1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 PRECISELY SOFTWARE Case No. 22-cv-00552-BLF

INCORPORATED,

8 Plaintiff, ORDER GRANTING IN PART, 9 DENYING IN PART PLAINTIFF v. PRECISELY SOFTWARE 10 INCORPORATED’S

LOQATE INC., ADMINISTRATIVE MOTION TO

11 CONSIDER WHETHER ANOTHER Defendant. PARTY’S MATERIAL SHOULD BE 12 SEALED 13 [Re: ECF Nos. 30, 39]

14 15 On May 5, 2022, Plaintiff Precisely Software Incorporated (“Precisely”) filed an 16 Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed under Civil 17 Local Rule 79-5(f). See ECF No. 30. Precisely sought to file an agreement between Precisely and 18 Defendant Loqate Inc. (“Loqate”) and an addendum to that agreement (collectively, the 19 “Agreement”) as exhibits to Precisely’s First Amended Complaint. See id. Since the Agreement 20 is subject to a confidentiality provision that Loqate declined to waive, Precisely conditionally sealed 21 the Agreement and filed its Administrative Motion. On May 23, 2022, Loqate filed a statement with 22 a declaration from Loqate representative Lara Clark in support of Precisely’s sealing motion, 23 asserting that certain sections of the Agreement contain Loqate’s confidential and proprietary 24 business information including software licensing terms, pricing models, warranty terms, and 25 support and verification practices. See Clark Decl., ECF No. 35-1 ¶¶ 3–4; Statement in Support of 26 Administrative Motion, ECF No. 35. Ms. Clark indicated that public disclosure of such information 27 would harm Loqate’s competitive standing. See id. ¶ 5. Loqate requested that the entire Agreement 1 The Court denied Precisely’s Administrative Motion without prejudice to Loqate filing a 2 supplemental statement in support of sealing narrowly tailored portions of the Agreement. See 3 Order, ECF No. 38. While the Court agreed that “some of the information Loqate seeks to have 4 filed under seal is sealable,” the Court found that Loqate’s request to seal the entirety of the 5 Agreement was overbroad. See id. at 3–4. 6 On June 10, 2022, Loqate filed a supplemental statement along with an additional 7 declaration from Ms. Clark. See Suppl. Statement, ECF No. 39; Clark Decl., ECF No. 39-1. Loqate 8 continues to argue that the entire Agreement should be sealed, asserting that there is “no public 9 interest” in the Agreement and that disclosure of any of the Agreement’s terms would cause 10 competitive harm to Loqate. See Suppl. Statement, ECF No. 39. In the alternative, Loqate provides 11 a redacted version of the Agreement, in which Loqate has redacted information from 26 pages of 12 the 33-page Agreement. See id. at 2. Loqate argues that the redacted information “in particular” 13 presents a substantial risk of harm to Loqate if disclosed. See id. Ms. Clark’s supplemental 14 declaration indicates that the redacted information includes “commercially sensitive software 15 licensing and sublicensing terms, marketing requirements, terms of payment, pricing models, 16 warranty terms, support and verification practices, and information disclosing Loqate’s 17 geographical business territory.” See Clark Decl., ECF No. 39-1 ¶ 4. Ms. Clark’s declaration further 18 indicates that public disclosure of the agreement as a whole—and the redacted information in 19 particular—would harm Loqate’s competitive standing. See id. ¶ 5. Precisely does not oppose 20 Loqate’s supplemental statement in support of sealing the Agreement. 21 Based on the below reasoning, the Court again DENIES Precisely’s administrative as to 22 filing the entirety of the Agreement under seal. The Court GRANTS Precisely’s administrative 23 motion as to the redacted information in the version of the Agreement Loqate provides with its 24 supplemental statement at ECF No. 39-2. Precisely SHALL publicly file the redacted version of 25 the Agreement at ECF No. 39-2 within 7 days of this Order. 26 I. LEGAL STANDARD 27 “Historically, courts have recognized a ‘general right to inspect and copy public records and 1 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 2 597 & n.7 (1978)). Consequently, access to motions and their attachments that are “more than 3 tangentially related to the merits of a case” may be sealed only upon a showing of “compelling 4 reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101–102 (9th Cir. 5 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing 6 of “good cause.” Id. at 1097. 