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FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

FEDERAL TRADE COMMISSION

Kevin H. Moriarty (D.C. Bar No. 975904)

kmoriarty@ftc.gov

Cathlin Tully (NY Bar)

ctully@ftc.gov

Jarad A. Brown (CA Bar No. 294516)

jbrown4@ftc.gov

Katherine E. McCarron (D.C. Bar No. 486335)

kmccarron@ftc.gov

Laura Riposo VanDruff (D.C. Bar No. 481785)

lvandruff@ftc.gov

Brian C. Berggren (CA Bar No. 279279)

bberggren@ftc.gov

600 Pennsylvania Avenue NW, Mail Drop CC-8232 

Washington, D.C. 20580 

Telephone: (202) 326-3232

Facsimile: (202) 326-3062

Attorneys for Plaintiff

FEDERAL TRADE COMMISSION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

D-LINK SYSTEMS, INC., a California 

Corporation,

Defendant.

Case No. 3:17-CV-00039-JD

FEDERAL TRADE COMMISSION’S 

OPPOSITION TO DEFENDANT’S 

ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL RE: OPPOSED SEALING 

DOCUMENTS

Judge: The Honorable James Donato

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 1 of 7
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- 1 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

I. INTRODUCTION

Defendant D-Link Systems, Inc.’s (“Defendant”) Administrative Motion to File Documents 

Under Seal should be denied in its entirety. Defendant attempts to prevent the public from viewing 

portions of thirteen (13) exhibits (hereinafter, the “Contested Exhibits”) filed in connection with 

dispositive motions that reveal embarrassing and preventable deficiencies in Defendant’s software

security practices—the central topic of the upcoming trial. Despite claiming that the courtroom did 

not needed to be closed for “any party evidence presented at trial” (ECF No. 232, ¶ X.A.), Defendant 

now attempts to seal information in trial exhibits and from trial witnesses because it shows “trade 

secrets” and “proprietary procedures” that could be “harmful competitively and financially” to 

Defendant and D-Link Corporation. See Mot. at 2–7 (chart of Contested Exhibits). Not so. Putting 

aside that Defendant’s request to seal the Contested Exhibits is grossly overbroad and based on flimsy 

generic explanations, Defendant’s only evidence to support its self-serving characterizations in the 

Motion is a declaration from its lead counsel, John Vecchione. Defendant has no evidence, let alone 

an affidavit from company witnesses, to substantiate its claims of trade secret, privilege, or alleged 

competitive harm. Accordingly, the Court should unseal the Contested Exhibits.

II. ARGUMENT

Defendant attempts to seal Contested Exhibits filed in connection with motions for summary 

judgment and Daubert motions. For dispositive motions, the historic, “strong presumption of access 

to judicial records” fully applies, and a party seeking to seal must establish “compelling reasons” to 

overcome that presumption. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179–80 (9th 

Cir. 2006) (concerns about information leading to “a litigant’s embarrassment, incrimination, or 

exposure to further litigation will not, without more, compel the court to seal its records”) (citation 

omitted). This standard presents a “high threshold,” and “[a] ‘good cause’ showing will not, without 

more, satisfy” it. Id. at 1180 (citation omitted). “The ‘compelling reasons’ standard applies not just 

to motions for summary judgment, but also to Daubert motions submitted ‘in connection with’ 

pending motions for summary judgment.” Open Text S.A. v. Box, Inc., No. 13-CV-04910-JD, 2014 

WL 7368594, at *1 (N.D. Cal. Dec. 26, 2014) (citing In re Midland Nat. Life Ins. Co. Annuity Sales 

Practices Litig., 686 F.3d 1115, 1120–21 (9th Cir. 2012)).

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 2 of 7
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- 2 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

Here, Defendant has failed to establish “compelling reasons” that overcome the “strong 

presumption” of access to judicial records. Defendant’s overbroad requests to seal the Contested 

Exhibits filed in connection with dispositive motions should be denied for two separate reasons.

