1 2 6 7 FINJAN, INC., Case No. 17-cv-00072-BLF
8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. ADMINISTRATIVE MOTION TO SEAL AT ECF 322 [RE: ECF 322] 11 Defendant.
12 13 Before the Court is Plaintiff’s administrative motion to file under seal portions of the 14 briefing and exhibits submitted in connection with Plaintiff’s Opposition to Motion to Strike 15 Finjan's Expert Reports on Infringement (ECF 323). ECF 322. For the reasons that follow, the 16 motion to seal is GRANTED. 18 “Historically, courts have recognized a ‘general right to inspect and copy public records 19 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 20 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 21 U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 22 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 23 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 24 motions that are “more than tangentially related to the underlying cause of action” bear the burden 25 of overcoming the presumption with “compelling reasons” that outweigh the general history of 26 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 27 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. Parties moving to seal documents 1 5(b), a sealing order is appropriate only upon a request 2 that establishes the document is “sealable,” or “privileged or protectable as a trade secret or 3 otherwise entitled to protection under the law.” “The request must be narrowly tailored to seek 4 sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). 5 In part, Civ. L.R. 79-5(d) requires the submitting party to attach a “proposed order that is narrowly 6 tailored to seal only the sealable material” which “lists in table format each document or portion 7 thereof that is sought to be sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the 8 document” that indicates “by highlighting or other clear method, the portions of the document that 9 have been omitted from the redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the 10 filing of the Administrative Motion to File Under Seal, the Designating Party must file a 11 declaration as required by subsection 79-5(d)(1)(A) establishing that all of the designated material 12 is sealable.” Civ. L.R. 79-5(e)(1). 14 The Court has reviewed Plaintiff’s sealing motion and the declaration of the designating 15 party submitted in support thereof. The Court finds that Plaintiff and the designating party have 16 articulated compelling reasons to seal certain portions of the requested documents. The proposed 17 redactions are narrowly tailored. The Court’s rulings on the sealing requests are set forth in the 18 table below. ECF Document to be Sealed Result Reasoning 19 No. 20 322-48 Plaintiff Finjan, Inc.’s GRANTED as If filed publicly, this Opposition to Defendant to the confidential information could 21 Cisco Systems, Inc.’s highlighted be used to Cisco’s Motion to Strike Finjan’s portions at disadvantage by competitors, 22 Expert Reports on page 3, lines as it reveals the identification, Infringement 26-27; page 4, organization, and/or operation 23 lines 1-3; page of Cisco’s proprietary 24 5, lines 12-13, products. Bartow Decl. ¶¶ 2-4, 14-15, 16, 20, ECF 344. In particular, 25 22, 23; page 6, Cisco’s competitors could use lines 1, 5, 6-7, this confidential information to 26 20-22; page 8, map proprietary features of lines 9-10, 16- Cisco’s products. Id. 27 18, 18-19, 21- ECF Document to be Sealed Result Reasoning 1 No. 2 lines 4-6, 7-8, 9-15, 16-17 3 Chart listing the terms GRANTED as If filed publicly, this 322-4 identified in Cisco’s to the entire confidential information could 4 Motion to Strike Finjan’s document. be used to Cisco’s Exh. 1 Expert Reports on disadvantage by competitors, 5 Infringement in View of as it reveals the identification, 6 the Orders dated June 11, organization, and/or operation 2019, and July 7, 2019, of Cisco’s proprietary 7 identifying where the products. Bartow Decl. ¶¶ 2-4, relevant functionalities ECF 344. In particular, 8 were disclosed in Finjan’s Cisco’s competitors could use infringement contentions, this confidential information to 9 and identifying where and map proprietary features of 10 how the same functionality Cisco’s products. Id. is disclosed in the 11 respective expert reports. See Kobialka Decl., ¶ 2, 12 ECF 323-2. 