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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION

Plaintiff,

v.

QUALCOMM INCORPORATED,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND 

DENYING IN PART MOTIONS TO 

SEAL

Re: Dkt. No. 68, 86, 119

Before the Court are the parties’ administrative motions to seal portions of Qualcomm 

Incorporated’s (“Qualcomm”) motion to dismiss, ECF No. 68; portions of Federal Trade 

Commission’s (“FTC”) opposition to Qualcomm’s motion to dismiss, ECF No. 86; and portions of 

Qualcomm’s reply, ECF No. 119. 

“Historically, courts have recognized a ‘general right to inspect and copy public records 

and documents, including judicial records and documents.’” Kamakana v. City & Cty. of 

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 

U.S. 589, 597 & n.7 (1978)). Thus, when considering a sealing request, “a strong presumption in 

favor of access is the starting point.” Id. (internal quotation marks omitted).

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

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

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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, 447 F.3d at 1178–79 (9th Cir. 2006). 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, 435 U.S. at 598). However, “[t]he mere fact that the production of records may 

lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without 

more, compel the court to seal its records.” Id.

Records attached to motions that are “not related, or only tangentially related, to the merits

of a case,” are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 F.3d at 

1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to court 

records attached only to non-dispositive motions because those documents are often unrelated, or 

only tangentially related, to the underlying cause of action” (internal quotation marks omitted)). 

Parties moving to seal records attached to motions unrelated or only tangentially related to the 

merits of a case must meet the lower “good cause” standard of Rule 26(c) of the Federal Rules of 

Civil Procedure. Ctr. for Auto Safety, 809 F.3d at 1098–1099; Kamakana, 447 F.3d at 1179–80. 

The “good cause” standard requires a “particularized showing” that “specific prejudice or harm 

will result” if the information is disclosed. Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210 –

11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by 

specific examples or articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 

966 F.2d 470, 476 (9th Cir. 1992).

Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court 

documents for, inter alia, the protection of “a trade secret or other confidential research, 

development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). The Ninth Circuit has 

adopted the definition of “trade secrets” set forth in the Restatement of Torts, holding that “[a] 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

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trade secret may consist of any formula, pattern, device or compilation of information which is 

used in one’s business, and which gives him an opportunity to obtain advantage over competitors 

who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972) (quoting 

Restatement (First) of Torts § 757 cmt. b). “Generally [a trade secret] relates to the production of 

goods. . . . It may, however, relate to the sale of goods or to other operations in the business. . . .” 

Id. (ellipses in original). In addition, the U.S. 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.

In addition, parties moving to seal documents must comply with the procedures established 

by Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request 

that establishes the document is “sealable,” or “privileged, protectable as a trade secret or 

otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). “The request must be narrowly 

tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Id. 

Civil Local Rule 79-5(d), moreover, requires the submitting party to attach a “proposed order that 

is narrowly tailored to seal only the sealable material” and that “lists in table format each 

document or portion thereof that is sought to be sealed,” as well as an “unredacted version of the 

document” that “indicate[s], by highlighting or other clear method, the portions of the document 

that have been omitted from the redacted version.” Id. Civ. L.R. 79-5(d)(1).

“Motions to dismiss are typically treated as dispositive motions and are more than 

tangentially related to the underlying cause of action.” Garrison v. Oracle Corp., 2016 WL 

7042988, at *2 (N.D. Cal. Feb. 22, 2016). Motions to dismiss can end the litigation. Accordingly, 

the Court applies the “compelling reasons” standard to the parties’ requests to seal the briefs 

related to Qualcomm’s motion to dismiss.

On January 25, 2017, Magistrate Judge Howard Lloyd sealed portions of the Complaint

under the “good cause” standard. ECF No. 17. The parties’ instant sealing motions request that 

the Court seal the same allegations sealed by Magistrate Judge Lloyd. See ECF No. 68, at 4 

(“[T]he portions of Qualcomm’s Motion to Dismiss that Qualcomm moves to seal are based on the 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

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same FTC Complaint paragraphs that have already been sealed”); ECF No. 17 (granting in part 

and denying in part FTC’s motion to seal portions of the complaint). However, as stated above, 

the Court applies the “compelling reasons” standard, rather than the “good cause” standard, to the 

parties’ instant motions to seal. Accordingly, the allegations that Magistrate Judge Lloyd sealed 

on January 25, 2017 are not automatically sealable for purposes of the parties’ motion to dismiss 

briefing.

Applying the “compelling reasons” standard, the Court grants in part and denies in part the 

parties’ motions to seal. 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 Electronic Arts, Inc., 298 

F. App’x 568, 569 (9th Cir. 2008). Accordingly, to the extent that the motions to seal seek to seal 

“pricing terms, royalty rates, and guaranteed minimum payment terms,” the Court agrees with 

Qualcomm that compelling reasons exist to seal this information. Id. However, several of the 

parties’ sealing requests go further than simply seeking to seal this limited information, and 

several of the parties’ sealing requests seek to seal allegations that are substantially repeated 

elsewhere in unsealed portions of the Complaint. Qualcomm has not articulated “compelling 

reasons” to keep these allegations from the public. 

Accordingly, the Court GRANTS in part and DENIES in part the motions to seal as 

follows:

Motion to Seal Document to be 

Sealed Rulings

ECF No. 68

Qualcomm’s Motion to 

Dismiss

DENIED. Qualcomm seeks to seal 

information that is already in unsealed 

portions of the Complaint. See Compl. ¶¶ 

102, 104. Thus, Qualcomm has not shown 

“compelling reasons” to seal this information. 

ECF No. 86

FTC’s Opposition to 

Qualcomm’s Motion to 

Dismiss

DENIED as to Page 1, lines 17–18; Page 2; 

Page 4, lines 4, 9-13; Page 5; Page 6, lines 2–

3; Pages 9, 16–17, 20, 22–23. Qualcomm 

seeks to seal information that does not meet 

the “compelling reasons” standard and in 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

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some instances is already in unredacted 

portions of the Complaint. 

GRANTED as to Page 1, line 20; Page 4, 

lines 14–20; Page 6, lines 4–7. This 

information constitutes sealable information

under the “compelling reasons” standard. See 

In re Elec. Arts, Inc., 298 F. App’x at 569.

ECF No. 119

Qualcomm’s Reply in 

Support of its Motion 

to Dismiss

DENIED. Qualcomm seeks to seal 

information that does not meet the 

“compelling reasons” standard and in some 

instances is already in unredacted portions of 

the Complaint. 

IT IS SO ORDERED.

Dated: June 27, 2017

______________________________________

LUCY H. KOH

United States District Judge

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