Case 4:20-cv-05640-YGR Document 564 Filed 05/02/21 Page 1 of 5
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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. 9 RE: ADDITIONAL
`THIRD PARTY ADMINISTRATIVE MOTIONS
`TO SEAL
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`Dkt. Nos. 551, 561
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`AND RELATED COUNTERCLAIM
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`TO ALL PARTIES AND COUNSEL OF RECORD:
`The Court previously issued Pretrial Order Number 7 on Friday, April 30, 2020, which
`dealt with several administrative motions to seal received from third parties. (See Dkt. No. 547.)
`Since issuing Pretrial Order Number 7, additional administrative motions to seal from third parties
`were filed and received on Friday evening. (See Dkt. Nos. 546 (Facebook Inc.), 550 (Lyft Inc.),
`551 (Microsoft Corporation), 554 (Nintendo of America, Inc.), 555 (Kabam, Inc.), 560 (Spotify
`USA Inc.), 561 (Samsung Electronics Co., Ltd).) Given that time is of the essence, the Court has
`conferred with the parties to determine which of these additional administrative motions must be
`addressed prior to trial commencing on Monday, May 3, 2021. Based on the parties’
`representations, the Court addresses only Microsoft’s and Samsung’s administrative motions.1
`As the Court explained in Pretrial Order Number 7:
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`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
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`1 The remainder of the above motions will be addressed in a subsequent trial order.
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`Case 4:20-cv-05640-YGR Document 564 Filed 05/02/21 Page 2 of 5
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`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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`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:2
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`(Dkt. No. 547 at 1-2.) With this prior framework in mind, the Court addresses Microsoft’s and
`Samsung’s administrative motions.
`1. Microsoft Corporation (Dkt. No. 551)
`The motion is GRANTED as to all documents except for:
` PX2477/DX-5523 (Dkt. No. 551-5)
`o Page 13 of the presentation: the sub-heading shall be unredacted.
`o Pages 13-14, and 16-17 of the presentation: the information in the right-hand
`column of these pages shall be unredacted except for Microsoft’s own amounts,
`which incorporates internal confidential financial data. The remainder of the
`proposed redactions on these pages are otherwise appropriately sealed.
`o Page 23 of the presentation: sub-heading shall be unredacted except the percentage
`amount, which is appropriately sealed.
`o Page 55 of the presentation: the sub-heading shall be unredacted. The smaller sub-
`heading below that is appropriately sealed.
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`2 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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`Case 4:20-cv-05640-YGR Document 564 Filed 05/02/21 Page 3 of 5
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`o Page 56 of the presentation: the entirety of this page shall be unredacted except that
`the Microsoft specific information may be redacted along with the sub-total and
`total for the console amount and the platform amount.
`o Page 60 of the presentation: the sub-heading shall be unredacted except the
`percentage amount, which is appropriately sealed.
`o The remainder of the proposed redactions in the document is appropriately sealed.
`o That said, the Court does not intend to seal the courtroom if general references
`summarizing the information without reference to specific numbers are discussed
`during trial.
` DX-3918 (Dkt. No. 551-16)
`o These proposed redactions shall remain sealed. Again, the Court does not intend to
`seal the courtroom if general references summarizing the information without
`reference to specific numbers (e.g. that Minecraft has sold more on one platform
`versus another platform) are discussed during trial.
` PX-2475/DX-5521 (Dkt. No. 551-19; 551-20)
`o Page 15 of the presentation (page 4 of Dkt. No. 551-20): the last item listed shall be
`unredacted except that the video game referenced in the last sentence may be
`redacted and is appropriately sealed.
`o The remainder of the proposed redactions in the document is appropriately sealed.
`o The Court understands that a witness from Microsoft is testifying in this action.
`Any general questions and discussions on where Microsoft competes with the
`parties will not warrant the sealing of the courtroom. Instead, only specific actions
`or initiatives may warrant the sealing of the courtroom, which the Court will
`consider at the appropriate time.
` DX-3437/DX-3587/DX-3764 (Dkt. No. 551-24; 551-26; 551-28)
`o The Court is inclined to grant the requests to seal party specific agreements,
`including ones that it has previously addressed in Pretrial Order Number 7 (e.g. the
`Valve and Epic Games agreement, and PayPal and Amazon agreements with
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`Case 4:20-cv-05640-YGR Document 564 Filed 05/02/21 Page 4 of 5
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`Apple) given that these documents reflect sensitively negotiated terms and
`conditions. However, to obtain a comprehensive understanding of the
`considerations of sealing versus the public’s right of access, the Court will also
`DEFER consideration of this request until the document’s use at trial.
`Regarding the unredacted documents above: 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 to the factual issues underlying this case. These documents reflect areas of
`competition that are not only highly relevant to the Court’s determination in this action, but are
`hotly contested.
`Microsoft 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 otherwise admissible.
`2. Samsung Electronics Co., Ltd. (Dkt. Nos. 561)
`The Court rules on the administrative motion to seal brought by Samsung as follows:
` DX-3300, DX-3472, DX-3662, DX-3721, DX-4236, DX- 4335, DX-4370, PX-2447
`(Exhibits A through H)
`o As discussed with Microsoft’s similar request above, the Court DEFERS
`consideration of the sealing of these documents, reflecting specific agreements
`between Epic Games and Samsung, until these documents are offered at trial.
` DX-4428, DX-4524, DX-4457, DX-3048, DX-3620, DX-4322, DX-4800 (Exhibits I
`through N)
`o GRANTED IN PART and DENIED IN PART as follows:
` These emails are highly relevant to this action and the public’s right to
`access these documents significantly outweigh any competitive harm to
`Samsung. Indeed, Samsung’s requested sealing of these documents is
`overbroad, where these emails evidence candid conversations between
`two players in a proposed relevant market in this action. The sealing of
`the entirety of these documents is not warranted.
` That said, specific terms may be sealed at this time due to perceived
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`Case 4:20-cv-05640-YGR Document 564 Filed 05/02/21 Page 5 of 5
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`competitive harm to Samsung, including:
` The specific revenue splits mentioned on EPIC_00011561-62
`(Exhibit J) mentioned in the short-term and long-term boxes are
`appropriately sealed.
` The first bullet point under the Epic Games short-term box shall
`be sealed on EPIC_00011561 (Exhibit J).
` The copied provision from the parties’ agreement on
`EPIC_00547871 (Exhibit L) is appropriately sealed at this time,
`pending decision from the Court on Samsung’s earlier request.
` The specific revenue split mentioned at the top of the page on
`EPIC_00547872 (Exhibit L) is also appropriately sealed.
` On EPIC_00192148 (Exhibit M), at the paragraph starting with
`“Having said that,” the remainder of the sentence after “Having
`said that,” shall be sealed.
` Samsung’s remaining two requests regarding the sealing of written direct testimony of
`Lorin M. Hitt and the deposition designation of Joe Kreiner will be considered and
`addressed in a separate order. Thus, the Court DEFERS consideration of these requests
`to be addressed in a subsequent trial order.
`With regards to the emails, as set forth above, 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 not only
`highly relevant to the Court’s determination in this action, but are hotly contested.
`Samsung 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.
`This Order terminates Docket Numbers 551, and 561.
`IT IS SO ORDERED.
`Dated:
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`May 2, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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