13 322-6 March 15, 2019 Letter GRANTED as If filed publicly, this from counsel for Finjan, to the entire confidential information could 14 Exh. 2 James Hannah, to counsel document. be used to Cisco’s for Cisco, Jarrad Gunther disadvantage by competitors, 15 as it reveals the identification, organization, and/or operation 16 of Cisco’s proprietary 17 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 18 Cisco’s competitors could use this confidential information to 19 map proprietary features of Cisco’s products. Id. 20 322-8 Excerpts of Deposition GRANTED as If filed publicly, this 21 Transcript of Matthew to the entire confidential information could Exh. 2A Watchinski document. be used to Cisco’s 22 disadvantage by competitors, as it reveals the identification, 23 organization, and/or operation of Cisco’s proprietary 24 products. Bartow Decl. ¶¶ 2-4, 25 ECF 344. In particular, Cisco’s competitors could use 26 this confidential information to map proprietary features of 27 Cisco’s products. Id. ECF Document to be Sealed Result Reasoning 1 No. 2 Transcript of Craig to the entire confidential information could Exh. 2B Brozefsky document. be used to Cisco’s 3 disadvantage by competitors, as it reveals the identification, 4 organization, and/or operation of Cisco’s proprietary 5 products. Bartow Decl. ¶¶ 2-4, 6 ECF 344. In particular, Cisco’s competitors could use 7 this confidential information to map proprietary features of 8 Cisco’s products. Id. 322-12 Excerpts of Deposition GRANTED as If filed publicly, this 9 Transcript of Alfred Huger to the entire confidential information could 10 Exh. 2C document. be used to Cisco’s disadvantage by competitors, 11 as it reveals the identification, organization, and/or operation 12 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 13 ECF 344. In particular, 14 Cisco’s competitors could use this confidential information to 15 map proprietary features of Cisco’s products. Id. 16 322-14 Excerpts of Deposition GRANTED as If filed publicly, this 17 Transcript of Jacob to the entire confidential information could Exh. 2D Valentic document. be used to Cisco’s 18 disadvantage by competitors, as it reveals the identification, 19 organization, and/or operation of Cisco’s proprietary 20 products. Bartow Decl. ¶¶ 2-4, 21 ECF 344. In particular, Cisco’s competitors could use 22 this confidential information to map proprietary features of 23 Cisco’s products. Id. 322-16 March 29, 2019 Letter GRANTED as If filed publicly, this 24 from counsel for Finjan, to the entire confidential information could 25 Exh. 3 James Hannah, to counsel document. be used to Cisco’s for Cisco, Jarrad Gunther disadvantage by competitors, 26 as it reveals the identification, organization, and/or operation 27 of Cisco’s proprietary ECF Document to be Sealed Result Reasoning 1 No. 2 ECF 344. In particular, Cisco’s competitors could use 3 this confidential information to map proprietary features of 4 Cisco’s products. Id. 322-18 Excerpts of Deposition GRANTED as If filed publicly, this 5 Transcript of Charles Buck to the entire confidential information could 6 Exh. 3A document. be used to Cisco’s disadvantage by competitors, 7 as it reveals the identification, organization, and
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1 2 6 7 FINJAN, INC., Case No. 17-cv-00072-BLF
8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. ADMINISTRATIVE MOTION TO SEAL AT ECF 322 [RE: ECF 322] 11 Defendant.
12 13 Before the Court is Plaintiff’s administrative motion to file under seal portions of the 14 briefing and exhibits submitted in connection with Plaintiff’s Opposition to Motion to Strike 15 Finjan's Expert Reports on Infringement (ECF 323). ECF 322. For the reasons that follow, the 16 motion to seal is GRANTED. 18 “Historically, courts have recognized a ‘general right to inspect and copy public records 19 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 20 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 21 U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 22 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 23 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 24 motions that are “more than tangentially related to the underlying cause of action” bear the burden 25 of overcoming the presumption with “compelling reasons” that outweigh the general history of 26 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 27 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. Parties moving to seal documents 1 5(b), a sealing order is appropriate only upon a request 2 that establishes the document is “sealable,” or “privileged or protectable as a trade secret or 3 otherwise entitled to protection under the law.” “The request must be narrowly tailored to seek 4 sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). 