In re: MacBook Keyboard Litigation

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 8 Case No. 5:18-cv-02813-EJD IN RE: MACBOOK KEYBOARD LITIGATION ORDER RE APPLE’S ADMINISTRATIVE MOTIONS TO 10 SEAL PORTIONS OF BRIEFING RE APPLE’S MOTIONS TO EXCLUDE 11 EXPERT OPINIONS 12 Re: Dkt. Nos. 331, 334, 337, 342, 344, 349, 355, 357, 359 14 In connection with Defendant Apple, Inc.’s motions to exclude the opinions of Hal J.

15 Singer, Ph.D., David V. Niebuhr, Ph.D., and Charles M. Curley (Dkt. Nos. 333, 335, 336), Apple seeks to seal portions of its opening briefs and supporting papers. Dkt. Nos. 331, 334, 337. The parties filed similar administrative motions seeking to seal the same or similar material in conjunction with Plaintiffs’ opposition briefs, Apple’s reply briefs, and their supporting documents. Dkt. Nos. 342, 344, 349, 355, 357, 359.

20 This order addresses only the sealing requests in Apple’s motions to seal its opening briefs (Dkt. Nos. 331, 334, 337). For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the request to seal.

I. LEGAL STANDARD 24 “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 27 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a strong presumption in favor of access is the starting point.” Kamakana, 447 F.3d at 1178 (internal quotation marks omitted); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (in considering whether documents should be sealed, courts “start with a strong presumption in favor of access to court records.”).

5 Parties seeking to seal judicial records relating to motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 7 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).

11 In determining whether there are compelling reasons to seal, “courts should consider all relevant factors, including: ‘the public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.” Foltz, 331 F.3d at 1135 (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). Courts must “‘conscientiously balance[ ] the competing interests’ of the public and the party who seeks to keep certain judicial records secret.”

17 Kamakana, 447 F.3d at 1179 (quoting Foltz, 331 F.3d at 1135). After considering these interests, if the court decides to seal certain judicial records, it must “base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.”

20 Hagestad, 49 F.3d at 1434 (citing Valley Broad. Co. v. U.S. Dist. Court for Dist. of Nevada, 798 21 F.2d 1289, 1295 (9th Cir. 1986)). Compelling reasons may exist to seal “trade secrets, marketing strategies, product development plans, detailed product-specific financial information, customer information, internal reports and other such materials that could harm a party’s competitive standing . . . [but] courts should exercise caution not [to] allow these exceptions [to] swallow the strong presumption in favor of disclosure.” In re Apple Inc. Device Performance Litig., No. 5:18- MD-02827-EJD, 2019 WL 1767158, at *2 (N.D. Cal. Apr. 22, 2019).

II. DISCUSSION Apple argues broadly that all of the information it seeks to seal is protectable as a trade secret or is otherwise entitled to protection under the law. Apple organizes the large amount of material it seeks to seal into four specific categories. In keeping with this organization, the Court considers the material sought to be sealed by proffered category, rather than by document.

A. Specific Financial Information Regarding MacBooks Equipped With 6 “Butterfly” Keyboards 7 The first category of information Apple seeks to seal is “financial information . . .

8 including certain sales data, pricing information, and profit margin-related information pertaining to the designs of the “butterfly” keyboards.” Dkt. No. 331 at 2; see also Dkt. No. 334 at 2. This category includes information about the number of units sold, the prices at which various units were sold, the repair rates for various models, and references to the production of profit-margin data. Apple contends that this information, if disclosed, would allow Apple’s competitors to unfairly compete with Apple by using the product-specific financial information in their own forecasting and marketing or to tailor offerings and pricing to undercut Apple. The Court previously granted Apple’s requests to seal some of the same or similar information in this case.

16 See, e.g., Dkt. No. 299.

17 Plaintiffs only oppose sealing estimates of aggregate damages. Dkt. No. 340 at 1. The Court has already ordered that aggregate damages estimates should not be sealed and again denies Apple’s request to seal that information. Dkt. No. 299 at 4:13, 16:5, 16:7.

20 The Court denies in part Apple’s request to seal information under this category as follows: Document Requested Redactions Plaintiffs’ Position Order Name Singer Motion Exhibit 1: Page 3, ¶ 6 Oppose as to lines 3-5 of ¶ 6 Denied as to lines 3-5 26 Merits of ¶ 6 Expert Page 4, fn. 13 Oppose as to last line of fn Denied as to last line of Report of 13 fn.13 Hal J. Singer, Page 17, column 3 of No position Granted Ph.D. (Dkt. Table 3 No. 331-6) Page 19, lines 3-4, 8-9 Oppose as to the number Denied as to Column 3 of ¶ 32; Table 4 after the ≈ sign in ¶ 32 and of Table 4 and the 3 Column 3 of Table 4 number after the ≈ sign in the last line of ¶ 32 4 Page 23, lines 5, 7 of ¶ Oppose as to the number Granted 39; ¶ 40 after the ≈ sign in ¶ 40 Page 24, lines 6-7; Table Oppose as to Column 3 of Denied as to the 6 5 Table 5 number after the ≈ sign in lines 6-7 and 7 Column 3 of Table 5 Page 26, ¶ 44; fn 62 No position Granted Page 28, ¶ 49; fn 68 No position Denied as to ¶ 49 9 Page 29, lines 1, 4; Oppose as to the number Denied as to line 1, the Table 6; ¶ 50; fn. 70 after the ≈ sign in ¶ 50 number after the ≈ sign 10 in ¶ 50, and fn.70 Page 30, Table 7; lines Oppose as to Column 3 of Denied as to Column 3 11 3-5 of ¶ 51; fn. 71 Table 7, lines 3-5 of ¶ 51, of Table 7, lines 3-5 of and the last line of fn. 71 ¶ 51, and the last line of fn.71 13 Page 54, Table A1 Oppose as to the “Aggregate Denied as to Damages” column “Aggregate Damages” 14 column Page 55, Table A2 No position Granted Page 56, Tables A3, A4 No position Granted 16 Page 57, column 3 of No position Granted Table A5 17 Page 58, Table A6 No position Granted Page 60, column 2 of No position Granted 18 Table A7; fn. 73 Page 61, column 2 of No position Granted Table A8 20 Exhibit 2: Page 343, lines 2-3, 14- No position Granted Hal J. Singer 15, 20 21 Deposition Excerpts (Dkt. No. 23 331-8) Exhibit 3: Page 11, lines 17-20, 25, No position Denied as to line 27 24 Merits 27 Rebuttal Page 12, lines 8-9, 15- No position Denied as to lines 9 and 25 Report of 16 16 Denise N. Page 19, line 5 of ¶ 28 No position Granted 26 Martin, 27 Ph.D. (Dkt.

