FTC’S OPP. TO LENOVO MOTION TO SEAL

Case No. 5:17-cv-00220-LHK 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Jennifer Milici, D.C. Bar No. 987096 

Joseph R. Baker, D.C. Bar No. 490802 

Philip J. Kehl, D.C. Bar No. 1010284 

Daniel Matheson, D.C. Bar No. 502490 

Aaron Ross, D.C. Bar No. 1026902 

Mark J. Woodward, D.C. Bar No. 479537 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Plaintiff Federal Trade Commission 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK

PLAINTIFF FEDERAL TRADE 

COMMISSION’S OPPOSITION TO 

LENOVO/MOTOROLA’S 

ADMINISTRATIVE MOTION TO 

SEAL 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1088 Filed 01/03/19 Page 1 of 5
 1 FTC’S OPP. TO LENOVO MOTION TO SEAL

Case No. 5:17-cv-00220-LHK 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Lenovo (United States), Inc., and Motorola Mobility LLC (together, “Lenovo”) have 

moved to seal portions of the trial transcript containing the anticipated testimony of a Lenovo 

witness, Ira Blumberg, whose videotaped deposition testimony the FTC plans to present at trial. 

Lenovo further moves to seal portions of exhibits which will be introduced with Mr. Blumberg’s 

testimony. Although the FTC appreciates that the procedure requested by Lenovo would not 

require sealing the courtroom when Mr. Blumberg’s testimony is played,1 the FTC opposes the 

sealing requests themselves as overbroad and not narrowly tailored to seal information meeting 

the legal standard. 

LEGAL STANDARD 

In the Ninth Circuit, courts generally do not grant motions to seal judicial records at trial 

unless the moving party can show “compelling reasons.” FTC v. DIRECTV, Inc., No. 15-CV01129-HSG, 2017 WL 840379, at *1 (N.D. Cal. Mar. 3, 2017) (quoting Pintos v. Pac. Creditors 

Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010)). This standard originates from a common law right 

“to inspect and copy public records and documents, including judicial records and documents.” 

Id. (quoting Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). The 

moving party must therefore overcome a “strong presumption” favoring access to all records. 

Foltz v. State Farms. Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (citation omitted). 

Short of “compelling reasons supported by specific factual findings that outweigh the 

general history of access and the public policies favoring disclosures, such as the public interest 

in understanding the judicial process,” the Court should deny a motion to seal records at trial. 

DIRECTV, 2017 WL 840379, at *1 (quoting Kamakana, 447 F.3d at 1178-79). “Broad allegations 

of harm, unsubstantiated by specific examples of articulated reasoning” are insufficient. 

Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).2

 

1

 Lenovo does not request that any testimony be played in a closed courtroom. Instead, Lenovo 

requests that the Court allow confidential information to “be discussed and disclosed in the 

Courtroom” but redact deposition excerpts from the final trial transcript, and turn off public video 

monitors when displaying certain trial exhibits. See Proposed Order, ECF No. 1072-1, at 2. 

2

 Courts often treat requests to seal the courtroom entirely (a request not made here) with 

additional skepticism. See, e.g., Microsoft Corp. v. Motorola, Inc., No. C10-1823JLR, 2012 WL 

Case 5:17-cv-00220-LHK Document 1088 Filed 01/03/19 Page 2 of 5
 2 FTC’S OPP. TO LENOVO MOTION TO SEAL

Case No. 5:17-cv-00220-LHK 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ARGUMENT

Specific contractual terms such as “pricing terms, royalty rates, and guaranteed minimum 

payment terms of patent licensing agreements” are often trade secrets which may be sealed and 

redacted from court records. Jan. 2, 2019 Order, ECF No. 1066, at 4 (citing Kamakana v. City & Cty. 

of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)); In re Elec. Arts, Inc., 298 F. App’x 568, 569 

(9th Cir. 2008)). In its motion, however, Lenovo seeks to seal testimony describing Qualcomm’s 

licensing practices at a general level and answering high-level questions going to whether 

Qualcomm has engaged in conduct that is at the heart of the FTC’s allegations in this case. See 

Mot. Ex. A, ECF No. 1072-3 (“Tr.”), 83:8-84:3; 150:13-19; Tr. 155:20-156:11; Tr. 169-77; Tr. 

