1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 ZUNUM AERO, INC., CASE NO. C21-0896JLR 11 Plaintiff, ORDER v. 12 THE BOEING COMPANY, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court are seven motions to seal, four filed by Plaintiff Zunum Aero, 17 Inc. (“Zunum”) (Pl. 12/29/23 MTS (Dkt. # 196); 1/5/24 MTS (Dkt. # 216); 1/9/24 MTS 18 (Dkt. # 237); 1/11/24 Am. MTS (Dkt. # 253)), and three filed by Defendants The Boeing 19 Company and Boeing HorizonX Ventures, LLC (together, “Boeing”) (Defs. 12/29/23 20 MTS (Dkt. # 194); 1/2/24 MTS (Dkt. # 209); 1/22/24 MTS (Dkt. # 263)). The court has 21 considered the parties’ submissions, the relevant portions of the record, and the governing 22 // 1 law. Being fully advised,1 the court GRANTS Zunum’s December 29, 2023 motion to 2 seal; GRANTS in part and DENIES in part Zunum’s January 5, 2024 motion to seal,
3 January 11, 2024 amended motion to seal, and January 9, 2024 motion to seal; 4 RESERVES RULING on Boeing’s December 29, 2023 motion to seal and January 2, 5 2024 motion to seal; and GRANTS in part and RESERVES RULING in part on Boeing’s 6 January 22, 2024 motion to seal. 7 II. LEGAL STANDARD 8 “There is a strong presumption of public access to the court’s files.” Local Rules
9 W.D. Wash. LCR 5(g); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 10 1135 (9th Cir. 2003) (“In this circuit, we start with a strong presumption in favor of 11 access to court records.”). The public’s “right of access, however, is not absolute and can 12 be overridden given sufficiently compelling reasons for doing so.” Foltz, 331 F.3d at 13 1135; see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“[T]he right
14 to inspect and copy judicial records is not absolute.”). To overcome the presumption of 15 public access, a party must file a motion that includes “[a] specific statement of the 16 applicable legal standard and the reasons for keeping a document under seal, including an 17 explanation of” (i) “the legitimate private or public interests that warrant the relief 18 sought”; (ii) “the injury that will result if the relief sought is not granted”; and (iii) “why
19 //
20 //
21 1 Neither party requested oral argument with respect to any of the sealing motions, and the court concludes that oral argument would not be helpful to its disposition of these motions. 22 See Local Rules W.D. Wash. LCR 7(b)(4). 1 a less restrictive alternative to the relief sought is not sufficient.” Local Rules W.D. 2 Wash. LCR 5(g)(3)(B)(i)-(iii).
3 Two standards govern sealing motions in the Ninth Circuit. Ordinarily, “a party 4 must show ‘compelling reasons’ to keep a court document under seal.” Ctr. for Auto 5 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1095 (9th Cir. 2016) (quoting Kamakana v. 6 City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). The Ninth Circuit has 7 “carved out an exception,” however, “for sealed materials attached to a discovery motion 8 unrelated to the merits of a case.” Id. at 1097 (quoting Foltz, 331 F.3d at 1135). When
9 such nondispositive motions are “only tangentially related[] to the merits of a case,” “the 10 good cause standard from Rule 26(c)” applies. Id. at 1097, 1099; see also Seattle Times 11 Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (“Much of the information that surfaces during 12 pretrial discovery may be unrelated, or only tangentially related, to the underlying cause 13 of action.”).