No. 331-10) Exhibit 4: Page 14, line 2 No position Granted Rebuttal Page 16, ¶ 43; fn. 51 No position Granted Expert Exhibit 1 No position Granted Report of Exhibit 2 No position Granted Chen Song, Ph.D. (Dkt.

No. 331-12) Exhibit 14: Page 44, ¶ 81 No position Granted Reply Merits Page 45, Table 1 No position Granted Expert Report of Hal J. Singer, Ph.D. (Dkt.

No. 331-14) 10 Niebuhr Motion 11 Exhibit 4: Page 21, ¶ 39 No position Denied Rebuttal Expert 13 Report of Darran 14 Cairns, Ph.D (Dkt. No. 15 334-12) Curley Motion Exhibit 9: Page 37, ¶ 85 No position Granted 18 Reply Report of Charles 19 M. Curley (Dkt. No. 334-22) B. Apple’s Proprietary Designs of the “Butterfly” Keyboards Apple next seeks to seal information regarding “Apple’s proprietary designs of ‘butterfly’ keyboards, such as specifications of designs at issue in this litigation, and and deposition testimony concerning the details of these designs.” Dkt. No. 334 at 3; see also Dkt. No. 331 at 3; Dkt. No. 337 at 2. Apple argues that the butterfly keyboard design it produced was unique to Apple and that the public disclosure of these designs, and deposition testimony about these designs, could be used by competitors when developing their own products. The Court previously granted Apple’s requests to seal some of the same or similar information in this case. See, e.g., Dkt. Nos. 135, 157, 217, 299.

3 Plaintiffs object specifically to sealing the portion of Mr. Curley’s reply report discussing his CAD analysis. Dkt. No. 340 at 1. The Court finds that this analysis reveals the design of the butterfly keyboard in a manner similar to materials the Court has already ordered sealed. See, e.g., Dkt. No. 135, 217. Accordingly, the Court will deny the request to seal as to that portion of Mr. Curley’s reply report.

8 The Court further denies Apple’s motions as to information available through publicly accessible sources. E.g., Dkt. No. 331-10 ¶ 20 (citing information from deposition and Apple press release). This includes information that the Court has already denied previous requests to seal. Compare, e.g., Dkt. No. 299 at 9 (denying request to seal page 2, lines 17-18 of Plaintiffs’ Motion for Class Certification) with Dkt. No. 334-12 ¶ 16 (seeking to seal quote from page 2, lines 17-18 of Plaintiffs’ Motion for Class Certification). This also includes information that Apple did not previously seek to seal and the Court accordingly did not order sealed, and which has thus become part of the public record. Compare, e.g., Dkt. No. 233-30 at Figure 8 and ¶¶ 57, 62 (Niebuhr class certification report not seeking to seal information concerning particle size or MUK) with Dkt. No. 334-8 at Figure 18 and ¶¶ 39, 42 (Niebuhr merits report seeking to seal identical information regarding particle size and MUK). This also applies to information that Apple did not highlight for redactions in its sealed submission and information that Apple did not expressly request be sealed in its motions, but that Apple nevertheless redacted in its proposed redacted submission. Compare Dkt. No. 233-9 at 1 (Apple’s proposed sealing order requesting sealing only of text on page 8 of Niebuhr’s class certification report) and Dkt. No. 233-30 at 8 (Apple’s unredacted version of Niebuhr class certification report that did not highlight the two images) and Dkt. No. 299 at 5, 9 (Court’s order granting sealing as to other information on page 8 of Niebuhr’s class certification report, but not the two images) with Dkt. No. 334-8 at 23–24 (highlighting the identical two images in Niebuhr’s merits report for redaction).

27 Finally, the Court further denies Apple’s motions as to statements that, divorced from their context, reveal nothing of substance and as to information about hypothetical situations or other companies’ products and designs that are not directly related to Apple’s own products or designs.

3 See, e.g., Dkt. No. 334-6 at 362:9; Dkt. No. 334-20 ¶ 112.

4 The Court denies in part Apple’s request to seal information under this category as follows: Document Requested Redactions Plaintiffs’ Position Order Name Singer Motion Apple’s Page 2, fn. 1 No position Granted 10 Motion to Exclude Opinions of 12 Hal J. Singer, Ph.D. (Dkt.

