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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

THEODORE J. BOUTROUS, JR. (SBN 132099) 

tboutrous@gibsondunn.com 

RICHARD J. DOREN (SBN 124666) 

rdoren@gibsondunn.com 

DANIEL G. SWANSON (SBN 116556) 

dswanson@gibsondunn.com 

MICHELE L. MARYOTT (SBN 191993) 

mmaryott@gibsondunn.com 

JASON C. LO (SBN 219030) 

jlo@gibsondunn.com 

JENNIFER J. RHO (SBN 254312) 

jrho@gibsondunn.com 

MELISSA PHAN (SBN 266880) 

mphan@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

333 South Grand Avenue 

Los Angeles, CA 90071 

Tel: (213) 229-7000 

Fax: (213) 229-7520 

Attorneys for Non-Parties Wistron Corporation 

and Pegatron Corporation 

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-220-LHC-NMC 

The Honorable Lucy H. Koh 

ADMINISTRATIVE MOTION TO 

SEAL TRIAL TESTIMONY AND 

EXHIBITS 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 1 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

Pursuant to Civil Local Rules 7-11 and the Pretrial Conference Order (Dkt. 1003), nonparties Wistron Corporation (“Wistron”) and Pegatron Corporation (“Pegatron”) hereby move to 

seal the following narrow portions of exhibits and deposition testimony of their employees, 

which the Federal Trade Commission (“FTC”) and Qualcomm Inc. (“Qualcomm”) identified on 

December 31, 2018 and January 2, 2019, as evidence they anticipate introducing at trial. These 

portions of the identified exhibits and testimony reveal licensing terms and business strategy 

considered to be highly confidential by Wistron, Pegatron, and/or their respective customers and 

business partners, as described in the attached declarations from each non-party.1 See

Declaration of Monica Huang (“Huang Decl.”); Declaration of Zoe Chen (“Chen Decl.”). 

Wistron and Pegatron accordingly believe there are compelling reasons for the Court to seal 

these portions of the identified exhibits and testimony during trial. Nonetheless, in recognition 

of the Court’s desire for public access to relevant information during trial, and the inconvenience 

of sealing the courtroom, Wistron and Pegatron are willing to consider and agree to more limited 

mechanisms of sealing this information than sealing the entire courtroom during discussion of 

their information. With respect to the documentary exhibits, Wistron and Pegatron would 

request that the parties not state the confidential terms of their agreements out loud, but that they 

may display those terms to the Court on the monitors, so long as the monitors facing the public 

are turned off. With respect to the deposition testimony, if the Court would be amenable, 

Wistron and Pegatron would agree that the entire courtroom need not be sealed while their 

employees’ testimony is played, but that the specific words to be sealed would be “muted” or 

“censored with a beep” in the deposition videos, and the Court could view the sealed words in 

the unsealed deposition transcripts. 

When asked about their position as to this motion, the parties responded as follows: The 

FTC has indicated that it does not oppose sealing with respect to the agreements, but does 

 

1

 Each of the declarations submitted by Wistron and Pegatron, respectively, identify some 

portions of deposition testimony that are not addressed in this motion. These portions were 

included because they were previously identified by the parties as deposition testimony that 

could be played at trial. However, the parties have since indicated that these additional portions 

would no longer be played at trial. Nonetheless, out of an abundance of caution and in light of 

their non-party status, Wistron and Pegatron have left in their declarations the identification of 

the full set of deposition designations that they would request to seal. 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 2 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

oppose sealing the deposition testimony in question. Qualcomm stated that it does not oppose 

sealing with respect to the agreements, and with respect to business documents and 

communications, it believes that evidence older than 36 months would presumptively not be 

sealed. 

“[A] party seeking to seal a judicial record attached to a dispositive motion or presented 

at trial must articulate ‘compelling reasons’ in favor of sealing.” Fujitsu Ltd. v. Belkin Int’l, Inc., 

No. 10-cv-3972, 2012 WL 6019754, at *2 (N.D. Cal. Dec. 3, 2012) (Koh, J.). “‘[C]ompelling 

reasons may exist if sealing is required to prevent judicial documents from being used ‘as 

sources of business information that might harm a litigant’s competitive standing.’” Id. 

