The Upper Deck Company v. Pixels.com, LLC

• Court: District Court, S.D. California
• Decided: February 26, 2026
• Docket: 3:24-cv-00923
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE UPPER DECK COMPANY, Case No. 24-cv-00923-BAS-DEB

12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 14 PIXELS.COM, LLC, MOTION TO SEAL (ECF No. 164); 15 Defendant. AND

16 (2) GRANTING PLAINTIFF’S 17 MOTION TO SEAL (ECF No. 169)

19 20 Presently before the Court is Plaintiff Upper Deck Company’s (“Upper Deck”) 21 renewed motions to seal. (ECF Nos. 164, 169.) For the reasons below, the Court 22 GRANTS IN PART and DENIES IN PART Upper Deck’s motion (ECF No. 164) in 23 accordance with Appendix A. The Court GRANTS Upper Deck’s motion (ECF No. 169) 24 in accordance with Appendix B. 25 I. BACKGROUND 26 Defendant Pixels.com (“Pixels”) allegedly interfered with Upper Deck’s exclusive 27 rights to use intellectual property assets associated with the brand of world-famous 28 basketball player, Michael Jordan (“Jordan”), to develop sports memorabilia. More 1 specifically, Pixels allegedly advertised and sold products appropriating Jordan’s likeness 2 online without either Upper Deck’s or Jordan’s permission. (ECF No. 24 ¶¶ 25–35.) Upper 3 Deck obtained the rights to use Michael Jordan’s likeness through licensing agreements. 4 (Id. ¶¶19–24.) Furthermore, Pixels’ products also allegedly misappropriated Upper Deck’s 5 own trademarks—including Upper Deck’s logo. (Id. ¶ 11.) 6 On May 28, 2024, Upper Deck initiated this action against Defendant Pixels.com 7 (“Pixels”). (ECF No. 1.) On October 1, 2024, Upper Deck filed the operative complaint 8 in this action alleging causes of action, inter alia, for: (1) false advertising and unfair 9 competition claims under the Lanham Act, 15 U.S.C.A. § 1125(a); (2) trademark dilution 10 under the Lanham Act, 15 U.S.C.A. § 1125(c); (3) trademark infringement under 15 11 U.S.C.A. § 1114; (4) deprivation of rights of publicity, Cal. Civ. Code § 3344; (5) 12 deprivation of rights of publicity under California common law; (6) unfair competition 13 under California statutory, Cal. Bus. & Prof. Code § 17200 et seq, and common law. (ECF 14 No. 24.) 15 Throughout the course of this action, both parties filed motions to seal. (See ECF 16 Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107.) The Court granted in part and denied in part 17 Parties’ motions (see ECF Nos. 110, 160, 163.) Now pending before the Court are Upper 18 Deck’s motions to seal portions of expert reports, third-party sublicensing agreements 19 attached to Parties’ motions for summary judgment (ECF No. 164), and portions of exhibits 20 attached to Parties’ pretrial disclosures (ECF No. 169). 21 In ECF No. 164, Upper Deck moved to seal specific portions of the following 22 documents: 23 1. An executed agreement between Brevettar, LLC and Trends International, LLC for 24 Trends International, LLC to sublicense Brevettar, LLC’s rights to use Michael 25 Jordan’s intellectual property (ECF No. 165, Ex. 20); 26 2. An expert report by Upper Deck’s expert, Christian Tregillis (ECF No. 165-1, Ex. 27 94); 28 3. An expert report by Pixels’ expert, Lindsey Fisher. (ECF No. 165-2, Ex. M.) 1 2 In ECF No. 169, Upper Deck moved to seal portions of the following exhibits 3 attached to pretrial disclosures: 4 4. An email exchange between third-parties Estee Portnoy and Dwight Manley dated 5 June 10, 2021. (ECF No. 170, Ex. 2.) 6 5. An email exchange between Jason Masherah (Upper Deck) and third-party Estee 7 Portnoy dated March 14, 2024. (ECF No. 170-1, Ex. 3.) 8 6. An email exchange between Estee Portnoy and Jason Masherah dated between April 9 1, 2021 and April 5, 2021. (ECF No. 170-2, Ex. 4.) 10 7. An email exchange between Estee Portnoy and Jason Masherah dated between April 11 23, 2021 and April 27, 2021. (ECF No. 170-3, Ex. 5.) 12 8. An email exchange between Estee Portnoy and Jason Masherah dated between April 13 23, 2021 through April 30, 2021. (ECF No. 170-4, Ex. 6.) 14 In this Order, the Court evaluates Upper Deck’s pending motions to seal above. 15 (ECF Nos. 164, 169.) 16 II. LEGAL STANDARD 17 “[T]he courts of this country recognize a general right to inspect and copy public 18 records and documents, including judicial records and documents.” Nixon v. Warner 19 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 20 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 21 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 22 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 23 of access is ‘based on the need for federal courts, although independent—indeed, 24 particularly because they are independent—to have a measure of accountability and for the 25 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 26 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 27 1044, 1048 (2nd Cir. 1995)). 28 1 A party seeking to seal a judicial record bears the burden of overcoming the strong 2 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 3 depends upon whether the documents to be sealed relate to a motion that is “more than 4 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1101. When 5 the underlying motion is more than tangentially related to the merits, the “compelling 6 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 7 the tangential relevance threshold, the “good cause” standard applies. Id. 8 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 9 disclosure and justify sealing court records exist when such ‘court files might have become 10 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 11 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 12 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). As to this last category, courts have been 13 willing to seal court filings containing confidential business material, “such as marketing 14 strategies, product development plans, licensing agreements, and profit, cost, and margin 15 data,” where the parties have been able to point to concrete factual information to justify 16 sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 3036302, at *5 17 (S.D. Cal. May 27, 2016). However, “[t]he mere fact that the production of records may 18 lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, 19 without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. 