Workplace Technologies Research, Inc. v. Project Management Institute, Inc.

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA WORKPLACE TECHNOLOGIES Case No.: 18cv1927 JM (MSB) RESEARCH, INC., ORDER ON MOTIONS TO SEAL Plaintiff, v. PROJECT MANAGEMENT INSTITUTE, INC., Defendant.

PROJECT MANAGEMENT INSTITUTE, INC., 18 Counter-Claimant, v. WORKPLACE TECHNOLOGIES RESEARCH, INC., et al., Counter-Defendants.

23 Presently before the court is Plaintiff Workplace Technologies Research, Inc. (“WTRI”) and Defendant Project Management Institute, Inc. (“PMI”)’s “Joint Motion to Seal Documents.” (Doc. No. 166). For the reasons set forth below, the Parties’ Joint Motion is GRANTED IN PART and DENIED IN PART.

27 The Parties previously filed numerous separate Motions to Seal in connection with their Motions for Summary Judgment and Daubert Motions. (Doc. Nos. 125, 130, 133, 141, 147, 159). On July 6, 2021, the court denied the Parties’ motions without prejudice, finding the Parties had failed to provide compelling reasons to justify their sealing requests. (Doc. No. 165 at 3). As it was evident the Parties had not sufficiently met and conferred prior to filing their separate motions, the court directed the Parties to renew their requests in a joint motion. Id. at 5-6. On July 16, 2021, in accordance with the court’s order, the Parties filed the instant Joint Motion to Seal. (Doc. No. 166).

7 Here, the Parties are generally seeking to seal portions of expert reports, deposition transcripts, and other exhibits that contain, reference or discuss non-public business information. Id. at 2-, 9-11. WTRI also seeks to seal its “confidential communications” with a third-party, the National Science Foundation (“NSF”), regarding a funding proposal. Id. at 6. In support of their Joint Motion to Seal, the Parties submitted the declarations of: (1) Dr. Lia DeBello, the CEO, President and Director of Research of WTRI (Doc. No. 166-2); (2) Karen Holloway, a Content Developer at PMI (Doc. No. 166-3); and (3) Christopher Mancus, a Technical Manager for Cloud Integration and Core Services at PMI (Doc. No. 166-4). The Parties have not opposed each other’s sealing requests. (See Doc. No. 166).

17 “Documents containing commercially sensitive information have been held sealable in this Circuit.” Orthopaedic Hosp. v. Encore Med., L.P., No. 19-CV-970 JLS (AHG), 2021 WL 1966121, at *2 (S.D. Cal. Apr. 12, 2021) (collecting cases); see also Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011) (“The publication of materials that could result in infringement upon trade secrets has long been considered a factor that would overcome [the] strong presumption” in favor of public access to court records); In re Incretin-Based Therapies Prod. Liab. Litig., No. 13MD2452 AJB (MDD), 2021 WL 873290, at *1 (S.D. Cal. Mar. 9, 2021) (“Courts have long acknowledged that the risk of competitive harm through disclosure of confidential and proprietary information warrants maintaining documents under seal, even in light of the general presumption of public access to judicial documents.”).

1 “Even where records do not include trade secrets, they may still be sealed where they could be a source of business information that might harm a litigant’s competitive standing.” Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd., No. 3:18-CV-02109- BEN-LL, 2021 WL 1821376, at *2 (S.D. Cal. Mar. 15, 2021) (quotations omitted).

5 Courts have “routinely found” that “non-public financial, pricing, and strategy information could harm litigants’ competitive standing and grant motions to seal such information.” Monster Energy Co. v. Vital Pharms., Inc., No. EDCV181882JGBSHKX, 2019 WL 3099711, at *2 (C.D. Cal. June 17, 2019) (collecting cases).

9 In this case, the court finds the Parties have presented compelling reasons to justify sealing limited portions of the Parties’ exhibits. Specifically, the exhibits contain confidential, non-public information, including alleged trade secrets regarding PMI’s Flows, the identities of customers, pricing information, internal marketing research, and source code. The court is satisfied the Parties have submitted sufficient factual support that they would be placed at a competitive disadvantage if this information was publicly released. (See Doc. Nos. 166-2 at ¶¶ 2-3; 166-3 at ¶ 8; 166-4 at ¶ 6).

16 The court also finds there are compelling reasons to justify sealing confidential communications between WTRI and NSF. As Dr. DiBello states in her declaration, “[i]f such information was released to the public, potential clients could use the reasoning discussed in those communications as a negotiating tool in potential business transactions with WTRI, to WTRI’s competitive disadvantage.” (Doc. No. 166-2 at ¶ 4). Courts have found such communications with third-parties to be sealable where they could “present a threat of competitive harm” if the terms of these negotiations were disclosed publicly. See Aya Healthcare Servs. v. Amn Healthcare, Inc., No. 17cv205-MMA (MDD), 2020 WL 24 1911502, at *3 (S.D. Cal. Apr. 20, 2020) (agreement reflected terms upon which defendant was willing to do business with its associate vendors); Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., No. 12-CV-03844-JST, 2015 WL 984121, at *3 (N.D. Cal. Mar. 4, 2015) (disclosing terms of agreement between Defendant and third- || party “would result in an invasion of the third-party’s privacy” and “put [Defendant] at a || disadvantage in future negotiations for similar agreements.”’).

