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 ON SEALING MOTIONS RE: 9 v. AVIAGAMES MOTIONS IN LIMINE 10 AVIAGAMES INC., [Re: ECF No. 351, 352, 381, 382] 11 Defendant.

13 Before the Court are Defendant AviaGames Inc.’s sealing motions relating to its motions in limine. ECF Nos. 351, 352, 381, 382. The Court has considered the motions, and its rulings are laid out below.

16 I. LEGAL STANDARD 17 “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 20 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.

25 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 document under seal, including an explanation of: (i) the legitimate private or public interests that 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.”

3 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).

5 Further, when a party seeks to seal a document because it has been designated as confidential by another party, the filing party must file an Administrative Motion to Consider Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the party who designated the material as confidential must, within seven days of the motion’s filing, file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 5(f)(3). A designating party’s failure to file a statement or declaration may result in the unsealing of the provisionally sealed document without further notice to the designating party. Id. Any party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4).

14 II. DISCUSSION 15 Because motions in limine seek to exclude evidence from the trial, the Court finds that they are more than tangentially related to the merits of the case and applies the compelling reasons standard. See MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103 WHA, 2022 WL 18 1144634, at *1 (N.D. Cal. Mar. 9, 2022) (“Evidentiary motions such as motions in limine and Daubert motions can be strongly correlative to the merits of a case.”); Space Data Corp. v. Alphabet Inc., No. 16-CV-03260-BLF, 2019 WL 8012584, at *1 (N.D. Cal. July 18, 2019) (applying the compelling reasons standard to motions to seal related to motions in limine); Fed. Trade Comm'n v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 6575544, at *2 (N.D. Cal. Dec. 12, 2018) (same).

24 A. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motions in Limine (ECF No. 351) AviaGames argues that the information it seeks to seal “describes and/or quotes from the Highly Confidential documents produced by AviaGames, including source code printouts, that contain aspects of AviaGames’ business practices and strategy, its products, and source code algorithms.” ECF No. 351 ¶ 3. Skillz did not file an opposition to the motion.

2 Compelling reasons exist to seal trade secrets. Kamakana, 447 F.3d at 1179.

3 “Confidential source code clearly meets the definition of a trade secret,” and it thus meets the compelling reasons standard. See Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846- LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012). And the “compelling reasons” standard is met for confidential business information that would harm a party’s competitive standing. See Jam Cellars, Inc. v. Wine Grp. LLC, No. 19-cv-01878-HSG, 2020 WL 5576346, at *2 (N.D. Cal. Sept. 17, 2020) (finding compelling reasons for “confidential business and proprietary 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”).

15 Although the Court finds compelling reasons to seal some of the information in AviaGames’ motions in limine and its exhibits, the Court finds that there are not compelling reasons to seal entire exhibits. In fact, such broad sealing requests are not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, AviaGames seeks to seal the entirety of four expert reports including the experts’ qualifications, for which there are no compelling reasons to seal.

21 The Court rules as follows: ECF No. Document Portions to Seal Ruling 23 351-1 AviaGames’ Motion in Page 1:8–10 GRANTED as containing Limine 1 confidential business 24 information, the release of which would cause a party competitive 25 harm.

351-2 AviaGames’ Motion in Highlighted GRANTED as containing Limine 2 Portions confidential source code and 27 confidential business information, the release of which harm.

351-3 Ex. 1: Dr. Zagal’s Entire Document DENIED as not narrowly 2 Supplemental Expert tailored.

Report dated October 3 13, 2023 351-4 Ex. 2: Mr. Bergman’s Entire Document DENIED as not narrowly 4 Supplemental Expert tailored.

Report dated October 13, 2023 6 351-5 Ex. 8: Ex. B to Skillz’s Entire Document DENIED as not narrowly August 27, 2021 tailored.

7 Infringement Contentions 351-6 Ex. 9: Ex. B to Skillz’s Entire Document DENIED as not narrowly 9 December 17, 2021 tailored.

Amended Infringement 10 Contentions 351-7 Ex. 10: Dr. Zagal’s Entire Document DENIED as not narrowly 11 Expert Report dated tailored.

May 26, 2023 351-8 Ex. 11: Dr. Zagal’s Entire Document DENIED as not narrowly 13 Supplemental Report tailored. dated June 19, 2023 The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed motion that seeks to seal specified redacted portions of these exhibits. The Court notes that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

B. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether 18 Another Party’s Material Should be Sealed Relating to Its Motions in Limine (ECF No. 352) AviaGames filed an administrative motion to consider whether another party’s material should be sealed in connection with its motions in limine. ECF No. 352. AviaGames identified highlighted portions of its motions in limine and attached exhibits as containing information that Skillz has designated as highly confidential. Id. at 1.

