Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`EPIC GAMES, INC.,
`Plaintiff,
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`vs.
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`APPLE INC.,
`Defendant.
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`Case No. 4:20-cv-05640-YGR
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`PRETRIAL ORDER NO. 7 RE: THIRD PARTY
`ADMINISTRATIVE MOTIONS TO SEAL
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`Dkt. Nos. 486, 504, 506, 507, 513, 514, 516,
`522, 525, 526, 528, 543
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`AND RELATED COUNTERCLAIM
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`TO ALL PARTIES AND COUNSEL OF RECORD:
`The Court is in receipt of multiple third-party motions to seal, namely one filed by
`NVIDIA Corporation (Dkt. No. 504), Google LLC (Dkt. Nos. 506, 507), App Annie, Inc. (Dkt.
`No. 513), Sony Interactive Entertainment LLC (Dkt. No. 516), Yoga Buddhi Co (Dkt. No. 522),
`Roblox Inc (Dkt. No. 525), Valve Corporation (Dkt. No. 526), and Match Group Inc. (Dkt. No.
`528.), as well as two filed by defendant Apple Inc. relating to PayPal, Inc. (Dkt. No. 486, see also
`Dkt. No. 543) and AMZN Mobile LLC (“Amazon”). (Dkt. No. 514.)
`Local Rule 79-5 provides that documents, or portions thereof, may be sealed if a party
`“establishes that the documents, or portions thereof, are privileged, protectable as a trade secret, or
`otherwise entitled to protection under the law.” Civ. L. R. 79-5(b). In general, a “strong
`presumption in favor of access” to court records exists, especially during trial. At times,
`compelling reasons which are “sufficient to outweigh the public’s interest in disclosure and justify
`sealing court records exist when such ‘court files might have become a vehicle for improper
`purposes,’ such as the use of records to . . . release trade secrets.” Kamakana v. City and Cty. of
`Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. WarnerCommc’ns, Inc., 435
`U.S. 589, 598 (1978) (“[C]ourts have refused to permit their files to serve as . . . sources of
`business information that might harm a litigant’s competitive standing”).
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`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 2 of 7
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`Here, and importantly, the gravamen of this case is business competition, including
`whether competition exists; if so, among which players; and how such competition influences the
`market. The Court understands that the standard is more lenient when the information concerns
`third parties, but this is not dispositive. The third-party information must be balanced with the
`Court’s ultimate resolution of the instant dispute which should be transparent in its analysis.
`Accordingly, the Court makes the following findings based upon the current state of the record:1
`1. NVIDIA Corporation (Dkt. No. 504)
`The motion is GRANTED as to all documents except for:
` PX-2480/DX-3554 (Exhibit A)
`o Page 6-7: the title of the slides shall be disclosed. The remainder is sealed.
` PX-0729 (Exhibit B)
`o All pages shall disclose the title of the slides/pages. The remainder is
`sealed.
`The Court otherwise finds that the requested information is narrowly tailored toward
`sealing highly confidential information, including pricing strategy, business decision-making, and
`financial records, belonging to NVIDIA, a third-party non-party to this action, and that there are
`compelling reasons for such sealing. See, e.g., Arista Networks, Inc. v. Cisco Sys., Inc., No. 16-cv-
`00923-BLF, 2018 WL 2010622, at *2-3 (N.D. Cal. Apr. 30, 2018) (sealing “highly confidential
`and sensitive information relating to Cisco’s financial information and internal development
`strategies” and “highly confidential and sensitive information relating to Arista’s financial and
`customer information”); Juicero, Inc. v. iTaste Co., No. 17-cv-01921-BLF, 2017 WL 8294276, at
`*2 (N.D. Cal. Jun. 28, 2017) (sealing “confidential financial and business information”); Lathrop
`v. Uber Techs., Inc., No. 14-cv-05678-JST, 2016 WL 9185002, at *2 (N.D. Cal. Jun. 17, 2016)
`(“[U]nder Ninth Circuit law . . . internal reports are appropriately sealable under the ‘compelling
`reasons’ standard where that information could be used to the company’s competitive
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`1 Litigants are advised that if the Court ultimately decides that certain information is
`important to disclose which has been sealed, it will provide an opportunity for the moving party to
`respond.