3 Despite this, as articulated below, the court notes a number of the Parties’ requests 4 still not narrowly tailored. Wasito v. City of San Diego, No. 19-CV-2395 JLS (JLB), 1/2019 WL 6877554, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Ervine v. Warden, 214 F. 6 || Supp. 3d 917, 919 (E.D. Cal. 2016) (“Any order sealing documents should be ‘narrowly || tailored’ to remove from public view only the material that is protected.”).

8 The court has considered and ruled on each of the exhibits the Parties designated || for sealing as set forth in the following table: |||___ Document | Portions | Order il Expert Report of Dr. Ricardo 9] 25-27: 62-70: | GRANTED Valerdi, dated December 11, 78: 81 ||| 2020 (Penner Decl., Ex. 2) 3 Doc. No. 127-1 Excerpts from the Deposition 260:12-263:20 GRANTED ||| Transcript of Ricardo Valerdi, ||| dated April 26, 2021 (Penner Decl., Ex. 3) (Doc. No. || 127-2 ||| Excerpts from the Deposition 38:2-41:2: GRANTED Transcript of Karen Holloway, | 54:1-55:15: ||| dated October 2, 2020 56:13-58:14 ||| (Penner Decl., Ex. 4) (Doc. No. 127-3 ||| Excerpts from the Deposition 359:24: 360:3: GRANTED IN PART and 2] Transcript of Lia DiBello, 346:24-349:18: DENIED IN PART. WTRI’s Ph.D., Vol. II, dated October 6, | 351:11-353:15 request to seal Dr. DiBello’s ||| 2020 (Penner Decl., Ex. 6) testimony on pricing and ||| (Doc. No. 127-5) revenue information (359:24 and 360:3) is GRANTED.

25 PMI’s remaining request to seal testimony “discussing and 26 describing” it’s trade secrets 97 (346:24-349:18: 351:11-353:15) is DENIED as not being 28 narrowly tailored. The portions Document | Portions | Order > of Dr. DiBello’s deposition transcript PMI seeks to seal 3 largely consist of testimony 4 where Dr. DiBello is simply asked if she recognizes a 5 document to which she responds 6 in the negative. PMI has not adequately explained how this is 7 a “discussion” or “description” 8 of its alleged trade secrets.

Excerpts from the Rebuttal 4] 169-170; 175; | GRANTED ||| Expert Report of Dr. Rajeev 180 10 Surati, dated April 7, 2021 (Penner Decl., Ex. 10) (Doc.

11 No. 127-6 Ex. 13) (Lodged 14 ||LEx. 14) (Doc. No. 127-10 PMI00000917 (Penner Decl., Entirety GRANTED ey fe Ex. 17) (Doc. No. 127-13) {|| PM100090670 (Penner Decl., Entirety GRANTED 19 Ex. 19) (Doc. No. 127-15) ||| PMI00061342 (Penner Decl., Entirety GRANTED 51 Ex. 21) (Doc. No. 127-17) ||| Expert Rebuttal Report of Clark | Section F.a GRANTED Aldrich served on April 7, 2021 23 (Patifio Decl., Ex. 1) (Doc. No. ||| 129-1 Expert Report of Mickey A. Page 61, footnote | GRANTED 25 Ferri, Ph.D. served on 339; Page 85, ||| December 11, 2020 (Patifio 4] 105(e) Decl., Ex. 2) (Doc. No. 129-2 ||| served on December 11, 2020 80; Page 27, § 63, Document | Portions | Order eee 129-4) cites to footnote 3 111.

4 ||| Expert Report of Dr. Ricardo §| 25-27; 62-70; | GRANTED Valerdi served on December 11, | 78; 81 || 2020 (Patifio Decl., Ex. 6) (Doc.

6 ||LNo. 129-6 Excerpts from the Deposition 195:19-204:22: GRANTED IN PART and 7 Transcript of Jeremiah Stepan | 276:13-22: DENIED IN PART. PMI seeks g ||| taken on May 6, 2021 (Patifio 295:18-326:1 to seal 295:18-326:1, but the Decl., Ex. 12) (Doc. No. 129- excerpt of Mr. Stepan’s 9 12) deposition transcript submitted 10 to the court does not include pages 301-304 or 313-324. The 11 court, therefore, construes PMI’s 12 request as a request to seal 195:19-204:22; 276:13-22; 13 295:18-300:25; 305:1-312:25; 14 and 325:1-326:1 of the Stepan Deposition Transcript.

