1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 WORKPLACE TECHNOLOGIES Case No.: 18cv1927 JM (MSB)

RESEARCH, INC.,

11

ORDER ON MOTIONS TO SEAL

Plaintiff, 12 v. 13

PROJECT MANAGEMENT INSTITUTE,

14

INC.,

15 Defendant. 16

PROJECT MANAGEMENT INSTITUTE,

17 INC., 18 Counter-Claimant, 19 v. 20 WORKPLACE TECHNOLOGIES RESEARCH, INC., et al., 21 Counter-Defendants. 22

23 Presently before the court are Plaintiff Workplace Technologies Research, Inc. 24 (“WTRI”) and Defendant Project Management Institute, Inc. (“PMI”)’s Motions to Seal. 25 (Doc. Nos. 177, 186, 196, 198, 208). Having considered the Parties’ Motions, the court 26 rules as follows. 27 /// 28 1 LEGAL STANDARD 2 “[T]he courts of this country recognize a general right to inspect and copy public 3 records and documents, including judicial records and documents.” Nixon v. Warner 4 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 5 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 6 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citations 7 omitted). “The presumption of access is ‘based on the need for federal courts, although 8 independent—indeed, particularly because they are independent—to have a measure of 9 accountability and for the public to have confidence in the administration of justice.’” 10 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting 11 United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2d Cir. 1995)). 12 A party seeking to seal a judicial record bears the burden of overcoming the strong 13 presumption of access. Kamakana, 447 F.3d at 1178 (citing Foltz v. State Farm Mut. 14 Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). The showing required to meet this 15 burden depends upon whether the documents to be sealed relate to a motion that is “more 16 than tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1101. 17 When the underlying motion is more than tangentially related to the merits, the 18 “compelling reasons” standard applies. Id. at 1097-99. When the underlying motion 19 does not surpass the tangential relevance threshold, the “good cause” standard applies. 20 Id. The decision to seal documents is “one best left to the sound discretion of the trial 21 court” upon consideration of “the relevant facts and circumstances of the particular case.” 22 Nixon, 435 U.S. at 599. 23 ANALYSIS 24 I. WTRI’s Motions to Seal 25 a. WTRI’s August 16, 2021 Motion to Seal (Doc. No. 177) 26 In WTRI’s August 16, 2021 Motion to Seal, WTRI requests that the court seal 27 three categories of documents. (See Doc. No. 177). 28 1 First, WTRI requests that the court seal portions of Dr. Lia DiBello and Ryan 2 LaMotta’s deposition testimony that discuss or reference WTRI pricing and revenue 3 information, WTRI’s work for one of its customers, and communications between WTRI 4 and the National Science Foundation (“NSF”). (Doc. Nos. 177 at 2-3, 5-9; 177-1 at 2). 5 As to this first category, the court finds WTRI has presented compelling reasons to 6 seal the identified excerpts of Dr. DiBello and Mr. LaMotta’s depositions. The limited 7 portions of these transcripts that WTRI identifies contain confidential, non-public 8 information regarding WTRI’s financials, including revenue, pricing, and profit margins, 9 WTRI’s confidential work with one of its customers, and WTRI’s communications with 10 the NSF. See e.g., Orthopaedic Hosp. v. Encore Med., L.P., No. 19-CV-970 JLS (AHG), 11 2021 WL 1966121, at *2 (S.D. Cal. Apr. 12, 2021) (“Documents containing 12 commercially sensitive information have been held sealable in this Circuit.”) (collecting 13 cases); Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., No. 12-CV-03844-JST, 14 2015 WL 984121, at *3 (N.D. Cal. Mar. 4, 2015) (disclosing terms of agreement between 15 defendant and third-party “would result in an invasion of the third-party’s privacy” and 16 “put [defendant] in a disadvantage in future negotiations for similar agreements.”). 17 WTRI has submitted sufficient factual support it would be placed at a competitive 18 disadvantage if this information was publicly released. (Doc. No. 177-2 at ¶¶ 2-4). 19 Second, WTRI requests that the court seal various documents PMI marked as 20 “CONFIDENTIAL” under the Protective Order. (Doc. Nos. 177 at 3-4; 177-1 at 2). In 21 PMI’s Statement of Non-Opposition, however, PMI states it is not requesting these 22 documents be sealed. (Doc. No. 211 at 3). For these reasons, the court DENIES 23 WTRI’s Motion with respect to this second category. 24 Finally, WTRI requests that the court seal: (1) the Supplemental Expert Report of 25 Nick Ferrara; and (2) the Second Supplemental Rebuttal Report of Phillip Greenspun, 26 Ph.D. in their entirety. (Doc. Nos. 177 at 2; 177-1 at 2). Here, neither Party has taken a 27 position on whether sealing these reports in their entirety is appropriate. In its Motion to 28 Seal, WTRI states these reports were “sealed pursuant to the Protective Order” and that 1 || WTRI “takes no position regarding the correctness of this designation.” (Doc. No. 177-1 2 2). PMI, in turn, merely states it does not oppose WTRI’s request, but “takes no 3 || position on whether WTRI” has satisfied the court’s requirements on sealing documents. 4 ||(Doc. No. 211 at 2). The court is unwilling to presume sealing is justified in the absence 5 ||of any argument by either Party that these reports should be sealed. For these reasons, 6 court DENIES WTRI’s Motion with respect to this third category. 7 For convenience, the court’s rulings on WTRI’s August 10, 2021 Motion to Seal is 8 || outlined in the table below: Name of Document pOrder 10 Excerpts from Deposition Transcripts of Dr. Lia | GRANTED as to 47:8-15: 88:15: DiBello dated September 28, 2020 (Penner 89:6; 89:13: 90:7: 90:10; 91:1-2; D Decl, Ex. 1) (Doc. No. 183-2) 91:3-4; 131:10; 153:6-7; □□□□□□□ 154:6; 155:2; 155:14-15; 13 155:17-19; 155:21; 155:24:; 14 156:13: 156:17; 251:3; 253:18; 253:20; 254:1: 254:6-7; 254:10: 15 254:13-14; 254:16; 254:23-24-; 16 and 255:3. 17 DENIED as to 145:8-12. This 18 request appears to be a typographical error. To the extent 19 WTRI is seeking to seal 154:8-12 20 of Dr. DiBello’s deposition transcript because it contains 21 confidential WTRI revenue 22 information, this request is 53 GRANTED. Excerpts from Deposition Transcript of Dr. Lia | GRANTED as to 288:4-5; 289:7; 24 DiBello, dated October 6, 2020 (Penner Decl., | 290:24: and 359:24. 25 Ex. 4) (Doc. No. 183-3) 26 Excerpts from the Deposition Transcript of DENIED. Victor Carter-Bey, dated September 23, 2020 27 (Penner Decl., Ex. 5) (Doc. No. 183-4) 28