5 In part, Civ. L.R. 79-5(d) requires the submitting party to attach a “proposed order that is narrowly 6 tailored to seal only the sealable material” which “lists in table format each document or portion 7 thereof that is sought to be sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the 8 document” that indicates “by highlighting or other clear method, the portions of the document that 9 have been omitted from the redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the 10 filing of the Administrative Motion to File Under Seal, the Designating Party must file a 11 declaration as required by subsection 79-5(d)(1)(A) establishing that all of the designated material 12 is sealable.” Civ. L.R. 79-5(e)(1). 14 The Court has reviewed Plaintiff’s sealing motion and the declaration of the designating 15 party submitted in support thereof. The Court finds that Plaintiff and the designating party have 16 articulated compelling reasons to seal certain portions of the requested documents. The proposed 17 redactions are narrowly tailored. The Court’s rulings on the sealing requests are set forth in the 18 table below. ECF Document to be Sealed Result Reasoning 19 No. 20 322-48 Plaintiff Finjan, Inc.’s GRANTED as If filed publicly, this Opposition to Defendant to the confidential information could 21 Cisco Systems, Inc.’s highlighted be used to Cisco’s Motion to Strike Finjan’s portions at disadvantage by competitors, 22 Expert Reports on page 3, lines as it reveals the identification, Infringement 26-27; page 4, organization, and/or operation 23 lines 1-3; page of Cisco’s proprietary 24 5, lines 12-13, products. Bartow Decl. ¶¶ 2-4, 14-15, 16, 20, ECF 344. In particular, 25 22, 23; page 6, Cisco’s competitors could use lines 1, 5, 6-7, this confidential information to 26 20-22; page 8, map proprietary features of lines 9-10, 16- Cisco’s products. Id. 27 18, 18-19, 21- ECF Document to be Sealed Result Reasoning 1 No. 2 lines 4-6, 7-8, 9-15, 16-17 3 Chart listing the terms GRANTED as If filed publicly, this 322-4 identified in Cisco’s to the entire confidential information could 4 Motion to Strike Finjan’s document. be used to Cisco’s Exh. 1 Expert Reports on disadvantage by competitors, 5 Infringement in View of as it reveals the identification, 6 the Orders dated June 11, organization, and/or operation 2019, and July 7, 2019, of Cisco’s proprietary 7 identifying where the products. Bartow Decl. ¶¶ 2-4, relevant functionalities ECF 344. In particular, 8 were disclosed in Finjan’s Cisco’s competitors could use infringement contentions, this confidential information to 9 and identifying where and map proprietary features of 10 how the same functionality Cisco’s products. Id. is disclosed in the 11 respective expert reports. See Kobialka Decl., ¶ 2, 12 ECF 323-2. 13 322-6 March 15, 2019 Letter GRANTED as If filed publicly, this from counsel for Finjan, to the entire confidential information could 14 Exh. 2 James Hannah, to counsel document. be used to Cisco’s for Cisco, Jarrad Gunther disadvantage by competitors, 15 as it reveals the identification, organization, and/or operation 16 of Cisco’s proprietary 17 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 18 Cisco’s competitors could use this confidential information to 19 map proprietary features of Cisco’s products. Id. 20 322-8 Excerpts of Deposition GRANTED as If filed publicly, this 21 Transcript of Matthew to the entire confidential information could Exh. 2A Watchinski document. be used to Cisco’s 22 disadvantage by competitors, as it reveals the identification, 23 organization, and/or operation of Cisco’s proprietary 24 products. Bartow Decl. ¶¶ 2-4, 25 ECF 344. In particular, Cisco’s competitors could use 26 this confidential information to map proprietary features of 27 Cisco’s products. Id. ECF Document to be Sealed Result Reasoning 1 No. 2 Transcript of Craig to the entire confidential information could Exh. 2B Brozefsky document. be used to Cisco’s 3 disadvantage by competitors, as it reveals the identification, 4 organization, and/or operation of Cisco’s proprietary 5 products. Bartow Decl. ¶¶ 2-4, 6 ECF 344. In particular, Cisco’s competitors could use 7 this confidential information to map proprietary features of 8 Cisco’s products. Id. 322-12 Excerpts of Deposition GRANTED as If filed publicly, this 9 Transcript of Alfred Huger to the entire confidential information could 10 Exh. 2C document. be used to Cisco’s disadvantage by competitors, 11 as it reveals the identification, organization, and/or operation 12 