Aya Healthcare Services, Inc. v. AMN Healthcare, Inc.

• Court: District Court, S.D. California
• Decided: April 20, 2020
• Docket: 3:17-cv-00205
• Status: Unknown

Opinion

1 2

6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9

10 AYA HEALTHCARE SERVICES, INC., Case No. 17cv205-MMA (MDD) and AYA HEALTHCARE, INC., 11 GRANTING IN PART AND Plaintiffs, DENYING DEFENDANTS’ MOTION 12 v. TO FILE DOCUMENTS UNDER SEAL; 13 AMN HEALTHCARE, INC., et al., [Doc. No. 96] 14 Defendants. GRANTING IN PART AND 15 DENYING IN PART PLAINTIFFS’ MOTION TO FILE DOCUMENTS 16 UNDER SEAL;

17 [Doc. No. 123]

18 GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ 19 MOTION TO FILE DOCUMENTS UNDER SEAL; AND 20 [Doc. No. 128] 21 GRANTING IN PART AND 22 DENYING DEFENDANTS’ MOTION TO FILE DOCUMENTS UNDER 23 SEAL;

24 [Doc. No. 131]

26 Plaintiffs Aya Healthcare Services, Inc. and Aya Healthcare, Inc. (collectively, 27 “Plaintiffs” or “Aya”) and Defendants AMN Healthcare, Inc., AMN Healthcare Services, 28 Inc., AMN Healthcare Services LLC, Medefis, Inc. (“Medefis”), and Shiftwise Inc. 1 (“Shiftwise”), (collectively, “Defendants” or “AMN”) move to file under seal certain 2 documents and exhibits in connection with Defendants’ motion for summary judgment 3 and motion to exclude certain opinion testimony by Patricia G. Donohoe (“Daubert 4 motion”). See Doc. Nos. 96, 123, 128, 131. Plaintiffs raised objections to Defendants’ 5 initial motion to seal (Doc. No. 96), see Doc. No. 102, and Defendants responded to those 6 objections. See Doc. No. 105. Plaintiffs also raised objections to Defendants’ 7 confidentiality designations in connection with Plaintiffs’ opposition to Defendants’ 8 motion for summary judgment. See Doc. Nos. 129, 130. The parties have provided 9 declarations withdrawing some of their designations and supporting other designations. 10 See Doc. Nos. 96, 101, 121, 127, 131, 139. Upon review of the parties’ submissions, the 11 Court finds these matters suitable for determination on the papers and without oral 12 argument. See SD CIVLR 7.1.d.1; Fed. R. Civ. P. 78(b). For the reasons set forth below, 13 the Court GRANTS IN PART and DENIES IN PART Defendants’ motions to file 14 documents under seal (Doc. Nos. 96, 131) and GRANTS IN PART and DENIES IN 15 PART Plaintiffs’ motions to file documents under seal (Doc. Nos. 123, 128). 16 LEGAL STANDARD 17 Courts have historically recognized a “general right to inspect and copy public 18 records and documents, including judicial records and documents.” Nixon v. Warner 19 Commc’ns, Inc., 435 U.S. 589, 597 n.7 (1978). “Unless a particular court record is one 20 ‘traditionally kept secret,’ a ‘strong presumption in favor of access is the starting point.” 21 Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting 22 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The 23 presumption of access is ‘based on the need for federal courts, although independent— 24 indeed, particularly because they are independent—to have a measure of accountability 25 and for the public to have confidence in the administration of justice.” Ctr. for Auto 26 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States 27 v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 28 When a party moves to file under seal a motion or documents attached to a motion, 1 the focus is on the underlying motion and whether it is “more than tangentially related to 2 the underlying cause of action.” Ctr. for Auto Safety, 809 F.3d at 1099. If the motion is 3 more than tangentially related to the merits, like here, the movant must show compelling 4 reasons for overcoming the presumption in favor of public access. See id. at 1096-99. 5 Generally, a party seeking to seal a judicial record can overcome the presumption 6 in favor of access by “articulat[ing] compelling reasons supported by specific factual 7 findings . . . that outweigh the general history of access and the public policies favoring 8 disclosure, such as the public interest in understanding the judicial process.” Kamakana, 9 447 F.3d at 1178 (citations omitted) (internal quotation marks omitted). “In turn, the 10 court must ‘conscientiously balance[ ] the competing interests’ of the public and the party 11 who seeks to keep certain judicial records secret.” Id. at 1179 (quoting Foltz, 331 F.3d at 12 1135). “Compelling reasons must continue to exist to keep judicial records sealed.” In 13 re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th 14 Cir. 2012) (citing Kamakana, 447 F.3d at 1179). 15 “What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the 16 trial court.’” Ctr. For Auto Safety, 809 F.3d at 1097 (quoting Nixon, 435 U.S. at 599). 17 “Examples include when a court record might be used to ‘gratify private spite or promote 18 public scandal,’ to circulate ‘libelous’ statements, or ‘as sources of business information 19 that might harm a litigant’s competitive standing.’” Id. (quoting Nixon, 435 U.S. at 598- 20 99). “The mere fact that the production of records may lead to a litigant’s 21 embarrassment, incrimination, or exposure to further litigation will not, without more, 22 compel the court to seal its records.” Kamakana, 447 F.3d at 1179 (citing Foltz, 331 F.3d 23 at 1136). 24 DISCUSSION 25 Defendants move to file under seal various exhibits in support of their motion for 26 summary judgment and Daubert motion, as well as portions of their motion for summary 27 judgment, reply memorandum in support thereof, Separate Statement of Undisputed 28 Material Facts, Response to the Separate Statement of Undisputed Material Facts, 1 Daubert motion, and reply in support thereof. See Doc. Nos. 96, 131. Plaintiffs also 2 move to file under seal their opposition memorandum to Defendants’ motion for 3 summary judgment, exhibits submitted in support thereof, and memoranda objecting to 4 certain of Defendants’ confidentiality designations. See Doc. Nos. 123, 128. 5 1. Defendants’ Motions to File Documents Under Seal (Doc. Nos. 96, 131) 6 Defendants move to file under seal three categories of information in exhibits 7 submitted in connection with their motion for summary judgment and Daubert motion 8 and in the motions themselves. Such categories are: (a) information that Defendants have 9 designated as confidential, (b) purportedly confidential information from Staffing 10 Industry Analysts (“SIA”), and (c) information that Plaintiffs have designated as 11 confidential. Plaintiffs object to Defendants’ motion to seal information to the extent 12 Defendants seek to file under seal (1) Defendants’ confidentiality and non-solicitation 13 agreements with their employees, and (2) Defendants’ contracts with other healthcare 14 staffing agencies. See Doc. Nos. 102, 103, 106. Defendants responded to Plaintiffs’ 15 objections by (1) agreeing to de-designate references to confidentiality and non- 16 solicitation agreements with employees that were previously filed publicly in state court 17 proceedings, and (2) maintaining the propriety of their designations of contracts with 18 other healthcare staffing agencies. See Doc. No. 105. The Court addresses each exhibit 19 and source of information subject to Defendants’ requests in turn. 20 a. Exhibit 1 21 Exhibit 1 is a contract memorializing an agreement between Defendants and 22 Plaintiffs to terminate their “prior agreements” and extend certain services provided