14 Here, the good cause standard applies to the materials subject to sealing in 15 Zunum’s December 29, 2023 motion, Zunum’s January 9, 2024 motion, Boeing’s 16 December 29, 2023 motion, and Boeing’s January 2, 2024 motion. Those motions seek 17 to seal materials attached to discovery motions unrelated to the merits of this case. The 18 more stringent compelling reasons standard applies to the remaining motions to seal,
19 however, because those motions seek to seal materials concerning Zunum’s Rule 37(e) 20 motion for sanctions due to alleged spoliation of evidence. (See Sanctions Mot. (Dkt. 21 ## 219 (sealed), 217 (redacted)).) Zunum’s Rule 37 motion is more than tangentially 22 related to the merits of this case because the relief requested would, if granted, lead to a 1 presumption “for purposes of any pretrial motions filed by Boeing . . . that the destroyed 2 evidence was unfavorable to Boeing,” and instructions to the jury “that it must (or, at a
3 minimum, may) infer that the destroyed evidence was unfavorable to Boeing.” (Id. at 4 12.) Zunum’s requested relief would also restrict the evidence Boeing could present at 5 trial. (See id. at 13); see also Tan v. Konnektive Rewards, LLC, No. 6 20-cv-1082-LL-DDL, 2023 WL 2336893, at *3 (S.D. Cal. Mar. 2, 2023) (applying the 7 compelling reasons standard to materials attached to a motion for sanctions due to 8 spoliation).
9 To satisfy the good cause standard, the party seeking to seal materials must show 10 that “‘good cause’ exists to protect th[e] information from being disclosed to the public 11 by balancing the needs for discovery against the needs for confidentiality.” Pintos v. 12 Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Phillips ex. rel. Ests. of 13 Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). The compelling
14 reasons standard, however, requires the requesting party to support its argument with 15 “specific factual findings” that demonstrate the reasons for sealing “outweigh the general 16 history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 17 1178-79 (quoting Foltz, 331 F.3d at 1135). “Compelling reasons sufficient to outweigh 18 the public’s interest in disclosure exist when court records might become a vehicle for
19 improper purposes, such as the use of records to gratify private spite, promote public 20 scandal, circulate libelous statements, or release trade secrets.” Demaree v. Pederson, 21 887 F.3d 870, 884 (9th Cir. 2018) (internal brackets and quotation marks omitted) 22 (quoting Kamakana, 447 F.3d at 1179). 1 III. ANALYSIS 2 The court considers the parties’ motions below.
3 A. Zunum’s 12/29/23 Motion to Seal (Dkt. # 196) 4 Zunum’s December 29, 2023 motion seeks to seal Exhibit B to Zunum’s 5 December 29, 2023 letter to the court. (Pl. 12/29/23 MTS at 1; see Ex. B to Letter (Dkt. 6 # 200 (sealed)).) Exhibit B contains four sets of Zunum’s interrogatory responses (see 7 generally Ex. B to Letter), and Zunum requests that the entire exhibit be maintained 8 under seal because Zunum’s interrogatory responses “in part reflect Zunum’s confidential
9 and proprietary business information and may reflect information Zunum learned from 10 documents that Boeing produced in this litigation and designated confidential” (Pl. 11 12/29/23 MTS at 4). Boeing does not oppose Zunum’s motion. (See generally Dkt.) 12 Upon review of Exhibit B, the court finds good cause to maintain this exhibit 13 under seal in order to protect Zunum’s sensitive business and trade secret information.
14 Accordingly, the court GRANTS Zunum’s December 29, 2023 motion to seal. 15 B. Zunum’s 1/5/24 Motion to Seal (Dkt. # 216) and 1/11/24 Amended Motion to Seal (Dkt. # 253) 16 Zunum filed its January 5, 2024 and January 11, 2024 motions to seal “solely” to 17 provide Boeing an opportunity to address whether the following should be maintained 18 under seal: (1) Exhibits 2, 3, 4, 5, 10, 11, 12, 12A, 13, 17, 17A, 18, 19, 20, 21, and 22 to 19 the January 5, 2024 declaration of Scott Danner; (2) portions of Mr. Danner’s January 5, 20 2024 declaration; and (3) portions of Zunum’s motion for sanctions. (1/5/24 MTS at 2-3; 21 1/11/24 Am. MTS at 2, 4; see 1/5/24 Danner Decl. (Dkt. ## 218 (redacted), 220 (sealed)); 22 1 id. ¶ 6, Ex. 2 (Dkt. ## 218-2 (cover page), 221 (sealed)); id. ¶ 9, Ex. 3 (Dkt. # 218-3 2 (cover page), 222 (sealed)); id. ¶ 10, Ex. 4 (Dkt. ## 218-4 (cover page), 223 (sealed)); id.
