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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE MOTIONS TO 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 DENYING WITHOUT 

PREJUDICE ADMINISTRATIVE 

MOTIONS TO SEAL

Re: Dkt. Nos. 791, 877

Before the Court are two 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 Prof. Aviv Nevo. ECF 

Nos. 791, 877.

“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).

Parties seeking to seal judicial records relating to motions that are “more than tangentially 

Case 5:17-cv-00220-LHK Document 1018 Filed 12/18/18 Page 1 of 5
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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE MOTIONS TO SEAL

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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 

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 

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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE MOTIONS TO SEAL

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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 

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 

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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE MOTIONS TO SEAL

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“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 Prof. Aviv Nevo, who submitted an expert report addressing the crucial merits 

question of whether Qualcomm’s license policies have anticompetitive effects. ECF No. 791-8, 

Ex. 1, ¶ 7. Therefore, because the FTC’s underlying motion to exclude Prof. Nevo 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. The parties seek to seal 

portions of the FTC’s motion to exclude Prof. Nevo’s testimony, portions of Jennifer Milici’s 

supporting declaration, and the entirety of the exhibits attached to the FTC’s motion. ECF No. 

791. The parties seek to seal portions of Qualcomm’s opposition, portions of M. Brent Byars 

supporting declaration, and the entirety of attached exhibits expert report of Carl Shapiro, rebuttal 

report of Carl Shapiro, and declaration of Fabian D. Gonell. ECF No. 877

The Court DENIES without prejudice the motions to seal portions of the FTC’s motion 

and Qualcomm’s opposition as well as the supporting declarations of Jennifer Milici and M. Brent 

Byars. The unredacted versions of these documents fail “to indicate, 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). Moreover, Qualcomm seeks to seal information in its opposition that it has publicly 

disclosed in other filings. For example, Qualcomm seeks to seal any mention of post-discovery 

license agreements related to 5G cellular technology. ECF No. 877-7 at 1. However, in its 

request to introduce evidence of post-discovery events, Qualcomm stated that the Court should 

consider “several license agreements covering 5G products.” ECF No. 929 at 3. Accordingly, 

Qualcomm’s request to seal this information in its opposition is not narrowly tailored under Civil 

Local Rule 79-5.

The Court DENIES without prejudice the motions to seal the entirety of the exhibits to the 

FTC’s motion and Qualcomm’s opposition. Such requests are not narrowly tailored under Civil 

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Case No. 17-CV-00220-LHK 

ORDER DENYING WITHOUT PREJUDICE MOTIONS TO SEAL

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Local Rule 79-5. For example, the expert report of Prof. Nevo includes items such as Prof. 

Nevo’s name, a general overview of the FTC’s allegations and Qualcomm’s business history, a list 

of materials relied upon, and generalized opinions regarding Qualcomm’s business practices. 

None of the aforementioned examples are sealable under the law. See, e.g., Kamakana, 447 F.3d 

at 1178-79 (9th Cir. 2006) (requiring “compelling reasons supported by specific factual findings 

that outweigh the general history of access and the public policies favoring disclosure” to seal 

records relating to motions that are more than tangentially related to the underlying cause of 

action).

The parties shall refile one joint motion to seal portions of the FTC’s motion to exclude 

Prof. Nevo and associated exhibits and declarations and to seal portions of Qualcomm’s 

opposition and associated exhibits and declarations. The parties shall include with the joint

motion a chart with a row for each portion of any document 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 unredacted versions of all documents to be sealed that indicate by highlighting the 

portions of the document that have been omitted from the redacted version. Civ. L.R. 79-

5(d)(1)(D). The parties shall file any such joint motion to seal by December 27, 2018. 

IT IS SO ORDERED.

Dated: December 18, 2018

______________________________________

LUCY H. KOH

United States District Judge

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