by 23 Plaintiffs under such prior agreements. Defendants assert that the termination agreement 24 is among those contracts properly designated by Defendants as “Confidential” or “Highly 25 Confidential – Attorneys’ Eyes Only” under the Protective Order because it, like the 26 other designated contracts, contains “detailed, non-public, confidential information 27 concerning AMN’s commercial relationships, including its agreements with Aya and 28 other third parties, its business dealings with Aya and other third parties, its contract 1 negotiation and other business strategies.” Doc. No. 96-1 at 3; see also Doc. No. 96-4 at 2 2. The Court finds that Defendants have failed to articulate compelling reasons to seal 3 the termination agreement in its entirety. The fact that the parties have terminated their 4 prior business relationships does not appear to warrant sealing, since this is a fact alleged 5 by Plaintiffs publicly and is key to Plaintiffs’ theory of retaliatory damages. See, e.g., 6 Doc. Nos. 37 at 44, 64. Therefore, the Court cannot conclude that the strong presumption 7 of public access to judicial records is outweighed here by Defendants’ interest in 8 maintaining secrecy over the terms of the termination agreement with Plaintiffs. While 9 the parties may be able to articulate to the Court why discrete portions of the termination 10 agreement should be sealed, it is not this Court’s duty to speculate what those reasons 11 might be. Kamakana, 447 F.3d at 1182 (“When sealing documents attached to a 12 dispositive pleading, a district court must base its decision on a compelling reason and 13 articulate the factual basis for its ruling, without relying on hypothesis or conjecture.”) 14 (internal citation, quotation marks, and emphasis omitted). As such, the Court DENIES 15 Defendants’ request to seal Exhibit 1. However, this ruling is without prejudice to 16 Defendants filing, if they so choose, a renewed motion no later than ten (10) business 17 days from the date this Order is filed setting forth compelling reasons to seal portions of 18 Exhibit 1. 19 b. Exhibit 2 20 Exhibit 2 is an “Associate Vendor Agreement” between Defendants and Plaintiffs. 21 Defendants assert that the agreement should be sealed because it, like the other 22 designated contracts, contains “detailed, non-public, confidential information concerning 23 AMN’s commercial relationships, including its agreements with Aya and other third 24 parties, its business dealings with Aya and other third parties, its contract negotiation and 25 other business strategies.” Doc. No. 96-1 at 3; see also Doc. No. 96-4 at 2-3 (stating that 26 disclosure of such a contract would harm Defendants’ competitive standing and have a 27 chilling effect on Defendants’ ability to negotiate the terms of future associate vendor 28 agreements). The Court agrees that compelling reasons exist to seal this information. 1 See In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK, 2014 WL 10537440, at *5 2 (N.D. Cal. Aug. 6, 2014) (granting motion to seal Google’s Apps contract because the 3 specific terms constitute trade secrets that would cause Google competitive harm if 4 disclosed publicly). Unlike the termination agreement discussed above, the associate 5 vendor agreement between the parties is discussed specifically by Defendants’ President 6 of Professional Services and Staffing in a declaration as “reflect[ing] terms upon which 7 AMN is willing to do business with its associate vendors” and other competitively 8 sensitive business information, such as pricing and fill requirements. See Doc. No. 96-4 9 at 3. As such, the specific terms of the agreement constitute trade secrets that present a 10 threat of competitive harm to Defendants if the terms are disclosed publicly. The Court 11 GRANTS Defendants’ request to seal Exhibit 2 and references thereto. For the reasons 12 discussed in detail below, the Court overrules Plaintiffs’ objection to Defendants’ request 13 to seal their associate vendor agreements and references thereto. 14 c. Exhibit 3 15 Exhibit 3 is a chart reflecting certain terms of the associate vendor agreements 16 between the parties. The Court agrees that compelling reasons exist to seal Exhibit 3 and 17 references thereto. The specific terms of Defendants’ associate vendor agreements 18 constitute trade secrets that, if disclosed, could cause competitive harm to Defendants. In 19 re Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. Thus, the Court 20 GRANTS Defendant’s request to seal Exhibit 3. 21 d. Exhibits 5, 6, and 18 22 Exhibits 5, 6, and 18 are various reports on statistics in the healthcare staffing 23 industry by SIA. Defendants assert that the reports should be sealed because “SIA makes 24 these reports and lists available for a fee and recipients of SIA materials agree to keep the 25 materials confidential.” Doc. No. 96-1 at 7; see also Doc. No. 96-4 at 4-5. The Court 26 agrees that compelling reasons exist to seal the SIA reports and references thereto. See 27 McMorrow v. Mondelez Int’l, Inc., No. 17-CV-2327-BAS-JLB, 2020 WL 406314, at *3 28 (S.D. Cal. Jan. 24, 2020) (granting motion to seal portions of reports that contain market 1 research data by a third party market research company). Accordingly, the Court 2 GRANTS Defendants’ request to seal Exhibits 5, 6, and 18. 3 e. Exhibits A and B 4 Exhibits A and B to the Declaration of Amanda Fitzsimmons in support of 5 Defendants’ Daubert motion are excerpts of the report and deposition, respectively, of 6 Plaintiffs’ putative expert, Patricia G. Donohoe. Defendants assert that the Court should 7 grant their motion to seal references made in Exhibits A and B to: (i) associate vendor 8 agreements between Defendants and third parties and employee confidentiality and non- 9 competition agreements, (ii) Defendants’ vendor management agreements and managed 10 service provider agreements, (iii) a settlement agreement and amendments thereto 11 between Defendants and a third party (“Settlement Agreement”), and (iv) Defendants’ 12 other confidential and proprietary business documents and communications. Doc. Nos. 13 96-4 at 2; 96-1 at 3-7. The Court addresses these requests in turn. 14 i. Defendants’ Associate Vendor Agreements and Employee 15 Confidentiality and Non-Competition Agreements 16 Plaintiffs object to Defendants’ motion to seal associate vendor agreements, 17 affiliated vendor agreements, supplier agreements, and employee confidentiality and non- 18 competition agreements. See Doc. Nos. 102, 106. Plaintiffs argue that the associate 19 vendor agreements and references thereto should not be sealed because they are “non- 20 negotiable, boilerplate” contracts, “which AMN has successfully prevailed on most of its 21 competitors to accept without negotiation.” Doc. Nos. 102 at 9-14; 106 at 1-2. Plaintiffs 22 also argue that the confidentiality and non-competition agreements and references thereto 23 should not be sealed because these agreements were previously disclosed publicly by 24 Defendants in state court filings. See Doc. No. 7-8. Defendants responded to these 25 objections by withdrawing its request to seal the portions of the Donohue Report that 26 reference the provisions in Defendants’ confidentiality and non-competition agreements 27 with their employees. See Doc. No. 105 at 2. Defendants also argued that Plaintiffs’ 28 objections to the sealing of the various associate vendor agreements are meritless because 1 the counterparties expect the agreements to remain confidential, and because the evidence 2 cited by Plaintiffs does not show that most of Defendants’ competitors know the terms in 3 the agreements. See Doc. No. 105 at 2-4. 