Skillz Platform Inc. v. AviaGames Inc. ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SKILLZ PLATFORM INC., Case No. 21-cv-02436-BLF 8 Plaintiff, ORDER GRANTING RENEWED 9 v. SEALING MOTIONS RE: BRIEFING ON MOTIONS IN LIMINE 10 AVIAGAMES INC., [Re: ECF No. 510, 511, 512, 513, 514, 519] 11 Defendant. 12 13 Before the Court are the parties’ renewed motions to seal and statements in connection 14 with the briefing on their motions in limine. ECF Nos. 510, 511, 512, 513, 514, 519. The Court 15 has considered the motions and statements, and its rulings are laid out below. 16 I. LEGAL STANDARD 17 “Historically, courts have recognized a ‘general right to inspect and copy public records 18 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of 19 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 20 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are 21 “more than tangentially related to the merits of a case” may be sealed only upon a showing of 22 “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 23 1101–02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed 24 upon a lesser showing of “good cause.” Id. at 1097. 25 In addition, in this district, all parties requesting sealing must comply with Civil Local 26 Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a 27 document under seal, including an explanation of: (i) the legitimate private or public interests that 1 alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 2 requires the moving party to provide “evidentiary support from declarations where necessary.” 3 Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable 4 material.” Civ. L.R. 79-5(c)(3). 5 Further, when a party seeks to seal a document because it has been designated as 6 confidential by another party, the filing party must file an Administrative Motion to Consider 7 Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing 8 party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the 9 party who designated the material as confidential must, within seven days of the motion’s filing, 10 file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 11 5(f)(3). A designating party’s failure to file a statement or declaration may result in the unsealing 12 of the provisionally sealed document without further notice to the designating party. Id. Any 13 party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4). 14 II. DISCUSSION 15 Because motions in limine seek to exclude evidence from the trial, the Court finds that 16 they are more than tangentially related to the merits of the case and applies the compelling reasons 17 standard. See MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103 WHA, 2022 WL 18 1144634, at *1 (N.D. Cal. Mar. 9, 2022) (“Evidentiary motions such as motions in limine and 19 Daubert motions can be strongly correlative to the merits of a case.”); Space Data Corp. v. 20 Alphabet Inc., No. 16-CV-03260-BLF, 2019 WL 8012584, at *1 (N.D. Cal. July 18, 2019) 21 (applying the compelling reasons standard to motions to seal related to motions in limine); Fed. 22 Trade Comm'n v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 6575544, at *2 (N.D. Cal. 23 Dec. 12, 2018) (same). 24 A. Defendant AviaGames Inc.’s Renewed L.R. 79-5(f)(3) Statement in Connection with Skillz’s Motions in Limine (ECF No. 510) 25 On November 13, 2023, the Court denied without prejudice in part three of Skillz’s 26 administrative motions to consider whether another party’s material should be sealed in 27 connection with Skillz’s motions in limine because the Court found that AviaGames’ requested 1 sealing was not narrowly tailored. ECF No. 494 (denying without prejudice ECF Nos. 355, 367, 2 and 369). AviaGames filed a renewed statement under Local Rule 79-5(f)(3) again requesting to 3 seal certain exhibits and a proposed order filed in support of Skillz’s motions in limine. ECF No. 4 510. Rather than seeking to seal the entirety of the exhibits and the proposed order, AviaGames 5 has also submitted proposed redactions to the documents. AviaGames argues that the information 6 that it seeks to seal includes confidential business information, descriptions of the operation of 7 AviaGames’ source code and products, AviaGames’ responses to user complaints, and 8 confidential licensing information. Id. at 2, 5, 8. Skillz did not file an opposition to the statement. 9 Compelling reasons exist to seal trade secrets. Kamakana, 447 F.3d at 1179. 