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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
`
`
`Attorneys for Defendants
`BANK OF AMERICA
`CORPORATION
`and BANK OF AMERICA, N.A.
`
`
`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
`
`
`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 IN
`
`CONNECTION WITH
`vs.
`DEFENDANTS’ MEMORANDUM
`
`OF LAW IN OPPOSITION TO
`BANK OF AMERICA
`NANTWORKS’ MOTION TO
`CORPORATION, a Delaware
`EXCLUDE CERTAIN EXPERT
`corporation, and BANK OF AMERICA,
`OPINIONS AND TESTIMONY OF
`N.A., a national banking association,
`DAWN HALL AND DR. JAMES
`
`STORER
`Defendants.
`
`
`
`
`
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MEMORANDUM OF LAW IN OPPOSITION TO NANTWORKS’ MOTION TO EXCLUDE CERTAIN EXPERT OPINIONS AND
`TESTIMONY OF DAWN HALL AND DR. JAMES STORER
`CASE NO. 2:20-CV-07872-GW-PVC
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 598 Filed 07/18/24 Page 2 of 5 Page ID #:77981
`
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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’ Memorandum of Law in Opposition to NantWorks’
`Motion to Exclude Certain Expert Opinions and Testimony of Dawn Hall and Dr. James
`Storer (“Opposition”):
`
`Document Description
`Exhibit 1 to the Declaration of Danielle
`Williams in Support of the Opposition:
`Excerpts of the Transcript of the
`Deposition of Dawn Hall dated May 17,
`2024.
`Memorandum of Law in Opposition.
`
`Nature of Information to be Sealed
`Designated by Defendants as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” under the parties’
`stipulated protective order (Dkt. No.
`210).
`Designated by Defendants in its entirety
`as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” under the
`parties’ stipulated protective order (Dkt.
`No. 210).
`
`
`
`I.
`
`Background
`As set forth in the Declaration of Danielle 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 “Highly Confidential –
`Attorneys Eyes Only” pursuant to the parties’ Stipulated Protective Order (Dkt. No.
`210). See Declaration of Danielle Williams (the “Williams Decl.”), ¶¶ 2–5. Defendants
`1
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MEMORANDUM OF LAW IN OPPOSITION TO NANTWORKS’ MOTION TO EXCLUDE CERTAIN EXPERT OPINIONS AND
`TESTIMONY OF DAWN HALL AND DR. JAMES STORER
`CASE NO. 2:20-CV-07872-GW-PVC
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 598 Filed 07/18/24 Page 3 of 5 Page ID #:77982
`
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`make this application because Exhibit 1 and the Opposition contain information that is
`“Highly Confidential – Attorneys Eyes Only” and/or “Highly Confidential – Source
`Code” of Bank of America. Id., ¶¶ 2–4. As required by Local Rule 79-5.2.2(b), counsel
`for Plaintiffs and Defendants conferred about Defendants’ filing the information in
`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 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).
`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, 161–62 (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
`2
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MEMORANDUM OF LAW IN OPPOSITION TO NANTWORKS’ MOTION TO EXCLUDE CERTAIN EXPERT OPINIONS AND
`TESTIMONY OF DAWN HALL AND DR. JAMES STORER
`CASE NO. 2:20-CV-07872-GW-PVC
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 598 Filed 07/18/24 Page 4 of 5 Page ID #:77983
`
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`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 foregoing Exhibit 1 and the
`Opposition contain Bank of America’s confidential commercial information, including
`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/or its vendors designated “Highly Confidential – Source Code.”
`Williams Decl., ¶ 5. 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.
`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 vendor. Id.
`
`3
`DEFENDANTS’ UNOPPOSED APPLICATION TO FILE DOCUMENTS UNDER SEAL IN CONNECTION WITH DEFENDANTS’
`MEMORANDUM OF LAW IN OPPOSITION TO NANTWORKS’ MOTION TO EXCLUDE CERTAIN EXPERT OPINIONS AND
`TESTIMONY OF DAWN HALL AND DR. JAMES STORER
`CASE NO. 2:20-CV-07872-GW-PVC
`
`
`
`
`
`Case 2:20-cv-07872-GW-PVC Document 598 Filed 07/18/24 Page 5 of 5 Page ID #:77984
`
`
`Accordingly, Defendants respectfully request that the Court grant the Application
`to File the aforementioned documents under seal.
`
`Dated: July 18, 2024
`
`Respectfully submitted,
`
`WINSTON & STRAWN LLP
`
`
`By:/s/ E. Danielle T. Williams
`George C. Lombardi (pro hac vice)
`E. Danielle T. Williams (pro hac vice)
`Dustin J. Edwards (pro hac vice)
`
`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 IN CONNECTION WITH DEFENDANTS’
`MEMORANDUM OF LAW IN OPPOSITION TO NANTWORKS’ MOTION TO EXCLUDE CERTAIN EXPERT OPINIONS AND
`TESTIMONY OF DAWN HALL AND DR. JAMES STORER
`CASE NO. 2:20-CV-07872-GW-PVC
`
`