4 First, the Court agrees that the references in the Donohoe Report and deposition to 5 provisions in Defendants’ confidentiality and non-competition agreements with 6 employees should not be sealed since such agreements were previously disclosed 7 publicly by Defendants in prior court proceedings. See Fed. Trade Comm’n v. 8 Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 2317835, at *6 (N.D. Cal. May 22, 9 2018) (denying motion to seal documents already filed publicly on the court’s docket). 10 Accordingly, the Court DENIES Defendants’ request to seal references in the Donohoe 11 Report and deposition to Defendants’ confidentiality and non-competition agreements 12 with employees. 13 Second, the Court agrees with Defendants that compelling reasons exist to seal the 14 associate vendor agreements, affiliated vendor agreements, and supplier agreements. 15 Plaintiffs’ argument that Defendants have successfully executed such agreements with 16 various staffing agencies misses the mark. The counterparties to these agreements are 17 aware of the terms embodied in their individual, respective agreements with Defendants, 18 but that does not mean each of the counterparties actually know the terms embodied in 19 Defendants’ separate agreements with other healthcare staffing agencies. Nor does it 20 follow that the contractual terms in these agreements do not constitute trade secrets that 21 warrant sealing. Unlike the employee confidentiality and non-competition agreements, 22 the agreements with healthcare staffing agencies have not been publicly disclosed. Thus, 23 as discussed above, the contractual terms embodied in these agreements constitute trade 24 secrets such that the agreements and references thereto should be sealed. See In re 25 Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. Accordingly, the Court 26 overrules Plaintiffs’ objection and GRANTS Defendants’ request to seal references in 27 the Donohoe Report and deposition to the associate vendor agreements, affiliated vendor 28 agreements, and supplier agreements. 1 ii. Defendants’ Vendor Management Agreements and Managed Service 2 Provider Agreements 3 Defendants also request to seal references in the Donohoe Report to vendor 4 management agreements and managed service provider agreements. Doc. Nos. 96-1 at 3- 5 5; 96-4 at 2-3. Defendants assert that the information in these agreements is 6 competitively sensitive business information, the disclosure of which would cause them 7 irreparable harm because it would provide Defendants’ competitors the terms and 8 business practices with Defendants’ clients and thereby give competitors an unfair 9 competitive advantage. See Doc. 96-1 at 4. The Court agrees that compelling reasons 10 exist to seal references to these agreements in the Donohoe Report and deposition. See In 11 re Google Inc. Gmail Litig., supra, 2014 WL 10537440, at *5. The Court therefore 12 GRANTS Defendants’ request to seal portions of the Donohoe Report and deposition 13 that reference Defendants’ vendor management agreements and managed service 14 provider agreements. 15 iii. Settlement Agreement 16 Defendants next request that references in the Donohoe Report and deposition to 17 the Settlement Agreement1 with a third party be sealed. Defendants assert that the 18 Settlement Agreement contains “competitively sensitive business information, the 19 disclosure of which would . . . provide others in the market with information . . . 20 regarding Defendants’ terms and practices with respect to its relationships with third 21 parties in settling disputes” and “deprive the [settling] parties . . . of the benefit of their 22 bargain for confidentiality.” Doc. No. 96-1 at 5; see also Doc. No. 96-4 at 3. The Court 23 is convinced these are compelling reasons to seal references to the Settlement Agreement 24

25 26 1 It appears Defendants also request that the Settlement Agreement itself be filed under seal, as Defendants were under the impression that they “identified [it] in Exhibit A” of the Henderson 27 Declaration. Doc. No. 96-1 at 5. However, Exhibit A to the Henderson Declaration does not identify 28 the Settlement Agreement, and therefore the Court only addresses Defendants’ request to seal references 1 in the Donohoe Report and deposition. See San Diego Comic Convention v. Dan Farr 2 Prods., No. 14-CV-1865 AJB (JMA), 2018 WL 2717880, at *1 (S.D. Cal. June 5, 2018) 3 (granting motion to seal references to confidential settlement discussions); Brightwell v. 4 McMillan Law Firm, No. 16-CV-1696 W (NLS), 2017 WL 5885667, at *1–2 (S.D. Cal. 5 Nov. 29, 2017) (sealing communications regarding the terms of a settlement). The Court 6 therefore GRANTS Defendants’ request to seal portions of the Donohoe Report and 7 deposition that reference the Settlement Agreement. 8 iv. Defendants’ Other Confidential and Proprietary Business 9 Documents and Communications 10 Defendants further seek to file under seal other confidential and proprietary 11 business documents and communications referenced in the Donohoe Report. See Doc. 12 No. 96-1 at 6. Defendants assert that such information includes “strategic documents and 13 business review materials . . . relating to AMN’s strategic objectives, competitive 14 analyses, financial information, and other proprietary information.” Id. In the Henderson 15 Declaration, Defendants elaborate that such confidential information includes their 16 responses to requests for information or for proposals from hospitals, strategic documents 17 and business review materials, email correspondence between Defendants and third party 18 clients or associate vendors concerning agreements and business dealings with these third 19 parties, and “[o]ther reports prepared strictly for AMN’s use.” See Doc. No. 96-4 at 2-4. 20 The Court agrees that compelling reasons exist to seal references in the Donohoe Report 21 to Defendants’ proprietary business records that detail sensitive financial terms, 22 proprietary business strategies, and confidential negotiations and agreements with third 23 parties. See In re Qualcomm Litig., No. 317CV00108GPCMDD, 2019 WL 1557656, at 24 *3 (S.D. Cal. Apr. 10, 2019) (granting motions to seal “confidential business information 25 of the parties, including trade secrets, proprietary business records, discussions of internal 26 strategy, company dealings, and materials designated as ‘Highly Confidential’”). 27 Therefore, the Court GRANTS Defendants’ request to the extent the Donohoe Report 28 and depositions contain references to information detailing Defendants’ sensitive 1 financial terms, proprietary business strategies, and confidential negotiations and 2 agreements with third parties. 