16 PMI’s request is GRANTED as to 195:19-204:22; 295:18- 17 300:25: 305:1-312:25: and 18 325:1-326:1. Itis DENIED as to 276:13-22, which is merely a 19 discussion of the number of files 20 on the source code computer, including generic file and 21 directory names. It is not a 22 discussion of the content of the source code itself.

23 ||| Excerpts from the Deposition 99:10-109:12: GRANTED 24 Transcript of Ricardo Valerdi, 185:7-188:25: taken on April 26, 2021 (Patifio | 241:13-248:25 ||| Decl., Ex. 13) (Doc. No. 129- Excerpts from the Deposition 74:11-79:20: GRANTED (= ke 28 taken on March 11, 2021 153:1-155:25 Document | Portions | Order ee 129-15) Rajeev Surati (Bakewell Decl., | 180 {|| Ex. 1) (Doc. No. 131-3 ||| Expert Report of Dr. Ricardo §| 25-27: 62-70: | GRANTED Valerdi served on December 11, | 78; 81 ||| 2020 (Bakewell Decl., Ex. 5) 8 Doc. No. 131-7 Rebuttal Report of Nick Ferrara | Entirety DENIED. Per the court’s prior ||) (Bakewell Decl., Ex. C) (Doc. order (Doc. No. 165), PMI’s ||| No. 138-5) request to seal the entirety of this report, including numerous 1] pages of qualifications and Mr. 12 Ferrara’s CV, is not narrowly tailored.

13 ||| Rebuttal Report of Philip Entirety DENIED. Per the court’s prior ||| Greenspun (Bakewell Decl., order (Doc. No. 165), PMI’s Ex. D) (Doc. No. 138-6) request to seal the entirety of this 15 report, including numerous 16 pages of qualifications, Dr. Greenspun’s CV, and pages of 17 general technical background 18 information, is not narrowly tailored.

19 Expert Report of Ryan LaMotta | 9 20: 25: 79: GRANTED ||| dated December 11, 2020 (King | 82: 91-93; 95-96; Decl., Ex. 1) (Doc. No. 142-3) | 102; Footnote 21 192: § 103: 2 105; 112-114 Attachment 4.1, 23 note (3): 24 Attachment 6.0, note (1) and 25 note (2 Decl., Ex. 2) (Doc. No. 142-4 ||| Deposition Transcript (King 284:9-12; Document | Portions | Order > Decl., Ex. 3) (Doc. No. 142-5) | 284:16-21; 284:25-285:19 ||| Excerpts from the Expert 9 82; 102; GRANTED Report of Ryan LaMotta, dated | Footnote 192 December 11, 2020 (Bakewell ||| Decl., Ex. 23) (Doc. No. 161-4 at 169-175 ||| Excerpts from the Expert 9] 25-27 GRANTED. Paragraph 25 is not g ||| Report of Ricardo Valerdi, included in this excerpt. In dated December 11, 2020 addition, only a portion of ||| (Bakewell Decl., Ex. 33) (Doc. Paragraph 26 appears.

10 ||| No. 161-4 at 207-224) Accordingly, the court construes PMI’s request as one to seal this 11 portion of Paragraph 26 and the 12 entirety of Paragraph 27. This request is GRANTED.

14 The Parties also seek to redact portions of their summary judgment and Daubert || motions, and PMI’s statement of material facts, that quote, cite to, or otherwise rely on |! the exhibits above. (Doc. No. 166 at 7). The court notes however, that the current public 17 versions of these documents have proposed redactions that are not narrowly tailored to || seal only the limited portions of the exhibits set forth above.

19 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART || the Parties’ Joint Motion to Seal.

21 1. Within ten days of the electronic docketing of this Order: 22 a. The Parties are ORDERED to publicly file: (1) revised versions of 23 the Parties’ motions and PMI’s statement of material facts; and (2) 24 revised versions of the the exhibits identified in the table above with 25 only the permitted, limited redactions described above. The Parties’ 26 filings should clearly identify each document and which document it 27 replaces.

1 b. The Parties are further ORDERED to publicly file full, unredacted 2 copies of all other documents previously lodged under seal.

3 2. The Clerk of Court shall FILE the following currently lodged documents 4 under seal: (Doc. Nos. 127; 127-1; 127-2; 127-3; 127-5; 127-6; 127-10; 127- 5 11; 127-13; 127-15; 127-17; 129; 129-1; 129-2; 129-4; 129-6; 129-12; 129- 6 13; 129-15; 131-1; 131-3; 131-7; 138-1; 142-1; 142-3; 142-4; 142-5; 148; 7 161; 161-1; 161-4).

8 IT IS SO ORDERED.

9 DATED: August 10, 2021 JEFFREY T. MILLER United States District Judge