1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 AGIS SOFTWARE DEVELOPMENT LLC, Case No. 22-cv-04826-BLF

8 Plaintiff, ORDER GRANTING 9 v. ADMINISTRATIVE MOTION TO SEAL 10 GOOGLE LLC, [Re: ECF No. 451] 11 Defendant.

12 13 On June 14, 2023, AGIS filed an administrative motion to seal portions of its opposition to 14 Defendants’ Motion for Summary Judgment and related exhibits. ECF No. 451. The Court 15 denied AGIS’s motion and directed AGIS to refile by September 4, 2023. See ECF No. 460. 16 AGIS did not refile. Upon further consideration, the Court recognizes that its order (ECF No. 17 460) may have been unclear. Thus, in the interest of efficiency, the Court reconsiders its prior 18 ruling and GRANTS AGIS’s Administrative Motion to Seal, ECF No. 451. 19 I. LEGAL STANDARD 20 “Historically, courts have recognized a ‘general right to inspect and copy public records 21 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 22 Honolulu,

, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435

, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 24 presumption in favor of access’ is the starting point.”

(quoting Foltz v. State Farm Mut. Auto. 25 Ins. Co.,

(9th Cir. 2003)). Parties seeking to seal judicial records relating to 26 motions that are “more than tangentially related to the underlying cause of action” bear the burden 27 of overcoming the presumption with “compelling reasons” that outweigh the general history of 1 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 2 Records attached to motions that are “not related, or only tangentially related, to the merits 3 of a case,” however, are not subject to the strong presumption of access. Ctr. for Auto Safety, 809 4 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need for access to 5 court records attached only to non-dispositive motions because those documents are often 6 unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving to seal 7 the documents attached to such motions must meet the lower “good cause” standard of Rule 8 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This standard 9 requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 10 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,

, 11 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 12 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 13 Co.,

(9th Cir. 1992). 14 II. DISCUSSION 15 The documents at issue in AGIS’s motion to seal are associated with AGIS’s Opposition to 16 Defendant’s Motion for Summary Judgment. These documents concern infringement and 17 invalidity of the patents at issue in the case. These issues are “more than tangentially related to the 18 merits of [the] case” and therefore the parties must provide “compelling reasons” for maintaining 19 the documents under seal. See Ctr. for Auto Safety, 809 F.3d at 1101; see also Finjan, Inc. v. 20 Juniper Network, Inc., No. C 17-5659 WHA,

, at *1 (N.D. Cal. Feb. 10, 2021). 21 AGIS argues that compelling reasons exist to seal the material it seeks to seal that disclose: 22 “source code and technical information regarding the Accused Products that have been designated 23 highly confidential by Defendants”; “confidential communications regarding settlement 24 discussions and/or negotiations”; “confidential business information”; and “technical functionality 25 of the Accused Products.” ECF No. 451. Defendant Google does not object to the sealing of any 26 of the documents in its response. ECF No. 454. 27 The Court finds that compelling reasons exist to seal the identified portions of each 1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant's] products” sealable under 2 “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 3

, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found “confidential 4 business information” in the form of “business strategies” sealable under the compelling reasons 5 standard.). 6 Accordingly, AGIS’s Administrative Motion (ECF No. 451) is GRANTED. The Court 7 finds that AGIS’s request is not narrowly tailored because it seeks to seal several documents in 8 their entirety. Furthermore, the Court notes that AGIS should have filed separate motions 9 regarding sealing of its own material and Defendants’ material. The Court will overlook the 10 failure for this motion. However, future failures to comply with the standing order may result in 11 denial of a motion to seal with prejudice.

12 ECF No. Document Portion(s) to Seal Ruling 13 ECF Plaintiff AGIS Highlighted Portions at: Granted, as the highlighted portions 451-3 Software • Page 4: lines 8, 10, disclose information from Exhibits A- 14 Development 14; J, Z-DD, TT-WW, and BBB-DDD LLC’s Response • Page 7: lines 5-8, 15- to AGIS’s Response in Opposition to 15 in Opposition 17; Defendants’ Motion for Summary 16 to Defendants’ • Page 10: lines 10-13; Judgment (Dkt. 434), which AGIS Motion for • Page 11: lines 18-21, and/or Defendants have designated as 17 Summary • 22-24; highly confidential / RESTRICTED Judgment ATTORNEYS’ EYES ONLY. These • Page 12: lines 14-18; 18 highlighted portions contain highly • Page 13: line 26; confidential source code, settlement 19 • Page 14: lines 6-8, discussions and/or negotiations, and 10; testimony from party witnesses. 20 • Page 15: lines 16-27;