3 f. Information Designated by Plaintiffs as Confidential 4 Defendants also request that the Court permit them to file under seal information 5 designated by Plaintiffs as “Confidential” or “AEO.” See Doc. Nos. 96-1 at 7-8; 131-1 at 6 1. Plaintiffs have submitted declarations withdrawing some of its prior designations and 7 explaining the grounds for other designations of exhibits submitted by Defendants in 8 support of their motion for summary judgment. See Doc. Nos. 101, 139. The Court has 9 reviewed Plaintiffs’ grounds for such designations in Exhibits 4, 6, 7, 8, 9, 11, 13, and 14 10 submitted by Defendants in support of their motion for summary judgment, and finds 11 compelling reasons to seal references in the Exhibits 4, 6, 7, 8, 9, 11, 12, and 14 to 12 Plaintiffs’ customer names, sales revenues and financial records, names of Plaintiffs’ 13 employees, Plaintiffs’ compensation arrangements with healthcare staffing professionals 14 and associate vendors, and Plaintiffs’ confidential business practices. See In re 15 Qualcomm Litig., supra, 2019 WL 1557656, at *3 (granting motions to seal “confidential 16 business information of the parties, including trade secrets, proprietary business records, 17 discussions of internal strategy, company dealings, and related materials designated as 18 ‘Highly Confidential’”). Plaintiffs have modified their designations so that they are 19 narrowly tailored to the aforementioned proprietary information, withdrawing some of 20 their designations in Exhibits 4, 6, 7, 8, 9, 12, and 14, and all of their designations in 21 Exhibit 13. Accordingly, the Court GRANTS Defendants’ request to seal portions of 22 Exhibits 4, 6, 7, 8, 9, 12, and 14 and DENIES Defendants’ request to seal portions of 23 Exhibit 13, in accordance with Plaintiffs’ modified designations. See Doc. No. 101 at 2- 24 3. 25 g. Defendants’ Memoranda 26 Defendants’ request that they be permitted to file under seal portions of their 27 motion for summary judgment, Daubert motion, reply briefs in support of such motions, 28 Separate Statement of Undisputed Material Facts, and Response to the Separate 1 Statement of Undisputed Material Facts (“SS Response”) that reference information that 2 this Court finds warrants sealing. See Doc. Nos. 96-1 at 1-2, 9; 131 at 1-5. The Court 3 GRANTS IN PART and DENIES IN PART Defendants’ request in accordance with 4 the Court’s rulings herein concerning the underlying information. No later than ten (10) 5 business days from the date this Order is filed, Defendants must file an appropriately 6 redacted version of its motion for summary judgment, Daubert motion, reply briefs in 7 support of such motions, Separate Statement of Undisputed Material Facts, and SS 8 Response. 9 2. Plaintiffs’ Motion to File Documents Under Seal (Doc. No. 123) 10 Plaintiffs request the Court’s leave to file documents under seal in connection with 11 their opposition to Defendants’ motion for summary judgment. See Doc. No. 123. The 12 categories of documents subject to Plaintiffs’ motion to seal are Plaintiffs’ own 13 information designated as confidential, information designated by third parties as 14 confidential, and information designated by Defendants as confidential. The Court 15 addresses each category in turn. 16 a. Plaintiffs’ Confidential Information 17 Plaintiffs request that the Court allow them leave to file under seal portions of the 18 Declaration of Alan Braynin; the Declaration of Alexis Ogilvie; the Declaration of John 19 Martins; Exhibits 3, 4, and 5 to the Declaration of Alan Braynin; Exhibit 1 to the 20 Declaration of Jeff Pierson; Exhibits 1 and 2 to the Declaration of Alexis Ogilvie; and 21 Exhibits 1 and 2 to the Declaration of Kylie Stein. See Doc. No. 119-1. The Court has 22 reviewed the materials and hereby GRANTS IN PART and DENIES IN PART 23 Plaintiffs’ motion to seal this information. Specifically, Plaintiffs’ requests, except with 24 respect to Exhibit 4 to the Declaration of Alan Braynin, all concern Plaintiffs’ financial 25 data, customer names, settlement negotiations with Defendants, strategic business 26 information, and employee information. For the reasons discussed above, the Court 27 agrees that there are compelling reasons to seal this information. See In re Qualcomm 28 Litig., 2019 WL 1557656, at *3 (granting motions to seal “confidential business 1 information of the parties, including trade secrets, proprietary business records, 2 discussions of internal strategy, company dealings, and related materials designated as 3 ‘Highly Confidential’”). 4 Separately, Plaintiffs appear to have mistakenly included Exhibit 4 to the 5 Declaration of Alan Braynin. This exhibit is Defendants’ employee confidentiality and 6 non-competition agreement. See Doc. No. 108-92. The Court has already ruled that 7 there is no compelling reason to seal references to such agreements, which were disclosed 8 in public state court filings. Therefore, the Court DENIES Plaintiffs’ request to file the 9 document under seal, consistent with the Court’s prior ruling. 10 b. Third Parties’ Confidential Information 11 Plaintiffs also request that the Court allow them leave to file under seal certain 12 information designated by third parties as confidential. The only reason for this request 13 is because the parties have agreed to respect the confidentiality designations of third 14 parties. See Doc. No. 123 at 2. The Court DENIES the request. An agreement to treat 15 information designated by a third party as confidential under a protective order is 16 insufficient to justify sealing the information. See Nalco Co., v. Turner Designs, Inc., 17 No. 13-CV-02727 NC, 2014 WL 12642193, at *4 (N.D. Cal. Oct. 30, 2014) (denying 18 motion to seal certain information designated by a third party as confidential under a 19 protective order absent a supporting declaration); U.S. Ethernet Innovations, LLC v. Acer, 20 Inc., No. C 10-3724 CW, 2013 WL 4426507, at *2 (N.D. Cal. Aug. 14, 2013) (same). 21 However, this ruling is without prejudice to Plaintiffs filing, if they so choose, a renewed 22 motion no later than ten (10) business days from the date this Order is filed setting forth 23 compelling reasons, supported by declarations from the designating third parties, as to 24 why such information should be sealed. 25 c. Defendants’ Confidential Information 26 Plaintiffs further seek to file under seal certain information designated by 27 Defendants as confidential. See Doc. No. 123. Defendants submitted a declaration 28 addressing which exhibits in support of Plaintiffs’ opposition should be sealed in whole 1 or in part and withdrawing some designations. See Doc. No. 127. Plaintiffs objected to 2 Defendants’ designations. See Doc. Nos. 129, 130. The Court has reviewed the parties’ 3 submissions and GRANTS IN PART and DENIES IN PART Plaintiffs’ motion to seal 4 information designated by Defendants. The below chart sets forth the Court’s rulings.2 5

6 Markham Defendants’ Court’s Ruling on Plaintiffs’ Motion to Seal Declaration Designation 7 Exhibit 8 7 55:1-4; 56:7-17 GRANTED IN PART and DENIED IN PART. There is no compelling reason to seal 55:1-4, since the 9 deposition excerpt is unclear as to what is being 10 discussed as an alternative to “a locally available nurse to perform an assignment.” There is, however, a 11 compelling reason to seal 56:7-17 as non-public, 12 proprietary information showing where Defendants do and do not serve a customer’s hospitals. 13 11 152:1-6; GRANTED IN PART and DENIED IN PART. There 14 153:21-25 is no compelling reason to seal 152:1-6, as this testimony only concerns a vague question posed to the 15 third party. There is, however, a compelling reason for 16 Defendants to request 153:21-25 be sealed, since this testimony concerns proprietary information regarding 17 how Defendants pay their recruiter employees. 18 13 5:7-17 GRANTED. The designated portion is a chart reflecting the number of certain employees Defendants 19 have employed on average each year since January 1, 20 2010. Plaintiffs fail to provide any support for its bare assertion that Defendants have “publicly disclosed 21 comparable information.” On the other hand, 22 Defendants have supported their designation with a sworn statement from its President of Professional 23 Services and Staffing that disclosure of the statistics, 24 which is non-public confidential information, would 25

