Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 1 of 11 Page ID #:14353
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`Dustin J. Edwards (pro hac vice)
`dedwards@winston.com
`WINSTON & STRAWN LLP
`800 Capitol St., Suite 2400
`Houston, TX 77002-2925
`Telephone: (713) 651-2600
`Facsimile:
`(713) 651-2700
`
`Diana Hughes Leiden (SBN: 267606)
`dhleiden@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
`
`
`George C. Lombardi (pro hac vice)
`glombardi@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile:
`(312) 558-5700
`
`E. Danielle T. Williams (pro hac vice)
`dwilliams@winston.com
`WINSTON & STRAWN LLP
`300 South Tryon Street, 16th Floor
`Charlotte, NC 28202
`Telephone: (704) 350-7700
`Facsimile:
`(704) 350-7800
`
`Michael S. Elkin (pro hac vice)
`melkin@winston.com
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 294-6700
`Facsimile: (212) 294-4700
`
`Attorneys for Defendants
`BANK OF AMERICA
`CORPORATION
`and BANK OF AMERICA, N.A.
`
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`Case No. 2:20-CV-7872-GW-PVC
`NantWorks, LLC, a Delaware limited
`liability company, and NANT
`
`HOLDINGS IP, LLC, a Delaware
`
`limited liability company,
`DEFENDANTS’ UNOPPOSED
`
`APPLICATION TO FILE
`Plaintiffs,
`DOCUMENTS UNDER SEAL
`
`
`vs.
`Local Rule 79-5.2.2(b)
`
`
`BANK OF AMERICA
`[Filed concurrently with Declaration of
`CORPORATION, a Delaware
`Danielle Williams and Proposed Order]
`corporation, and BANK OF AMERICA,
`N.A., a national banking association,
`
`
`Defendants.
`
`
`
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 2 of 11 Page ID #:14354
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`TO THE COURT, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
`NOTICE IS HEREBY GIVEN that, pursuant to Local Rule 79-5.2.2.(b),
`Defendants Bank of America Corporation and Bank of America, N.A. (collectively,
`“Defendants” or “Bank of America”), hereby request that this Court enter an order
`permitting them to file under seal the materials described below that are filed in
`connection with Defendants’ Motion to Strike Portions of the Expert Report of Dan
`Schonfeld, Ph.D. (the “Motion to Strike”):
`
`Document Description
`Memorandum in Support of the Motion
`to Strike
`
`Exhibit 1 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Excerpts of the Expert Report of
`Dan Schonfeld Regarding the
`Infringement of the Asserted Claims.
`
`Nature of Information to be Sealed
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY,” and
`contains excerpts of documents
`designated by Bank of America and
`third-party Mitek as “Highly
`Confidential – Attorneys’ Eyes Only.”
`Plaintiffs and Mitek do not oppose
`sealing this document in its entirety.
`Designated by Plaintiffs as “CONTAINS
`HIGHLY CONFIDENTIAL SOURCE
`CODE – ATTORNEYS’ EYES ONLY”
`under the parties’ stipulated protective
`order (Dkt. Nos. 102, 210), and contains
`excerpts of documents designated by
`Bank of America and third-party Mitek
`as “Highly Confidential – Attorneys’
`Eyes Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`
`
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`1
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 3 of 11 Page ID #:14355
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`Document Description
`Exhibit 2 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: March 1, 2024 Letter from Brice
`Lynch.
`
`Exhibit 3 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Third Supplemental
`Objections and Responses to Defendants
`Third Set of Interrogatories (17 and 21).
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Excerpts of Plaintiffs’ Corrected
`Third Supplemental Objections and
`Responses to Defendants Third Set of
`Interrogatories (responding to 21).
`Exhibit 5 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Excerpts of Plaintiffs’ Second
`Supplemental Objections and Responses
`to Defendants Third Set of
`Interrogatories (responding to 22).
`Exhibit 6 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Excerpts of Plaintiffs’ Second
`Supplemental Objections and Responses
`
`Nature of Information to be Sealed
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210).
`
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210).
`
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210).
`
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210).
`
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`2
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 4 of 11 Page ID #:14356
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`Document Description
`to Defendants Fifth Set of Interrogatories
`(29).
`Exhibit 8 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Transcript of the October 10,
`2023 Deposition of Pavan Chayanam
`
`Exhibit 9 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Transcript of the October 19,
`2023 Deposition of Charles Christopher
`Harbinson
`Exhibit 10 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Transcript of the November 16,
`2023 Deposition of Fred Fortaleza
`Fernandez, Jr.
