1 2 3 6 7 ALFA CONSULT SA, Case No. 21-cv-00812-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PARTIES' ADMIN. MOTIONS TO SEAL [Re: ECF Nos. 74, 78, 85, 89] Defendant. 11
12 13 Before the Court are (1) Defendant TCI International, Inc.’s (“TCI”) administrative motion 14 to consider whether to seal Plaintiff Alfa Consult SA’s (“Alfa”) materials attached to TCI’s 15 motion for summary judgment, ECF No. 74; (2) Alfa’s corresponding administrative motion to 16 seal, ECF No. 78 (“Alfa Mot.”); (3) Alfa’s administrative motion to consider whether to seal 17 TCI’s materials attached to and quoted in Alfa’s opposition to TCI’s summary judgment motion, 18 ECF No. 85; and (4) TCI’s corresponding administrative motion to seal, ECF No. 89 (“TCI 19 Mot.”). Alfa opposes in part TCI’s motion to seal. ECF No. 90. Having reviewed the parties’ 20 submissions and applicable sealing law, the Court GRANTS IN PART and DENIES IN PART the 21 administrative motions. 23 “Historically, courts have recognized a ‘general right to inspect and copy public records 24 and documents, including judicial records and documents.’” Kamakana v. City & Cnty. of 25 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 26 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 27 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 1 motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto 2 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bear the burden of overcoming 3 the presumption with “compelling reasons supported by specific factual findings that outweigh the 4 general history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 5 1178–79 (internal quotation marks and citation omitted). 6 Compelling reasons justifying the sealing of court records generally exist “when such 7 ‘court files might . . . become a vehicle for improper purposes,’” Kamakana, 447 F.3d at 1179 8 (quoting Nixon, 435 U.S. at 598), such as: “to gratify private spite, promote public scandal, 9 circulate libelous statements,” id.; to “release trade secrets,” id.; or “as sources of business 10 information that might harm a litigant's competitive standing,” Ctr. for Auto Safety, 809 F.3d at 11 1097 (quoting Nixon, 435 U.S. at 598–99). On the other hand, “[t]he mere fact that the production 12 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation 13 will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. 14 “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning” will 15 not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation 16 omitted). 17 In addition, the Local Rules of this Court require that all requests to seal be “narrowly 18 tailored to seek sealing only of sealable material.” Civ. L.R. 79-5(a). That is, the sealing motion 19 must include “a specific statement of the applicable legal standard and the reasons for keeping a 20 document under seal, including an explanation of: (i) the legitimate private or public interests that 21 warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive 22 alternative to sealing is not sufficient.” Id. at 79-5(c)(1). 24 The Court has reviewed the sealing motions and discusses each in turn. 25 A. Alfa’s Motion to Seal (ECF No. 78) 26 Alfa moves to seal in their entirety Exhibits 15 and 32 attached to the Declaration of 27 Gregory Ulmer in Support of TCI’s Motion for Summary Judgment. Alfa Mot. 2. Both exhibits 1 information, including Alfa’s “internal pricing structure, products, mark-ups, and sales data,” that 2 is kept confidential even within the company. Id. at 3–4 (citing Decl. of Oleksiy Gorpinich ¶ 5, 3 ECF No. 78-1). Alfa contends that public disclosure of its pricing information would permit 4 competitors to “unfairly compete with Alfa by using Alfa’s mark-ups in their own proposals to 5 obtain bids and projects over Alfa.” Id. at 4. 