1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEREMY NICHOLS, et al., Case No. 20-cv-06616-JSC
8 Plaintiffs, ORDER RE: ADMINISTRATIVE 9 v. MOTIONS TO FILE DOCUMENTS UNDER SEAL 10 AARP, INC., et al., Re: Dkt. Nos. 31, 41, 46 Defendants. 11
12 13 Before the Court are the parties’ administrative motions to file documents under seal.1 14 (Dkt. Nos. 31, 41, 46.)2 Defendants seek to file under seal excerpts of their motion to dismiss or, 15 in the alternative, for summary judgment, the motion’s supporting declarations and their attached 16 exhibits, as well as excerpts of the reply brief. (Dkt. Nos. 31 & 46.) Plaintiffs seek to file under 17 seal excerpts of the opposition, its supporting declaration and attached exhibits. (Dkt. No. 41.) 18 After careful consideration of the parties’ submissions, the Court rules as set forth below. 19 DISCUSSION 20 I. Legal Standard 21 There is a presumption of public access to judicial records and documents. Nixon v. 22 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Courts generally apply a “compelling 23 reasons” standard when considering motions to seal documents, recognizing that “a strong 24 presumption in favor of access is the starting point.” Kamakana v. City & Cty. of Honolulu, 447 25
26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 6, 12, & 14.) 27 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 F.3d 1172, 1178 (9th Cir. 2006) (internal quotations and citations omitted). 2 Civil Local Rule 79-5 supplements the “compelling reasons” standard. Exeltis USA Inc. v. 3 First Databank, Inc., Case No. 17-cv-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 4 2020). Under Civil Local Rule 79-5(b), sealing is appropriate only where the requesting party 5 “establishes that the document, or portions thereof is privileged or protectable as a trade secret or 6 otherwise entitled to protection under the law,” or “sealable.” N.D. Cal. Civ. L.R. 79-5(b). 7 Confidential business information in the form of “license agreements, financial terms, details of 8 confidential licensing negotiations, and business strategies” satisfies the “compelling reasons” 9 standard. Exeltis USA Inc., 2020 WL 2838812, at *1; see also In re Qualcomm Litig., No. 3:17- 10 cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (observing that sealing is 11 warranted to prevent competitors from “gaining insight into the parties’ business model and 12 strategy”); Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF (JSC), 2015 WL 3988132, at *4-5 13 (N.D. Cal. June 30, 2015). 14 II. Administrative Motions to File Under Seal 15 a. Sealing & Rule 56 Motion 16 Defendants seek to file under seal excerpts from their motion and supporting materials 17 regarding Plaintiffs’ personal information, as well as information regarding certain contractual 18 agreements between the parties and other related entities. (Dkt. No. 31 at 2-3.) 19 Exhibits attached to Ms. VerGow’s declaration that contain materials regarding Plaintiffs’ 20 personal and financial information satisfy the “compelling reasons” standard and warrant sealing. 21 See, e.g., Nursing Home Pension Fund v. Oracle Corp., No. C01-00988 MJJ, 2007 WL 3232267, 22 at *2 (N.D. Cal. Nov. 1, 2007) (“[C]ompelling reasons exist to keep personal information 23 confidential to protect an individual’s privacy interest[.]”); Hadley v. Kellogg Sales Co., No. 16- 24 CV-04955-LHK, 2018 WL 7814785, at *3 (N.D. Cal. Sept. 5, 2018) (“[C]ompelling reasons exist to seal sensitive personal information such as financial information, medical records and 25 conditions, phone numbers, and addresses.”) (citation omitted). So too are excerpts from Mr. 26 Moyer’s supporting declaration that reference Plaintiffs’ personal information sealable, as well as 27 1 terms and quotations from Defendants’ “SHIP Program License and Quality Control Services 2 Agreement” reflect confidential business information and dealings between the parties that are not 3 intended for public disclosure, and therefore warrant sealing. (See Dkt. Nos. 31-7, 31-8, 31-9, 31- 4 10, 31-11.) See Finistar Corp., 2015 WL 3988132, at *4; Exeltis USA Inc., 2020 WL 2838812, at 5 *1. Accordingly, excerpts from and references to terms from this agreement—as well as the 6 attached copies of the agreement—are sealable. For these same reasons the attached copy of and 7 excerpts from the Relationship Agreement by and among AARP, ASI, and Optum Services, Inc. is 8 sealable. (Dkt. No. 31-12.) See Finistar Corp., 2015 WL 3988132, at *4; Exeltis USA Inc., 2020 9 WL 2838812, at *1. 