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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10
11 THE UPPER DECK COMPANY, Case No. 24-cv-0923-BAS-DEB 12 Plaintiff, ORDER GRANTING IN PART AND 13 DENYING IN PART PARTIES’ v. MOTIONS TO SEAL 14 (ECF Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107) 15 PIXELS.COM, LLC, 16 Defendant. 17
18 Before the Court are nine motions by the Parties to file documents under seal. (ECF 19 Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107.) Plaintiff The Upper Deck Company (“Upper 20 Deck”) seeks leave to file under seal portions of its Motion for Summary Adjudication 21 (ECF No. 81), its Opposition to Defendant’s Motion for Summary Judgment (ECF No. 91), 22 its Reply in support of its Motion for Summary Adjudication (ECF No. 95), and its 23 Opposition to Defendant’s Motion to Exclude the Testimony of Christian Tregillis (ECF 24 No. 102). 25 Defendant Pixels.com (“Pixels”) seeks leave to file under seal portions of its Motion 26 for Summary Judgment (ECF No. 75), its Motion to Exclude (ECF No. 78), its Opposition 27 to Plaintiff’s Motion for Summary Adjudication (ECF No. 88), its Reply in support of its 28 1 Motion for Summary Judgment (ECF No. 97), and its Reply in support of its Motion to 2 Exclude (ECF No. 107). All nine motions to seal are unopposed. 3 For the reasons stated below, the Court GRANTS IN PART and DENIES IN 4 PART the motions to seal portions of (1) Defendant’s Motion to Exclude; (2) Plaintiff’s 5 Motion for Summary Adjudication; and (3) Plaintiff’s Opposition to Defendant’s Motion 6 for Summary Judgment. (ECF Nos. 78, 81, 91.) The Court DENIES the motions to seal 7 portions of (1) Defendant’s Motion for Summary Judgment; (2) Defendant’s Opposition to 8 Plaintiff’s Motion for Summary Adjudication; (3) Plaintiff’s Reply in support of its Motion 9 for Summary Adjudication; (4) Defendant’s Reply in support of its Motion for Summary 10 Judgment; (5) Plaintiff’s Opposition to Defendant’s Motion to Exclude; and 11 (6) Defendant’s Reply in support of its Motion to Exclude. (ECF Nos. 75, 88, 95, 97, 102, 12 107.) 13 I. LEGAL STANDARD 14 “[T]he courts of this country recognize a general right to inspect and copy public 15 records and documents, including judicial records and documents.” Nixon v. Warner 16 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 17 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 18 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 19 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 20 of access is ‘based on the need for federal courts, although independent—indeed, 21 particularly because they are independent—to have a measure of accountability and for the 22 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 23 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 24 1044, 1048 (2d Cir. 1995)). 25 A party seeking to seal a judicial record bears the burden of overcoming the strong 26 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 27 depends upon whether the documents to be sealed relate to a motion that is “more than 28 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1101. When 1 the underlying motion is more than tangentially related to the merits, the “compelling 2 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 3 the tangential relevance threshold, the “good cause” standard applies. Id. 4 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 5 disclosure and justify sealing court records exist when such ‘court files might have become 6 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 7 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 8 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). As to this last category, courts have been 9 willing to seal court filings containing confidential business material, “such as marketing 10 strategies, product development plans, licensing agreements, and profit, cost, and margin 11 data,” where the parties have been able to point to concrete factual information to justify 12 sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 3036302, at *5 13 (S.D. Cal. May 27, 2016). However, “[t]he mere fact that the production of records may 14 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 15 without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. 