United States District Court, N.D. California
TIGAR UNITED STATES DISTRICT JUDGE
Symantec Corporation moves to file under seal portions of its
Notice of Motion and Motion for Relief Due to Zscaler's
Violation of Rule 37(e) (“Motion”), portions of
Exhibits H and I, and the entirety of Exhibits A, B, C, L, Q,
and T. ECF No. 203. The Court will grant in part and deny in
part Symantec's motion.
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 documents other than grand jury transcripts or
pre-indictment warrant materials. Kamakana v. City &
Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)
(citation and internal quotations omitted).
respect to the first prong, Local Rule 79-5 requires, as a
threshold, a request that (1) “establishes that the
document, or portions thereof, are privileged, protectable as
a trade secret or otherwise entitled to protection under the
law”; and (2) is “narrowly tailored to seek
sealing only of sealable material.” Civil L.R. 79-5(b).
An administrative motion to seal must also fulfill the
requirements of Civil Local Rule 79-5(d). “Reference 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.” Civil L.R. 79-5(d)(1)(A).
respect to the second prong, the showing required to overcome
the strong presumption of access depends on the type of
motion to which the document is attached. “[A]
‘compelling reasons' standard applies to most
judicial records. This standard derives from the common law
right ‘to inspect and copy public records and
documents, including judicial records and
documents.'” Pintos v. Pac. Creditors
Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589,
597 n.7 (1978)). To overcome this strong presumption, the
party seeking to seal a judicial record must
“articulate compelling reasons supported by specific
factual findings that outweigh the general history of access
and the public policies favoring disclosure.”
Kamakana, 447 F.3d at 1178-79 (internal citations
reasons' exist when ‘court files might have become
a vehicle for improper purposes,' such as the use of
records to gratify private spite, promote public scandal,
circulate libelous statements, or release trade
secrets.” Kamakana, 447 F.3d at 1179 (quoting
Nixon, 435 U.S. at 598). The Nixon Court also noted
that the “common-law right of inspection has bowed
before the power of a court to insure that its records”
are not used as “sources of business information that
might harm a litigant's competitive standing.” 435
U.S. at 598.
Ninth Circuit, in an unpublished opinion, has identified a
trade secret in this context as “any formula, pattern,
device or compilation of information which is used in
one's business, and which gives him an opportunity to
obtain an advantage over competitors who do not know or use
it.” In re Elec. Arts, Inc., 298 Fed.Appx.
568, 569 (9th Cir. 2008) (quoting Restatement of Torts §
757, cmt. b). In that case, applying Kamakana and
Nixon, the Ninth Circuit reversed a district court
for refusing to seal information that qualified under this
standard. In re Elec. Arts, Inc., 298 Fed. App'x
at 569. The Federal Circuit has similarly concluded that
under Ninth Circuit law, detailed product-specific financial
information, customer information, and internal reports are
appropriately sealable under the “compelling
reasons” standard where that information could be used
to the company's competitive disadvantage. Apple Inc.
v. Samsung Elecs. Co., 727 F.3d 1214, 1226, 1228 (Fed.
district court must “articulate [the] . . . reasoning
or findings underlying its decision to seal.” Apple
Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir.
2011), cert. denied, 132 S.Ct. 2374 (2012).
moves to file under seal portions of its Motion and portions
of Exhibit H and I. The highlighted portions of the Motion
and exhibits contain highly sensitive and confidential
business information, which would put Symantec at a
competitive disadvantage. ECF No. 203 at 3. Compelling
reasons exist to seal the redacted portions of the Motion,
and this request is narrowly tailored. See In re Elec.
Arts, 298 Fed.Appx. at 569. Therefore, the Court grants
the motion to file portions of Symantec's Motion and
Exhibits H and I under seal.
also moves to seal the entirety of Exhibits A, B, C, L, Q,
and T, which consist of nearly 100 pages of deposition
excerpts and declarations. Because some of the proffered
material appears not to be privileged, protectable as a trade
secret, or otherwise entitled to protection under the law,
however, the Court cannot conclude the request is narrowly
tailored. See Civil L.R. 79-5(b); see also,
e.g., ECF No. 203-5 at 12 (containing colloquy between
counsel about whether a document had been previously
produced). The Court accordingly denies the motion to file
the entirety of Exhibits A, B, C, L, Q, and T under seal.
opposition, Zscaler requests to seal portions of Exhibits B
and T to Symantec's Motion. The Court finds that
compelling reasons exist for sealing the identified portions
of this document. See In re Elec. Arts, 298
Fed.Appx. at 569. The ...