10 Excerpts from the motion that reference or cite these sealable materials are themselves 11 sealable. However, the motion’s summary of trademark law—and its broad observation that “the 12 owner of intellectual property must police its use”—does not warrant sealing because it makes no 13 reference to any agreement’s confidential terms, nor does it otherwise reveal compromising 14 confidential information. (Dkt. No. 36-6 at 11.) This applies as well to Defendants’ sentence— 15 citing a secondary source and the California Insurance Code—that certain activities are “typical 16 and permissible roles for licensors and group policyholders.” (Dkt. No. 31-6 at 29.) 17 Similarly, Defendants’ statement that AARP, Inc. (“AARP”) expends “considerable 18 resources” protecting its intellectual property through “quality control measures” along with 19 AARP Services, Inc. (“ASI”)— and the mention elsewhere of AARP’s “policing of its marks”— 20 describes the parties’ conduct, and implicates no sealable or confidential information from any 21 agreement. (Dkt. No. 31-6 at 14, 15 n.6) The motion’s statement that AARP chose to license its 22 intellectual property to UnitedHealthcare Insurance Company (“United”) in addition to negotiating 23 additional “contractual mechanisms” for its members does not reveal any information regarding 24 the negotiation of those mechanisms or their explicit terms and therefore is not sealable. (Dkt. No. 31-6 at 11.) However, explicit references to and discussion of these “mechanisms” warrant 25 sealing reflect confidential material and warrant sealing. (Id.) See Finistar Corp., 2015 WL 26 3988132, at *4; Exeltis USA Inc., 2020 WL 2838812, at *1. 27 1 b. Sealing & Opposition 2 Plaintiffs seek to seal excerpts of the opposition, as well as various exhibits attached to its 3 supporting declaration, on the grounds that the material is subject to the parties’ protective order, 4 and because the material references documents that Defendants have produced in related litigation, 5 Gozdenovich v. AARP, Inc., et al., Case No. 2:18-cv-02788 (D.N.J), marked “CONFIDENTIAL” 6 under the protective order in that case. (Dkt. No. 41 at 4-5.) Plaintiffs aver that Defendants have 7 stipulated to Plaintiffs’ use of the documents marked “CONFIDENTIAL” in Gozdenovich in the 8 instant action. 9 Under the Local Rules of this District, “[r]eference to a stipulation or protective order that 10 allows a party to designate certain documents as confidential is not sufficient to establish that a 11 document, or portions thereof, are sealable.” N.D. Cal. Civ. L.R. 79–5(d)(1)(A). Moreover, a 12 sealing request must be “narrowly tailored.” Id. at 79-5(b). “This narrowness has little to do with 13 the brevity of the proposed order and everything to do with the amount of material to which it 14 points.” Larkin v. Home Depot. Inc., No. C-13-2868 LB, 2014 WL 5364749, at *2 (N.D. Cal. Oct. 15 21, 2014). “The rule, and the case law that lies behind it, require a moving party to be 16 parsimonious in choosing the material that it would seal.” Id.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEREMY NICHOLS, et al., Case No. 20-cv-06616-JSC
8 Plaintiffs, ORDER RE: ADMINISTRATIVE 9 v. MOTIONS TO FILE DOCUMENTS UNDER SEAL 10 AARP, INC., et al., Re: Dkt. Nos. 31, 41, 46 Defendants. 11
12 13 Before the Court are the parties’ administrative motions to file documents under seal.1 14 (Dkt. Nos. 31, 41, 46.)2 Defendants seek to file under seal excerpts of their motion to dismiss or, 15 in the alternative, for summary judgment, the motion’s supporting declarations and their attached 16 exhibits, as well as excerpts of the reply brief. (Dkt. Nos. 31 & 46.) Plaintiffs seek to file under 17 seal excerpts of the opposition, its supporting declaration and attached exhibits. (Dkt. No. 41.) 18 After careful consideration of the parties’ submissions, the Court rules as set forth below. 19 DISCUSSION 20 I. Legal Standard 21 There is a presumption of public access to judicial records and documents. Nixon v. 22 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Courts generally apply a “compelling 23 reasons” standard when considering motions to seal documents, recognizing that “a strong 24 presumption in favor of access is the starting point.” Kamakana v. City & Cty. of Honolulu, 447 25
26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 6, 12, & 14.) 27 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 F.3d 1172, 1178 (9th Cir. 2006) (internal quotations and citations omitted). 2 Civil Local Rule 79-5 supplements the “compelling reasons” standard. Exeltis USA Inc. v. 3 First Databank, Inc., Case No. 17-cv-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 4 2020). Under Civil Local Rule 79-5(b), sealing is appropriate only where the requesting party 5 “establishes that the document, or portions thereof is privileged or protectable as a trade secret or 6 otherwise entitled to protection under the law,” or “sealable.” N.D. Cal. Civ. L.R. 79-5(b). 