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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 IN
`
`CONNECTION WITH
`vs.
`DEFENDANTS’ MOTION TO
`
`EXCLUDE CERTAIN DAMAGES-
`BANK OF AMERICA
`RELATED OPINIONS OF DAN
`CORPORATION, a Delaware
`SCHONFELD, PH.D. AND
`corporation, and BANK OF AMERICA,
`PATRICK KENNEDY, PH.D.
`N.A., a national banking association,
`
`
`Local Rule 79-5.2.2(b)
`Defendants.
`
`
`[Filed concurrently with Declaration of
`Danielle Williams and Proposed Order]
`
`
`
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 2 of 7 Page ID #:20385
`
`
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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 Exclude Certain Damages-Related Opinions of
`Dan Schonfeld, Ph.D. and Patrick Kennedy, Ph.D. (the “Motion to Exclude”):
`
`Document Description
`Exhibit 1 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Plaintiffs’ Second
`Supplemental Objections and Responses
`to Defendants Bank of America
`Corporation and Bank of America,
`N.A.’s Fifth Set of Interrogatories (No.
`29)
`
`Nature of Information to be Sealed
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210),
`and contains excerpts of documents
`designated by Bank of America and
`Mitek as “Highly Confidential –
`Attorneys’ Eyes Only.” Plaintiffs and
`Mitek do not oppose sealing this exhibit
`in its entirety.
`Designated by Plaintiffs as
`“CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210), and contains excerpts of
`documents designated by Bank of
`America and Mitek as “Highly
`Confidential – Attorneys’ Eyes Only.”
`
`Exhibit 2 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Expert Report of Patrick
`Kennedy, Ph.D. dated January 30, 2024
`
`1
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 3 of 7 Page ID #:20386
`
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`Document Description
`
`Exhibit 3 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Expert Report
`of Dan Schonfeld, Ph.D. Regarding the
`Infringement of the Asserted Claims
`dated January 30, 2024
`
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Deposition of
`Daniel Schonfeld, Ph.D. dated April 10,
`2024
`Exhibit 5 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Deposition of
`Daniel Schonfeld, Ph.D. dated April 11,
`2024
`Exhibit 6 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Deposition of
`Patrick Kennedy, Ph.D. dated April 5,
`
`Nature of Information to be Sealed
`Plaintiffs and Mitek do not oppose
`sealing this exhibit 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 – Attorney’s
`Eyes Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`
`2
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 4 of 7 Page ID #:20387
`
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`Document Description
`2024
`Exhibit 7 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Letter from B. Lynch to D.
`Williams dated March 1, 2024
`
`Exhibit 9 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of Plaintiffs’
`Preliminary Final Infringement
`Contentions
`
`Exhibit 11 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Defendants’ October 17, 2023
`Supplemental Objections and Responses
`to Plaintiffs’ First Set of Interrogatories
`(Nos. 4 and 5).
`
`Nature of Information to be Sealed
`102, 210).
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210), and contains information
`designated by Bank of as “Highly
`Confidential – Attorney’s Eyes Only.”
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” under the
`parties’ stipulated protective orders (Dkt.
`Nos. 102, 210), and contains excerpts of
`documents designated by Bank of
`America and third-party Mitek as
`“Highly Confidential – Attorney’s Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`
`3
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 5 of 7 Page ID #:20388
`
`
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`Document Description
`Memorandum in Support of the Motion
`to Exclude
`
`Nature of Information to be Sealed
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” under the
`parties’ stipulated protective orders (Dkt.
`Nos. 102, 210). Plaintiffs do not oppose
`sealing this Memorandum 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.”), ¶¶ 2–12. Defendants make this application because
`(i) materials nos. 1–7, 9, 11, and the Memorandum contain information that is “Highly
`Confidential – Attorneys Eyes Only” and/or “Highly Confidential – Source Code” of
`Bank of America; (ii) materials nos. 1–3, and 11 contain information that is “Highly
`Confidential – Attorneys Eyes Only” and/or “Highly Confidential – Source Code” of
`Mitek Systems, Inc. (“Mitek”). Id., ¶¶ 2–12. 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 Application. Id., ¶ 2. 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 the documents containing Mitek information be
`filed under seal. Id., ¶ 13.
`The Williams declaration sets forth the information Defendants seek to file under
`
`4
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 6 of 7 Page ID #:20389
`
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`seal, the basis for the Application, and good cause to seal Bank of America confidential
`information. Id., ¶¶ 1–15. 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.”).
`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. 1–7,
`9, and 11 and the Memorandum contain Bank of America’s confidential commercial
`information, including
` non-public, proprietary details about the design and
`functionality of Bank of America’s mobile check deposit, which includes excerpts
`5
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 326 Filed 05/03/24 Page 7 of 7 Page ID #:20390
`
`
`and/or references to source code of Bank of America and its vendors designated “Highly
`Confidential – Source Code.” Williams Decl., ¶ 14. 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., ¶ 14. 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: May 3, 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
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
`
`
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`6
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION TO
`EXCLUDE CERTAIN DAMAGES-RELATED OPINIONS OF DAN SCHONFELD, PH.D. AND PATRICK KENNEDY, PH.D.
`
`