1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 LENOVO (UNITED STATES) INC., et al., Case No. 19-cv-01389-EJD

9 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' 10 v. MOTION TO CONSIDER WHETHER ANOTHER PARTY'S MATERIAL 11 IPCOM GMBH & CO., KG, SHOULD BE SEALED

Defendant. 12 Re: Dkt. No. 157

13 In connection with the filing of their Amended Complaint (“AC”) (ECF No. 159), 14 Plaintiffs Lenovo (United States) Inc. and Motorola Mobility, LLC (“Plaintiffs”) have moved to 15 seal certain excerpts that contain information designated as confidential by Defendant. For the 16 following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion. 17

I. LEGAL STANDARD

18 “Historically, courts have recognized a ‘general right to inspect and copy public records 19 and documents, including judicial records and documents.’” Kamakana v. City & Cty. of 20 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 21 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a strong 22 presumption in favor of access is the starting point.” Kamakana, 447 F.3d at 1178 (internal 23 quotation marks omitted); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 24 (9th Cir. 2003) (in considering whether documents should be sealed, courts “start with a strong 25 presumption in favor of access to court records.”). Parties seeking to seal judicial records relating 26 to motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto 27 1 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bear the burden of overcoming 2 the presumption with “compelling reasons supported by specific factual findings that outweigh the 3 general history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 4 1178–79 (internal quotation marks and citation omitted). These access considerations are 5 especially salient when parties seek to file pleadings and briefs under seal, as noted in the Civil 6 Local Rules that “[o]nly in rare circumstances should a party seek to file portions of a pleading or 7 brief under seal.” Civil L.R. 79-5(e). 8 Parties moving to seal documents must comply with the procedures established by Civil 9 Local Rule 79-5. All motions must include a “specific statement of the applicable legal standard 10 and the reasons for keeping a document under seal,” which must include an explanation of the 11 legitimate private or public interests that warrant sealing; the injury that will result if sealing is 12 denied; and why a less restrictive alternative to sealing is not sufficient. Civil L.R. 79-5(c)(1). 13 Where, as here, the party filing the documents under seal is not the party that designated the 14 documents as confidential, the aforementioned “specific statement” must be filed by the 15 designating party. Civil L.R. 79-5(f)(3). 16 II. DISCUSSION 17 Plaintiffs seek to seal portions of the Amended Complaint that reflects information that 18 Defendant has designated as confidential. Defendant asserts that the sealed portions of the 19 Amended Complaint contain “business information which may harm IPCom’s competitive 20 standing.” Decl. of Charles Hsu Supp. Plaintiffs’ Admin. Mot. (“Hsu Decl.”) ¶ 8, ECF No. 162. 21 Specifically, the sealed information relates to Defendant’s confidential licensing negotiations that 22 would create a substantial risk of serious harm to Defendant’s competitive standing should the 23 information be disclosed. Id. ¶¶ 8-9. A quick review of the redacted Amended Complaint reveals 24 that many of the sealed excerpts appear to be direct quotations from documents. See generally 25 ECF No. 158. 26 To the extent that Defendant seeks to seal information relating to the specific details and 27 substance of its licensing negotiations, the Court agrees that there are compelling reasons to do so. 1 Courts in this circuit, in accordance with the Supreme Court’s instruction in Nixon, have 2 recognized that “pricing terms, royalty rates, and guaranteed minimum payment terms” are the 3 type of business information that might harm a litigant’s competitive standing. In re Elec. Arts, 4 Inc., 298 F. App'x 568, 569–70 (9th Cir. 2008) (quoting Nixon v. Warner Commc'ns, Inc., 435 5 U.S. 589, 598 (1978)); see also In re Qualcomm Litig., No. 3:17-CV-0108-GPC-MDD, 2017 WL 6 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (“compelling reasons exist to seal the unredacted portions 7 of the pleadings and briefing that concern licensing terms, royalties paid or owed under license 8 agreements, financial terms, details of confidential licensing negotiations, and business strategies. 9 . .”). Most proposed redactions in the Amended Complaint fall within this category, containing 10 information pertaining to licensing demands, negotiation materials and communications, or 11 business statistics. 12 However, not all proposed redactions in the Amended Complaint contain such confidential 13 business information. Some excerpts appear to have been redacted on the sole basis that they 14 quote from an often-unspecified document that was presumably designated confidential. Take, for 15 example, the redaction in paragraph 27, which quotes from the confidential deposition of Roger 16 Ross but only as to the fact that Motorola was known to be a company in Chicago. AC ¶ 27. 17 Even if the Ross deposition as a whole contained critical business information that may harm 18 Defendant if disclosed, this is not a basis to seal all quotations from that deposition, including 19 those that contain otherwise innocuous or public information. See Kowalsky v. Hewlett-Packard 20 Co., No. 5:10-CV-02176-LHK, 2012 WL 892427, at *3 (N.D. Cal. Mar. 14, 2012) (rejecting 21 argument that any information quoting from sealed exhibits are sealable). 22 Other instances of quoted but non-sealable information in the Amended Complaint include 23 the following: general high-level information regarding Mr. Ross’s duties and licensing authority 24 (AC ¶¶ 60, 62); the general purposes behind Plaintiffs’ and Defendant’s licensing negotiations, 25 i.e., to reach a worldwide license for Defendant’s entire portfolio (AC ¶ 49); and the roles and 26 representative capacity of attendees at those licensing meetings (AC ¶ 66). Additionally, the 27 recitation of Defendant’s public position in this case—e.g., that the patents-in-suit are standard 1 essential, and Plaintiffs infringe upon those patents—does not become sealable just because it was 2 || quoted from a confidential deposition. AC 436. Defendant’s boilerplate assertions of “business 3 information” concerns do not reach these instances, and the Court is unaware of any other 4 || compelling reasons to seal these excerpts. 5 || I. CONCLUSION 6 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 7 Plaintiffs’ motion to seal as follows: 8 9 Portion Sought to be Sealed Court’s Ruling 10 Amended Complaint | Portions of 7] 28, 30, 31, 33, 37, 40, 58, 61, 64, 65, Granted (ECF No. 158) 68, 69, 73, 74, 76, 83, 84, 86, 90, 91, 93, 94, 102, 11 104, 105, 106, 107, 108, 111, 112, 113, 116, 117, 129. 12 Portions of 4 48, at lines 14-16; §] 59, at line 9; { 67, Granted E at line 4; J 89, at lines 21-22, 25, 26. 13 Portions of 27, 36, 47, 48 not referenced above, Denied 5 14 49, 50, 55, 59 not referenced above, 60, 62, 63, 66, 6 67 not referenced above, 70, 88, 89 not referenced 15 above, 98, 99, 103, 110, 115, 121. A 16 Plaintiffs shall file a revised redacted version of the Amended Complaint consistent with

3 17. || the Court’s ruling above by July 6, 2022. 1 IT IS SO ORDERED. 19 Dated: June 28, 2022

21

EDWARD J. DAVILA

22 United States District Judge 23 24 25 26 27 28 || Case No.: 19-cv-01389-EJD

ORDER GRANTING IN PART AND DENYING IN PART ADMIN. MOT. TO SEAL