Skillz filed a statement in support of the motion. ECF No. 403. No party has filed an opposition to the statement. Skillz states that the highlighted portions of ECF Nos. 352-1 and 352- and the entirety of ECF Nos. 352-6, 352-7, 352-8, 352-9, 352-12, and 352-14 “contain descriptions of Skillz’s proprietary technology, including explanations of Skillz’s efforts to develop its own products.” Id. at 1. This information includes confidential business information about the development and operation of Skillz’s products, the release of which would cause Skillz to suffer competitive harm. Id. Because Skillz does not seek to seal ECF Nos. 352-2, 352-4, 352- 5, 352-10, 352-11, and 352-13, the Court will DENY AviaGames’ motion with respect to those documents.

5 As noted above, compelling reasons exist to seal trade secrets, which includes confidential source code and confidential business information that, if published, may harm a party’s competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

9 Although the Court finds compelling reasons to seal some of the information that Skillz identifies in AviaGames’ motions in limine and the attached exhibits, the Court does not find compelling reasons to seal certain exhibits in their entirety. Such broad sealing requests are not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, Skillz seeks to seal the entirety of two of Dr. Zagal’s expert reports, including his qualifications, for which there are no compelling reasons to seal.

15 The Court rules as follows: ECF No. Document Portions to Seal Ruling 17 352-1 AviaGames’ Motion in Highlighted GRANTED as containing Limine 1 Portions confidential source code and 18 confidential business information, the release of which 19 would cause a party competitive harm.

352-2 AviaGames’ Motion in Highlighted DENIED because Skillz’s 21 Limine 2 Portions statement did not request sealing.

352-3 AviaGames’ Motion in Highlighted GRANTED as containing 22 Limine 4 Portions confidential source code and confidential business information, the release of which would cause a party competitive harm.

25 352-4 Ex. 1: Dr. Zagal’s Entire Document DENIED because Skillz’s Supplemental Expert statement did not request sealing.

26 Report dated October 13, 2023 352-5 Ex. 2: Mr. Bergman’s Entire Document DENIED because Skillz’s Report dated October 13, 2023 2 352-6 Ex. 4: Entire Document GRANTED as containing SKLZPAT00057289 confidential source code and 3 confidential business information, the release of which 4 would cause a party competitive harm.

352-7 Ex. 5: Entire Document DENIED as not narrowly 6 SKLZPAT00466825 tailored.

352-8 Ex. 6: Entire Document GRANTED as containing 7 SKLZPAT00212701 confidential business information, the release of which would cause a party competitive harm.

352-9 Ex. 7: Entire Document GRANTED as containing 10 SKLZPAT00016164 confidential business information, the release of which 11 would cause a party competitive harm.

352-10 Ex. 8: Ex. B to Skillz’s Entire Document DENIED because Skillz’s 13 August 27, 2021 statement did not request sealing.

Infringement 14 Contentions 352-11 Ex. 9: Ex. B to Skillz’s Entire Document DENIED because Skillz’s 15 December 17, 2021 statement did not request sealing.

Amended Infringement Contentions 17 352-12 Ex. 10: Dr. Zagal’s Entire Document DENIED as not narrowly Expert Report dated tailored.

18 May 26, 2023 352-13 Ex. 11: Dr. Zagal’s Entire Document DENIED because Skillz’s Supplemental Report statement did not request sealing.

20 dated June 19, 2023 352-14 Ex. 12: Dr. Zagal’s Entire Document DENIED as not narrowly 21 deposition transcript tailored.

22 The above denials are WITHOUT PREJUDICE to Skillz filing a renewed statement that seeks to seal specified redacted portions of these exhibits. The Court notes that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

25 C. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should be Sealed Relating to Its Motions in Limine #2 26 and #4 (ECF No. 381) 27 AviaGames filed an administrative motion to consider whether another party’s material identified highlighted portions of its motions in limine and attached exhibits as containing information that Skillz has designated as highly confidential. Id. at 1.

3 Skillz filed a statement in support of the motion. ECF No. 428. No party has filed an opposition to the statement. Skillz states that the highlighted portions of ECF Nos. 381-1 and 381- 2 and the entirety of ECF Nos. 381-3, 381-4, 381-5, 381-6, 381-7, 381-8, 381-9, 381-10, 381-11, 381-12 “contain descriptions of Skillz’s proprietary technology, including explanations of Skillz’s efforts to develop its own products.” Id. at 1. This information includes confidential business information about the development and operation of Skillz’s products, the release of which would cause Skillz to suffer competitive harm. Id. 10 As noted above, compelling reasons exist to seal trade secrets, which includes confidential source code and confidential business information that, if published, may harm a party’s competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

14 As above, the Court finds compelling reasons to seal some of the information that Skillz identifies in AviaGames’ motions in limine #2 and #4 and the attached exhibits, but the Court does not find compelling reasons to seal certain exhibits in their entirety. Such broad sealing requests are not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, Skillz seeks to seal the entirety of two of Dr. Bergman’s expert reports, including his qualifications, for which there are no compelling reasons to seal.

20 The Court rules as follows: ECF No. Document Portions to Seal Ruling 22 381-1 AviaGames’ Motion in Highlighted GRANTED as containing Limine 2 Portions confidential source code and 23 confidential business information, the release of which 24 would cause a party competitive harm.

381-2 AviaGames’ Motion in Highlighted GRANTED as containing 26 Limine 4 Portions confidential business information, the release of which 27 would cause a party competitive of Jim W. Bergman tailored.