L__NameofDocument | Order Excerpts from the Deposition Transcript of DENIED. 3 Brian Weiss, dated September 30, 2020 (Penner fees 5 Excerpts from the Deposition Transcript of DENIED. 6 Chris Mancus, dated March 11, 2021 (Penner Decl., Ex. 7) (Doc. No. 183-6)

8 Karen Holloway, dated October 2, 2020 (Penner 9 Decl., Ex. 10) (Doc. No. 183-7 PMI100405602 (Penner Decl., Ex. 14) (Doc. No. | DENIED. Liss Come DAE Toe ll Excerpts from a document produced by PMI in | DENIED. this litigation bearing Bates numbers 12 PMI00509082 (Penner Decl., Ex. 16) (Doc. No.

B 183-9

Excerpts from the Deposition Transcript of DENIED. = 15 Decl., Ex. 17) (Doc. No. 183-10 Excerpts from the Deposition Transcript of DENIED. a= 17 Decl., Ex. 18) (Doc. No. 183-11 Excerpts from the Deposition Transcript of DENIED. == 19 Decl., Ex. 19) (Doc. No. 183-12 Excerpts from a document produced by PMI in_ | DENIED. 20 this litigation bearing Bates numbers 183-13 22 Excerpts from the Deposition Transcript of DENIED. 23 Misael Labrador, dated October 30, 2020 Penner Decl., Ex. 21) (Doc. No. 183-14 : 25 183-15 Excerpts from the Deposition Transcript of DENIED. 26 Misael Labrador, dated October 29, 2020 7 (Penner Decl., Ex. 23) (Doc. No. 183-16) 28

