Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 1 of 7 Page ID #:53886
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`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
`
`
`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
`
`Attorneys for Defendants
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
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`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’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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`

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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 2 of 7 Page ID #:53887
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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’ Unopposed Application to File Documents Under Seal
`regarding Defendants’ Opposition to Plaintiff’s Motion to Strike Portions of the
`Rebuttal Expert Report of Dr. James Storer (the “Opposition to Motion to Strike”):
`Document Description
`Nature of Information to be Sealed
`Designated by Defendants as “HIGHLY
`Exhibit 2 to the Declaration of Danielle
`CONFIDENTIAL – ATTORNEYS’
`Williams in Support of Defendants’
`EYES ONLY” and “HIGHLY
`Unopposed Application to File
`CONFIDENTIAL – SOURCE CODE”
`Documents Under Seal regarding the
`under the parties’ stipulated protective
`Opposition to Motion to Strike: excerpts
`order (Dkt. No. 210). Plaintiffs do not
`from the transcript of the March 29,
`oppose sealing this exhibit in its entirety.
`2024 Deposition of James A. Storer.
`Contains information that is
`Exhibit 3 to the Declaration of Danielle
`“Confidential” or “HIGHLY
`Williams in Support of Defendants’
`CONFIDENTIAL – ATTORNEYS’
`Unopposed Application to File
`EYES ONLY” under the parties’
`Documents Under Seal regarding the
`stipulated protective order (Dkt. No.
`Opposition to Motion to Strike: excerpts
`210). Plaintiffs do not oppose sealing
`from Defendants’ Objections and
`this exhibit in its entirety.
`Responses to Plaintiffs’ First Set of
`Interrogatories (1–16), dated April 5,
`2021.
`Exhibit 4 to the Declaration of Danielle
`Williams in Support of Defendants’
`
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
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`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 3 of 7 Page ID #:53888
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`Document Description
`Unopposed Application to File
`Documents Under Seal regarding the
`Opposition to Motion to Strike: excerpts
`from the transcript of the October 10,
`2023 Deposition of Pavan Chayanam.
`Exhibit 6 to the Declaration of Danielle
`Williams in Support of Defendants’
`Unopposed Application to File
`Documents Under Seal regarding the
`Opposition to Motion to Strike:
`Defendants’ Supplemental Objections
`and Responses to Plaintiffs’ First Set of
`Interrogatories (Nos. 4-5), dated October
`17, 2023.
`Exhibit 7 to the Declaration of Danielle
`Williams in Support of Defendants’
`Unopposed Application to File
`Documents Under Seal regarding the
`Opposition to Motion to Strike: Exhibit 6
`to NantWorks Preliminary Final
`Infringement Contentions – ’036 Final
`Infringement Claim Chart, dated August
`21, 2023.
`Exhibit 8 to the Declaration of Danielle
`Williams in Support of Defendants’
`Unopposed Application to File
`
`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 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” and “HIGHLY
`CONFIDENTIAL – SOURCE CODE”
`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’
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`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 4 of 7 Page ID #:53889
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`Document Description
`Documents Under Seal regarding the
`Opposition to Motion to Strike:
`Plaintiffs’ Second Supplemental
`Objections and Responses to
`Defendants’ Fifth Set of Interrogatories
`(29), dated December 20, 2023.
`Redactions of the Opposition to Motion
`to Strike.
`
`Nature of Information to be Sealed
`stipulated protective order (Dkt. No.
`210). Plaintiffs 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). Plaintiffs do not
`oppose redacting portions of this
`document.
`
`
`
`I.
`
`Background
`As set forth in the Declaration of Danielle Williams in Support of Defendants’
`Unopposed Application to File Documents Under Seal regarding the Opposition to
`Motion to Strike submitted herewith, Defendants make this application because the
`foregoing documents are either Confidential, Highly Confidential–Attorneys Eyes Only
`and/or Highly Confidential – Source Code or include/are based on information marked
`and/or designated as Confidential, 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.”), ¶¶ 2–10. Defendants make this application because Exhibit Nos. 2, 3, 4, 6, 7,
`8, and the Opposition to Motion to Strike contain or reference information that is
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`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 5 of 7 Page ID #:53890
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`Confidential, Highly Confidential–Attorneys Eyes Only and/or Highly Confidential –
`Source Code of Bank of America and/or its vendors. Id., ¶¶ 4–10. 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 these materials under seal. Id. Counsel
`for Defendants also conferred with counsel for Mitek in a similar manner, and Mitek’s
`counsel requested that the entirety of these documents that contain or reference Mitek
`confidential information be filed under seal. Id., ¶ 3.
`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’s
`confidential information. Id., ¶¶ 1–10. 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
`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
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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 6 of 7 Page ID #:53891
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`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 following grounds. Defendants designated
`Exhibits 2, 3, and 6 as Highly Confidential—Attorneys’ Eyes Only. Williams Decl., ¶¶
`4, 5, and 7. Plaintiffs designated Exhibits 7 and 8 as Highly Confidential—Attorneys’
`Eyes Only. Id., ¶¶ 8–9. Furthermore, Exhibits 4, 6–8, and the Opposition to Motion to
`Strike also contain or reference information designated as Confidential, Highly
`Confidential–Attorneys Eyes Only and/or Highly Confidential – Source Code by Bank
`of America and/or Mitek. Id., ¶¶ 7–10. Specifically, the foregoing materials contain
`non-public details about Bank of America’s vendors and non-public, proprietary details
`related to the design and functionality of Bank of America’s mobile check deposit. Id.
`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 and technical details regarding the design and
`functionality of its products. Williams Decl., ¶ 10. Bank of America does not share this
`type of information publicly because it could significantly harm Bank of America’s
`competitive standing and is subject to contractual obligations of confidentiality to its
`vendor. Id.
`Accordingly, Defendants respectfully request that the Court grant the Application
`to File the aforementioned documents under seal.
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`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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`Case 2:20-cv-07872-GW-PVC Document 442 Filed 05/17/24 Page 7 of 7 Page ID #:53892
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`Dated: May 17, 2024
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`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’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL
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