1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 NORTHERN DISTRICT OF CALIFORNIA

10 11 DENTAL MONITORING SAS, 12 Plaintiff, No. C 22-07335 WHA 13 Vv. 14 || ALIGN TECHNOLOGY, INC.., ORDER RE MOTIONS TO SEAL 3 15 Defendant. a 16 2 17 This order addresses all remaining motions to seal and supporting declarations (Dkt. Z 18 Nos. 100, 102, 103, 107—10, 114, 119, 121, 123, 129, 135, 137-39, 142, 144, 146, 149). The 19 district court has jurisdiction to resolve them (see Dkt. No. 65 § 8). Brennan v. Opus Bank, 20 796 F.3d 1125, 1126, 1134 (9th Cir. 2015); cf Apple Inc. v. Samsung Elecs. Co., 727 F.3d 21 1214, 1220 (Fed. Cir. 2013). 22 1. THE LEGAL STANDARD. 23 There is a strong public policy in favor of openness in our court system and the public is 24 entitled to know to whom we are providing relief (or not). See Kamakana v. City & Cnty. of 25 Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). Consequently, access to motions and their 26 attachments that are “more than tangentially related to the merits of a case” may be sealed only 27 upon a showing of “compelling reasons.” Crr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 28 1092, 1101-02 (9th Cir.), cert. denied, 580 U.S. 815 (2016). Filings that are only tangentially

1 related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 1097. 2 Evidentiary motions, like motions in limine and Daubert motions, can correlate with the 3 merits. Id. at 1098–1100. Indeed, the “‘compelling reasons’ standard applies to most judicial 4 records.” Id. at 1098 (quoting Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 5 2010), cert. denied sub nom. Experian Info. Sols., Inc. v. Pintos, 562 U.S. 1134 (2011)). 6 Additionally, parties in this district must ensure their sealing motions meet basic 7 adequacy requirements. Above all, they must “narrowly tailor” requests “to seal only the 8 sealable material.” Civil L.R. 79-5(c). And they must list each document or passage to be 9 sealed together with its rationale for sealing. Ibid. For each listed, they must specifically state: 10 (1) the legitimate private or public interests that warrant sealing; (2) the injury that will result 11 should sealing be denied; and (3) why a less restrictive alternative to sealing is not sufficient. 12 Ibid. They must provide evidentiary support where necessary, such as by sworn declaration. 13 Ibid. And, for pleadings, parties must file both redacted and unredacted copies (or ensure 14 another party does) and include in the unredacted copies highlighting to show proposed 15 redactions. Id. at (d)–(e). Failure to follow the rules suggests a lack of cause or interest to 16 seal, and risks summary denial. See id. at (f)(6), (g)(2). 17 Redaction may be appropriate where publication “could result in infringement upon trade 18 secrets.” Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011), cert. denied, 566 19 U.S. 986 (2012). So too where “business information” might “harm a litigant’s competitive 20 standing,” particularly where the public has “minimal interest” in that information. See 21 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). And, in general, redaction will be 22 appropriate where publication would turn “court files [into] a vehicle for improper purposes,” 23 Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598), such as “to gratify private spite, 24 promote public scandal, [or] circulate libelous statements,” ibid. But “vague boilerplate 25 language or nebulous assertions of potential harm” will not suffice to support redaction. 26 Bronson v. Samsung Elecs. Am., Inc., 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) 27 (citing Civil L.R. 79-5). Nor will mere “[r]eference to a stipulation or protective order.” Civil 1 [ultimately] bears the burden of overcoming th[e] strong presumption” of public access. 2 Kamakana, 447 F.3d at 1178. The final determination is “left to the sound discretion of the 3 trial court.” Ctr. for Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 599). 4 In this case, parties were warned that over-redaction would be rejected in toto (Dkt. 5 No. 65 4 5). Dental Monitoring took the warning to heart. It did not request any redactions. 6 Align’s initial motions to seal were denied across the board (see Dkt. No. 116). To its credit, 7 Align now files a superseding sealing motion to amend its other sealing motions and request 8 fewer redactions (see Dkt. No. 138; cf Dkt. No. 141-1). This order decides whether those 9 narrowed requests — plus other requests Align makes freshly — are narrow enough. The 10 assessment proceeds in the order of the underlying substantive motions. 11 2. MOTIONS TO SEAL STEMMING FROM DENTAL MONITORING’S

MOTION FOR SUMMARY JUDGMENT.