6 The Court finds that Alfa has established compelling reasons to seal information that 7 would reveal its business strategies, including proposal pricing strategies. See, e.g., In re Elec. 8 Arts, 298 F. App’x. 568, 569 (9th Cir. 2008) (finding compelling reasons for sealing “business 9 information that might harm a litigant’s competitive strategy”); Primus Grp., Inc. v. Inst. for Env’t 10 Health, Inc., 395 F. Supp. 3d 1243, 1267 (N.D. Cal. 2019) (noting “company’s confidential profit, 11 cost, and pricing information” may constitute compelling reason to seal if “public disclos[ure] 12 could put the company at a competitive disadvantage”) (citing Apple Inc. v. Samsung Elecs. Co., 13 727 F.3d 1214, 1225 (Fed. Cir. 2013)). The Court further finds that Alfa’s sealing requests are 14 narrowly tailored, and therefore ORDERS as follows: 15 Public ECF No. / Document to be Result Reasoning 16 (Sealed ECF No.) Sealed 17 75-15 / (74-3) Ex. 15 to Ulmer GRANTED. The document Alfa seeks to seal is Declaration in Support a financial pricing proposal 18 of TCI’s Motion for consisting of “confidential pricing Summary Judgment information,” including its 19 (Entire document) “internal pricing structure, products, mark-ups, and sales 20 data.” Alfa Mot. 3; Decl. of 21 Oleksiy Gorpinich ¶¶ 5–7. Public disclosure of this document would 22 permit Alfa’s competitors to use Alfa’s mark-ups in their own 23 proposals as an unfair advantage to obtain bids. Mot. 4; Gorpinich 24 Decl. ¶ 8. 25 26 27 Public ECF No. / Document to be Result Reasoning 1 (Sealed ECF No.) Sealed 2 75-24 / (74-4) Ex. 32 to Ulmer GRANTED. The document Alfa seeks to seal is Declaration in Support a financial pricing proposal 3 of TCI’s Motion for consisting of “confidential pricing Summary Judgment information,” including its 4 (Entire document) “internal pricing structure, products, mark-ups, and sales 5 data.” Alfa Mot. 3; Decl. of 6 Oleksiy Gorpinich ¶¶ 5–7. Public disclosure of this document would 7 permit Alfa’s competitors to use Alfa’s mark-ups in their own 8 proposals as an unfair advantage to obtain bids. Mot. 4; Gorpinich 9 Decl. ¶ 8. 10 B. TCI’s Motion to Seal (ECF No. 89) 11 TCI moves to seal in their entirety Exhibits 60 and 63 attached to the Declaration of 12 Catherine S. Owens in Support of Alfa’s Opposition to TCI’s Motion for Summary Judgment, and 13 to redact portions of Alfa’s opposition brief that quote Exhibits 60 and 63. TCI Mot. 1–2; see 14 ECF No. 86; ECF No. 86-4, at 245, 250. Exhibit 60 is comprised of email correspondence and 15 Exhibit 63 is a pricing memorandum and proposal. TCI Mot. 1–2. TCI states that each exhibit 16 contains confidential “competitive pricing and strategy proposals,” including TCI’s “confidential 17 information and communications regarding pricing strategies, bidding analyses, vendor capability 18 and licensing information related to TCI’s tender and ultimate bid submission to supply spectrum 19 monitoring equipment in Iraq to the Communications Media Commission.” Id. at 3 (citing Decl. 20 of Ann Ballard-Bustamante ¶ 8, ECF No. 89-2). TCI contends that public disclosure of its pricing 21 information would allow competitors to access TCI’s proprietary pricing metrics, costs, internal 22 processes, and business decisions, and to use that information to gain an unfair advantage on 23 current and future bid submissions. Id.