20 Similarly, it is not enough to “mention[] a general category of privilege, without any further 21 elaboration or any specific linkage with the documents.” Id. at 1184. A blanket protective 22 order is not itself sufficient to show “good cause,” let alone compelling reasons, for sealing 23 particular documents. See Foltz, 331 F.3d at 1133; San Jose Mercury News, Inc. v. U.S. 24 Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). The decision to seal documents is 25 “one best left to the sound discretion of the trial court” upon consideration of the “relevant 26 facts and circumstances of the particular case.” Nixon, 435 U.S. at 599. 27 In addition, parties moving to seal documents must comply with the procedures set 28 forth in this Court’s Standing Order for filing documents under seal. See Standing Order 1 of the Hon. Cynthia Bashant for Civil Cases § 5. These procedures limit sealing to “only 2 those documents, or portions thereof, necessary to protect such sensitive information.” Id. 3 Thus, although sometimes it may be appropriate to seal a document in its entirety, 4 whenever possible, a party must redact. See Kamakana, 447 F.3d at 1183 (noting a 5 preference for redactions so long as they “have the virtue of being limited and clear”); 6 Murphy v. Kavo Am. Corp., No. 11-cv-00410-YGR, 2012 WL 1497489, at *2–3 (N.D. Cal. 7 Apr. 27, 2012) (denying motion to seal exhibits but directing parties to redact confidential 8 information). 9 III. ANALYSIS 10 A. Whether Upper Deck Presents Compelling Reasons for its Proposed 11 Redactions (ECF No. 164) 12 1. Related Documents More Than Tangentially Related to Merits 13 As the Court previously found (ECF No. 110 at 4:6-16; ECF No. 160 at 6:8-17), 14 Upper Deck’s proposed documents to seal are more than “tangentially related to the merits” 15 when filed in connection with Parties’ summary judgment motions (ECF Nos. 74, 79). See 16 Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., No. 17-CV-555-L-NLS, 2018 WL 17 11457880, at *1 (S.D. Cal. Nov. 5, 2018) (“The compelling reasons standard applies to all 18 motions except those that are only ‘tangentially related to the merits of a case.’. . . 19 Defendants’ summary judgment motion is more than tangentially related to the merits”) 20 (citing Kamakana, 447 F.3d at 1179). As such, the Court finds Upper Deck’s renewed 21 motion to seal (ECF No. 164) is subject to the “compelling reasons” standard in Kamakana, 22 447 F.3d at 1179. 23 2. “Compelling Reasons” Legal Standard 24 Preventing the release of trade secrets generally constitutes a compelling reason to 25 seal such documents. Kamakana, 447 F.3d at 1179; see also Nixon, 435 U.S. at 598 26 (observing that the “common-law right of inspection has bowed before the power of a court 27 to insure that its records” are not used as “sources of business information that might harm 28 a litigant's competitive standing”); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1226– 1 28 (Fed.Cir.2013) (holding that under Ninth Circuit law, detailed product-specific 2 information and internal reports are appropriate to seal under the “compelling reasons” 3 standard where that information could be used to the company's competitive disadvantage). 4 A “trade secret may consist of any formula, pattern, device or compilation of 5 information which is used in [the party]'s business, and which gives [the party] an 6 opportunity to obtain an advantage over competitors who do not know or use it.” In re 7 Elec. Arts, Inc., 298 F. App'x 568, 569–70 (9th Cir. 2008) (citing Restatement of Torts § 8 757, cmt. B); see also Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972) (adopting the 9 Restatement definition and finding that “a detailed plan for the creation, promotion, 10 financing, and sale of contracts” constitutes a trade secret); Whyte v. Schlage Lock Co., 101 11 Cal.App.4th 1443, 1455-56 (2002). 12 Even if proposed material for sealing does not constitute a trade secret, it may still 13 be sealable as confidential business information. See In re Elec. Arts, Inc., 298 F. App'x at 14 569 (finding sealable “business information that might harm a litigant's competitive 15 standing”); see also Ctr. for Auto Safety, 809 F.3d at 1097 (citing Nixon, 435 U.S. at 598– 16 599) (“sources of business information that might harm a litigant's competitive standing” 17 are subject to sealing); see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017 18 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (sealing is warranted to prevent competitors 19 from “gaining insight into the parties' business model and strategy”); see also Garrity 20 Power Servs. LLC v. Samsung Elecs. Co., No. 21-MC-80159-JSC, 2021 WL 3473937, at 21 *1 (N.D. Cal. July 29, 2021) (“confidential business information in the form of ‘license 22 agreements, financial terms, details of confidential licensing negotiations, and business 23 strategies’ is sealable”). 