13 A. DENTAL MonrToRING’s Motion.

14 In a patent showdown with Align, Dental Monitoring moved for partial summary 3 15 judgment (Dkt. No. 101). Dental also moved to consider whether Align’s material therein

A 16 should be sealed (Dkt. No. 100). Align timely submitted a declaration supporting narrowed

s 17 redactions (Dkt. No. 107). Now, Align withdraws prior requests and moves for a still-narrower

Z 18 set of redactions (Dkt. No. 138 at 2). As to those final requests, this order rules as follows: 19 Sealed Document Result Re Reasoning [Prior] 20 Public Dkt. No. | Opening Brief | Blue boxes 19:13-19:23; 23:26—-24:12 21 138-8 GRANTED- Proposed redactions target detailed descriptions [107-1] IN-PART, of what is generally described in adjacent text. 22 (101) DENIED-IN-_ | These protect sensitive information from 3 PART. disclosure while providing the public what it needs to understand the case. GRANTED. 24 Otherwise 25 The remainder, however, do not strike that balance. They include basic descriptions of the 26 company’s service model and value 27 proposition. They include steps patients themselves perform. They describe high-level 28 tasks Align’s code performs that are easil

inferred from the equally high-level 1 descriptions of training processes disclosed 2 nearby. These proposed redactions are not credibly Align’s “most sensitive information” 3 (Dkt. No. 138-1 ¶ 5). DENIED. Dkt. No. Exh. 7, Blue boxes, The document is an internal memorandum 4 138-10 Align Memo DENIED. from two technical experts. In this passage, [107-4] Excerpt, however, the experts provide only high-level 5 (101-8) Align-DM descriptions of how the machine learning 6 0000350 works, not the “technical details” Align seeks to avoid disclosing (see Dkt. No. 138-1 ¶ 6). 7 Dkt. No. Exh. 8, Blue boxes, This document describes and diagrams 138-11 Align Memo GRANTED. commercially sensitive technical details in far 8 [107-5] Excerpt, greater measure than needed for public (101-9) Align-DM understanding (cf. previous entry). 9 0000044 10 Dkt. No. Exh. 10, Entirety, This one-page technical document “read[s] like 138-12 Align GRANTED. [a] ‘how-to’ manual[]” for aspects of Align’s 11 [107-6] Technical software (Dkt. No. 138-1 ¶ 7). Redaction is (101-11) Document, warranted (see previous entry). 12 Align-DM 13 0014487 Dkt. No. Exh. 11, Entirety, (See ibid.) 14 138-13 Align GRANTED. [107-7] Technical 15 (101-12) Document, Align-DM 16 0014494 17 Dkt. No. Exh. 12, Blue boxes, ¶ 133, 156 138-14 Expert GRANTED- The proposed redactions include high-level 18 [107-8] Mongan Rpt. IN-PART, descriptions as well as excerpts from passages (101-13) Excerpts DENIED-IN- for which redactions were already rejected 19 PART. (supra entry re Dkt. No. 138-10). Were there nuggets here worthy of protection, Align failed 20 to remove them from the mine run. “[T]he 21 proponent of sealing bears the burden . . . .” Kamakana, 447 F.3d at 1182. DENIED. 22 Otherwise 23 Remaining proposed redactions cover similar ground as other, unredacted passages. But they 24 crowd onto that same ground countless, 25 commercially important technical details, including function calls and filenames. 26 Redaction is warranted. GRANTED. Dkt. No. Exh. 13, Blue boxes, 92:6–7, 94:6–7; 119; 122 27 Cramer Dep. GRANTED- These proposed redactions are of passages like 138-15 DENIED-IN- | Otherwise | [107-9] PART. The remainder cover more uniquely detailed 2 (101-14) descriptions of how Align’s software was developed. These commercially sensitive 3 details are unnecessary for the public to understand the case. GRANTED. 4 Dkt. No. | Exh. 15, Entirety, The document proposed to be sealed is the first 5 138-16 Project Plan: | DENIED. page of a twelve-page plan for developing [107-11] | Virtual Care Align software. On this page, the document 6 (101-16) | AI Aligner describes the basic service-delivery model and Fit, Align- value proposition that Align offers, and high- 7 DM_0001585 level milestones. This is not the ““how-to’ manual|[]” Align purports (Dkt. No. 138-1 § 7). 8 And it 1s stale: three years old. 9 Dkt. No. | Exh. 16, Entirety, The document contains commercially sensitive 138-17 Machine GRANTED. details, none important for understanding the 10 [107-12] | Learning case (see supra entry re Dkt. No. 138-12). (101-17) | Bullet Points, ll Align-