16 Similarly, it is not enough to “mention[] a general category of privilege, without any further 17 elaboration or any specific linkage with the documents.” Id. at 1184. A blanket protective 18 order is not itself sufficient to show “good cause,” let alone compelling reasons, for sealing 19 particular documents. See Foltz, 331 F.3d at 1133; San Jose Mercury News, Inc. v. U.S. 20 Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). The decision to seal documents is 21 “one best left to the sound discretion of the trial court” upon consideration of the “relevant 22 facts and circumstances of the particular case.” Nixon, 435 U.S. at 599. 23 In addition, parties moving to seal documents must comply with the procedures set 24 forth in this Court’s Standing Order for filing documents under seal. See Standing Order 25 of the Hon. Cynthia Bashant for Civil Cases § 5. These procedures limit sealing to “only 26 those documents, or portions thereof, necessary to protect such sensitive information.” Id. 27 Thus, although sometimes it may be appropriate to seal a document in its entirety, 28 whenever possible, a party must redact. See Kamakana, 447 F.3d at 1183 (noting a 1 preference for redactions so long as they “have the virtue of being limited and clear”); 2 Murphy v. Kavo Am. Corp., No. 11-cv-00410-YGR, 2012 WL 1497489, at *2–3 (N.D. Cal. 3 Apr. 27, 2012) (denying motion to seal exhibits but directing parties to redact confidential 4 information). 5 II. ANALYSIS 6 Plaintiff’s and Defendant’s motions to seal are filed in connection with Plaintiff’s 7 Motion for Summary Adjudication, Defendant’s Motion for Summary Judgment, and 8 Defendant’s Motion to Exclude. Because a motion for summary judgment or adjudication 9 is more than tangentially related to the merits of the underlying dispute, the relevant 10 motions to seal are subject to the “compelling reasons” standard. Kamakana, 447 F.3d at 11 1179. Similarly, evidentiary motions, including motions to exclude expert witnesses, are 12 often “strongly correlative to the merits of a case” and warrant the application of the 13 “compelling reasons” standard. Ctr. for Auto Safety, 809 F.3d at 1100. Accordingly, the 14 Court reviews each motion in light of this standard and for whether the motion to seal is 15 sufficiently tailored. Upon review, several common threads lead the Court to deny most 16 of the Parties’ motions. The Court will address each issue in turn. 17 A. Denied Motions to Seal 18 1. Defendant Must Publicly File Copies of the Documents with 19 Proposed Redactions 20 In support of its motion to seal, the moving party must lodge a sealed, unredacted 21 proposed document and file a copy of the document with the party’s proposed redactions 22 on the public docket.
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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10
11 THE UPPER DECK COMPANY, Case No. 24-cv-0923-BAS-DEB 12 Plaintiff, ORDER GRANTING IN PART AND 13 DENYING IN PART PARTIES’ v. MOTIONS TO SEAL 14 (ECF Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107) 15 PIXELS.COM, LLC, 16 Defendant. 17
18 Before the Court are nine motions by the Parties to file documents under seal. (ECF 19 Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107.) Plaintiff The Upper Deck Company (“Upper 20 Deck”) seeks leave to file under seal portions of its Motion for Summary Adjudication 21 (ECF No. 81), its Opposition to Defendant’s Motion for Summary Judgment (ECF No. 91), 22 its Reply in support of its Motion for Summary Adjudication (ECF No. 95), and its 23 Opposition to Defendant’s Motion to Exclude the Testimony of Christian Tregillis (ECF 24 No. 102). 25 Defendant Pixels.com (“Pixels”) seeks leave to file under seal portions of its Motion 26 for Summary Judgment (ECF No. 75), its Motion to Exclude (ECF No. 78), its Opposition 27 to Plaintiff’s Motion for Summary Adjudication (ECF No. 88), its Reply in support of its 28 1 Motion for Summary Judgment (ECF No. 97), and its Reply in support of its Motion to 2 Exclude (ECF No. 107). All nine motions to seal are unopposed. 3 For the reasons stated below, the Court GRANTS IN PART and DENIES IN 4 PART the motions to seal portions of (1) Defendant’s Motion to Exclude; (2) Plaintiff’s 5 Motion for Summary Adjudication; and (3) Plaintiff’s Opposition to Defendant’s Motion 6 for Summary Judgment. (ECF Nos. 78, 81, 91.) The Court DENIES the motions to seal 7 portions of (1) Defendant’s Motion for Summary Judgment; (2) Defendant’s Opposition to 8 Plaintiff’s Motion for Summary Adjudication; (3) Plaintiff’s Reply in support of its Motion 9 for Summary Adjudication; (4) Defendant’s Reply in support of its Motion for Summary 10 Judgment; (5) Plaintiff’s Opposition to Defendant’s Motion to Exclude; and 11 (6) Defendant’s Reply in support of its Motion to Exclude. (ECF Nos. 75, 88, 95, 97, 102, 12 107.) 