3 ¶ 11, Ex. 5 (Dkt. ## 218-5 (cover page), 224 (sealed)); id. ¶ 15, Ex. 10 (Dkt. ## 218-10 4 (cover page), 225 (sealed)); id. ¶ 17, Ex. 11 (Dkt. ## 218-11 (cover page), 226 (sealed)); 5 id. ¶ 18, Ex. 12 (Dkt. ## 218-12 (cover page), 227 (sealed)); id. ¶ 18, Ex. 12A (Dkt. ## 6 218-13 (cover page), 228 (sealed)); id. ¶ 21, Ex. 13 (Dkt. ## 218-14 (cover page), 229 7 (sealed)); id. ¶ 34, Ex. 17 (Dkt. ## 218-18 (cover page), 230 (sealed)); id. ¶ 34, Ex. 17A 8 (Dkt. ## 218-19 (cover page), 231 (sealed)); id. ¶ 35, Ex. 18 (Dkt. ## 218-20 (cover
9 page), 232 (sealed)); id. ¶ 39, Ex. 19 (Dkt. ## 218-21 (cover page), 233 (sealed)); id. 10 ¶ 44, Ex. 20 (Dkt. ## 218-22 (cover page), 234 (sealed)); id. ¶ 44, Ex. 21 (Dkt. ## 218-23 11 (cover page), 235 (sealed)); id. ¶ 45, Ex. 22 (Dkt. ## 218-24 (cover page), 236 (sealed)). 12 See generally Sanctions Mot.) 13 Boeing filed a response seeking to seal Exhibits 11, 12, 12A, 18, 19, and 20 in
14 their entirety and to file redacted versions of Exhibits 13, 17A, and 22. (1st 1/22/24 Def. 15 Resp. (Dkt. # 259) at 2.) Boeing “takes no position as to the sealing of the remaining 16 documents.” Id. The court considers Boeing’s arguments in turn. 17 First, Boeing argues that Exhibits 17A, 18, and 22 “reflect the state of Boeing’s 18 understanding of alternative aircraft propulsion and hybrid-electric aircraft technologies”
19 and that disclosure “would reveal certain aspects of Boeing’s approach to aircraft design 20 and development and could harm Boeing’s competitive position.” (Id. at 3.) Exhibit 17A 21 is an excerpted copy of the October 11, 2023 deposition of Kamiar Karimi. (See 22 generally 1/5/24 Danner Decl. ¶ 34, Ex. 17A.) Exhibit 18 is a December 18, 2023 letter 1 from counsel for Zunum to counsel for Boeing discussing Boeing’s productions relating 2 to its hybrid-electric or electric aircraft programs. (See generally id. ¶ 35, Ex. 18.) And
3 Exhibit 22 is an excerpted copy of the December 5, 2023 deposition of Kevin Lutke. 4 (See generally id. ¶ 45, Ex. 22.) Upon review, the court finds that there are compelling 5 reasons to maintain Exhibit 18 under seal and to allow redactions to Exhibits 17A and 6 22—specifically, the presence of confidential proprietary business information. See 7 Treehouse Avatar LLC v. Valve Corp., No. C17-1860RAJ, 2019 WL 291664, at *2 (W.D. 8 Wash. Jan. 23, 2019) (granting motion to seal “proprietary technical business information
9 that is not already in the public domain”). 10 Second, Boeing argues that Exhibits 19 and 20 “reflect certain non-public 11 information relating to Boeing’s external investment activities” and that dissemination of 12 this information “could harm Boeing’s competitive position.” (1st 1/22/24 Def. Resp. at 13 3.) Exhibit 19 is a slide deck prepared by Boeing discussing various market analytics and
14 a joint venture proposal. (See generally 1/5/24 Danner Decl. ¶ 39, Ex. 19.) Exhibit 20 is 15 a string of emails between various Boeing employees discussing Boeing’s business 16 portfolio and strategies. (See generally id. ¶ 44, Ex. 20.) Upon review, the court finds 17 that there are compelling reasons to maintain Exhibits 19 and 20 under seal—specifically, 18 the presence of sensitive financial information and strategy. See Bite Tech., Inc. v. X2