26 2 The Court has observed certain objections to purported designations of exhibits even where Defendants 27 have not requested the information be sealed. See, e.g., Doc. No. 129-1 at 4 of 29 (stating reasons for 28 not sealing Exhibit 20 even though Defendants have not designated the exhibit). The Court will not 1 provide competitors “with information they would not otherwise have about AMN’s business and strategy.” 2 The Court agrees with Defendants that compelling 3 reasons exist to seal Defendants’ employee statistics. 15 Entire DENIED. Exhibit 15 is an internal script for 4 Document Defendants’ third-quarter earnings call. The Court finds 5 that Defendants have failed to provide a particularized, compelling reason as to how they would suffer prejudice 6 by disclosure of the internal script. It is insufficient that 7 Defendants merely view the internal script as “something that AMN considers and treats as 8 confidential.” Doc. No. 127-4 at 6. 9 16 Entire GRANTED IN PART and DENIED IN PART. The Document Court agrees that the internal email between Defendants’ 10 employees does not warrant sealing in its entirety. At 11 most, Defendants have a compelling reason to seal the email to the extent it reveals Defendants’ most valuable 12 partners and suppliers other than Plaintiffs. As 13 discussed above, the fact that Plaintiffs and Defendants have terminated their prior business relationships is 14 publicly available information. Therefore, the Court 15 orders that the following statements concerning Plaintiffs be unredacted, while the remaining portions 16 may be redacted. 17 • At AMN0000444334: “For Aya, we need to discuss with Landry/Ralph as they have hired 18 several (13 I think) of our internal team members 19 and therefore are looking at suspending them as an AV from what I understand.” 20 • At id.: “Yikes - didn't know that about Aya...they 21 have been our largest for the past 2 years and I 22 know they are probably on most of our MSPs at this point...” 23 17 494:14-15; DENIED. The testimony designated by Defendants 24 496:125 concerns the information discussed above that the Court finds should be unsealed. Defendants have not provided 25 a compelling reason for sealing such information. 26 19 184:18-25; DENIED. The testimony designated by Defendants 193:1-25 concerns Defendants’ employee confidentiality and non- 27 competition agreements. As discussed above, 28 Defendants have admitted that these agreements were 1 filed publicly in state court proceedings and accordingly have withdrawn similar designations referencing the 2 terms of the agreements. Therefore, the Court finds 3 Defendants have failed to provide a compelling reason for sealing deposition testimony concerning the 4 employee confidentiality and non-competition 5 agreements. See Fed. Trade Comm'n v. Qualcomm Inc., supra, 2018 WL 2317835, at *6. 6 22 205:5-7; GRANTED IN PART and DENIED IN PART. The 7 205:18-25; testimony designated by Defendants at 205:5-7, 205:18- 208:2-7; 277:1- 25, 208:2-7, 277:1-23, and 403:1-6 concerns 8 23; 357:24-25; Defendants’ employee confidentiality and non- 9 358:11-12; competition agreements. For the reasons noted above, 359:3-7; 403:1- the Court finds Defendants have failed to provide a 10 6; 425:22-25 compelling reason for sealing deposition testimony 11 concerning the employee confidentiality and non- competition agreements. See Fed. Trade Comm'n v. 12 Qualcomm Inc., supra, 2018 WL 2317835, at *6. The 13 testimony designated by Defendants at 357:24-25 and 358:11-12 concern the names of their customers. For 14 the reasons discussed above with respect to Plaintiffs’ 15 customers’ names, the Court finds that such testimony warrants sealing. The testimony designated by 16 Defendants at 359:3-7 and 425:22-25 concerns the 17 platform agreement for Medefis. The Court agrees with Defendants that there are compelling reasons to seal this 18 information as non-public information concerning 19 Defendants’ proprietary contractual agreements. See In re Google Inc. Gmail Litig., supra, 2014 WL 10537440, 20 at *5. 21 26 350:16-25; GRANTED. The testimony designated by Defendants 351:1-8; concerns a customer’s name and the purposes of their 22 351:12-25; associate vendor agreement. For the reasons discussed 23 352:1-10; above with respect to customer names and the associate 353:21 vendor agreements, the Court agrees that compelling 24 reasons support the sealing of this information. 25 27 143:1-15 GRANTED as to 143:5-15. This testimony concerns a third party’s associate vendor relationship with 26 Defendants pursuant to their associate vendor 27 agreement. For the reasons discussed above with respect to the associate vendor agreements, the Court agrees that 28 1 compelling reasons support the sealing of this information. 2 28 179:6-25; GRANTED. The third party’s testimony concerns the 3 181:1-20; purpose and terms of the associate vendor agreement 181:23-182:17 with Defendants. For the reasons discussed above with 4 respect to the associate vendor agreements, the Court 5 agrees that compelling reasons support the sealing of this information. 6 29 192:13-193:10; GRANTED. The testimony designated by Defendants 7 193:11-194:7; concerns the purpose of terms of Defendants’ associate 194:8-195:12; vendor agreements. For the reasons discussed above 8 195:23-196:3; with respect to the associate vendor agreements, the 9 196:10-197:9; Court agrees that compelling reasons support the sealing 197:10-19; of this information. 10 197:20-23; 11 198:8-20; 198:21-199:3; 12 199:5-10; 13 199:11-13; 199:14-200:3; 14 200:4-201:6; 15 201:11-14; 201:23– 16 202:11; 17 202:12-15; 202:16-203:7; 18 203:8-13; 19 203:14-25; 204:1-7; 20 204:14-20; 21 205:9-206:16; 206:21-209:3; 22 209:21-25 23 33 118:21-119:4 GRANTED. The testimony designated by Defendants 119:10-25 concerns the commission that Medefis earns pursuant to 24 the terms of a platform agreement, which the Court has 25 already ruled is sealable information. The designated testimony is also narrowly tailored to encompass only 26 this confidential information. 27 33.1 49:23-25 GRANTED. The testimony designated by Defendants concerns the amount of travel nurses that Defendants 28 1 place via the Medefis platform—a statistic that is confidential, non-public business information. 2 34 138:1-11; GRANTED. As Plaintiffs recognize, the designated 3 139:1-10; testimony concerns Defendants’ contract with a third 139:21-140:14; party customer and those parties’ performance of the 4 140:15-19; terms of that contract. For the reasons set forth above, 5 141:11-142:12; the Court agrees there are compelling reasons to seal 142:24-143:9; references to Defendants’ contractual terms with their 6 143:12-147:12; customers, including performance thereof. 