13 I. LEGAL STANDARD 14 “[T]he courts of this country recognize a general right to inspect and copy public 15 records and documents, including judicial records and documents.” Nixon v. Warner 16 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 17 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 18 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 19 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 20 of access is ‘based on the need for federal courts, although independent—indeed, 21 particularly because they are independent—to have a measure of accountability and for the 22 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 23 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 24 1044, 1048 (2d Cir. 1995)). 25 A party seeking to seal a judicial record bears the burden of overcoming the strong 26 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 27 depends upon whether the documents to be sealed relate to a motion that is “more than 28 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1101. When 1 the underlying motion is more than tangentially related to the merits, the “compelling 2 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 3 the tangential relevance threshold, the “good cause” standard applies. Id. 4 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 5 disclosure and justify sealing court records exist when such ‘court files might have become 6 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 7 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 8 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). As to this last category, courts have been 9 willing to seal court filings containing confidential business material, “such as marketing 10 strategies, product development plans, licensing agreements, and profit, cost, and margin 11 data,” where the parties have been able to point to concrete factual information to justify 12 sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 3036302, at *5 13 (S.D. Cal. May 27, 2016). However, “[t]he mere fact that the production of records may 14 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 15 without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. 16 Similarly, it is not enough to “mention[] a general category of privilege, without any further 17 elaboration or any specific linkage with the documents.” Id. at 1184. A blanket protective 18 order is not itself sufficient to show “good cause,” let alone compelling reasons, for sealing 19 particular documents. See Foltz, 331 F.3d at 1133; San Jose Mercury News, Inc. v. U.S. 20 Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). The decision to seal documents is 21 “one best left to the sound discretion of the trial court” upon consideration of the “relevant 22 facts and circumstances of the particular case.” Nixon, 435 U.S. at 599. 23 In addition, parties moving to seal documents must comply with the procedures set 24 forth in this Court’s Standing Order for filing documents under seal. See Standing Order 25 of the Hon. Cynthia Bashant for Civil Cases § 5. These procedures limit sealing to “only 26 those documents, or portions thereof, necessary to protect such sensitive information.” Id. 27 Thus, although sometimes it may be appropriate to seal a document in its entirety, 28 whenever possible, a party must redact. See Kamakana, 447 F.3d at 1183 (noting a 1 preference for redactions so long as they “have the virtue of being limited and clear”); 2 Murphy v. Kavo Am. Corp., No. 11-cv-00410-YGR, 2012 WL 1497489, at *2–3 (N.D. Cal. 3 Apr. 27, 2012) (denying motion to seal exhibits but directing parties to redact confidential 4 information). 5 II. ANALYSIS 6 Plaintiff’s and Defendant’s motions to seal are filed in connection with Plaintiff’s 7 Motion for Summary Adjudication, Defendant’s Motion for Summary Judgment, and 8 Defendant’s Motion to Exclude. Because a motion for summary judgment or adjudication 9 is more than tangentially related to the merits of the underlying dispute, the relevant 10 motions to seal are subject to the “compelling reasons” standard. Kamakana, 447 F.3d at 11 1179. Similarly, evidentiary motions, including motions to exclude expert witnesses, are 12 often “strongly correlative to the merits of a case” and warrant the application of the 13 “compelling reasons” standard. Ctr. for Auto Safety, 809 F.3d at 1100. Accordingly, the 14 Court reviews each motion in light of this standard and for whether the motion to seal is 15 sufficiently tailored. Upon review, several