24 However, not all business information is so confidential or sensitive that it must be 25 sealed. See, e.g., Open Text S.A. v. Box, Inc., No. 13-04910, 2014 WL 7368594, at *3 26 (N.D. Cal. Dec. 26, 2014) (declining to seal, for example, information about a litigant's 27 "product design and source code and highly confidential and competitively sensitive 28 business information including usage data," in the absence of demonstrating “specific 1 compelling reasons”); GoDaddy.com LLC v. RPost Commc'ns Ltd., No. 14-00126, 2014 2 WL 2117349, at *1 (D. Ariz. May 21, 2014) ("[A] party's allegations that material is 3 'confidential' or 'business information' are insufficient to justify sealing court records 4 containing such material unless the party proves the existence of compelling reasons such 5 as those set forth in Kamakana . . . "[O]nly in extremely limited circumstances will 6 confidential information actually merit the sealing of court records."). 7 Importantly, “[t]he proponent of sealing bears the burden with respect to sealing. 8 A failure to meet that burden means that the default posture of public access prevails.” 9 Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006). 10 3. “Narrowly Tailored” Legal Standard 11 “Only those documents, or portions thereof, necessary to protect such sensitive 12 information” may be sealed. Standing Order § 5.A. As such, whenever possible, the 13 moving party must redact only what is necessary. See Kamakana, 447 F.3d at 1183; 14 Murphy, 2012 WL 1497489, at *2–3. Redactions must be narrowly tailored such that only 15 information that meets the compelling reasons standard is redacted. See Kamakana, 447 16 F.3d at 1183 (highlighting the “limited and clear” nature and specificity of the redactions); 17 ImprimisRx, LLC v. OSRX, Inc., No. 21-cv-01305-BAS-DL, 2023 WL 7029210, at *4 18 (S.D. Cal. Oct. 24, 2023) (rejecting redactions that were insufficiently tailored). The 19 moving party must provide the compelling reason justifying the proposed redactions. 20 Foltz, 331 F.3d at 1135. 21 Litigation predicated upon contracts cannot be conducted in secret. JBS Packerland, 22 Inc. v. Phillips Cattle Co., Inc., No. 24-cv-01299-BAS-MSB, 2024 WL 4280960, at *2 23 (S.D. Cal. Sept. 24, 2024). The public has the right to know the gist of the underlying 24 agreements in order to understand the court’s rulings. Id. Accordingly, mere vague or 25 ambiguous references to sealed documents, without any discussion of the substance of the 26 sealed documents, do not meet the compelling reasons standard. See Nia v. Bank of Am., 27 N.A., No. 21-cv-1799-BAS-BGS, 2024 WL 171659, at *9 (S.D. Cal. Jan. 12, 2024); 28 1 ImprimisRx, LLC, 2023 WL 7029210, at *5. Information already available to the public 2 also cannot meet the compelling reasons standard. See id. at 1184. 3 4. Analysis of Compelling Reasons 4 i. Financial Data (e.g., Gross Revenue Amount, and Sales Data) 5 and Damages Calculation 6 “Sales data may constitute a trade secret if it is not readily ascertainable from a public 7 source but instead developed with a substantial amount of time, effort, and money.” Yeiser 8 Rsch. & Dev. LLC v. Teknor Apex Co., 281 F. Supp. 3d 1021, 1046 (S.D. Cal. 2017). The 9 Court has previously found that Pixels’ financial data and damages calculations based on 10 Pixels’ sales data are subject to sealing. (ECF No. 110 at 10:21–11:20; ECF No. 160 at 11 9:11-24.) 12 Here, Upper Deck also moves to seal portions of its expert declarations containing 13 product pricing. “[U]nder Ninth Circuit law, detailed product-specific financial 14 information and customer information may be sealed under the ‘compelling reasons’ 15 standard” where that information could harm the company’s competitive standing. Ovonic 16 Battery Co., Inc. v. Sanyo Elec. Co., Ltd, No. 14-CV-01637-JD, 2014 WL 2758756, at *2 17 (N.D. Cal. June 17, 2014) (citing Apple Inc., 727 F.3d at 1226, 1228) (finding that parties 18 had a significant interest in preventing the release of product-specific financial information 19 because it could harm their competitive standing). Finally, in the interest of narrowly 20 tailoring Upper Deck’s proposed redactions, the Court specifically finds that the sealing of 21 specific numerical values of financial data is proper (e.g., product-specific financial 22 information, sales data, and gross revenue). See In re NCAA Student-Athlete Name & 23 Likeness Licensing Litig., No. C 09-1967 CW, 2014 WL 662545, at *1 (N.D. Cal. Feb. 20, 24 2014) (“only the specific dollar amounts. . . may be sealed”); O'Bannon, 2014 WL 25 12997312, at *1 (same). 26 Thus, the Court GRANTS Upper Deck’s request to seal numerical values of Pixels’ 27 financial data and of experts’ damages calculations based upon Pixels’ financial data. 28 (ECF No. 110 at 10:21–11:20; ECF No. 160 at 9:11-24.) 1 ii. Licensing Agreement Terms 2 The Ninth Circuit has held that licensing agreement terms are sealable trade secrets 3 when such terms provide a plan for the formation and sale of contracts. In re Elec. Arts, 4 Inc., 298 F. App'x at 569–70 (finding license agreement to be a trade secret); France 5 Telecom S.A. v. Marvell Semiconductor Inc., No. 12-CV-04967-WHO, 2014 WL 4965995, 6 at *3 (N.D. Cal. Oct. 3, 2014) (“the information at issue—terms of a license agreement— 7 constitutes trade secrets and is properly sealed”). Those terms may constitute trade secrets 8 because their public disclosure may hinder the trade secret holder’s market competitiveness 9 and participation. See e.g., In re NCAA Student-Athlete Name & Likeness Licensing Litig., 10 2014 WL 662545, at *1 (“Because the public disclosure of some of these terms may 11 undermine NCAA's ability to negotiate future licensing agreements with other 12 broadcasters, these terms may be sealed.”). 13 However, there are limitations on the extent to which terms of a licensing agreement 14 can be sealed. In this section, the Court evaluates whether certain licensing terms that 15 Upper Deck seeks to redact (and references to those terms) constitute sealable trade secrets. 