DM_0014498

E 138-18 Align GRANTED. [107-15] | Technical Y 14 101-20) | Document

15 B. _ ALIGN’s OPPOSITION. 5 16 Align opposed Dental Monitoring’s summary judgment motion (Dkt. No. 111). It = 3 17 contemporaneously moved to consider whether to seal its own material therein (Dkt. No. 109) = 18 as well as Dental Monitoring’s material (Dkt. No. 108). Dental Monitoring never filed a 19 declaration supporting the redactions pertaiming to its material; no redactions are granted. 20 Now, Align withdraws prior requests and moves for a still-narrower set of redactions (Dkt. No. 21 138 at 2). As to those final requests, this order rules as follows: Sealed Document Result Re Reasoning Ee _ 3 (Public) Dkt. No. | Exh. 14, Blue boxes, Text in 4 18, 24 24 138-21 Expert Acton | GRANTED- Proposed redactions are high-level verbal [109-4] Decl. IN-PART, descriptions of a more detailed diagram. The 25 (111-1) DENIED-IN-_ | diagram itself merits redaction (see Dkt. No. ParT. 116 at 1-2). But there is no reason to redact 26 the generic description of it here. DENIED. 27 . Text in 54, 64 8 These high-level descriptions approach

descriptions left unredacted elsewhere, | including in the same paragraphs. Align’s 2 declaration does not establish that statements of such generality merit protection. DENIED. 3 Otherwise 4 Proposed redactions are of filenames, function 5 variables, specific descriptions of how code works, and the like. This detail is 6 commercially sensitive (Dkt. No. 138-1 □ 9) and beyond what public understanding of the 7 case demands. GRANTED. Dkt. No. | Exh. 22, Blue boxes, Proposed redactions target software file and 8 138-23 Expert Acton | GRANTED. function names. Such detail would impose 9 [109-6] Dep. Tr. commercial costs if disclosed (Dkt. No. 138-1 (111-9) | Excerpts | 10) yet would not increase relevant public 10 understanding of the case. 1 C. DENTAL MONITORING’S REPLY. 12 Dental Monitoring replied (Dkt. No. 120) and moved to consider whether Align’s

13 material therein should be sealed (Dkt. No. 119). Align timely submitted a declaration 14 supporting narrowed redactions (Dkt. No. 121). Now, Align withdraws prior requests and 3 15 moves for a still-narrower set of redactions (Dkt. No. 138 at 2). As to those final requests, this

A 16 order rules as follows: 5 7 Sealed Document Result Re Reasoning = [Prior] 7 18 Public Dkt. No. | Reply Brief Blue boxes, 13:7-10 19 138-30 GRANTED- __| The proposed redaction obscures high-level [121-1] IN-PART, description of Align’s software. The rationale 20 (120) DENIED-IN-_| for redactions (Dkt. No. 138-1 § 12) fails to 21 PART. support how general description merits redaction. DENIED. 22 Otherwise 23 Other proposed redactions are of filenames and even excerpts of other exhibits for which redactions were granted (see supra entry re Dkt. 25 No. 138-12). For the same reasons, the redaction is also warranted here. GRANTED. 26 Dkt. No. | Exh. 23, Blue boxes, | (See supra entry re Dkt. No. 138-23.) 138-31 Expert Acton | GRANTED. 27 [121-2] | Dep. Tr. 28 120-2