common threads lead the Court to deny most 16 of the Parties’ motions. The Court will address each issue in turn. 17 A. Denied Motions to Seal 18 1. Defendant Must Publicly File Copies of the Documents with 19 Proposed Redactions 20 In support of its motion to seal, the moving party must lodge a sealed, unredacted 21 proposed document and file a copy of the document with the party’s proposed redactions 22 on the public docket. Without the proposed redactions, a court is unable to assess whether 23 there is a compelling reason to justify those redactions or whether the redactions are 24 narrowly tailored, especially when the moving party only seeks to redact portions of a 25 document. Here, Defendant has failed to publicly file copies of the documents with 26 Defendant’s proposed redactions. Thus, the Court cannot assess the merits of these 27 motions to seal and DENIES without prejudice Defendant’s motions to seal portions of 28 Defendant’s Memorandum in support of Defendant’s Motion for Summary Judgment and 1 portions of Exhibits 104 and 110 attached to Defendant’s Motion for Summary Judgment 2 (ECF No. 75); portions of Defendant’s Memorandum in support of Defendant’s Motion to 3 Exclude (ECF No. 78); portions of Defendant’s Memorandum in support of Defendant’s 4 Opposition to Plaintiff’s Motion for Summary Adjudication (ECF No. 88); portions of 5 Defendant’s Memorandum in support of Defendant’s Reply to its Motion for Summary 6 Judgment (ECF No. 97); and portions of Defendant’s Memorandum in support of 7 Defendant’s Reply to its Motion to Exclude (ECF No. 107).1 8 2. Parties Must Confer and Submit Responses in Support of Relevant 9 Motions to Seal 10 The Court’s Standing Order notes, “[t]he fact that both sides agree to seal a document 11 or that a stipulated protective order was issued is insufficient cause for sealing.” Standing 12 Order § 5.A. “Parties often seek to seal a document only because another party designated 13 the document as sensitive under a protective order . . . [i]n these circumstances, the moving 14 party must first meet and confer with the designating party to determine whether the 15 designating party maintains that any portion of the document must be filed under seal.” Id. 16 Then, “the designating party must file a response to the sealing motion within seven days 17 that satisfies the sealing standard . . . . If no response is filed, the Court may order that the 18 document be filed in the public record.” Id. 19 Defendant has failed to meet this requirement in several instances: 20 Plaintiff’s motion to file under seal portions of its Opposition to Defendant’s 21 Motion for Summary Judgment (ECF No. 91) includes exhibits designated 22 “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY” by 23 Defendant, namely Exhibits 10 and 13, but Defendant has failed to file an 24 appropriate response. 25 26 1 In addition to providing proposed redactions, Defendant must also update its tables. For example, 27 Defendant seeks to redact page two, lines twenty-three through twenty-four of its Memorandum in support of Defendant’s Motion to Exclude. (ECF No. 78.) These lines recite Federal Rule of Evidence 702, which 28 1 Plaintiff’s motion to file under seal portions of its Reply in support of its Motion 2 for Summary Adjudication (ECF No. 95) refers to materials designated 3 “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY” by 4 Defendant, but Defendant has failed to file an appropriate response. 5 Finally, Plaintiff’s motion to file under seal its Opposition to Defendant’s Motion 6 to Exclude (ECF No. 102) includes exhibits designated “CONFIDENTIAL” or 7 “CONFIDENTIAL – FOR COUNSEL ONLY” by Defendant, namely Exhibits 8 F, G, and M, but Defendant has failed to file an appropriate response. 9 Accordingly, the Court DENIES without prejudice the request to seal these 10 documents because Defendant has not filed an appropriate response (ECF Nos. 91, 95, 11 102). 12 3. Proposed Redactions Must Be Narrowly Tailored 13 “Only those documents, or portions thereof, necessary to protect such sensitive 14 information” may be sealed. Standing Order § 5.A. As such, whenever possible, the 15 moving party must redact. See Kamakana, 447 F.3d at 1183; Murphy, 2012 WL 1497489, 16 at *2–3. Redactions must be narrowly tailored such that only information that meets the 17 compelling reasons standard is redacted. See Kamakana, 447 F.3d at 1183 (highlighting 18 the “limited and clear” nature and specificity of the redactions); ImprimisRx, LLC v. OSRX, 19 Inc., No. 21-cv-01305-BAS-DL, 2023 WL 7029210, at *4 (S.D. Cal. Oct. 24, 2023) 20 (rejecting redactions that were insufficiently tailored). The moving party must provide the 21 compelling reason justifying the proposed redactions. Foltz, 331 F.3d at 1135. 