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 ON SEALING MOTIONS RE: 9 v. MOTION TO CONTINUE TRIAL AND OPPOSITION 10 AVIAGAMES INC., [Re: ECF No. 438, 465, 506] 11 Defendant. 12 13 Before the Court are the parties’ sealing motions relating to their briefing on Defendant 14 AviaGames Inc.’s motion to continue to trial. ECF Nos. 438, 465, 506. The Court has considered 15 the motions, 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 a motion to continue trial is only tangentially related to the merits of the case, the 16 Court will apply the “good cause” standard for sealing. See Ctr. for Auto Safety, 809 F.3d at 1097; 17 see also Jun Yu v. Idaho State Univ., No. 4:15-CV-00430-REB, 2018 WL 5114130, at *2 (D. 18 Idaho Oct. 19, 2018) (applying the “good cause” standard to a sealing motion relating to a motion 19 to continue trial). 20 A. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motion to Continue the Trial (ECF No. 438) 21 On October 31, 2023, AviaGames filed an administrative motion seeking to seal its motion 22 to continue trial, a declaration in support of that motion, and an exhibit. ECF No. 438. On 23 November 17, 2023, AviaGames filed a correction which seeks to seal the same documents for the 24 same reasons but includes fewer redactions. ECF No. 506 ¶ 1. Because the November 17 motion 25 supersedes the October 31 motion, the Court will TERMINATE the October 31 motion. 26 27 B. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether 1 Another Party’s Material Should be Sealed Relating to Its Opposition to AviaGames’ Motion to Continue the Trial (ECF No. 465) 2 Skillz filed an administrative motion to consider whether another party’s material should 3 be sealed in connection with its opposition to AviaGames’ motion to continue trial. ECF No. 465. 4 Skillz identified highlighted portions of its opposition to AviaGames’ motion to continue the trial 5 and attached exhibits as containing information that AviaGames has designated as highly 6 confidential. Id. at 1–2. 7 AviaGames filed a statement in support of the motion. ECF No. 491. No party has filed 8 an opposition to the statement. AviaGames requests that the highlighted portions of Skillz’s 9 opposition and the entirety of the supporting exhibits remain under seal. Id. ¶ 1. AviaGames 10 represents that there is good cause to seal these documents because they include confidential 11 business information, descriptions of AviaGames source code, and “sensitive allegations regarding 12 AviaGames’ business practices that, if made public, would harm AviaGames’ competitive 13 standing.” Id. ¶ 5. 14 Good cause exists to seal trade secrets. Kamakana, 447 F.3d at 1179. Confidential source 15 code and confidential business information that would harm a party’s competitive standing meet 16 the compelling reasons standard, and thus also meet the “less exacting” good cause standard. See 17 Ctr. for Auto Safety, 809 F.3d at 1097; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11- 18 CV-01846-LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012) (finding that “[c]onfidential 19 source code clearly meets the definition of a trade secret,” and meets the compelling reasons 20 standard); Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 21 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and proprietary 22 information relating to the operations of both Plaintiff and Defendant”); Fed. Trade Comm’n v. 23 Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 2019) (finding 24 compelling reasons for “information that, if published, may harm [a party’s] or third parties’ 25 competitive standing and divulges terms of confidential contracts, contract negotiations, or trade 26 secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding sealable “business 27 information that might harm a litigant’s competitive standing”). 1 Although the Court finds good cause to seal some of the information in Skillz’s opposition 2 to the motion to continue trial and the attached exhibits, the Court does not find good cause to seal 3 certain exhibits in their entirety. Such broad sealing requests are not “narrowly tailored to seal 4 only the sealable material.” Civ. L.R. 79-5(c)(3). For example, AviaGames seeks to seal the 5 entirety of two expert reports, including the experts’ qualifications, for which there is no good 6 cause to seal. 7 The Court rules as follows: 8 ECF No. Document Portions to Seal Ruling 9 465-3 Plaintiff Skillz Highlighted GRANTED as containing Platform Inc.’s Portions confidential source code and 10 Opposition To Motion confidential business For A Continuance Or, information, the release of which 11 In The Alternative, To would cause a party competitive Bifurcate Due To harm. 12 AviaGames’ Claims 13 That Certain Executives May Assert 14 Their Fifth Amendment Right Against Self- 15 Incrimination 465-4 Exhibits A: Second Entire Document DENIED as not narrowly 16 Supplemental Expert tailored. 