16 a. Royalty Rate, Minimum Guarantee, and 17 Compensation Clauses 18 As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.a), it is well- 19 established in the Ninth Circuit that “pricing terms, royalty rates, and guaranteed minimum 20 payment terms” of licensing agreements are sealable trade secrets. In re Elec. Arts, Inc., 21 298 F. App'x at 569–70; see also Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972) 22 (adopting the Restatement definition and finding that “a detailed plan for the creation, 23 promotion, financing, and sale of contracts” constitutes a trade secret) (citing Whyte v. 24 Schlage Lock Co., 101 Cal.App.4th 1443, 1455-56 (2002)). However, courts within the 25 Ninth Circuit have agreed that sealing only specific numerical values within such terms is 26 appropriate to ensure that redactions are narrowly tailored. See In re NCAA Student-Athlete 27 Name & Likeness Licensing Litig., 2014 WL 662545, at *1 (“only the specific dollar 28 amounts. . . may be sealed”); O'Bannon, 2014 WL 12997312, at *1 (same). Here, Upper 1 Deck moves again to seal royalty information in a licensing agreement. (See ECF No. 164 2 at 3:17–4:19). Since the Court previously granted redacting numerical values in licensing 3 clauses regarding royalty rates, minimum guarantees, and compensation and references to 4 those values in other documents (e.g., expert reports) (see ECF No. 160 § III.B.4.ii.a), the 5 Court GRANTS Upper Deck’s request to do so here (ECF No. 164). 6 b. Sample Review and Approval 7 As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.b), terms detailing 8 the process through which Upper Deck—as licensee of certain intellectual property 9 assets—submits its products for review by its licensor can also constitute trade secrets. 10 Those terms provide a blueprint for product development strategy, which if revealed, could 11 provide competitors an economic advantage. In re Hydroxycut Mktg. & Sales Practices 12 Litig., No. 09md2087 BTM (AJB), 2011 WL 864897, *2 (S.D. Cal. Mar. 11, 2011) (finding 13 compelling reasons to seal documents containing information revealing business and 14 marketing strategy and product development); see also In re ConAgra Foods, Inc., No. 15 CV1105379MMMAGRX, 2014 WL 12577132, at *5 (C.D. Cal. July 11, 2014) (finding 16 compelling reasons to seal given “the inclusion of trade secrets such as a company's internal 17 strategies, marketing research, sales data, and product development plans”). 18 Here, Upper Deck moves to seal the number of samples that Upper Deck submits to 19 Jump 23 for review and approval prior to distribution in its expert report. (See ECF No. 20 164 at 4:23-27, 5:11-15.) Since the Court has previously held Upper Deck can seal the 21 number of samples for review from the terms of its licensing agreements (ECF No. 160 § 22 III.B.4.ii.b), the Court GRANTS Upper Deck’s request to redact expert report references 23 to the number of samples for review and approval provided by licensing agreements. (See 24 ECF No. 164 at 4:23-27, 5:11-15.) 25 c. Signature-Related Terms 26 Upper Deck further moves to redact signature alternatives that its licensor agreed for 27 Michael Jordan to contribute for the development of Upper Deck’s products and services. 28 As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.c), terms related to the 1 provision of signatures are part of the product development process and thus, are trade 2 secrets. In re Hydroxycut Mktg. & Sales Practices Litig., 2011 WL 864897, *2 (finding 3 compelling reasons to seal documents containing information revealing business and 4 marketing strategy and product development). 5 Here, Upper Deck moves to seal expert report references to licensing agreement 6 terms detailing alternatives to signatures. (See ECF No. 164 at 6:5-8, 6:18-20.) Since the 7 Court has previously held Upper Deck can seal licensing terms detailing alternatives to 8 signatures (ECF No. 160 § III.B.4.ii.c), the Court GRANTS Upper Deck’s request to redact 9 expert report references to signature alternatives provided in licensing agreements. (See 10 ECF No. 164 at 6:5-8, 6:18-20.) 11 d. Third-Party Information (e.g., Names) 12 This Court has previously held (ECF No. 160 § III.B.4.ii.e) that the identities of third 13 parties are generally not sealable as trade secrets unless the movant “provide[s] a 14 particularized showing that specific harm will result if the [identities are] made publicly 15 available.” Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846 LHK PSG, 2012 WL 16 4120541, at *2 (N.D. Cal. Sept. 18, 2012); see also Fitzhenry-Russell v. Dr. Pepper 17 Snapple Grp., Inc., No. 17-CV-00564 NC, 2018 WL 10472795, at *2 (N.D. Cal. Apr. 23, 18 2018) (“The identity of Dr. Pepper's third-party vender, Givaudan is not sealable as a trade 19 secret under the compelling reasons standard”). 20 Here, Upper Deck moves to redact portions of expert reports including the names of 21 third parties. (See ECF No. 164 at 5:18-27.) Since its first motion to seal, Upper Deck has 22 still not provided any justification for how specifically revealing the identities of third 23 parties would result in particularized harm to its market position. Further, Upper Deck has 24 failed to allege how third-party information involves any other privacy interests that 25 “outweigh the traditional right of public access” in Kamakana, 447 F.3d at 1178. See also 26 Bunsow De Mory LLP v. N. Forty Consulting LLC, No. 20-CV-04997-JSC, 2021 WL 27 4521143, at *7 (N.D. Cal. Jan. 22, 2021) (rejecting motion to seal because “the names of 28 third-parties in this action constitute neither trade secrets nor confidential information”). 