As explained in further detail below and in their respective declarations, Wistron and 

Pegatron each have narrowly tailored their request to seal to only their most sensitive licensing 

and business strategic information, and the strategic business information of their customers, 

whose public disclosure would harm them competitively in their business interactions with their 

customers, suppliers, potential licensors, and competitors. As their declarations confirm in more 

detail, the information contained in these exhibits and deposition testimony is not publicly 

known, and its confidentiality is strictly maintained. Huang Decl. ¶ 6; Chen Decl. ¶ 7. Indeed, 

the information in question was produced during fact discovery pursuant to an outside counselonly Highly Confidential designation in light of the competitively sensitive nature of such 

information. The public disclosure of the information at issue in the deposition testimony, as 

discussed in more detail below and in their declarations, would reveal confidential product 

development strategies and licensing terms of not just Wistron and Pegatron, but of their 

customers, and accordingly would harm their business and competitive positions as well as 

customer relationships. See Lucas v. Breg, Inc., No. 15-CV-00258, 2016 WL 5464549, at *1 

(S.D. Cal. Sept. 28, 2016) (“[C]ourts have been willing to seal court filings containing 

confidential business material, ‘such as marketing strategies, product development plans, 

licensing agreements, and profit, cost, and margin data,’ where the parties have been able to 

point to concrete factual information to justify sealing.”); In re Adobe Sys. Inc. Sec. Litig., 141 

F.R.D. 155, 161–62 (N.D. Cal. 1992) (“Protective orders and filings under seal are the primary 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 3 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

means by which the courts ensure full disclosure of relevant information, while still preserving 

the parties’ (and third parties)’ legitimate expectation that confidential business information, 

proprietary technology and trade secrets will not be publicly disseminated.”). 

Wistron and Pegatron accordingly seek to seal the following portions of exhibits and 

deposition testimony, copies of which are attached to this motion: 

 JX0042 (Entire document except those portions of Sections 3, 5.1, and 5.2 that are 

contained in green boxes) – JX0042 is a confidential license agreement between 

Wistron and Qualcomm. Disclosure of the terms of this confidential license 

agreement would harm Wistron’s business and competitive position by disclosing its 

confidential licensing information to Wistron’s competitors, suppliers, and potential 

licensors, who would gain asymmetric insight into confidential business deals and the 

licensing terms to which Wistron has agreed. See Huang Decl., ¶ 7. Nonetheless, in 

recognition of the issues at trial, the compelling reasons standard, and Wistron’s 

understanding that certain of the licensing terms already have or will become public, 

Wistron has limited its request to seal this license agreement to those terms that it 

believes are not necessary to understand the relevant issues at trial, have not or will 

not become public, and/or would cause Wistron substantial harm from their public 

disclosure. 

 Deposition of Brian Chong (only the customer/third party name highlighted at 

246:3, 246:5, 246:12, 251:14, 251:16, 251:18, 361:5; the red boxes identify the full 

set of testimony that the FTC and Qualcomm indicated will be played at trial) – 

Wistron seeks to seal only the name of its customer mentioned in the confidential 

testimony of Brian Chong. Revealing that particular customer’s strategic business 

decisions with respect to choice of component suppliers could reveal insights into that 

customer’s product development strategy, and is the confidential information of both 

that customer and Wistron. Public disclosure of Wistron’s customer’s confidential 

business strategy would be highly detrimental to Wistron, whose business of 

providing contract manufacturing services for its customers requires Wistron to 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 4 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

protect the confidentiality of its customers’ product development and business 

strategies. 

