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 REGARDING SEALING 9 v. MOTIONS IN CONNECTION ADDITIONAL MOTIONS IN LIMINE 10 AVIAGAMES INC., [Re: ECF No. 562, 581, 587] 11 Defendant.

13 Before the Court are the parties’ renewed motions to seal and statements in connection with the briefing on their additional motions in limine. ECF Nos. 562, 581, 587. The Court has considered the motions and statements, 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. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed in Connection with Skillz’s 25 Renewed Motion in Limine No. 2 (ECF No. 562) 26 Plaintiff Skillz Platform Inc. filed an administrative motion to consider whether another party’s material should be sealed, identifying its renewed motion in limine no. 2, a supporting as “highly confidential.” ECF No. 562 at 1. AviaGames filed a statement in support of sealing the documents. ECF No. 578. AviaGames argues that the information that it seeks to seal includes “confidential business communications, financial information, and descriptions of the operation of its source code that reveal sensitive details regarding the technical operation of AviaGames’ products.” Id. ¶ 4. Skillz did not file an opposition to the statement.

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

7 “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”).

19 The Court finds compelling reasons to seal confidential business information contained in the motion, declaration, and exhibits. However, the Court finds that AviaGames’ request to seal certain documents is not “narrowly tailored to seal only the sealable material.” Civ. L.R. 79- 5(c)(3). The Court finds that AviaGames’ request to seal Skillz’s motion and the declaration is narrowly tailored because AviaGames seeks only to seal the highlighted portions of these documents that include its confidential business information. Similarly, the Court finds that sealing the entirety of Exhibits 1 and 2 is appropriate because the entirety of these documents contain confidential business information. However, the Court does not find sealing the entirety of Exhibits 3 and 4 appropriate because these are deposition transcripts, the entirety of which do 1 The Court rules as follows: ECF No. Document Portions to Seal Ruling 3 562-2 Skillz’s Renewed Highlighted GRANTED as containing Motion in Limine No. 2 Portions confidential business 4 to Exclude Reasonable information, the release of which Royalty Damages would cause a party competitive 5 Opinion of Brian W. harm.

Napper 562-3 Declaration of Highlighted GRANTED as containing 7 Christopher Campbell Portions confidential business In Support of Skillz’s information, the release of which 8 Renewed Motion in would cause a party competitive Limine No. 2 to harm.

9 Exclude Reasonable Royalty Damages Opinion of Brian W.

11 Napper 562-4 Exhibit 1 to the Entire Document GRANTED as containing 12 Declaration of confidential business Christopher Campbell information, the release of which would cause a party competitive 14 harm.

562-5 Exhibit 2 to the Entire Document GRANTED as containing 15 Declaration of confidential business Christopher Campbell information, the release of which 16 would cause a party competitive harm.

562-6 Exhibit 3 to the Entire Document DENIED as not narrowly 18 Declaration of tailored.

Christopher Campbell 19 562-7 Exhibit 4 to the Entire Document DENIED as not narrowly Declaration of tailored.

20 Christopher Campbell The above denials are without prejudice to AviaGames filing a renewed statement in support of sealing that includes narrow redactions within 7 days of the date of this Order.

B. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed in Connection with Its Opposition to AviaGames’ Motion in Limine to Permit Vickie Chen to Testify in Full and for Related Relief (ECF No. 581) Plaintiff Skillz Platform Inc. filed an administrative motion to consider whether another party’s material should be sealed, identifying an exhibit in support of its opposition to Defendant AviaGames Inc. has designated as “highly confidential.” ECF No. 581 at 1.

2 AviaGames filed a statement in support of sealing the document. ECF No. 590. AviaGames argues that the information that it seeks to seal includes “confidential business communications and descriptions of the operation of its source code that reveal sensitive details regarding the technical operation of AviaGames’ products.” Id. ¶ 4. In addition, AviaGames proposed to seal only highlighted portions of the exhibit that include such information. See ECF No. 590-2. Skillz did not file an opposition to the statement.

