1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SKILLZ PLATFORM INC., Case No. 21-cv-02436-BLF
8 Plaintiff, ORDER RE: SEALING MOTIONS ON 9 v. OPPOSITIONS TO SUMMARY JUDGMENT MOTIONS 10 AVIAGAMES INC., [Re: ECF Nos. 169, 171, 172] 11 Defendant.
12 13 Before the Court are three sealing motions relating to the parties’ opposition briefs to the 14 motions for summary judgment. ECF Nos. 169, 171, 172. The Court has considered the motions 15 and supporting statements. The Court’s ruling is laid out below. 16 I. LEGAL STANDARD 17 “Historically, courts have recognized a ‘general right to inspect and copy public records 18 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of 19 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 20 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are 21 “more than tangentially related to the merits of a case” may be sealed only upon a showing of 22 “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 23 1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed 24 upon a lesser showing of “good cause.” Id. at 1097. 25 In addition, in this district, all parties requesting sealing must comply with Civil Local 26 Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a 27 document under seal, including an explanation of: (i) the legitimate private or public interests that 1 alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 2 requires the moving party to provide “evidentiary support from declarations where necessary.” 3 Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable 4 material.” Civ. L.R. 79-5(c)(3). 5 Further, when a party seeks to seal a document because it has been designated as 6 confidential by another party, the filing party must file an Administrative Motion to Consider 7 Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing 8 party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the 9 party who designated the material as confidential must, within seven days of the motion’s filing, 10 file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 11 5(f)(3). Any party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). 12 II. DISCUSSION 13 Because the motion to seal pertain to the motions for summary judgment, the Court will 14 apply the “compelling reasons” standard. See Kamakana, 447 F.3d at 1177. The Court will 15 address each motion in turn. 16 A. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should be Sealed Re: Opposition to Skillz’s Motion 17 for Partial Summary Judgment (ECF No. 169) 18 Defendant filed an administrative motion to consider whether another party’s material 19 should be sealed in connection with its opposition to Plaintiff’s for partial summary judgment. 20 See ECF No. 169. Defendant identifies the potentially sealable material to include highlighted 21 portions of its opposition brief as well as three exhibits thereto. Id. at 1. Defendant provides that 22 this information was designated as Highly Confidential by Plaintiff. Id. 23 Plaintiff filed a statement in support of the sealing. See ECF No. 184. Plaintiff asserts 24 that the highlighted portion of the brief and exhibits thereto “contain information conveying 25 aspects of Skillz’s business practices and strategy.” Id. ¶ 6. Plaintiff states that the release of the 26 sealed material would put it at a disadvantage compared to its competitors. Id. Plaintiff also 27 provides that the requested sealing is narrowly tailored. Id. ¶ 7. 1 harm a party’s competitive standing. See Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878- 2 HSG, 2020 WL 5576346, at *2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for 3 “confidential business and proprietary information relating to the operations of both Plaintiff and 4 Defendant”); Fed. Trade Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at 5 *3 (N.D. Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may 6 harm [a party’s] or third parties’ competitive standing and divulges terms of confidential contracts, 7 contract negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 8 2008) (finding sealable “business information that might harm a litigant’s competitive standing”). 9 The Court rules as follows:
10 ECF No. Document Portions to Seal Ruling 11 169-1 AviaGames’ Opposition Highlighted portion GRANTED, as containing to Skillz’s Motion for confidential business information 12 Partial Summary the release of which would cause Judgment competitive harm. 13 169-2 Exhibit 1 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 14 to Skillz’s Motion for 15 Partial Summary Judgment 16 169-3 Exhibit 2 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 17 to Skillz’s Motion for Partial Summary 18 Judgment 19 169-4 Exhibit 4 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 20 to Skillz’s Motion for Partial Summary 21 Judgment 22 Plaintiff seeks to seal the identified exhibits in their entirety. See ECF No. 184 at 3-4. The Court 23 finds this is not warranted. The denial as to these exhibits is WITHOUT PREJUDICE to refiling a 24 renewed motion that seeks to seal specified redacted portions of these exhibits. The Court notes 25 that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79- 26 5(c)(3). 27 B. Plaintiff’s Administrative Motion to File Under Seal Re: Opposition to 1 Defendant’s Motion for Summary Judgment (ECF No. 171) 2 Plaintiff filed an administration motion to seal, seeking to seal highlighted portions of its 3 opposition to Defendant’s motion for summary judgment. ECF No. 171. Defendant does not 4 oppose the motion. Plaintiff provides that the identified portions of its opposition brief should be 5 sealed because they “contain[] extremely sensitive and non-public business information that would 6 harm [Plaintiff] if made publicly available.” Id. at 1. 7 The “compelling reasons” standard is met for confidential business information that would 8 harm a party’s competitive standing. See Jam Cellars, 2020 WL 5576346, at *2; Qualcomm, Inc., 9 2019 WL 95922, at *3; In re Elec. Arts, Inc., 298 F. App’x at 569. 10 The Court rules as follows:
11 ECF No. Document Portions to Seal Ruling 12 171-3 Skillz’s Opposition to Highlighted portion GRANTED, as containing AviaGames’s Motion in blue confidential business information 13 for Summary Judgment the release of which would cause competitive harm. 14 C. Plaintiff’s Administrative Motion to Consider Whether Another Party’s 15 Material Should Be Sealed Re: Opposition to Defendant’s Motion for Summary Judgment (ECF No. 172) 16 Plaintiff filed an administrative motion to consider whether another party’s material should 17 be sealed in connection with its opposition to Defendant’s motion for summary judgment. See 18 ECF No. 172. Plaintiff identifies the potentially sealable material to include highlighted portions 19 of the opposition brief as well as five exhibits thereto. Id. at 1. Plaintiff provides that this 20 information was designated as Highly Confidential by Defendant. Id. 21 Defendant filed a statement in support of the sealing. See ECF No. 183.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SKILLZ PLATFORM INC., Case No. 21-cv-02436-BLF
8 Plaintiff, ORDER RE: SEALING MOTIONS ON 9 v. OPPOSITIONS TO SUMMARY JUDGMENT MOTIONS 10 AVIAGAMES INC., [Re: ECF Nos. 169, 171, 172] 11 Defendant.
