Opinion
Case No. 5:14-cv-04853-PSG
07-01-2015
NOVADAQ TECHNOLOGIES INC. Plaintiffs, v. KARL STORZ GMBH & CO. KG., et al., Defendants.
OMNIBUS ORDER RE: MOTIONS TO SEAL
(Re: Docket Nos. 124, 128, 135, 136, 143, 149, 150, 151, 160)
Before the court are nine administrative motions to seal various documents. "Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" Accordingly, when considering a sealing request, "a 'strong presumption in favor of access' is the starting point." Parties seeking to seal judicial records relating to dispositive motions bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure.
Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)).
Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)).
Id. at 1178-79.
However, "while protecting the public's interest in access to the courts, we must remain mindful of the parties' right to access those same courts upon terms which will not unduly harm their competitive interest." Records attached to nondispositive motions therefore are not subject to the strong presumption of access. Because the documents attached to nondispositive motions "are often unrelated, or only tangentially related, to the underlying cause of action," parties moving to seal must meet the lower "good cause" standard of Rule 26(c). As with dispositive motions, the standard applicable to nondispositive motions requires a "particularized showing" that "specific prejudice or harm will result" if the information is disclosed. "Broad allegations of harm, unsubstantiated by specific examples of articulated reasoning" will not suffice. A protective order sealing the documents during discovery may reflect the court's previous determination that good cause exists to keep the documents sealed, but a blanket protective order that allows the parties to designate confidential documents does not provide sufficient judicial scrutiny to determine whether each particular document should remain sealed.
Apple Inc. v. Samsung Electronics Co., Ltd., 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).
See id. at 1180.
Id. at 1179 (internal quotations and citations omitted).
Id.
Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c).
Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
See Kamakana, 447 F.3d at 1179-80.
See Civ. L.R. 79-5(d)(1)(A) ("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.").
In addition to making particularized showings of good cause, parties moving to seal documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is "sealable," or "privileged or protectable as a trade secret or otherwise entitled to protection under the law." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)." "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(b). In part, Civ. L.R. 79-5(d) requires the submitting party to attach a "proposed order that is narrowly tailored to seal only the sealable material" which "lists in table format each document or portion thereof that is sought to be sealed," Civ. L.R. 79-5(d)(1)(b), and an "unredacted version of the document" that indicates "by highlighting or other clear method, the portions of the document that have been omitted from the redacted version." Civ. L.R. 79-5(d)(1)(d).
Civ. L.R. 79-5(e)(1). The Civil Local Rules have recently been amended shortening the time available to the designating party to file a supporting declaration from seven days to four days. As this rule change was only recently implemented the court applies the prior form of Civ. L.R. 79-5 for the purposes of this order. --------
With these standards in mind, the courts rules on the instant motions as follows:
| Motion toSeal | Document to be Sealed | Result | Reason/Explanation |
|---|---|---|---|
| 124-5 | Exhibit A to WelshDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 124-7 | Exhibit E to WelshDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 124-9 | Exhibit F to WelshDeclaration | Page 2 SEALED; remainderUNSEALED. | Only sealed portionsnarrowly tailored toconfidential businessinformation. |
| 124-11 | Exhibit G to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 124-13 | Exhibit I to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 128-4 | Novadaq's Opposition toKarl Storz's Motion forLeave to File Motion forReconsideration | UNSEALED. | No supportingdeclaration filed. |
| 128-6 | Declaration of JenniferLee Taylor | UNSEALED. | No supportingdeclaration filed. |
| 128-8 | Exhibit 1 to TaylorDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness informationand no supportingdeclaration filed. |
| 128-10 | Exhibit 2 to TaylorDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness informationand no supportingdeclaration filed. |
| 128-12 | Exhibit 3 to TaylorDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness informationand no supportingdeclaration filed. |
| 135-4 | Karl Storz's Reply toMotion for Leave to FileMotion forReconsideration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 135-6 | Declaration of Walter B.Welsh | Designations highlighted inyellow at 1:13-15 SEALED;remainder UNSEALED. | Only sealed portionsnarrowly tailored toconfidential businessinformation. |
| 135-8 | Exhibit K to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 136-3 | Novadaq's Opposition toKarl Storz's Motion forLeave to File Motion forReconsideration | UNSEALED. | No supportingdeclaration filed. |
