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Ubiquiti Networks, Inc v. Kozumi Usa Corp.


February 25, 2013


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California


Pending before the Court is the parties' Joint Statement Regarding Confidentiality Designations. (Dkt. No. 115-1). The Court's December 13, 2012 Order denied Defendants' 22 request for a determination that it had properly designated certain documents as "HIGHLY 23 CONFIDENTIAL -- ATTORNEYS' EYES ONLY" ("AEO") because there was insufficient 24 information regarding the specific documents. Defendants renew their request for a 25 determination regarding the confidentiality of certain documents. The Court finds that the 26 AEO documents are properly designated, but declines to rule on the confidentiality of the 27 other documents as it does not appear that the parties have adequately met and conferred and 28 there is insufficient information before the Court to rule on the confidentiality of the 2 remaining documents. 3

Federal Rule of Civil Procedure 26(c) provides that upon a showing of "good cause" a 5 court may enter a protective order "requiring that a trade secret or other confidential research, 6 development, or commercial information not be revealed or be revealed only in a specified 7 way." See San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th 8 Cir. 1999). "For good cause to exist, the party seeking protection bears the burden of 9 showing specific prejudice or harm will result if no protective order is granted." Phillips ex 10 re. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210--11 (9th Cir. 2002). If the 11 court determines that "particularized harm will result from disclosure of information to the 12 public, then it balances the public and private interests to decide whether a protective order is necessary." Id. 14


Northern District's Model Stipulated Protective Order for Standard Litigation which allows 16 either party to designate material as "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL -- 17


There are two documents at issue in this category, although the parties appear to have 20 reached an agreement with respect to one of them. The parties appear to agree that document 21 KOZ-008985 is subject to an AEO designation in its unredacted form, but that if Plaintiff 22 redacted the password information, the document could be treated as non-confidential. 23

William Wu and his brother concerning Mr. Wu's divorce. Defendants contend that these 25 documents are entitled to an AEO designation because of their highly confidential personal 26 nature. The Court has reviewed the emails and finds that they are of the utmost personal 27 nature and the Court cannot discern any need for Plaintiff to share these emails with their 28 client nor other parties. Nor does Plaintiff advance such an explanation; instead, Plaintiff

The parties here entered into a Stipulated Protective Order (Dkt. No. 89) based on the

1.Documents Designated as AEO

The second document, WU-39370-WU39375, is a set of personal emails between contends that Defendants have not shown that the documents would put Defendants at a 2 competitive disadvantage and that the documents do not meet the AEO standard in the 3

Party would create a substantial risk of serious harm that could not be avoided by less 5 restrictive means." (Dkt. No. 87, ¶ 2.7.) The Court disagrees as to the later- exposure of this 6 highly personal information could cause serious personal harm to Mr. Wu and his family, 7 which is unwarranted given that the majority of matters discussed therein do not relate to the 8 issues in this litigation. If Plaintiff has a good faith belief that these emails contain 9 information which it needs to share with its client or in house counsel in order to litigate this 10 case, it may file a supplemental letter brief to this effect. In the interim, the AEO designation 11 stands. 12

Following the Court's December 13, 2012 Order, Defendants de-designated and re- 14 designated numerous documents which they had previously designated as AEO. Defendants 15 appear to seek a ruling from the Court that the re-designation of these documents as 16 CONFIDENTIAL rather than AEO is proper. There are two over-arching problems with this 17 request: 1) it does not appear that the parties have met and conferred regarding this matter, 18 and 2) Defendants have provided samples from each category of documents which may not 19 accurately reflect the contents of all documents within a category and thus seek a Court order 20 passing on documents which the Court has not reviewed. 21

22 the parties' meet and confer efforts regarding confidentiality designations have been 23 insufficient. It appears that Defendants only intended this Joint Statement to address the 24 dispute regarding the two AEO designated documents, but Plaintiff objected to Defendants' 25 re-designation of documents from AEO to CONFIDENTIAL so Defendants decided to 26 include this dispute as well. However, it appears that Defendants did not advise Plaintiff of 27 this until the day before this joint statement was submitted. As such, Plaintiff did not review 28

Protective Order; that is, documents that the "disclosure of which to another Party or Non-4

2.Documents Designated as Confidential

First, as discussed in the Order re: Interpretation of the Protective Order filed today, all of the documents at issue and the parties necessarily did not meet and confer regarding 2 these matters.

