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Case No. 17-CV-00220-LHK 

ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTION 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 JOINT 

ADMINISTRATIVE MOTION TO FILE 

UNDER SEAL

Re: Dkt. No. 963

Before the Court is the parties’ joint administrative motion to file under seal materials filed 

in connection with Qualcomm’s third motion in limine. Specifically, the parties seek to seal 

portions of the FTC’s opposition to Qualcomm’s third motion in limine and certain exhibits 

attached to the FTC’s opposition. ECF No. 963. 

“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 MOTION 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 MOTION 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). 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 

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 AND DENYING IN PART ADMINISTRATIVE MOTION 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. 

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. 963 at 

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

Qualcomm and non-party Boston Consulting Group (“BCG”) have designated confidential. ECF 

No. 963 at 2–3. Qualcomm has provided a declaration in support of sealing, but BCG has not. 

ECF No. 963-3. In the declaration, Qualcomm Senior Vice President David Zuckerman declares

that Qualcomm wishes to seal information “related to internal business analysis, strategy and 

decision-making related to corporate matters.” Id. ¶ 3. That includes certain material attached to 

and referenced in the FTC’s motion regarding “internal discussions of a 2015 proposal concerning 

various business structures, which was under consideration by a Special Committee of 

Qualcomm’s Board of Directors.” Id. Zuckerman declares that Qualcomm “went to great lengths 

to maintain the confidentiality of this information,” and that personnel received the information

“on a need-to-know basis.” Id. ¶ 4. Specifically, Zuckerman declares that the exhibits Qualcomm 

seeks to seal could reveal “insights into Qualcomm’s strategic planning” and “potentially 

undermine Qualcomm’s relationships with its customers and licensees” because the exhibits 

“contain assessments of the value, strengths and weaknesses of those relationships. Id. ¶ 13. 

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 seeks to seal such 

competitively sensitive business information, the Court agrees that compelling reasons exist to 

seal this information. However, Qualcomm also seeks to seal references to the name of the 
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Case No. 17-CV-00220-LHK 

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

SEAL

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project—Project Phoenix—even though the FTC’s opposition brief publicly reveals that name. 

See ECF No. 955 at 1. More important, Qualcomm has not established that the project name is 

proprietary or competitively sensitive business information and that the project name meets the 

compelling reasons standard for sealing. Similarly, Qualcomm’s statement, for example, that 

BCG’s “analysis and conclusions are in line with management’s assessment” reveals no 

competitively sensitive business information, given that BCG’s actual analysis and conclusions 

are sealable. 

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

motion as follows:

Document Page/Line Ruling

FTC Opposition to Qualcomm’s 

Third Motion in Limine, ECF No. 

955

1:12–13 DENIED. The name of the 

project is not competitively 

sensitive business information. 

Thus, compelling reasons do not 

exist to seal the information. 

FTC Opposition to Qualcomm’s 

Third Motion in Limine

1:13–15 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

FTC Opposition to Qualcomm’s 

Third Motion in Limine

1:16–18 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

FTC Opposition to Qualcomm’s 

Third Motion in Limine

1:18–21 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

FTC Opposition to Qualcomm’s 

Third Motion in Limine

1:22–24 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

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

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

SEAL

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Document Page/Line Ruling

FTC Opposition to Qualcomm’s 

Third Motion in Limine

1:26 n.1 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

FTC Opposition to Qualcomm’s 

Third Motion in Limine

nn.2–3 DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

ECF No. 955-2 Entire Exhibit GRANTED, except for page 1, 

which does not reveal any 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

BCG Document, ECF No. 955-3 Entire Exhibit GRANTED, except for page 1, 

which does not reveal any 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

information. 

BCG Document, ECF No. 955-4 Entire Exhibit GRANTED, except for text 

“Attached are notes from the 

management meetings over past 

two days on Phoenix.” That 

information is not competitively 

sensitive business information. 

Thus, compelling reasons do not 

exist to seal the information. 

BCG Document, ECF No. 955-5 Entire Exhibit GRANTED, except for text 

between “Note” and “assessment”

on the first page. That 

information is not competitively 

sensitive business information. 

Thus, compelling reasons do not 

exist to seal the information. 

ECF No. 955-6 Entire Exhibit DENIED. This information is not 

competitively sensitive business 

information. Thus, compelling 

reasons do not exist to seal the 

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

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

SEAL

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United States District Court

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IT IS SO ORDERED.

Dated: December 13, 2018

______________________________________

LUCY H. KOH

United States District Judge