19 Biosystems, Inc., No. C12-1267RSM, 2013 WL 1399349, at *2 (W.D. Wash. Apr. 5, 20 2013) (granting motion to seal “commercially sensitive financial information”). 21 Finally, Boeing argues that Exhibits 11, 12, 12A, and 13 should remain under seal 22 or be redacted “because they are internal, confidential Boeing policies regarding records 1 and information management, or reflect information concerning those policies” and 2 dissemination of this information “could harm Boeing’s competitive position or expose
3 its intellectual property.” (1st 1/22/24 Def. Resp. at 4.) Upon review, the court 4 concludes that there are compelling reasons to maintain Exhibits 11, 12, and 12A under 5 seal because they contain confidential Boeing document retention policies never intended 6 for the public eye. (See generally 1/5/24 Danner Decl. ¶ 17, Ex. 11; id. ¶ 18, Exs. 12, 7 12A.) See also Adtrader, Inc. v. Google LLC, No. 17-cv-07082-BLF, 2020 WL 6387381, 8 at *2 (N.D. Cal. Feb. 24, 2020) (finding compelling reasons to seal confidential business
9 information related to how a business operates, its internal policies, and its internal 10 strategic business and financial decision-making). The court agrees with Boeing that 11 Exhibit 13, which contains email exchanges between counsel about these policies, can be 12 filed with redactions. (See generally id. ¶ 21, Ex. 13.) 13 Boeing asks the court to allow Exhibits 13, 17A, and 22 to be redacted “as
14 proposed in Zunum’s public filings” (1st 1/22/24 Def. Resp. at 5), but it appears those 15 exhibits were not redacted and instead were filed entirely under seal (see generally 1/5/24 16 Danner Decl. ¶ 26, Ex. 13; id. ¶ 34, 17A; id. ¶ 45, Ex. 22.). Accordingly, the court 17 GRANTS in part Zunum’s January 5, 2024 and January 11, 2024 motions to seal as to all 18 the documents except Exhibits 2, 3, 4, 5, 10, 13, 17, 17A, 21, and 22. Because Boeing
19 takes no position as to Exhibits 2, 3, 4, 5, 10, 17, and 21, the court ORDERS that these 20 exhibits shall be unsealed. The court DENIES in part Zunum’s motions to the extent that 21 redactions have not been agreed upon as to Exhibits 13, 17A, and 22. The court 22 // 1 ORDERS Boeing to file redacted versions of Exhibits 13, 17A, and 22 on the docket by 2 no later than February 5, 2024.
3 C. Zunum’s 1/9/24 Motion to Seal (Dkt. # 237) 4 Zunum filed its January 9, 2024 motion to seal to provide Boeing an opportunity 5 to address whether Exhibits 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14 of its opposition to 6 Boeing’s motion for a protective order and any references or quotes to those documents 7 in Zunum’s brief should be sealed. (1/9/24 MTS at 2, 4; see 1/9/24 Baigent Decl. (Dkt. 8 ## 239 (redacted), 241 (sealed)); id. ¶ 10, Ex. 3 (Dkt. ## 239-3 (redacted), 242 (sealed));
9 id. ¶ 10, Ex. 4 (Dkt. ## 239-4 (redacted), 243 (sealed)); id. ¶ 11, Ex. 5 (Dkt. ## 239-5 10 (redacted), 244 (sealed)); id. ¶ 11, Ex. 6 (Dkt. ## 239-6 (cover sheet), 245 (sealed)); id. 11 ¶ 12, Ex. 7 (Dkt. ## 239-7 (cover sheet), 246 (sealed)); id. ¶ 12, Ex. 8 (Dkt. ## 239-8 12 (redacted), 247 (sealed)); id. ¶ 12, Ex. 9 (Dkt. ## 239-9 (redacted), 248 (sealed)); id. ¶ 12, 13 Ex. 10 (Dkt. ## 239-10 (redacted), 249 (sealed)); id. ¶ 15, Ex. 11 (Dkt. ## 239-11
14 (redacted), 250 (sealed)); id. ¶ 15, Ex. 12 (Dkt. ## 239-12 (redacted), 251 (sealed)); id. 15 ¶ 19, Ex. 14 (Dkt. ## 239-14 (redacted), 252 (sealed)); 1/9/24 Pl. Opp. (Dkt. ## 238 16 (redacted), 240 (sealed)).) 17 Boeing filed a response seeking to redact Exhibits 5, 8, 9, 10, 11, 12, and 14 and to 18 maintain Exhibits 6, 7, and 13 under seal. (2d 1/22/24 Def. Resp. (Dkt. # 261) at 2.)