1 Though the identities of third parties in licensing agreements may be sealable in some 2 circumstances, such as when the “existence of the agreement[s]. . . [are] not otherwise 3 publicly known,” Upper Deck has failed to allege any such circumstances here for their 4 proposed redactions of third-party names, such as “Mr. Crystal,” “Trends,” and “Ikonick”, 5 in its expert report (Ex. 94 ¶ ¶ 114, 121). See Huawei, 340 F. Supp. 3d at 1004. 6 Thus, the Court DENIES WITHOUT PREJUDICE Upper Deck’s requested 7 redactions of third-party information, such as names of entities and the parties’ employees 8 or agents. (See ECF No. 164 at 5:18-27.) 9 iii. Business Negotiations Qualify as Confidential Business 10 Information 11 Even if business negotiations do not amount to a trade secret, they are nonetheless 12 sealable as “sources of business information that might harm a litigant’s competitive 13 standing.” Nixon, 435 U.S. at 589; see also Garrity, 2021 WL 3473937, at *1 14 (“confidential business information in the form of ‘license agreements, financial terms, 15 details of confidential licensing negotiations, and business strategies’ is sealable”). 16 Here, Upper Deck seeks to seal documented discussions between Mr. Crystal and 17 Mr. Tregellis regarding license contract negotiations and Upper Deck’s negotiating 18 position. (See ECF No. 164 at 5:18-27 (seeking to seal Ex. 94 ¶ 114).) Upper Deck alleges 19 that this is “[t]rade secret and privacy . . . [t]he discussion about Mr. Crystal’s thoughts 20 about license negotiations with vendors should be redacted, in conformity with the Court’s 21 reasoning in Order [ECF No. 160] at Section III(B)(ii)(a).” The Court does not find the 22 rationale for sealing Ex. 94 ¶ 114 under ECF No. 160 § III.B.4.ii.a, as a trade secret, to be 23 sound. However, after reviewing Ex. 94 ¶ 114, the Court finds Upper Deck’s proposed 24 redaction is a confidential licensing negotiation—which is a type of confidential business 25 information sealable under the compelling reasons standard. See Garrity, 2021 WL 26 3473937, at *1. 27 Thus, the Court GRANTS Upper Deck’s request to seal Ex. 94 ¶ 114 as a 28 confidential business negotiation. (See ECF No. 164 at 5:18-27.) 1 B. Whether Upper Deck Presents Good Cause for its Proposed Redactions 2 (ECF No. 169) 3 1. Documents Only Tangentially Related to Merits 4 The Court finds that Pixels’ exhibits that Upper Deck seeks to seal from ECF. No 5 169 are only “tangentially related” to the merits of the case, since they are originally 6 attached to Pixels’ non-dispositive pretrial disclosures (ECF No. 130). Ctr. for Auto Safety, 7 809 F.3d at 1098–1101 (“Discovery-related motions are often unrelated to the merits of a 8 case.”). Accordingly, the Court applies the “good cause” standard, rather than the more 9 exacting “compelling reasons” standard it applied in its prior orders (ECF Nos. 110, 160.) 10 Id. 11 2. “Good Cause” Legal Standard 12 Federal Rule of Civil Procedure (“Rule”) 26(c) states that when a party or other 13 person from whom discovery is sought makes a motion asserting good cause for a 14 protective order, “the court in which the action is pending . . . may make any order which 15 justice requires to protect a party or person from annoyance, embarrassment, oppression, 16 or undue burden or expense,” based on any of several listed reasons. As previously 17 mentioned, the Ninth Circuit applies the “good cause” standard—adopted from Rule 18 26(c)—to evaluate requests to seal documents related to non-dispositive motions. See 19 Kamakana, 447 F.3d at 1180; Foltz, 331 F.3d at 1130; Phillips v. Gen. Motors, 307 F.3d 20 1206, 1212 (9th Cir.2002). Pertinent here, Rule 26(c)(1)(G) states that a court may 21 “requir[e] that a trade secret or other confidential research, development, or commercial 22 information not be revealed or be revealed only in a specified way.” A party asserting 23 good cause bears the burden, for each particular document it seeks to protect, of showing 24 that specific prejudice or harm will result if no court order is granted. Foltz, 331 F.3d at 25 1130–31; see also Beckman, 966 F.2d at 476 (“[B]road allegations of harm, unsubstantiated 26 by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”). 27 Additionally, the “good cause” standard is less exacting than the “compelling 28 reasons” standard applied to evaluating sealing documents related to dispositive motions. 1 See Ctr. for Auto Safety, 809 F.3d at 1098–1101; Skillz Platform Inc. v. AviaGames Inc., 2 No. 21-CV-02436-BLF, 2023 WL 8430369, at *2 (N.D. Cal. Dec. 4, 2023). Thus, 3 information that would be sealable under the “compelling reasons” standard is also sealable 4 under the “good cause” standard. Id. 5 3. Analysis 6 Courts have been willing to seal court filings containing confidential business 7 material, “such as marketing strategies, product development plans, licensing agreements, 8 and profit, cost, and margin data,” where the parties have been able to point to concrete 9 factual information to justify sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC- 10 WVG, 2016 WL 3036302, at *5 (S.D. Cal. May 27, 2016); see also Skillz Platform Inc. v. 11 AviaGames Inc., No. 21-CV-02436-BLF, 2023 WL 8430369, at *2 (N.D. Cal. Dec. 4, 12 2023) (“[C]onfidential business information that would harm a party's competitive standing 13 meet[s] the compelling reasons standard, and thus also meet[s] the ‘less exacting’ good 14 cause standard.”). 15 Third-party information is typically not alone sufficient grounds for sealing. Jones 16 v. PGA Tour, Inc., No. 22-CV-04486-BLF, 2023 WL 3594058, at *3 (N.D. Cal. May 22, 17 2023) (“[T]he fact that disclosure would reveal the substance of communications with non- 18 parties does not, by itself, demonstrate good cause for sealing.”). However, courts within 19 this Circuit have sealed “documents contain[ing] information regarding the identity and 20 operations of third party supplied components in [movant]'s products” as confidential 21 business information. See e.g., DSS Tech. Mgmt., Inc. v. Apple, Inc., No. 14-CV-05330- 22 HSG, 2020 WL 210318, at *8 (N.D. Cal. Jan. 14, 2020), aff'd, 845 F. App'x 963 (Fed. Cir. 23 2021). 