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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

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, et al.,

Plaintiffs,

v.

QUALCOMM INCORPORATED, et al.,

Defendants.

Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND 

DENYING IN PART

ADMINISTRATIVE MOTIONS TO 

FILE UNDER SEAL

Re: Dkt. Nos. 854, 862

Before the Court are Plaintiff Federal Trade Commission’s (“FTC”) and Defendant 

Qualcomm Incorporated’s (“Qualcomm”) joint administrative motions to seal the parties’ briefing 

on Qualcomm’s motion for leave to take the trial deposition of an expert witness and related 

exhibits. ECF Nos. 854 & 862. 

“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)). Accordingly, when considering a sealing request, “a strong 

presumption in favor of access is the starting point.” Id. (internal quotation marks omitted).
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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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, 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, 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 and citation 

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 1098–99; 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 ex rel. Estates of Byrd v. 

Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002) (citation omitted); 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) (citation 

omitted).

Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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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] 

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 an 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. (alterations in original). Furthermore, the 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 [Local 

Rule] 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.” Civ. L. R. 79-5(d)(1). Where 

the moving party seeks to file under seal a document containing information designated 

confidential by the opposing party, “[w]ithin 4 days of the filing of the Administrative Motion to 

File Under Seal, the [opposing party] must file a declaration as required by subsection 79-

5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L. R. 79-5(e)(1).

Here, the information sought to be sealed consists of portions of the parties’ briefing on 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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Qualcomm’s motion for leave to take the trial deposition of Qualcomm’s expert witness, Professor 

Bénedicté Fauvarque-Cosson. ECF Nos. 854 & 862. Qualcomm appears to contend that the 

Court should apply the good cause standard. ECF No. 854 at 3 (citing the “good cause” standard 

from Phillips). 

However, Qualcomm’s motion concerned whether Qualcomm could preserve the trial 

testimony of Professor Fauvarque-Cosson, who would provide “the only expert testimony 

addressing the subject of her report.” See ECF No. 863-1 at 2. The Ninth Circuit has held that 

“routine motions in limine [] are strongly correlative to the merits of a case.” Ctr. for Auto Safety, 

809 F.3d at 1099. Similarly, this Court has previously explained that the inclusion or exclusion of 

material at issue in a motion in limine may “critically affect[] the outcome of a case,” such that the 

material is subject to the compelling reasons standard. Fujitsu Ltd. v. Belkin Int’l, Inc., No. 10-

CV-03972-LHK, 2012 WL 6019754, at *5 (N.D. Cal. Dec. 3, 2012) (citing In re Midland Nat’l 

Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120 (9th Cir. 2012)). While 

Qualcomm’s motion was not a motion in limine, the motion concerned Qualcomm’s presentation 

of evidence in its merits case. The Court thus applies the “compelling reasons” standard to the

information the parties seek to seal. 

Generally, the information the parties seek to seal relates to Professor Fauvarque-Cosson’s 

appointment to a judgeship in France. The parties originally sought to seal the entirety of the 

parties’ briefing on Qualcomm’s motion for leave to take the trial deposition of an expert witness 

and attached exhibits. See ECF Nos. 854 & 862. Then, on September 19, 2018, Qualcomm filed 

a notice stating that Professor Fauvarque-Cosson’s judicial appointment had become public. ECF

No. 863. As a result, Qualcomm revised the sealing request to seek to seal only the possible 

effective dates of Professor Fauvarque-Cosson’s appointment and information related to Professor 

Fauvarque-Cosson’s conversations with French government officials regarding her appointment. 

See id. at 1–3. Now that Professor Fauvarque-Cosson’s appointment has become effective, the 

possible effective dates of her appointment are no longer confidential, and the Court DENIES the 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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parties’ sealing requests to the extent that the requests seek to seal such information. 

However, the Court concludes that compelling reasons exist to seal information related to 

Professor Fauvarque-Cosson’s conversations with French government officials regarding her 

appointment. Professor Fauvarque-Cosson attested in a declaration that such information about 

the internal government processes leading to her appointment is “not public” and that the French 

government had asked her “to keep it in strict confidence.” ECF No. 854-4. The Court concludes 

that the French government’s interest in the strict confidentiality of its judicial appointment 

processes provides a compelling reason to seal information related to Professor FauvarqueCosson’s conversations with French government officials regarding her appointment. See Heath 

v. Google LLC, No. 15-CV-01824-BLF, 2018 WL 4561773, at *3 (N.D. Cal. Sept. 20, 2018) 

(concluding that compelling reasons existed to seal “confidential information about [a company’s] 

hiring process”). 

Thus, with the Ninth Circuit’s sealing case law in mind, the Court rules on the instant 

motions as follows:

Motion to 

Seal

Document Page/Line Ruling

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

1:10 DENIED. The effective date 

of the appointment is no 

longer confidential. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

1:12–13, 

between 

“matter” and “.”

GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

1:23–24 DENIED. The effective date 

of the appointment is no 

longer confidential. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

2:13–14, 

between “on” 

and “,” and after 

“learned”

GRANTED. 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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Motion to 

Seal

Document Page/Line Ruling

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

2:16–18, 

between “on” 

and “.”

GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

2:19–20, 

between 

“informed” and 

“.”

GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

2:21–3:1 GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

3:2–7 GRANTED

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

3:8–9 DENIED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

n.2, after 

“FauvarqueCosson”

GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

4:17–20 GRANTED. 

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

6:2 DENIED. The effective date 

of the appointment is no 

longer confidential.

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

6:9–15 DENIED. The effective date 

of the appointment is no 

longer confidential.

854 Qualcomm’s Motion for 

Leave to Take the Trial 

Deposition of an Imminently 

Unavailable Witness

6:21 DENIED. The effective date 

of the appointment is no 

longer confidential.

854 Declaration of Professor 

Bénedicté Fauvarque-Cosson

¶¶ 5–8, 10, 13 GRANTED. 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE UNDER 

SEAL

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Motion to 

Seal

Document Page/Line Ruling

854 Declaration of Professor 

Bénedicté Fauvarque-Cosson

First six 

sentences of ¶ 11 

GRANTED.

854 Declaration of Professor 

Bénedicté Fauvarque-Cosson

Portion of 

seventh sentence 

of ¶ 11

DENIED. The effective date 

of the appointment is no 

longer confidential.

862 FTC’s Opposition to 

Qualcomm’s Motion for 

Leave

1:5–6, up to “.” GRANTED. 

862 FTC’s Opposition to 

Qualcomm’s Motion for 

Leave

1:23–25, 

between “.” And 

“Decl.”

GRANTED.

862 FTC’s Opposition to 

Qualcomm’s Motion for 

Leave

4:2–4, between 

“contrary” and 

“Decl”

GRANTED.

862 FTC’s Opposition to 

Qualcomm’s Motion for 

Leave

5:22–26, 

between “trial” 

and 

“Qualcomm”

GRANTED. 

862 FTC’s Opposition to 

Qualcomm’s Motion for 

Leave

5:27–6:7, 

beginning with 

“other than”

GRANTED. 

862 Excerpts from the Deposition 

of Professor Bénedicté

Fauvarque-Cosson

Entire Document DENIED. Qualcomm no 

longer seeks to seal this 

information. ECF No. 863. 

IT IS SO ORDERED.

Dated: November 21, 2018

______________________________________

LUCY H. KOH

United States District Judge