Alivecor, Inc. v. Apple, Inc.

Opinion

1 4C9Y2N08T9H; IpAro E h. aRcI CviHceM) AN (D.C. Bar No. 2 crichman@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 3 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 4 Telephone: 202.955.8500 Facsimile: 202.467.0539 5 JASON C. LO (SBN 219030) 6 jlo@gibsondunn.com JENNIFER J. RHO (SBN 254312) 7 jrho@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 8 333 South Grand Avenue Los Angeles, CA 90071 9 Telephone: 213.229.7000 Facsimile: 213.229.7520 10 CAELI A. HIGNEY (SBN 268644) 11 CHigney@gibsondunn.com JULIAN W. KLEINBRODT (SBN 302085) 12 JKleinbrodt@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 13 555 Mission Street, Suite 3000 San Francisco, CA 94105-0921 14 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 CASE NO. 4:21-CV-03958-JSW-SK 19 AliveCor, Inc.,

20 Plaintiff, JOINT CONSOLIDATED [PROPOSED] ORDER REGARDING SEALING 21 v. DOCUMENTS

22 Apple Inc.,

23 Defendant.

24 25

26 27 28 1 A. AliveCor Administrative Motions To Consider Sealing 2 AliveCor has filed several administrative motions to consider whether Apple’s confidential 3 business material should be sealed. (Dkt. Nos. 153, 161, 163, 169). Apple filed declarations in 4 support of sealing (see Dkt. Nos. 155, 165, 166, 175). The Court concludes Apple has demonstrated 5 that portions of the filings and exhibits should be maintained under seal, as reflected in the table 6 below. 7 B. Apple Administrative Motions To Consider Sealing 8 Apple has filed several administrative motions to consider whether AliveCor’s confidential 9 business material should be sealed. (Dkt. Nos. 158, 159). AliveCor filed a declaration in support of 10 the motions. (Dkt. No. 160). The Court concludes that AliveCor has demonstrated that portions of 11 certain exhibits should be maintained under seal, as reflected in the table below. 12 C. The Court’s Sealed Order Denying Motion For An Adverse Jury Instruction 13 The parties have conferred and jointly agree that certain portions of the Court’s Order 14 Denying Motion For An Adverse Jury Instruction, (Dkt. No. 178), filed conditionally under seal, 15 should remain sealed. 16 In determining whether to permit documents to be filed under seal, courts in the Ninth Circuit 17 apply two separate standards: (1) the “compelling reason” test for sealing information in connection 18 with motions for a determination on the merits of a claim or defense; and (2) the less-restrictive 19 “good cause” test for sealing information in connection with non-dispositive filings. Kamakana v. 20 City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006); Center for Auto Safety v. 21 Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir. 2016). Here, the less-restrictive good cause test applies 22 because the underlying dispute is non-dispositive; AliveCor’s motion does not determine the ultimate 23 merits of any claims in this case. The Court has “broad latitude” “to prevent disclosure of materials 24 for many types of information, including, but not limited to, trade secrets or other confidential 25 research, development, or commercial information.” Phillips v. Gen. Motors Corp., 307 F.3d 1206, 26 1211 (9th Cir. 2002) (emphasis in original); see also Kamakana, 447 F.3d at 1179 (“[C]ompelling 27 reasons sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist 28 when such court files might have become a vehicle for improper purposes, such as the use of records 1 to gratify private spite, promote public scandal, circulate libelous statements, or release trade 2 secrets.”) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)) (internal quotation 3 marks omitted)). As the Supreme Court has recognized, sealing is appropriate to prevent judicial 4 documents from being used “as sources of business information that might harm a litigant’s 5 competitive standing.” Nixon, 435 U.S. at 598. Accordingly, courts routinely seal information where 6 disclosure could harm a litigant’s competitive standing. See, e.g., Philips v. Ford Motor Co., No. 14- 7 CV-02989, 2016 WL 7374214, at *6 (N.D. Cal. Dec. 20, 2016) (concluding that the “need to avoid 8 competitive disadvantage in contract negotiations and undercutting by competitors is a compelling 9 reason that justifies sealing”); Vigdor v. Super Lucky Casino, Inc., No. 16-CV-05326, 2018 WL 10 4510734, at *2 (N.D. Cal. Sept. 18, 2018) (sealing “business and financial information relating to the 11 operations of Defendants”); Lathrop v. Uber Techs., Inc., No. 14-cv-05678-JST, 2016 WL 9185002, 12 at *2 (N.D. Cal. Jun. 17, 2016) (“[U]nder Ninth Circuit law . . . internal reports are appropriately 13 sealable under the ‘compelling reasons’ standard where that information could be used to the 14 company’s competitive disadvantage.”). 