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1 2 3 6 7 ALFA CONSULT SA, Case No. 21-cv-00812-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PARTIES' ADMIN. MOTIONS TO SEAL [Re: ECF Nos. 74, 78, 85, 89] Defendant. 11
12 13 Before the Court are (1) Defendant TCI International, Inc.’s (“TCI”) administrative motion 14 to consider whether to seal Plaintiff Alfa Consult SA’s (“Alfa”) materials attached to TCI’s 15 motion for summary judgment, ECF No. 74; (2) Alfa’s corresponding administrative motion to 16 seal, ECF No. 78 (“Alfa Mot.”); (3) Alfa’s administrative motion to consider whether to seal 17 TCI’s materials attached to and quoted in Alfa’s opposition to TCI’s summary judgment motion, 18 ECF No. 85; and (4) TCI’s corresponding administrative motion to seal, ECF No. 89 (“TCI 19 Mot.”). Alfa opposes in part TCI’s motion to seal. ECF No. 90. Having reviewed the parties’ 20 submissions and applicable sealing law, the Court GRANTS IN PART and DENIES IN PART the 21 administrative motions. 23 “Historically, courts have recognized a ‘general right to inspect and copy public records 24 and documents, including judicial records and documents.’” Kamakana v. City & Cnty. of 25 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 26 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 27 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 1 motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto 2 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bear the burden of overcoming 3 the presumption with “compelling reasons supported by specific factual findings that outweigh the 4 general history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 5 1178–79 (internal quotation marks and citation omitted). 6 Compelling reasons justifying the sealing of court records generally exist “when such 7 ‘court files might . . . become a vehicle for improper purposes,’” Kamakana, 447 F.3d at 1179 8 (quoting Nixon, 435 U.S. at 598), such as: “to gratify private spite, promote public scandal, 9 circulate libelous statements,” id.; to “release trade secrets,” id.; or “as sources of business 10 information that might harm a litigant's competitive standing,” Ctr. for Auto Safety, 809 F.3d at 11 1097 (quoting Nixon, 435 U.S. at 598–99). On the other hand, “[t]he mere fact that the production 12 of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation 13 will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. 14 “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning” will 15 not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation 16 omitted). 17 In addition, the Local Rules of this Court require that all requests to seal be “narrowly 18 tailored to seek sealing only of sealable material.” Civ. L.R. 79-5(a). That is, the sealing motion 19 must include “a specific statement of the applicable legal standard and the reasons for keeping a 20 document under seal, including an explanation of: (i) the legitimate private or public interests that 21 warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive 22 alternative to sealing is not sufficient.” Id. at 79-5(c)(1). 24 The Court has reviewed the sealing motions and discusses each in turn. 25 A. Alfa’s Motion to Seal (ECF No. 78) 26 Alfa moves to seal in their entirety Exhibits 15 and 32 attached to the Declaration of 27 Gregory Ulmer in Support of TCI’s Motion for Summary Judgment. Alfa Mot. 2. Both exhibits 1 information, including Alfa’s “internal pricing structure, products, mark-ups, and sales data,” that 2 is kept confidential even within the company. Id. at 3–4 (citing Decl. of Oleksiy Gorpinich ¶ 5, 3 ECF No. 78-1). Alfa contends that public disclosure of its pricing information would permit 4 competitors to “unfairly compete with Alfa by using Alfa’s mark-ups in their own proposals to 5 obtain bids and projects over Alfa.” Id. at 4. 6 The Court finds that Alfa has established compelling reasons to seal information that 7 would reveal its business strategies, including proposal pricing strategies. See, e.g., In re Elec. 8 Arts, 298 F. App’x. 568, 569 (9th Cir. 2008) (finding compelling reasons for sealing “business 9 information that might harm a litigant’s competitive strategy”); Primus Grp., Inc. v. Inst. for Env’t 10 Health, Inc., 395 F. Supp. 3d 1243, 1267 (N.D. Cal. 2019) (noting “company’s confidential profit, 11 cost, and pricing information” may constitute compelling reason to seal if “public disclos[ure] 12 could put the company at a competitive disadvantage”) (citing Apple Inc. v. Samsung Elecs. Co., 13 727 F.3d 1214, 1225 (Fed. Cir. 2013)). The Court further finds that Alfa’s sealing requests are 14 narrowly tailored, and therefore ORDERS as follows: 15 Public ECF No. / Document to be Result Reasoning 16 (Sealed ECF No.) Sealed 17 75-15 / (74-3) Ex. 15 to Ulmer GRANTED. The document Alfa seeks to seal is Declaration in Support a financial pricing proposal 18 of TCI’s Motion for consisting of “confidential pricing Summary Judgment information,” including its 19 (Entire document) “internal pricing structure, products, mark-ups, and sales 20 data.” Alfa Mot. 3; Decl. of 21 Oleksiy Gorpinich ¶¶ 5–7. Public disclosure of this document would 22 permit Alfa’s competitors to use Alfa’s mark-ups in their own 23 proposals as an unfair advantage to obtain bids. Mot. 4; Gorpinich 24 Decl. ¶ 8. 