First, Defendant has put forth no evidence to show that the Contested Exhibits actually

contain “trade secrets” or “proprietary procedures” that, if disclosed, would cause competitive harm 

to Defendant’s business operations. Defendant did not file a declaration from a single witness from 

Defendant or its parent company, D-Link Corporation, to support its claims. In fact, Defendant’s 

only supporting evidence is an attorney declaration that asserts—in a conclusory fashion—that the 

Contested Exhibits contain trade secrets and sensitive information important to Defendant’s and 

D-Link Corporation’s alleged competitive standing. Mot. at 2:17–19. Such a vague and conclusory 

declaration fails to satisfy Defendant’s burden. Contratto v. Ethicon, Inc., 227 F.R.D. 304, 307–08 

(N.D. Cal. 2005) (business must provide “specific demonstrations of fact, supported where possible

by affidavits and concrete examples, rather than broad, conclusory allegations of harm”).

Second, the basis for Defendant’s request to seal the Contested Exhibits is grossly overbroad 

and based on flimsy generic explanations. See Mot. at 2-7. Despite knowing that the FTC contested 

Defendant’s requests to seal, Defendant has done little to substantiate the basis for sealing here. 

Simply reciting conclusory statements about trade secrets, privilege, and confidentiality does not 

satisfy the “compelling reasons” standard. To the contrary, the party seeking to seal material must 

show “specific, individualized reasons for sealing the material, ‘without relying on hypothesis or 

conjecture[.]’” Open Text S.A., 2014 WL 7368594, at *3 (citation omitted). Indeed, “[s]imply 

mentioning a general category of privilege, without any further elaboration or any specific linkage 

with the documents, does not satisfy the burden.” Kamakana, 447 F.3d at 1184. Where, as here, a 

party only provides “[a]n unsupported assertion of ‘unfair advantage’ to competitors without 

explaining ‘how a competitor would use th[e] information,” the burden to seal is not met. Ochoa v. 

McDonald’s Corp., No. 14-CV-02098-JD, 2015 WL 3545921, at *1 (N.D. Cal. Jun. 5, 2015); see 

also Innovative Automation LLC v. Kaleidescape, Inc., No. 13-CV-05651-JD, 2014 WL 12770254, 

at *2 (N.D. Cal. Oct. 17, 2014) (denying motion to seal “protectable” information under good cause 

standard, and admonishing counsel that “other filings this trivial will be met with sanctions”).

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 3 of 7
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- 3 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

Although the Court need not review the Contested Exhibits given these substantive failures, 

even a cursory review of the Contested Exhibits reveals that Defendant’s assertions about trade 

secret, privilege, and alleged competitive harm are meritless. The chart below contains the FTC’s 

response to Defendant’s proposed basis for sealing each of the Contested Exhibits.

Contested 

Exhibit

FTC’s Response to Defendant’s Conclusory Reason(s) for Sealing

Exhibit 1

(Excerpts from 

Expert Report 

of Mark Graff)

Defendant’s assertions of “sensitive information about D-Link proprietary 

procedures,” “detailed strategy information,” and “3rd party licensing and 

contract materials” are overbroad and unsupported. Many of the proposed 

redactions are not actually protectable; they merely describe Defendant’s 

security budget and its blind reliance on D-Link Corporation and third party 

vendors for testing and security practices. See ECF No. 253-3 (Redacted Graff 

Report) at 32, 37-39, 41-48, 50-51, 55-56. Much of this information is also 

deducible from other motions and filings; indeed, Defendant attempts to seal 

information publicly disclosed in its counsel’s declaration filed in opposition to 

the FTC’s Motions in Limine. ECF No. 239 (Exhibit 8). Finally, information 

about Defendant’s failure to fix vulnerabilities shipped with its products and 

general descriptions of its security practices should not be redacted. See Open 

Text S.A., 2014 WL 7368594, at *3 (no “specific compelling reasons” to seal 

“information related to the mere existence of source code,” the “operations of 

[the] products,” “basic information about the structure of [party’s] products and 

API,” or “other information regarding its products and development plans”).

Separately, Defendant has represented that it does not anticipate closing the 

courtroom from the public during trial. ECF No. 232, ¶ X.A. Mr. Graff, as well 

as Defendant’s other witnesses, are expected to testify in-detail about the 

information that Defendant seeks to redact here. Accordingly, none of this 

information should be redacted. See Open Text S.A., 2014 WL 7368594, at *4 

(no compelling reason to seal information when it is “deducible” from other 

documents not filed under seal).

Exhibit 2

(Excerpts from 

FTC’s Daubert

Motion for Dr. 

Schaumont)

See FTC’s Response to Exhibit 1.