12 13 Before the Court are three sealing motions relating to the parties’ opposition briefs to the 14 motions for summary judgment. ECF Nos. 169, 171, 172. The Court has considered the motions 15 and supporting statements. The Court’s ruling is laid out below. 16 I. LEGAL STANDARD 17 “Historically, courts have recognized a ‘general right to inspect and copy public records 18 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of 19 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 20 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are 21 “more than tangentially related to the merits of a case” may be sealed only upon a showing of 22 “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 23 1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed 24 upon a lesser showing of “good cause.” Id. at 1097. 25 In addition, in this district, all parties requesting sealing must comply with Civil Local 26 Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a 27 document under seal, including an explanation of: (i) the legitimate private or public interests that 1 alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 2 requires the moving party to provide “evidentiary support from declarations where necessary.” 3 Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable 4 material.” Civ. L.R. 79-5(c)(3). 5 Further, when a party seeks to seal a document because it has been designated as 6 confidential by another party, the filing party must file an Administrative Motion to Consider 7 Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing 8 party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the 9 party who designated the material as confidential must, within seven days of the motion’s filing, 10 file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 11 5(f)(3). Any party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). 12 II. DISCUSSION 13 Because the motion to seal pertain to the motions for summary judgment, the Court will 14 apply the “compelling reasons” standard. See Kamakana, 447 F.3d at 1177. The Court will 15 address each motion in turn. 16 A. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should be Sealed Re: Opposition to Skillz’s Motion 17 for Partial Summary Judgment (ECF No. 169) 18 Defendant filed an administrative motion to consider whether another party’s material 19 should be sealed in connection with its opposition to Plaintiff’s for partial summary judgment. 20 See ECF No. 169. Defendant identifies the potentially sealable material to include highlighted 21 portions of its opposition brief as well as three exhibits thereto. Id. at 1. Defendant provides that 22 this information was designated as Highly Confidential by Plaintiff. Id. 23 Plaintiff filed a statement in support of the sealing. See ECF No. 184. Plaintiff asserts 24 that the highlighted portion of the brief and exhibits thereto “contain information conveying 25 aspects of Skillz’s business practices and strategy.” Id. ¶ 6. Plaintiff states that the release of the 26 sealed material would put it at a disadvantage compared to its competitors. Id. Plaintiff also 27 provides that the requested sealing is narrowly tailored. Id. ¶ 7. 1 harm a party’s competitive standing. See Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878- 2 HSG, 2020 WL 5576346, at *2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for 3 “confidential business and proprietary information relating to the operations of both Plaintiff and 4 Defendant”); Fed. Trade Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at 5 *3 (N.D. Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may 6 harm [a party’s] or third parties’ competitive standing and divulges terms of confidential contracts, 7 contract negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 8 2008) (finding sealable “business information that might harm a litigant’s competitive standing”). 9 The Court rules as follows:
10 ECF No. Document Portions to Seal Ruling 11 169-1 AviaGames’ Opposition Highlighted portion GRANTED, as containing to Skillz’s Motion for confidential business information 12 Partial Summary the release of which would cause Judgment competitive harm. 13 169-2 Exhibit 1 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 14 to Skillz’s Motion for 15 Partial Summary Judgment 16 169-3 Exhibit 2 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 17 to Skillz’s Motion for Partial Summary 18 Judgment 19 169-4 Exhibit 4 to Entire Document DENIED, as not narrowly AviaGames’ Opposition tailored. 20 to Skillz’s Motion for Partial Summary 21 Judgment 22 Plaintiff seeks to seal the identified exhibits in their entirety. See ECF No. 184 at 3-4. The Court 23 finds this is not warranted. The denial as to these exhibits is WITHOUT PREJUDICE to refiling a 24 renewed motion that seeks to seal specified redacted portions of these exhibits. The Court notes 25 that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79- 26 5(c)(3). 