13 No. 331-4) Exhibit 1: Page 17, columns 1, 2 No position Granted Merits Expert of Table 3 15 Report of Hal Page 57, columns 1, 2 No position Granted J. Singer, of Table A5 16 Ph.D. (Dkt. Page 59, ¶ 53; line 6 of No position Granted No. 331-6) ¶ 54 17 Page 60, column 1 of No position Granted Table A7; fn. 73 Page 61, lines 1-2; No position Granted 19 column 1 of Table A8 Exhibit 3: Page 7, line 20; fn. 10 No position Granted 20 Merits Page 16, ¶ 20 No position Denied Rebuttal Page 19, line 3 of ¶ 28; No position Granted Report of fn. 36 22 Denise N. Page 20, lines 5-12 of ¶ No position Granted Martin, Ph.D. 29; fn. 37 23 (Dkt. No. Page 22, line 7 of ¶ 33 No position Granted 331-10) Page 23, fn. 48 No position Granted Exhibit 4: Page 11, fn. 38 No position Granted 25 Rebuttal Page 12, lines 4, 6 of ¶ No position Granted Expert Report 33; lines 3-4, 7 of ¶ 35; 26 of Chen Song, fn. 40 Ph.D. (Dkt. Page 13, lines 7-10 of ¶ No position Granted 27 No. 331-12) 36; fns. 41-45 Columns 1, 5 of No position Granted Exhibit 1 2 Columns 1, 5 of No position Granted Exhibit 2 Niebuhr Motion Motion to Page 4, lines 26-28 No position Granted Exclude Page 8, lines 7-21, 25- No position Denied as to lines 13, Expert 28 16-19 Opinions of Page 9, line 1 No position Denied D. Niebuhr (Dkt. No. 334-4) Exhibit 1: Page 362, lines 3-6, 9 No position Denied as to line 9 David V. Page 383, lines 21-23 No position Denied as to the last six 10 Niebuhr words of line 23 Deposition 11 Excerpts, dated June 4, 2021 (Dkt.

13 No. 334-6) Exhibit 2: Page 3, ¶¶ 13-14 No position Denied as to the image 14 Report of (including image) David V. Page 4, ¶¶ 15, 18 No position Denied as to lines 2-3 15 Niebuhr, (including image) of ¶ 15 Ph.D., dated Page 5, lines 1-2; ¶¶ No position Denied as to Figures 1 April 13, 2021 19-20; Figures 1-2 and 2 (including Figure 17 (Dkt. No. (including Figure 2 2 title) 334-8) title) 18 Page 7, ¶ 31.b No position Granted Page 8, Figures 3-4; ¶¶ No position Denied as to the scale 31.e, 31.g in Figures 3 and 4 20 Page 11, ¶ 32; Table A No position Denied as to the title of Column 4 of Table A 21 and the code for “Repeat characters” 22 Page 12, column 1 of No position Granted Table A; ¶ 35 Page 14, ¶¶ 38-39 No position Denied as to Figure 181 Apple’s sealing motion does not expressly request to seal Figure 18 of Dr. Niebuhr’s opening merits report, although its unredacted version of the report marks Figure 18 for redaction.

Compare Dkt. No. 334-8 at 14 with Dkt. No. 334-2 at 2 (requesting only to seal ¶ 37 and not Figure 18). and ¶ 39 Page 15, ¶¶ 40-42 No position Denied as to ¶ 41 2 Page 16, ¶ 44 No position Granted Page 17, ¶ 45 No position Granted 3 Page 18, ¶ 47 No position Denied as to the third sentence of ¶ 47 Page 19, lines 1-3; ¶¶ No position Denied as to the first 5 48-50; Figures 31-34 full sentence (covering lines 2-3), ¶¶ 48-50, 6 and Figures 31-34 Page 20, ¶ 51; Figures No position Denied as to line 4 of ¶ 7 35-37 51, Figures 35 and 36, and the scale of Figure 9 Page 21, ¶¶ 52-55; No position Granted Figures 38-39 10 Page 22, ¶¶ 57-59, 61 No position Denied as to line 3 of ¶ Page 23, top images 1- No position Denied as to the second 2; ¶ 62 (including image (excluding bottom image) image title) and bottom 13 image Page 24, top image; ¶¶ No position Denied as to the top 14 63-64 image Appendix 3, page 1, No position Granted column 1 of tables 1-2 16 Appendix 3, page 2, No position Granted column 1 of table 17 Exhibit 3: Page 100, lines 1-2 No position Granted David V. Page 275, line 9 No position Denied 18 Niebuhr Deposition Excerpts, 20 dated September 18, 21 2020 (Dkt.