22 Litigation predicated upon contracts cannot be conducted in secret. JBS Packerland, 23 Inc. v. Phillips Cattle Co., Inc., No. 24-cv-01299-BAS-MSB, 2024 WL 4280960, at *2 24 (S.D. Cal. Sept. 24, 2024). The public has the right to know the gist of the underlying 25 agreements in order to understand the court’s rulings. Id. Accordingly, mere vague or 26 ambiguous references to sealed documents, without any discussion of the substance of the 27 sealed documents, do not meet the compelling reasons standard. See Nia v. Bank of Am., 28 N.A., No. 21-cv-1799-BAS-BGS, 2024 WL 171659, at *9 (S.D. Cal. Jan. 12, 2024); 1 ImprimisRx, LLC, 2023 WL 7029210, at *5. Similarly, information that is merely 2 embarrassing, incriminating, or exposes a party to further litigation is not enough to 3 overcome the presumption of public access. Kamakana, 447 F.3d at 1179. Finally, 4 information already available to the public cannot meet the compelling reasons standard. 5 See id. at 1184. 6 The Parties have failed to satisfy the compelling reasons standard with respect to the 7 following exhibits and their accompanying motions to seal because their proposed 8 redactions are overbroad, the Parties have provided only vague reasons to shield these 9 documents from the public, and the Parties have not provided any factual information 10 demonstrating a compelling reason to seal the documents. See Cohen, 2016 WL 3036302, 11 at *5; ImprimisRx, LLC, 2023 WL 7029210, at *4; Nia, 2024 WL 171659, at *9. 12 The Parties seek to seal several agreements, the existence of which is publicly 13 available. (ECF Nos. 75, 78, Ex. 7; ECF Nos. 75, 78, Ex. 10; ECF No. 78, Ex. 20; ECF 14 No. 91, Ex. 8.) There cannot be a compelling reason to hide the entirety of these documents 15 from the public when the existence and certain details of the agreements are already in the 16 public sphere. Kamakana, 447 F.3d at 1184. Moreover, Exhibit 7 (the agreement between 17 Upper Deck and Michael Jordan) is a cornerstone document in this case and is referenced 18 extensively in Plaintiff’s Complaint. (See, e.g., Compl. ¶¶ 23–27, ECF No. 1.) While there 19 may be certain terms or specific pieces of information that constitute sensitive, confidential 20 business information, the agreements in their entirety cannot be kept from the public, 21 particularly considering the agreements are central to this case. See JBS Packerland, 2024 22 WL 4280960, at *2. 23 The Parties also seek to seal various expert reports and excerpts of deposition 24 transcripts in their entirety. (ECF No. 78, Exs. 94, 98; ECF No. 81, Ex. 6; ECF No. 91, 25 Exs. 3, 5, 7, 10; ECF No. 102, Exs. C, E, G, M.) Although there may be a compelling 26 reason to redact some of the information contained in these documents, sealing them in 27 their entirety would be overbroad. See Kamakana, 447 F.3d at 1183; ImprimisRx, LLC, 28 2023 WL 7029210, at *4. There is at least some information in each of these documents 1 that does not consist of confidential business information, trade secrets, or information that 2 otherwise meets the compelling reasons standard. For example, as just a starting point, the 3 experts’ methodologies listed in their reports or mere background information included in 4 the deposition transcripts should remain public. (See, e.g., ECF No. 82-4 at ¶¶ 1–8; ECF 5 No. 83-3 at ¶ 39; ECF No. 92-1 at 3; ECF No. 92-2 at 5; ECF No. 92-5 at 3.) 6 Even when the Parties have refrained from seeking to seal a document entirely, their 7 proposed redactions are overbroad. For instance, Plaintiff seeks to seal portions of its 8 Memorandum in support of Plaintiff’s Motion for Summary Adjudication and its 9 Memorandum in support of Plaintiff’s Opposition to Defendant’s Motion for Summary 10 Judgment. (ECF Nos. 81, 91.) Plaintiff’s proposed redactions would hide background 11 information about the Parties, the agreements referenced above, and this case itself. (See, 12 e.g., ECF No. 83-5 at 2:8–24, 3:1–12, 3:24–4:2; ECF No. 92-8 at 5:3–5, 5:22–6:14, 12:19– 13 22.) These proposed redactions are overbroad. See Kamakana, 447 F.3d at 1183; 14 ImprimisRx, LLC, 2023 WL 7029210, at *4. The Court notes, however, that Defendant 15 proposes much more limited redactions to Plaintiff’s Memorandum in support of Plaintiff’s 16 Motion for Summary Adjudication. (ECF No. 87-1 ¶ 9.) Indeed, the three lines Defendant 17 proposes to redact from the Memorandum are narrowly tailored only to conceal specific 18 sales information, and this request satisfies the compelling reasons standard. (ECF No. 83- 19 5 at 4:20–21, 10:16.) 