24 Lastly, “documents containing private information should be filed in redacted form 25 rather than sealed in their entirety.” Murphy v. Kavo Am. Corp., No. CV 11 0410 YGR, 26 2012 WL 1497489, at *3 (N.D. Cal. Apr. 27, 2012) (citing Foltz, 331 F.3d at 1137) (finding 27 no good cause to seal documents in their entirety where a small number of confidential 28 details could be redacted with minimal effort). 1 Here, Upper Deck moves to file the proposed exhibits under seal on the basis that 2 they involve “[d]iscussion of nonfungible tokens and the names of decisionmakers between 3 Upper Deck’s senior management and key strategic partner Jump 23 [which] would allow 4 competitors with an undue advantage if publicly known.” (ECF No. 169.) Upper Deck 5 has sufficiently alleged that the disclosure of the confidential business information 6 contained in the email exchanges (i.e., concerning the proprietary development of Upper 7 Deck’s products, including the involvement of third parties) would create specific harm by 8 allowing competitors with an undue advantage. Foltz, 331 F.3d at 1130–31; see also 9 Beckman, 966 F.2d at 476. Additionally, Upper Deck has established good cause by 10 providing the declaration of Gabriel Garcia who, as the Senior Director of Upper Deck 11 Authenticated (the memorabilia and collectibles division of Upper Deck), has knowledge 12 of the documents sought to be sealed. (ECF No. 169-6.) See Orthopaedic Hosp. v. Encore 13 Med. L.P., No. 19-CV-970 JLS (AHG), 2022 WL 257104, at *3 (S.D. Cal. Jan. 27, 2022); 14 see also Kilbourne v. Coca-Cola Co., No. 14CV984-MMA BGS, 2015 WL 5117080, at *3 15 (S.D. Cal. July 29, 2015) (finding good cause where “defendants have filed a supplemental 16 declaration under seal detailing with particularity the exhibits that contain confidential 17 information and the manner in which disclosure of such information would be detrimental 18 to Defendants or otherwise improper.”). 19 Garcia alleged that the information, if allowed into the public domain, “would 20 provide competitors with (1) the names of the decision-makers, (2) insight into highly 21 confidential negotiations for rights between Upper Deck’s President Jason Masherah and 22 Jump 23’s Senior Vice President, Estee Portnoy, and (3) litigation settlement discussions 23 and strategy.” (ECF No. 169-6.) Garcia claims that the disclosure of such information 24 would be detrimental to Upper Deck’s business operations by providing competitors with 25 insights into Upper Deck’s processes, harming their competitive standing. See e.g., In re 26 Elec. Arts, Inc., 298 F. App'x at 569 (finding sealable “business information that might 27 harm a litigant's competitive standing”); Lin v. Solta Med., Inc., No. 21-CV-05062-PJH, 28 2024 WL 2112893, at *3 (N.D. Cal. Apr. 11, 2024) (finding good cause where movant 1 alleged competitors would gain insight into internal processes if not for sealing); Fed. 2 Trade Comm'n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. 3 Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may 4 harm [a party's] or third parties' competitive standing and divulges terms of confidential 5 contracts, contract negotiations, or trade secrets”). Furthermore, the request is not 6 overbroad as Upper Deck only seeks to redact confidential details rather than the 7 documents in their entirety. See Foltz, 331 F.3d at 1137. 8 Thus, Upper Deck sufficiently alleged that the disclosure of this information would 9 allow competitors with an undue advantage if publicly known. See In re Elec. Arts, Inc., 10 298 F. App'x at 569. Since this information meets the compelling reasons standard, it also 11 meets the less stringent good cause standard. See Ctr. for Auto Safety, 809 F.3d at 1098– 12 1101. 13 Upper Deck has demonstrated its proposed sealings qualify as “business 14 negotiations,” and thus, established good cause for sealing them. As such, the Court thus 15 GRANTS Upper Deck’s motion to seal. (ECF No. 169.) 16 * * * 17 The Court includes Appendix A and B, providing an individual ruling on each of 18 Upper Deck’s proposed redactions. 19 IV. CONCLUSION 20 For the reasons above, the Court GRANTS IN PART and DENIES IN PART 21 Upper Deck’s renewed motion to seal (ECF No. 164), in accordance with Appendix A. 22 Additionally, the Court GRANTS Upper Deck’s renewed motion to seal (ECF No. 169), 23 in accordance with Appendix B. 24 If Upper Deck or Pixels wishes to file a renewed motion to seal for the denied 25 requests in ECF No. 164, they may do so no later than March 6, 2026, after the issuance 26 of this order. To the extent either Party wishes to renew its motion to seal for any document 27 or portion thereof, that party is ORDERED to append to its briefing a table similar to that 28 in the Appendices to this Order listing: the title of the document, the ECF number of the 1 public document, the ECF number of the lodgment, the page and line number(s) or the 2 ||section or paragraph numbers of the proposed redactions (or stating that the party wishes 3 || to seal the entirety of the document), and the compelling reason for sealing each proposed 4 || redaction or document. 5 Otherwise, Upper Deck and Pixels are instructed to file the unredacted versions of 6 aforementioned documents in ECF No. 164 as directed by the Court in this Order on 7 || the public docket no later than March 6, 2026. Parties shall publicly file on CM/ECF as a 8 ||““Notice Regarding Exhibit Attachment” revised versions of these documents with only 9 || those redactions that the Court has approved. When filing the documents on the public 10 || docket, Parties must strictly adhere to the relevant Federal Rules of Civil Procedure, this 11 |} district’s Civil Local Rules, this Court’s Standing Order for Civil Cases, and this district’s 12 Electronic Case Filing Administrative Policies & Procedures Manual. Non-compliance 13 |} with this order or any relevant rules may result in sanctions pursuant to Civil Local Rule 14 Further, the Clerk of Court shall ACCEPT and FILE UNDER SEAL any 15 |}documents accompanying ECF No. 165 and 170. 16 IT IS SO ORDERED. 17 ~ 18 || DATED: February 26, 2026 (yi. Duhark 19 H n. Cynthia Bashant, Chief Judge United States District Court 20 21 22 23 24 25 26 27 28 —417_

