Phoenix Technologies Ltd. v. VMware, Inc.

Northern District of California, cand-4:2015-cv-01414

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS ({{460}}, {{482}}) ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PHOENIX TECHNOLOGIES LTD., Case No.15-cv-01414-HSG Plaintiff, 8 ORDER GRANTING DEFENDANT'S v. ADMINISTRATIVE MOTIONS TO 9 FILE UNDER SEAL 10 VMWARE, INC., Re: Dkt. Nos. 460, 482 Defendant. 11 12 Northern District of California United States District Court 13 Pending before the Court are two unopposed motions to seal by Defendant VMware, Inc. 14 See Dkt. Nos. 460, 482. For the reasons set forth below, the Court GRANTS the motions. 15 I. BACKGROUND 16 On August 17, 2017, Defendant filed a motion for attorney's fees and costs. Dkt. No. 462. 17 Also on August 17, Defendant filed a Bill of Costs, Dkt. No. 461, accompanied by a motion to 18 seal certain documents relating to the motion for attorney's fees and the Bill of Costs, Dkt. No. 19 460. On September 14, 2017, Defendant filed an Amended Bill of Costs. Dkt. No. 478. No 20 motion to seal accompanied that filing. Then, on September 20, 2017, Defendant filed a Second 21 Amended Bill of Costs, Dkt. No. 483, accompanied by another motion to seal portions of the 22 latter. Dkt. No. 482. 23 While Defendant was not clear as to the relation between the two motions to seal, it 24 appears that the second motion, Dkt. No. 482, does not supersede or moot the first motion, Dkt. 25 No. 460. For example, in its first motion, Defendant sought to seal portions of Exhibit 1 to the 26 Declaration of Michael A. Jacobs, filed in support of the motion for attorney's fees, as well as the 27 following documents filed in support of the Bill of Costs: Schedule E, Schedule F, the Declaration 28 of Claudia Galvez, and Exhibit 1 to the Declaration of Farhad Hajimirzaee. See Dkt. No. 460. In 1 its second motion, Defendant sought only to seal the Second Revised Schedule F, which it filed in 2 support of its Second Amended Bill of Costs. See Dkt. No. 482. 3 Given this ambiguity, the Court will address each of the requests for sealing in both 4 motions. 5 II. LEGAL STANDARD 6 Courts generally apply a "compelling reasons" standard when considering motions to seal 7 documents. Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana 8 v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). "This standard derives from 9 the common law right 'to inspect and copy public records and documents, including judicial 10 records and documents.'" Id. (quoting Kamakana, 447 F.3d at 1178). "[A] strong presumption in 11 favor of access is the starting point." Kamakana, 447 F.3d at 1178 (quotation omitted). To 12 overcome this strong presumption, the party seeking to seal a judicial record attached to a Northern District of California United States District Court 13 dispositive motion must "articulate compelling reasons supported by specific factual findings that 14 outweigh the general history of access and the public policies favoring disclosure, such as the 15 public interest in understanding the judicial process" and "significant public events." Id. at 1178- 16 79 (quotation omitted). "In general, 'compelling reasons' sufficient to outweigh the public's 17 interest in disclosure and justify sealing court records exist when such 'court files might have 18 become a vehicle for improper purposes,' such as the use of records to gratify private spite, 19 promote public scandal, circulate libelous statements, or release trade secrets." Id. at 1179 20 (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)). "The mere fact that the 21 production of records may lead to a litigant's embarrassment, incrimination, or exposure to further 22 litigation will not, without more, compel the court to seal its records." Id. 23 The Court must "balance[] the competing interests of the public and the party who seeks to 24 keep certain judicial records secret. After considering these interests, if the court decides to seal 25 certain judicial records, it must base its decision on a compelling reason and articulate the factual 26 basis for its ruling, without relying on hypothesis or conjecture." Id. Civil Local Rule 79-5 27 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a 28 document or portions of it under seal must "establish[] that the document, or portions thereof, are 2 1 privileged, protectable as a trade secret or otherwise entitled to protection under the law. . . The 2 request must be narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). 3 Records attached to nondispositive motions are not subject to the strong presumption of 4 access. See Kamakana, 447 F.3d at 1179. Because the documents attached to nondispositive 5 motions "are often unrelated, or only tangentially related, to the underlying cause of action," 6 parties moving to seal must meet the lower "good cause" standard of Rule 26(c) of the Federal 7 Rules of Civil Procedure. Id. at 1179-80 (quotation omitted). The "good cause" standard requires 8 a "particularized showing" that "specific prejudice or harm will result" if the information is 9 disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 10 2002); see also Fed. R. Civ. P. 26(c). "Broad allegations of harm, unsubstantiated by specific 11 examples of articulated reasoning" will not suffice. Beckman Indus., Inc. v. Int'l Ins. Co., 966 12 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). Northern District of California United States District Court 13 III. ANALYSIS 14 Because a motion for attorney's fees and costs and a bill of costs are nondispositive 15 motions, the Court applies the "good cause" standard to Defendant's motions to seal. Defendant's 16 overarching argument is that the material it seeks to seal "contains or discusses highly confidential 17 business information about the negotiated payments that VMware made to its contract attorneys, 18 e-discovery vendors, and graphics