15 The parties indicated that limited portions of this Court’s Order Denying Motion For An 16 Adverse Jury Instruction should remain sealed. The language the parties indicate should be sealed 17 includes information that Apple has determined to be highly confidential. This includes Apple’s 18 competitively sensitive business strategy information and non-public information about Apple’s data 19 management practices, including its practices regarding document management and storage, which, if 20 revealed, could cause Apple economic harm and put it at a competitive disadvantage or reveal to bad 21 actors insights into how Apple maintains and processes its confidential information. See, e.g., 22 Lathrop, 2016 WL 9185002, at *2. The narrow material that Apple seeks to maintain under seal is 23 not public and would be harmful to Apple if publicly disclosed. 24 The information that Apple seeks to protect is important to its business and its internal 25 processes. Public disclosure of this information would risk competitors gaining an unfair business 26 advantage by gaining insight into its internal processes and data management systems. Apple takes 27 many steps, and undertakes substantial efforts, to safeguard such information, and keeping that 28 information confidential is important to its effectiveness. Apple operates in an intensely competitive 1 environment. Given the confidential and non-public information reflected in the portions of the 2 document that Apple seeks to seal, Apple has serious and legitimate concerns that competitors will 3 exploit any release of Apple’s highly sensitive, proprietary information in order to gain competitive 4 advantage. 5 The Court concludes Apple has demonstrated that portions of the Court’s Order Denying 6 Motion For Adverse Jury Instruction should remain sealed, as reflected in the table below. 7 D. Table Summarizing Portions Of Documents To Remain Sealed 8 For good cause shown, the Court Orders that the portions of the documents identified below, 9 by page and line number, should remain under seal. 10 11 Document Name Dkt. No. Page & Lines 12 Exhibit N to the Declaration 158-5 Entire document 13 of Jason Lo in Support of Apple’s Opposition to 14 AliveCor’s Motion for An Adverse Jury Instruction 15 Exhibit O to the Declaration 159-1 Entire document of Jason Lo in Support of 16 Apple’s Opposition to AliveCor’s Motion for An 17 Adverse Jury Instruction Plaintiff AliveCor, Inc.’s 153-1 Page 1:8-12 (ending at “Watch”); 18 Motion for An Adverse Jury Page 3:10-11 (starting at “Ex. P”; Instruction Page 3:13-23 (starting at 19 how”); Page 3:n2; 20 Page 4:1-4 (ending at “market”); Page 4:8-10 (ending at “2021”);Page 5:13 (starting at 21 “on”); Page 8:20-28 (starting at “Mr. Cha”); 22 Page 9:2-5 (starting at “Apple”); Page 11:14 (starting at word after “ESI” and ending at 23 word before “thus”) Declaration of Adam 153-2 Page 1:26 (starting at “how to”); 24 Wolfson in Support of Page 3:16 (starting at the word after “ESI”); Plaintiff AliveCor, Inc.’s Page 4:3-4 25 Motion for An Adverse Jury Instruction 26 AliveCor Reply in Support of 162, 161-1, Page 3:15-16 (from word after “to any” to “Apple Motion for an Adverse Jury 163-5 Watch”); 27 Instruction Page 4:10-13 (starting at “specifically”); Page 5:1-2 (starting at “about” and ending at “apps”); 28 Page 5:3-4 (starting at “and who” and ending at “apps”); 1 Document Name Dkt. No. Page & Lines 2 Page 5:8-9 (starting at “who argued” and ending at 3 “Ex. A”); Page 5:14-16 (starting at “And, he” and ending at 4 “pressure”); Page 5:23-24 (starting at “What Apple”); 5 Page 5:n3 (starting at “Apple” and ending at “AliveCor”); 6 Page 6:1-2 (ending at “retain them”); Page 6:6-7 (starting at “on his” and ending at “the 7 company”); Page 6:13-15 (starting at “Apple had” and ending at 8 “preserve them”); Page 6:22-25 (starting at “because four” and ending at 9 “Mr. Cha”); Page 8:10 (starting at “he” and ending at “AliveCor”); 10 Page 8:14-16 (starting at “but” and ending at “benefit”); 11 Page 8:n6 (ending at “Health app”); Page 9:3-4 (starting at “it never” and ending at 12 “AliveCor”); Page 9:14-16 (starting at word after “was the” and 13 ending at “AliveCor”); Page 9:22-23 (starting at “or even” and ending at the 14 word before “to its”); Page 11:4-7 (starting at “Apple’s now”); 15 Page 12:2-3 (starting at “He” and ending at “Apple”); Page 12:6-9 (starting at “about”); 16 Page 12:25 (starting at word after “Apple’s” and ending at word before “lurked”). 