• Page 18: lines 20-26; 21 Furthermore, revealing the identity and • Page 20: lines 6-8, nature of settlement discussions and/or 22 15-20; negotiations with AGIS would be • Page 24: lines 10, harmful if its contents became known to 23 12-13, 18-24, 27-28; competitors of the parties, would cause • Page 25: lines 3, 12- parties harm. 24 13, 17-20. 25 Finally, disclosure of source code of Defendants that Defendants have 26 designated highly confidential, and testimony from party witnesses 27 regarding the functionality of the designated highly confidential by 1 Defendants would be harmful to 2 Defendants, and if its contents became known to competitors of Defendants, 3 would cause competitive harm. ECF Ex. A to AGIS Entire Document Granted, as this document discloses 4 451-4 Software’s source code and technical information Response in regarding the Accused Products that 5 Opposition to have been designated highly 6 Defendants’ confidential by Defendants. Motion for 7 Summary Judgment 8 ECF Ex. B to AGIS Entire Document Granted, as this document discloses 451-5 Software’s source code and technical information 9 Response in regarding the Accused Products that 10 Opposition to have been designated highly Defendants’ confidential by Defendants. 11 Motion for Summary 12 Judgment 13 ECF Ex. C to AGIS Entire Document Granted, as this document discloses 451-6 Software’s excerpts of the deposition testimony of 14 Response in Joseph C. McAlexander III, the Opposition to technical expert of AGIS Software. Mr. 15 Defendants’ McAlexander’s testimony includes Motion for information regarding the functionality 16 Summary of the Accused Products, and contents 17 Judgment of documents and source code of the Accused Products which have been 18 designated highly confidential by Defendants. 19 ECF Ex. D to AGIS Entire Document Granted, as this document discloses 451-7 Software’s source code and technical information 20 Response in regarding the Accused Products that 21 Opposition to have been designated highly Defendants’ confidential by Defendants. 22 Motion for Summary 23 Judgment ECF Ex. E to AGIS Entire Document Granted, as this document discloses 24 451-8 Software’s source code and technical information 25 Response in regarding the Accused Products that Opposition to have been designated highly 26 Defendants’ confidential by Defendants. Motion for 27 Summary ECF Ex. F to AGIS Entire Document Granted, as this document discloses 1 451-9 Software’s source code and technical information 2 Response in regarding the Accused Products that Opposition to have been designated highly 3 Defendants’ confidential by Defendants. Motion for 4 Summary Judgment 5 ECF Ex. G to AGIS Entire Document Granted, as this document discloses 6 451-10 Software’s source code and technical information Response in regarding the Accused Products that 7 Opposition to have been designated highly Defendants’ confidential by Defendants. 8 Motion for Summary 9 Judgment 10 ECF Ex. H to AGIS Entire Document Granted, as this document discloses 451-11 Software’s source code and technical information 11 Response in regarding the Accused Products that Opposition to have been designated highly 12 Defendants’ confidential by Defendants. Motion for 13 Summary 14 Judgment ECF Ex. I to AGIS Entire Document Granted, as this document discloses 15 451-12 Software’s source code and technical information Response in regarding the Accused Products that 16 Opposition to have been designated highly 17 Defendants’ confidential by Defendants. Motion for 18 Summary Judgment 19 ECF Ex. J to AGIS Entire Document Granted, as this document discloses 451-13 Software’s excerpts of the deposition testimony of 20 Response in Yuval Shmuelevitz, the corporate 21 Opposition to witness of Waze Mobile Limited. Mr. Defendants’ Shmuelevitz’s testimony includes 22 Motion for technical information regarding the Summary functionality of the Waze Accused 23 Judgment Products, and contents of documents and source code of the Waze Accused 24 Products, which Defendants have 25 designated highly confidential. ECF Ex. Z to AGIS Entire Document Granted, as this document discloses 26 451-14 Software’s confidential communications regarding Response in settlement discussions and/or 27 Opposition to negotiations between AGIS Software Motion for nature of settlement discussions and/or 1 Summary negotiations with AGIS would be 2 Judgment harmful if its contents became known to competitors of the parties, would cause 3 parties harm, and also violate the Fed. R. Evid. 408. See Powertech Tech., Inc. 4 v. Tessera, Inc.,

