Case 5:15-cv-02008-EJD Document 86 Filed 04/18/16 Page 1 of 4
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`Robert F. McCauley (SBN 162056)
`robert.mccauley@finnegan.com
`Jacob A. Schroeder (SBN 264717)
`jacob.schroeder@finnegan.com
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`3300 Hillview Avenue
`Palo Alto, CA 94304-1203
`Telephone:
`(650) 849-6600
`Facsimile:
`(650) 849-6666
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`Gerald F. Ivey (pro hac vice)
`Smith R. Brittingham IV (pro hac vice)
`Elizabeth A. Niemeyer (pro hac vice)
`John M. Williamson (pro hac vice)
`Rajeev Gupta (pro hac vice)
`Aidan C. Skoyles (pro hac vice)
`Cecilia Sanabria (pro hac vice)
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`Telephone:
`(202) 408-4000
`Facsimile:
`(202) 408-4400
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`Stephen E. Kabakoff (pro hac vice)
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`3500 SunTrust Plaza
`303 Peachtree Street, N.E.
`Atlanta, GA 30308-3263
`Telephone:
`(404) 653- 6400
`Facsimile:
`(404) 653-6444
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`Attorneys for Plaintiffs
`OpenTV, Inc., Nagravision S.A., and Nagra France S.A.S.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`CASE NO. 5:15-cv-02008-EJD (NMC)
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`PLAINTIFFS’ ADMINISTRATIVE
`MOTION TO PARTIALLY FILE
`UNDER SEAL DEFENDANT’S
`MOTION TO PRECLUDE AND
`CERTAIN SUPPORTING EXHIBIT
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`ADMIN. MTN TO FUS
`CASE NO. 5:15-CV-02008-EJD
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`OPENTV, INC., NAGRAVISION S.A., and
`NAGRA FRANCE S.A.S.
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`Plaintiffs,
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`Defendant.
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`v.
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`APPLE INC.,
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`Case 5:15-cv-02008-EJD Document 86 Filed 04/18/16 Page 2 of 4
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`Pursuant to Civil Local Rules 7-11 and 79-5(b) and (d), Plaintiffs OpenTV, Inc., Nagravision
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`S.A., and Nagra France S.A.S. (collectively “OpenTV”) hereby respond to Apple’s prior motion to
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`seal (ECF No. 84) and hereby moves the Court for leave to partially file under seal (1) Defendant’s
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`Motion to Preclude Reliance on Certain Invention Dates and to Strike Certain Allegations (ECF No.
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`85) (“Apple’s Motion”), and (2) Exhibit 7 to the Declaration of Melody Drummond Hansen in
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`Support of Defendant’s Motion (“Hansen Exhibit 7”). Specifically, OpenTV moves to file under
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`seal:
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`1.
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`The same portions of Apple’s Motion that Apple highlighted/redacted for sealing
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`(i.e., the portions of Apple’s Motion that Apple highlighted/redacted at pages 6, 7, 9, and 12 of
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`Apple’s Motion), because they contain confidential OpenTV information, and
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`2.
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`Specific portions of Hansen Exhibit 7 that disclose OpenTV confidential and
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`proprietary information, although Apple had requested that the entire document be sealed based on
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`its confidential designation. OpenTV is lodging herewith a highlighted version of Hansen Exhibit 7,
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`which highlights the portions of Hansen Exhibit 7 that OpenTV requests be sealed, and OpenTV is
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`also publicly filing a corresponding redacted version of Hansen Exhibit 7 along with this motion to
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`partially seal.
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`Although Apple also requested sealing of Hansen Exhibits 2 and 8 (because they contain
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`OpenTV information), OpenTV is not requesting that those Exhibits be sealed.
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`This motion to seal by OpenTV is supported by a concurrently filed Declaration of Brian
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`Platt Responding to Apple’s Motion to Seal and in Support of Plaintiffs’ Administrative Motion to
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`Partially File Under Seal Defendant’s Motion to Preclude and Certain Supporting Exhibit (“Platt
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`Declaration”). As explained in the Platt Declaration, pages 6, 7, 9, and 12 of Apple’s Motion, as well
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`as the portions of Hansen Exhibit 7 highlighted by OpenTV and lodged herewith disclose a
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`confidential and proprietary development date for the invention that led to U.S. Patent No. 7,725,740
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`(“the ’740 patent”). As attested in the Platt Declaration, the development date for the invention that
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`led to ’740 patent is confidential and proprietary information belonging to OpenTV that concerns the
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`domain of security modules. Disclosure of the date when such a security system was developed and
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`potentially incorporated into certain OpenTV’s products, and related information, would provide
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`Case 5:15-cv-02008-EJD Document 86 Filed 04/18/16 Page 3 of 4
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`would-be hackers with information about the security protocols present (or not present) in certain
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`OpenTV products that would otherwise remain secret. Such disclosure would weaken the strong
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`security protocols that OpenTV has worked to develop and market to its customers as part of its
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`competitive advantage over its competitors in the marketplace. Platt Dec. ¶ 5.
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`Although there is a general presumption of public access to dispositive motions (and papers
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`and exhibits supporting them), e.g., Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d
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`1206, 1213 (9th Cir. 2002), that presumption “do[es] not apply with equal force to non-dispositive
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`materials.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006) (citing
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`Phillips, 307 F.3d at 1213). “The application of a strong presumption of access to sealed records, not
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`directly relevant to the merits of the case, would eviscerate the broad power of the district court to
`fashion protective orders.” Id. (internal quotations omitted). “In short, ‘good cause’ suffices to
`warrant preserving the secrecy of sealed discovery material attached to nondispositive motions.”
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`Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (emphasis added); see
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`also Kamakana, 447 F.3d. at 1180 (same, citing Foltz); see also OpenTV, Inc. v. Apple Inc., Case
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`No. 14-cv-01622-HSG, Order Granting Administrative Motion To Seal (DI 168).
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`Here, Apple’s Motion and Hansen Exhibit 7 were submitted on a non-dispositive issue, and
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`the Platt Declaration satisfies the good cause requirement to seal the portions of Apple’s Motion and
`Hansen Exhibit 7 requested by OpenTV here and in the Platt Declaration.1 See In re Wachovia Corp.
`“Pick a Payment” Mortgage Marketing and Sales Practices Litigation, Case No. 3:09-cv-02015-
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`RS-PSG, 2013 WL 6200008, *2 (N.D. Cal. Nov. 27, 2013) (granting motion to seal under Civil L.R.
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`79-5, citing declaration attesting to the risk of “competitive disadvantage” if a motion to seal were
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`not granted). OpenTV’s highlights/redactions of the exhibit are also narrowly tailored to seek sealing
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`of only sealable material per Civil L.R. 79-5(b). Accordingly, OpenTV respectfully requests that its
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`motion to partially seal Apple’s Motion and corresponding Hansen Exhibit 7 be granted.
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`1 The Platt Declaration also satisfies the more demanding standard for dispositive motions.
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`Case 5:15-cv-02008-EJD Document 86 Filed 04/18/16 Page 4 of 4
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`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
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`By: /s/ Robert F. McCauley
`Robert F. McCauley
`Attorneys for Plaintiffs
`OpenTV, Inc., Nagravision S.A., and
`Nagra France S.A.S
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`Respectfully submitted,
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`Dated: April 18, 2016
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