4 vague, overbroad, and according to Plaintiff, disingenuous. Defendants' representative 5 samples of documents are similarly unhelpful. The Court does not provide advisory opinions 6 regarding the types of documents which might be entitled to a confidentiality designation. A 7 party must make a motion to retain the confidentiality of a particular document or a narrow 8 category of documents and make a showing with respect to each as to why it is entitled to 9 protection based on the specifics of the case and the relevant caselaw. 10

11 re-designation of documents as confidential as set forth in the Order re: the Stipulated 12 hearing on February 28, 2013. 14

15 respect to the "categories" of documents identified by Defendant: 16

Documents which contain specific pricing, marketing, and customer information are 18 generally considered confidential and thus may be designated as confidential. See, e.g., RSI 19

July 30, 2012) (upholding a confidentiality designation for customer lists where the 21 designating party represented that it did not publically disclose customer lists or revenue-by-22 customer information); Nutratech, Inc. v. Syntech (SSPF) Int'l, Inc., 242 F.R.D. 552, 555 23

"'confidential commercial information'" entitled to protection under Fed.R.Civ.P. 26(c)(7)). 25

WL 4169628, at * 2 (N.D. Cal. 2007) ("Plaintiff's general assertion that disclosure of 27 business communications would chill business relations is not a sufficient allegation of 28

Second, the Court notes that in many cases Defendants' categories of documents are

Accordingly, the parties are ordered to engage in further meet and confer regarding the

Protective Order concurrently filed today; the parties shall be prepared to do so following the

In anticipation of this meet and confer, the Court provides the following guidance with

1)Sales Records Corp. v. Int'l Bus. Machines Corp., No. 08-CV-3414, 2012 WL 3095439, at *1 (N.D. Cal. 20 (C.D. Cal. 2007) ("Customer/supplier lists and sales and revenue information qualify as 24 But see Medtronic Vascular, Inc. v. Abbott Cardiovascular Systems, Inc., No. 06-10666, 2007 26 specific harm. This general blanket argument would apply to all non-public 2 communications."). 3

Employee payment and pension records in a non-employment case are generally the 5 type of information that could properly be designated as confidential. 6

While the Court agrees that product development information might be subject to a 8 confidentiality designation, the document submitted at WU-18772-WU18773 seems to relate 9 to a product order rather than product development, which does not appear to be information 10 that would generally be properly designated as confidential. 11

If Defendants can produce a confidentiality agreement or admissible evidence confirming the expectation of confidentiality between Defendants and MicroTik, then 14 communications between the two would likely be properly designated as confidential. 15

This category of documents is so vague as to be nearly meaningless and the document 17 submitted as an example, WU-0196373-WU196374, is an invoice between Kozumi and 18 another company. The Court fails to see how this document reveals the confidential 19 interactions or internal workings of the third-party. The document may contain confidential 20 pricing information, but Defendants have not raised this argument. 21

This category of documents is similarly vague and overbroad and the "representative 23 sample" documents of "third party financials [ ]certified and filed with the government" and 24 "corporate meeting minutes and other documents" are not in English and no translation was 25 provided. 26

The Court agrees that personal bank account information is generally viewed as

2)Payment and pension information about employees

3)Product development documents

4)Communications between Defendants and MicroTik

5)Documents regarding other companies Mr. Wu owns or manages

6)Third-party financial documents

7)Documents with bank account information confidential.

8)Internal Kozumi operations communications

This category is also overbroad. While some internal communications such as those discussed above might properly be designated as confidential, Plaintiff has submitted 4 documents which it contends fit within this category that do not appear to be confidential. 5

9)Confidential internal business operations communication with Helen Chui

It is improper to blanket designate all communications from a particular individual as confidential. 8

10) Communications re: confidential business negotiations

This category is hopelessly vague and the representative sample documents are not in English and no translation was provided. 11 The Court notes that the foregoing is offered as guidance and not a finding regarding 12 the confidentiality of any particular document; however, Defendants should review their confidentiality designations with the foregoing parameters in mind. For those documents 14 over which Defendants continue to assert a confidentiality designation, they shall come 15 prepared to meet and confer with Plaintiff and explain the basis for the confidentiality 16 designation as to each and every document. If a dispute remains as to a particular document, 17 the parties may file a joint letter brief in accordance with the procedures described herein. 18

This Order disposes of Docket No. 115-1.



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