Defendant’s privilege assertion, without any further elaboration, does not satisfy 

its burden to seal. See Kamakana, 447 F.3d at 1184. The proposed redaction 

encompasses a generic description of an email sent from a third party, Rapid7, 

to D-Link Corporation. Even assuming communications between two third 

parties could be privileged (they are not), Defendant has never identified this 

document on a privilege log, nor has it asserted any rights as to the document

under the Protective Order. Defendant has no valid claim of privilege here.

Exhibit 3

(Email from 

W. Brown, 

then Acting- President for 

Defendant)

See FTC’s Responses to Exhibit 1 and Exhibit 2.

Defendant proposes redacting a URL to a public-facing researcher report that 

remains publicly available on the Internet today, and which reveals serious 

vulnerabilities in a D-Link router. See http://www.devttys0.com/2015/04/

hacking-the-d-link-dir-890l/. Defendant’s claim of privilege is equally 

meritless, as this is the same document discussed in Exhibit 2.

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 4 of 7
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- 4 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

Contested 

Exhibit

FTC’s Response to Defendant’s Conclusory Reason(s) for Sealing

Exhibit 4

(D-Link 

Corporation 

Code Review 

Report)

See FTC’s Response to Exhibit 1.

Separately, Exhibit 4 is a document that contradicts certain of Dr. Schaumont’s 

purported expert opinions and contains generic references to Defendant’s failure 

to have remediated vulnerabilities identified in 2015. Because Dr. Schaumont 

may testify in-detail about these issues in open court, none of this information 

should be redacted here. See Open Text S.A., 2014 WL 7368594, at *4.

Exhibit 5

(Excerpts of 

FTC’s Motion 

to Summary 

Judgment)

See FTC’s Response to Exhibit 1 and Exhibit 3.

Defendant seeks to redact all text (197 lines in total) that the FTC provisionally 

sealed because of Defendant’s confidentiality designations. Defendant claim 

that this information constitutes “source code testing” and “detailed information 

about D-Link’s proprietary procedures” is overbroad. The proposed redactions 

include deposition testimony of Defendant’s trial witnesses, including William 

Brown, innocuous facts, like the dates of sale for a camera model (ECF No. 256-

11 at 10 n.34), and uncontested propositions about security from Defendant’s

expert witness (id. at 10 n.40). This information, as well as the other Contested 

Exhibits that Defendant proposes to redact, are exactly the kinds of evidence 

that the FTC intends to present at trial. They should not be restricted from the 

public’s view. See Open Text S.A., 2014 WL 7368594, at *3.

Exhibit 6

(Internal 

Email from W. 

Brown in 2013)

See FTC’s Response to Exhibit 1, Exhibit 3, and Exhibit 5.

Defendant’s claims that this exhibit contains “detailed information regarding 

firmware specifications, software configuration and security testing of D-Link’s 

devices” is wrong. Mr. Brown simply describes how it is easy for a third party, 

without authorization, to access the video feed of D-Link cameras over the 

Internet using the well-known guest-guest backdoor. Mr. Brown provides these 

instructions to many of his colleagues, including at D-Link Corporation.

Defendant publicly filed Mr. Brown’s testimony regarding this vulnerability and 

steps to exploit it. ECF No. 265-23 (Brown Tr.) at 760:11-13, 760:19-762:17.

Exhibit 7

(Internal 

Email from W. 

Brown to D. 

Hsu at D-Link 

Corporation in 

2013)

See FTC’s Response to Exhibit 1, Exhibit 3, Exhibit 5, and Exhibit 6.

Defendant seeks to redact excerpts about a router vulnerability that it claims to 

have fixed. Nearly all of the text on the first page that Defendant seeks to redact 

is taken verbatim from a security researcher report that remains available today. See http://roberto.greyhats.it/advisories/20130227-dlink-dir.txt. The remaining 

redactions are statements from one of Defendant’s employees, Mr. Brown, about 

the seriousness of the vulnerability for affected customers and the need for an 

immediate fix. This is not information about its “proprietary procedures” or 

“internal security testing of its software.” 

Exhibit 8

(January 2017 

Email to W. 

Brown)

See FTC’s Response to Exhibit 1, Exhibit 6, and Exhibit 7.