7 147:20-151:25 35 Entire GRANTED. Exhibit 35 is a platform agreement 8 Document between Medefis and a third party customer. For the 9 reasons set forth above with respect to Defendants’ non- public contracts, Exhibit 36 may be sealed. 10 36 Entire GRANTED. Exhibit 36 is a platform agreement 11 Document between Medefis and a third party associate vendor. For the reasons set forth above with respect to Defendants’ 12 non-public contracts, Exhibit 36 may be sealed. 13 37 301:1-304:1; GRANTED. The testimony designated by Defendants 304:10-309:25 concerns contractual performance pursuant to a platform 14 agreement between Shiftwise and Plaintiffs. For the 15 reasons set forth above with respect to Defendants’ non- public contracts, Exhibit 37 may be sealed in accordance 16 with Defendants’ designations. 17 38 Entire GRANTED. Exhibit 38 is a platform agreement 18 Document between Shiftwise and a third party customer. For the reasons set forth above with respect to Defendants’ non- 19 public contracts, Exhibit 38 may be sealed. 20 39 Entire GRANTED. Exhibit 39 is a draft supplier service Document agreement for the Shiftwise platform. For the reasons 21 set forth above with respect to Defendants’ non-public 22 contracts, Exhibit 39 may be sealed. 41 AMN Depo. GRANTED. The testimony designated by Defendants 23 383:10-384:13; concerns the manner in which the billing rate is set for a 24 384:21-25 CHI third party customer pursuant to a platform agreement Depo. 107:18- between that third party and Shiftwise. The manner in 25 24 which Defendants set their billing rate for a customer 26 pursuant to a confidential agreement between those parties is proprietary information that warrants sealing. 27 See In re Google Inc. Gmail Litig., supra, 2014 WL 28 10537440, at *5; In re Qualcomm Litig., supra, 2019 1 WL 1557656, at *3. Plaintiffs’ objection, that Alan Braynin spoke to this topic in his declaration, is 2 OVERRULED. Mr. Braynin noted the commonsense 3 point that Defendants and customers negotiate prices for the Shiftwise platform, but provided no particular detail 4 as to how the prices are negotiated and set. 5 42 125:12-17; GRANTED. The testimony designated by Defendants 125:19-21; concerns the contractual terms of a Medefis platform 6 125:23-25; agreement with a third party associate vendor. For the 7 131:3-9; reasons set forth above with respect to Defendants’ non- 131:15-25; public contracts, the designated testimony in Exhibit 42 8 132:1-5; may be sealed. 9 132:12; 132:14-25 10 43 63:21-64:23; GRANTED. The testimony designated by Defendants 11 65:19-25 concerns the contractual terms of a Medefis platform agreement with a third party customer. For the reasons 12 set forth above with respect to Defendants’ non-public 13 contracts, the designated testimony in Exhibit 43 may be sealed. 14 44 31:3-25; 36:3- GRANTED. The testimony designated by Defendants 15 13 concerns their contractual relationship with a third party customer. For the reasons set forth above with respect to 16 Defendants’ non-public contracts, the designated 17 testimony in Exhibit 44 may be sealed. 45 Entire GRANTED. Exhibit 45 is a managed service provider 18 Document agreement between Defendants and a third party 19 customer. For the reasons set forth above with respect to Defendants’ non-public contracts, the designated 20 testimony in Exhibit 45 may be sealed. 21 47 205:5-7; DENIED. The testimony designated by Defendants 22 205:18- 206:25 concerns how often they have sent cease and desist letters to former employees concerning their obligations 23 under Defendants’ employee confidentiality and non- 24 solicitation agreements. Defendants have already agreed to withdraw its request to seal portions of the Donohoe 25 Report referencing the provisions of such agreements. 26 See Doc. No. 105 at 2. Defendants have not provided a compelling reason to support their designation of 27 testimony concerning cease and desist letters that they 28 sent to enforce the terms of such agreements. 1 50 88:10-89:4; DENIED. The testimony designated by Defendants 89:14-90:10; concerns an oral agreement between one of its 2 93:14-94:11; employees and an employee of a third party healthcare 3 94:12-13; staffing agency. Defendants make a passing reference to 94:22-95:1; the agreement and correspondence concerning it in a 4 95:3-25; 115:1- declaration as “contain[ing] detailed, non-public, 5 4; 115:5-9; confidential information concerning AMN’s commercial 115:19-116:8; relationships . . ..” Doc. 127-4 at 6. But this general 6 116:9-11; explanation of Defendants’ view of the oral agreement 7 116:12-117:22; as confidential is not a compelling reason and provides 117:23-118:14; no credible basis for concluding Defendants would 8 118:25 suffer prejudice or “irreparable harm” by disclosure of 9 references to the oral agreement. 51 Entire DENIED. Exhibit 51 includes several email exchanges 10 Documents between employees from Defendants and a third party 11 healthcare staffing agency concerning the oral agreement discussed directly above in Exhibit 50. For the same 12 reasons provided above, Defendants have failed to 13 provide a compelling reason to seal Exhibit 51. 52 102:1-17; DENIED. The testimony designated by Defendants 14 102:19-103:19 concerns the oral agreement discussed above in Exhibits 15 50 and 51. For the same reasons provided above, Defendants have failed to provide a compelling reason to 16 seal Exhibit 52. 17 53 Entire GRANTED. Exhibit 53 is the settlement agreement Document between Defendants and a third party healthcare staffing 18 agency. For the reasons provided above with respect to 19 Defendants’ motion to seal references to the Settlement Agreement, the Court will allow the Settlement 20 Agreement to be sealed in its entirety. 21 54 247:1-2; 247:9- GRANTED IN PART and DENIED IN PART. As to 16; 247:17-21 247:9-16 and 247:17-21, the testimony concerns the 22 Settlement Agreement discussed above with respect to 23 Exhibit 53. For the same reasons provided there, Exhibit 54 may be sealed as to 247:9-16 and 247:17-21. The 24 designated testimony at 247:1-2 do not reference any 25 confidential information and therefore does not warrant sealing. 26 56 248:2-6; GRANTED IN PART and DENIED IN PART. 27 248:13; 249:4- Except as to 248:13, 249:16, and 251:11, which do not 28 10; 249:11-13; reference any confidential information, the testimony 1 249:16; 250:4- designated by Defendants concerns contractual 9; 250:14-19; performance of the Settlement Agreement discussed 2 250:22-251:3; above. For the same reasons set forth above, such 3 251:11 and testimony may be sealed. email 4 correspondence Plaintiffs correctly note that Defendants have not 5 identified the email correspondence that follows the deposition testimony presented in Exhibit 56. Therefore, 6 the Court must defer ruling on whether the information 7 may be sealed. However, Defendants’ oversight likely resulted from Plaintiffs presenting the email 8 correspondence subsequent to the deposition testimony, 9 as opposed to presenting the correspondence in a separate exhibit. Accordingly, Defendant may designate 10 the correspondence and identify any compelling reason 11 for sealing the same no later than ten (10) days from the date this Order is filed. 