7 In addition, in this district, all parties requesting sealing must comply with Civil Local 8 Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a 9 document under seal, including an explanation of: (i) the legitimate private or public interests that 10 warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive 11 alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1)(i). Further, Civil Local Rule 79-5 12 requires the moving party to provide “evidentiary support from declarations where necessary.” 13 Civ. L.R. 79-5(c)(1)(ii). 14 Furthermore, when a party (the “Moving Party”) seeks to seal a document that has been 15 designated as confidential by another party or non-party (the “Designating Party”), the Moving Party 16 must file a Motion to Consider Whether Another Party’s Material Should Be Sealed under Local 17 Rule 79-5(f). The Moving Party must file a motion “identify[ing] each document or portions thereof 18 for which sealing is sought.” Civ. L.R. 79-5(f)(1). “Within 7 days of the motion’s filing, the 19 Designating Party must file a statement and/or declaration as described in [Civil Local 20 Rule 79-5(c)(1)].” Civ. L.R. 79-5(f)(3). “If any party wishes to file a response, it must do so no 21 later than 4 days after the Designating Party files its statement and/or declaration.” 22 Civ. L.R. 79-5(f)(4). 23 II. DISCUSSION 24 Precisely’s sealing motion pertains to the Agreement, which Precisely filed as exhibits to its 25 First Amended Complaint. See First Amended Complaint, ECF No. 31, Exs. A–B. The Agreement 26 serves as the basis for Precisely’s breach of contract claim. See FAC, ECF No. 31 ¶¶ 27–31. 27 Accordingly, the Court finds that the documents at issue in Precisely’s sealing motion are “more 1 showing of “compelling reasons” for sealing. See Ctr. for Auto Safety, 809 F.3d at 1101–102. 2 As to Loqate’s request to grant leave to seal the entirety of the Agreement, the Court has 3 already ordered that the agreement is not sealable in its entirety. See Order, ECF No. 38. Loqate 4 provides no arguments or evidence indicating why the Court should reconsider its prior decision. 5 For example, Loqate still fails to provide anything but conclusory support for the confidentiality of 6 many provisions of the Agreement, even though the Court noted in its prior order that “Ms. Clark’s 7 declaration only supports the confidentiality of a select few sections of the Agreement.” See id. at 4. 8 As to Loqate’s request to grant leave to seal redacted portions of the Agreement, Loqate has 9 adequately demonstrated compelling reasons to seal the redacted material. While Loqate seeks to 10 redact information from 26 pages of the 33-page Agreement, including entire pages of the 11 Agreement, Loqate’s more narrowly tailored request addresses the Court’s concern that Loqate is 12 seeking to request boilerplate terms and other clearly non-confidential material. See id. at 3–4 13 (citing Cypress Semiconductor Corp. v. Fujitsu Semiconductor Ltd., No. 20 CV–00193–LHK, 14 2020 WL 11567020, at *2 (N.D. Cal. Feb. 26, 2020)). Further, Loqate provides non-conclusory 15 testimony from a Loqate representative supporting the confidentiality of the redacted material and 16 the potential for it to cause Loqate competitive harm if disclosed. See Clark Decl. ¶¶ 4–5; In re 17 Electronic Arts, 298 Fed.Appx. 568, 569 (9th Cir. 2008) (finding compelling reasons for sealing 18 “pricing terms, royalty rates, and guaranteed minimum payment terms”); Nicolosi Distributing, Inc. 19 v. Finishmaster, Inc., No. 18–cv–03587–BLF, 2018 WL 10758114, at *2 (N.D. Cal. Aug. 28, 2018) 20 (“[C]ompelling reasons exist [to seal three contracts] because they contain proprietary and 21 confidential business information, including potential trade secrets and business practices, such as 22 product rates and purchase requirements.”). 23 Based on the above reasoning, the Court GRANTS Loqate’s request to seal the information 24 redacted in the version of the Agreement at ECF No. 39-2. However, the Court DENIES Loqate’s 25 request to have the entirety of the Agreement filed under seal. 26 / / / 27 / / / 1 || /// 2 || I. ORDER 3 For the foregoing reasons, IT IS HEREBY ORDERED that: 4 1. Precisely’s administrative motion is GRANTED as to the information redacted in the 5 version of the Agreement at ECF No. 39-2; 6 2. Precisely’s administrative motion is DENIED as to sealing the entire Agreement; and 7 3. Precisely SHALL publicly file the redacted version of the Agreement at 8 ECF No. 39-2 within 7 days of this Order. 9 10 IT IS SO ORDERED. 11 12 || Dated: June 28, 2022 ty)

WM.

2B te

BETH LABSON FREEMAN

United States District Judge

15 16

it

Z 18

19 20 21 22 23 24 25 26 27 28