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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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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 JOINT 

ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO 

QUALCOMM MOTION TO EXCLUDE 

EXPERT REPORTS OF RICHARD 

DONALDSON

Re: Dkt. No. 869

Before the Court is a joint administrative motion to file under seal the Federal Trade 

Commission’s (“FTC”) opposition to Qualcomm Inc.’s (“Qualcomm”) motion to exclude expert 

reports of Richard L. Donaldson. ECF No. 869. For the following reasons, the court GRANTS in 

part and DENIES in part the instant motion to seal.

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

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

Case 5:17-cv-00220-LHK Document 994 Filed 12/13/18 Page 1 of 7
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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United States District Court

Northern District of California

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 JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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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). The 

parties shall file concurrent with the administrative motion to file under seal all necessary 

declarations establishing that the information sought to be sealed is sealable. Pursuant to the 

Court’s order at ECF No. 821, where the parties seek to seal information designated confidential 

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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by a non-party, that non-party “will have seven days, rather than the four days prescribed in Civil 

Local Rule 79-5” to file the non-party’s declaration in support of sealing. ECF No. 821 at 2.

Here, the information sought to be sealed consists of portions of the FTC’s opposition to 

Qualcomm’s motion to exclude expert reports of Richard L. Donaldson, as well as accompanying 

exhibits. The Court concludes that the “compelling reasons” standard applies because the FTC’s 

opposition is “more than tangentially related to the underlying cause of action.” Ctr. For Auto 

Safety, 809 F.3d at 1099. The opposition’s subject matter—whether to allow the expert reports of 

Richard Donaldson, one of the FTC’s key expert witnesses, at trial—is central to the merits of the

FTC’s claims in the instant case. 

The Court now turns to the substance of the sealing motion. The FTC has submitted a 

declaration in which it represents that Qualcomm has requested certain material be kept as 

confidential. ECF No. 869-1 at ¶¶ 6-7. Qualcomm has, in turn, submitted declarations providing 

that portions of the opposition brief and the accompanying exhibits are sealable. ECF Nos. 869-3, 

969-4, 869-5. The rationale provided in all 3 declarations is essentially the same—namely, that 

the information sought to be sealed reveals sensitive internal information regarding Qualcomm’s 

patent portfolio and commercial strategy.

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

parties’ motion to seal. As explained, 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 C9r. 2008) (quoting 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. Id.; accord ECF No. 135 at 4.

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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To the extent that the instant motion seeks to seal information that, if published, may harm 

Qualcomm’s competitive standing and divulges contract terms of licensing agreements, the Court 

agrees with the parties that compelling reasons exist to seal this information. However, not all 

information that the motion seeks to seal is sealable. The parties have not articulated “compelling 

reasons” to keep such information from the public. Accordingly, with the Ninth Circuit’s sealing 

case law in mind, the Court rules on the instant motion as follows:

ECF Document Page/Line Ruling

868 Opposition Brief 5:6-7, from “the” to “duration” DENIED.

868 Opposition Brief 5:7, from “—” to the comma GRANTED.

868 Opposition Brief 5:7-8, from “and” to “time” DENIED.

868 Opposition Brief 5:9-11 GRANTED.

868 Opposition Brief 5:17 GRANTED.

868 Opposition Brief 5:26-l:1 GRANTED.

868 Opposition Brief 8:27-9:1 DENIED.

868 Opposition Brief 10:24-26 GRANTED.

868 Opposition Brief 13:12-13, from “customized” to 

“with”

DENIED.

868 Opposition Brief 13:13-14, from the colon to the 

word ending in “a”

GRANTED.

868 Opposition Brief 13:14-15, from “(id. ¶¶ 52-62) to 

(id. ¶ 50)

DENIED.

868 Opposition Brief 13:16-17, from “six” to the first 

“— “

DENIED.

868 Opposition Brief 13:17, between the first and 

second “—"

GRANTED.

868 Opposition Brief 13:17-20, from “as” to “with” DENIED.

868 Opposition Brief 13:20-21, from the word after 

“with” to the period

GRANTED.

868 Opposition Brief 13:21, from “In” to “OEMs” DENIED.

868 Opposition Brief Footnote 2 DENIED.

868 Opposition Brief 14:1-3 DENIED.

868 Opposition Brief 14:3-4 DENIED.

868 Opposition Brief Footnote 3, from “Email from Eric 

Reifschneider (Qualcomm) to 

Derek” to “think”

DENIED.

868 Opposition Brief Footnote 3, remainder GRANTED.

868 Opposition Brief Footnote 4 GRANTED.

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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868 Opposition Brief 16:5 DENIED.

868-2 Exhibit 1 to 

Opposition Brief

118:21 DENIED.

868-2 Exhibit 5 to 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 7 to the 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 8 to the 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

148:9-10 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

148:15-17 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

148:24-25 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

149:9 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

149:23-150:1 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

150:3-4 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

150:6-7 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

150:10 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

150:14 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

150:17-18 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

150:19 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

150:22 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

151:11-12 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

151:15 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

151:17-18 DENIED.

868-2 Exhibit 9 to the 

Opposition Brief

151:20-21 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

152:4-6 GRANTED.

868-2 Exhibit 9 to the 152:20 GRANTED.

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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC OPPOSITION TO QUALCOMM MOTION TO EXCLUDE EXPERT REPORTS OF 

RICHARD DONALDSON

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Opposition Brief

868-2 Exhibit 9 to the 

Opposition Brief

152:21 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

153:3-4 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

153:8-20 GRANTED.

868-2 Exhibit 9 to the 

Opposition Brief

153:23-24 DENIED.

868-2 Exhibit 10 to the 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 11 to the 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 12 to the 

Opposition Brief

Entirety GRANTED.

868-2 Exhibit 13 to the 

Opposition Brief

Redactions for cover email, 

sealing for entire attachment

GRANTED.

IT IS SO ORDERED.

Dated: December 13, 2018

______________________________________

LUCY H. KOH

United States District Judge

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