7 Confidential business information in the form of “license agreements, financial terms, details of 8 confidential licensing negotiations, and business strategies” satisfies the “compelling reasons” 9 standard. Exeltis USA Inc., 2020 WL 2838812, at *1; see also In re Qualcomm Litig., No. 3:17- 10 cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (observing that sealing is 11 warranted to prevent competitors from “gaining insight into the parties’ business model and 12 strategy”); Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF (JSC), 2015 WL 3988132, at *4-5 13 (N.D. Cal. June 30, 2015). 14 II. Administrative Motions to File Under Seal 15 a. Sealing & Rule 56 Motion 16 Defendants seek to file under seal excerpts from their motion and supporting materials 17 regarding Plaintiffs’ personal information, as well as information regarding certain contractual 18 agreements between the parties and other related entities. (Dkt. No. 31 at 2-3.) 19 Exhibits attached to Ms. VerGow’s declaration that contain materials regarding Plaintiffs’ 20 personal and financial information satisfy the “compelling reasons” standard and warrant sealing. 21 See, e.g., Nursing Home Pension Fund v. Oracle Corp., No. C01-00988 MJJ, 2007 WL 3232267, 22 at *2 (N.D. Cal. Nov. 1, 2007) (“[C]ompelling reasons exist to keep personal information 23 confidential to protect an individual’s privacy interest[.]”); Hadley v. Kellogg Sales Co., No. 16- 24 CV-04955-LHK, 2018 WL 7814785, at *3 (N.D. Cal. Sept. 5, 2018) (“[C]ompelling reasons exist to seal sensitive personal information such as financial information, medical records and 25 conditions, phone numbers, and addresses.”) (citation omitted). So too are excerpts from Mr. 26 Moyer’s supporting declaration that reference Plaintiffs’ personal information sealable, as well as 27 1 terms and quotations from Defendants’ “SHIP Program License and Quality Control Services 2 Agreement” reflect confidential business information and dealings between the parties that are not 3 intended for public disclosure, and therefore warrant sealing. (See Dkt. Nos. 31-7, 31-8, 31-9, 31- 4 10, 31-11.) See Finistar Corp., 2015 WL 3988132, at *4; Exeltis USA Inc., 2020 WL 2838812, at 5 *1. Accordingly, excerpts from and references to terms from this agreement—as well as the 6 attached copies of the agreement—are sealable. For these same reasons the attached copy of and 7 excerpts from the Relationship Agreement by and among AARP, ASI, and Optum Services, Inc. is 8 sealable. (Dkt. No. 31-12.) See Finistar Corp., 2015 WL 3988132, at *4; Exeltis USA Inc., 2020 9 WL 2838812, at *1. 10 Excerpts from the motion that reference or cite these sealable materials are themselves 11 sealable. However, the motion’s summary of trademark law—and its broad observation that “the 12 owner of intellectual property must police its use”—does not warrant sealing because it makes no 13 reference to any agreement’s confidential terms, nor does it otherwise reveal compromising 14 confidential information. (Dkt. No. 36-6 at 11.) This applies as well to Defendants’ sentence— 15 citing a secondary source and the California Insurance Code—that certain activities are “typical 16 and permissible roles for licensors and group policyholders.” (Dkt. No. 31-6 at 29.) 17 Similarly, Defendants’ statement that AARP, Inc. (“AARP”) expends “considerable 18 resources” protecting its intellectual property through “quality control measures” along with 19 AARP Services, Inc. (“ASI”)— and the mention elsewhere of AARP’s “policing of its marks”— 20 describes the parties’ conduct, and implicates no sealable or confidential information from any 21 agreement. (Dkt. No. 31-6 at 14, 15 n.6) The motion’s statement that AARP chose to license its 22 intellectual property to UnitedHealthcare Insurance Company (“United”) in addition to negotiating 23 additional “contractual mechanisms” for its members does not reveal any information regarding 24 the negotiation of those mechanisms or their explicit terms and therefore is not sealable. (Dkt. No. 31-6 at 11.) However, explicit references to and discussion of these “mechanisms” warrant 25 sealing reflect confidential material and warrant sealing. (Id.) See Finistar Corp., 2015 WL 26 3988132, at *4; Exeltis USA Inc., 2020 WL 2838812, at *1. 27 1 b. Sealing & Opposition 2 Plaintiffs seek to seal excerpts of the opposition, as well as various exhibits attached to its 3 supporting declaration, on the grounds that the material is subject to the parties’ protective order, 4 and because the material references documents that Defendants have produced in related litigation, 5 Gozdenovich v. AARP, Inc., et al., Case No. 2:18-cv-02788 (D.N.J), marked “CONFIDENTIAL” 6 under the protective order in that case. (Dkt. No. 41 at 4-5.) Plaintiffs aver that Defendants have 7 stipulated to Plaintiffs’ use of the documents marked “CONFIDENTIAL” in Gozdenovich in the 8 instant action. 