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. MOTION TO REOPEN DISCOVERY AND FOR SANCTIONS 10 AVIAGAMES INC., [Re: ECF No. 207, 219] 11 Defendant.
12 13 Before the Court are two administrative motions to file under seal relating to Plaintiff 14 Skillz Platform Inc.’s Motion to Reopen Discovery and for Sanctions, ECF No. 208. See ECF 15 Nos. 207, 219. The Court has considered the motions. 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). A designating party’s failure to file a statement or declaration may result in the unsealing 12 of the provisionally sealed document without further notice to the designating party. Id. Any 13 party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). 14 II. DISCUSSION 15 The good cause standard applies here because the sealing motions relate to briefing on the 16 motion to reopen discovery and for sanctions, which is only tangentially related to the merits of 17 the case. Cf. Ctr. for Auto Safety, 809 F.3d at 1097; LELO, Inc. v. Standard Innovation (US) 18 Corp., No. 13-CV-01393-JD, 2014 WL 2879851 (N.D. Cal. June 24, 2014) (applying “good 19 cause” standard to evaluate sealing of documents submitted with a motion to stay); E. W. Bank v. 20 Shanker, 2021 WL 4916729, at *1 (N.D. Cal. Aug. 31, 2021) (same). The Court will address each 21 motion in turn. 22 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. 23 207) 24 On August 11, 2023, Skillz filed an administrative motion to consider whether another 25 party’s material should be sealed identifying its motion to reopen discovery and for sanctions, 26 ECF No. 208, and the exhibits attached to that motion as containing information that AviaGames 27 has designated as highly confidential. ECF No. 207. As of the date of this Order, AviaGames has 1 e.g., Plexxikon Inc. v. Novartis Pharms. Corp., No. 17-CV-04405-HSG, 2022 WL 1131725, at *2 2 (N.D. Cal. Mar. 31, 2022) (denying motions to seal because the designating party failed to comply 3 with Civ. L.R. 79-5(f)(3)). However, as described below, AviaGames’ statement in support of 4 sealing the certified translations of Exhibits C through O applies equally to the uncertified 5 translations in this motion. See ECF No. 228. As such, the Court will construe AviaGames’ 6 statement as supporting the sealing of the uncertified versions of Exhibits C through O. 7 The Court rules as follows:
8 ECF No. Document Portions to Seal Ruling 9 207-2 Skillz’s Emergency Entire Document DENIED, as failing to comply Motion to Reopen with Civ. L.R. 79-5(f)(3). 10 Discovery And For Sanctions 11 207-3 Exhibit A Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 12 207-4 Exhibit B Entire Document DENIED, as failing to comply 13 with Civ. L.R. 79-5(f)(3). 207-5 Exhibit C Entire Document GRANTED, as containing 14 confidential business information the release of which would cause 15 competitive harm. 16 207-6 Exhibit D Entire Document GRANTED, as containing confidential business information 17 the release of which would cause competitive harm. 18 207-7 Exhibit E Entire Document GRANTED, as containing confidential business information 19 the release of which would cause 20 competitive harm. 207-8 Exhibit F Entire Document GRANTED, as containing 21 confidential business information the release of which would cause 22 competitive harm. 207-9 Exhibit G Entire Document GRANTED, as containing 23 confidential business information 24 the release of which would cause competitive harm. 25 207-10 Exhibit H Entire Document GRANTED, as containing confidential business information 26 the release of which would cause 27 competitive harm. 207-11 Exhibit I Entire Document GRANTED, as containing the release of which would cause 1 competitive harm. 2 207-12 Exhibit J Entire Document GRANTED, as containing confidential business information 3 the release of which would cause competitive harm. 4 207-13 Exhibit K Entire Document GRANTED, as containing confidential business information 5 the release of which would cause 6 competitive harm. 207-14 Exhibit L Entire Document GRANTED, as containing 7 confidential business information the release of which would cause 8 competitive harm. 9 207-15 Exhibit M Entire Document GRANTED, as containing confidential business information 10 the release of which would cause competitive harm. 11 207-16 Exhibit N Entire Document GRANTED, as containing confidential business information 12 the release of which would cause 13 competitive harm. 207-17 Exhibit O Entire Document GRANTED, as containing 14 confidential business information the release of which would cause 15 competitive harm. 207-18 Exhibit P Entire Document DENIED, as failing to comply 16 with Civ. L.R. 79-5(f)(3). 17 207-19 Exhibit Q Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 18 207-20 Exhibit R Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 19 207-21 Exhibit S Entire Document DENIED, as failing to comply 20 with Civ. L.R. 79-5(f)(3). 207-22 Exhibit T Entire Document DENIED, as failing to comply 21 with Civ. L.R. 79-5(f)(3). 22 The denials based on failure to comply with Civ. L.R. 79-5(f)(3) are WITHOUT PREJUDICE to 23 AviaGames filing a statement and/or declaration in support of sealing these documents within 10 24 days of the date of this Order. 25 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 26 Reopen Discovery and for Sanctions (ECF No. 219) 27 Skillz filed an administrative motion to consider whether another party’s material should 1 and for sanctions, ECF No.
