Case 2:20-cv-07872-GW-PVC Document 474 Filed 05/24/24 Page 1 of 5 Page ID #:59531
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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.
`
`
`
`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
`
`REGARDING DEFENDANTS’
`vs.
`REPLY IN SUPPORT OF THEIR
`
`MOTION TO STRIKE CERTAIN
`BANK OF AMERICA
`INFRINGEMENT OPINIONS OF
`CORPORATION, a Delaware
`DAN SCHONFELD, PH.D.
`corporation, and BANK OF AMERICA,
`
`N.A., a national banking association,
`Local Rule 79-5.2.2(b)
`
`
`Defendants.
`[Filed concurrently with Declaration of
`
`Danielle Williams and Proposed Order]
`
`
`
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL REGARDING DEFENDANTS’ REPLY IN
`SUPPORT OF THEIR MOTION TO STRIKE CERTAIN INFRINGEMENT OPINIONS OF DAN SCHONFELD, PH.D.
`2:20-CV-7872-GW-PVC
`
`

`

`Case 2:20-cv-07872-GW-PVC Document 474 Filed 05/24/24 Page 2 of 5 Page ID #:59532
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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’ Reply in Support of Their Motion to Strike Certain
`Opinions Regarding Infringement in the Opening Report of Dan Schonfeld, Ph.D. (the
`“Reply”):
`Document Description
`Exhibit 28 to the Declaration of Danielle
`Williams in Support of the Reply:
`Declaration of Joseph Netikosol in
`Support of the Reply.
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`The Reply.
`
`Nature of Information to be Sealed
`Contains or references information
`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.
`Contains or references information
`designated by Defendants and Mitek as
`“HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” and
`“HIGHLY CONFIDENTIAL –
`SOURCE CODE” under the parties’
`stipulated protective order (Dkt. No.
`210). Plaintiffs do not oppose filing the
`Reply under seal.
`
`I.
`
`Background
`
`1
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL REGARDING DEFENDANTS’ REPLY IN
`SUPPORT OF THEIR MOTION TO STRIKE CERTAIN INFRINGEMENT OPINIONS OF DAN SCHONFELD, PH.D.
`2:20-CV-7872-GW-PVC
`
`

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`Case 2:20-cv-07872-GW-PVC Document 474 Filed 05/24/24 Page 3 of 5 Page ID #:59533
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`As set forth in the Declaration of Danielle Williams in Support of Defendants’
`Unopposed Application to File Documents Under Seal regarding the Reply submitted
`herewith, Defendants make this application because the foregoing documents include
`information marked and/or 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 Declaration of Danielle Williams (the “Williams
`Decl.”), ¶¶ 2–5. Defendants make this application because Exhibit 28 and the Reply
`contain or reference information that is Highly Confidential–Attorneys Eyes Only
`and/or Highly Confidential – Source Code of Bank of America and/or its vendors. Id.,
`¶¶ 4-5. 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., ¶¶ 1–5. 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
`2
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL REGARDING DEFENDANTS’ REPLY IN
`SUPPORT OF THEIR MOTION TO STRIKE CERTAIN INFRINGEMENT OPINIONS OF DAN SCHONFELD, PH.D.
`2:20-CV-7872-GW-PVC
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`Case 2:20-cv-07872-GW-PVC Document 474 Filed 05/24/24 Page 4 of 5 Page ID #:59534
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`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 following grounds. Exhibit 28 and the Reply
`contain or reference information designated as Highly Confidential–Attorneys Eyes
`
`Only and/or Highly Confidential – Source Code by Bank of America and/or Mitek.
`Williams Decl., ¶ 5. 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., ¶ 5. 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
`3
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL REGARDING DEFENDANTS’ REPLY IN
`SUPPORT OF THEIR MOTION TO STRIKE CERTAIN INFRINGEMENT OPINIONS OF DAN SCHONFELD, PH.D.
`2:20-CV-7872-GW-PVC
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`vendor. Id.
`Accordingly, Defendants respectfully request that the Court grant the Application
`to File the aforementioned documents under seal.
`
`
`Dated: May 23, 2024
`
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`Case 2:20-cv-07872-GW-PVC Document 474 Filed 05/24/24 Page 5 of 5 Page ID #:59535
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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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`
`4
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL REGARDING DEFENDANTS’ REPLY IN
`SUPPORT OF THEIR MOTION TO STRIKE CERTAIN INFRINGEMENT OPINIONS OF DAN SCHONFELD, PH.D.
`2:20-CV-7872-GW-PVC
`
`
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