| 136-5 | Exhibit A to TaylorDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 143-4 | Novadaq's Opposition toKarl Storz's Motion toExtend Time | UNSEALED. | No supportingdeclaration filed. |
| 143-6 | Exhibit L to TaylorDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 143-8 | Exhibit M to TaylorDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 149-4 | KS' Motion to CompelDepositions | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-6 | Exhibit A to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-8 | Exhibit L to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-10 | Exhibit O to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-12 | Exhibit P to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-14 | Exhibit T to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 149-16 | Exhibit U to WelshDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 150-4 | Novadaq's Motion forRule 37(b)(2) Sanctionsfor Defendants' Violationof Four Discovery Orders | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 150-6 | [PROPOSED] OrderGranting Novadaq'sMotion for Rule 37(b)(2)Sanctions for Defendants'Violation of FourDiscovery Orders | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-1 | Declaration of JenniferLee Taylor in support ofNovadaq's Motion forRule 37(b)(2) Sanctionsfor Defendants' Violationof Four Discovery Orders | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-2 | Exhibit H to TaylorDeclaration | Designations redacted in blackat Docket No. 169-3 SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-3 | Exhibit I to TaylorDeclaration | Designations redacted in blackat Docket No. 169-4 SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-5 | Declaration of Joyce Liouin support of Novadaq'sMotion for Rule 37(b)(2)Sanctions for Defendants'Violation of FourDiscovery Orders | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 151-6 | Exhibit A to LiouDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 151-7 | Exhibit B to LiouDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 151-8 | Exhibit C to LiouDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 151-9 | Exhibit D to LiouDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 151-10 | Exhibit F to LiouDeclaration | UNSEALED. | No supportingdeclaration filed. |
| 151-11 | Exhibit G to LiouDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-12 | Exhibit H to LiouDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-14 | Exhibit K to LiouDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 151-15 | Exhibit O to LiouDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information;Novadaq shall re-filewith highlights tomore narrowly tailorby July 8, 2015. |
| 151-16 | Exhibit P to LiouDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information;Novadaq shall re-filewith highlights tomore narrowly tailorby July 8, 2015. |
| 151-17 | Exhibit T to LiouDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information;Novadaq will re-filewith highlights tomore narrowly tailorby July 8, 2015. |
| 151-18 | Exhibit U to LiouDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information;Novadaq shall re-filewith highlights tomore narrowly tailorby July 8, 2015. |
| 151-19 | Exhibit Y to LiouDeclaration | UNSEALED. | Not narrowly tailoredto confidentialbusiness information. |
| 160-4(originallyfiled at100-3) | Novadaq's Opposition toDefendants' Motion forProtective OrderRegarding Dr. Storz | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-6(originallyfiled at100-8) | Exhibit 4 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-8(originallyfiled at100-11) | Exhibit 7 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-10(originallyfiledat100-12) | Exhibit 8 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-12(originallyfiledat100-14) | Exhibit 10 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-14(originallyfiled at100-15) | Exhibit 11 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-16(originallyfiled at100-16) | Exhibit 12 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-23(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-24(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-25(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-26(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-27(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-28(originallyfiled at100-21) | Exhibit 20 to ForanDeclaration | SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-30(originallyfiled at100-22) | Exhibit 21 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-32(originallyfiled at100-23) | Exhibit 22 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-34(originallyfiled at100-24) | Exhibit 23 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-36(originallyfiled at100-25) | Exhibit 24 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-38(originallyfiled at100-27) | Exhibit 26 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
| 160-40(originallyfiled at100-29) | Exhibit 28 to ForanDeclaration | Designations highlighted inyellow SEALED. | Sealed portionsnarrowly tailored toconfidential businessinformation. |
SO ORDERED.
Dated: July 1, 2015
/s/_________
PAUL S. GREWAL
United States Magistrate Judge