpt above.
22 854-18 Excerpt of GRANTED IN Google seeks to redact information
Bakewell Rebuttal PART, regarding patent licenses it negotiated
23 Expert Report DENIED IN with non-parties from a table of contents.
24
PART. As set out above, these redactions should
be streamlined to account for the limited
25 potential for harm and what is already
public knowledge. See entry for Dkt.
26 No. 854-4.
27
854-19 Excerpt of GRANTED IN See entry for Dkt. No. 854-5.
1
Bakewell Rebuttal PART,
2 Expert Report DENIED IN
PART.
3 854-20 Excerpt of GRANTED IN See entries for Dkt. Nos. 854-8, 854-10,
Malackowski PART, 854-12.
4 Supplemental DENIED IN
5
Expert Report PART.
854-21 Excerpt of GRANTED IN See entry for Dkt. No. 854-5.
6 Bakewell Rebuttal PART,
Expert Report DENIED IN
7 PART.
854-22 Exhibit 1 of DENIED. Google seeks to seal adjusted damages
8
Bakewell Rebuttal figures and has not sufficiently stated the
Expert Report harm that would result from their
9
disclosure. Such figures are derived by
10 experts; they are not proprietary. What’s
more, the updated damages figures for
11 the ’966 and ’885 patents that Google
seeks to seal were already made part of
12
the public record.
13
854-23 Exhibit 4 of GRANTED. Google seeks to seal its internal
14 Bakewell Rebuttal information regarding the average daily
Expert Report number of its speakers executing certain
15 commands related to grouping and the
average daily number of connected
16
devices. As Google recognizes, although
17 the total weighted percentages of devices
in groups were discussed during trial, the
18 data at issue here was not discussed at a
granular level.
19
20
854-24 Google’s Response GRANTED. Google seeks to seal information
to Request for regarding the amount of revenue IFTTT
21 Information received a result of sales on the Google
Play store, the number of IFTTT
22 downloads, and the number of worldwide
financial transactions associated with the
23 IFTTT app. Although the boilerplate line
about providing competitors with
24
information that Google does not have
25 access to from competing platforms rings
hollow here, this order agrees that
26 Google has an interest in protecting
confidential financial and metrics data of
27
apps written by third parties and
public disclosure of which could cause
1
Google (and IFTTT) harm.
2
854-25 Google’s Response GRANTED. See entry for Dkt. No. 831-7.
3 to Sonos’s Request
for Clarification
4 854-26 Sonos-Google GRANTED. Google seeks to seal a letter sent between
Pre-Litigation the parties in pre-litigation licensing
5
Licensing negotiations, disclosure of which could
6 Negotiation cause the parties competitive harm, for
Correspondence reasons already stated, in light of the
7 detailed discussion of proposed terms.
See entry for Dkt. Nos. 831-7.
8
9
854-27 Proposed GRANTED. See entry for Dkt. No. 831-4.
Term Sheet
10 854-28 Sonos-Google GRANTED. See entry for. Dkt. No. 854-26.
Pre-Litigation
11 Licensing
Negotiation
12
Correspondence
13 854-29 Sonos-Google IP GRANTED Google seeks to seal language in a single
Licensing AS slide of a Sonos slide deck from their
14 Discussion Slide AMENDED. pre-litigation licensing discussions,
Deck (Sonos) which ostensibly “[c]ontains information
15 regarding Google’s patent licensing
strategies” (Dkt. No. 854 at 39). Despite
16
this being a Sonos slide deck, Google
17 had been the one to designate it as
confidential and originally sought to seal
18 it in its entirety (see Dkt. Nos. 704; 746).
That said, later in this litigation, (and
19 after the jury returned a verdict against
Google,) Google narrowed its sealing
20
request to redactions of this one slide
21 involving its own licensing strategies
(see Dkt. Nos. 833-49, 854 at 39–40).
22
The Court suspects some gamesmanship
23 is at play here. It would be unfair to
allow Google to seal its full pre-litigation
24
licensing discussion slide deck (see Dkt.
25 Nos. 854 at 40, 854-31) but to unseal
Sonos’s — and to slip this change in
26 among thousands of pages of filings for
renewed requests to seal that Google no
27
doubt expected Sonos would not review.
narrowing of requests to seal, this was
1
certainly not the sort of narrowing
2 envisioned.
3 In the spirit of fairness, and with an eye
to both parties’ concerns about
4 competitive harm flowing from
disclosure of their pre-litigation licensing
5
negotiations, this order seals the Sonos
6 slide deck in its entirety, as well as the
Google slide deck in its entirety (Dkt.
7 No. 854-31).
8 854-30 Google’s Response GRANTED. Google requests to seal statements
to Sonos’s Request regarding a Google pre-litigation
9
re. No Longer licensing discussion presentation and the
10 Asserted Patents proposed term sheet, disclosure of which
and Proffer of could cause competitive harm. See
11 Testimony entries for Dkt. Nos. 831-7, 854-29.
12
854-31 Sonos-Google IP GRANTED. See entry for Dkt. No. 854-29.
License Discussion
13
Slide Deck
14 (Google)
854-32 Excerpt of GRANTED. See entry for Dkt. No. 854-14. Note this
15 Malackowski Slide chart involving Pixel revenue data
Deck appears on page 105 of Dkt. No. 854-14.
16
17 854-33 Excerpt of Pixel GRANTED. See entry for Dkt. No. 854-32.
Slide Deck
18 854-34 Ma Declaration in DENIED. Google seeks to seal a breakdown of the
Support of number of accused instrumentalities for
19 Google’s the ’885 patent, which the jury found
Opposition to infringed. Google suggests that this data
20
Sonos’s Motion for should be sealed because, although the
21 Injunctive Relief total number of accused instrumentalities
was discussed at trial, the data was not
22 discussed at a granular level and broken
down into different product categories in
23 this manner. But it should have been.
The jury even requested a breakdown
24
beyond the total number of products
25 during deliberations (see Dkt. No. 773
at 3–4). Given that this information goes
26 to the heart of the matter litigated, the
public has considerable interest in this
27
material that the broadly stated risk of
I 854-35 | Excerpt from GRANTED IN_ | Google seeks to seal results of surveys
Bakewell Rebuttal PART, that it administered related to its speaker
2 Expert Report DENIED IN products. Such results are internal, and
PART. their disclosure could cause Google
3 competitive harm. The first sentence
Google seeks to seal, however, is a
4 general statement that a Google witness
5 also made in his trial testimony (see
Tr. 1516:10-15). As such, Google
6 should unseal this sentence in its entirety
or redact just the words between “For
7 Google,” and “the focus was.”
8
9 The parties shall refile all documents in full compliance with this order no later than
10 May 3, 2024, at 12:00 P.M.
11 IT IS SO ORDERED.
12
13 Dated: February 9, 2024.
©
15 ~
LLIAM ALSUP
a 16 UNITED STATES DISTRICT JUDGE
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