`Exhibit 11 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Preliminary Final
`Infringement Contentions, Exhibit 1 –
`’278 Final Infringement Claim Chart
`
`Nature of Information to be Sealed
`
`Designated by Bank of America in its
`entirety as “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” and
`“CONTAINS HIGHLY
`CONFIDENTIAL – SOURCE CODE”.
`Designated by Bank of America in its
`entirety as “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” and
`“CONTAINS HIGHLY
`CONFIDENTIAL – SOURCE CODE”
`Designated by Mitek Systems, Inc. in its
`entirety as “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE”
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” and contains excerpts
`of documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
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`3
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 5 of 11 Page ID #:14357
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`Document Description
`
`Exhibit 12 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Preliminary Final
`Infringement Contentions, Exhibit 2 –
`’529 Final Infringement Claim Chart
`
`Exhibit 13 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Preliminary Final
`Infringement Contentions, Exhibit 3 –
`’252 Final Infringement Claim Chart
`
`Exhibit 14 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Preliminary Final
`Infringement Contentions, Exhibit 5 –
`’004 Final Infringement Claim Chart
`
`Nature of Information to be Sealed
`oppose sealing this exhibit in its entirety.
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” and contains excerpts
`of documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” and contains excerpts
`of documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” and contains excerpts
`
`
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`4
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 6 of 11 Page ID #:14358
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`Document Description
`
`Exhibit 20 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Plaintiffs’ Preliminary Final
`Infringement Contentions, Exhibit 6 -
`'036 Final Infringement Claim Chart
`
`Nature of Information to be Sealed
`of documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” and contains excerpts
`of documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”.
`
`Exhibit 22 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Defendants’ October 17, 2023
`Supplemental Objections and Responses
`to Plaintiffs’ First Set of Interrogatories
`(Nos. 4 and 5).
`Exhibit 23 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: 8/19/23 Letter from D. Williams
`to E. Huang
`Exhibit 24 to the Declaration of Danielle Designated by Defendants in its entirety
`
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”.
`
`
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`5
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 7 of 11 Page ID #:14359
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`Document Description
`Williams in Support of the Motion to
`Strike: Expert Report and Disclosure of
`Dawn Hall
`
`Exhibit 25 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Expert Report of James Storer,
`Ph.D. Regarding Non-Infringing
`Alternatives to Certain Claims of U.S.
`Patents Nos. 7,881,529, 7,899,252,
`8,478,036, 9,031,278, and 9,324,004
`
`Exhibit 26 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Rebuttal Report of Dawn Hall
`
`Nature of Information to be Sealed
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY,” and
`contains excerpts of documents
`designated by Bank of America and
`third-party Mitek as “Highly
`Confidential – Attorneys’ Eyes Only.”
`Plaintiffs and Mitek do not oppose
`sealing this exhibit in its entirety.
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY,” and
`contains excerpts of documents
`designated by Bank of America and
`third-party Mitek as “Highly
`Confidential – Attorneys’ Eyes Only.”
`Plaintiffs and Mitek do not oppose
`sealing this exhibit in its entirety.
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES
`ONLY,” and contains excerpts of
`documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`
`
`
`6
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 8 of 11 Page ID #:14360
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`Document Description
`Exhibit 27 to the Declaration of Danielle
`Williams in Support of the Motion to
`Strike: Rebuttal Expert Report of James
`Storer, Ph.D.
`
`Nature of Information to be Sealed
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES
`ONLY” and “HIGHLY
`CONFIDENTIAL – SOURCE CODE,”
`and contains excerpts of documents
`designated by Bank of America and
`third-party Mitek as “Highly
`Confidential – Attorneys’ Eyes Only.”
`Plaintiffs and Mitek do not oppose
`sealing this exhibit in its entirety.
`
`
`
`I.
`
`Background
`As set forth in the Declaration of Danielle Williams in Support of Plaintiffs’
`Application to File Under Seal submitted herewith, Defendants make this application
`because the foregoing documents are marked and designated as “Highly Confidential –
`Attorneys Eyes Only” and/or “Highly Confidential – Source Code” as follows pursuant
`to the parties’ Stipulated Protective Order (Dkt. No. 210). See Declaration of Danielle
`Williams (the “Williams Decl.”), ¶¶ 2–15, 21, 23–28. Defendants make this application
`because (i) materials nos. 1–14, 20, and 22-27 contain information that is “Highly
`Confidential – Attorneys Eyes Only” and/or “Highly Confidential – Source Code” of
`Bank of America; (ii) materials nos. 1–6, 10–14, 20, and 22–27 contain information that
`is “Highly Confidential – Attorneys Eyes Only” and/or “Highly Confidential – Source
`Code” of Mitek Systems, Inc. (“Mitek”). Id., ¶¶ 2–7, 11–15, 21, 23–28. As required
`by Local Rule 79-5.2.2(b), counsel for Plaintiffs and Defendants conferred about
`Defendants’ filing these materials to limit, if not entirely avoid, the necessity of this
`
`
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`7
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

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`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 9 of 11 Page ID #:14361
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`Application. Id., ¶ 29. Plaintiffs’ counsel does not oppose filing the entirety of these
`materials under seal. Counsel for Defendants also conferred with counsel for Mitek in
`a similar manner, and Mitek’s counsel requested that the entirety of these documents be
`filed under seal. Id., ¶ 30.