1 Dkt. No. | Exh. 27, Entirety, This document attached to a dispositive motion 138-32 Align DENIED. contains one page of a forty-five-page 2 [121-5] Development document, and shares only high-level results. (120-6) Document The rationale for redaction (Dkt. No. 138-1 3 Excerpt, { 13) is not persuasive. Align- 4 DM_0000405 5 3. MOTIONS TO SEAL STEMMING FROM ALIGN’S MOTION FOR 6 SUMMARY JUDGMENT. 7 A, ALIGN’S MOTION. 8 Align fired off its own motion for partial summary judgment in the patent showdown 9 (Dkt. No. 104). And it moved to consider whether its own material (Dkt. No. 103) and 10 Dental’s material (Dkt. No. 102) should be sealed therein. Dental Monitoring never filed a 1 declaration supporting the redactions pertaiming to it; none will be granted. Now, Align 12 withdraws prior requests and moves for a still-narrower set of redactions (Dkt. No. 138 at 2).

13 As to those final requests, this order rules as follows: 5 14 Sealed Document Result Re Reasoning [Prior] 3 15 (Public) Dkt. No. | Exh. 3, Expert | Blue boxes, Redactions target file names with commercial 16 138-4 | ActonDecl. | Grantep. _| sensitivity (Dkt. No. 138-1 § 3) that go far 17 [103-4] beyond the detail required for public = 104-4 understanding of the case. 18 Dkt. No. | Exh. 7, Blue boxes, 92:6—7, 94:6—7; 119; 122 138-7 Cramer Dep. | GRANTED- Redactions are not warranted for reasons like 19 [103-7] | □□□ Excerpts | IN-PaRT, those for which they were rejected in the same 20 (104-8) DENIED-IN-_ | underlying excerpt before (see supra entry re ParT. Dkt. No. 138-15.) DENIED. 21 Otherwise 22 See ibid.) GRANTED. 23 B. DENTAL MONITORING’S OPPOSITION. 24 Dental Monitoring opposed (Dkt. No. 112) Align’s summary judgment motion. It 25 contemporaneously moved to consider whether to seal within its opposition Align’s material 26 (Dkt. No. 110). Align timely submitted a declaration supporting narrowed redactions (Dkt. 27 No. 114). Now, Align withdraws prior requests and moves for a still-narrower set of 28 redactions (Dkt. No. 138 at 2). As to those final requests, this order rules as follows:

Sealed Document Result Re Reasoning | [Prior] 2 Public Dkt. No. | Exh. 3, Expert | Blue boxes, This excerpt of the deposition overlaps with 3 138-27 Cramer Dep. | GRANTED- others previously discussed, and redactions are [114-3] Tr. Excerpt IN-PART, granted to the same extent here (see previous 4 (110-4) DENIED-IN- | entry). 5 PART. Dkt. No. | Exh. 8, Expert | Blue boxes, | Text in 24 6 138-28 Acton Reb. GRANTED- (See supra entry re Dkt. No. 138-21). DENIED. [114-5] Rpt. IN-PART, 7 (110-6) DENIED-IN-_ | Otherwise ParRT. See ibid.) GRANTED. 8 Dkt. No. | Exh. 12, Blue 72:2-73 9 138-29 Expert Acton | highlights, Proposed redactions include general terms [114-6] Dep. Tr. GRANTED- appearing elsewhere unredacted (cf. supra 10 (110-7) | Excerpt IN-PART, entry re Dkt. No. 138-23). DENIED.