No. 334-10) Exhibit 4: Page i, headings No position Denied as to heading 23 Rebuttal V.A.4-5, VI.B.1-2 VI.B.2 Expert Report Page 4, fn. 3 No position Granted 24 of Darran Page 5, ¶ 5 No position Granted Cairns, Ph.D Page 6, ¶ 16 No position Denied 25 (Dkt. No. Page 11, ¶ 26; Figure 1 No position Granted 26 334-12) Page 12, ¶¶ 27-28; No position Granted Figure 2 27 Page 13, Figure 3; No position Granted heading 4; ¶ 29 Page 14, ¶ 30; Figures No position Granted 2 4-5 Page 15, Figure 6; ¶¶ No position Granted 3 31-32; heading 5 Page 16, lines 1-5; No position Granted 4 Figures 7-8 Page 17, ¶¶ 33, 35 No position Granted Page 18, line 1; ¶ 36; No position Granted 6 Table 1 Page 19, Table 1 No position Granted 7 Page 20, ¶ 37 No position Granted Page 24, ¶ 47 No position Denied Page 25, line 1-2; ¶ 48 No position Denied 9 (including image) Page 29, ¶ 54 No position Granted 10 Page 32, ¶ 57 No position Granted Page 33, ¶ 60 No position Denied Page 35, ¶¶ 65-67; No position Denied as to the second 12 heading 1 sentence of ¶ 67 Page 36, lines 1-9; No position Granted only as to the 13 Figure 9 design name in lines 2- and 6-8 Page 37, Figures 10-11 No position Granted 15 Page 38, Figures 12; ¶¶ No position Denied as to all of ¶ 68 68-70 except words 5-6 16 Page 39, lines 3, 5; No position Denied as to heading 2 heading 2; ¶¶ 71-72 and the second 17 sentence of ¶ 72 Page 40, line 2; ¶ 73 No position Denied Page 41, top image; ¶¶ No position Granted only as to ¶ 75 19 74-76 Page 42, ¶ 78 No position Granted 20 Page 44, ¶ 81 No position Denied Page 45, ¶ 85 No position Granted Page 46, lines 1-5; ¶ 86 No position Granted 22 Page 47, ¶¶ 88-89 No position Granted Page 48, ¶ 90 No position Denied as to the quoted 23 material in the third sentence Page 49, heading a; ¶¶ No position Denied as to lines 7-8 94-95 of ¶ 95 Page 50, lines 2-6; ¶ 96 No position Granted only as to the 26 second sentence of ¶ 96 Exhibit 5: Page 2, line 7 of ¶ 1 No position Granted 27 Reply Expert Page 8, ¶ 19 No position Denied Report of Page 13, ¶¶ 31-32 No position Denied as to lines 1-3 David of ¶ 32 Niebuhr (Dkt. Page 14, lines 1-13; No position Denied No. 334-14) Figure 4 Exhibit 6: Entire document No position Granted only as to page Apple’s 3, lines 6-26; page 4, Supplemental lines 1, 12-15; Exhibit Responses to D Plaintiffs’ First Set of Interrogatories (Nos. 7- 8), dated March 12, 2021 (Dkt. No. 334-16) Curley Motion Motion to Page 6, lines 23-24, 26- No position Denied as to lines 23- Exclude and 27 24 13 Strike Expert Page 7, lines 6-7, 10-12 Oppose as to lines 6-7 Denied as to lines 6-7 Opinions of Page 10, lines 8-9, 13, No position Denied as to lines 13 14 C. Curley 16-22, 26-28 and 22 (Dkt. No. Page 11, lines 1, 5-7, No position Denied as to line 1 15 337-4) 27-28 Page 12, line 28 No position Granted Exhibit 7: Page 109, line 1 No position Granted 17 Charles M. Page 163, lines 14-18, No position Denied as to the last Curley 25 two words of line 17 18 Deposition through line 18 Excerpts, Page 185, lines 4-5 No position Granted dated June 10, 20 2021 (Dkt. No. 21 334-18) Exhibit 8: Page 23, ¶ 57 No position Granted 22 Report of Page 27, ¶¶ 64-65 No position Granted Charles M. Page 28, ¶ 66 No position Granted Curley Page 29, ¶ 67 No position Granted 24 (Dkt. No. Page 30, ¶ 68 No position Granted 334-20) Page 31, ¶ 70 No position Granted 25 (including image) Page 32, ¶ 73 No position Denied as to the last sentence of ¶ 73 27 Page 33, ¶¶ 74-76 No position Granted (including image) Page 34, top image; ¶¶ No position Granted 2 78-79 Page 35, ¶¶ 80, 82 No position Granted 3 Page 37, ¶¶ 86-87 No position Granted (including image) Page 38, ¶¶ 88-89 No position Granted 5 Page 39, ¶ 90 No position Granted Page 40, ¶¶ 91-94 No position Granted 6 (including image) Page 41, lines 1-2; No position Granted 7 table of ¶ 95 Page 42, ¶¶ 97-100 No position Granted Page 43, lines 2-3; ¶¶ No position Denied as to ¶ 104 9 101-104 Page 44, top table; ¶ No position Granted 10 106 Page 45, ¶¶ 107-08 No position Denied as to the third sentence of ¶ 108 12 Page 46, ¶¶ 109-112 No position Denied as to ¶ 110 and the third sentence of ¶ 13 112 Page 47, line 3; ¶¶ 113- No position Denied as to ¶ 114 and 14 14 the third sentence of ¶ Page 48, ¶¶ 115-17 No position Denied as to the second 16 (including image) sentence of ¶ 116 (excluding the last 17 three words) Page 49, ¶¶ 119-120 No position Denied as to the image (including image) in ¶ 119 19 Page 50, lines 1-3 No position Denied as to words 6- of line 2 20 Page 51, ¶ 122 No position Granted (including image) 21 Page 52, ¶¶ 125-26, No position Granted 128, 130 Page 53, lines 1-2 No position Granted 23 (including image); ¶ 24 Page 54, ¶ 132 No position Granted Page 55, ¶¶ 134-35 No position Granted Page 56, top table No position Granted 26 Page 57, ¶¶ 137.b, 138, No position Denied as to the first 140 four words of ¶ 137.b 27 Page 58, lines 1-5; ¶¶ No position Granted 141-44 Page 59, lines 1-2 No position Granted 2 Page 60, ¶¶ 149, 151 No position Granted Appendix C, page 1, No position Granted 3 table Appendix C, page 2, No position Denied as to the tables 1-2 column and row titles of tables 1-2 Appendix C, page 3, No position Denied as to the 6 tables 1-2 column and row titles of tables 1-2 7 Appendix C, page 4, No position Denied as to the tables 1-2 column and row titles of tables 1-2 9 Appendix C, page 5, No position Denied as to the tables 1-2 column and row titles 10 of tables 1-2 Appendix C, page 6, No position Denied as to the 11 tables 1-2 column and row titles of tables 1-2 Appendix C, page 7, No position Denied as to the 13 tables 1-2 column and row titles of tables 1-2 14 Appendix C, page 8, No position Denied as to the tables 1-2 column and row titles of tables 1-2 16 Appendix C, page 9, No position Denied as to the tables 1-2 column and row titles 17 of tables 1-2 Appendix E, page 1, No position Granted 18 column 1 of table Appendix E, page 2, No position Granted column 1 of table 20 Exhibit 9: Page 4, lines 3-6; ¶¶ 4- No position Granted Reply Report 5 21 of Charles M. Page 6, ¶ 10 No position Granted Curley (Dkt. Page 9, ¶ 18 No position Granted No. 334-22) Page 10, ¶ 21 No position Granted 23 Page 11, ¶ 24 No position Granted Page 12, line 3 No position Granted 24 Page 14, image No position Granted Page 15, image No position Granted Page 16, top image; ¶ No position Denied as to ¶ 31 26 31; text of bottom image 27 Page 17, ¶¶ 33-34; Oppose as to ¶¶ 33-34 Denied as to ¶¶ 33-34 bottom image Page 18, ¶¶ 36-37 No position Denied as to the last 2 (including image) sentence of ¶ 36 Page 19, lines 1-4; ¶¶ No position Granted 3 38-39 Page 20, image; ¶ 40 No position Granted Page 21, image; ¶ 41 No position Granted 5 Page 22, image; ¶ 42 No position Granted Page 23, image; ¶¶ 43- No position Granted 6 44 Page 24, top image; ¶ No position Granted 7 45 (including bottom image) Page 25, ¶¶ 46-47 No position Denied as to lines 1-4 9 (including image) of ¶ 47 Page 26, ¶ 49 No position Granted 10 Page 27, ¶ 54 No position Granted Page 28, line 4 No position Granted Page 29, ¶ 58 No position Denied as to line 2 of ¶ 12 58 Page 31, ¶ 65 No position Granted 13 Page 33, ¶¶ 69, 72-73 No position Granted Page 38, ¶¶ 92-93 No position Granted Page 39, ¶¶ 94-95 No position Granted 15 Page 40, ¶ 98 No position Denied as to the second sentence of ¶ 98 16 Page 41, ¶¶ 100-02 No position Granted Page 42, ¶¶ 103-04 No position Granted 17 Page 43, ¶ 106 No position Granted Page 44, ¶ 107 No position Granted Page 45, ¶¶ 108-110 No position Denied as to words 6-9 19 of line 1, words 4-10 of line 2, and all of line 3 20 of ¶ 109 (citation excluded from word count); words 3-11 of 22 line 5 of ¶ 110.

