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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

AN PHAN,

Plaintiff,

v.

AGODA COMPANY PTE. LTD.,

Defendant.

Case No. 16-cv-07243-BLF 

ORDER GRANTING IN PART AND 

DENYING IN PART PLAINTIFF’S 

ADMINISTRATIVE MOTION TO 

SEAL

[Re: ECF 52]

Before the Court is Plaintiff An Phan’s (“Plaintiff”) administrative motion to seal portions 

of Plaintiff’s motion to continue class-certification expert-witness designation deadlines. See ECF 

52. In its motion, Plaintiff seeks to file several documents designated confidential by Defendant 

Agoda Company PTE. LTD. (“Defendant”) under seal. See ECF 52. Defendant filed a 

declaration in support of sealing portions of the documents in Plaintiff’s motion, as well as

seeking to seal several additional documents filed in support of its opposition to Plaintiff’s motion 

to continue class-certification expert-witness designation deadlines. See ECF 56. For the reasons 

discussed below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion to 

seal.

I. LEGAL STANDARD

“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. (quoting Foltz v. State Farm Mut. Auto. 

Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 

motions that are “more than tangentially related to the underlying cause of action” bear the burden 
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of overcoming the presumption with “compelling reasons” that outweigh the general history of 

access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 

1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.

However, “while protecting the public’s interest in access to the courts, we must remain 

mindful of the parties’ right to access those same courts upon terms which will not unduly harm 

their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed. 

Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the 

merits of a case” therefore 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.”). Parties moving 

to seal the documents attached to such motions must meet the lower “good cause” standard of 

Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This 

standard requires a “particularized showing,” id., 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); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by 

specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 

966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during discovery 

may reflect the court’s previous determination that good cause exists to keep the documents 

sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows the parties 

to designate confidential documents does not provide sufficient judicial scrutiny to determine 

whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A) (“Reference 

to a stipulation or protective order that allows a party to designate certain documents as 

confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).

In addition to making particularized showings of good cause, parties moving to seal 

documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 

79-5(b), a sealing order is appropriate only upon a request that establishes the document is 

“sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under 
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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and 

must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requiresthe 

submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable 

material” which “lists in table format each document or portion thereof that is sought to be 

sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “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)(d). “Within 4 days of the filing of the Administrative 

Motion to File Under Seal, the Designating 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).

II. DISCUSSION

Because a motion to continue deadlines is not dispositive, only good cause is required to 

justify sealing. Plaintiff opposes sealing all of the information, but it has filed the instant motion 

pursuant to the local rules because Defendant has designated the information confidential. See 

Civ. L.R. 79-5. Defendant responds via declaration by seeking to seal a narrow subset of the 

information Plaintiff moves to seal.

Defendant also seeks through its declaration to seal additional documents not included in 

Plaintiff’s motion. To seal such documents, Defendant must independently move to seal them; a 

declaration alone is insufficient, as the Court cannot rule on a declaration. Defendant thus must 

file unredacted versions of these documents in the public record no earlier than 4 days and no later 

than 10 days from the date of this order.

The Court’s rulings on Plaintiff’s sealing requests are set forth in the table below:

ECF 

No.

Document To Be 

Sealed Results Reasoning

52-4 Plaintiff’s Motion to 

Continue ClassCertification ExpertWitness Designation 

Deadlines

1:7–8 – DENIED

3:25–27 – DENIED

4:9–12 – DENIED

4:17–19 – DENIED

4:25–28 – DENIED

5:2–9 – DENIED

5:26–28 – DENIED

Defendant seeks to seal only pages 

3:25–27, 4:9–12, 4:25–28, and 

5:26–28 of Plaintiff’s motion. See 

Thompson Decl. ISO Mot. ¶ 19, 

ECF 56-2. But none of these 

excerpts disclose details contained 

in the limited portion of the 

deposition of Niwat Limvanitcharat 

that Defendant seeks to seal—

namely, how queries are run or how 

Defendant supports its servers. As 
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such, as to these portions, the 

motion is denied.

The remainder is denied because 

Defendant, the designating party, 

has not filed a declaration in support 

of the sealing. Civ. L.R. 79-5(e).

Plaintiff is ORDERED to file a 

version of this document in the 

public record no earlier than 4 days 

and no later than 10 days from the 

date of this order.

52-6 Declaration of David 

Zelenski in Support 

of Plaintiff’s Motion 

to Continue Class-

Certification Expert-

Witness Designation 

Deadlines

5:12–13– DENIED

5:21–24 – DENIED

5:26–27 – DENIED

5:28–6:10– DENIED

6:11– DENIED

6:14– DENIED

6:21– DENIED

Defendant seeks to seal only pages 

5:26–27 and 5:28–6:10 of the 

Zelenski Declaration in support of 

Plaintiff’s motion. See Thompson 

Decl. ¶ 19. But none of these 

excerpts disclose details contained 

in the limited portion of the 

deposition of Niwat Limvanitcharat 

that Defendant seeks to seal—

namely, how queries are run or how 

Defendant supports its servers. As 

such, as to these portions, the 

motion is denied.

The remainder is denied because 

Defendant, the designating party, 

has not filed a declaration in support 

of the sealing. Civ. L.R. 79-5(e).

Plaintiff is ORDERED to file a 

version of this document in the 

public record no earlier than 4 days 

and no later than 10 days from the 

date of this order.

52-8 Deposition of Niwat 

Limvanitcharat–

Exhibit 7 to the 

Declaration of David 

Zelenski in Support 

of Plaintiff’s Motion 

to Continue Class-

Certification Expert-

Witness Designation 

Deadlines

Entire transcript–

DENIED

19:1–7 – MOOT

92:8–93:23–

GRANTED

Good cause exists to seal lines 

92:8–93:23 because the pages 

disclose confidential, sensitive 

business information regarding how 

Defendant runs queries in its 

database, as well as the software 

product Defendant uses to support 

its servers. See Limvanitcharat 

Decl. ISO Mot. ¶ 6, ECF-56-4. 

Defendant keeps this information 

confidential, and release of such 

information could expose Defendant 

to cyber security threats. See id. 

This request is also narrowly 
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tailored to sealable information 

only.

Plaintiff also seeks to seal lines 

19:1–7, which Defendant supports,

but the excerpts of the transcript 

Plaintiff submitted do not actually 

contain this page. For this reason, 

the request is MOOT.

The remainder is denied because 

Defendant, the designating party, 

has not filed a declaration in support 

of the sealing. Civ. L.R. 79-5(e).

Plaintiff is ORDERED to file a 

version of this document in the 

public record with only the sealable 

information redacted no earlier than 

4 days and no later than 10 days 

from the date of this order.

III. ORDER

Plaintiff’s motion is GRANTED as to lines 92:8–93:23 of Exhibit 7 to the Declaration of 

David Zelenski in Support of Plaintiff’s Motion to Continue Class-Certification Expert-Witness 

Designation Deadlines. Plaintiff’s motion is DENIED as to the remainder. Plaintiff is 

ORDERED to file an unredacted version of these documents in the public record with only the 

sealable information redacted no earlier than 4 days and no later than 10 days from the date of this 

order.

Defendant’s additional requests to seal made via declaration are insufficient. Defendant 

thus must file unredacted versions of these documents in the public record no earlier than 4 days 

and no later than 10 days from the date of this order.

IT IS SO ORDERED.

Dated: October 19, 2018

______________________________________

BETH LABSON FREEMAN

United States District Judge