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In re Lithiumion Batteries Antitrust Litigation

United States District Court, N.D. California

March 9, 2017

IN RE: LITHIUMION BATTERIES ANTITRUST LITIGATION

          ORDER ON JOINT LETTER BRIEF RE PRODUCTION OF CANON USA, INC.'S DATA RE: DKT. NO. 1548

         The 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.

         Following 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).

         I. DISCUSSION

         Canon 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.

         A. Designation of Highly Confidential Material and Filing Under Seal

         First, 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.

         Civil 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)[1] establishing that all of the designated material is sealable.” Civ. L.R. 79-5(e)(1).

         Here, 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.[2] Jt. Letter 4.

         The 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.

         B. Disclosure to Experts

         Next, 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).

         The 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.]

         The 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.

         The 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. ยง 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, ...


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