Defendant seeks to redact excerpts about a vulnerability that it claims to have 

fixed. It is also taken verbatim from a security researcher report that remains 

available today. See https://packetstormsecurity.com/files/140489/D-LinkDIR-615-Open-Redirection-Cross-Site-Scripting.html.

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 5 of 7
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- 5 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

Contested 

Exhibit

FTC’s Response to Defendant’s Conclusory Reason(s) for Sealing

Exhibit 9 See FTC’s Response to Exhibit 6. Defendant’s proposes to redact the same 

information at issue in Exhibit 6 from Defendant’s employee, Mr. Brown.

Exhibit 10 See FTC’s Response to Exhibit 6 and Exhibit 9. Defendant’s proposes to redact 

the same information from Defendant’s employee, Mr. Brown. The other 

proposed redactions merely explain how a specific search engine (Shodan) 

could be used to exploit the vulnerability, which Defendant discussed in its 

Motion in Limine No. 2.

Exhibit 11

(Excerpts of 

IH Transcript 

for W. Brown)

See FTC’s Response to Exhibit 1, Exhibit 3, and Exhibit 6.

Mr. Brown’s testimony about Defendant’s “security budget,” “CSRF,” and the 

“guest/guest” backdoor does not disclose “trade secrets,” “proprietary 

procedures,” or “source code.” In fact, much of the information in Mr. Brown’s 

testimony is deducible from the other portions of the deposition transcript and 

other aspects of the Contested Exhibit (e.g., Expert Report of Mark Graff). 

There is simply no basis to seal this information, particularly since Mr. Brown 

will likely testify about it at trial. See Open Text S.A., 2014 WL 7368594, at *3.

Exhibit 12 See FTC’s Response to Exhibit 6 and Exhibit 9. Defendant’s proposes to redact 

the same information from Defendant’s employee, Mr. Brown, at issue in both 

Exhibit 6 and Exhibit 9.

Exhibit 13

(Excerpts from 

the FTC’s 

Opposition to 

Defendant’s 

Motion for 

Summary 

Judgment)

See generally FTC’s Response to Exhibit 1 through Exhibit 12.

Defendant seeks to redact all text (69 lines in total) that the FTC provisionally 

sealed because of Defendant’s confidentiality designations. Like Exhibit 5, the 

proposed redactions include deposition testimony of Defendant’s trial witnesses

and innocuous facts. This information, as well as the other Contested Exhibits 

that Defendant proposes to redact, are exactly the kinds of evidence that the FTC 

intends to present at trial. They should not be restricted from the public’s view. 

See Open Text S.A., 2014 WL 7368594, at *3.

III. CONCLUSION

For all of the foregoing reasons, the Court should deny Defendant’s motion to seal the 

Contested Exhibits. The sufficiency of Defendant’s software development practices will be the 

central aspect of the upcoming (and public) trial. Defendant has not offered any evidence, let alone 

with the requisite specificity, to substantiate any “compelling reasons” for sealing the Contested 

Exhibits. It is hard to imagine how Defendant could do so, given that the sufficiency of its software 

development practices—through both the testimony of its own witnesses and experts—will be the 

central aspect of trial. Accordingly, the Court should deny Defendant’s motion with prejudice.

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 6 of 7
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- 6 - FEDERAL TRADE COMMISSION’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL

CASE NO. 3:17-CV-00039-JD

Dated: January 7, 2019 FEDERAL TRADE COMMISSION

By: /s/ Kevin H. Moriarty

Kevin H. Moriarty

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue NW, CC-8232 

Washington, D.C. 20580 

Attorneys for Plaintiff

FEDERAL TRADE COMMISSION

CERTIFICATE OF SERVICE

The undersigned certifies that on January 7, 2019, the foregoing document was electronically 

filed with the Clerk of the Court for the UNITED STATES DISTRICT COURT, NORTHERN 

DISTRICT OF CALIFORNIA, using Court’s Electronic Case Filing (ECF) system. The ECF system 

routinely sends a “Notice of Electronic Filing” to all counsel of record who have consented to accept 

this notice as service of this document by electronic means. Any party not receiving the Court’s 

electronic notification will be sent a copy of the foregoing document.

Dated: January 7, 2019 /s/ Kevin H. Moriarty__________________

Kevin H. Moriarty

Case 3:17-cv-00039-JD Document 258 Filed 01/07/19 Page 7 of 7