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 13 ECF 344. In particular, 14 Cisco’s competitors could use this confidential information to 15 map proprietary features of Cisco’s products. Id. 16 322-14 Excerpts of Deposition GRANTED as If filed publicly, this 17 Transcript of Jacob to the entire confidential information could Exh. 2D Valentic document. be used to Cisco’s 18 disadvantage by competitors, as it reveals the identification, 19 organization, and/or operation of Cisco’s proprietary 20 products. Bartow Decl. ¶¶ 2-4, 21 ECF 344. In particular, Cisco’s competitors could use 22 this confidential information to map proprietary features of 23 Cisco’s products. Id. 322-16 March 29, 2019 Letter GRANTED as If filed publicly, this 24 from counsel for Finjan, to the entire confidential information could 25 Exh. 3 James Hannah, to counsel document. be used to Cisco’s for Cisco, Jarrad Gunther disadvantage by competitors, 26 as it reveals the identification, organization, and/or operation 27 of Cisco’s proprietary ECF Document to be Sealed Result Reasoning 1 No. 2 ECF 344. In particular, Cisco’s competitors could use 3 this confidential information to map proprietary features of 4 Cisco’s products. Id. 322-18 Excerpts of Deposition GRANTED as If filed publicly, this 5 Transcript of Charles Buck to the entire confidential information could 6 Exh. 3A document. be used to Cisco’s disadvantage by competitors, 7 as it reveals the identification, organization, and/or operation 8 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 9 ECF 344. In particular, 10 Cisco’s competitors could use this confidential information to 11 map proprietary features of Cisco’s products. Id. 12 322-20 Excerpts of Deposition GRANTED as If filed publicly, this 13 Transcript of Surya Allena to the entire confidential information could Exh. 3B document. be used to Cisco’s 14 disadvantage by competitors, as it reveals the identification, 15 organization, and/or operation of Cisco’s proprietary 16 products. Bartow Decl. ¶¶ 2-4, 17 ECF 344. In particular, Cisco’s competitors could use 18 this confidential information to map proprietary features of 19 Cisco’s products. Id. 322-22 Excerpts of Deposition GRANTED as If filed publicly, this 20 Transcript of Dean De Beer to the entire confidential information could 21 Exh. 3C document. be used to Cisco’s disadvantage by competitors, 22 as it reveals the identification, organization, and/or operation 23 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 24 ECF 344. In particular, 25 Cisco’s competitors could use this confidential information to 26 map proprietary features of Cisco’s products. Id. 27 322-24 Excerpts of Deposition GRANTED as If filed publicly, this ECF Document to be Sealed Result Reasoning 1 No. 2 Exh. 3D Donnan document. be used to Cisco’s disadvantage by competitors, 3 as it reveals the identification, organization, and/or operation 4 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 5 ECF 344. In particular, 6 Cisco’s competitors could use this confidential information to 7 map proprietary features of Cisco’s products. Id. 8 322-26 April 18, 2019 Letter from GRANTED as If filed publicly, this counsel for Finjan, James to the entire confidential information could 9 Exh. 4 Hannah, to counsel for document. be used to Cisco’s 10 Cisco, Jarrad Gunther disadvantage by competitors, as it reveals the identification, 11 organization, and/or operation of Cisco’s proprietary 12 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 13 Cisco’s competitors could use 14 this confidential information to map proprietary features of 15 Cisco’s products. Id. 322-28 Excerpts of Deposition GRANTED as If filed publicly, this 16 Transcript of Philip Kwok to the entire confidential information could 17 Exh. 4A document. be used to Cisco’s disadvantage by competitors, 18 as it reveals the identification, organization, and/or operation 19 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 20 ECF 344. In particular, 21 Cisco’s competitors could use this confidential information to 22 map proprietary features of Cisco’s products. Id. 23 322-30 Excerpts of Deposition GRANTED as If filed publicly, this Transcript of Srinivas to the entire confidential information could 24 Exh. 4B Kuruganti document. be used to Cisco’s 25 disadvantage by competitors, as it reveals the identification, 26 organization, and/or operation of Cisco’s proprietary 27 products. Bartow Decl. ¶¶ 2-4, ECF Document to be Sealed Result Reasoning 1 No. 2 Cisco’s competitors could use this confidential information