Skillz Platform Inc. v. AviaGames Inc.

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION SKILLZ PLATFORM INC., Case No. 21-cv-02436-BLF 8 Plaintiff, ORDER RE: MOTION TO FILE 9 v. UNDER SEAL 10 AVIAGAMES INC., [Re: ECF No. 349] 11 Defendant.

13 Before the Court is Defendant AviaGames Inc. Administrative Motion to File Under Seal the transcript of the October 5, 2023 hearing. ECF No. 349. Plaintiff Skillz Platform Inc. opposes the motion. ECF No. 374. The Court has considered the motion and opposition, and its ruling is laid out below.

17 I. LEGAL STANDARD 18 “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 21 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are “more than tangentially related to the merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 1097.

26 In addition, in this district, all parties requesting sealing must comply with Civil Local Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 requires the moving party to provide “evidentiary support from declarations where necessary.”

4 Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

6 II. DISCUSSION 7 The Court follows other courts in this district and finds that the “good cause” standard applies to sealing the hearing, at which the Court heard argument on the emergency motion for a protective order. See In re Google RTB Consumer Priv. Litig., No. 21CV02155YGRVKD, 2023 10 WL 5667891, at *1 (N.D. Cal. Aug. 21, 2023) (applying the “good cause” standard to sealing portions of a discovery hearing transcript); Oracle Am., Inc. v. Google Inc., No. 10CV03561WHADMR, 2016 WL 11810331, at *2 (N.D. Cal. Mar. 21, 2016) (same).

13 AviaGames filed an administrative motion to file under seal portions of the October 5, 2023 hearing. ECF No. 349. AviaGames argues that compelling reasons exist to seal portions of the transcript because those portions of the transcript discuss AviaGames’ source code and AviaGames business practices and strategy. Id. at 2. AviaGames further argues that its request is “narrowly tailored to preventing harm and/or disclosure of the confidential business information of AviaGames.” Id. at 4. Skillz opposes the motion, arguing that the proceeding took place in open court, the proposed redactions do not address AviaGames’ source code, and the information discussed at the hearing is already on the public docket. ECF No. 374 at 1–2.

21 Good cause exists to seal trade secrets. Kamakana, 447 F.3d at 1179. Confidential source code and confidential business information that would harm a party’s competitive standing meet the compelling reasons standard, and thus also meet the “less exacting” good cause standard. See Ctr. for Auto Safety, 809 F.3d at 1097; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11- CV-01846-LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012) (finding that “[c]onfidential source code clearly meets the definition of a trade secret,” and meets the compelling reasons standard); Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 information relating to the operations of both Plaintiff and Defendant”); Fed. Trade Comm’n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D. Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may harm [a party’s] or third parties’ competitive standing and divulges terms of confidential contracts, contract negotiations, or trade secrets”); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding sealable “business information that might harm a litigant’s competitive standing”).

7 Although some of what AviaGames seeks to seal satisfies the good cause standard, the Court finds that AviaGames’ requested redactions are not narrowly tailored. For example, there is good cause to seal specific evidence regarding the functionality of AviaGames’ products. See e.g., ECF No. 349-1 at 36:6–7, 10–11; see also Jam Cellars, 2012 WL 6115623, at *2 (finding “confidential business and proprietary information” sealable). However, as Skillz correctly notes, much of what AviaGames seeks to seal does not disclose its source code. Instead, AviaGames largely seeks to seal generalized allegations about its use of bots. Not only are these generalized allegations already on the public docket, see, e.g., ECF No. 301, but AviaGames fails to provide specific arguments to show that there is good cause to overcome the general presumption of public access to opinions, hearings, and court filings with respect to its proposed redactions. See Google RTB, 2023 WL 5667891, at *1 (acknowledging the presumption of public access and finding that generic assertions of harm are insufficient, even where the court had sealed similar information in the past) (citing Forbes Media LLC v. United States, 61 F.4th 1072, 1077 (9th Cir. 2023)).

20 The Court rules as follows: ECF No. Document Portions to Seal Ruling 22 349-1 Transcript of Highlighted DENIED as not narrowly Proceedings from the Portions tailored.

23 October 5, 2023 Hearing The denial of AviaGames’ motion is WITHOUT PREJUDICE to AviaGames filing renewed motion with more narrow redactions within 10 days of the date of this Order.

III. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendant AviaGames Inc. Administrative Motion to File Under Seal the transcript of the October 5, 2023 hearing (ECF No. || 349) is DENIED WITHOUT PREJUDICE. AviaGames may file a renewed motion to seal with |} more narrowly tailored redactions within 10 days of the date of this Order.

5 Dated: October 23, 2023 BETH LABSON FREEMAN 7 United States District Judge a 12

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