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Eon Corp Ip Holdings LLC v. Aruba Networks Inc

March 16, 2013


The opinion of the court was delivered by: United States District Judge Jon S. Tigar


Defendants move to file under seal portions of their Responsive Claims Construction Brief, as well as exhibits 9 and 17 to the Declaration of Jessica L. Hannah in support of that brief. Dkt. 15 No. 656. Plaintiffs have filed a declaration to establish that portions of the brief, and one of the 16 exhibits, are sealable. Dkt. No. 658. The Court issues this tentative order explaining why it 17 expects to deny the motion. If Plaintiff does not file a new declaration in support of sealing within 18 five days, the Court will issue a final order denying the motion. 19


A party seeking to seal a document filed with the court must (1) comply with Civil Local Rule 79-5; and (2) rebut the "a strong presumption in favor of access" that applies to all 22 documents other than grand jury transcripts or pre-indictment warrant materials. Kamakana v. 23 City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation and internal quotation 24 marks omitted). 25 With respect to the first prong, Local Rule 79-5 requires, as a threshold, a request that (1) establishes that the document or portions thereof is privileged or protectable as a trade secret or 27 otherwise entitled to protection under the law"; and (2) is "narrowly tailored to seek sealing only 28 of sealable material." Civil L.R. 79-5(a). "A stipulation, or a blanket protective order that allows 2 a party to designate documents as sealable, will not suffice to allow the filing of documents under 3 seal." Id. Additional requirements apply depending on whether the party seeks to seal an entire 4 document, only portions of a document, or a document that was designated as confidential by 5 another party. See Civil L.R. 79-5(b)-(d). 6

With respect to the second prong, the showing required for overcoming the strong 7 presumption of access depends on the type of motion to which the document is attached. When a 8 party seeks to file materials in connection with a dispositive motion, the presumption can be 9 overcome only if the party presents "compelling reasons supported by specific factual findings 10 that outweigh the general history of access and the public policies favoring disclosure." 11

Kamakana, 447 F.3d 1172 at 1178-79 (internal citation omitted). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Id. at 1179. 14

On the other hand, when a party seeks to file previously sealed discovery materials in 15 connection with a non-dispositive motion, the sealing party need not meet the 'compelling 16 reasons' standard "because those documents are often unrelated, or only tangentially related, to the 17 underlying cause of action." Id. at 1179 (citation and internal quotation marks omitted). In that 18 case, a party need only make a "particularized showing under the good cause standard of Rule 19 26(c)" to justify the sealing of the materials. Id. at 1180 (internal citation and internal quotation 20 marks omitted). A court may, for good cause, keep documents confidential "to protect a party or 21 person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 22 26(c). 23

A district court must "articulate [the] . . . reasoning or findings underlying its decision to 24 seal." Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011) cert. denied, 132 S. Ct. 25 2374 (U.S. 2012). 26


Plaintiff's declaration concedes that exhibit 17 to Defendants' Responsive Claims Construction brief is not sealable. Therefore, the Court will deny the Motion to Seal as it applies 4 to exhibit 17 and to any redacted portions of the responsive claim construction brief which make 5 reference to it. 6

As for Exhibit 9, and references thereto, Plaintiff's declaration states only that the exhibit

"is confidential because it contains EON's infringement theories based on wireless communication 8 standards that are not solely applicable to the Defendants in this case." Dkt. No. 658, ¶ 5. The 9 declaration states that, "if disclosed to the public, third parties could potentially use the 10

This short statement does not satisfy the requirements of Civil Local ...

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