Sectra Communications AB v. Absolute Software Inc

Opinion

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3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE 6 7 SECTRA COMMUNICATIONS AB, and Case No. 2:22-cv-0353-RSM COLUMBITECH INC. 8 ORDER GRANTING IN PART AND 9 Plaintiffs and Counter- DENYING IN PART DEFENDANTS’ Defendants, MOTION TO SEAL MOTION TO 10 PARTIALLY EXCLUDE OPINIONS OF v. J. DAVID CABELLO AND TOBIAS 11 ENGLUND ABSOLUTE SOFTWARE, INC. and MOBILE SONIC, INC., 12 Defendants and Counter- 13 Plaintiffs. 14

15 This matter comes before the Court on Defendants Absolute Software, Inc. and Mobile 16 Sonic’s Motion to Seal Defendants’ Motion to Partially Exclude Opinions of J. David Cabello and 17 Tobias Englund, Dkt. #403. Defendants move to file under seal portions of the Motion to Partially 18 19 Exclude Opinions of J. David Cabello and Tobias Englund (“Motion to Exclude”) and certain 20 accompanying Exhibits 1-3. Defendants have filed a redacted Motion to Exclude as well as a 21 sealed version. See Dkts. #401 and #405. 22 “There is a strong presumption of public access to the court’s files.” Local Rule 5(g). The 23 Court’s Local Rules explicitly instruct the parties to present legal and evidentiary support in a 24 motion to seal. That motion must include “a specific statement of the applicable legal standard 25 and the reasons for keeping a document under seal, with evidentiary support from declarations 26 where necessary.” Local Rule 5(g)(3)(B). A “good cause” showing under Rule 26(c) will suffice 1 to keep sealed records attached to non-dispositive motions. Kamakana v. City & County of 2 3 Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (internal citations omitted). Although Defendant’s 4 Motion to Exclude is technically not a dispositive motion, Defendants nevertheless attempt to 5 show compelling reasons to seal the Motion to Exclude and its exhibits. See Dkt. #403 (citing 6 Wagafe v. Biden, 17-cv-00094-LK, 2023 WL 5803613, at *7 (W.D. Wash. Sept. 7, 2023) (finding 7 that “[w]hile it is true that the Daubert motions are not ‘literally dispositive,’ the Court finds that 8 these motions and their supporting documents are ‘strongly correlative to the merits’ of this case, 9 10 and that the compelling reasons standard therefore applies.”)). 11 The Court has reviewed the Motion and the proposed redactions. The Court finds that the 12 compelling reasons standard applies. While some redactions are to quotes from documents already 13 under seal, other redactions are made to attorney argument merely discussing such exhibits 14 generally. Worse, many redactions are to facts that have no clear reason to be filed under seal. 15 For example, in discussing expert witness Cabello, the following sentences are redacted: 16  “Cabello is an attorney who worked his 40-year legal career exclusively in law 17 18 firms or as general counsel at software companies.” Dkt. #405 at 5. 19  “Prior to his legal career, Cabello worked as an engineer from 1974 to 1983 at 20 Jacobs Engineering Group, Inc. and Brown & Root, Inc., neither of which was 21 related to network communications.” Id. 22  “Cabello opines that Columbitech’s VPN solution was ‘superior’ to that of 23 NetMotion because of the greater variety of operating systems that it supported.” 24 25 Id. at 6. 26  “Cabello opines on speed comparisons between Columbitech Mobile VPN and 1 2 NetMotion’s product, opining that the speeds between the two products were 3 ‘comparable’ and that certain speed tests ‘showed that Columbitech’s product had 4 superior performance to NetMotion.’” Id. at 7. 5 There are many more such examples. Defendants have articulated no compelling reason to redact 6 such facts or generalized summary of what sealed exhibits say. The Court cannot imagine how 7 generalizations about one product being “superior” or “comparable” to another is a fact that needs 8 to be kept out of the public eye. Accordingly, such redactions are improper. Some remaining 9 10 redactions may be proper given Defendants’ unopposed arguments about potential competitive 11 harm to Mobile Sonic and harm to NetMotion’s third-party clients. The Court is loathe to permit 12 redactions to whole paragraphs of attorney argument. Consistent with the strong presumption of 13 public access to the Court’s files and the fact that this is not a sealed case, the Court expects the 14 parties to be able to engage in a public discussion of the potential evidence in this case and will 15 direct Defendants to take another stab at redactions with this in mind. 16 Having reviewed the relevant briefing and the remainder of the record, the Court hereby 17 18 finds and ORDERS that Defendants’ unopposed Motion to Seal, Dkt. #403, is GRANTED IN 19 PART AND DENIED IN PART. The filings at Dkt. #401 and #405 are to remain under seal. 20 Defendants are DIRECTED to file a revised redacted version of the Motion, redacting only those 21 portions of the Motion that quote or directly incorporate confidential information, and removing 22 redactions from attorney argument or generalized summary of exhibits otherwise under seal 23 consistent with the above. This revised redacted version of the Motion is to be filed within the 24 25 next 30 days. 26 1 DATED this 29th day of July, 2024.

2 3 A 4 RICARDO S. MARTINEZ 5 UNITED STATES DISTRICT JUDGE

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