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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT PREJUDICE 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, 

DENYING IN PART, AND DENYING 

WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO 

FILE UNDER SEAL

Re: Dkts. No. 789, 875, 892

Before the Court are three administrative motions to seal filed in connection with the 

parties’ briefing on Plaintiff Federal Trade Commission’s (“FTC”) motion to exclude the expert 

testimony of Defendant Qualcomm Incorporated’s (“Defendant”) expert Dr. Edward Snyder. ECF 

Nos. 789, 875, 892. 

“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, DENYING IN PART, AND DENYING WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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Northern District of California

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, DENYING IN PART, AND DENYING WITHOUT PREJUDICE 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 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). Pursuant 

to the Court’s order at ECF No. 821, the parties to this case shall file concurrent with the 

administrative motion to file under seal all necessary declarations establishing that the information 

sought to be sealed is sealable. Where the parties seek to seal information designated confidential 

by a non-party, that non-party “will have seven days, rather than the four days prescribed in Civil 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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

Here, consistent with the Court’s prior orders, the Court concludes that the compelling 

reasons standard applies to the instant sealing motions. As the Ninth Circuit has recognized, even 

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

809 F.3d at 1099. The briefing that is the subject of the motions to seal concerns the expert 

testimony of Dr. Edward Snyder, who submitted a 372-page expert report addressing the crucial 

merits question of whether Qualcomm’s conduct had anticompetitive effects. ECF No. 789-6, Ex. 

1, ¶ 7. Therefore, because the FTC’s underlying motion to exclude Dr. Snyder concerns whether 

Qualcomm can present evidence on a question “that is more than tangentially related to the

[FTC’s] underlying cause of action,” Ctr. for Auto Safety, 809 F.3d at 1099, the Court applies the 

compelling reasons standard to the motions to seal. 

The Court now turns to the substance of the sealing motions. Specifically, the parties seek 

to seal portions of the FTC’s motion to exclude Dr. Snyder, portions of Qualcomm’s brief in 

opposition, and exhibits filed in connection with the FTC’s motion, Qualcomm’s opposition, and 

the FTC’s reply. Qualcomm and several different non-parties have designated as confidential the 

material at issue confidential. See ECF No. 789 at 2. Qualcomm and the non-parties have filed 

declarations in support of sealing. ECF Nos. 828, 830, 832, 834, 835, 836, 837, 840, 841, 843, 

845, 849, 850. 

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). Thus, to the extent that Qualcomm and the non-parties seeks to 

seal such competitively sensitive business information, the Court agrees that compelling reasons 

exist to seal this information. 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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United States District Court

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However, the Court will deny without prejudice the motion to seal Dr. Snyder’s report. 

The FTC provisionally filed under seal the entirety of Dr. Snyder’s expert report. See ECF No. 

789 at 3. Such a request is not narrowly tailored under Civil Local Rule 79-5. Although the 

FTC’s motion to seal identifies, by non-party, the specific portions of Dr. Snyder’s report that 

other parties have designated confidential, the table is not useful to the Court. In particular, the 

table does not identify where multiple entities seek to seal the same portion of Dr. Snyder’s report. 

The Court recognizes that at the time the FTC filed the motion to seal, the Court had not yet 

entered its order at ECF No. 821 establishing procedures for filing administrative motions to file 

under seal in this case. Nonetheless, the Court finds that the parties’ compliance with that order 

and the portions of the Court’s order regarding sealing at ECF No. 1003 will aid in the Court’s 

timely disposition of the motion to seal portions of Dr. Snyder’s voluminous expert report. 

Specifically, the parties shall refile a motion to seal portions of Dr. Snyder’s expert report 

as a joint motion. The parties shall include in their motion a chart with a row for each portion of 

the report that is sought to be sealed. The chart shall include four columns that describe: (1) 

whose confidential information is to be sealed, (2) where the confidential information appears, (3) 

the number of the paragraph(s) in a specific declaration(s) justifying the sealing of that 

information under the compelling reasons standard, and (4) any explanations. In addition, 

consistent with Civil Local Rule 79-5, the parties shall refile under seal an unredacted version of 

Dr. Snyder’s report that indicates by highlighting the portions of the report that have been omitted 

from the redacted version. Civ. L.R. 79-5(d)(1)(D). Helpfully, Qualcomm and non-parties have 

clarified in their declarations that sealing of the entire document is not warranted. The parties 

should file any such joint motion to seal by December 27, 2018. 

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

motions to seal as follows: 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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Motion to 

Seal

Document Page/Line Ruling

789 FTC Motion to Exclude, ECF 

No. 788

12:1–4 DENIED as to (1) the phrase 

beginning with “Dr. 

Snyder’s” and ending with 

“Bain & Co” and (2) the word

“Bain” between “the” and 

“analysis,” but otherwise 

GRANTED. 

789 Expert Report of Dr. Edward 

Snyder, ECF No. 788-1

Entire Document DENIED WITHOUT 

PREJUDICE. Pursuant to the 

Court’s instructions above, 

the parties may refile as a 

joint motion their request to 

seal information in the Snyder 

Report by December 27, 

2018. 

789 Deposition of Dr. Edward 

Snyder, ECF No. 788-2

Entire Document DENIED, except for 32:25–

33:1, 102:1–16, 125:12–16, 

144:1–25. 

789 Expert Report of Dr. Carl 

Shapiro, ECF No. 788-4

Entire Document DENIED, except for ¶ 9 

(second sentences of second 

and fourth bullets), ¶ 327 

(final sentence), n. 607

(parenthetical only), and ¶ 

329 (final sentence)

875 Qualcomm Opposition to 

FTC Motion to Exclude, ECF 

No. 874 

13:9–12 DENIED. The information 

sought to be sealed does not 

satisfy the compelling reasons

standard. Moreover, the 

information is publicly

disclosed in the FTC’s reply 

brief, ECF No. 891 at 4:1–2, 

which the parties did not seek 

to seal. 

875 Qualcomm Opposition to 

FTC Motion to Exclude

13:14–17 GRANTED. 

875 Qualcomm Opposition to 

FTC Motion to Exclude

13:20–23 GRANTED. 

875 Qualcomm Opposition to 

FTC Motion to Exclude

n.8 GRANTED. 

875 Qualcomm Opposition to 

FTC Motion to Exclude

20:6–8 GRANTED. 
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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT PREJUDICE IN PART 

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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United States District Court

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Motion to 

Seal

Document Page/Line Ruling

892 Rebuttal Expert Report of 

Carl Shapiro, ECF No. 891-2

¶¶ 123–25 GRANTED.

IT IS SO ORDERED.

Dated: December 17, 2018

______________________________________

LUCY H. KOH

United States District Judge