10 “Confidential source code clearly meets the definition of a trade secret,” and it thus meets the 11 compelling reasons standard. See Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846- 12 LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012). And the “compelling reasons” 13 standard is met for confidential business information that would harm a party’s competitive 14 standing. See Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at 15 *2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and 16 proprietary information relating to the operations of both Plaintiff and Defendant”); Fed. Trade 17 Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 18 2019) (finding compelling reasons for “information that, if published, may harm [a party’s] or 19 third parties’ competitive standing and divulges terms of confidential contracts, contract 20 negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) 21 (finding sealable “business information that might harm a litigant’s competitive standing”). 22 The Court finds compelling reasons to seal the information identified in the highlighted 23 portions of the exhibits and proposed order and further finds that AviaGames’ request to seal is 24 “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). 25 The Court rules as follows: 26 ECF No. Document Portions to Seal Ruling 27 510-1 Exhibit 1 to the Highlighted GRANTED as containing (355-2) Declaration of Portions confidential source code and in Support of Plaintiff information, the release of which 1 Skillz Platform Inc.’s would cause a party competitive 2 Motion in Limine No. 1 harm. to Exclude Evidence or 3 Argument Relating to Unasserted or 4 Invalidated Claims and Patents 5 510-2 Exhibit 2 to the Highlighted GRANTED as containing 6 (367-4) Declaration of Portions confidential business Christopher Campbell information, the release of which 7 in Support of Plaintiff’s would cause a party competitive Motion in Limine No. 2 harm. 8 510-3 Exhibit 5 to the Highlighted GRANTED as containing (367-5) Declaration of Portions confidential business 9 Christopher Campbell information, the release of which 10 in Support of Plaintiff would cause a party competitive Skillz Platform Inc.’s harm. 11 Motion in Limine No. 2 to Exclude Reasonable 12 Royalty Opinion of Brian W. Napper 13 510-4 [Proposed] Order Highlighted GRANTED as containing 14 (367-8) Portions confidential business information, the release of which 15 would cause a party competitive harm. 16 511 Exhibit A to the Highlighted GRANTED as containing 17 (369-3) Declaration of Portions confidential business Christopher Campbell information, the release of which 18 in Support of Plaintiff’s would cause a party competitive Motion in Limine 3 harm. 19 510-5 Exhibit B to the Highlighted GRANTED as containing (369-4) Declaration of Portions confidential business 20 Christopher Campbell information, the release of which 21 in Support of Plaintiff’s would cause a party competitive Motion in Limine 3 harm. 22 510-6 Exhibit C to the Highlighted GRANTED as containing (369-5) Declaration of Portions confidential business 23 Christopher Campbell information, the release of which 24 in Support of Plaintiff’s would cause a party competitive Motion in Limine 3 harm. 25 AviaGames SHALL file redacted versions of ECF Nos. 510-1 through 510-6 and 511 on the 26 public docket within 7 days of the date of this Order. 27 B. Defendant AviaGames Inc.’s Renewed Administrative Motion to Seal in 1 Connection with Its Motions in Limine (ECF No. 512) 2 On November 13, 2023, the Court denied without prejudice in part AviaGames’ sealing 3 motion in connection with AviaGames’ motions in limine because the Court found that 4 AviaGames’ requested sealing was not narrowly tailored. ECF No. 492 (denying without 5 prejudice ECF No. 351). AviaGames filed a renewed motion again requesting to seal certain 6 exhibits filed in support of its motions in limine. ECF No. 512. Rather than seeking to seal the 7 entirety of the exhibits, AviaGames has also submitted proposed redactions to the documents and 8 no longer seeks to seal one of the documents originally filed under seal. See id. at 3 (stating that 9 exhibit 8 contains no information that needs to be sealed). AviaGames argues that the information 10 that it seeks to seal describes and/or quotes transcripts and documents that reference aspects of 11 AviaGames’ business practices and strategy. Id. ¶ 4. Skillz did not file an opposition to the 12 motion. 13 As noted above, compelling reasons exist to seal trade secrets, which includes confidential 14 source code and confidential business information that, if published, may harm a party’s 15 competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at 16 *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569. 17 The Court finds compelling reasons to seal the information identified in the highlighted 18 portions of the exhibits and further finds that AviaGames’ request to seal is “narrowly tailored to 19 seal only the sealable material.” Civ. L.R. 79-5(c)(3). 