9 Under the Local Rules of this District, “[r]eference to a stipulation or protective order that 10 allows a party to designate certain documents as confidential is not sufficient to establish that a 11 document, or portions thereof, are sealable.” N.D. Cal. Civ. L.R. 79–5(d)(1)(A). Moreover, a 12 sealing request must be “narrowly tailored.” Id. at 79-5(b). “This narrowness has little to do with 13 the brevity of the proposed order and everything to do with the amount of material to which it 14 points.” Larkin v. Home Depot. Inc., No. C-13-2868 LB, 2014 WL 5364749, at *2 (N.D. Cal. Oct. 15 21, 2014). “The rule, and the case law that lies behind it, require a moving party to be 16 parsimonious in choosing the material that it would seal.” Id. 17 There is nothing narrow or parsimonious about Plaintiffs’ request to seal 28 exhibits in 18 support of its opposition to Defendants’ motion. (Dkt. No. 41 at 2.) Some of these exhibits 19 concern deposition testimony in the Gozdenovich action; however, sealing requests regarding 20 deposition excerpts must be narrowly tailored, see Prostar Wireless Grp., LLC v. Domino's Pizza, 21 Inc., 360 F. Supp. 3d 994, 1021 (N.D. Cal. 2018), aff’d, 815 F. App’x 117 (9th Cir. 2020), and 22 “[t]he mere fact that information is nonpublic or designated as confidential does not justify 23 sealing, especially at the summary judgment stage[,]” id. Moreover, Plaintiffs’ conclusory 24 statement that public disclosure of these exhibits could harm Defendants’ privacy and proprietary interests does nothing “to even describe or identify the categories of information at issue and link 25 those categories to specific harms that would likely result from [their] public disclosure.” Brice v. 26 Plain Green, LLC, 372 F. Supp. 3d 955, 987 (N.D. Cals. 2019) (emphasis added). 27 1 c. Sealing & Reply 2 Defendants seek to seal excerpts of the reply brief that concern or identify sealable material 3 from the motion for summary judgment. (Dkt. No. 46.) 4 Excerpts regarding AARP’s communications that publicize the benefits provided by 5 AARP membership betray no information that sealing seeks to protect. (Dkt. No. 46-4 at 7.) See 6 Exeltis USA Inc., 2020 WL 2838812, at *1. Similarly, mentions of ASI’s general communications 7 about the benefits of AARP membership reveal nothing confidential that would permit a 8 competitor to gain insight into Defendants’ business strategies, see In re Qualcomm Litig., 2017 9 WL 5176922, at *2, nor does Defendants’ statement that AARP’s publication of its member 10 benefits helps United solicit insurance enrollments “downstream.” (Dkt. No. 46-4 at 17-18.) 11 Discussion of AARP’s “General Program” and its communications reveals nothing about 12 Defendants’ “license agreements, financial terms, details of confidential licensing negotiations, 13 [or] business strategies.” Exeltis USA Inc., 2020 WL 2838812, at *1. (Dkt. No. 46-4 at 18-19.) 14 Defendants’ observation that “[P]laintiffs invoke a 1980 trust agreement between AARP 15 and AARP [Insurance Plan]” to make an argument regarding AARP’s solicitation activity simply 16 characterizes a litigation position, and reveals no confidential information between its signatories 17 whose disclosure would risk competitive harm, and therefore is undeserving of seal. (Dkt. No. 46- 18 4 at 19.) Defendants’ remaining observations about the now superseded, 40-year old trust 19 agreement implicate no confidential information sealing is designed to protect; however, 20 discussion of United’s obligations regarding its Medigap program refers to confidential material 21 and is deserving of seal. (Dkt. No. 46-4 at 19.) Mere mentions of ASI, the “General Program,” 22 and AARP’s compensation as a percentage of United’s premiums do not warrant sealing, nor does 23 Defendants’ characterization of and response to Plaintiffs’ citations to “draft General Program 24 communications.” (Id at 19-20.) Defendants may seal information related to the “General Program” to the extent it references or cites sealable material, such as the SHIP Agreement. (Dkt. 25 No. 46-4 at 20.) Defendants’ legal arguments spun from the broad proposition that “as is typical 26 for a group policyholder, AARP Insurance Plan collects premiums for United Medigap insurance” 27 1 Similarly, the deposition testimony Defendants cite and seek to seal is sealable only to the extent 2 that it makes explicit reference to the terms of the SHIP Agreement. (Id.) 3 CONCLUSION 4 Defendants’ first administrative motion to seal is GRANTED in part and DENIED in part. 5 Plaintiffs’ administrative motion to seal is DENIED. Defendants’ administrative motion to seal in 6 connection to the reply brief is GRANTED in part and DENIED in part. 7 This Order disposes of Dkt. Nos. 31, 41, 46. 8 IT IS SO ORDERED. 9 Dated: February 22, 2021 10 11 JACQUELINE SCOTT CORLEY 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27