17 Report of Jim W. Bergman, dated 18 October 13, 2023 (excerpts) 19 465-5 Exhibit B: Entire Document GRANTED as containing 20 AVIA_0517181_T confidential business information, the release of which 21 would cause a party competitive harm. 22 465-6 Exhibit C: Entire Document GRANTED as containing AVIA_0534810 confidential business 23 information, the release of which 24 would cause a party competitive harm. 25 465-7 Exhibit D: Entire Document GRANTED as containing AVIA_0534821 confidential business 26 information, the release of which would cause a party competitive 27 harm. Supplemental Expert tailored. 1 Report of Dr. Jose P. 2 Zagal, dated October 13, 2023 (excerpts) 3 465-9 Exhibit F: Deposition Entire Document GRANTED as containing transcript of Vickie confidential business 4 Chen, taken on October information, the release of which 20, 2023 (excerpts) would cause a party competitive 5 harm. 6 465-10 Exhibit G: Deposition Entire Document GRANTED as containing transcript of Jamie confidential business 7 Leung, taken on May information, the release of which 12, 2023 (excerpts). would cause a party competitive 8 harm. 465-11 Exhibit H: Deposition Entire Document GRANTED as containing 9 transcript of Casey confidential business 10 Chafkin, taken on May information, the release of which 12, 2023 (excerpts) would cause a party competitive 11 harm. 12 The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed statement that 13 seeks to seal specified redacted portions of these exhibits. The Court notes that redactions must be 14 “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). 15 C. Defendant AviaGames Inc.’s Corrected Administrative Motion to Seal Relating to Its Motion to Continue the Trial (ECF No. 506) 16 AviaGames filed a corrected administrative motion to seal in connection motion to 17 continue trial. ECF No. 506. AviaGames seeks to seal highlighted portions of its motion to 18 continue, a declaration in support of the motion, and an exhibit. Id. AviaGames argues that the 19 information it seeks to seal “describes and/or quotes from the Highly Confidential documents 20 produced by AviaGames, including source code printouts, that contain aspects of AviaGames’ 21 business practices and strategy, its products, and source code algorithms.” Id. ¶ 4. AviaGames 22 also argues that the information includes “Skillz’s efforts to cast AviaGames in an unfairly 23 negative light through selective introduction of irrelevant information.” Id. at ¶ 5. Skillz did not 24 file an opposition to the motion. 25 As noted above, good cause exists to seal trade secrets, including confidential source code 26 and confidential business information. Kamakana, 447 F.3d at 1179; Apple, 2012 WL 6115623, at 27 *2; Jam Cellars, 2020 WL 5576346, at *2; FTC v. Qualcomm, 2019 WL 95922, at *3; In re Elec. 1 Arts, 298 F. App’x at 569. 2 The Court finds good cause to seal the information in AviaGames’ motion to continue trial, 3 the declaration, and the exhibit. The Court further finds that AviaGames’ request to seal is 4 “narrowly tailored to 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 7 506-1 AviaGames’ Opposed Highlighted GRANTED as containing Motion to Continue Portions confidential business 8 Trial or, in the information, the release of which Alternative, to would cause a party competitive 9 Bifurcate harm. 506-2 Decl. of Wendy Wang Highlighted GRANTED as containing 10 Portions confidential business 11 information, the release of which would cause a party competitive 12 harm. 506-3 Ex. A: Excerpts of Entire Document GRANTED as containing 13 Transcript of the confidential business Deposition of Vickie information, the release of which 14 Chen would cause a party competitive 15 harm. 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // I. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motion 3 to Continue the Trial (ECF No. 438) is TERMINATED. 4 2. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether 5 Another Party’s Material Should be Sealed Relating to Its Opposition to AviaGames’ Motion to 6 Continue the Trial (ECF No. 465) is GRANTED IN PART and DENIED WITHOUT 7 PREJUDICE IN PART. AviaGames may file a renewed statement with more narrow redactions 8 within 7 days of the date of this Order. 9 3. Defendant AviaGames Inc.’s Corrected Administrative Motion to Seal Relating to 10 Its Motion to Continue the Trial (ECF No. 506) is GRANTED. 11 a 12 Dated: December 4, 2023 14 BETH LABSON FREEMAN United States District Judge 15 16 it Z 18 19 20 21 22 23 24 25 26 27 28