19 Zunum, however, did not address Exhibit 13 in its motion to seal and filed that exhibit on 20 the public docket. (See generally 1/9/24 MTS. See 1/9/24 Baigent Decl. ¶ 19, Ex. 13 21 //
22 // 1 (Dkt. # 239-13).)2 Boeing takes no position on whether Exhibits 3 and 4 should be 2 maintained under seal. (See generally 2d 1/22/24 Def. Resp.) The court considers
3 Boeing’s arguments in turn. 4 First, Boeing argues that Exhibits 5, 6, 7, 8, 11, and 12 “reflect the state of 5 Boeing’s understanding of alternative aircraft propulsion and hybrid-electric aircraft 6 technologies” and that dissemination of this information “would reveal certain aspects of 7 Boeing’s approach to aircraft design and development and could harm Boeing’s 8 competitive position.” (Id. at 3.) Exhibit 5 is an excerpted transcript of the October 25,
9 2023 deposition of Hubert Wong. (See generally 1/9/24 Baigent Decl. ¶ 11, Ex. 5.) 10 Exhibit 6 is a Boeing slide deck discussing electric aircraft concepts. (See generally id. 11 ¶ 11, Ex. 6.) Exhibit 7 is an email thread between Boeing employees discussing electric 12 aircraft. (See generally id. ¶ 12, Ex. 7.) Exhibit 8 is an excerpted transcript of the 13 October 27, 2023 deposition of Marty Bradley. (See generally id. ¶ 12, Ex. 8.) Exhibit
14 11 is an excerpted transcript of the October 11, 2023 deposition of Kamiar Karimi. (See 15 generally id. ¶ 15, Ex. 11.) And Exhibit 12 is an excerpted transcript of the November 16 29, 2023 deposition of Steven Nordlund. (See generally id. ¶ 15, Ex. 12.) Upon review, 17 the court agrees with Boeing that Exhibits 5, 8, 11, and 12 should be redacted per 18 //
19 2 Exhibit 13 to Ms. Baigent’s January 9, 2024 declaration is a letter sent from counsel for 20 Boeing to counsel for Zunum detailing Boeing’s document retention policies and discovery protocols in this case. (See generally 1/9/24 Baigent Decl. ¶ 19, Ex. 13.) It is the exact same document as Exhibit 11 to Mr. Danner’s January 5, 2024 declaration. (See generally 1/5/24 21 Danner Decl. ¶ 17, Ex. 11.) Zunum filed Exhibit 11 to Mr. Danner’s declaration under seal but Exhibit 13 without redactions. It appears this was an inadvertent error Boeing failed to 22 recognize. 1 Zunum’s proposals and that Exhibits 6 and 7 should be maintained under seal. Good 2 cause exists to keep these materials from the public eye to protect Boeing’s competitive
3 position. See Treehouse Avatar, 2019 WL 291664, at *2. 4 Second, Boeing argues that Exhibits 9 and 10 should be redacted because “they 5 reflect certain non-public information relating to Boeing’s external investment activities.” 6 (2d 1/22/24 Def. Resp. at 3.) Exhibit 9 is an excerpted transcript of the September 18, 7 2023 deposition of Steven Shumate. (See generally 1/9/24 Baigent Decl. ¶ 12, Ex. 9.) 8 Exhibit 10 is an excerpted transcript of the December 5, 2023 deposition of Kevin Lutke.