1 APPENDIX A 2 Upper Deck's Court’s Ruling Reasoning (ECF 3 Exhibit Pin Cite No. 164) 4 Exhibit 20 to Trade secret and In ECF No. 160, the Court Upper privacy – Royalty inadvertently denied Upper Deck’s 5 Deck’s information. request to redact royalty information 6 Renewed These redactions in its appendix. In this Order, the 7 Motion to should be made, Court GRANTS Upper Deck’s Seal (ECF even though request, supra § III.A.4.ii.a. 8 No. 165) – Appendix A to the Licensing Order currently 9 Agreement lists these items as 10 between having been Brevettar and DENIED 11 Trends WITHOUT 12 International, PREJUDICE. In LLC the December 9, 13 2025 Order at 14 pages 10-11, the Court noted in 15 Section 16 III(B)(4)(ii)(a): It is well-established 17 in the Ninth 18 Circuit that “pricing terms, 19 royalty rates, and 20 guaranteed minimum 21 payment terms” 22 are sealable trade secrets. In re Elec. 23 Arts, Inc., 298 F. 24 App'x at 569–70; see also Clark v. 25 Bunker, 453 F.2d 26 1006, 1009 (9th Cir.1972) 27 UpperDeck (adopting the 28 67, § E Restatement 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 definition and finding that “a 4 detailed plan for 5 the creation, promotion, 6 financing, and sale 7 of contracts” constitutes a trade 8 secret) (citing 9 Whyte v. Schlage Lock Co., 101 10 Cal.App.4th 1443, 11 1455-56, 125 Cal.Rptr.2d 277 12 (2002)). Thus, the 13 Court GRANTS sealing the 14 specific numerical 15 values of royalty rate minimum 16 guarantee and 17 compensation terms. See In re 18 NCAA Student- 19 Athlete Name & Likeness 20 Licensing Litig., 21 2014 WL 662545, at *1 (“only the 22 specific dollar 23 amounts. . . may be sealed”); 24 O'Bannon, 2014 25 WL 12997312, at *1 (same). To 26 clarify, the 27 numerical values of royalty rates, 28 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 minimum guarantee, and 4 compensation 5 should also be sealed in other 6 documents (such 7 as expert reports) discussing those 8 values. 9 Trade secret and GRANTED, supra § III.A.4.ii.a. 10 privacy – Minimum 11 Guarantee. The 12 minimum guarantees should 13 remain out of the 14 public's view, in conformity with 15 the Court's 16 reasoning in Order UpperDeck at Section 17 68, § F III(B)(4)(ii)(a). 18 Trade secret – The GRANTED, supra § III.A.4.ii.b. number of samples 19 should remain out 20 of the public's view, in 21 conformity with 22 the Court's reasoning in 23 December 8, 2025 24 UpperDeck Order at Section 68, § G III(B)(4)(ii)(b). 25 Trade secret and GRANTED, supra § III.A.4.ii.a. 26 privacy – Royalty information and 27 UpperDeck guarantee 28 68, § H payments. The 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 percentages for damage 4 contingencies 5 should remain out of the public's 6 view, in 7 conformity with the Court's 8 reasoning in 9 December 9, 2025 Order at Section 10 III(B)(4)(ii)(a). 11 Exhibit 20 to Trade secret – GRANTED, supra § III.A.4.ii.b. 12 Upper number of Deck’s samples. The 13 Renewed number of samples 14 Motion to should remain out Seal (ECF of the public's 15 No. 165-1) view, in 16 conformity with the Court's 17 reasoning in Order 18 at Section ¶ 51 III(B)(4)(ii)(b). 19 Trade secret and GRANTED, supra § III.A.4.ii.a. 20 privacy – The percentage 21 attributed to the 22 three athletes should be 23 redacted, in 24 conformity with the Court's 25 reasoning in Order 26 at Section ¶ 55 III(B)(4)(ii)(a). 27 Trade secret and GRANTED IN PART regarding 28 ¶ 114 privacy – The Upper Deck’s requested redaction of 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 discussion about text beyond third-party names as Mr. Crystal's confidential business negotiations, 4 thoughts about supra § III.A.4.iii; 5 license DENIED IN PART WITHOUT 6 negotiations with PREJUDICE regarding Upper vendors should be Deck’s requested redaction of third- 7 redacted, in party names, supra § III.A.4.ii.d. conformity with 8 the Court's 9 reasoning in Order at Section 10 III(B)(4)(ii). 11 Trade secret and GRANTED IN PART regarding 12 privacy – The Upper Deck’s requested redaction of discussion about specific numerical values supra § 13 Mr. Crystal's III.A.4.i; DENIED WITHOUT 14 thoughts about PREJUDICE regarding Upper license Deck’s requested redaction of 15 negotiations with discussion about license negotiations 16 vendors and with vendors and pricing supra § pricing should be III.A.4.ii; 17 redacted, in DENIED WITHOUT PREJUDICE 18 conformity with regarding Upper Deck’s requested the Court's redaction of third-party names, supra 19 reasoning in Order § III.A.4.ii.d. 20 at Section In ECF No. 164, Upper Deck only III(B)(4)(ii). moves to seal “[t]he discussion about 21 Mr. Crystal’s thoughts about license 22 negotiation with vendors” in the second half of the paragraph in Ex. 94 23 ¶ 121. Considering their request, the 24 Court finds the cost of the posters to be financial information supra § III.A.4.i. 25 The rest of the paragraph is not 26 sealable because it does not constitute financial data supra § III.A.4.i, 27 licensing agreement terms supra § 28 ¶ 121 III.A.4.ii, nor business negotiations 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 supra § III.A.4.iii. The discussions merely described their sublicenses 4 rather than any ongoing or past 5 business negotiations. Therefore, the remainder of the paragraph is not 6 sealable based on Upper Deck’s 7 reasoning. Additionally, Upper Deck has not demonstrated that the 8 information does not include 9 boilerplate sublicensing terms. (ECF 10 No. 160 § III.B.4.ii.f.) Exhibit M to Trade secret and GRANTED. 