Skillz Platform Inc. v. AviaGames Inc.

Opinion

SKILLZ PLATFORM INC., Case No. 21-cv-02436-BLF

Plaintiff, ORDER RE: SEALING MOTIONS ON v. MOTION TO REOPEN DISCOVERY AND FOR SANCTIONS [Re: ECF No. 207, 219] Defendant.

Before the Court are two administrative motions to file under seal relating to Plaintiff Skillz Platform Inc.’s Motion to Reopen Discovery and for Sanctions, ECF No. 208. See ECF Nos. 207, 219. The Court has considered the motions. The Court’s ruling is laid out below. “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). 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. In addition, in this district, all parties requesting sealing must comply with Civil Local Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a document under seal, including an explanation of: (i) the legitimate private or public interests that alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 requires the moving party to provide “evidentiary support from declarations where necessary.” Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). Further, when a party seeks to seal a document because it has been designated as confidential by another party, the filing party must file an Administrative Motion to Consider Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the party who designated the material as confidential must, within seven days of the motion’s filing, file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 5(f)(3). A designating party’s failure to file a statement or declaration may result in the unsealing of the provisionally sealed document without further notice to the designating party. Id. Any party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). The good cause standard applies here because the sealing motions relate to briefing on the motion to reopen discovery and for sanctions, which is only tangentially related to the merits of the case. Cf. Ctr. for Auto Safety, 809 F.3d at 1097; LELO, Inc. v. Standard Innovation (US) Corp., No. 13-CV-01393-JD, 2014 WL 2879851 (N.D. Cal. June 24, 2014) (applying “good cause” standard to evaluate sealing of documents submitted with a motion to stay); E. W. Bank v. Shanker, 2021 WL 4916729, at *1 (N.D. Cal. Aug. 31, 2021) (same). The Court will address each motion in turn. A. Skillz’s Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed Re: Motion to Reopen Discovery and for Sanctions (ECF No. 207) On August 11, 2023, Skillz filed an administrative motion to consider whether another party’s material should be sealed identifying its motion to reopen discovery and for sanctions, ECF No. 208, and the exhibits attached to that motion as containing information that AviaGames has designated as highly confidential. ECF No. 207. As of the date of this Order, AviaGames has e.g., Plexxikon Inc. v. Novartis Pharms. Corp., No. 17-CV-04405-HSG, 2022 WL 1131725, at *2 (N.D. Cal. Mar. 31, 2022) (denying motions to seal because the designating party failed to comply with Civ. L.R. 79-5(f)(3)). However, as described below, AviaGames’ statement in support of sealing the certified translations of Exhibits C through O applies equally to the uncertified translations in this motion. See ECF No. 228. As such, the Court will construe AviaGames’ statement as supporting the sealing of the uncertified versions of Exhibits C through O. The Court rules as follows:

ECF No. Document Portions to Seal Ruling 207-2 Skillz’s Emergency Entire Document DENIED, as failing to comply Motion to Reopen with Civ. L.R. 79-5(f)(3). Discovery And For Sanctions 207-3 Exhibit A Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-4 Exhibit B Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-5 Exhibit C Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-6 Exhibit D Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-7 Exhibit E Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-8 Exhibit F Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-9 Exhibit G Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-10 Exhibit H Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-11 Exhibit I Entire Document GRANTED, as containing the release of which would cause competitive harm. 207-12 Exhibit J Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-13 Exhibit K Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-14 Exhibit L Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-15 Exhibit M Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-16 Exhibit N Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-17 Exhibit O Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 207-18 Exhibit P Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-19 Exhibit Q Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-20 Exhibit R Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-21 Exhibit S Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 207-22 Exhibit T Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). The denials based on failure to comply with Civ. L.R. 79-5(f)(3) are WITHOUT PREJUDICE to AviaGames filing a statement and/or declaration in support of sealing these documents within 10 days of the date of this Order. B. Skillz’s Administrative Motion to Consider Whether Another Party’s Material Should be Sealed Re: Certified Copies of Exhibits in Support of Skillz’s Motion to Reopen Discovery and for Sanctions (ECF No. 219) Skillz filed an administrative motion to consider whether another party’s material should and for sanctions, ECF No. 220, as containing information that AviaGames has designated as highly confidential. ECF No. 217. AviaGames filed a statement in support of the sealing. ECF No. 228. AviaGames provides that the exhibits “contain aspects of AviaGames’ business practices and strategy, and describing operation of source code.” Id. ¶ 3. It states that release of this information would cause competitive harm and that the request is narrowly tailored. Id. ¶ 4. Because AviaGames’ reasoning with respect to the certified translations of these exhibits applies equally to the uncertified versions, the Court will construe AviaGames’ statement as also supporting the uncertified versions. Good cause exists to seal trade secrets. Kamakana, 447 F.3d at 1179. Confidential source code and confidential business information that would harm a party’s competitive standing meet the compelling reasons standard, and thus also meet the “less exacting” good cause standard. See Ctr. for Auto Safety, 809 F.3d at 1097; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11- CV-01846-LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012) (finding that “[c]onfidential source code clearly meets the definition of a trade secret,” and meets the compelling reasons standard); Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and proprietary information relating to the operations of both Plaintiff and Defendant”); Fed. Trade Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may harm [a party’s] or third parties’ competitive standing and divulges terms of confidential contracts, contract negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding sealable “business information that might harm a litigant’s competitive standing”). Thus, the Court rules as follows:

ECF No. Document Portions to Seal Ruling 219-2 Exhibit C1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. confidential business information the release of which would cause competitive harm. 219-4 Exhibit E1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-5 Exhibit F1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-6 Exhibit G1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-7 Exhibit H1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-8 Exhibit I1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-9 Exhibit J1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-10 Exhibit K1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-11 Exhibit L1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-12 Exhibit M1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-13 Exhibit N1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. 219-14 Exhibit O1 Entire Document GRANTED, as containing confidential business information the release of which would cause competitive harm. I. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether 3 Another Party’s Material Should Be Sealed Re: Motion to Reopen Discovery and for Sanctions, 4 ECF No. 207, is GRANTED in part and DENIED WITHOUT PREJUDICE in part. AviaGames 5 may file a statement in support of sealing the denied documents within 10 days of this Order. 6 2. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether 4 Another Party’s Material Should Be Sealed Re: Certified Copies of Exhibits in Support of Skillz’s 8 Motion to Reopen Discovery and for Sanctions, ECF No. 219, is GRANTED. 9 10 Dated: September 6, 2023 11 12 BETH LABSON FREEMAN United States District Judge

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