1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FIRSTFACE CO., LTD., Case No. 18-cv-02245-JD

8 Plaintiff, ORDER RE MOTIONS TO SEAL v. 9

10 APPLE, INC., Defendant. 11

12 13 The Court has addressed the standards for sealing requests in conjunction with case filings, 14 see In re Google Play Store Antitrust Litigation,

(N.D. Cal. 2021), and that 15 decision is incorporated here. In pertinent summary, “judicial records are public documents 16 almost by definition, and the public is entitled to access by default.”

at 1107 (quoting 17 Kamakana v. City and County of Honolulu,

(9th Cir. 2006); see also Center 18 for Auto Safety v. Chrysler Group, LLC,

(9th Cir. 2016) (when considering a 19 request to seal, “we start with a strong presumption in favor of access to court records.”) 20 (quotation omitted)). The party seeking to seal a document bears the burden of articulating 21 “compelling reasons supported by specific factual findings that outweigh the general history of 22 access and the public policies favoring disclosure.”

(quotation and citation omitted). General 23 assertions of potential competitive or commercial harm are not enough to establish good cause for 24 sealing court records, and the “fact that the parties may have designated a document as 25 confidential under a stipulated protective order is also not enough to justify sealing.”

(citation 26 omitted). 27 Defendant Apple and plaintiff Firstface filed sealing motions in connection with the 1 5, Firstface filed a notice of sealing for information that Apple designated confidential, Dkt. No. 2 184, and Apple filed a declaration to state why the information should be sealed. Dkt. No. 186. 3 Apple says portions of the motion to strike briefing should be redacted because they 4 contain details about the personal and medical information of an Apple employee. See Dkt. No. 5 180, 186. In support of the proposed redactions, Apple submitted a declaration from its Discovery 6 Manager who says that the employee information is confidential and has not been disclosed in 7 public filings. Dkt. No. 180-2 ¶¶ 5-6. Apple has met its burden for a subset of the information it 8 seeks to redact, and the specific sealing determination are stated in the attached chart. See Ex. A. 9 The Court will seal the portions of the documents that directly or indirectly identify the 10 employee, who will not be a witness in the case, and the medical information. See Dkt. No. 184-3. 11 Apple has not met its burden for sealing the information about when Apple learned of the 12 employee’s medical condition, the documents it collected from the employee, and the substitution 13 of another witness. See Dkt. Nos. 180-4, 180-5. 14 Apple and Firstface also filed motions to seal in connection with a discovery letter and the 15 motion to amend infringement contentions. Dkt. Nos. 152, 156, 175. Firstface filed a notice of 16 sealing for information Apple designated confidential, Dkt. No. 156, and Apple filed a declaration 17 to state why the information should be sealed. Dkt. No. 159. 18 Apple says portions of its opposition to the motion to amend infringement contentions 19 should be redacted because they contain “highly confidential descriptions of the functionality of 20 Apple’s Touch ID and Apple’s proprietary implementation of that functionality, including in 21 Apple’s proprietary source code.” Dkt. No. 152 at 1. Apple says that disclosure of this 22 information would cause competitive harm by providing Apple’s competitors with insight into the 23 “proprietary implementation of the functionality of Apple’s Touch ID, including how Apple 24 implements this functionality in its source code.” Id. at 2. Apple also says that portions of a 25 discovery dispute letter should be redacted because they contain “non-public and proprietary 26 market research and consumer use data, including customer surveys, that contain market analyses 27 of Apple’s product and product features.” Dkt. No. 175 at 2. Disclosure of this information is 1 consumer survey and usage data. Id. In support of the proposed redactions, Apple submitted 2 || declarations from its Discovery Manager. Dkt. No. 152-2; Dkt. No. 159 4] 4; Dkt. No. 176. 3 Apple has not met its burden of stating “a specific factual demonstration of a compelling 4 || reason” for sealing. See In re Google Antitrust Litigation, 556 F. Supp. 3d at 1107-08. The 5 declarations submitted in support of sealing merely repeat the conclusory assertions made in the 6 || motions to seal. Dkt. No. 152-2 {fj 5-6, 8-9; Dkt. No. 176 4] 5-6. Apple has not demonstrated 7 || that statements that Touch ID requires “the additional user input of the user’s human flesh,” 8 constitute proprietary information that could cause competitive harm if disclosed. See, e.g., Dkt. 9 No. 152-3 at 4-5. Nor has it demonstrated that disclosure of generic descriptions such as 10 || “showing customer use of Touch ID vs. other features” and “buyer surveys discussing usage” or 11 disclosure of metrics related to iPhone SE and Touch ID use could cause competitive harm. See 12 || Dkt. No. 175-3 at 1-2. Consequently, sealing is denied for Dkt. Nos. 152, 156, and 175. 13 Sealing is also denied for Dkt. Nos. 142 and 166 because the designating parties stated that 14 they do not seek to seal the documents. Dkt. Nos. 150, 172. 3 15 For Dkt. No. 125, the parties are directed to file a single, joint motion to seal that is revised a 16 || in accordance with this order by November 23, 2022. Unreasonable sealing requests may be 3 17 sanctioned. Dkt. No. 125 is terminated without prejudice. 18 The parties are directed to file revised redacted versions of Dkt. Nos. 180-4, 180-5, and 19 unredacted versions of the documents for which sealing is denied, within seven court days of this 20 || order. Civil L.R. 79-5. 21 IT IS SO ORDERED. 22 Dated: November 2, 2022 23 24 JAMES ATO 25 United Yates District Judge 26 27 28

1 EXHIBIT A TO ORDER RE MOTIONS TO SEAL 2 Document Information sought Proffered Reason for Ruling to be sealed Sealing 3 Opposition to Highlighted portions Contains confidential Granted in part. The 4 Motion to on pages 1-9. and personal medical employee’s name, Strike. Dkt. information. Dkt. No. identifying information, 5 No. 180-4. 180-2 ¶¶ 5-6. and medical information on 6 pages 1-9 may be redacted because it discloses 7 confidential and personal medical information. 8 Denied for all other 9 proposed redactions. 10 Dawson Highlighted portions Contains confidential Granted in part. The 11 Declaration in on pages 1-2. and personal medical employee’s name, Support of information. Dkt. No. identifying information, 12 Opposition to 180-2 ¶¶ 5-6. and medical information on Motion to pages 1-2 may be redacted 13 Strike. Dkt. because it discloses No. 180-5 confidential and personal 14 medical information. 15 Denied for all other 16 proposed redactions. 17 Reply in Highlighted portions Contains confidential Granted. The employee’s Support of on pages 2-6. and personal medical name and medical 18 Motion to information. Dkt. No. information on pages 2-6 19 Strike. Dkt. 180-2 ¶¶ 5-6 may be redacted because it No. 184-3. discloses confidential and 20 personal medical information. 21

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