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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 347 Filed 05/04/24 Page 2 of 6 Page ID #:36231
`
`
`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 Portions of the Expert Report of Dan
`Schonfeld, Ph.D. (the “Motion to Exclude”):
`Document Description
`Nature of Information to be Sealed
`Designated by Plaintiffs as “CONTAINS
`Exhibit 1 to the Declaration of Danielle
`HIGHLY CONFIDENTIAL SOURCE
`Williams in Support of the Motion to
`CODE – ATTORNEYS’ EYES ONLY”
`Exclude: Excerpts of the Rebuttal
`and “Highly Confidential—Source
`Report of Dan Schonfeld Regarding the
`Code” under the parties’ stipulated
`Infringement of the Asserted Claims.
`protective order (Dkt. Nos. 102, 210).
`Designated by Bank of America as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” under the
`parties’ stipulated protective orders (Dkt.
`Nos. 102, 210).
`Designated by Bank of America as
`“HIGHLY CONFIDENTIAL –
`ATTORNEY EYES ONLY” under the
`parties’ stipulated protective orders (Dkt.
`Nos. 102, 210).
`Designated by Plaintiffs and Bank of
`America as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`
`Exhibit 2 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the transcript of the
`April 10, 2024 Deposition of Dan
`Schonfeld.
`Exhibit 3 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: BOFA00058906.
`
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Transcript of
`
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`
`
`1
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 347 Filed 05/04/24 Page 3 of 6 Page ID #:36232
`
`
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`Document Description
`the Deposition of Zho Agarwal.
`
`Exhibit 5 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: BOFA00033339
`
`Exhibit 7 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: NANT_BOA00082220
`
`Nature of Information to be Sealed
`ONLY” under the parties’ stipulated
`protective orders (Dkt. Nos. 102, 210).
`Designated by Bank of America 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 in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY’”
`Designated by Bank of America in its
`entirety as “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” under
`the parties’ stipulated protective orders
`(Dkt. Nos. 102, 210).
`Designated by Plaintiff and Bank of
`America in its entirety as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Exhibit 11 to the Declaration of Danielle Designated by Plaintiffs and Bank of
`
`Exhibit 8 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: NANT_BOA00082227
`Exhibit 9 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts from the Transcript
`of Deposition of Orang Dialameh.
`
`Exhibit 10 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts from the Transcript
`of the Deposition of Jeremi Sudol
`
`
`
`2
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 347 Filed 05/04/24 Page 4 of 6 Page ID #:36233
`
`
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`Document Description
`Williams in Support of the Motion to
`Exclude: Excerpts from the Transcript of
`the Deposition of Matthew Calman
`
`Exhibit 14 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: Excerpts of the Opening Expert
`Report of Dan Schonfeld.
`
`Exhibit 16 to the Declaration of Danielle
`Williams in Support of the Motion to
`Exclude: BOFA00034270.
`
`Memorandum in Support of the Motion
`to Exclude
`
`Nature of Information to be Sealed
`America in its entirety as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” 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).
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” under the
`parties’ stipulated protective orders (Dkt.
`Nos. 102, 210).
`
`
`
`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
`
`
`
`3
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 347 Filed 05/04/24 Page 5 of 6 Page ID #:36234
`
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`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 these contain information that is “Highly Confidential – Attorneys Eyes Only”
`and/or “Highly Confidential – Source Code” of Bank of America. 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.
`Plaintiffs’ counsel does not oppose filing the entirety of these materials under seal.
`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., ¶¶ 1–15. 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).
`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
`
`
`
`4
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 347 Filed 05/04/24 Page 6 of 6 Page ID #:36235
`
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`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 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.” 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. Bank of America does not share this type of information
`publicly because it could significantly harm Bank of America’s competitive standing.
`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.
`
`
`
`
`
`5
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`