, at *19 (N.D.Cal. Apr. 15, 2013) (granting 5 a motion to seal a draft license 6 agreement with a third party). Rubino Decl. ¶ 4. 7 ECF Ex. AA to AGIS Entire Document Granted, as this document discloses 451-15 Software’s confidential business information 8 Response in regarding third- party Advanced Opposition to Ground Information Systems’ product, 9 Defendants’ LifeRing. Disclosure of this 10 Motion for confidential business information Summary would be harmful to Advanced Ground 11 Judgment Information Systems if its contents became known to competitors of the 12 Advanced Ground Information Systems, because it includes 13 confidential technical information. See 14 Powertech Tech., Inc. v. Tessera, Inc.,

, 15 at *19 (N.D.Cal. Apr. 15, 2013) (granting a motion to seal a draft 16 license agreement with a third party). 17 Rubino Decl. ¶ 4. ECF Ex. BB to AGIS Entire Document Granted, as this document discloses 18 451-16 Software’s excerpts of the deposition testimony of Response in Malcolm K. Beyer, Jr., the corporate 19 Opposition to witness of AGIS. Mr. Beyer’s Defendants’ testimony includes information 20 Motion for regarding confidential settlement 21 Summary discussions and/or negotiations Judgment between AGIS Software and Google. 22 Revealing the identity and nature of settlement discussions and/or 23 negotiations with AGIS would be harmful if its contents became known 24 to competitors of the parties, would 25 cause parties harm, and also violate the Fed. R. Evid. 408. See Powertech 26 Tech., Inc. v. Tessera, Inc.,

, at *19 (N.D.Cal. 27 Apr. 15, 2013) (granting a motion to third party). Rubino Decl. ¶ 4. 1 ECF Ex. CC to AGIS Entire Document Granted, as this document discloses 2 451-17 Software’s excerpts of the deposition testimony of Response in Malcolm K. Beyer, Jr., the corporate 3 Opposition to witness of AGIS. Mr. Beyer’s Defendants’ testimony includes information 4 Motion for regarding confidential settlement Summary discussions and/or negotiations 5 Judgment between AGIS Software and Google. 6 Revealing the identity and nature of settlement discussions and/or 7 negotiations with AGIS would be harmful if its contents became known 8 to competitors of the parties, would cause parties harm, and also violate the 9 Fed. R. Evid. 408. See Powertech 10 Tech., Inc. v. Tessera, Inc.,

, at *19 (N.D.Cal. 11 Apr. 15, 2013) (granting a motion to seal a draft license agreement with a 12 third party). Rubino Decl. ¶ 4. ECF Ex. DD to AGIS Entire Document Granted, as this document discloses 13 451-18 Software’s excerpts of the deposition testimony of 14 Response in Malcolm K. Beyer, Jr., the corporate Opposition to witness of AGIS. Mr. Beyer’s 15 Defendants’ testimony includes information Motion for regarding confidential settlement 16 Summary discussions and/or negotiations 17 Judgment between AGIS Software and Google. Revealing the identity and nature of 18 settlement discussions and/or negotiations with AGIS would be 19 harmful if its contents became known to competitors of the parties, would 20 cause parties harm, and also violate the 21 Fed. R. Evid. 408. See Powertech Tech., Inc. v. Tessera, Inc.,

12324116, at *19 (N.D.Cal. Apr. 15, 2013) (granting a motion to 23 seal a draft license agreement with a third party). Rubino Decl. ¶ 4. 24 ECF Ex. TT to AGIS Entire Document Granted, as this document discloses 25 451-19 Software’s excerpts of the deposition testimony of Response in Malcolm K. Beyer, Jr., the corporate 26 Opposition to witness of AGIS. Mr. Beyer’s Defendants’ testimony includes information 27 Motion for regarding confidential settlement Judgment between AGIS Software and Google. 1 Revealing the identity and nature of 2 settlement discussions and/or negotiations with AGIS would be 3 harmful if its contents became known to competitors of the parties, would 4 cause parties harm, and also violate the Fed. R. Evid. 408. See Powertech 5 Tech., Inc. v. Tessera, Inc.,