17 Exhibit A to Declaration of 161-2 Entire document Adam Wolfson in Support of 18 AliveCor’s Reply in Support of AliveCor’s Motion for an 19 Adverse Jury Instruction Exhibit B to Declaration of 161-3 Entire document 20 Adam Wolfson in Support of AliveCor’s Reply in Support 21 of AliveCor’s Motion for an Adverse Jury Instruction 22 Exhibit C to Declaration of 154-5, 163-1 Page 15 (from word after “smart watch OR” to word Adam Wolfson in Support of before “apple watch”); 23 AliveCor’s Motion for an Page 15 (from word after “smart watch OR” to word Adverse Jury Instruction before “NEAR/30 (fda”); 24 Page 15 (from word after “smart watch OR” to word before “NEAR/30 (application”); 25 Page 15 (from word after “smart watch OR” to word before “NEAR/30”); 26 Page 15 (from word after “irregular rhythm notification OR” to word before “OR irregular heart rhythm 27 notification”), Page 19 (from the word after “after it” to the word 28 before “that prevented”); 1 Document Name Dkt. No. Page & Lines 2 Page 19 (“from the word before “it was by” to the word 3 before “that literally”); Page 24 (from the word after “next day the” to the 4 word before “in an encrypted”); Page 24 (from the word after “has not revealed that” to 5 the word before “But we are”), Page 31 (from the word after “will be providing” to the 6 word before “Your suggestion”), Page 37 (from the word after “company) compiles” to 7 the word before “to form”); Page 37 (from the word after “release version.” To the 8 end of paragraph); Page 37 (from the word after “5.1.1.1 as to the” to the 9 word before “and for WatchOS 5.1.2”); Page 43 (from the word after “Srinivasan, about” to the 10 word before “The correspondence”); Page 43 (from the word after “Quinn Emanuel is” to 11 the end of sentence); Page 43 (from the word after “August 10, 2022 email” 12 to “attached”); Page 44 (from the word after “forward for” to the word 13 before “As we explained”); Page 44 (from the word after “firm regularly” to the 14 end of sentence); Page 44 (from the word after “Quinn has” to the word 15 before “is not adequate”); Page 44 (from the word after “Srinivasan’s letter” to 16 the end of sentence); Page 44 (from the word after “previously, noted” to the 17 word before “We are hopeful”); Page 46 (from the word after “proposal for” to the 18 word before “as described”); Page 47 (from the word after “are aware that” to the 19 word before “Cooperation with”). Exhibit E to Declaration of 154-7, 163-2 Page 3 (from the word after “called upon” to the word 20 Adam Wolfson in Support of before “Please inform”) AliveCor’s Motion for an 21 Adverse Jury Instruction Exhibit F to Declaration of 154-8, 163-3 Page 1 (the phone number after “identified as”) 22 Adam Wolfson in Support of AliveCor’s Motion for an 23 Adverse Jury Instruction Exhibit G to Declaration of 154-9, 163-4 Page 2 (the sentence listed after the numbered 24 Adam Wolfson in Support of paragraph “2” starting with “In the”) AliveCor’s Motion for an 25 Adverse Jury Instruction AliveCor, Inc.’s Opposition 169-1 Page 1:22-24 (starting with “and Apple” and ending 26 to Defendant Apple, Inc.’s with “AliveCor’s motion”); Administrative Motion for Page 1:26-28 (starting with “which AliveCor” and 27 Leave to File Sur-Reply to ending with “materials”). AliveCor, Inc.’s Motion for 28 Adverse Jury Instruction 1

31 Order Denying Motion For |Dkt. No. 178 [Page 2:3 (from word after “and” to word before “See”); 4 Adverse Jury Instruction Page 2:5-8 (from word after “(Cha Depo. 255:8-11)” to end of line 8); 5 Page 2:28-3:1 (from word after “deposition” to end of sentence); 6 Page 7:20-21 (from word after “searched” to word before “and produced”); 7 Page 9:5 (from word after “deleted” to word before “before Apple’’). 8 g || IT IS SO ORDERED 10 || DATED: June 2, 2023 J _ WHITE 1] UMited States District Judge. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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