Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 1 of 9 Page ID #:36612
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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 350 Filed 05/04/24 Page 2 of 9 Page ID #:36613
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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 for Partial Summary Judgment as to Plaintiffs’
`Breach of Contract Claim (the “Breach of Contract Motion for Summary Judgment”):
`Document Description
`Nature of Information to be Sealed
`Designated by Defendants
`Defendants’ Notice of Motion,
` as “HIGHLY CONFIDENTIAL–
`Memorandum of Law, and Statement
`ATTORNEYS’ EYES ONLY” under the
`Uncontroverted of Fact and Conclusions
`parties’ stipulated protective order (Dkt.
`of Law.
`Nos. 102, 210). Plaintiffs do not oppose
`sealing these documents in their entirety.
`Designated by Plaintiffs as “HIGHLY
`Exhibit 1 to the Declaration of Danielle
`CONFIDENTIAL– ATTORNEYS’
`Williams in Support of the Breach of
`EYES ONLY” under the parties’
`Contract Motion for Summary
`stipulated protective order (Dkt. Nos.
`Judgment: the April 27, 2010 Non-
`102, 210). Plaintiffs do not oppose
`Disclosure Agreement, produced at
`sealing this exhibit in its entirety.
`NANT_BOA00014229-232.
`Designated by Plaintiffs as “HIGHLY
`Exhibit 2 to the Declaration of Danielle
`CONFIDENTIAL– ATTORNEYS’
`Williams in Support of the Breach of
`EYES ONLY” under the parties’
`Contract Motion for Summary
`stipulated protective order (Dkt. Nos.
`Judgment: the April 27, 2010 Non-
`102, 210). Plaintiffs do not oppose
`Disclosure Agreement, produced at
`sealing this exhibit in its entirety.
`NANT_BOA00127633-37.
`Exhibit 3 to the Declaration of Danielle Designated by Plaintiffs as “HIGHLY
`
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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 350 Filed 05/04/24 Page 3 of 9 Page ID #:36614
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`Document Description
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: Plaintiffs’ Corrected Third
`Supplemental Objections and Responses
`to Defendants’ Third Set of
`Interrogatories.
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: Excerpted Copy of the Expert
`Report of Dan Schonfeld, Ph.D.,
`Regarding the Infringement of the
`Asserted Claims.
`
`Nature of Information to be Sealed
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs 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 – Attorneys’
`Eyes Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`Designated by Defendants as “Highly
`Confidential—Attorneys’ Eyes Only”
`and “Highly Confidential—Source
`Code” under the parties’ stipulated
`protective order (Dkt. Nos. 102, 210).
`Plaintiffs do not oppose sealing this
`exhibit in its entirety.
`
`Exhibit 5 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: Declaration of Marwan
`Hassoun, Ph.D., which attaches as
`Exhibit A, a true and correct excerpted
`copy of the Rebuttal Expert Report of
`Marwan Hassoun, submitted March 19,
`2024
`Exhibit 6 to the Declaration of Danielle Designated by Plaintiffs as “HIGHLY
`
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`2
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 4 of 9 Page ID #:36615
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`Document Description
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: the October 31, 2011
`Collaboration Research Agreement
`(“CRA”), produced at
`NANT_BOA00000026-113.
`Exhibit 7 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: the CRA, produced at
`BOFA00031002-31041.
`
`Exhibit 8 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: the May 2, 2013 Non-
`Disclosure Agreement (“2013 NDA”),
`produced at NANT_BOA00014234-37.
`Exhibit 9 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: the 2013 NDA, produced at
`NANT_BOA00127638-641.
`
`Exhibit 10 to the Declaration of Danielle
`Williams in Support of the Breach of
`
`Nature of Information to be Sealed
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as
`“CONFIDENTIAL– ATTORNEYS’
`
`
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`3
`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 5 of 9 Page ID #:36616
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`Document Description
`Contract Motion for Summary
`Judgment: Excerpted Copy of the Expert
`Report of Patrick Kennedy, Ph.D.,
`Regarding Damages.
`Exhibit 11 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: June 4, 2012 In8 ID, LLC
`Contribution Agreement, produced at
`NANT_BOA00018657-677.
`Exhibit 12 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: Excerpted Copy of the
`Deposition of Dora Gruner.
`
`Exhibit 13 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: A copy of the document,
`NANT_BOA00020686-687, produced
`by Plaintiffs
`Exhibit 16 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: Excerpted Copy of the
`
`Nature of Information to be Sealed
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as
`“CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`
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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 350 Filed 05/04/24 Page 6 of 9 Page ID #:36617
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`Document Description
`Deposition of Orang Dialameh.
`
`Exhibit 17 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: A Copy of the Document,
`NANT_BOA00082220-21, produced by
`Plaintiffs.
`Exhibit 18 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: A Copy of the Document,
`NANT_BOA00082227-241, produced
`by Plaintiffs.
`Exhibit 19 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: A Copy of the Document,
`NANT_BOA00073286, produced by
`Plaintiffs.
`Exhibit 24 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: An Excerpted Copy of the
`Deposition of Patrick Kennedy.
`
`Nature of Information to be Sealed
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`
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`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 7 of 9 Page ID #:36618
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`Document Description
`Exhibit 25 to the Declaration of Danielle
`Williams in Support of the Breach of
`Contract Motion for Summary
`Judgment: An Excerpted Copy of the
`Deposition of Dan Schonfeld.
`
`Nature of Information to be Sealed
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos.
`102, 210). Plaintiffs do not oppose
`sealing this exhibit in its entirety.
`
`
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`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 “Confidential” or
`“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.”), ¶¶ 2–6. Defendants make
`this application because materials nos. 1–8 contain information that is “Confidential,”
`“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., ¶ 5. 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., ¶¶ 1–6. 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).
`
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`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 8 of 9 Page ID #:36619
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`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 contain
`Bank of America’s and Mitek’s confidential commercial information, specifically, non-
`public, proprietary details about the design and functionality of their respective 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., ¶ 4. 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
`
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`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 350 Filed 05/04/24 Page 9 of 9 Page ID #:36620
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`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.,
`¶ 6. Bank of America does not share this type of information publicly because it could
`significantly harm Bank of America’s competitive standing. 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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`DEFENDANTS’ APPLICATION FOR LEAVE TO FILE UNDER SEAL
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