 JX0053 (Entire document except those portions of Sections 3, 5.1, and 5.2 that are 

contained in green boxes, or, only in the alternative, the entire document if the Court 

denies sealing of the deposition of Monica Yang) – JX0053 is a confidential license 

agreement between Pegatron and Qualcomm. Disclosure of the terms of this 

confidential license agreement would harm Pegatron’s business and competitive 

position by disclosing its confidential licensing information to its competitors, 

suppliers, and potential licensors, all of whom would gain asymmetric insight into the 

confidential business deals and licensing terms to which Pegatron has agreed. See

Chen Decl., ¶¶ 7-8. Nonetheless, in recognition of the issues at trial, the compelling 

reasons standard, and Pegatron’s understanding that certain of the licensing terms 

already have or will become public, Pegatron has limited its request to seal this 

license agreement to those terms that it believes are not necessary to understand the 

relevant issues at trial, have not or will not become public, and/or would cause 

Pegatron substantial harm from their public disclosure. To the extent that the Court 

denies Pegatron’s request to seal the deposition of Monica Yang, however, Pegatron 

respectfully requests that the entirety of JX0053, including sections 3, 5.1, and 5.2, be 

sealed, in order to protect the confidentiality of the third party’s license terms 

referenced in the deposition of Monica Yang. 

 Deposition of Monica Yang (only the third party name highlighted at 104:6, 104:14; 

the red boxes identify the full set of testimony that the FTC and Qualcomm indicated 

will be played at trial) – Pegatron seeks to seal just the name of the third party 

referenced at 104:6 and 104:14. Public disclosure of this third party’s name would 

reveal terms and information about that third party’s confidential license agreement, 

with respect to which Pegatron is not authorized to disclose, as well as information 

about a Pegatron confidential license agreement. Furthermore, public disclosure of 

terms of this confidential license agreement would harm both the third party’s and 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 5 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

Pegatron’s business and competitive information. The third party would be harmed 

by public disclosure of its confidential licensing information, and Pegatron would be 

harmed both by the public disclosure of these licensing terms as well as by the public 

disclosure of its business partner’s confidential information. Pegatron would be 

harmed if it could not protect the confidentiality of its business partners’ confidential 

license information. See Chen Decl., ¶ 9. 

Pursuant to the Pretrial Conference Order (Dkt. 1003), the following table identifies (1) 

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

appears, and (3) the number of the paragraph(s) in a specific declaration justifying sealing of that 

information under the compelling reasons standard. 

NonParty Location of Information Declaration 

¶ 

Supporting 

Request 

Explanation 

Wistron JX0042 – Entire document 

except the portions of Sections 

3, 5.1, and 5.2 that are 

contained in green boxes 

Huang 

Decl., ¶ 7. 

The document is a confidential license 

agreement, and the public disclosure 

of its terms would harm Wistron’s 

business and competitive positions by 

revealing those confidential terms to 

and giving asymmetric insight into 

Wistron’s licensing and strategic 

business information to Wistron’s 

business partners, customers, and 

potential licensors. Wistron has 

nonetheless proposed leaving those 

portions of three provisions unsealed 

that Wistron understands to be central 

to issues at trial and/or have already 

been or will be publicly disclosed. 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 6 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

NonParty Location of Information Declaration 

¶ 

Supporting 

Request 

Explanation 

Wistron Deposition of Brian Chong: 

 246:3 (customer name) 

 246:5 (customer name) 

 246:12 (customer name) 

 251:14 (customer name) 

 251:16 (customer name) 

 251:18 (customer name) 

 361:5 (customer name) 

Huang 

Decl., ¶ 6. 

The testimony reveals confidential 

product development and business 

strategy information of Wistron’s 

customer. Wistron understands that 

this information is considered highly 

confidential by its customer, and 

Wistron accordingly has maintained 

this information as highly 

confidential. Public disclosure of this 

information would be harmful to 

Wistron. Wistron’s contract 

manufacturing business requires it to 

keep its customers’ product 

development and business strategies 

highly confidential. 