|| [Twain ae Supplemental Report of Nick Ferrara dated DENIED. 3 August 12, 2021 (Worley Decl., Ex. 1) (Doc. No. 181 4 Second Supplemental Rebuttal Report of Philip | DENIED. 5 Greenspun, Ph.D. dated August 12, 2021 6 orley Decl., Ex. 2) (Doc. No. 181-1 Excerpts from the Deposition Transcript of GRANTED as to 267:2-3; 7 Ryan LaMotta, dated April 27, 2021 (Gray 268:18-19: 283:11-12: 284:6; and Decl., Ex. A) (Doc. No. 179-1) 284:18. 9 b. WTRI’s August 23, 2021 Motion to Seal (Doc. No. 196) 10 WTRI requests that the court seal portions of WITRI’s Reply in Support of its 11 ||Motion for Summary Judgment. (Doc. No. 196 at 2). Specifically, WTRI seeks to seal 12 || portions of its Reply that excerpt or reference limited sections of Karen Holloway and Dr. 13 ||Ricardo Valerdi’s deposition testtmony. Jd. As WTRI notes, the court already granted 14 Parties’ Motions to Seal the limited portions of Ms. Holloway and Dr. Valerdi’s 15 |/testrmony at issue here. (See Doc. No. 167). For these reasons, the court GRANTS 16 || WTRI’s August 23, 2021 Motion to Seal. 17 PMI’s Motions to Seal 18 a. PMI’s August 17, 2021 Motion to Seal (Doc. No. 186)! 19 PMI requests that the court seal portions of PMI’s Opposition to WTRI’s Motion 20 Summary Judgment. (Doc. No. 186 at 2). Specifically, PMI seeks to seal limited 21 ||portions of its Response that reference PMI’s alleged trade secrets. Id. 4,7. The court 22 ||agrees compelling reasons exist to seal these portions of PMI’s Response. See Apple Inc. 23 ||v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011) (“The publication of materials that 24 ||could result in infringement upon trade secrets has long been considered a factor that 25 26 27 The court notes PMI’s August 17, 2021 Motion indicates both WTRI and PMI are making this sealing request. (Doc. No. 186 at 2). This appears to be a typographical error. PMI is the only signatory on the August 17, 2021 Motion. Jd. at 5.

1 would overcome [the] strong presumption” in favor of public access to court records); 2 Selling Source, LLC v. Red River Ventures, LLC, No. 2:09-cv-01491-JCM-GWF, 2011 3 WL 1630338, at *6 (D. Nev. Apr. 29, 2011) (“[P]ossible infringement of trade secrets 4 outweighs the general public interest in understanding the judicial process.”). For these 5 reasons, the court GRANTS PMI’s August 17, 2021 Motion to Seal. 6 b. PMI’s First August 23, 2021 Motion to Seal (Doc. No. 198) 7 PMI requests that the court seal any portion of its Reply in support of its Daubert 8 Motion to exclude the testimony of Nick Ferrara and Phillip Greenspun that discuss: (1) 9 the Supplemental Expert Report of Nick Ferrara; and (2) the Second Supplemental 10 Rebuttal Report of Phillip Greenspun. (Doc. No. 198 at 2). PMI makes this request in 11 light of WTRI’s August 10, 2021 Motion to Seal (Doc. No. 177), but takes no position on 12 the merits of WTRI’s sealing request. (Doc. No. 198 at 20). As noted above, because 13 neither Party has taken a position as to why these reports should be sealed in their 14 entirety, PMI’s request is DENIED. 15 c. PMI’s Second August 23, 2021 Motion to Seal (Doc. No. 208) 16 PMI requests that the court seal portions of PMI’s Response to WTRI’s Statement 17 of Facts. (Doc. No. 208 at 2). Specifically, PMI requests that the court seal portions of 18 PMI’s Response that reference certain sections of Ryan LaMotta’s expert report. Id. As 19 PMI notes, the court already granted the Parties’ Joint Motion to Seal the limited portions 20 of Mr. LaMotta’s report that are at issue here. (See Doc. No. 167). For these reasons, 21 PMI’s request is GRANTED. 22 CONCLUSION 23 In light of the foregoing, the court ORDERS as follows: 24 1. Within ten days of the electronic docketing of this Order, the Parties are 25 ORDERED to publicly file revised versions of any briefings, supporting documents, 26 and/or exhibits, as necessary, in a manner consistent with this Sealing Order. The 27 Parties’ filings should clearly identify each document and which document it replaces. 28 l 2. The Clerk of Court shall FILE the following currently lodged documents 2 || under seal: (Doc. Nos. 179; 179-1; 183, 183-1; 183-2; 183-3; 187; 202; and 209). 3 IT IS SO ORDERED. 4 || DATED: October 20, 2021 Meg iol, — 5 J Y T. ILLER ited States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28