12324116, at *19 (N.D.Cal. Apr. 15, 2013) (granting a motion to 7 seal a draft license agreement with a third party). Rubino Decl. ¶ 4. 8 ECF Ex. UU to AGIS Entire Document Granted, as this document discloses 451-20 Software’s excerpts of the deposition testimony of 9 Response in Malcolm K. Beyer, Jr., the corporate 10 Opposition to witness of AGIS. Mr. Beyer’s Defendants’ testimony includes information 11 Motion for regarding confidential settlement Summary discussions and/or negotiations 12 Judgment between AGIS Software and Google. Revealing the identity and nature of 13 settlement discussions and/or 14 negotiations with AGIS would be harmful if its contents became known 15 to competitors of the parties, would cause parties harm, and also violate the 16 Fed. R. Evid. 408. See Powertech 17 Tech., Inc. v. Tessera, Inc.,

, at *19 (N.D.Cal. 18 Apr. 15, 2013) (granting a motion to seal a draft license agreement with a 19 third party). Rubino Decl. ¶ 4. ECF Ex. VV to AGIS Entire Document Granted, as this document discloses 20 451-21 Software’s excerpts of the deposition testimony of 21 Response in Malcolm K. Beyer, Jr., the corporate Opposition to witness of AGIS. Mr. Beyer’s 22 Defendants’ testimony includes information Motion for regarding confidential settlement 23 Summary discussions and/or negotiations Judgment between AGIS Software and Google. 24 Revealing the identity and nature of 25 settlement discussions and/or negotiations with AGIS would be 26 harmful if its contents became known to competitors of the parties, would 27 cause parties harm, and also violate the Tech., Inc. v. Tessera, Inc.,

12324116, at *19 (N.D.Cal. 2 Apr. 15, 2013) (granting a motion to seal a draft license agreement with a 3 third party). Rubino Decl. ¶ 4. ECF Ex. WW to Entire Document Granted, as this document discloses 4 451-22 AGIS excerpts of the deposition testimony of Software’s Malcolm K. Beyer, Jr., the corporate 5 Response in witness of AGIS. Mr. Beyer’s 6 Opposition to testimony includes information Defendants’ regarding confidential settlement 7 Motion for discussions and/or negotiations Summary between AGIS Software and Google. 8 Judgment Revealing the identity and nature of settlement discussions and/or 9 negotiations with AGIS would be 10 harmful if its contents became known to competitors of the parties, would 11 cause parties harm, and also violate the Fed. R. Evid. 408. See Powertech 12 Tech., Inc. v. Tessera, Inc.,

, at *19 (N.D.Cal. Apr. 15, 13 2013) (granting a motion to seal a draft 14 license agreement with a third party). Rubino Decl. ¶ 4. 15 ECF Ex. BBB to Entire Document Granted, as this document discloses 451-23 AGIS excerpts of the deposition testimony of 16 Software’s Andrew Lookingbill, the corporate 17 Response in witness of Waze Mobile Limited. Mr. Opposition to Lookingbill’s testimony includes 18 Defendants’ information regarding the corporate Motion for structure and/or identities of 19 Summary employees of Defendants, which Judgment Defendants have designated highly 20 confidential. 21 ECF Ex. CCC to Entire Document Granted, as this document discloses 451-24 AGIS excerpts of the deposition testimony of 22 Software’s Micah Mason, the corporate witness of Response in Defendants. Mr. Mason’s testimony 23 Opposition to includes information regarding the Defendants’ technical functionality of the Accused 24 Motion for Products, and contents of documents 25 Summary and source code of the Accused Judgment Products, which Defendants have 26 designated highly confidential. ECF Ex. DDD to Entire Document Granted, as this document discloses 27 451-25 AGIS excerpts of the deposition testimony of I Response in Defendants. Mr. Secor’s testimony Opposition to includes information regarding the 2 Defendants’ technical functionality of the Accused Motion for Products, and contents of documents 3 Summary and source code of the Accused Judgment Products, which Defendants have 4 designated highly confidential. 5 Il. ORDER 6 For the foregoing reasons, IT IS HEREBY ORDERED that AGIS’s Motion to Seal at ECF 7 |! No. 451 is GRANTED. 8 9 || Dated: September 6, 2023

BETH LABSON FREEMAN 11 United States District Judge 12

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