Pegatron JX0053 – Entire document 

except the portions of Sections 

3, 5.1, and 5.2 that are 

contained in green boxes 

Chen Decl., 

¶¶ 7-8. 

The document is a confidential license 

agreement, and the public disclosure 

of its terms would harm Pegatron’s 

business and competitive positions by 

revealing those confidential terms to 

and giving asymmetric insight into 

Pegatron’s licensing and strategic 

business information to Pegatron’s 

business partners, customers, and 

potential licensors. Pegatron has 

nonetheless proposed leaving those 

portions of three provisions unsealed 

that Wistron understands to be central 

to issues at trial and/or have already 

been or will be publicly disclosed. 

(However, and only to the extent that 

the Court denies Pegatron’s request to 

seal the deposition testimony of 

Monica Yang, Pegatron respectfully 

requests that the entirety of JX0053 be 

sealed, to protect the confidential 

licensing information of the third 

party referenced in Monica Yang’s 

deposition testimony.) 

Pegatron Deposition of Monica Yang: 

 104:6 (third party name) 

 104:14 (third party name) 

Chen Decl., 

¶ 9. 

This testimony refers to and reveals 

confidential terms of an agreement of 

a third party, and Pegatron is not 

authorized to disclose the terms of this 

agreement to which it is not a party. 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 7 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

Dated: January 3, 2019 Respectfully submitted, 

GIBSON, DUNN & CRUTCHER LLP 

By: /s/ Jennifer J. Rho 

 

THEODORE J. BOUTROUS, JR. (SBN 132099) 

tboutrous@gibsondunn.com 

RICHARD J. DOREN (SBN 124666) 

rdoren@gibsondunn.com 

DANIEL G. SWANSON (SBN 116556) 

dswanson@gibsondunn.com 

MICHELE L. MARYOTT (SBN 191993) 

mmaryott@gibsondunn.com 

JASON C. LO (SBN 219030) 

jlo@gibsondunn.com 

JENNIFER J. RHO (SBN 254312) 

jrho@gibsondunn.com 

MELISSA PHAN (SBN 266880) 

mphan@gibsondunn.com 

RYAN IWAHASHI (SBN 284766) 

riwahashi@gibsondunn.com 

GIBSON, DUNN & CRUTCHER LLP 

333 South Grand Avenue 

Los Angeles, CA 90071 

Tel: (213) 229-7000 

Fax: (213) 229-7520 

Attorneys for Non-Parties Pegatron Corporation 

and Wistron Corporation 

HUGH F. BANGASSER (Pro Hac Vice) 

hugh.bangasser@klgates.com 

CHRISTOPHER M. WYANT (Pro Hac Vice) 

chris.wyant@klgates.com 

J. TIMOTHY HOBBS (Pro Hac Vice) 

tim.hobbs@klgates.com 

K&L GATES LLP 

925 Fourth Avenue, Suite 2900 

Seattle, Washington 98104 

Telephone: +1 206 623 7580 

Facsimile: +1 206 370 6371 

CAITLIN C. BLANCHE (SBN 254109) 

caitlin.blanche@klgates.com 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 8 of 10
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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

K&L GATES LLP 

1 Park Plaza Twelfth Floor 

Irvine, CA 92614 

Telephone: +1 949 253 0900 

Facsimile: +1 949 253 0902 

Attorneys for Non-Parties Wistron Corporation 

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ADMINISTRATIVE MOTION TO SEAL TRIAL TESTIMONY AND EXHIBITS 

CASE NO. 5:17-CV-220-LHC-NMC 

Gibson, Dunn & 

Crutcher LLP 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy of the foregoing 

document and its attachments has been served on January 3, 2019 to all counsel of record who 

are deemed to have consented to electronic service via the Court’s CM/ECF system per Civ. 

L.R. 5-1(e). Any other counsel of record will be served by electronic mail and/or U.S. mail. 

By: /s/ Jennifer J. Rho 

Case 5:17-cv-00220-LHK Document 1084 Filed 01/03/19 Page 10 of 10