216-18. The FTC’s allegations that Qualcomm engaged in such conduct generally are public. See, 

e.g., Complaint, ECF No. 1, ¶¶ 3(a), 147(b). Lenovo does not explain how answers to questions 

regarding whether Qualcomm engaged in such conduct with Lenovo are trade secrets that would 

harm Lenovo’s competitive position if revealed. In any event, testimony at such a general level 

about the Qualcomm/Lenovo relationship is not the sort of specific price term that warrants 

sealing. See Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2012 WL 5505068, at 

*2 (N.D. Cal. Nov. 13, 2012) (denying sealing request where “the Court cannot see how 

information at this level of generality could possibly be used to [the movant’s] disadvantage”). 

Lenovo supports its sealing motion with a declaration which states repeatedly that the 

testimony Lenovo seeks to seal concerns information that “is not publicly known,” that “Lenovo 

maintains this type of sensitive business information in strict confidence,” and that “if this 

sensitive information were to be released to the public, Lenovo’s competitors and potential 

business partners would gain insight into Lenovo’s internal business operations and strategy, 

which would compromise Lenovo’s ability to compete in the highly competitive cellular products 

market.” ECF No. 1072-2 at 2-7 (¶¶ 5-19).3

 But the mere fact that Lenovo maintains this 

 

5476846, at *4 (W.D. Wash. Nov. 12, 2012) (holding that “[w]itness testimony . . . will be heard 

in open court, and therefore, if a witness discloses pertinent terms, rates or payments, such 

information will necessarily be made public”). 

3

 In certain places, the declaration also notes that some testimony is discussing or quoting 

documents. See, e.g., ECF No. 1072-2 ¶ 16. 

Case 5:17-cv-00220-LHK Document 1088 Filed 01/03/19 Page 3 of 5
 3 FTC’S OPP. TO LENOVO MOTION TO SEAL

Case No. 5:17-cv-00220-LHK 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

information in confidence does not warrant sealing. See, e.g., UCP Int’l Co. Ltd. v. Balsam 

Brands Inc., 252 F. Supp. 3d 828, 835 (N.D. Cal. 2017) (citation omitted). And Lenovo’s 

conclusory assertion of harm provides no specific reasons why Lenovo would suffer harm, as the 

standard requires. See, e.g., Hodges v. Apple, Inc., No. 13-cv-01128-WHO, 2013 WL 6070408, at 

*2 (N.D. Cal. Nov. 18, 2013) (“An unsupported assertion of ‘unfair advantage’ to competitors 

without explaining ‘how a competitor would use th[e] information to obtain an unfair advantage’ 

is insufficient.”) (quoting Dunbar v. Google, Inc., No. 12–cv–003305–LHK, 2012 WL 6202719, 

at *4–*5 (N.D.Cal. Dec. 12, 2012)); Welle v. Provident Life & Accident Ins. Co., No. 3:12-cv3016-EMC, 2013 WL 6055369, at *2 (N.D. Cal. Nov. 14, 2013) (“[A]lthough [defendant] 

identifies the information at issue as proprietary and confidential, it does not provide reasons 

beyond the boilerplate references to competitive disadvantage if the information were publicly 

available.”). The court should deny Lenovo’s request to seal the transcript. 

Lenovo’s request to seal trial exhibits is also overbroad. Lenovo seeks to seal trial exhibits 

which are years old, with no specific explanation of why the information in them would still be 

helpful to competitors or detrimental to Lenovo. See, e.g., CX2079 (2013 email) (Blumberg Decl. 

Ex. B, ECF No. 1072-4). The FTC is generally not opposed to sealing portions of trial exhibits 

and not displaying those portions on public monitors when trial exhibits contain true trade secrets 

(should this be technically possible). However, Lenovo seeks to seal trial exhibits concerning 

years-old Lenovo-Qualcomm negotiations, without any explanation as to why this information is 

still sensitive or any tailoring to the specific terms that warrant sealing. Courts deny such 

requests. See, e.g., DIRECTV, 2017 WL 840379, at *2. 

Case 5:17-cv-00220-LHK Document 1088 Filed 01/03/19 Page 4 of 5
 4 FTC’S OPP. TO LENOVO MOTION TO SEAL

Case No. 5:17-cv-00220-LHK 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dated: January 3, 2019 

Respectfully submitted, 

FEDERAL TRADE COMMISSION 

/s/ Jennifer Milici 

Jennifer Milici 

Joseph R. Baker 

Philip J. Kehl 

Daniel Matheson 

Aaron Ross 

Mark J. Woodward 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Federal Trade Commission 

Case 5:17-cv-00220-LHK Document 1088 Filed 01/03/19 Page 5 of 5