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`2
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 3 of 7
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`disadvantage.”).
`NVIDA shall provide the parties with revised redacted versions of the documents which
`may be used in any public portion of the trial, assuming they are admissible.
`2. Google LLC (Dkt. Nos. 506, 507)
`The motion is GRANTED as to all documents except for:
` DX4172, DX-4910 (duplicate of DX-4172), DX-5325 (duplicate of DX-4172)
`(Exhibit A)
`o GOOG-APPL-00125075: the text under business model shall be
`unredacted. The remainder is sealed.
` DX-4046 (Exhibit F)
`o The entirety of the document shall be unredacted.
` DX-3779 (Exhibit H)
`o GOOG-APPL-00106407: the final bullet point above the privileged bullet
`point, starting with “We can’t afford…” shall be unredacted. The remainder
`is sealed.
` DX-3165 (Exhibit L), DX-3250 (Exhibit M), DX-3598 (Exhibit N), DX-3942
`(Exhibit O), DX-4001 (Exhibit P), DX-4310 (Exhibit Q)
`o The Court DEFERS considerations of these documents until their use at trial.
`The documents reflect general consumer survey data. There may be a
`strong public interest in disclosure of these documents, especially for
`certain pages that are otherwise reflective of the market, including
`consumer preferences. Google is on notice that certain pages may be
`unsealed depending on the testimony and use of these documents at trial.
` DX-4478 (Exhibit R)
`o The entirety of the document shall be unredacted.
`These documents, or portions thereof, do not reveal information which is so confidential as
`to be damaging if revealed as balanced against the need for public access. Moreover, these
`documents reflect areas of competition that are highly relevant to the Court’s determination in this
`3
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 4 of 7
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`action.
`Google shall provide the parties with redacted versions of the documents which may be
`used in any public portion of the trial, assuming they are admissible.2
`3. App Annie Inc. (Dkt. No. 513)
`This motion to seal is PROVISIONALLY GRANTED. Annie seeks to seal data showing
`estimates of app usage across various apps. (Dkt. No. 513-1 ¶ 8.) Annie is in the business of
`selling such data as part of providing analytics to developers. (Id. ¶ 2.) Accordingly, it may be
`harmed by being forced to provide its main product for free. Moreover, Apple indicates that it
`will only use such data in summary exhibits. (Id. ¶ 9.) The public's interest in accessing the
`specific exhibits is therefore reduced. For these reasons, the Court finds that the public interest in
`accessing the documents is outweighed by potential for harm to a third-party.
`However, neither Annie nor Apple have provided the exhibits at this time. Accordingly,
`this portion of the Order is contingent on the Court reviewing the documents.
`4. Sony Interactive Entertainment LLC (Dkt. No. 516)
`The motion is DENIED. Sony seeks to file under seal three exhibits (DX-3520, DX-4354,
`and DX-4357) evidencing policies that developers must follow regarding pricing information,
`virtual currency, and the setting of wholesale pricing. Sony has not demonstrated any harm of
`public disclosure where each of these policies are disclosed to developers who wish to sell on their
`digital marketplace. Indeed, per Sony’s motion, these documents are disclosed to all developers,
`indicating their wide and broad dissemination to developers engaging with Sony’s digital
`marketplace. Moreover, there is a significant public interest in accessing documents relating to
`alternative digital distribution platforms, including assessing the competition therein.
`5. Yoga Buddhi Co. (Dkt. No. 522)
`The motion is GRANTED. The motion is narrowly tailored in redacting personal
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`2 The Court does not understand the import of Google’s request that the redacted
`documents only be used in trial “so long as the public monitors or other displays are turned off while
`they are being displayed,” which is DENIED. All admitted documents will be readily available to the
`public at the end of each trial day. Limiting the display of each during the trial serves no logical
`purpose.
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 5 of 7
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`identifying information, including names, phone numbers, and email addresses. The majority and
`substance of the customer communications is otherwise appropriately unsealed and unredacted.