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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. MOTION TO REOPEN DISCOVERY AND FOR SANCTIONS 10 AVIAGAMES INC., [Re: ECF No. 207, 219] 11 Defendant.
12 13 Before the Court are two administrative motions to file under seal relating to Plaintiff 14 Skillz Platform Inc.’s Motion to Reopen Discovery and for Sanctions, ECF No. 208. See ECF 15 Nos. 207, 219. The Court has considered the motions. 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). A designating party’s failure to file a statement or declaration may result in the unsealing 12 of the provisionally sealed document without further notice to the designating party. Id. Any 13 party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). 14 II. DISCUSSION 15 The good cause standard applies here because the sealing motions relate to briefing on the 16 motion to reopen discovery and for sanctions, which is only tangentially related to the merits of 17 the case. Cf. Ctr. for Auto Safety, 809 F.3d at 1097; LELO, Inc. v. Standard Innovation (US) 18 Corp., No. 13-CV-01393-JD, 2014 WL 2879851 (N.D. Cal. June 24, 2014) (applying “good 19 cause” standard to evaluate sealing of documents submitted with a motion to stay); E. W. Bank v. 20 Shanker, 2021 WL 4916729, at *1 (N.D. Cal. Aug. 31, 2021) (same). The Court will address each 21 motion in turn. 22 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. 23 207) 24 On August 11, 2023, Skillz filed an administrative motion to consider whether another 25 party’s material should be sealed identifying its motion to reopen discovery and for sanctions, 26 ECF No. 208, and the exhibits attached to that motion as containing information that AviaGames 27 has designated as highly confidential. ECF No. 207. As of the date of this Order, AviaGames has 1 e.g., Plexxikon Inc. v. Novartis Pharms. Corp., No. 17-CV-04405-HSG, 2022 WL 1131725, at *2 2 (N.D. Cal. Mar. 31, 2022) (denying motions to seal because the designating party failed to comply 3 with Civ. L.R. 79-5(f)(3)). However, as described below, AviaGames’ statement in support of 4 sealing the certified translations of Exhibits C through O applies equally to the uncertified 5 translations in this motion. See ECF No. 228. As such, the Court will construe AviaGames’ 6 statement as supporting the sealing of the uncertified versions of Exhibits C through O. 7 The Court rules as follows:
8 ECF No. Document Portions to Seal Ruling 9 207-2 Skillz’s Emergency Entire Document DENIED, as failing to comply Motion to Reopen with Civ. L.R. 79-5(f)(3). 10 Discovery And For Sanctions 11 207-3 Exhibit A Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 12 207-4 Exhibit B Entire Document DENIED, as failing to comply 13 with Civ. L.R. 79-5(f)(3). 207-5 Exhibit C Entire Document GRANTED, as containing 14 confidential business information the release of which would cause 15 competitive harm. 16 207-6 Exhibit D Entire Document GRANTED, as containing confidential business information 17 the release of which would cause competitive harm. 18 207-7 Exhibit E Entire Document GRANTED, as containing confidential business information 19 the release of which would cause 20 competitive harm. 207-8 Exhibit F Entire Document GRANTED, as containing 21 confidential business information the release of which would cause 22 competitive harm. 207-9 Exhibit G Entire Document GRANTED, as containing 23 confidential business information 24 the release of which would cause competitive harm. 25 207-10 Exhibit H Entire Document GRANTED, as containing confidential business information 26 the release of which would cause 27 competitive harm. 207-11 Exhibit I Entire Document GRANTED, as containing the release of which would cause 1 competitive harm. 2 207-12 Exhibit J Entire Document GRANTED, as containing confidential business information 3 the release of which would cause competitive harm. 4 207-13 Exhibit K Entire Document GRANTED, as containing confidential business information 5 the release of which would cause 6 competitive harm. 207-14 Exhibit L Entire Document GRANTED, as containing 7 confidential business information the release of which would cause 8 competitive harm. 9 207-15 Exhibit M Entire Document GRANTED, as containing confidential business information 10 the release of which would cause competitive harm. 11 207-16 Exhibit N Entire Document GRANTED, as containing confidential business information 12 the release of which would cause 13 competitive harm. 207-17 Exhibit O Entire Document GRANTED, as containing 14 confidential business information the release of which would cause 15 competitive harm. 207-18 Exhibit P Entire Document DENIED, as failing to comply 16 with Civ. L.R. 79-5(f)(3). 