20 Plaintiff also seeks to redact Exhibit 3 in connection with its Motion for Summary 21 Adjudication (ECF No. 81) and portions of its Reply in support of its Motion for Summary 22 Adjudication (ECF No. 95). Much of the information Plaintiff proposes to redact merely 23 references confidential documents without discussing their substance. The mere existence 24 of an exhibit is not confidential, even if the substance of that document does contain 25 sensitive information. See Nia, 2024 WL 171659, at *9; ImprimisRx, LLC, 2023 WL 26 7029210, at *5. Accordingly, these proposed redactions are overbroad. 27 Plaintiff seeks to redact portions of its Opposition to Defendant’s Motion to Exclude. 28 (ECF No. 102.) Some of the redactions seek to hide information that may be embarrassing 1 but does not constitute sensitive, confidential business information. (See ECF No. 103-6 2 at 2:27–3:1.) Without further factual information supporting a compelling reason to shield 3 this information from the public, this redaction is overbroad. See Kamakana, 447 F.3d at 4 1183; ImprimisRx, LLC, 2023 WL 7029210, at *4. 5 The motions to seal the above-referenced exhibits and memoranda are DENIED 6 without prejudice. The Parties must provide compelling reasons justifying the need to 7 redact the information contained in these documents. Moreover, the Parties must narrowly 8 tailor their redactions to hide only the information that meets the compelling reasons 9 standard. 10 4. Parties Must Demonstrate a Compelling Reason to Seal 11 The burden is on the moving party—or the proponent of keeping the document 12 secret—to overcome the strong presumption of public access. See Foltz, 331 F.3d at 1135. 13 The moving party must point to a compelling reason, supported by concrete factual 14 information, to justify sealing. Ctr. for Auto Safety, 809 F.3d at 1103; Cohen, 2016 WL 15 3036302, at *5. Generalized or vague statements that a document is confidential or secret 16 are insufficient to meet the compelling reasons standard. Foltz, 331 F.3d at 1133; Nia, 17 2024 WL 171659, at *9. 18 Generally, the Parties have not provided enough information to meet the compelling 19 reasons standard. See Kamakana, 447 F.3d at 1183 (rejecting “the broad, categorical 20 approach” taken to justify redactions). Moreover, in a few instances, the Parties have 21 provided so little factual information in support of their motions to seal that the Court 22 cannot assess the merits of the motions. 23 First, Defendant seeks to seal Exhibit 105 in connection with its Motion for 24 Summary Judgment. (ECF No. 75.) In support, Defendant only notes that the documents 25 have been designated “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL 26 ONLY” by Plaintiff. (ECF No. 75-1 at ¶ 3.) Plaintiff has filed a response in support of 27 this motion, noting that Exhibit 105 “is subject to confidentiality, trade secret protection, 28 and the right to privacy[.]” (ECF No. 86 at 2:8–12.) Without any additional context or 1 factual support, it is unclear whether this email chain contains information that may harm 2 Plaintiff’s competitive standing or that constitutes sensitive, confidential business 3 information. See Ctr. for Auto Safety, 809 F.3d at 1097; In re Qualcomm Litig., No. 3:17- 4 cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017). 5 More perplexingly, Plaintiff seeks to seal Exhibit 5 in connection with its Motion 6 for Summary Adjudication. (ECF No. 81.) Plaintiff points only to the fact that the 7 document was marked “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL 8 ONLY” by Defendant in support of its motion. (ECF No. 81-1 at ¶ 2.) In its response in 9 support, Defendant does not mention Exhibit 5 at all. (ECF No. 87.) As such, the Court is 10 not left with any basis on which to find that there is a compelling reason to seal this 11 document. Further, if Defendant concedes that Exhibit 5 should not be placed under seal, 12 then Defendant must inform the Court accordingly. 13 Each of the above-mentioned motions is DENIED without prejudice. The Parties 14 must provide compelling reasons supported by facts and arguments in order to overcome 15 the presumption of public access. 