20 The Court rules as follows: 21 ECF No. Document Portions to Seal Ruling 22 512-2 Ex. 1: Dr. Zagal’s Highlighted GRANTED as containing (351-3) Supplemental Expert Portions confidential source code and 23 Report dated October confidential business 13, 2023 information, the release of which 24 would cause a party competitive harm. 25 512-3 Ex. 2: Mr. Bergman’s Highlighted GRANTED as containing 26 (351-4) Supplemental Expert Portions confidential business Report dated October information, the release of which 27 13, 2023 would cause a party competitive (351-5) August 27, 2021 Portions does not request redactions 1 Infringement 2 Contentions 512-4 Ex. 9: Ex. B to Skillz’s Highlighted GRANTED as containing 3 (351-6) December 17, 2021 Portions confidential source code and Amended Infringement confidential business 4 Contentions information, the release of which would cause a party competitive 5 harm. 6 512-5 Ex. 10: Dr. Zagal’s Highlighted GRANTED as containing (351-7) Expert Report dated Portions confidential source code and 7 May 26, 2023 confidential business information, the release of which 8 would cause a party competitive harm. 9 512-6 Ex. 11: Dr. Zagal’s Highlighted GRANTED as containing 10 (351-8) Supplemental Report Portions confidential source code and dated June 19, 2023 confidential business 11 information, the release of which would cause a party competitive 12 harm. 13 AviaGames SHALL file redacted versions of ECF Nos. 512-2 through 512-6 and the unredacted 14 version of ECF No. 351-5 on the public docket within 7 days of the date of this Order. 15 C. Defendant AviaGames Inc.’s Renewed Administrative Motion to Seal in Connection with Its Motions in Limine Nos. 2 and 4 (ECF No. 513) 16 On November 13, 2023, the Court denied without prejudice in part AviaGames’ sealing 17 motion in connection with AviaGames’ motions in limine nos. 2 and 4 because the Court found 18 that AviaGames’ requested sealing was not narrowly tailored. ECF No. 492 (denying without 19 prejudice ECF No. 382). AviaGames filed a renewed motion again requesting to seal certain 20 exhibits filed in support of its motions in limine. ECF No. 513. Rather than seeking to seal the 21 entirety of the exhibits, AviaGames has also submitted proposed redactions to the documents. 22 AviaGames argues that the information that it seeks to seal describes and/or quotes transcripts and 23 documents that reference aspects of AviaGames’ business practices and strategy. Id. ¶ 4. Skillz 24 did not file an opposition to the motion. 25 As noted above, compelling reasons exist to seal trade secrets, which includes confidential 26 source code and confidential business information that, if published, may harm a party’s 27 1 *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569. 2 The Court finds compelling reasons to seal the information identified in the highlighted 3 portions of the exhibits and further finds that AviaGames’ request to seal is “narrowly tailored to 4 seal only the sealable material.” Civ. L.R. 79-5(c)(3). 5 The Court rules as follows: 6 ECF No. Document Portions to Seal Ruling 7 513-2 Ex. 13: Opening Report Highlighted GRANTED as containing (382-4) of Jim W. Bergman Portions confidential business 8 information, the release of which would cause a party competitive 9 harm. 513-3 Exhibit 15: Second Highlighted GRANTED as containing 10 (382-5) Supplemental Expert Portions confidential business 11 Report of Jim Bergman information, the release of which served October 13, would cause a party competitive 12 2023 harm. 513-4 Exhibit 20: Jim Highlighted GRANTED as containing 13 (382-6) Bergman Deposition Portions confidential business Transcript (excerpted) information, the release of which 14 would cause a party competitive 15 harm. 513-5 Exhibit 22: Opening Highlighted GRANTED as containing 16 (382-7) Expert Report of Jose Portions confidential source code and P. Zagal Regarding confidential business 17 Infringement information, the release of which 18 would cause a party competitive harm. 19 AviaGames SHALL file redacted versions of ECF Nos. 513-2 through 513-5 on the public docket 20 within 7 days of the date of this Order. 21 D. Plaintiff Skillz Platform Inc.’s Renewed L.R. 79-5(f)(3) Statement in Connection 22 with AviaGames’ Motions in Limine (ECF No. 514) 23 On November 13, 2023, the Court denied without prejudice in part two of AviaGames’ 24 administrative motions to consider whether another party’s material should be sealed in 25 connection with AviaGames’ motions in limine because the Court found that Skillz’s requested 26 sealing was not narrowly tailored. ECF No. 492 (denying without prejudice ECF Nos. 352 and 27 381). Skillz filed a renewed statement again requesting to seal certain exhibits filed in support of 1 exhibits, Skillz has also submitted proposed redactions to the documents. Skillz argues that the 2 information that it seeks to seal includes confidential information about the development and 3 operations of software products developed and marketed by Skillz, AviaGames, and third parties 4 and about business discussions and agreements between Skillz, AviaGames, and third parties. See 5 id. at 2. AviaGames did not file an opposition to the statement. 