8 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.

12 The Court finds compelling reasons to seal the information identified in the highlighted portions of the exhibit and further finds that AviaGames’ request to seal is “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

15 The Court rules as follows: ECF No. Document Portions to Seal Ruling 17 581-3 Exhibit A to Skillz’s Highlighted GRANTED as containing (590-2) Response To Portions confidential source code and 18 Defendant AviaGames’ confidential business Motion In Limine To information, the release of which 19 Permit Vickie Chen To would cause a party competitive Testify In Full And For harm.

Related Relief (Dkt.

21 577) 22 C. Defendant AviaGames Inc.’s Administrative Motion to Seal in Connection with Its Opposition to Skillz’s Renewed Motion in Limine No. 2 (ECF No. 587) AviaGames filed an administrative motion to file under seal its opposition to Skillz’s renewed motion in limine no. 2 and exhibits in support of that opposition. ECF No. 587.

AviaGames argues that this information should be sealed because it includes confidential business information, including information concerning AviaGames’ confidential financial information from its licensing agreements. Id. at 1–2. Skillz did not file an opposition to the motion.

1 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.

5 The Court finds compelling reasons to seal the information identified in the highlighted portions of AviaGames’ opposition and supporting exhibits. The Court further finds that AviaGames’ request to seal is “narrowly tailored to seal only the sealable material.” Civ. L.R. 79- 5(c)(3). For the most part, AviaGames seeks only to seal highlighted portions of the documents that include such sensitive information. AviaGames’ request to seal the entirety of Exhibit 3 is narrowly tailored because it is a one-page document, the entirety of which contains confidential financial information.

12 The Court rules as follows: ECF No. Document Portions to Seal Ruling 14 587-2 Defendant AviaGames Highlighted GRANTED as containing Inc.’s Opposition to Portions confidential business 15 Plaintiff’s Renewed information, the release of which Motion in Limine No. 2 would cause a party competitive 16 to Exclude Reasonable harm.

Royalty Opinion of Brian W. Napper 18 587-4 Exhibit 2 (Li, Xiaoyang Highlighted GRANTED as containing 12/01/2023 Deposition Portions confidential business 19 Transcript) information, the release of which would cause a party competitive 20 harm.

587-6 Exhibit 3 (Bates No. Entire Document GRANTED as containing AVIA_0031970) confidential business 22 information, the release of which would cause a party competitive 23 harm.

587-7 Exhibit 4 (Liu, Bill Highlighted GRANTED as containing 05/16/2023 Deposition Portions confidential business 25 Transcript) information, the release of which would cause a party competitive 26 harm.

587-9 Exhibit 5 (Chen, Vickie Highlighted GRANTED as containing 27 05/20/2023 Deposition Portions confidential business (Ee harm.

Il. ORDER 3 For the foregoing reasons, IT IS HEREBY ORDERED that: 4 1. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether || Another Party’s Material Should Be Sealed in Connection with Skillz’s Renewed Motion in Limine No. 2 (ECF No. 562) is GRANTED IN PART AND DENIED IN PART. AviaGames may file a renewed statement in support of sealing with more narrow redactions within 7 days of the ll date of this Order.

9 2. Plaintiff Skillz Platform Inc.’s Administrative Motion to Consider Whether || Another Party’s Material Should Be Sealed in Connection with Its Opposition to AviaGames’ I Motion in Limine to Permit Vickie Chen to Testify in Full and for Related Relief (ECF No. 581) is || GRANTED.

13 3. Defendant AviaGames Inc.’s Administrative Motion to Seal in Connection with Its 14 Opposition to Skillz’s Renewed Motion in Limine No. 2 (ECF No. 587) is GRANTED. a 16 |! Dated: J anuary 19, 2024 18 BETH LABSON FREEMAN United States District Judge