16 B. Granted Motions to Seal 17 Courts have been willing to seal court filings containing confidential business 18 material, “such as marketing strategies, product development plans, licensing agreements, 19 and profit, cost, and margin data,” where the parties have been able to point to concrete 20 factual information to justify sealing. See, e.g., Cohen, 2016 WL 3036302, at *5. 21 Defendant seeks to seal Exhibit 100 in connection with its Motion to Exclude. (ECF 22 No. 78.) Plaintiff responds in support, stating that the document contains confidential and 23 trade secret protected information. (ECF No. 86 at ¶ 4.) The last page of Exhibit 100 24 clearly contains sales, profit, and margin data, which presents a compelling reason to seal 25 this page of the Exhibit. See Cohen, 2016 WL 3036302, at *5. The remainder of the 26 exhibit, however, is plainly not sealable. Therefore, Defendant must still publicly file a 27 redacted version of Exhibit 100 that only hides from public view the sensitive page at issue. 28 1 Additionally, Plaintiff seeks to redact Exhibit 9 attached to Plaintiff’s Motion for 2 Summary Adjudication. (ECF No. 81.) Defendant responds in support, noting that this 3 document contains confidential sales and contributor information. (See ECF No. 87-1 at ¶ 4 5.) Exhibit 9 clearly contains Defendant’s sales data. (ECF No. 83-4.) The Court finds 5 that protecting this sales data presents a compelling reason to seal. See Cohen, 2016 WL 6 3036302, at *5. 7 Plaintiff also seeks to seal Exhibit 15 attached to Plaintiff’s Opposition to 8 Defendant’s Motion for Summary Judgment. (ECF No. 91.) In support, Plaintiff notes 9 that the Exhibit contains royalty reports submitted to Jump 23 by Plaintiff. (Id. at 3.) The 10 exhibit, which consists of seven spreadsheets, clearly includes specific sales, profit, and 11 margin data. (ECF No. 92-7.) The Court finds that protecting this data presents a 12 compelling reason to seal. See Cohen, 2016 WL 3036302, at *5. 13 The Court finds the information contained in the above-referenced exhibits is 14 commercially sensitive without additional factual support, but the Court cautions the 15 Parties that any renewed motion to seal must contain a declaration from a witness with 16 personal knowledge that addresses why the information is commercially sensitive. 17 Accordingly, the motions to seal and redact the last page of Exhibit 100 attached to 18 Defendant’s Motion to Exclude (ECF No. 78), Exhibit 9 attached to Plaintiff’s Motion for 19 Summary Adjudication (ECF No. 81), and Exhibit 15 attached to Plaintiff’s Opposition to 20 Defendant’s Motion for Summary Judgment (ECF No. 91) are GRANTED. 21 III. CONCLUSION 22 Based on the foregoing, the Court: 23 (1) DENIES Defendant’s motions to file documents under seal. (ECF Nos. 75, 24 88, 97, 107.) 25 (2) DENIES Plaintiff’s motions to file documents under seal. (ECF Nos. 95, 26 102.) 27 (3) GRANTS IN PART and DENIES IN PART Defendant’s motion to file 28 documents under seal. (ECF No. 78.) 1 (4) GRANTS IN PART and DENIES IN PART Plaintiffs motions to file 2 documents under seal. (ECF Nos. 81, 91.) 3 The Clerk of Court shall accept and FILE UNDER SEAL unredacted copies of 4 || Exhibit 100 attached to Defendant’s Motion to Exclude (ECF No. 82-8), Exhibit 9 attached 5 ||to Plaintiff's Motion for Summary Adjudication (ECF No. 83-4), and Exhibit 15 attached 6 || to Plaintiff's Opposition to Defendant’s Motion for Summary Judgment (ECF No. 92-7). 7 If Plaintiff or Defendant wishes to file a renewed motion to seal for the denied 8 ||requests, it may do so no later than August 8, 2025. Otherwise, Plaintiff and Defendant 9 || are instructed to file the unredacted versions of the aforementioned documents as directed 10 || by the Court in this Order on the public docket no later than August 15, 2025. The Parties 11 publicly file on CM/ECF as a “Notice Regarding Exhibit Attachment” revised 12 || versions of these documents with only those redactions that the Court has approved. 13 The Court also reminds the Parties that when filing the documents on the public 14 docket, they must strictly adhere to the relevant Federal Rules of Civil Procedure, this 15 || district’s Civil Local Rules, this Court’s Standing Order for Civil Cases, and this district’s 16 || Electronic Case Filing Administrative Policies & Procedures Manual. Further, the Court 17 || warns the Parties and their counsel that non-compliance with this order or any relevant 18 may result in sanctions pursuant to Civil Local Rule 83.1. 19 IT IS SO ORDERED. 20 21 ||DATED: July 28, 2025 yatta Bahar □□ H n. Cynthia Bashant, Chief Judge United States District Court 23 24 25 26 27 28