6 As noted above, compelling reasons exist to seal trade secrets, which includes confidential 7 source code and confidential business information that, if published, may harm a party’s 8 competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at 9 *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569. 10 The Court finds compelling reasons to seal the information identified in the highlighted 11 portions of the exhibits and further finds that Skillz’s request to seal is “narrowly tailored to seal 12 only the sealable material.” Civ. L.R. 79-5(c)(3). 13 The Court rules as follows: 14 ECF No. Document Portions to Seal Ruling 15 514-1 Ex. 5: Highlighted GRANTED as containing (352-7) SKLZPAT00466825 Portions confidential business 16 information, the release of which would cause a party competitive 17 harm. 514-2 Ex. 10: Dr. Zagal’s Highlighted GRANTED as containing 18 (352-12) Expert Report dated Portions confidential source code and 19 May 26, 2023 confidential business information, the release of which 20 would cause a party competitive harm. 21 514-3 Ex. 12: Dr. Zagal’s Highlighted GRANTED as containing (352-14) deposition transcript Portions confidential source code and 22 confidential business 23 information, the release of which would cause a party competitive 24 harm. 514-4 Ex. 13: Opening Report Highlighted GRANTED as containing 25 (381-3) of Jim W. Bergman Portions confidential business 26 information, the release of which would cause a party competitive 27 harm. Report of Jim Bergman information, the release of which 1 served October 13, would cause a party competitive 2 2023 harm. 514-6 Exhibit 19: June 6, Highlighted GRANTED as containing 3 (381-7) 2023 deposition Portions confidential business transcript of Casey information, the release of which 4 Chafkin would cause a party competitive harm. 5 514-7 Exhibit 20: Jim Highlighted GRANTED as containing 6 (381-8) Bergman Deposition Portions confidential business Transcript (excerpted) information, the release of which 7 would cause a party competitive harm. 8 514-8 Exhibit 21: Andrew Highlighted GRANTED as containing (381-9) Paradise Deposition Portions confidential business 9 Transcript information, the release of which 10 would cause a party competitive harm. 11 514-9 Exhibit 22: Opening Highlighted GRANTED as containing (381-10) Expert Report of Jose Portions confidential source code and 12 P. Zagal Regarding confidential business 13 Infringement information, the release of which would cause a party competitive 14 harm. 514-10 Exhibit 23: May 12, Highlighted GRANTED as containing 15 (381-11) 2023 deposition Portions confidential business transcript of Casey information, the release of which 16 Chafkin would cause a party competitive 17 harm. 514-11 Exhibit 24: Jose Zagal Highlighted GRANTED as containing 18 (381-12) Deposition Transcript Portions confidential business (excerpted) information, the release of which 19 would cause a party competitive harm. 20 Skillz SHALL file redacted versions of ECF Nos. 514-1 through 514-11 on the public docket 21 within 7 days of the date of this Order. 22 23 E. Defendant AviaGames Inc.’s Renewed L.R. 79-5(f)(3) Statement in Connection with Skillz’s Oppositions to AviaGames’ Motions in Limine (ECF No. 519) 24 On November 16, 2023, the Court denied without prejudice in part three of Skillz’s 25 administrative motions to consider whether another party’s material should be sealed in 26 connection with Skillz’s oppositions to AviaGames’ motions in limine because either AviaGames 27 filed to file a statement under Local Rule 79-5(f)(3) or the Court found that AviaGames’ requested 1 sealing was not narrowly tailored. ECF No. 499 (denying without prejudice ECF Nos. 405, 409, 2 and 423). AviaGames filed a renewed statement under Local Rule 79-5(f)(3) requesting to seal 3 highlighted portions of Skillz’s oppositions and exhibits in support of those oppositions. ECF No. 4 519. AviaGames argues that the information that it seeks to seal includes confidential business 5 information, descriptions of the operation of AviaGames’ source code and products, AviaGames’ 6 responses to user complaints, and confidential licensing information. Id. at 2, 5, 9. Skillz did not 7 file an opposition to the statement. 8 As noted above, compelling reasons exist to seal trade secrets, which includes confidential 9 source code and confidential business information that, if published, may harm a party’s 10 competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at 11 *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569. 12 The Court finds compelling reasons to seal the information identified in the highlighted 13 portions of the oppositions and exhibits and further finds that AviaGames’ request to seal is 14 “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). 