381-4 Exhibit 14: Entire Document GRANTED as containing 2 SKLZPAT0005708 confidential business information, the release of which 3 would cause a party competitive harm.

4 381-5 Exhibit 15: Second Entire Document DENIED as not narrowly Supplemental Expert tailored.

Report of Jim Bergman 6 served October 13, 2023 7 381-6 Exhibit 16: Entire Document GRANTED as containing SKILPAT00000798 confidential business information, the release of which would cause a party competitive harm.

10 381-7 Exhibit 19: June 6, Entire Document DENIED as not narrowly 2023 deposition tailored.

11 transcript of Casey Chafkin 381-8 Exhibit 20: Jim Entire Document DENIED as not narrowly 13 Bergman Deposition tailored.

Transcript (excerpted) 14 381-9 Exhibit 21: Andrew Entire Document DENIED as not narrowly Paradise Deposition tailored.

15 Transcript 381-10 Exhibit 22: Opening Entire Document DENIED as not narrowly Expert Report of Jose tailored.

17 P. Zagal Regarding Infringement 18 381-11 Exhibit 23: May 12, Entire Document DENIED as not narrowly 2023 deposition tailored. transcript of Casey 20 Chafkin 381-12 Exhibit 24: Jose Zagal Entire Document DENIED as not narrowly 21 Deposition Transcript tailored. (excerpted) The above denials are WITHOUT PREJUDICE to Skillz filing a renewed statement that seeks to seal specified redacted portions of these exhibits. The Court notes that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

D. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its 26 Motions in Limine #2 and #4 (ECF No. 382) 27 AviaGames argues that the information it seeks to seal “describes and/or quotes from the contain aspects of AviaGames’ business practices and strategy, its products, and source code algorithms.” ECF No. 382 ¶ 3. Skillz did not file an opposition to the motion.

3 As noted above, compelling reasons exist to seal trade secrets, which includes confidential source code and confidential business information that, if published, may harm a party’s competitive standing. See Apple, 2012 WL 6115623, at *2; Jam Cellars, 2020 WL 5576346, at *2; Qualcomm, 2019 WL 95922, at *3; Elec. Arts, 298 F. App’x at 569.

7 As above, the Court finds compelling reasons to seal some of the information in AviaGames’ motions in limine #2 and #4 and the attached exhibits, but the Court finds that there are not compelling reasons to seal entire exhibits. In fact, such broad sealing requests are not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). For example, AviaGames seeks to seal the entirety of three expert reports including the experts’ qualifications, for which there are no compelling reasons to seal.

13 The Court rules as follows: ECF No. Document Portions to Seal Ruling 15 382-2 AviaGames’ Motion in Highlighted GRANTED as containing Limine No. 2 to Portions confidential source code and 16 Exclude New “Bot” confidential business Arguments information, the release of which 17 would cause a party competitive harm.

382-3 AviaGames’ Motion in Highlighted GRANTED as containing 19 Limine No. 4 to Portions confidential business Exclude Certain information, the release of which 20 Opinions of Jim. W. would cause a party competitive Bergman and Jose P. harm.

21 Zagal 382-4 Ex. 13: Opening Report Entire Document DENIED as not narrowly of Jim W. Bergman tailored.

23 382-5 Exhibit 15: Second Entire Document DENIED as not narrowly Supplemental Expert tailored.

24 Report of Jim Bergman served October 13, 2023 26 382-6 Exhibit 20: Jim Entire Document DENIED as not narrowly Bergman Deposition tailored.

27 Transcript (excerpted) tinmgemen Infringement || The above denials are WITHOUT PREJUDICE to AviaGames filing a renewed motion that seeks |! to seal specified redacted portions of these exhibits. The Court notes that redactions must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3). > I. ORDER 6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motions || in Limine (ECF No. 351) is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN || PART. AviaGames may file a renewed motion with more narrow redactions within 7 days of the |! date of this Order.

11 2. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another 12 Party’s Material Should be Sealed Relating to Its Motions in Limine (ECF No. 352) is GRANTED 13 IN PART and DENIED WITHOUT PREJUDICE IN PART. Skillz may file a renewed statement 14 in support of sealing with more narrow redactions of the documents for which the Court denied I5 sealing as not narrowly tailored within 7 days of the date of this Order. a 16 3. Defendant AviaGames Inc.’s Administrative Motion to Consider Whether Another 17 Party’s Material Should be Sealed Relating to Its Motions in Limine #2 and #4 (ECF No. 381) is Z 18 || GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. Skillz may file a |! renewed statement in support of sealing with more narrow redactions within 7 days of the date of |) this Order, 21 4. Defendant AviaGames Inc.’s Administrative Motion to Seal Relating to Its Motions || in Limine #2 and #4 (ECF No. 382) is GRANTED IN PART and DENIED WITHOUT || PREJUDICE IN PART. AviaGames may file a renewed motion with more narrow redactions |! within 7 days of the date of this Order.

26 || Dated: November 13, 2023 28 BETH LABSON FREEMAN United States District Judge