United States District Court, N.D. California
ORDER ON JOINT LETTER BRIEF RE PRODUCTION OF CANON
USA, INC.'S DATA RE: DKT. NO. 1548
Indirect Purchaser Plaintiffs (“IPPs”) and third
party Canon U.S.A., Inc. (“Canon” or “Canon
USA”) filed joint letter briefs in which the IPPs moved
to compel Canon to produce information in response to their
subpoena. [Docket Nos. 1365, 1518-3.] Specifically, the IPPs
seek production of Canon's sales and purchase data for
camcorders which contain cylindrical lithium ion batteries
(“LIBs”) and replacement batteries for those
products. [Docket No. 1365 at 1.] Canon asserts that the
information sought is “confidential, commercially
sensitive data, ” the disclosure of which to
competitors, including Defendants, “would jeopardize
[Canon's] business.” Id. at 5.
a hearing, the court granted the motion to compel in part and
ordered the IPPs and Canon to meet and confer regarding a
protective order governing Canon's production. [Docket
No. 1530.] The parties were unable to resolve their
differences regarding a protective order and submitted a
joint discovery letter addressing the remaining disputes.
[Docket No. 1548 (Jt. Letter).] On February 27, 2017, the
court ordered the parties to submit supplemental information
regarding their disputes, which the parties timely filed.
[Docket Nos. 1681, 1693.] This matter is suitable for
resolution without a hearing. Civ. L.R. 7-1(b).
proposed revisions to the existing protective order governing
this case (see Docket No. 193). The IPPs dispute
several revisions or groups of revisions proposed by Canon.
Jt. Letter Attach. (“Prop. P.O.”). The court
addresses each in turn.
Designation of Highly Confidential Material and Filing Under
Canon proposes that the protective order state that
“[t]he Parties acknowledge that material produced in
response to the IPPs' [Canon] Subpoena shall properly be
designated ‘HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
ONLY, ” and include the following statement: “The
Parties shall not challenge the designation of material to be
produced in response to the IPPs' [Canon] Subpoena as
‘HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY, '
and the provisions of this Section 6 therefore do not apply
to such designation.” Prop. P.O. §§ 5.1, 6.
Section 6 sets forth the procedures governing any challenge
to a party's confidentiality designation and Section 10
governs the filing of protected material. Taken together,
Canon's proposed provisions would require any party
seeking to use Canon's responsive information to file
such material under seal without challenge or recourse.
Local Rule 79-5, which governs filing documents under seal,
states that “no document may be filed under seal (i.e.,
closed to inspection by the public) except pursuant to a
court order that authorizes the sealing of the particular
document, or portions thereof. A sealing order may issue only
upon a request that establishes that the document, or
portions thereof, are privileged, protectable as a trade
secret or otherwise entitled to protection under the law
(hereinafter referred to as ‘sealable').”
Civ. L.R. 79-5(b). The rule provides that “[t]he
request must be narrowly tailored to seek sealing only of
sealable material . . . .” Id. Furthermore,
“[r]eference to a stipulation or protective order that
allows a party to designate certain documents as confidential
is not sufficient to establish that a document, or portions
thereof, are sealable.” Civ. L.R. 79-5(d)(1)(A).
Pursuant to Civil Local Rule 79-5(e), a party must file under
seal a document designated as confidential by the opposing
party or a document containing information so designated by
an opposing party. “Within 4 days of the filing of the
Administrative Motion to File Under Seal, the Designating
Party must file a declaration as required by subsection 79-
5(d)(1)(A) establishing that all of the designated
material is sealable.” Civ. L.R. 79-5(e)(1).
Canon seeks to insert a provision that “the provisions
of Local Rule 79-5 requiring an administrative motion and
declaration by the Designating Party shall not apply to the
filing of such material under seal.” Canon explains
that these provisions would exempt it from the “burden
of defending the confidentiality of data this Court has
already found is confidential, ” citing the court's
discussion at the hearing on the motion to
compel. Jt. Letter 4.
court declines to adopt Canon's proposal. The Ninth
Circuit has held that while the public's “access to
judicial records is not absolute . . . a ‘strong
presumption in favor of access' is the starting
point.” Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation
omitted). Courts “treat judicial records attached to
dispositive motions differently from records attached to
non-dispositive motions.” Id. at 1180. A
“‘good cause' showing . . . will suffice to
keep sealed records attached to non-dispositive
motions.” Id. at 1180 (citation omitted).
However, when a party seeks to seal judicial records filed in
connection with dispositive motions, a “compelling
reasons” standard applies. Id. at 1179. To
limit this common law right of access, a party seeking to
seal judicial records must show that “compelling
reasons supported by specific factual findings . . . outweigh
the general history of access and the public policies
favoring disclosure.” Id. at 1178-79
(citations and internal quotation marks omitted). This
compelling reasons standard applies even if the documents
were designated confidential subject to a protective order.
See id. at 1179. The court's previous statement
that the material is “confidential” was not a
finding that the material is sealable under the standards set
forth in Kamakana. Under these standards, the court
cannot pre-determine whether Canon has satisfied the
requirements for filing material under seal, regardless of
its present assertion that the material is confidential.
Accordingly, the court denies Canon's proposal to insert
the disputed provisions at 5:7-8, 7:19-21, and 13:23-14:1.
Disclosure to Experts
Canon proposes modifications that it asserts will protect it
from disclosure of its confidential information to persons
affiliated with its competitors. The current version of the
protective order permits retained experts and consultants to
review material designated as confidential or highly
confidential. Canon seeks the addition of provisions that
disclosure of its material may only be to “existing
Experts whose identity has already been disclosed to Canon
USA or have no affiliation with a Canon USA competitor,
” as identified by Canon on an exhibit with a list of
its competitors (Prop. P.O. § 7.3(b)); that “IPPs
represent that their counsel has provided counsel for Canon
USA with the C.V.s of all Experts and Consultants disclosed
in this action to-date”; and that “[t]he Parties
shall not disclose [Canon material] to any as-yet undisclosed
Expert or Consultant who has been employed or retained by or
consulted with a Canon USA competitor . . . at any time since
the beginning of the class period.” Prop. P.O.
§§ 7.3(b), (g).
current version of the protective order also allows
disclosure of material designated as confidential and highly
confidential to participants in a focus group or mock jury
with no restrictions. Canon proposes a provision that a
receiving party may only disclose Canon's material to
participants in a focus group or mock jury “so long as
(1) such participants and their family members are not and
have not been employed by a competitor of Canon USA.”
Prop. P.O. § 7.3(f)). At the court's request, Canon
submitted its proposed exhibit listing its competitors. The
list identifies 12 companies. [Docket No. 1693 at 6.]
IPPs argue that these provisions effectively allow Canon to
have veto power over any future experts, consultants, and
mock jury pool members, which would severely disrupt their
ability to prepare for trial.
court finds that Canon's proposal regarding experts and
consultants is unnecessary, since the protective order
already requires experts and consultants to execute the
“Agreement to Be Bound by Protective Order” prior
to receiving material designated confidential or highly
confidential. See Prop. P.O. § 7.2(c). However,
given Canon's confidentiality concerns, the court orders
the parties to add a provision to the protective order that
provides that the IPPs will meet and confer with Canon in
advance of providing Canon's material to any experts who
have not yet been disclosed to Canon, ...