Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 1 of 8 Page ID #:44564
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`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’ CORRECTED
`
`UNOPPOSED APPLICATION TO
`Plaintiffs,
`FILE DOCUMENTS UNDER SEAL
`
`vs.
`IN CONNECTION WITH
`
`DEFENDANTS’ MOTION FOR
`BANK OF AMERICA
`PARTIAL SUMMARY JUDGMENT
`CORPORATION, a Delaware
`corporation, and BANK OF AMERICA,
`OF NON- INFRINGEMENT FOR
`N.A., a national banking association,
`THE ASSERTED CLAIMS OF THE
`
`ASSERTED PATENTS.
`Defendants.
`
`
`Local Rule 79-5.2.2(b)
`[Filed concurrently with Corrected
`Declaration of Danielle Williams and
`Proposed Order]
`
`
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’ MOTION FOR
`PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED CLAIMS OF THE ASSERTED PATENTS
`
`
`
`
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 2 of 8 Page ID #:44565
`
`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 of Non-
`infringement of the Asserted Claims of the Asserted Patents:
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Document Description
`Exhibit 1 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Excerpts of the
`Expert Report of Dan Schonfeld
`Regarding the Infringement of the
`Asserted Claims
`
`Nature of Information to be Sealed
`Designated by Plaintiffs in its entirety as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” 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” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`
`Exhibit 2 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Transcript of the
`April 10, 2024 Deposition of Dan
`Schonfeld, Ph.D.
`Exhibit 3 to the Declaration of Danielle Designated by Defendants as “HIGHLY
`
`1
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`PATENTS, CASE NO. 2:20-cv-07872-GW-PVC
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 3 of 8 Page ID #:44566
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Document Description
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Transcript of the
`April 11, 2024 Deposition of Dan
`Schonfeld, Ph.D.
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Rebuttal Expert
`Report of James Storer, Ph.D. dated
`March 19, 2024
`
`Exhibit 5 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Transcript of the
`October 19, 2023 Deposition of Chris
`Harbinson
`Exhibit 6 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`
`Nature of Information to be Sealed
`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” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE,” 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” under the parties’
`stipulated protective orders (Dkt. Nos.
`102, 210).
`
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`
`2
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 4 of 8 Page ID #:44567
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Document Description
`Infringement of the Asserted Claims of
`the Asserted Patents: Transcript of the
`October 10, 2023 Deposition of Pavan
`Chayanam
`Exhibit 7 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: Transcript of the
`November 16, 2023 Deposition of Fred
`Fernandez
`Exhibit 8 to the Declaration of Danielle
`Williams in Support of the Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents: document bearing
`the Bates number of BOFA00030781–
`824
`Exhibit 9 to the Declaration of Danielle
`Williams in Support of Defendants’
`Partial Motion for Partial Summary
`Judgment of Non-infringement of the
`Asserted Claims of the Asserted Patents
`Memorandum in Support of Defendants’
`Motion for Partial Summary Judgment
`of Non-infringement of the Asserted
`
`Nature of Information to be Sealed
`stipulated protective orders (Dkt. Nos.
`102, 210).
`
`Designated by third-party Mitek as
`“Highly Confidential – Attorneys’ Eyes
`Only.” Plaintiffs and Mitek do not
`oppose sealing this exhibit in its entirety.
`
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`Plaintiffs do not oppose sealing this
`exhibit in its entirety.
`
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`Plaintiffs do not oppose sealing this
`exhibit in its entirety.
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`
`3
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 5 of 8 Page ID #:44568
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Document Description
`Claims of the Asserted Patents
`
`Statement of Uncontroverted Facts in
`Support of Defendants’ Motion for
`Partial Summary Judgment of Non-
`Infringement of the Asserted Claims of
`the Asserted Patents
`
`Nature of Information to be Sealed
`Plaintiffs do not oppose sealing this
`exhibit in its entirety.
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY,” 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 document.
`
`
`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
`“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 T. Williams (the “Corrected Williams Decl.”),
`¶¶ 2–10, 13. Defendants make this application because (i) materials nos. 2–7, 9–10, 13
`contain information that is “Highly Confidential – Attorneys Eyes Only” and/or
`“Highly Confidential – Source Code” of Bank of America; (ii) materials nos. 2–4 and
`8 contain information that is “Highly Confidential – Attorneys Eyes Only” and/or
`“Highly Confidential – Source Code” of Mitek Systems, Inc. (“Mitek”). Id., ¶¶ 2–10,
`13. 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
`4
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 6 of 8 Page ID #:44569
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`necessity of this Application. Id., ¶ 11. 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 these documents be filed under seal. Id., ¶ 12.
`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., ¶¶ 1–14. 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.”).
`5
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 7 of 8 Page ID #:44570
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`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. 2–9
`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.” Corrected
`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.
`Corrected 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 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
`6
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 383 Filed 05/07/24 Page 8 of 8 Page ID #:44571
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
`
`7
`DEFENDANTS’ CORRECTED APPLICATION FOR LEAVE TO FILE UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MOTION FOR PARTIAL SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ASSERTED PATENTS OF THE ASSERTED
`
`PATENTS
`
`