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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'S MOTION IN LIMINE # 2

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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'S MOTION IN 

LIMINE # 2

Re: Dkt. No. 949

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

Commission’s (“FTC”) motion in limine # 2 to preclude testimony on topics withheld as 

privileged during discovery. ECF No. 949. 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 

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

Case 5:17-cv-00220-LHK Document 978 Filed 12/11/18 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'S MOTION IN LIMINE # 2

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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 JOINT ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL FTC'S MOTION IN LIMINE # 2

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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). 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).

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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'S MOTION IN LIMINE # 2

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

motion in limine and accompanying exhibits. The Court concludes that the “compelling reasons” 

standard applies because the FTC’s motion in limine is “more than tangentially related to the 

underlying cause of action.” Ctr. For Auto Safety, 809 F.3d at 1099. The motion in limine’s 

subject matter—whether to allow testimony related to Qualcomm Inc.’s (“Qualcomm”) internal 

ratings system of its patents at trial—is central to the FTC’s claims in the instant case. 

Furthermore, the parties themselves adopt the “compelling reasons” standard here. ECF No. 949 at 

1.

The Court now turns to the substance of the sealing motion. Qualcomm has designated 

certain material as confidential. ECF No. 949 at 2. Qualcomm has, in turn, submitted declarations 

providing that portions of the motion in limine briefing and the accompanying exhibits are 

sealable. ECF Nos. 949-7, 949-8. The rationale is essentially the same—namely, that the 

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

patent portfolio.

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.

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 

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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'S MOTION IN LIMINE # 2

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United States District Court

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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

941 FTC’s Motion in 

Limine # 2

1:23-24 (n.3) DENIED.

941 FTC’s Motion in 

Limine # 2

2:20-21 DENIED.

941 FTC’s Motion in 

Limine # 2

2:27-28 (n.6) DENIED.

941 FTC’s Motion in 

Limine # 2

3:2 DENIED.

941 FTC’s Motion in 

Limine # 2

3:21 (n.7) DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

52:12-15 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

52:19-53:12 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

53:24-25 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

54:2-5 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

54:7-11 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

54:13-15 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

54:18-20 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

54:22-24 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

55:3-6 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

55:11-14 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

55:19-56:6 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

56:19 DENIED.

941-2 Exhibit 1 to the 56:22-23 DENIED.

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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'S MOTION IN LIMINE # 2

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Motion in Limine

941-2 Exhibit 1 to the 

Motion in Limine

57:2-14 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

57:20-22 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

58:6-16 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

58:24-25 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

72:21-25 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

81:1-7 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

81:9-13 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

81:16-19 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

81:21 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

81:23-25 DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

82:1-3, from “Qualcomm” to 

“overall”

DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

82:3-10, from "A” to “worth” GRANTED.

941-2 Exhibit 1 to the 

Motion in Limine

82:10-12, from “So” to 

“question.”

DENIED.

941-2 Exhibit 1 to the 

Motion in Limine

82:17-25 DENIED.

941-6 Exhibit 5 to the 

Motion in Limine

10:25 GRANTED.

941-6 Exhibit 5 to the 

Motion in Limine

12:16-13:7 DENIED.

941-6 Exhibit 5 to the 

Motion in Limine

13:20-14:20 DENIED.

941-6 Exhibit 5 to the 

Motion in Limine

14:27-16:11 DENIED.

IT IS SO ORDERED.

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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'S MOTION IN LIMINE # 2

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United States District Court

Northern District of California

Dated: December 11, 2018

______________________________________

LUCY H. KOH

United States District Judge

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