DENIED-IN-

11 Part. Otherwise See ibid.) GRANTED.

E 4. MOTIONS TO SEAL STEMMING FROM DENTAL MONITORING’S

13 SLIDES FROM THE PATENT SHOWDOWN HEARING. 14 The patent showdown was held (Dkt. No. 130). Dental Monitoring used slides (Dkt. 3 15 No. 136) and moved to consider whether Align’s material therein should sealed (Dkt. No. 135).

a 16 Align timely submitted a declaration supporting narrowed redactions (Dkt. No. 142). This s 17 order rules as follows:

Pub. 19 Dkt. No. | Dental Blue/green These three slides excerpt other documents for 135-2 Monitoring’s | boxes in which redactions were granted (see supra entry 20 (136-1) | Hearing slides 35, 36, | re Dkt. Nos. 138-12, 138-13). They likewise Slides 46, merit redaction (see also Dkt. No. 142 6). 71 GRANTED. 22 Blue/green Slide 48 boxes in, 48, | Similarly, slide 48 excerpts other documents 23 51, 55, for which redactions were granted (see supra GRANTED- entry re Dkt. No. 138-11). GRANTED. 24 IN-PART, 5 DENIED-IN-_ | Slides 51,55 ParT. These slides excerpt another document for 6 which redactions were denied (see supra entry Dkt. No. 138-10). There is no new reason to 27 redact it here. DENIED. 28

5. MOTIONS TO SEAL STEMMING FROM ALIGN’S MOTION TO 1 STRIKE. 2 In a discovery letter brief, Align moved to strike doctrine-of-equivalents contentions 3 (Dkt. No. 125). Dental Monitoring opposed (Dkt. No. 128). And it moved to consider whether 4 Align’s material within its opposition should be sealed (Dkt. No. 129). Align timely submitted 5 a declaration supporting narrowed redactions (Dkt. No. 137). This order rules as follows: Pub. 7 Dkt. No. | Exh. 2, Expert | Blue boxes, Proposed redactions obscure file names. Their 137-2 Acton Resp. GRANTED. disclosure would create commercial risks 8 128-3 Rpt. Excerpts without increasing understanding of the case. 9 6. MOTIONS TO SEAL STEMMING FROM DENTAL’ MONITORING’S 10 CLAIM CONSTRUCTION BRIEF. 11 A, DENTAL MONITORING’S BRIEF. 3 12 Dental Monitoring filed a claim construction brief (Dkt. No. 140), and moved to consider

& 13 whether Align’s material therein should be sealed (Dkt. No. 139). Align submitted timely a S 14 declaration supporting narrowed redactions (Dkt. No. 144). Sealed Document Result Re Reasoning 15 Pub 16 Dkt.No. | Exh. 3, Expert | Blue boxes, | 9133 144-2 Mongan Rpt. | GRANTED- (See supra entry re Dkt. No. 138-14.) DENIED. 17 Excerpts IN-PART, DENIED-IN-__ | Otherwise 2 18 Part. See ibid.) GRANTED. 19 B. DentAL Montrorine’s REPLY. 20 Dental Monitoring later replied (Dkt. No. 147), and moved to consider whether Align’s 21 material therein should be sealed (Dkt. No. 146). Align timely submitted a declaration 22 mooting the motion to seal by releasing an unredacted copy of the material (Dkt. No. 149). 23 24 CONCLUSION 25 The motions to seal were GRANTED-IN-PART AND DENIED-IN-PART. For avoidance of 26 doubt, redactions that were proposed, withdrawn, and not otherwise expressly treated by this 27 order (e.g., redactions re Dkt. Nos. 103-3, 103-5, 103-6, 107-3, 107-16, 109-3, 109-5, 109-7, 28

1 114-1, 114-2, 121-6, 146) are DENIED AS Moot. Parties shall refile all documents in 2 accordance with this order BY NOON ON SEPTEMBER 6, 2024. 3 IT IS SO ORDERED. 4 5 Dated: August 29, 2024. 6 7 { 7 =_

LLIAM ALSUP

8 UNITED STATES DISTRICT JUDGE 9 10 11 12

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