`6. Roblox, Inc. (Dkt. No. 525)
`The motion is GRANTED. The motion is narrowly tailored in seeking to file under seal one
`document (DX-3879) that contains sensitive information, including pricing, revenues and user
`data. Such information is appropriately sealed.3
`7. Valve Corporation (Dkt. No. 526)
`The motion is GRANTED as to all documents except for:
` DX-3585, DX-5333
`o The entire documents shall be unredacted. For reasons similar to Sony’s
`request, it is not all clear why these documents, template agreements
`presented to any developer who wishes to sell games on Valve’s Steam
`platform, should be sealed when these are widely disseminated to any
`developer who so requests it.4 These documents are highly relevant to the
`Court’s analysis in assessing where competition exists in this action.
` DX-3931, DX-4202, DX
`o The Court DEFERS consideration of these documents until their use at trial.
`These documents are the specific agreements between Epic Games, a party
`to this action, and Valve. Without knowing more about the context of how
`these documents will be used, the Court cannot make a ruling as to these
`Epic Games specific agreements.
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`3 As discussed in the Match Group section below, such general references summarizing
`the information contained within the document without reference to specific numbers (e.g. that
`more revenue is derived on one platform versus another platform) do not warrant the sealing of the
`courtroom.
`4 Valve’s citation to Philips v. Ford Motor Co., No. 14-cv- 02989, 2016 WL 7374214, at
`*6 (N.D. Cal. Dec. 20, 2016) does not persuade. There, at the motion for class certification stage,
`Judge Lucy Koh sealed internal pricing decisions and cost data that was not otherwise presented to
`the public. Here, these are template agreements presented to any developer who wishes to sell on
`the Steam platform. At the bench trial phase of this action, these documents’ wide dissemination
`does not support the sealing of these documents.
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 6 of 7
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` DX-4388, DX-3746, DX-3868 (duplicates: DX-5322)
`o The slide titled “Policy Proposal – Refresh” (Dkt. No. 526-7 at 2), and
`“Policy Proposal” (Dkt. No. 526-8 at 4; Dkt. No. 526-9 at 4) shall be
`unredacted as Valve has already implemented this policy with respect to
`Steam. The remainder at this time is appropriately sealed, however, Valve
`is on notice that one or two additional slides may be subject to unsealing
`depending on the context of their use at trial. (See, e.g., Dkt. No. 526-8 at
`2, 11; Dkt. No. 526-9 at 2, 11.)
` DX-4514, DX5321
`o The information in the partner and titles column shall be unredacted unless
`the game which is listed or the cross-play feature therein has not been
`publicly released. In other words, if the listed game or the cross-play
`feature has not been publicly released, the partner and title column for that
`game may then be sealed (redacted). The remaining proposed redactions
`are otherwise sealed.
` DX-4200 (duplicate: DX-5365)
`o The Court DEFERS consideration of this document until its use at trial.
`Discussions on the Epic Games Store may be highly relevant and therefore
`appropriately unredacted depending on their use at trial.
`These documents, or portions thereof, which are unredacted do not reveal information
`which is so confidential as to be damaging if revealed as balanced against the need for public
`access. Moreover, these documents reflect areas of competition that are highly relevant to the
`Court’s determination in this action.
`Valve shall provide the parties with revised redacted versions of the documents which may
`be used in any public portion of the trial, assuming they are admissible
`8. Match Group Inc. (Dkt. No. 528)
`The motion is GRANTED as to all documents except for:
` DX-4139 (Exhibit A), PX-0863 (Exhibit H)
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 547 Filed 04/30/21 Page 7 of 7
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`o These documents shall remain sealed. That said, the Court does not intend
`to seal the courtroom if general references summarizing the information
`without reference to specific numbers (e.g. that more in-app purchases or
`subscriptions occurred on one platform versus another platform) are
`discussed during trial.
`These requests are otherwise narrowly tailored to protect highly confidential information
`including non-public financial information.
`9. PayPal, Inc. and AMZN Mobile LLC (Dkt. Nos. 486, 514, 543)
`Apple requests the sealing of two specific agreements it has with PayPal and Amazon.
`The Court DEFERS consideration of these documents until their use at trial. These documents are
`the specific agreements between Apple, a party to this action, and PayPal and Amazon, non-
`parties. Without knowing more about the context of how these documents will be used, the Court
`cannot make a ruling as to these Apple specific agreements.
`This terminates Docket Numbers 486, 504, 506, 507, 513, 514, 516, 522, 525, 526, 528,
`and 543.
`IT IS SO ORDERED.
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`Dated: April 30, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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