consultants supporting VMware in this lawsuit." Dkt. No. 460 19 at 2; see also Dkt. No. 482 at 1. The Court considers each document in turn. 20 A. Exhibit 1 to the Declaration of Michael A. Jacobs in Support of Defendant's Motion for Attorney's Fees and Costs 21 22 Defendant moves to seal portions of Exhibit 1 to the Declaration of Michael A. Jacobs in 23 support of its motion for attorney's fees and costs, Dkt. No. 460 at 1, which Defendant contends 24 "contain[s] highly sensitive business information involving the confidential information about the 25 amount it paid contract attorneys through Hire Counsel," Dkt. No. 460-1 (Declaration of Claudia 26 Galvez in Support of the Motion to Seal, or "Galvez Decl.") ¶ 3. Hire Counsel "assist[ed] with 27 legal staffing during discovery," and Defendant argues the portion of the declaration which it 28 seeks to have sealed "constitute[s] VMware's and its third party vendors' highly sensitive business 3 1 information." Id. ¶ 4. 2 Upon review of the exhibit, the Court finds that the negotiated pricing terms Defendants 3 seek to seal constitute "business information that might harm a litigant's competitive standing" if 4 publicly disclosed. See Nixon, 435 U.S. at 598 (citation omitted). Moreover, the redaction is 5 sufficiently "narrowly tailored" such that Defendant is seeking to seal only those portions of the 6 exhibit that might put sensitive business information at risk. Accordingly, the Court grants 7 Defendant's motion as to this exhibit. 8 B. Schedules E and F in Support of Defendant's Bill of Costs; Declaration of Claudia Galvez in Support of Defendant's Bill of Costs; Exhibit 1 to the 9 Declaration of Farhad Hajimirzaee in Support of Defendant's Bill of Costs 10 Defendant next moves to seal portions of Schedules E and F, the Declaration of Claudia 11 Galvez (in Support of the Bill of Costs), and Exhibit 1 to the Declaration of Farhad Hajimirzaee, 12 all of which it filed in support of its Bill of Costs. Dkt. No. 460 at 1. With the exception of Northern District of California United States District Court 13 Schedule F, Defendant argues these documents "reveal highly-confidential pricing terms charged 14 by Discovia and OpenAxes, third-party vendors who provided VMware with eDiscovery services 15 in this lawsuit." Id.; see also Galvez Decl. ¶ 5 (characterizing these documents as "contain[ing] 16 highly sensitive business information involving the confidential information about the amount it 17 paid third-party e-discovery and visual aid vendors"). Schedule F "contains invoices from Impact 18 Trial Consulting and Core TrialTech, third-party vendors who provided VMware with trials 19 graphics, foam boards, and deposition designation clips during trial." Dkt. No. 460 at 3. 20 Defendant seeks to seal Schedule F because it contains the "negotiated rates" the vendors charged 21 VMware. See id.; see also Galvez Decl. ¶ 7 ("Both Impact Trial Consulting's and Core 22 TrialTech's financial information is contained in the invoices attached in Schedule F."). 23 Upon review of Exhibit 1 to the Hajimirzaee Declaration, the Declaration of Claudia 24 Galvez (in Support of the Bill of Costs), and Schedules E and F, the Court finds that the pricing 25 and rates information therein is sealable material, see Nixon, 435 U.S. at 598, and sufficiently 26 narrowly tailored. Accordingly, the Court grants Defendant's motion as to these documents. 27 // 28 // 4 C. Second Revised Schedule F in Support of Defendant's Second Amended Bill of 1 Costs 2 Last, Defendant moves to seal portions of the Second Revised Schedule F, which it filed in 3 support of its Second Amended Bill of Costs. Dkt. No. 482 at 1.1 Defendant contends that the 4 Second Revised Schedule F contains invoices from Impact Trial Consulting and CoreTrial Tech, 5 as well as "Impact's internal descriptions of [its] invoices." Id. at 1-2. It claims an "interest[] in 6 maintaining the confidentiality of highly-sensitive business and pricing information." Id. at 2; see 7 also Dawson Decl. ¶ 4. 8 Upon review of the Second Revised Schedule F, the Court finds that the pricing 9 information and billing designations therein are sealable material, see Nixon, 435 U.S. at 598, and 10 sufficiently narrowly tailored. Accordingly, the Court grants Defendant's motion as to the Second 11 Revised Schedule F. 12 IV. CONCLUSION Northern District of California United States District Court 13 For the foregoing reasons, the Court GRANTS Defendant's motions to seal. Under Civil 14 Local Rule 79-5(f)(1), the unredacted versions of the documents specified in Defendant's motions 15 will remain under seal and the public will have access only to the redacted versions originally filed 16 by Defendant: 17 1. Exhibit 1 to the Declaration of Michael A. Jacobs. See Dkt. No. 460-3 (redacted); 18 Dkt. No. 460-4 (sealed). 19 2. Schedule E. See Dkt. No. 460-9 (redacted); Dkt. No. 460-10 (sealed). 20 3. Schedule F. See Dkt. No. 460-11 (redacted); Dkt. No. 460-12 (sealed). 21 4. Declaration of Claudia Galvez (in Support of the Bill of Costs). See Dkt. No. 460- 22 7 (redacted); Dkt. No. 460-8 (sealed). 23 5. Exhibit 1 to the Declaration of Farhad Hajimirzaee. See Dkt. No. 460-5 (redacted); 24 Dkt. No. 460-6 (sealed). 25 26 1 In its original Bill of Costs, Defendant sought to seal Schedule F. See Dkt. No. 460 at 3; Galvez 27 Decl. I ¶ 7. Defendant then filed an Amended Bill of Costs, and a Revised Schedule F. See Dkt. No. 478. No motion to seal accompanied the Amended Bill of Costs. Defendant thereafter 28 revised Schedule F again, and here seeks to seal the Second Revised Schedule F. See Dkt. No. 482-1 (Declaration of Shaelyn Dawson, or "Dawson Decl.") ¶ 3. 5 1 6. Second Revised Schedule F. See Dkt. No. 482-2 (redacted); Dkt. No. 482-3 2 (sealed). 3 IT IS SO ORDERED. 4 Dated: 2/14/2018 5 6 HAYWOOD S. GILLIAM, JR. 7 United States District Judge 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6