27 B. Plaintiff’s Administrative Motion to File Under Seal Re: Opposition to 1 Defendant’s Motion for Summary Judgment (ECF No. 171) 2 Plaintiff filed an administration motion to seal, seeking to seal highlighted portions of its 3 opposition to Defendant’s motion for summary judgment. ECF No. 171. Defendant does not 4 oppose the motion. Plaintiff provides that the identified portions of its opposition brief should be 5 sealed because they “contain[] extremely sensitive and non-public business information that would 6 harm [Plaintiff] if made publicly available.” Id. at 1. 7 The “compelling reasons” standard is met for confidential business information that would 8 harm a party’s competitive standing. See Jam Cellars, 2020 WL 5576346, at *2; Qualcomm, Inc., 9 2019 WL 95922, at *3; In re Elec. Arts, Inc., 298 F. App’x at 569. 10 The Court rules as follows:
11 ECF No. Document Portions to Seal Ruling 12 171-3 Skillz’s Opposition to Highlighted portion GRANTED, as containing AviaGames’s Motion in blue confidential business information 13 for Summary Judgment the release of which would cause competitive harm. 14 C. Plaintiff’s Administrative Motion to Consider Whether Another Party’s 15 Material Should Be Sealed Re: Opposition to Defendant’s Motion for Summary Judgment (ECF No. 172) 16 Plaintiff filed an administrative motion to consider whether another party’s material should 17 be sealed in connection with its opposition to Defendant’s motion for summary judgment. See 18 ECF No. 172. Plaintiff identifies the potentially sealable material to include highlighted portions 19 of the opposition brief as well as five exhibits thereto. Id. at 1. Plaintiff provides that this 20 information was designated as Highly Confidential by Defendant. Id. 21 Defendant filed a statement in support of the sealing. See ECF No. 183. Defendant asserts 22 that the highlighted portion of the motion and exhibits thereto “contain aspects of AviaGames’ 23 business practices and strategy, and its products’ source code.” Id. ¶ 3. Plaintiff also provides that 24 the requested sealing is narrowly tailored. Id. ¶ 4. 25 Compelling reasons exist to seal trade secrets. Kamakana, 447 F.3d at 1179. 26 “Confidential source code clearly meets the definition of a trade secret,” and it thus meets the 27 compelling reasons standard. See Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846- 1 LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012). 2 The Court rules as follows:
3 ECF No. Document Portions to Seal Ruling 4 172-3 Skillz’s Opposition to Highlighted GRANTED, as containing AviaGames’s Motion for portion in purple confidential business information 5 Summary Judgment and source code the release of which would cause competitive 6 harm. 172-4 Exhibit 1 to Skillz’s Entire Document DENIED, as not narrowly 7 Opposition to tailored. 8 AviaGames’s Motion for Summary Judgment 9 172-5 Exhibit 2 to Skillz’s Entire Document GRANTED, as containing Opposition to confidential business information 10 AviaGames’s Motion for the release of which would cause Summary Judgment competitive harm. 11 172-6 Exhibit 3 to Skillz’s Entire Document DENIED, as not narrowly 12 Opposition to tailored. AviaGames’s Motion for 13 Summary Judgment 172-7 Exhibit 4 to Skillz’s Entire Document DENIED, as not narrowly 14 Opposition to tailored. 15 AviaGames’s Motion for Summary Judgment 16 172-8 Exhibit 5 to Skillz’s Entire Document DENIED, as not narrowly Opposition to tailored. 17 AviaGames’s Motion for Summary Judgment 18 172-9 Exhibit 6 to Skillz’s Entire Document DENIED, as not narrowly 19 Opposition to tailored. AviaGames’s Motion for 20 Summary Judgment 21 Defendant seeks to seal the identified exhibits in their entirety. The Court finds this is not 22 warranted as to certain exhibits. The denial as to these exhibits is WITHOUT PREJUDICE to 23 refiling a renewed motion that seeks to seal specified redacted portions of these exhibits. The 24 Court notes that redactions must be “narrowly tailored to seal only the sealable material.” Civ. 25 L.R. 79-5(c)(3). 26 III. ORDER 27 For the foregoing reasons, IT IS HEREBY ORDERED that: 1 Party’s Material Should be Sealed Re: Opposition to Skillz’s Motion for Partial Summary 2 || Judgment (ECF No. 169) is GRANTED IN PART and DENIED IN PART; 3 2. Plaintiff's Administrative Motion to File Under Seal Re: Opposition to Defendant’s 4 || Motion for Summary Judgment (ECF No. 171) is GRANTED; and 5 3. Plaintiff's Administrative Motion to Consider Whether Another Party’s Material 6 || Should Be Sealed Re: Opposition to Defendant’s Motion for Summary Judgment (ECF No. 172) 7 || is GRANTED IN PART and DENIED IN PART. 8 The denials are WITHOUT PREJUDICE to refiling renewed motions that include exhibits 9 || with narrowly tailored redactions. Any such motions SHALL be filed within 21 days. 10 11 Dated: August 10, 2023 a (12 hoon ETH LABSON FREEMAN 13 United States District Judge
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