Page 46, lines 1-2; ¶¶ No position Denied as to line 3 of ¶ 23 111-13 111; words 1-9 of line and sentences 2-4 of 24 ¶ 112 Page 47, lines 1-3; ¶ No position Denied as to ¶ 114 26 Page 48, ¶ 116 No position Denied Page 49, ¶¶ 117-20 No position Denied as to line 1 and 27 words 1-4 and 8-9 of line 2 of ¶ 119 Page 50, lines 1-2; ¶¶ No position Granted 2 121-22 Page 51, lines 10-12 of No position Granted 3 ¶ 125 4 C. Apple’s Repairs and Replacements of “Butterfly” Keyboards 5 Apple next seeks to seal information regarding repair and replacement data and analysis of that data, because this information is “proprietary to Apple, and [its] disclosure would cause Apple competitive harm by giving competitors knowledge of Apple’s business operations, and strategic decision making regarding repairs and replacements, to which they would not otherwise have access.” Dkt. No. 331 at 3–4; Dkt. No. 334 at 4; Dkt. No. 337 at 3–4. The Court previously granted Apple’s requests to seal some of the same or similar information in this case. See, e.g., Dkt. No. 299.

12 The Court denies Apple’s motions as to information about hypothetical situations or other companies’ products and designs that are not directly related to Apple’s repairs and replacements.