to 3 map proprietary features of Cisco’s products. Id. 4 322-32 Technical document GRANTED as If filed publicly, this marked as Ex. 7 to the to the entire confidential information could 5 Exh. 4C Deposition Transcript of document. be used to Cisco’s 6 Philip Kwok, bates-labeled disadvantage by competitors, CISCO- as it reveals the identification, 7 FINJAN_00000346.0001- organization, and/or operation 19 of Cisco’s proprietary 8 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 9 Cisco’s competitors could use 10 this confidential information to map proprietary features of 11 Cisco’s products. Id. 322-34 Technical document bates- GRANTED as If filed publicly, this 12 labeled CISCO- to the entire confidential information could 13 Exh. 4D FINJAN_00132230.0001- document. be used to Cisco’s 94 disadvantage by competitors, 14 as it reveals the identification, organization, and/or operation 15 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 16 ECF 344. In particular, 17 Cisco’s competitors could use this confidential information to 18 map proprietary features of Cisco’s products. Id. 19 322-36 Presentation bates-labeled GRANTED as If filed publicly, this CISCO- to the entire confidential information could 20 Exh. 4E FINJAN_00000080.0001- document. be used to Cisco’s 21 48 disadvantage by competitors, as it reveals the identification, 22 organization, and/or operation of Cisco’s proprietary 23 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 24 Cisco’s competitors could use 25 this confidential information to map proprietary features of 26 Cisco’s products. Id. 322-38 Expert Report of Eric Cole GRANTED as If filed publicly, this 27 Ph.D., Regarding to the entire confidential information could ECF Document to be Sealed Result Reasoning 1 No. 2 Systems, Inc. of Patent disadvantage by competitors, Nos. 6,154,844 and as it reveals the identification, 3 8,677,494 organization, and/or operation of Cisco’s proprietary 4 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 5 Cisco’s competitors could use 6 this confidential information to map proprietary features of 7 Cisco’s products. Id. 322-40 Expert Report of Michael GRANTED as If filed publicly, this 8 Mitzenmacher, Ph.D. to the entire confidential information could Exh. 6 Regarding Infringement by document. be used to Cisco’s 9 Cisco Systems, Inc. of disadvantage by competitors, 10 Patent Nos. 6,804,780 and as it reveals the identification, 8,141,154 organization, and/or operation 11 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 12 ECF 344. In particular, Cisco’s competitors could use 13 this confidential information to 14 map proprietary features of Cisco’s products. Id. 15 322-42 Expert Report of Nenad GRANTED as If filed publicly, this Medvidovic, Ph.D. to the entire confidential information could 16 Exh. 7 Regarding Infringement by document. be used to Cisco’s 17 Cisco Systems, Inc. of disadvantage by competitors, Patent No. 7,647,633 as it reveals the identification, 18 organization, and/or operation of Cisco’s proprietary 19 products. Bartow Decl. ¶¶ 2-4, ECF 344. In particular, 20 Cisco’s competitors could use 21 this confidential information to map proprietary features of 22 Cisco’s products. Id. 322-44 Rebuttal Expert Report of GRANTED as If filed publicly, this 23 Dr. Kevin Almeroth on to the entire confidential information could Exh. 9 Non-Infringement of U.S. document. be used to Cisco’s 24 Patent Nos. 6,154,844 and disadvantage by competitors, 25 8,141,154 as it reveals the identification, organization, and/or operation 26 of Cisco’s proprietary products. Bartow Decl. ¶¶ 2-4, 27 ECF 344. In particular, No. 2 this confidential information to map proprietary features of 3 Cisco’s products. Id. 322-46 Rebuttal Expert Report of GRANTED as __| If filed publicly, this 4 Dr. Patrick McDaniel to the entire confidential information could 5 Exh. 10 | Regarding the Non- document. be used to Cisco’s Infringement of the ‘494 disadvantage by competitors, 6 and “780 Patents as it reveals the identification, organization, and/or operation 7 of Cisco’s proprietary products. Bartow Decl. □□□□ 2-4, 8 ECF 344. In particular, 9 Cisco’s competitors could use this confidential information to 10 map proprietary features of Cisco’s products. Id. 11 Wl. CONCLUSION 12 For the foregoing reasons, the Court hereby GRANTS Plaintiff’s motion to seal at 13 = ECF 322. No further action is necessary.
15 IT IS SO ORDERED. Q 16
= 17 Dated: September 16, 2019 én) Z 18 M. 19 BETH LABSON FREEMAN United States District Judge 20 21 22 23 24 25 26 27 28