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HUAWEI’S MOTION TO SEAL

CASE NO. 5:17-CV-00220-LHK

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SIDLEY AUSTIN LLP

David C. Giardina (pro hac vice)

dgiardina@sidley.com

One South Dearborn

Chicago, IL 60603

312-853-7000 – Telephone

312-853-7036 – Facsimile

SIDLEY AUSTIN LLP

Nathan A. Greenblatt (SBN 262279)

ngreenblatt@sidley.com

1001 Page Mill Road, Bldg. 1

Palo Alto, CA 94304

650-565-7000 – Telephone

650-565-7100 – Facsimile 

Attorneys for Non-Party HUAWEI DEVICE USA, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

 v.

QUALCOMM INCORPORATED,

Defendant.

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Case No. 5:17-cv-00220-LHK

 

HUAWEI’S MOTION TO SEAL 

CERTAIN TRIAL TESTIMONY AND 

EXHIBITS

Case 5:17-cv-00220-LHK Document 1089 Filed 01/03/19 Page 1 of 5
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HUAWEI’S MOTION TO SEAL

CASE NO. 5:17-CV-00220-LHK

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Pursuant to Civil Local Rule 79-5 and the Court’s Pretrial Conference Order (Dkt. 1003), 

third party Huawei Device USA, Inc. (“Huawei”) respectfully moves the Court to permit sealing of 

certain trial testimony and exhibits that contain Huawei confidential information.

The Court’s Pretrial Conference Order provides that “[b]y December 17, 2018, each party 

shall provide notice to third parties of any third-party confidential information that may be disclosed 

at trial, so that the third party may seek to seal their information...This December 17, 2018 deadline 

applies to deposition testimony, trial testimony, and demonstratives.” Dkt. 1003 at 1. Huawei 

received the requisite notices from the parties on the deadline, notified the parties of specific 

information Huawei might move to seal on December 28, 2018 as the parties requested, and received 

a revised (narrowed) notification from the FTC on December 31, 2018 and Qualcomm on January 2, 

2018 identifying information that the parties intend to introduce on January 4, 2018.

Huawei now moves to seal the following designated deposition testimony and exhibits that it 

understands the parties intend to introduce at trial on or about January 4, 2018 because they reflect 

the terms of confidential license agreements and/or information relating to on-going confidential 

license negotiations, the public disclosure of which would harm Huawei’s competitive standing:

Document Party 

Claiming 

Confidentiality

Portions to be Sealed Relevant 

Standard 

for Sealing

Basis for Sealing & 

Any Explanations

Deposition 

Testimony of 

Nanfen 

(Nancy) Yu 

(“Yu 

Deposition”)

(Exhibit 1 

hereto)

Huawei Device 

USA, Inc. 

(“Huawei”)

47:17-48:14; 70:3-5; 

70:8-9; 70:12-15; 70:20-

23; 116:7-8; 116:13-16; 

116:19-20; 121:6-11; 

122:5-11; 122:21-123:1; 

132:13-24; 160:22-161:7; 

162:2-5; 185:7-186:4; 

195:23-196:13; 218:2-7; 

218:18-211

Compelling 

reasons

Declaration of Steven 

M. Geiszler In 

Support of Huawei’s 

Motion to Seal 

(“Geiszler 

Declaration”) ¶¶ 4-5

CX-1101

(Exhibit 2 

hereto)

Huawei Pages 2-3 (HuaweiQualcomm-00012572 to 

73)

Compelling 

reasons

Geiszler Declaration 

¶¶ 4-5

 1 For the Court’s convenience, these portions have been highlighted in yellow in Exhibit 1 hereto. 

Huawei notes that the Yu Deposition contains other confidential information that Huawei does not 

seek to seal at this time, because the parties have not indicated to Huawei that they plan to introduce 

those portions at trial. This motion addresses only the specific portions identified by the parties.