14 See, e.g., Dkt. No. 334-22 ¶¶ 82-83.

15 The Court denies in part Apple’s request to seal information under this category as follows: Document Requested Redactions Plaintiffs’ Position Order Name Singer Motion Apple’s Page 2, lines 17-18 No position Granted 21 Motion to Page 3, fn. 2 No position Granted Exclude Page 4, lines 4-5 Oppose as to line 5 Granted Opinions of Page 13, lines 7-9, 16, No position Granted 23 Hal J. Singer, 19, 21; fn. 9 Ph.D. (Dkt. Page 19, lines 13-14 No position Granted 24 No. 331-4) Page 20, lines 12, 15, No position Granted 20, 23-28 Page 21, lines 1, 4-7, 15, No position Granted 26 18-28 Page 22, line 2 No position Granted 27 Exhibit 1: Page 3, ¶ 6 Oppose as to lines 3-5 of ¶ 6 Denied as to lines 3-5 Merits of ¶ 6 Expert Page 4, line 1; fn. 13 Oppose as to the last line of Denied as to last line of Report of fn. 13 fn.13 Hal J. Singer, Page 16, ¶ 29; fns. 44, No position Denied as to line 3 of ¶ Ph.D. (Dkt. 46 29 No. 331-6) Page 17, Table 3 No position Granted Page 18, ¶ 30 No position Granted 5 Page 19, ¶ 32; Table 4 Oppose as to the number Denied as to Column 3 after the ≈ sign in ¶ 32 and of Table 4 and the 6 Column 3 of Table 4 number after the ≈ sign in the last line of ¶ 32 7 Page 23, ¶¶ 39-40 Oppose as to the number Granted after the ≈ sign in ¶ 40 Page 24, lines 6-7; Table Oppose as to Column 3 of Denied as to the 9 5 Table 5 number after the ≈ sign in lines 6-7 and 10 Column 3 of Table 5 Page 30, Table 7; line 6 Oppose as to Column 3 of Denied as to Column 3 11 of ¶ 51; fn. 71 Table 7, lines 3-5 of ¶ 51, of Table 7, lines 3-5 of and the last line of fn. 71 ¶ 51, and the last line of fn.71 13 Page 54, Table A1 Oppose as to the “Aggregate Denied as to Damages” column “Aggregate Damages” 14 column Page 57, Table A5 No position Granted Page 58, Table A6 No position Granted 16 Page 59, ¶¶ 52-54 No position Granted Page 60, line 2; Table No position Granted 17 A7 Page 61, lines 1-5; Table No position Granted A8 19 Exhibit 2: Page 255, lines 5, 15-17, No position Granted Hal J. Singer 24 20 Deposition Excerpts Page 343, lines 2, 15, 20 No position Granted 21 (Dkt. No. 331-8) Exhibit 3: Page 6, fn. 9 No position Granted 23 Merits Page 7, lines 17, 20-23; No position Granted Rebuttal fn. 10 24 Report of Page 11, lines 18-19, 25, No position Denied as to line 27 Denise N. 27 25 Martin, Page 12, lines 8-9, 15- No position Denied as to lines 9 and 26 Ph.D. (Dkt. 16 16 No. 331-10) Page 19, line 6 of ¶ 28 No position Granted 27 Page 20, line 1; ¶ 29; fn. No position Granted Page 21, lines 4-8; ¶ 31 No position Denied as to line 3 of ¶ 2 31 and last three words highlighted on line 12 3 Page 22, line 2; line 11 No position Granted of ¶ 34 4 Page 23, lines 1-2; ¶ 35 No position Granted Exhibit 4: Page i, headings III.a-c No position Granted Rebuttal Page 3, line 6 of ¶ 9; fn. No position Granted Expert 7 Report of Page 4, ¶ 13 No position Granted Chen Song, Page 5, ¶¶ 14-16 No position Granted Ph.D. (Dkt. Page 6, lines 1, 3-5; ¶ No position Granted No. 331-12) 17; fn. 21 9 Page 12, heading a; ¶¶ No position Granted 34-35; fn. 40 10 Page 13, lines 1-2, 5; No position Granted lines 5 of ¶ 36; ¶ 37 Page 14, lines 2, 5; ¶¶ No position Granted 12 38-40 Page 15, ¶¶ 41-42 No position Granted 13 Page 16, Chart 1; ¶ 43 No position Granted Page 17, heading b; ¶¶ No position Granted 14 44-46; fn. 52 Page 18, line 2; ¶¶ 48- No position Granted 49; fn. 55 16 Page 19, lines 1-3; ¶ 50- No position Granted 51; heading c; fn. 60 17 Page 20, ¶¶ 52-54; fns. No position Granted 64-65 Page 21, ¶ 55 No position Granted 19 Page 37, line 6 of ¶ 85 No position Granted Exhibit 1 No position Granted 20 Exhibit 2 No position Granted Exhibit 14: Page i, headings III.A.1- No position Granted Reply Merits 3, III.B.1 22 Expert Page ii, headings No position Granted Report of III.B.2-3 23 Hal J. Singer, Page 17, ¶ 24 No position Granted Ph.D. (Dkt. Page 18, ¶ 27; fn. 72 No position Granted 24 No. 331-14) Page 23, ¶ 38 No position Granted 25 Page 24, fn. 101 No position Granted Page 37, ¶ 64 No position Granted 26 Page 38, line 1; heading No position Granted A.1; ¶ 66; fn. 156 27 Page 39, ¶ 67; heading No position Granted A.2 Page 40, ¶ 70, heading No position Granted 2 A.3 Page 41, ¶¶ 73-74 No position Granted 3 Page 42, heading B.1; ¶ No position Granted Page 43, headings B.2- No position Granted 3; ¶ 78 Exhibit 15: Page 45, lines 7-15 No position Granted Chen Song Deposition Excerpts (Dkt. No. 331-16) Niebuhr Motion Motion to Page 8, line 10-12; 19- No position Granted 11 Exclude 21 Expert Page 9, line 25 No position Granted Opinions of 13 D. Niebuhr (Dkt. No. 14 334-4) Exhibit 4: Page 5, ¶ 5 No position Granted Rebuttal Page 7, ¶19 No position Granted 16 Expert Page 8, line 2 No position Granted Report of Page 9, ¶ 23 No position Granted 17 Darran Page 10, ¶ 24 No position Denied as to line 9 of ¶ Cairns, Ph.D 24 18 (Dkt. No. Page 36, lines 6-9; No position Granted only as to the 334-12) Figure 9 design name in lines 2- and 6-8 20 Page 37, Figures 10-11 No position Granted Page 38, Figures 12 No position Granted 21 Page 39, ¶ 71 No position Granted Page 49, ¶ 93 No position Granted Exhibit 5: Page 5, lines 8-9 of ¶ 10 No position Granted 23 Reply Expert Report of 24 David Niebuhr 25 (Dkt. No. 334-14) 27 Curley Motion Motion to Page 10, lines 16, 19-21 No position Granted Exclude and Page 11, lines 5-7 No position Granted Strike Expert Opinions of C. Curley (Dkt. No. 337-4) Exhibit 9: Page 33, ¶ 73 No position Granted Reply Report Page 34, lines 1-2; ¶¶ No position Granted of Charles 74-77 M. Curley Page 35, ¶ 78 No position Granted (Dkt. No. Page 36, ¶¶ 81-83 No position Denied as to ¶¶ 81-83 334-22) Page 37, ¶¶ 84-88 No position Granted 9 Page 41, lines 2-3 of ¶ No position Granted D. Apple’s Testing Processes and Results Finally, Apple seeks to seal information “regarding Apple’s testing processes and results, including reliability testing and failure analysis, and the results or findings of that testing and analysis . . . .” Dkt. No. 334 at 3–4; Dkt. No. 337 at 3. Apple argues that this information is competitively sensitive because it could be used by competitors when designing or implementing reliability test procedures for their own products. Rather than developing their own procedures through trial and error, and the necessary investment of time and resources, competitors could use Apple’s procedures as a blueprint for their own. The Court previously sealed some of the same or comparable information in prior orders. See, e.g., Dkt. Nos. 135, 299.

