Dekker v. Vivint Solar, Inc.

District Court, N.D. California·Decided May 5, 2022·No. 3:19-cv-07918·Unknown

Opinion

NORTHERN DISTRICT OF CALIFORNIA

GERRIE DEKKER, et al., Plaintiffs, No. C 19-07918 WHA

v.

VIVINT SOLAR, INC., et al., OMNIBUS ORDER RE MOTIONS TO SEAL Defendants.

This order handles the motions to seal filed in conjunction with plaintiff’s opposition to Vivint’s motion for summary judgment as well as the motion for class certification and related filings. 1. THE LEGAL STANDARD. There is a strong public policy in favor of openness in our court system and the public is entitled to know to whom we are providing relief (or not). See Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 2006). Consequently, access to motions and their attachments that are “more than tangentially related to the merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 1097. The compelling limine and Daubert motions can be strongly correlative to the merits of a case. Id. at 1098– 1100. In addition, sealing motions filed in this district must contain a specific statement that explains: (1) the legitimate private or public interests that warrant sealing; (2) the injury that will result should sealing be denied; and (3) why a less restrictive alternative to sealing is not sufficient. The material requested to be sealed must be “narrowly tailored to seal only the sealable material.” Civil L.R. 79-5(c). For example, “[t]he publication of materials that could result in infringement upon trade secrets has long been considered a factor that would overcome [the] strong presumption” in favor of access and provide compelling reasons for sealing. Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). Compelling reasons may also warrant sealing for “sources of business information that might harm a litigant’s competitive standing,” especially where the public has “minimal interest” in the information because it “is not necessary to the public’s understanding of the case.” See Nixon v. Warner Comms., Inc., 435 U.S. 589, 598 (1978). Finally, “[s]upporting declarations may not rely on vague boilerplate language or nebulous assertions of potential harm but must explain with particularity why any document or portion thereof remains sealable under the applicable legal standard.” Bronson v. Samsung Elecs. Am., Inc., 2019 WL 7810811, at *1 (N.D. Cal. May 28, 2019) (citing Civ. L.R. 79-5). “Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Civ. L.R. 79-5(c). 2. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT. Plaintiff filed conditionally under seal certain material supporting her opposition to Vivint’s motion for partial summary judgment (Dkt. No. 190). Vivint filed a declaration in support of sealing these documents (Dkt. No. 198). The sealing requests that this order grants are narrowly tailored. This order rules as follows: Dkt. Document to be Result Reasoning No. Sealed 190-5 Exhibit 1 GRANTED. Contains specific and detailed (VSLR0000954) to the confidential information, the public Declaration of Corey disclosure of which could cause B. Bennett in Support Vivint competitive harm (Chang Decl. of Plaintiff’s ¶ 5). Opposition to Defendants’ Motion for Partial Summary Judgment 190-6 Exhibit 2 (Excerpts of DENIED. First, Vivint’s request is overbroad deposition transcript of and not narrowly tailored. For Colton Burr) to the example, Vivint seeks to seal the Declaration of Corey following exchange: “Q. Generally B. Bennett in Support speaking, Vivint Solar has written of Plaintiff’s policies regarding the calculation of Opposition to customer default payments; right? A. Defendants’ Motion Vivint Solar’s default payment for Partial Summary calculation is on the face of the Judgment customer agreement, and that how we manage to. So we rely upon the specific calculation as referred to in the customer agreement” (Depo. 32). These and other portions of the document clearly do not qualify for sealing. Other proposed redactions go to the very heart of this litigation, concerning, e.g., whether Vivint attempted to calculate the loss it would incur due to a customer default (id. at 109–10, 112, 140). For these and other requested redactions, there exists a particular strong presumption of public visibility. Second, Vivint’s justifications for sealing do not qualify as compelling. Simply being marked as highly confidential is insufficient. Vivint also explains that that material addresses “Vivint Solar’s strategy for marketing to investors; its method for calculating the contract termination fees, including default payments; non- public data and statistics regarding customer terminations; and non-public operations” (Chang Decl. ¶ 6). But many of the proposed redactions cover these issues at a high level of abstraction and Vivint has failed to explain how those general statements would harm its competitive standing. For example: “Q. Has Vivint Solar ever hired a third-party appraiser to determine its losses in the event of customer default? A. No” (Depo. 140). Without more, Vivint has failed to provide compelling reasons for sealing. 208 Plaintiff’s Opposition DENIED. As an initial matter, the proposed to Defendants’ Motion redactions here include material at the for Partial Summary heart of our litigation so there is a Judgment. strong presumption of public visibility in this instance. Vivint argues the proposed redactions should be sealed for the same reasons given for exhibit 2 (Chang Decl. ¶ 7). For the same reasons given above, the request is denied. 3. CLASS CERTIFICATION. Vivint moves to seal material it submitted in opposition to plaintiff’s motion for class certification (Dkt. Nos. 193, 212, 213, 217). Vivint also filed declarations in support of sealing material plaintiff lodged conditionally under seal (Dkt. Nos. 199, 221). This order rules as follows: Dkt. Document to be Result Reasoning No. Sealed 193-15 Class Certification DENIED. Vivint’s proposed redactions are not Motion Exhibit 4 narrowly tailored. For example, (Excerpts of Vivint seeks to seal the following deposition transcript exchange: “So there are two tabs on of Colton Burr) this Excel Document. We are on the ‘Default Price’ notes tab. And it appears to summarize what goes into default payment calculations under different PPA versions; is that fair? A. Yes, that’s correct” (Depo. 40). It also seeks to seal testimony regarding seal general or public material, Vivint’s overbroad request also seeks to seal material at the heart of this litigation, such as Vivint’s efforts to document its pecuniary loss in the event of a customer default (id. at 109, 140).

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Dekker v. Vivint Solar, Inc., (N.D. Cal. 2022).

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Related

Nixon v. Warner Communications, Inc.
435 U.S. 589 (Supreme Court, 1978)
Apple Inc. v. Psystar Corp.
658 F.3d 1150 (Ninth Circuit, 2011)
Center for Auto Safety v. Chrysler Group, LLC
809 F.3d 1092 (Ninth Circuit, 2016)