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HUAWEI’S MOTION TO SEAL

CASE NO. 5:17-CV-00220-LHK

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JX-022

(Exhibit 3 

hereto)

Huawei Entire document Compelling 

reasons

Geiszler Declaration 

¶¶ 4-5

JX-027

(Exhibit 4 

hereto)

Huawei Entire document Compelling 

reasons

Geiszler Declaration 

¶¶ 4-5

JX-097

(Exhibit 5 

hereto)

Huawei Entire document Compelling 

reasons

Geiszler Declaration 

¶¶ 4-5

JX-098

(Exhibit 6 

hereto)

Huawei Entire document Compelling 

reasons

Geiszler Declaration 

¶¶ 4-5

Parties seeking to seal judicial records relating to motions that are “more than tangentially 

related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 

(9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons supported 

by specific factual findings that outweigh the general history of access and the public policies 

favoring disclosure,” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), 

447 F.3d at 1178–79 (internal quotation marks and citation omitted). Compelling reasons justifying 

the sealing of court records generally exist “when such ‘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.” Id. at 1179 (quoting Nixon v. Warner 

Commc’ns, Inc., 435 U.S. 589, 598). The United States Supreme Court has recognized that sealing 

may be justified to prevent judicial documents from being used “as sources of business information 

that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 598. The Ninth Circuit has 

held, and this Court has previously ruled, that “pricing terms, royalty rates, and guaranteed minimum 

payment terms” of patent licensing agreements plainly constitute trade secrets, and are thus sealable. 

In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008); accord Dkt. 135 at 4.

Here, as explained in the accompanying Declaration of Steven M. Geiszler (“Geiszler 

Decl.”), the identified portions of the parties’ designations of the Yu Deposition disclose royalty 

rates paid to Qualcomm, monetary amounts that Qualcomm claims Huawei owes, details of ongoing license negotiations, and specific license provisions regarding rights obtained by Huawei or 

Qualcomm, in license agreements between Huawei Technologies Co. Ltd. and its foreign affiliates

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HUAWEI’S MOTION TO SEAL

CASE NO. 5:17-CV-00220-LHK

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and Qualcomm. Geiszler Decl. ¶ 4; see Exhibit 1 (yellow highlighted portions). Exhibit CX-1101 

discloses proposed license agreement terms, including royalty rates, regarding ongoing negotiations 

between Huawei and Qualcomm. Geiszler Decl. ¶ 4; see Exhibit 2. Exhibit CX-1011 also discloses

specific terms of Qualcomm license agreements. Id. Exhibits JX-022, JX-027, JX-097, and JX-098 

are license agreements between Qualcomm and Huawei. Geiszler Decl. ¶ 4; see Exhibits 3-6.2

Huawei has a strong business interest in maintaining the confidentiality of its license terms 

and ongoing negotiations with Qualcomm, including royalty rates and the other information 

identified above. Geiszler Decl. ¶ 5. Within Huawei, access to such confidential information is 

restricted. Consistent with Huawei’s continuous efforts to ensure that its confidential licenses and 

negotiations are not disseminated more widely than necessary, the documents containing this 

information were produced as “HUAWEI CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES 

ONLY” pursuant to the Supplemental Protective Order. (Dkt. 218). Id. Public disclosure of this 

information would create an asymmetry between Huawei and its competitors and would hurt

Huawei’s competitive standing. Id. Disclosing this information would disadvantage Huawei when 

negotiating with other licensors and licensees. Id. 

Accordingly, Huawei respectfully moves to seal the above-listed information at trial. 

Dated: January 3, 2019 Respectfully submitted,

SIDLEY AUSTIN LLP

/s/ David C. Giardina

David C. Giardina (pro hac vice)

dgiardina@sidley.com

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

312-853-7000 – Telephone

312-853-7036 – Facsimile

Attorneys for Huawei Device USA, Inc.

 2 Huawei has filed each exhibit to this motion under seal. Huawei understands that the parties will 

introduce public versions of the exhibits, such as non-confidential portions of deposition testimony, 

during trial.

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CERTIFICATE OF SERVICE

I declare that I, Nathan A. Greenblatt, am employed by the firm of Sidley Austin LLP, 

located at 1001 Page Mill Road, Building 1, Palo Alto, CA 94304.

I declare that on January 3, 2019, I served a true and correct unredacted copy of Exhibits 1, 2, 

3, 4, 5 and 6 to Huawei’s Motion to Seal Certain Trial Testimony and Exhibits by electronically 

mailing it to the following addresses:

Geoffrey Holtz gholtz@morganlewis.com

Morgan Lewis & Brockius LLP

101 Park Avenue

New York, NY 10178-0061

Kent Cox kcox@ftc.gov

Federal Trade Commission

Bureau of Competition

600 Pennsylvania Avenue, NW

Washington, DC 20580

I certify under penalty of perjury under the laws of the United States of America that the 

foregoing information contained in the Certificate of Service is true and correct.

Dated: January 3, 2019 /s/ Nathan A. Greenblatt

Nathan A. Greenblatt

Case 5:17-cv-00220-LHK Document 1089 Filed 01/03/19 Page 5 of 5