The Court denies Apple’s motions to the extent the requests are not clearly related to Apple’s own proprietary testing processes or test results. See, e.g., Dkt. No. 334-10 at 275:9, 279:7-13; Dkt. No. 334-18 at 189:4-5; Dkt. No. 334-22 ¶¶ 33-47. Relatedly, entries below marked with an asterisk denote portions that do not relate to Apple’s testing processes or results, but that Apple apparently miscategorized and did not seek to seal under the proper category. See, e.g., Dkt. No. 334-12 at 20 (relating to Apple’s repair rates but not to Apple’s testing processes and results). The Court will grant the request to seal these miscategorized requests on this occasion because sealing is justified under other categories. However, Apple must take greater care with future sealing requests, as the Court will deny any future miscategorized and unjustified requests.

2 Last, the Court denies Apple’s motions to the extent they request to seal items that are now publicly available because Apple previously failed to request that they be sealed and thus the Court did not order them sealed. Compare, e.g., Dkt. No. 315 at ECF p.5 (sealing only lines 7-9 and 11-13 of page 279 of Niebuhr’s deposition excerpts) with Dkt. No. 334-2 at ECF p.3 (requesting to seal lines 1 and 7-13 of Niebuhr’s deposition excerpts). The Court also denies inconsistent requests to seal certain information—for example, seeking to seal quotations from an underlying document that Apple did not also seek to seal. Compare, e.g., Dkt. No. 334-12 ¶ 61 (seeking to seal Cairns rebuttal report quoting ¶ 33 of Niebuhr’s merits opening report) with Dkt.

10 No. 334-8 ¶ 33 (not seeking to seal ¶ 33 of Niebuhr’s merits opening report).

11 The Court denies in part Apple’s request to seal information under this category as follows: Document Requested Redactions Plaintiffs’ Position Order Name Niebuhr Motion Motion to Page 9, line 3-4 No position Granted 17 Exclude Expert Opinions of 19 D. Niebuhr (Dkt. No. 20 334-4) Exhibit 1: Page 340, lines 1-18 No position Denied as to lines 2-4 David V. Page 341, lines 7-8, 23- No position Granted 22 Niebuhr 25 Deposition Page 362, lines 3-6, 9 No position Denied as to line 9 23 Excerpts, Page 363, lines 4-5, 22- No position Granted dated June 4, 23 24 2021 (Dkt. Page 383, lines 19-23 No position Denied as to the last six No. 334-6) words of line 23 Exhibit 2: Page 1, ¶ 2 No position Granted 26 Report of Page 6, ¶ 24 No position Granted David V. Page 13, ¶ 37 No position Denied as line 32 and ¶ Niebuhr, 37 Ph.D., dated Page 14, ¶ 39 No position Denied April 13, Page 15, ¶ 41 No position Denied 2021 (Dkt. Page 19, lines 1-3; ¶¶ No position Denied as to the first No. 334-8) 48-50; Figures 31-34 full sentence (covering 4 lines 2-3), ¶¶ 48-50, and Figures 31-34 Page 22, ¶ 61 No position Granted 6 Page 23, top images 1-2; No position Denied as to the second ¶ 62 (including bottom image (excluding 7 image) image title) and bottom image Page 24, top image; ¶¶ No position Denied as to the top 9 63-64 image Exhibit 3: Page 100, lines 1-2 No position Granted 10 David V. Page 275, line 9 No position Denied Niebuhr Page 279, lines 1, 7-13 No position Denied as to line 10 11 Deposition Excerpts, dated 13 September 18, 2020 14 (Dkt. No. 334-10) Exhibit 4: Page 6, ¶ 16 No position Denied 16 Rebuttal Page 10, ¶ 25 No position Granted Expert Page 11, line 1 No position Granted 17 Report of Page 17, ¶¶ 34-35 No position Granted Darran Page 18, line 1; ¶ 36; No position Denied 18 Cairns, Ph.D Table 1 (Dkt. No. Page 19, Table 1 No position Denied 334-12) Page 20, Tables 1-2; ¶ No position Granted* 20 37 Page 22, ¶ 43 No position Granted* 21 Page 24, ¶ 47 No position Denied Page 25, line 1-2; ¶ 48 No position Denied (including image) 23 Page 26, Table 3 No position Denied Page 27, ¶ 51 No position Denied 24 Page 28, lines 1-3; ¶ 52 No position Denied as to lines 1-3; 2 Apple’s sealing motion does not expressly request to seal line 3 of page 13 of Dr. Niebuhr’s opening merits report, although its unredacted version of the report marks line 3 for redaction.