9 (See generally id. ¶ 15, Ex. 11.) Upon review, the court agrees with Boeing that these 10 exhibits should be redacted per Zunum’s proposals. Good cause exists to keep these 11 materials from the public eye to protect Boeing’s sensitive financial information and 12 strategy. See Bite Tech, 2013 WL 1399349, at *2. 13 Third, Boeing argues that Exhibit 13 should remain under seal and Exhibit 14
14 should be redacted because they “reflect information concerning internal, confidential 15 Boeing policies regarding records and information management.” (2d 1/22/24 Def. Resp. 16 at 3.) Exhibit 13 is an exchange between counsel for the parties concerning Boeing’s 17 document retention policies and discovery efforts. (See generally 1/9/24 Baigent Decl. 18 ¶ 19, Ex. 13.) Exhibit 14 is an email exchange concerning a discovery dispute between
19 the parties related to Boeing’s document retention policies and discovery efforts. (See 20 generally id. ¶ 19, Ex. 14.) Upon review, the court agrees with Boeing that these 21 materials should be sealed and redacted. Good cause exists to keep these materials from 22 // 1 the public eye to prevent the disclosure of Boeing’s confidential document retention 2 policies. See Adtrader, 2020 WL 6387381, at *2.
3 Accordingly, the court GRANTS in part Zunum’s January 9, 2024 motion with 4 respect to Exhibits 5, 6, 7, 8, 11, 12, and 14. The court further ORDERS that Exhibit 13 5 be sealed. Because Boeing takes no position as to Exhibits 3 and 4, the court DENIES in 6 part Zunum’s motion and ORDERS that Exhibits 3 and 4 shall be unsealed. 7 D. Boeing’s 12/29/23 Motion to Seal (Dkt. # 194) 8 Boeing filed its December 29, 2023 motion to seal “solely” to provide Zunum an
9 opportunity to address the sealing or redaction of certain portions of Boeing’s December 10 29, 2023 letter to the court (Def. 12/29/23 MTS at 1; see Def. 12/29/23 Letter (Dkt. 11 ## 197 (redacted), 201 (sealed))), and Exhibits 1, 2, 5, 6, and 7 attached to Yegor 12 Fursevich’s December 29, 2023 declaration in support thereof (see 12/29/23 Fursevich 13 Decl. (Dkt. # 199) ¶ 2, Ex. 1 (Dkt. ## 199-1 (cover page), 202 (sealed)); id. ¶ 3, Ex. 2
14 (Dkt. ## 199-1 (cover page), 203 (sealed)); id. ¶ 6, Ex. 5 (Dkt. ## 199-1 (cover page), 204 15 (sealed)); id. ¶ 7, Ex. 6 (Dkt. ## 199-1 (cover page), 205 (sealed)); id. ¶ 8, Ex. 7 (Dkt. 16 ## 199-1 (cover page), 206 (sealed)).) 17 Exhibit 1 is a string of emails exchanged between counsel for the parties. (See 18 generally 12/29/23 Fursevich Decl. ¶ 2, Ex. 1.) Exhibit 2 is an excerpted transcript of the
19 October 19, 2023 deposition of Ashish Kumar. (See generally id. ¶ 3, Ex. 2.) Exhibit 5 20 is a copy of Zunum’s supplemental responses to Boeing’s first set of interrogatories. (See 21 generally id. ¶ 6, Ex. 5.) Exhibit 6 is an excerpted copy of Zunum’s supplemental 22 response to Boeing’s second, third, and fourth sets of interrogatories. (See generally id. 1 ¶ 7, Ex. 6.) And Exhibit 7 is a string of emails exchanged between counsel for the 2 parties. (See generally id. ¶ 8, Ex. 7.)
3 Zunum did not respond to Boeing’s December 29, 2023 motion to seal. (See 4 generally Dkt.) Out of caution due to the sensitive proprietary information at issue in this 5 case, the court RESERVES RULING on Boeing’s motion and ORDERS Zunum to show 6 cause by no later than February 7, 2024 as to why the court should not lift the seal on 7 Boeing’s letter and the exhibits filed in support thereof. (See generally Def. 12/29/23 8 MTS.)
