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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,

Plaintiff,

v.

QUALCOMM INCORPORATED,

Defendant.

Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND 

DENYING IN PART

ADMINISTRATIVE MOTIONS TO 

FILE UNDER SEAL

Re: Dkt. Nos. 959, 961

Before the Court are the parties’ joint administrative motions to file under seal materials 

filed in connection with the FTC’s oppositions to Qualcomm’s first and second motions in limine. 

Specifically, the parties seek to seal excerpts from the written testimony of third party LG 

Electronics, Inc. (“LGE”), ECF No. 959, and excerpts from the deposition testimony of third party 

Huawei Technologies, Ltd. (“Huawei”). ECF No. 961. 

“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 
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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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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 

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).
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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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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] 

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 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.

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

The parties acknowledge that Qualcomm’s motion in limine, which seeks to exclude 

evidence from trial, is “more than tangentially related to the underlying cause of action,” Ctr. for 

Auto Safety, 809 F.3d at 1099, and that the compelling reasons standard applies. ECF No. 959 at 

1. The Court now turns to the substance of the sealing motions, which concerns material that third 

parties LGE and Huawei have designated highly confidential. ECF No. 959 at 2; ECF No. 961 at 

2. 

In Kamakana, the Ninth Circuit held that compelling reasons exist to seal court records 

when the records may be used to “release trade secrets.” 447 F.3d at 1179 (citing Nixon, 435 U.S. 

at 598). Moreover, “the common law right of inspection has bowed before the power of a court to 

insure that its records are not used . . . as sources of business information that might harm a 

litigant’s competitive standing.” In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) 

(quoting Nixon, 435 U.S. at 598). This Court has previously granted the parties’ motions to seal 

information pertaining to specific “patent licensing agreements or negotiations” on the basis that 

such information reveals competitive sensitive business information. ECF No. 935 at 4. To the 

extent the parties seek to seal such information, the Court agrees that compelling reasons exist to 

seal this information. 

Both motions seek to seal the entirety of exhibits attached to the FTC’s briefing on 

Qualcomm’s motion in limine. Specifically, the parties seek to seal (1) LGE’s written responses 

to the FTC’s and Qualcomm’s Letter of Request Pursuant to the Hague Convention, attached as 

Exhibit 1 to the FTC’s opposition to Qualcomm’s second motion in limine; and (2) excerpts from 

Huawei deposition testimony, attached as Exhibit 1 to the FTC’s opposition to Qualcomm’s first 

motion in limine. However, both LGE and Huawei have provided declarations in support of the 

parties’ joint sealing motions in which both LGE and Huawei declare that only specific, identified 

material in the exhibits reveals competitively sensitive business information. ECF No. 981 (LGE), 

ECF No. 982 (Huawei). For example, LGE declares that disclosure of certain LGE responses 
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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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reveals trade secrets relating to the “[b]usiness impact of LGE’s purchasing options in the 

baseband processor market,” which could “put LGE at a disadvantage among competitors.” ECF 

No. 981 at 3. Huawei seeks to seal information revealing “the current status and amount of 

disputed royalty payments between Huawei and Qualcomm,” and declares that public disclosure 

“will harm Huawei’s competitive standing.” ECF No. 982 at 2. 

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

959 LGE Written Responses to 

Letter of Request, Responses 

of Tony Son, ECF No. 959-4

¶¶ 12–15 DENIED as to ¶ 12, but 

GRANTED as to the 

remainder. The answer to ¶ 

12 is manifest from ¶ 11, 

which LGE does not seek to 

seal. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Tony Son

¶¶ 17, 19–27 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Tony Son

¶¶ 29–33 GRANTED. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Tony Son

¶¶ 36–42 DENIED as to ¶ 38, but 

otherwise GRANTED. The 

information in ¶ 38 is 

revealed in ¶ 43, which LGE 

does not seek to seal. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Tony Son

¶¶ 44–107 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 8–16 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 17, 19 

(questions and 

responses)

GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 21–28 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

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 33–36 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶ 38 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 40–43 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 45–47 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 49–52 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 54–57 GRANTED.

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 59–62 DENIED as to ¶ 62, but 

otherwise GRANTED. ¶ 62 

is identical to ¶ 30, which 

LGE does not seek to seal. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 64–169 DENIED as to ¶¶ 68, 90, 92, 

106, 109, which are identical 

to ¶ 30, which LGE does not 

seek to seal. GRANTED as 

to the remainder. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 171–80 GRANTED. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 183–208 GRANTED. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 210–11 GRANTED. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 213–30 GRANTED. 

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 232–45 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

959 LGE Written Responses to 

Letter of Request, Responses 

of Hwi-Jae Cho

¶¶ 247–58 GRANTED. 

959 LGE Written Responses All other 

portions

DENIED. None of the 

remaining information is 

supported by a declaration 

confirming that the 

information reveals trade 

secrets. 

961 Excerpts from Deposition of 

Jian Xin Ding, ECF No. 953-

2 

60:15–18 GRANTED. 

961 Excerpts from Deposition of 

Jian Xin Ding

All other 

portions

DENIED. None of the 

remaining information is 

supported by a declaration 

confirming that the 

information reveals trade 

secrets. 

IT IS SO ORDERED.

Dated: December 12, 2018

______________________________________

LUCY H. KOH

United States District Judge