FTC’S OPP. TO SAMSUNG MOTION TO SEAL

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

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Jennifer Milici, D.C. Bar No. 987096

J. Alexander Ansaldo, Va. Bar No. 75870

Daniel Matheson, D.C. Bar No. 502490

Mark J. Woodward, D.C. Bar No. 479537

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2912; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Plaintiff Federal Trade Commission

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

QUALCOMM INCORPORATED, a 

Delaware corporation,

Defendant.

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

PLAINTIFF FEDERAL TRADE 

COMMISSION’S OPPOSITION TO 

SAMSUNG’S MOTION TO SEAL 

TRIAL TESTIMONY 

Courtroom: 7, 4th Floor

Judge: Hon. Lucy H. Koh

Case 5:17-cv-00220-LHK Document 1116 Filed 01/04/19 Page 1 of 4
1 FTC’S OPP. TO SAMSUNG MOTION TO SEAL

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

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Samsung has moved to seal designated deposition testimony and exhibits that it understands 

the parties intend to introduce at trial on or about January 7, 2019. While the FTC does not oppose 

sealing proposed exhibits, the FTC opposes Samsung’s request to seal deposition testimony to be 

played by videotape at trial. The testimony Samsung seeks to seal is general in nature and 

Samsung’s motion does not meet the “compelling reasons” standard for sealing trial testimony.

LEGAL STANDARD

In the Ninth Circuit, courts generally do not grant motions to seal judicial records at trial 

unless the moving party can show “compelling reasons.” FTC v. DIRECTV, Inc., No. 15-CV01129-HSG, 2017 WL 840379, at *1 (N.D. Cal. Mar. 3, 2017) (quoting Pintos v. Pac. Creditors 

Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010)). This standard originates from a common law right 

“to inspect and copy public records and documents, including judicial records and documents.” 

Id. (quoting Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). The

moving party must therefore overcome a “strong presumption” favoring access to all records. 

Foltz v. State Farms. Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (citation omitted).

Short of “compelling reasons supported by specific factual findings that outweigh the 

general history of access and the public policies favoring disclosures, such as the public interest 

in understanding the judicial process,” the Court should deny a motion to seal records at trial.

DIRECTV, 2017 WL 840379, at *1 (quoting Kamakana, 447 F.3d at 1178-79). “Broad allegations 

of harm, unsubstantiated by specific examples of articulated reasoning” are insufficient. Beckman 

Indus. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).1

ARGUMENT

Samsung’s motion to seal designated deposition testimony of Eushuk Andrew Hong (Vol. 

I, 162:15-24) does not meet the “compelling reasons” standard for sealing trial testimony.

2 The 

 1 Courts often treat requests to seal the courtroom entirely with additional skepticism. See, e.g., 

Microsoft Corp. v. Motorola, Inc., No. C10-1823JLR, 2012 WL 5476846, at *4 (W.D. Wash. 

Nov. 12, 2012) (holding that “[w]itness testimony . . . will be heard in open court, and therefore, 

if a witness discloses pertinent terms, rates or payments, such information will necessarily be 

made public”).

2 For the reasons stated in the FTC’s response to Qualcomm’s pending High Priority Objection to 

this testimony, the testimony is admissible. ECF No. 1103, at 3-4 (re Qualcomm Day 2 HPO #5).

Case 5:17-cv-00220-LHK Document 1116 Filed 01/04/19 Page 2 of 4
2 FTC’S OPP. TO SAMSUNG MOTION TO SEAL

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

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testimony is at a high level of generality and does not disclose specific terms or strategies. See 

Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2012 WL 5505068, at *2 (N.D. Cal. 

Nov. 13, 2012) (denying sealing request where “the Court cannot see how information at this 

level of generality could possibly be used to [the movant’s] disadvantage”). In addition, the 

testimony immediately follows designated testimony covering the same subject matter, which 

Samsung has not sought to seal. See Hong Dep. 162:1-14.3

Samsung attempts to support its sealing motion with a declaration that states that public 

disclosure of the designated testimony would “harm Samsung in future sales negotiations.” ECF 

No. 1112-1, at 2 (¶ 5). But given the nature of the testimony and the level of generality, it is hard 

to see how. See Welle v. Provident Life & Accident Ins. Co., No. 3:12-cv-3016-EMC, 2013 WL 

6055369, at *2 (N.D. Cal. Nov. 14, 2013) (“[A]lthough [defendant] identifies the information at 

issue as proprietary and confidential, it does not provide reasons beyond the boilerplate references 

to competitive disadvantage if the information were publicly available.”). The declaration further 

states that Samsung generally “guards the secrecy” of the information it seeks to seal. Id. at 4-5 (¶ 

10). But the mere fact that Samsung maintains this information in confidence does not warrant 

sealing. See, e.g., UCP Int’l Co. Ltd. v. Balsam Brands Inc., 252 F. Supp. 3d 828, 835 (N.D. Cal. 

2017) (citation omitted). The Court should deny Samsung’s request to seal videotaped deposition 

testimony.

The FTC does not oppose Samsung’s request to seal proposed exhibits, including 

confidential business contracts.4 Sealing exhibits, including confidential contracts, do not present 

the same concerns as sealing live or videotaped courtroom testimony. 

Samsung’s request to seal videotaped deposition testimony to be played at trial should be 

denied. 

 3 Testimony about this subject matter generally has been publicly presented in this Court. See 

Apple, Inc. v. Samsung Electronics Co., Ltd., No. 12-cv-630-LHK, ECF No. 1716, Transcript of 

Trial Proceedings for April 14, 2014, at 2682:17-19, 2785:7-8.

4 Samsung appears not to have proffered redacted public copies of contracts it seeks to seal, 

which would be preferable from a public disclosure standpoint, but the FTC is sensitive to the 

time pressure and burden on third parties in this case.

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3 FTC’S OPP. TO SAMSUNG MOTION TO SEAL

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

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Dated: January 4, 2019

Respectfully submitted,

FEDERAL TRADE COMMISSION

/s/ Jennifer Milici 

Jennifer Milici

J. Alexander Ansaldo

Daniel Matheson

Mark J. Woodward

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-2912; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Federal Trade Commission

Case 5:17-cv-00220-LHK Document 1116 Filed 01/04/19 Page 4 of 4