12 57 Entire GRANTED. Exhibit 57 includes an amendment to the 13 Amendment Settlement Agreement between Defendants and a third and Henderson party healthcare staffing agency, as well as deposition 14 Depo. 542:22- testimony concerning the amendment. For the reasons 15 543:1; 543:5- set forth above, the amendment and references thereto 13; 543:16-24 may be sealed. 16 77 527:1-529:8; DENIED. The testimony designated by Defendants 17 529:12-25; concern their communication with a third party customer 531:1-16; regarding a disruption of services that may be due in part 18 531:22-24; to a disagreement between Defendants and Plaintiffs. 19 532:2-15; Defendants have not provided a particularized, 532:21-22 compelling reason for sealing this information. 20 78 Entire DENIED. Exhibit 78 is email correspondence between 21 Document employees of Defendants and employees of a third party customer regarding a disruption of services that may be 22 due in part to a disagreement between Defendants and 23 Plaintiffs. As noted above, Defendants have not provided a particularized, compelling reason for sealing 24 this information. 25 79 113:3-6; DENIED. The testimony designated by Defendants 113:22-25; concerns the oral agreement discussed above in Exhibits 26 98:9-12; 98:14- 50, 51, and 52. For the same reasons provided above, 27 99:6; 99:8- Defendants have failed to provide a compelling reason to seal Exhibit 79. 28 1 100:8; 100:23- 25 2

3 3. Plaintiffs’ Opposition Memorandum 4 Plaintiffs further request permission to file under seal portions of their opposition 5 memorandum to Defendants’ motion for summary judgment. See Doc. No. 123 at 2. 6 The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ request. Plaintiffs 7 must file under seal portions of their opposition memorandum in accordance with the 8 Court’s rulings on the parties’ sealing requests herein. 9 4. Plaintiffs’ Motion to File Documents under Seal (Doc. No. 128) 10 Plaintiffs additionally request permission to file under seal their Reply to 11 Defendants’ Arguments on Sealing Evidence and an accompanying Appendix A. See 12 Doc. No. 128. The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ 13 request. Plaintiffs must file under seal those portions of such filings that reference 14 information that the Court has ruled herein warrants sealing. 15 5. The Donohoe and Rothman Reports 16 The parties have also requested permission to file under seal portions of the 17 Donohoe and Rothman Reports as well as references thereto. See Doc. Nos. 96-1 at 3-4, 18 6-8; 123 at 2; 127-2 at 3; 131-1 at 4. Plaintiffs have not requested the Court’s permission 19 to file under seal portions of the reports that reference their purported confidential 20 information, but Plaintiffs indicate they are prepared to de-designate the reports in 21 accordance with the Court’s ruling. See Doc. No. 106 at 3. The Court understands that 22 only Defendants’ designated information is referenced in the reports, and the Court has 23 already ruled on Defendants’ sealing requests with respect to such designated 24 information. Therefore, the Court GRANTS IN PART and DENIES IN PART the 25 parties’ requests to file the reports and references thereto under seal. The parties must 26 file the reports and references thereto under seal to the extent they reference information 27 that the Court has concluded herein warrants sealing. 28 CONCLUSION 1 Based on the foregoing, the Court: 2 • GRANTS IN PART and DENIES IN PART Defendants’ motion to file 3 documents under seal (Doc. No. 96). Specifically, the Court GRANTS 4 Defendants’ motion with respect to Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 12, 14, and 18. 5 The Court also GRANTS Defendants’ motion with respect to Defendants’ request 6 to seal references in their motion for summary judgment, Daubert motion, 7 Defendants’ Separate Statement of Undisputed Material Facts, Exhibit A (the 8 Donohoe Report), and Exhibit B (the Donohoe deposition) to Defendants’ 9 associate vendor agreements, affiliated vendor agreements, supplier agreements, 10 vendor management agreements, managed service provider agreements, Settlement 11 Agreement, and proprietary business records that detail sensitive financial terms, 12 proprietary business strategies, and confidential negotiations and agreements with 13 third parties. The Court DENIES Defendants’ motion with respect to Defendants’ 14 request to seal Exhibits 1 and 13 and references in Exhibit A (the Donohoe Report) 15 and Exhibit B (the Donohoe deposition) to Defendants’ confidentiality and non- 16 competition agreements with employees. Defendants may file a renewed motion 17 no later than ten (10) business days from the date this Order is filed setting forth 18 compelling reasons to seal portions of Exhibit 1. Accordingly, the Court 19 DIRECTS the Clerk of Court to FILE UNDER SEAL: 20 o Exhibit 2 (lodged as Doc. No. 97-3); 21 o Exhibit 3 (lodged as Doc. No. 97-4); 22 o Exhibit 4 (lodged as Doc. No. 97-5); 23 o Exhibit 5 (lodged as Doc. No. 97-6); 24 o Exhibit 6 (lodged as Doc. No. 97-7); 25 o Exhibit 7 (lodged as Doc. No. 97-8); 26 o Exhibit 8 (lodged as Doc. No. 97-9); 27 o Exhibit 9 (lodged as Doc. No. 97-10); 28 o Exhibit 12 (lodged as Doc. No. 97-12); 1 o Exhibit 14 (lodged as Doc. No. 97-14); 2 o Exhibit 18 (lodged as Doc. No. 97-15); 3 o Exhibit A (lodged as Doc. No. 97-17); 4 o Exhibit B (lodged as Doc. No. 97-18); 5 o Defendants’ motion for summary judgment (lodged as Doc. No. 97). 6 Defendants must file an appropriately redacted version of their motion for 7 summary judgment consistent with the Court’s ruling no later than ten (10) 8 business days from the date this Order is filed; 9 o Defendants’ Daubert motion (lodged as Doc. No. 97-16). Defendants must 10 file an appropriately redacted version of their Daubert motion consistent 11 with the Court’s ruling no later than ten (10) business days from the date this 12 Order is filed; and 13 o Defendants’ Separate Statement of Undisputed Material Facts (lodged as 14 Doc. No. 97-1). Defendants must file an appropriately redacted version of 15 their Separate Statement of Undisputed Material Facts consistent with the 16 Court’s ruling no later than ten (10) business days from the date this Order is 17 filed. 18 • GRANTS IN PART and DENIES IN PART Plaintiffs’ motion to file documents 19 under seal (Doc. No. 123). Specifically, the Court GRANTS Plaintiffs’ motion 20 with respect to the Declaration of Alan Braynin; the Declaration of Alexis Ogilvie; 21 the Declaration of John Martins; Exhibits 3 and 5 to the Declaration of Alan 22 Braynin; Exhibit 1 to the Declaration of Jeff Pierson; Exhibits 1 and 2 to the 23 Declaration of Alexis Ogilvie; and Exhibits 1 and 2 to the Declaration of Kylie 24 Stein. The Court also GRANTS Plaintiffs’ motion with respect to specified 25 portions of Markham Declaration Exhibits 7, 11, 13, 16, 22, 26, 27, 28, 29, 33, 26 33.1, 34, 37, 41, 42, 43, 44, 54, 56, 57, and 81 to Markham Declaration Exhibits 27 35, 36, 38, 39, 45, and 53. The Court DENIES Plaintiffs’ motion with respect to 28 Exhibit 4 to the Declaration of Alan Braynin and Plaintiffs’ request to seal 1 information designated by third parties. Plaintiffs may file a renewed motion no 2 later than ten (10) business days from the date this Order is filed setting forth 3 compelling reasons, supported by declarations