15 The Court rules as follows: 16 ECF No. Document Portions to Seal Ruling 17 519-2 Skillz’s Opposition to Highlighted GRANTED as containing (405-1) Avia’s Motion in Portions confidential business 18 Limine No. 1 information, the release of which would cause a party competitive 19 harm. 519-3 Ex. A to Skillz’s Highlighted GRANTED as containing 20 (405-2) Opposition to Avia’s Portions confidential business 21 Motion in Limine No. 1 information, the release of which (Transcript of May 17, would cause a party competitive 22 2023 Deposition of harm. Jamie Leung 23 (excerpted)) 519-4 Skillz’s Opposition to Highlighted GRANTED as containing 24 (409-2) Avia’s Motion in Portions confidential source code and 25 Limine No. 3 confidential business information, the release of which 26 would cause a party competitive harm. 27 519-5 Ex. A to Skillz’s Highlighted GRANTED as containing Motion in Limine No. 3 confidential business 1 (Dr. Jose Zagal information, the release of which 2 Supplemental Expert would cause a party competitive Report (excerpted)) harm. 3 519-6 Ex. B to Skillz’s Entire Document GRANTED as containing (409-4) Opposition to Avia’s confidential business 4 Motion in Limine No. 3 information, the release of which (certified translation of would cause a party competitive 5 document produced harm. 6 with Bates stamp AVIA_0092070) 7 519-7 Ex. C to Skillz’s Entire Document GRANTED as containing (409-5) Opposition to Avia’s confidential business 8 Motion in Limine No. 3 information, the release of which (certified translation of would cause a party competitive 9 document produced harm. 10 with Bates stamp AVIA_0111347) 11 519-8 Exhibit 1: AviaGames’ Highlighted GRANTED as containing (423-4) Supplemental Report of Portions confidential source code and 12 Dr. Welch confidential business 13 information, the release of which would cause a party competitive 14 harm. 15 AviaGames SHALL file redacted versions of ECF Nos. 519-3, 519-5, and 519-8 on the public 16 docket within 7 days of the date of this Order. 17 F. Public Filing of Certain Exhibits in Support of Defendant AviaGames Inc.’s Oppositions to Plaintiff Skillz Platform Inc.’s Motions in Limine 18 On November 16, 2023, the Court denied in part AviaGames’ motion to consider whether 19 another party’s material should be sealed in connection with its oppositions to Skillz’s motions in 20 limine (ECF No. 397) because Skillz did not seek sealing of ECF Nos. 397-1, 397-2, 397-4, 397-5, 21 397-6, 397-8, and 397-9. ECF No. 500. The Court ordered AviaGames to file the unredacted 22 versions of these exhibits on the public docket within 7 days of the date of the order. Id. at 5. 23 AviaGames has not yet filed the unredacted versions on the public docket, so the Court again 24 ORDERS AviaGames to file the unredacted versions on the public docket within 7 days of the 25 date of this Order. 26 III. ORDER 27 For the foregoing reasons, IT IS HEREBY ORDERED that: 1 1. The requested sealing in Defendant AviaGames Inc.’s Renewed L.R. 79-5(f)(3) 2 || Statement in Connection with Skillz’s Motions in Limine (ECF No. 510) is GRANTED. 3 AviaGames SHALL file redacted versions of ECF Nos. 510-1 through 510-6 and 511 on the 4 || public docket within 7 days of the date of this Order. 5 2. Defendant AviaGames Inc.’s Renewed Administrative Motion to Seal in 6 Connection with Its Motions in Limine Nos. 1, 3, and 5 (ECF No. 512) is GRANTED IN PART 7 and DENIED IN PART. AviaGames SHALL file redacted versions of ECF Nos. 512-2 through 8 512-6 and the unredacted version of ECF No. 351-5 on the public docket within 7 days of the date 9 || of this Order. 10 3. Defendant AviaGames Inc.’s Renewed Administrative Motion to Seal in ll Connection with Its Motions in Limine Nos. 2 and 4 (ECF No. 513) is GRANTED. AviaGames 12 || SHALL file redacted versions of ECF Nos. 513-2 through 513-5 on the public docket within 7 5 13 days of the date of this Order. 14 4. The requested sealing in Plaintiff Skillz Platform Inc.’s Renewed L.R. 79-5(f)(3) 3 15 Statement in Connection with AviaGames’ Motions in Limine (ECF No. 514) is GRANTED. a 16 Skillz SHALL file redacted versions of ECF Nos. 514-1 through 514-11 on the public docket 3 17 within 7 days of the date of this Order. 18 5. The requested sealing in Defendant AviaGames Inc.’s Renewed L.R. 79-5(f)(3) 19 || Statement in Connection with Skillz’s Oppositions to AviaGames’ Motions in Limine (ECF No. 20 519) is GRANTED. AviaGames SHALL file redacted versions of ECF Nos. 519-3, 519-5, and 21 519-8 on the public docket within 7 days of the date of this Order. 22 6. AviaGames SHALL file unredacted versions of ECF Nos. 397-1, 397-2, 397-4, 23 397-5, 397-6, 397-8, and 397-9 on the public docket no 24 25 Dated: December 4, 2023 BETH LABSON FREEMAN 27 United States District Judge 28