9 E. Boeing’s 1/2/24 Motion to Seal (Dkt. # 209) 10 Boeing filed its January 2, 2024 motion to seal “solely” to provide Zunum an 11 opportunity to address whether an excerpted copy of its damages expert’s report and a 12 reference to that report in Boeing’s motion for a protective order should be maintained 13 under seal. (Def. 1/2/24 MTS at 1; see Mot. for Prot. Order (Dkt. ## 211 (sealed), 212
14 (redacted)); 1/2/24 Fursevich Decl. (Dkt. # 210) ¶ 2, Ex. 2 (Dkt. # 214 (sealed)).) 15 Zunum did not respond to Boeing’s January 2, 2024 motion to seal. (See 16 generally Dkt.) Out of caution due to the sensitive proprietary information at issue in this 17 case, the court RESERVES RULING on Boeing’s motion and ORDERS Zunum to show 18 cause by no later than February 7, 2024 as to why the court should not lift the seal on
19 Boeing’s motion for a protective order and Exhibit 2 filed in support thereof. 20 F. Boeing’s 1/22/24 Motion to Seal (Dkt. # 263) 21 Boeing filed its January 22, 2024 motion to seal to: (1) provide Zunum an 22 opportunity to address whether Exhibits 1, 2, 3, 4, 5, 6, 7, and 8 to Mr. Fursevich’s 1 January 23, 2024 declaration, portions of Mr. Fursevich’s January 23, 2024 declaration, 2 and portions of Boeing’s opposition to Zunum’s motion for sanctions should be
3 maintained under seal, and (2) seal certain documents containing Boeing’s own sensitive 4 information, including Exhibits 4, 7, 8, and 9 to Mr. Fursevich’s January 23, 2024 5 declaration, portions of Mr. Fursevich’s January 23, 2024 declaration, and portions of 6 Boeing’s opposition to Zunum’s motion for sanctions. (1/22/24 MTS at 2; see 1/22/24 7 Fursevich Decl. (Dkt. ## 269 (redacted), 271 (sealed)); id. ¶ 2, Ex. 1 (Dkt. # 269-1); id. 8 ¶ 3, Ex. 2 (Dkt. # 269-1); id. ¶ 4, Ex. 3 (Dkt. ## 269-1 (cover page); 271-1 (sealed)); id.
9 ¶ 5, Ex. 4 (Dkt. ## 269-1 (cover page), 271-2 (sealed)); id. ¶ 6, Ex. 5 (Dkt. ## 269-1 10 (cover page), 271-3 (sealed)); id. ¶ 7, Ex. 6 (Dkt. # 269-1); Ex. 73 (Dkt. ## 269-1 (cover 11 page), 271-4 (sealed)); Ex. 8 (Dkt. ## 269-1 (cover page), 271-5 (sealed)); id. ¶ 16, Ex. 9 12 (Dkt. ## 269-1 (cover page), 271-6 (sealed)); Boeing Opp. (Dkt. ## 269 (redacted), 270 13 (sealed)).)
14 Boeing publicly filed Exhibits 1, 2, and 6 despite recognizing in its motion that 15 these materials were potentially Zunum confidential under the terms of the protective 16 order. (See generally Public Exs. to Fursevich Decl. (Dkt. # 269-1). See 1/22/24 MTS at 17 2.) Zunum did not respond to Boeing’s motion. (See generally Dkt.) The court 18 considers Boeing’s arguments below.