17 207-19 Exhibit Q Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 18 207-20 Exhibit R Entire Document DENIED, as failing to comply with Civ. L.R. 79-5(f)(3). 19 207-21 Exhibit S Entire Document DENIED, as failing to comply 20 with Civ. L.R. 79-5(f)(3). 207-22 Exhibit T Entire Document DENIED, as failing to comply 21 with Civ. L.R. 79-5(f)(3). 22 The denials based on failure to comply with Civ. L.R. 79-5(f)(3) are WITHOUT PREJUDICE to 23 AviaGames filing a statement and/or declaration in support of sealing these documents within 10 24 days of the date of this Order. 25 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 26 Reopen Discovery and for Sanctions (ECF No. 219) 27 Skillz filed an administrative motion to consider whether another party’s material should 1 and for sanctions, ECF No. 220, as containing information that AviaGames has designated as 2 highly confidential. ECF No. 217. 3 AviaGames filed a statement in support of the sealing. ECF No. 228. AviaGames 4 provides that the exhibits “contain aspects of AviaGames’ business practices and strategy, and 5 describing operation of source code.” Id. ¶ 3. It states that release of this information would cause 6 competitive harm and that the request is narrowly tailored. Id. ¶ 4. Because AviaGames’ 7 reasoning with respect to the certified translations of these exhibits applies equally to the 8 uncertified versions, the Court will construe AviaGames’ statement as also supporting the 9 uncertified versions. 10 Good cause exists to seal trade secrets. Kamakana, 447 F.3d at 1179. Confidential source 11 code and confidential business information that would harm a party’s competitive standing meet 12 the compelling reasons standard, and thus also meet the “less exacting” good cause standard. See 13 Ctr. for Auto Safety, 809 F.3d at 1097; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11- 14 CV-01846-LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012) (finding that “[c]onfidential 15 source code clearly meets the definition of a trade secret,” and meets the compelling reasons 16 standard); Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 17 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and proprietary 18 information relating to the operations of both Plaintiff and Defendant”); Fed. Trade Comm’n v. 19 Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 2019) (finding 20 compelling reasons for “information that, if published, may harm [a party’s] or third parties’ 21 competitive standing and divulges terms of confidential contracts, contract negotiations, or trade 22 secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding sealable “business 23 information that might harm a litigant’s competitive standing”). 24 Thus, the Court rules as follows:
25 ECF No. Document Portions to Seal Ruling 26 219-2 Exhibit C1 Entire Document GRANTED, as containing confidential business information 27 the release of which would cause competitive harm. confidential business information 1 the release of which would cause 2 competitive harm. 219-4 Exhibit E1 Entire Document GRANTED, as containing 3 confidential business information the release of which would cause 4 competitive harm. 219-5 Exhibit F1 Entire Document GRANTED, as containing 5 confidential business information 6 the release of which would cause competitive harm. 7 219-6 Exhibit G1 Entire Document GRANTED, as containing confidential business information 8 the release of which would cause competitive harm. 9 219-7 Exhibit H1 Entire Document GRANTED, as containing 10 confidential business information the release of which would cause 11 competitive harm. 219-8 Exhibit I1 Entire Document GRANTED, as containing 12 confidential business information 13 the release of which would cause competitive harm. 14 219-9 Exhibit J1 Entire Document GRANTED, as containing confidential business information 15 the release of which would cause competitive harm. 16 219-10 Exhibit K1 Entire Document GRANTED, as containing 17 confidential business information the release of which would cause 18 competitive harm. 219-11 Exhibit L1 Entire Document GRANTED, as containing 19 confidential business information 20 the release of which would cause competitive harm. 21 219-12 Exhibit M1 Entire Document GRANTED, as containing confidential business information 22 the release of which would cause competitive harm. 23 219-13 Exhibit N1 Entire Document GRANTED, as containing 24 confidential business information the release of which would cause 25 competitive harm. 219-14 Exhibit O1 Entire Document GRANTED, as containing 26 confidential business information the release of which would cause 27 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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