27 Compare Dkt. No. 334-8 at 13 with Dkt. No. 334-2 at 2 (requesting to seal ¶ 37, but not line 3). granted* as to ¶ 52 Page 29, lines 2-3 No position Granted* 2 Page 32, ¶ 58 No position Granted Page 33, ¶ 60 No position Denied 3 Page 34, ¶¶ 61-62 No position Denied Page 41, ¶¶ 74, 76 No position Denied Page 46, lines 1-5; ¶ 86 No position Granted* 5 Page 47, ¶¶ 88-89 No position Granted* Page 48, ¶ 90 No position Granted* 6 Page 49, ¶¶ 94-95 No position Granted* Page 50, lines 2-6; ¶ 96 No position Granted* only as to lines 2-6 and the second sentence of ¶ 96 Exhibit 5: Page 2, ¶¶ 1-2 No position Granted* Reply Expert Page 5, ¶ 11 No position Denied Report of Page 6, lines 1-2; Figure No position Denied 10 David 1 Niebuhr Page 7, ¶ 17 No position Denied (Dkt. No. Page 8, ¶ 20 No position Denied 12 334-14) Page 9, lines 1, 6, 8, 9; No position Denied Figures 2-3; ¶ 21 13 Page 11, ¶ 24 No position Granted Page 12, ¶ 27-28 No position Granted Page 14, lines 1-13; No position Denied 15 Figure 4 Page 15, ¶ 33 No position Granted Curley Motion 18 Motion to Page 5, lines 25-26 No position Granted Exclude and Page 7, line 24 No position Granted 19 Strike Expert Opinions of 20 C. Curley (Dkt. No. 337-4) 22 Exhibit 7: Page 31, lines 3-4 No position Granted Charles M. Page 163, lines 14-18 No position Denied as to the last 23 Curley two words of line 17 Deposition through line 18 24 Excerpts, Page 189, lines 4-5 No position Denied dated June 10, 2021 26 (Dkt. No. 334-18) 27 Exhibit 8: Page 58, ¶ 143 No position Granted Report of Page 43, ¶¶ 101-02 No position Granted Charles M. Page 49, ¶¶ 119-120 No position Denied as to the image Curley (Dkt. (including image) in ¶ 119 No. 334-20) Page 50, lines 1-3 No position Granted Exhibit 9: Page 4, lines 3-6; ¶¶ 4-5 No position Granted Reply Report Page 5, ¶ 9 No position Granted of Charles Page 6, ¶ 10 No position Granted M. Curley Page 7, ¶ 13 No position Granted (Dkt. No. Page 8, lines 1-7; ¶ 14 No position Granted 334-22) Page 9, ¶¶ 15-18 No position Granted Page 10, lines 1-3; ¶ 20 No position Granted Page 14, image No position Denied 8 Page 17, ¶¶ 33-34; Oppose as to ¶¶ 33-34 Denied as to ¶¶ 33-34 bottom image 9 Page 18, ¶¶ 36-37 No position Denied (including image) 10 Page 19, lines 1-4; ¶¶ No position Denied 38-39 Page 20, image; ¶ 40 No position Denied 12 Page 21, image; ¶ 41 No position Denied Page 22, image; ¶ 42 No position Denied 13 Page 23, image; ¶¶ 43- No position Denied Page 24, top image; ¶ 45 No position Denied 15 (including bottom image) 16 Page 25, ¶¶ 46-47 No position Denied (including image) 17 Page 29, ¶ 58 No position Denied Page 33, ¶ 69 No position Denied Page 38, ¶¶ 92-93 No position Denied 19 Page 39, ¶ 94 No position Denied Page 48, ¶ 116 No position Denied 20 Page 51, ¶¶ 125-26 No position Denied as to line 3 and words 1-9 of line 2 of ¶ 125; ¶ 126 III. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the requests to seal.

There are a number of pending administrative motions to seal the same or similar material with respect to the parties’ subsequent briefing on Apple’s motions to exclude expert opinions.

See Dkt. Nos. 342, 344, 349, 355, 357, 359. The Court GRANTS IN PART the remaining administrative motions to seal to the extent that the material sought to be sealed in those motions || is addressed in this Order. The parties shall meet and confer regarding any outstanding material || not addressed by this Order and reassess their proposed redactions in accordance with the Court’s || holdings herein. Given the similarity of the issues discussed in this Order and the subject matter of the outstanding material, the Court expects that this Order will provide substantial guidance to || the Parties regarding what material may be properly filed under seal moving forward.

7 In resolving these motions to seal, the Court is disappointed that Apple chose in its current || motions to present a plethora of requests to seal information that the Court already considered and denied on previous occasions. Apple shall not file any future administrative motions seeking to 10 seal material the Court has already considered and denied. The parties are advised that if any 11 future sealing motions contain a request to seal material the Court has already deemed not 12 sealable, the Court will deny the motion in its entirety.

5 13 By no later than February 14, 2022, the parties shall file a joint consolidated motion to 14 seal, which meets all of the requirements set forth in Civil Local Rule 79-5(d) and details the 15 || parties’ positions on any material still in dispute. By no later than February 14, 2022, the parties 16 shall provide the Court with a stipulated redacted copy of the Court’s January 25, 2022 Order 17 denying Apple’s motions to exclude expert opinions (Dkt. No. 386) that redacts only information 18 that is subject to sealing orders and that the parties still desire to maintain under seal. The Court || will then issue a public redacted version of the January 25, 2022 Order.

20 IT IS SO ORDERED.

21 Dated: January 31, 2022 23 a0.

EDWARD J. DAVILA 24 United States District Judge || Case No.: 5:18-cv-02813-EJD ORDER RE APPLE’S ADMIN. MOTS. TO SEAL DAUBERT MOTS.