`
`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,
`Plaintiffs,
`
`DEFENDANTS’ CORRECTED
`UNOPPOSED APPLICATION TO
`FILE DOCUMENTS UNDER SEAL
`
`vs.
`BANK OF AMERICA
`CORPORATION, a Delaware
`corporation, and BANK OF AMERICA,
`N.A., a national banking association,
`Defendants.
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`CASE NO. 2:20-CV-07872-GW-PVC
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 375 Filed 05/06/24 Page 2 of 6 Page ID #:42137
`
`
`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 the Expert Report of Cathy C.
`Glassman (the “Motion to Exclude”):
`
`Document Description
`Exhibit 1 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Expert Report of Cathy C.
`Glassman.
`
`Nature of Information to be Sealed
`Designated by Plaintiffs as
`“CONFIDENTIAL AND HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. Nos
`210).
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. No.
`210).
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL – ATTORNEY EYES
`ONLY” under the parties’ stipulated
`protective orders (Dkt. No. 210).
`
`Exhibit 2 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Excerpts of Transcript of the
`April 5, 2024 Deposition of Cathy C.
`Glassman.
`Exhibit 3 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Plaintiffs’ Corrected Third
`Supplemental Objections and Responses
`to Defendants’ Third Set of
`Interrogatories (21).
`Exhibit 5 to the Declaration of William Designated by Plaintiffs as “CONTAINS
`
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`
`
`1
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 375 Filed 05/06/24 Page 3 of 6 Page ID #:42138
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`Document Description
`Fox in Support of the Motion to
`Exclude: Excerpts of Expert Report of
`Dan Schonfeld, Ph.D., Regarding the
`Infringement of the Asserted Claims,
`attached as Exhibit 2 to the April 10,
`2024 Deposition of Dan Schonfeld,
`Ph.D.
`Exhibit 6 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Excerpts of Rebuttal Expert
`Report of Dan Schonfeld, Ph.D.,
`Regarding the Validity of and Non-
`Infringing Alternatives to the Asserted
`Claims
`Exhibit 8 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Excerpts of Expert Report of
`Patrick F. Kennedy, Ph.D., attached as
`Exhibit 1 to the April 5, 2024 Deposition
`of Patrick Kennedy, Ph.D.
`Exhibit 9 to the Declaration of William
`Fox in Support of the Motion to
`Exclude: Excerpts of Rebuttal Expert
`Report of Patrick F. Kennedy, Ph.D.
`
`Nature of Information to be Sealed
`HIGHLY CONFIDENTIAL SOURCE
`CODE – ATTORNEYS’ EYES ONLY”
`under the parties’ stipulated protective
`orders (Dkt. No. 210).
`
`Designated by Plaintiffs as
`“CONFIDENTIAL” under the parties’
`stipulated protective orders (Dkt. No.
`210).
`
`Designated by Plaintiffs as
`“CONFIDENTIAL – ATTORNEY
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. No.
`210).
`
`Designated by Plaintiffs as
`“CONFIDENTIAL – ATTORNEY
`EYES ONLY” under the parties’
`stipulated protective orders (Dkt. No.
`210).
`
`2
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 375 Filed 05/06/24 Page 4 of 6 Page ID #:42139
`
`
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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.”
`Plaintiffs do not oppose sealing this
`exhibit in its entirety.
`
`
`
`I.
`
`Background
`As set forth in the Corrected Declaration of Danielle T. 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 Corrected Declaration of Danielle Williams (the “Williams
`Decl.”), ¶¶ 2–12. Defendants make this application because Exhibits 1–3, 5–6, 8–9 and
`the Memorandum 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., ¶ 2. Plaintiffs’ counsel does not oppose filing the
`entirety of these materials under seal.
`The Corrected 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., ¶¶ 1–12. 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’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 375 Filed 05/06/24 Page 5 of 6 Page ID #:42140
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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 Exhibits 1–3 and 5 and the
`Memorandum 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., ¶ 12. 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
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 375 Filed 05/06/24 Page 6 of 6 Page ID #:42141
`
`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., ¶ 12. 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 6, 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’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`