Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 1 of 10 Page ID #:42563
`
`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’ UNOPPOSED
`CORRECTED 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 378 Filed 05/07/24 Page 2 of 10 Page ID #:42564
`
`
`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’ Corrected Motion for Partial Summary Judgment as to
`Plaintiffs’ Breach of Contract Claim (the “Breach of Contract Motion for Summary
`Judgment”):
`Document Description
`Defendants’ Corrected Notice of
`Motion, Corrected Memorandum of
`Law, and Corrected Statement of
`Uncontroverted Facts.
`
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`Nature of Information to be Sealed
`Designated by Defendants
` as “HIGHLY CONFIDENTIAL–
`ATTORNEYS’ EYES ONLY” under
`the parties’ stipulated protective
`order(Dkt. No. 210). Plaintiffs do not
`oppose sealing these documents in
`their entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order(Dkt. No.
`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. No.
`210). Plaintiffs do not oppose sealing
`
`Exhibit 1 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: the April 27, 2010
`Non-Disclosure Agreement, produced
`at NANT_BOA00014229-232.
`Exhibit 2 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: the April 27, 2010
`Non-Disclosure Agreement, produced
`
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

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`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 3 of 10 Page ID #:42565
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`Document Description
`at NANT_BOA00127633-37.
`Exhibit 3 to the Corrected Declaration
`of Danielle 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 Corrected 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.
`
`Exhibit 5 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: Declaration of
`Marwan Hassoun, Ph.D., which
`
`Nature of Information to be Sealed
`this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. No.
`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. No. 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. No. 210).
`
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 4 of 10 Page ID #:42566
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`Nature of Information to be Sealed
`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. No.
`210). Plaintiffs do not oppose sealing
`this exhibit in its entirety.
`
`Document Description
`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 Corrected Declaration
`of Danielle 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 Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: the CRA,
`produced at BOFA00031002-31041.
`
`Designated by Defendants as
`“HIGHLY CONFIDENTIAL–
`ATTORNEYS’ EYES ONLY” under
`the parties’ stipulated protective order
`(Dkt. No. 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. No.
`210). Plaintiffs do not oppose sealing
`this exhibit in its entirety.
`
`Exhibit 8 to the Corrected 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 Corrected Declaration Designated by Plaintiffs as “HIGHLY
`
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 5 of 10 Page ID #:42567
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`Document Description
`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 Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: Excerpted Copy
`of the Expert Report of Patrick
`Kennedy, Ph.D., Regarding Damages.
`Exhibit 11 to the Corrected 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 Corrected 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 Corrected Declaration
`of Danielle Williams in Support of the
`
`Nature of Information to be Sealed
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. No.
`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. No.
`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. No.
`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. No.
`210). Plaintiffs do not oppose sealing
`this exhibit in its entirety.
`Designated by Plaintiffs as “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`
`
`
`4
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 6 of 10 Page ID #:42568
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`Document Description
`Breach of Contract Motion for
`Summary Judgment: A copy of the
`document, NANT_BOA00020686-687,
`produced by Plaintiffs.
`Exhibit 16 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: Excerpted Copy
`of the Deposition of Orang Dialameh.
`
`Exhibit 17 to the Corrected 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 Corrected 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 Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: A Copy of the
`
`Nature of Information to be Sealed
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. No.
`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. No.
`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. No.
`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. No.
`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. No.
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 7 of 10 Page ID #:42569
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`Document Description
`Document, NANT_BOA00073286,
`produced by Plaintiffs.
`Exhibit 24 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: An Excerpted
`Copy of the Deposition of Patrick
`Kennedy.
`Exhibit 25 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: An Excerpted
`Copy of the Deposition of Dan
`Schonfeld.
`Exhibit 26 to the Corrected Declaration
`of Danielle Williams in Support of the
`Breach of Contract Motion for
`Summary Judgment: Declaration of
`Matthew Calman in Support of
`Defendants’ Motion for Partial
`Summary Judgment
`Paragraphs 28 to 31 in the Corrected
`Declaration of Danielle Williams in
`Support of the Breach of Contract
`Motion for Summary Judgment
`
`Nature of Information to be Sealed
`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. No.
`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. No.
`210). Plaintiffs do not oppose sealing
`this exhibit in its entirety.
`Contains “HIGHLY
`CONFIDENTIAL– ATTORNEYS’
`EYES ONLY” information under the
`parties’ stipulated protective order
`(Dkt. No. 210). Plaintiffs do not
`oppose sealing this exhibit in its
`entirety.
`Based on information designated
`“HIGHLY CONFIDENTIAL” by the
`parties’ under the stipulated protective
`order (Dkt. No. 210). Plaintiffs do not
`oppose sealing these paragraphs in
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 8 of 10 Page ID #:42570
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`Document Description
`
`
`
`Nature of Information to be Sealed
`their entirety.
`
`I.
`
`Background
`As set forth in the Corrected Declaration of Danielle Williams in Support of
`Defendants’ Corrected 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” pursuant to the parties’ Stipulated Protective Order (Dkt.
`No. 210). See Corrected Declaration of Danielle Williams (the “Williams Decl.”), ¶¶
`2–26. Exhibit Nos. 1–13, 16–19, and 24 – 26 contain information that is “Confidential,”
`“Highly Confidential – Attorneys Eyes Only,” and/or “Highly Confidential – Source
`Code” of Bank of America. The Corrected Notice of Motion, the Corrected
`Memorandum of Law, and the Corrected Statement of Uncontroverted Facts include
`references to these exhibits. 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., ¶¶ 1–23. 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).
`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
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 9 of 10 Page ID #:42571
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`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.”).
`In addition, 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.” Corrected Williams Decl., ¶ 2, 6-7 . 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
`
`
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`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 378 Filed 05/07/24 Page 10 of 10 Page ID
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`#:42572
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`product development and technical details regarding the design and functionality of its
`products. Williams Decl., ¶ 26. 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 Corrected
`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.
`
`
`
`
`
`
`
`9
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL
`
`