11 Upper privacy – Upper Deck moves to seal signature 12 Deck’s alternatives to alternatives under ECF No. 160 § Renewed signatures. III.B.4.ii (stating licensing terms are 13 Motion to Alternatives to generally sealable). The Court more 14 Seal (ECF signatures are specifically finds that it is finds No. 165-2) trade secret signature alternatives are sealable 15 information and supra § III.A.4.ii.c. 16 should be redacted in conformity with 17 the Court's 18 reasoning in Order Footnote at Section 19 23 III(B)(4)(ii). 20 Trade secret and GRANTED, supra §§ III.A.4.i, privacy – pixels III.A.4.ii.a. 21 sales data and 22 damage calculations. 23 Information about 24 royalty rates and damages 25 calculations 26 should be redacted ¶ 23 and in conformity with 27 footnote 46 the Court's 28 and 47 reasoning in Order 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 at Section III(B)(4)(ii)(a). 4 Trade secret and GRANTED, supra §§ III.A.4.i, 5 privacy – III.A.4.ii.a. 6 Information about royalty rates and 7 damages 8 calculations should be redacted 9 in conformity with 10 the Court's reasoning in Order 11 at Section 12 ¶ 32 III(B)(4)(ii)(a). Trade secret and GRANTED. 13 privacy – Upper Deck moves to seal signature 14 Alternatives to alternatives under ECF No. 160 § signatures are III.B.4.ii (stating licensing terms are 15 trade secrets and generally sealable). The Court more 16 should be redacted specifically finds that it is finds in conformity with signature alternatives are sealable 17 the Court's supra § III.A.4.ii.c. 18 reasoning in Order at Section 19 ¶ 33 III(B)(4)(ii). 20 Trade secret and GRANTED, supra § III.A.4.i. privacy – scope of 21 license. 22 Information about sales data and 23 composition of 24 types of products should be redacted 25 in conformity with 26 the Court's reasoning in Order 27 ¶ 34 and at Section 28 footnote 61 III(B)(4)(ii). 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 Trade secret and GRANTED, supra § III.A.4.i. privacy – pixels 4 sales data and 5 damage calculations. 6 Information about 7 damages calculations 8 should be redacted 9 in conformity with the Court's 10 reasoning in Order 11 at Section ¶ 35 III(B)(4)(ii). 12 Trade secret and GRANTED, supra § III.A.4.i. 13 privacy – pixels 14 sales data and damage 15 calculations. 16 Information about sales data should 17 be redacted in 18 conformity with the Court's 19 reasoning in Order 20 at Section ¶ 42 III(B)(4)(ii). 21 Trade secret and GRANTED, supra § III.A.4.i. 22 privacy – pixels sales data and 23 damage 24 calculations. Information about 25 damages 26 calculations should be redacted 27 in conformity with 28 ¶ 43 the Court's 1 Upper Deck's Court’s Ruling Reasoning (ECF 2 Exhibit Pin Cite No. 164) 3 reasoning in Order at Section 4 III(B)(4)(ii). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 APPENDIX B 2 Upper Deck’s Court’s Ruling Reasoning (ECF 3 Exhibit Description No. 169) 4 Exhibit 2 to Upper Email exchange Discussion of GRANTED, supra Deck’s Renewed between Estee nonfungible § III.B.3. 5 Motion to Seal Portnoy and Dwight tokens and the 6 (ECF No. 170) Manley dated June 10, names of 2021 decisionmakers 7 (UpperDeck_002290). and litigation 8 strategy between Upper 9 Deck’s senior 10 management and key 11 strategic partner 12 Jump 23 would allow 13 competitors 14 with an undue advantage 15 if publicly known. 16 Exhibit 3 to Upper Email exchange Discussion of GRANTED, supra Deck’s Renewed between Jason nonfungible § III.B.3. 17 Motion to Seal Masherah and Estee tokens and the 18 (ECF No. 170-1) Portnoy dated March names of 14, 2024 decisionmakers 19 (UpperDeck_002499- and litigation 20 2500). strategy between Upper 21 Deck’s senior 22 management and key 23 strategic partner 24 Jump 23 would allow 25 competitors 26 with an undue advantage 27 if publicly known. 28 1 Upper Deck’s Court’s Ruling Reasoning (ECF 2 Exhibit Description No. 169) 3 Exhibit 4 to Upper Email exchange Discussion of GRANTED, supra Deck’s Motion to between Estee nonfungible § III.B.3. 4 Seal (ECF No. 170- Portnoy and Jason tokens and the 5 2) Masherah dated names of between April 1-5, decisionmakers 6 2021 and litigation 7 (UpperDeck_002283- strategy between 84). Upper 8 Deck’s senior 9 management and key 10 strategic partner 11 Jump 23 would allow 12 competitors 13 with an undue advantage 14 if publicly known. 15 Exhibit 5 to Upper Email exchange Discussion of GRANTED, supra Deck’s Motion to between Estee nonfungible § III.B.3. 16 Seal (ECF No. 170- Portnoy and Jason tokens and the 17 3) Masherah dated names of between April 23-27, decisionmakers 18 2021 and litigation 19 (UpperDeck_002285- strategy between 86). Upper 20 Deck’s senior 21 management and key 22 strategic partner 23 Jump 23 would allow 24 competitors 25 with an undue advantage 26 if publicly known. 27 Exhibit 6 to Upper Email exchange Discussion of GRANTED, supra Deck’s Motion to between Estee nonfungible § III.B.3. 28 1 Upper Deck’s Court’s Ruling Reasoning (ECF 2 Exhibit Description No. 169) 3 Seal (ECF No. 170- Portnoy and Jason tokens and the 4) Masherah dated names of 4 between April 23-30, decisionmakers 5 2021 (UpperDeck and litigation _002287-89). strategy between 6 Upper 7 Deck’s senior management and 8 key 9 strategic partner Jump 23 10 would allow 11 competitors with an undue 12 advantage 13 if publicly known.

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