from the designating third parties, 4 as to why such information should be sealed. The Court further DENIES 5 Plaintiffs’ motion with respect to specified portions of Markham Declaration 6 Exhibits 7, 11, 16, 22, 54, and 56 and to Markham Declaration Exhibits 15, 17, 19, 7 47, 50, 51, 52, 77, 78, and 79. Accordingly, the Court DIRECTS the Clerk of 8 Court to FILE UNDER SEAL: 9 o Declaration of Alan Braynin (lodged as Doc. No. 108-88); 10 o Declaration of Alexis Ogilvie (lodged as Doc. No. 108-97); 11 o Declaration of John Martins (lodged as Doc. No. 108-103); 12 o Exhibit 3 to the Declaration of Alan Braynin (lodged as Doc. No. 108-91); 13 o Exhibit 5 to the Declaration of Alan Braynin (lodged as Doc. No. 108-93); 14 o Exhibit 1 to the Declaration of Jeff Pierson (lodged as Doc. No. 108-102) 15 o Exhibit 1 to the Declaration of Alexis Ogilvie (lodged as Doc. No. 108-98); 16 o Exhibit 2 to the Declaration of Alexis Ogilvie (lodged as Doc. No. 108-99); 17 o Exhibit 1 to the Declaration of Kylie Stein (lodged as Doc. No. 108-107); 18 o Exhibit 2 to the Declaration of Kylie Stein (lodged as Doc. No. 108-108); 19 o Exhibit 7 to the Markham Declaration (lodged as Doc. No. 108-10); 20 o Exhibit 11 to the Markham Declaration (lodged as Doc. No. 108-14); 21 o Exhibit 13 to the Markham Declaration (lodged as Doc. No. 108-16); 22 o Exhibit 16 to the Markham Declaration (lodged as Doc. No. 108-19); 23 o Exhibit 22 to the Markham Declaration (lodged as Doc. No. 108-25); 24 o Exhibit 26 to the Markham Declaration (lodged as Doc. No. 108-29); 25 o Exhibit 27 to the Markham Declaration (lodged as Doc. No. 108-30); 26 o Exhibit 28 to the Markham Declaration (lodged as Doc. No. 108-31); 27 o Exhibit 29 to the Markham Declaration (lodged as Doc. No. 108-32); 28 o Exhibit 33 to the Markham Declaration (lodged as Doc. No. 108-36); 1 o Exhibit 33.1 to the Markham Declaration (lodged as Doc. No. 108-37); 2 o Exhibit 34 to the Markham Declaration (lodged as Doc. No. 108-38); 3 o Exhibit 35 to the Markham Declaration (lodged as Doc. No. 108-39); 4 o Exhibit 36 to the Markham Declaration (lodged as Doc. No. 108-40); 5 o Exhibit 37 to the Markham Declaration (lodged as Doc. No. 108-41); 6 o Exhibit 38 to the Markham Declaration (lodged as Doc. No. 108-42); 7 o Exhibit 39 to the Markham Declaration (lodged as Doc. No. 108-43); 8 o Exhibit 41 to the Markham Declaration (lodged as Doc. No. 108-45); 9 o Exhibit 42 to the Markham Declaration (lodged as Doc. No. 108-46); 10 o Exhibit 43 to the Markham Declaration (lodged as Doc. No. 108-47); 11 o Exhibit 44 to the Markham Declaration (lodged as Doc. No. 108-48); 12 o Exhibit 45 to the Markham Declaration (lodged as Doc. No. 108-49); 13 o Exhibit 53 to the Markham Declaration (lodged as Doc. No. 108-56); 14 o Exhibit 54 to the Markham Declaration (lodged as Doc. No. 108-57); 15 o Exhibit 56 to the Markham Declaration (lodged as Doc. No. 108-59); 16  Defendant may designate the correspondence in Exhibit 56 to the 17 Markham Declaration and identify any compelling reason for sealing 18 the same no later than ten (10) days from the date this Order is filed; 19 o Exhibit 57 to the Markham Declaration (lodged as Doc. No. 108-60); 20 o Exhibit 81 to the Markham Declaration (lodged as Doc. No. 108-85); and 21 o Plaintiffs’ opposition to Defendants’ motion for summary judgment (lodged 22 as Doc. No. 108). Plaintiffs must file an appropriately redacted version of 23 their opposition to Defendants’ motion for summary judgment consistent 24 with the Court’s ruling no later than ten (10) business days from the date this 25 Order is filed. 26 • GRANTS IN PART and DENIES IN PART Plaintiffs’ motion to file documents 27 under seal (Doc. No. 128). Specifically, the Court GRANTS Plaintiffs’ motion 28 with respect to sealing portions of their Reply to Defendants’ Arguments on 1 Sealing Evidence and an accompanying Appendix A to the extent such filings 2 reference information that the Court has ruled herein warrants sealing. The Court 3 DENIES Plaintiffs’ motion with respect to sealing portions of such filings that do 4 not reference information that the Court has ruled herein warrants sealing. 5 Accordingly, the Court DIRECTS the Court of Clerk to FILE UNDER SEAL: 6 o Plaintiffs’ Reply to Defendants’ Arguments on Sealing Evidence (lodged as 7 Doc. No. 129). Plaintiffs must file an appropriately redacted version of their 8 Reply to Defendants’ Arguments on Sealing Evidence consistent with the 9 Court’s ruling no later than ten (10) business days from the date this Order is 10 filed; and 11 o Appendix A (lodged as Doc. No. 129-1). Plaintiffs must file an 12 appropriately redacted version of their Appendix A consistent with the 13 Court’s ruling no later than ten (10) business days from the date this Order is 14 filed. 15 • GRANTS IN PART and DENIES IN PART Defendants’ motion to file 16 documents under seal (Doc. No. 131). Specifically, the Court GRANTS 17 Defendants’ motion with respect to sealing portions of their reply in support of 18 their motion for summary judgment, reply in support of their Daubert motion, the 19 Rothman Report, and SS Response to the extent such filings reference information 20 that the Court has ruled herein warrants sealing. The Court DENIES Defendants’ 21 motion with respect to sealing portions of such filings that do not reference 22 information that the Court has ruled herein warrants sealing. Accordingly, the 23 Court DIRECTS the Court of Clerk to FILE UNDER SEAL: 24 o Exhibit 6 (lodged as Doc. No. 132-2); 25 o Defendants’ reply in support of their motion for summary judgment (lodged 26 as Doc. No. 132). Defendants must file an appropriately redacted version of 27 their reply in support of their motion for summary judgment consistent with 28 the Court’s ruling no later than ten (10) business days from the date this 1 Order is filed; 2 o Defendants’ reply in support of their Daubert motion (lodged as Doc. No. 3 132-4). Defendants must file an appropriately redacted version of their reply 4 in support of their Daubert motion consistent with the Court’s ruling no later 5 than ten (10) business days from the date this Order is filed; and 6 o Defendants’ SS Response (lodged as Doc. No. 132-3). Defendants must file 7 an appropriately redacted version of their SS Response consistent with the 8 Court’s ruling no later than ten (10) business days from the date this Order is 9 filed. 10 Consistent with this District’s Electronic Case Filing Administrative Policies and 11 Procedures Manual, if a “motion to seal is denied, the document will remain lodged under 12 seal without further consideration absent contrary direction from the Court.” 13 Accordingly, with respect to the exhibits that the Court has found do not meet the 14 compelling reasons standard, the parties may either: (1) take no action and the Court will 15 not consider those exhibits in ruling on the pending dispositive motions; or (2) re-file the 16 exhibits on the public docket, in which case the Court will consider the exhibits in ruling 17 on the pending dispositive motions. If the parties choose to re-file the exhibits publicly, 18 they must do so no later than five (5) business days from the date this Order is filed. 19 IT IS SO ORDERED. 20 Dated: April 20, 2020 21 _____________________________ 22 HON. MICHAEL M. ANELLO United States District Judge 23 24 25 26 27 28