25 26 27 Public ECF No. / Document to be Result Reasoning 1 (Sealed ECF No.) Sealed 2 75-24 / (74-4) Ex. 32 to Ulmer GRANTED. The document Alfa seeks to seal is Declaration in Support a financial pricing proposal 3 of TCI’s Motion for consisting of “confidential pricing Summary Judgment information,” including its 4 (Entire document) “internal pricing structure, products, mark-ups, and sales 5 data.” Alfa Mot. 3; Decl. of 6 Oleksiy Gorpinich ¶¶ 5–7. Public disclosure of this document would 7 permit Alfa’s competitors to use Alfa’s mark-ups in their own 8 proposals as an unfair advantage to obtain bids. Mot. 4; Gorpinich 9 Decl. ¶ 8. 10 B. TCI’s Motion to Seal (ECF No. 89) 11 TCI moves to seal in their entirety Exhibits 60 and 63 attached to the Declaration of 12 Catherine S. Owens in Support of Alfa’s Opposition to TCI’s Motion for Summary Judgment, and 13 to redact portions of Alfa’s opposition brief that quote Exhibits 60 and 63. TCI Mot. 1–2; see 14 ECF No. 86; ECF No. 86-4, at 245, 250. Exhibit 60 is comprised of email correspondence and 15 Exhibit 63 is a pricing memorandum and proposal. TCI Mot. 1–2. TCI states that each exhibit 16 contains confidential “competitive pricing and strategy proposals,” including TCI’s “confidential 17 information and communications regarding pricing strategies, bidding analyses, vendor capability 18 and licensing information related to TCI’s tender and ultimate bid submission to supply spectrum 19 monitoring equipment in Iraq to the Communications Media Commission.” Id. at 3 (citing Decl. 20 of Ann Ballard-Bustamante ¶ 8, ECF No. 89-2). TCI contends that public disclosure of its pricing 21 information would allow competitors to access TCI’s proprietary pricing metrics, costs, internal 22 processes, and business decisions, and to use that information to gain an unfair advantage on 23 current and future bid submissions. Id. Alfa opposes TCI’s request to seal Exhibit 60 and to 24 redact quotations of the exhibit in Alfa’s opposition brief, arguing that the exhibit does not contain 25 confidential pricing and business information and is not narrowly tailored. ECF No. 90, at 1. 26 For the same reasons discussed above with respect to Alfa, the Court finds that TCI has 27 established compelling reasons to seal information that would reveal its business strategies, 1 including proposal pricing strategies. See supra, at § Il.A. However, the sealing requests are not 2 || narrowly tailored to shield from public disclosure only confidential competitive information. In 3 particular, Exhibit 60 includes statements that TCI may consider generally sensitive, but which are 4 || not “competitive pricing and strategy proposals.” TCI Mot. 1; see Kivett v. Flagstar Bank, FSB, 5 No. C 18-05131, 2019 WL 13203923, at *1 (N.D. Ca. Nov. 4, 2019) (denying motion to seal 6 || document where “[m]Juch of the sealed information is not highly sensitive strategic information”). 7 The Court therefore DENIES the pending request to seal Exhibits 60 and 63 in their 8 || entirety, and the portions of Alfa’s opposition brief citing to or quoting from those exhibits. 9 Should TCI wish to maintain under seal portions of these exhibits and the opposition brief, it may 10 || propose narrowly tailored redactions as ordered below. 11 || 1. ORDER 12 For the foregoing reasons, the Court ORDERS as follows: 5 13 1. Alfa’s motion to seal in their entirety Exhibits 15 and 32 to the Declaration of 14 Gregory Ulmer in Support of TCI’s Motion for Summary Judgment, ECF Nos. 75- 15, 75-24, is GRANTED; a 16 2. TCI’s motion to seal in their entirety Exhibits 60 and 63, and the portions of Alfa’s 3 17 summary judgment opposition brief citing these exhibits, is DENIED without 18 prejudice; 19 3. TCI may submit a further administrative motion to seal containing proposed 20 narrowly tailored redactions to Exhibits 60 and 63 and Alfa’s summary judgment 21 opposition brief, to the extent it cites these exhibits, by August 10, 2023; 22 4. Ifno proposed redactions are received by 11:59 p.m. on August 10, 2023, the Court 23 will unseal Exhibits 60 and 63 and the opposition brief in their entirety. 25 Dated: August 3, 2023 26
28 ETH LABSON FREEMAN United States District Judge