19 First, Boeing argues that Exhibits 4, 7, and 8 “reflect the state of Boeing’s 20 understanding of alternative aircraft propulsion and hybrid-electric aircraft technologies” 21
3 In his declaration, Mr. Fursevich does not attest to the authenticity of Exhibits 7 and 8, 22 nor does he otherwise address these exhibits.. (See generally 1/22/24 Fursevich Decl.) 1 and that dissemination of this information “would reveal certain aspects of Boeing’s 2 approach to aircraft design and development and could harm Boeing’s competitive
3 position.” (1/22/24 MTS at 4.) Exhibit 4 is an excerpted transcript of the November 29, 4 2023 deposition of Steven Nordlund. (See generally 1/22/24 Fursevich Decl. ¶ 5, Ex. 4.) 5 Exhibit 7 is a Boeing slide deck discussing various Boeing ventures, market analyses, and 6 technologies. (See generally id. Ex. 7.) And Exhibit 8 is an email exchange between 7 Boeing employees discussing Boeing’s electric propulsion projects. (See generally id. 8 Ex. 8.) Upon review, the court concludes that there are compelling reasons to maintain
9 Exhibits 7 and 8 under seal in their entirety, as these exhibits contain highly confidential 10 discussions of proprietary Boeing investments and technologies. See Treehouse Avatar, 11 2019 WL 291664, at *2. Exhibit 4, however, can be filed with redactions, just as the 12 court previously ordered with respect to Zunum’s January 9, 2024 motion to seal. See 13 supra § III(C) (ordering redactions to excerpts from the same deposition of Mr.
14 Nordlund). 15 Second, Boeing argues that Exhibit 9 should be maintained under seal because it 16 reflects “internal, confidential Boeing policies regarding records and information 17 management.” (1/22/24 MTS at 5.) Exhibit 9 is an email exchange between counsel for 18 the parties discussing Boeing’s document retention policies and discovery procedures.
19 (See generally 1/22/24 Fursevich Decl. ¶ 16, Ex. 9.) Upon review, the court finds 20 compelling reasons to maintain this information under seal to prevent the disclosure of 21 Boeing’s confidential document retention policies. See Adtrader, 2020 WL 6387381, at 22 *2. 1 Accordingly, the court GRANTS in part Boeing’s January 22, 2024 motion to seal 2 and ORDERS that Exhibit 4 shall be redacted and Exhibits 7, 8, and 9 shall be
3 maintained under seal. Boeing shall file a redacted version of Exhibit 4 by no later than 4 February 5, 2024. Because Zunum did not respond to Boeing’s motion, and out of 5 caution due to the sensitive and proprietary nature of this dispute, the court RESERVES 6 RULING on the portions of Boeing’s motion related to Exhibits 1, 2, 3, 5, and 6. The 7 court notes that Exhibits 1, 2, and 6 are currently available on the public docket. 8 Accordingly, the court ORDERS Zunum to SHOW CAUSE by no later than February 7,
9 2024 as to why the court should not maintain Exhibits 1, 2, and 6 on the public docket 10 and lift the seal on Exhibits 3 and 5. 11 IV. CONCLUSION 12 For the foregoing reasons, the court orders as follows: 13 1. Zunum’s December 29, 2023 motion to seal (Dkt. # 196) is GRANTED;
14 2. Zunum’s January 5, 2024 motion to seal (Dkt. # 216), January 11, 2024 15 amended motion to seal (Dkt. # 253), and January 9, 2024 motion to seal (Dkt. # 237) are 16 GRANTED in part and DENIED in part; 17 3. The court RESERVES RULING on Boeing’s December 29, 2023 motion 18 to seal (Dkt. # 194) and Boeing’s January 2, 2024 motion to seal (Dkt. # 209);
19 4. The court GRANTS in part and RESERVES RULING in part on Boeing’s 20 January 22, 2024 motion to seal (Dkt. # 263); 21 5. Zunum is ORDERED to SHOW CAUSE by no later than February 7, 22 2024 as to why the court should not (1) lift the seal on Docket Nos. 201, 202, 203, 204, 1 205, 206, 211, 214, 271-1, and 271-3, and (2) maintain as public Docket No. 269-1, 2 which contains Exhibits 1, 2, and 6 to Mr. Fursevich’s January 22, 2024 declaration (see
3 supra III(F)). 4 6. Boeing is ORDERED to file redacted versions of Docket Nos. 229, 231, 5 236, and 271-2 by no later than February 5, 2024; 6 7. The Clerk is DIRECTED to UNSEAL Docket Nos. 221, 222, 223, 224, 7 225, 230, 235, 242, and 243; and 8 8. The Clerk is DIRECTED to SEAL Docket No. 239-13.
9 Dated this 31st day of January, 2024. A 10 JAMES L. ROBART 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22