`The Williams declaration sets forth the information Defendants seek to file under
`seal, the basis for the Application, and good cause to seal Bank of America confidential
`information. Id., ¶¶ 1–29. Due to the sensitive nature of the information in the
`foregoing materials, good cause exists to approve Bank of America’s application to file
`these materials under seal pursuant to Local Rule 79-5.2.2(a), and, pursuant to Local
`Rule 79-5.2.2(b)(i), Mitek shall separately demonstrate such good cause.
`II. Good Cause Exists to File Materials Under Seal
`The decision to seal records is left to the discretion of the District Court.
`Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (citing Nixon v. Warner
`Communications, Inc., 435 U.S. 589, 599 (1978)). Rule 26(c)(1)(G) of the Federal
`Rules of Civil Procedure allows parties, upon a showing of “good cause,” to file under
`seal documents containing “confidential . . . commercial information.” See also IMAX
`Corp. v. Cinematech, Inc., 152 F.3d 1161, 1168 n.9 (9th Cir. 1998) (noting that
`confidential and proprietary business information is “to be filed under seal.”); Sun
`Microsystems Inc. v. Network Appliance, No. C-08-01641 EDL, 2009 WL 5125817, at
`*9 (N.D. Cal. Dec. 21, 2009) (granting sealing requests because the documents “contain
`confidential [business] information, much of which has been designated as Confidential
`or Highly Confidential under the parties’ stipulated protective order, that could cause
`competitive harm if disclosed.”); In re Adobe Systems, Inc. Securities Litigation Master
`File, 141 F.R.D. 155, 161-162 (N.D. Cal. 1992) (“Protective orders and filings under
`seal are the primary means by which the courts ensure full disclosure of relevant
`information, while still preserving the parties’ (and third parties’) legitimate expectation
`that confidential business information, proprietary technology and trade secrets will not
`be publicly disseminated.”).
`
`
`
`8
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 10 of 11 Page ID
`
`#:14362
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`Bank of America respectfully requests that the Court grant its application to file
`under seal the foregoing materials on the grounds that the foregoing materials nos. 1–
`14, 20, and 22–27 contain Bank of America’s confidential commercial information,
`specifically, non-public, proprietary details about the design and functionality of Bank
`of America’s mobile check deposit, which includes excerpts and/or references to source
`code of Bank of America and its vendors designated “Highly Confidential – Source
`Code.” Williams Decl., ¶ 31. Accordingly, Bank of America has an important interest
`in maintaining the confidentiality of this information, and any public interest in its
`disclosure is rebutted. See, e.g., Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,
`1180 (9th Cir. 2006) (differentiating dispositive motions by explaining that, for such
`motions, “the private interests of the litigants are not the only weights on the scale”). If
`such information were made public, competitors of Bank of America and its vendors
`would gain access to Bank of America’s business practices regarding its product
`development and technical details regarding the design and functionality of its products.
`Williams Decl., ¶ 31. Bank of America does not share this type of information publicly
`because it could significantly harm Bank of America’s competitive standing and, with
`respect to information designated Highly Confidential by Mitek, is subject to
`contractual obligations of confidentiality to its vendor. Id.
`Accordingly, Defendants respectfully request that the Court grant the Application
`to File the aforementioned documents under seal.
`
`Dated: March 26, 2024
`
`Respectfully submitted,
`
`WINSTON & STRAWN LLP
`
`
`By:/s/ E. Danielle T. Williams
`George C. Lombardi (pro hac vice)
`Michael S. Elkin (pro hac vice)
`E. Danielle T. Williams (pro hac vice)
`Dustin J. Edwards (pro hac vice)
`Diana Hughes Leiden
`
`Attorneys for Defendants
`
`
`
`
`
`9
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 306 Filed 03/26/24 Page 11 of 11 Page ID
`
`#:14363
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`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
`
`10
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`