United States District Court, N.D. California
ORDER RE: ADMINISTRATIVE MOTION TO FILE UNDER SEAL
Re: Dkt. No. 96
MARIA-ELENA JAMES, United States Magistrate Judge
April 13, 2017, Plaintiff Richard Pohly filed an
administrative motion to file under seal his Opposition to
Defendant Intuitive Surgical, Inc.'s (“ISI”)
Motion in Limine No. 6. Mot., Dkt. No. 96; Opp'n, Dkt.
No. 96-1. Plaintiff argues the Opposition contains materials
ISI designated as confidential pursuant to the parties'
protective order. See Mot.; see Protective
Order, Dkt. No. 44. Having considered the parties'
arguments and the relevant legal authority, the Court issues
the following order.
is a “strong presumption in favor of access” by
the public to judicial records and documents accompanying
dispositive motions. Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citing
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003)). To overcome this presumption, a
“party must articulate compelling reasons supported by
specific fact[s].” Id. at 1178 (internal
quotation and citation omitted); see also Apple, Inc. v.
Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013)
(finding sealing appropriate where companies “filed
declarations from employees” that “explained the
measures the two companies take to keep their
product-specific financial information confidential”
and “the harm they would suffer if their
product-specific financial information were made
such showing is required even where “the dispositive
motion, or its attachments, were previously filed under seal
or protective order.” Kamakana, 447 F.3d at
presumption does not apply in the same way to nondispositive
motions, “such that the usual presumption of the
public's right of access is rebutted.” Id.
(citing Phillips v. General Motors Corp., 307 F.3d
1206, 1213 (9th Cir. 2002). “Good cause” is the
proper standard when parties wish to seal records attached to
a nondispositive motion. Pintos v. Pac. Creditors
Ass'n, 605 F.3d 665, 678 (9th Cir. 2010).
good cause standard applies to documents filed in connection
with nondispositive motions in limine. See TVIIM, LLC v.
McAfee, Inc., 2015 WL 3776424, at *2 (N.D. Cal. June 16,
the Local Rules of this District, where a party seeks to file
under seal any material designated as confidential by another
party, the submitting party must file a motion for a sealing
order. See Civil L.R. 79-5(d)-(e). ISI, as the
designating party, submits the Declaration of David Stoffel
and the Declaration of Emily Reitmeier in support of
Plaintiff's Motion. Stoffel Decl., Dkt. No. 104-2;
Reitmeier Decl., Dkt. No. 104-3. ISI seeks to seal only a
limited portion of the Opposition. See Reitmeier
Decl., Ex. A at 5 (proposed redactions). ISI represents the
proposed redactions contain information that
“constitutes commercially valuable confidential and
proprietary information” which could be used by
competitors to ISI's disadvantage if made public. ISI
Resp. at 2, Dkt. No. 104; Stoffel Decl. ¶ 3.
Specifically, the information concerns “a product not
yet released to the public and the technology used in that
product.” ISI Resp. at 2; see Stoffel Decl.
¶ 4 (“[T]he redacted information relates to
products still in their testing phases that have not yet been
released to the public and are not for sale.”). Stoffel
declares that “[r]elease of information about a new
product could result in improper use by business competitors
seeking to replicate ISI's new products, and circumvent
the considerable time and resources necessary in product
development and design.” Stoffel Decl. ¶ 7.
have refused to permit their files to serve . . . as sources
of business information that might harm a litigant's
competitive standing[.]” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 598 (1978); see
Asetek Danmark A/S v. CMI USA, Inc., 2015 WL 4116738, at
*2 (N.D. Cal. July 7, 2015) (applying more stringent
compelling reasons standard and granting motion to file under
seal information that could place plaintiff at a competitive
disadvantage). ISI has established that the information
sought to be sealed relates to ISI's confidential
research or development and that disclosure could cause it
competitive harm. ISI's proposed redactions are narrowly
tailored to address that risk. See Civ. L.R.
79-5(b). As such, the Court GRANTS Plaintiffs Motion to file
its Opposition to ISI's Motion in Limine No. 6 under
seal. Plaintiff shall refile its Motion with ISI's
proposed redactions no later than April 27, 2017.
Court once more directs the parties to follow Civil Local
Rule 79-5(d)(1)(D). The Court advised the parties about this
rule in a prior Order regarding motions to seal. See
Order at 1 n.1, Dkt. No. 64. In the future, the Court will
strike documents that do not comply with this rule.