Case 5:18-md-02834-BLF Document 867 Filed 04/13/23 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`In re PERSONALWEB TECHNOLOGIES,
`LLC ET AL. PATENT LITIGATION.
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`Case No. 18-md-02834-BLF (SVK)
`Case No. 18-cv-00767-BLF (SVK)
`Case No. 18-cv-05619-BLF (SVK)
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`ORDER ON ADMINISTRATIVE
`MOTIONS TO CONSIDER WHETHER
`ANOTHER PARTY’S MATERIAL
`SHOULD BE SEALED
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`Re: -2834 Dkt. Nos. 859, 863
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`Before the Court are Amazon’s administrative motions to consider whether other parties’
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`material should be sealed. Dkt. 859, 863 (“Motions to Seal”). The subject of the Motions to Seal
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`are certain documents filed with (1) the Joint Submission Regarding Amazon’s Motion to Compel
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`Production of Documents that the PersonalWeb Investors Have Improperly Withheld as Privileged
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`(Dkt. 860), and (2) the Supplemental Submission Regarding Amazon’s Motion to Compel
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`Production of Documents that the PersonalWeb Investors Have Improperly Withheld as Privileged
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`(Dkt. 864). Dkt. 859, 863. The subject documents were designated as “Attorneys’ Eyes Only” or
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`“Confidential” by non-party investors in PersonalWeb under the stipulated protective order in this
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`case. Id.
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`This District’s Civil Local Rules require that when a filing party seeks to seal a document
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`because it has been designated as confidential by another party or non-party (the “Designating
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`Party”), the filing party must file an Administrative Motion to Consider Whether Another Party’s
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`Material Should Be Sealed, as Amazon has done by filing the Motions to Seal. Civ. L.R. 79-5(f).
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`The Designating Party is then required to file a statement and/or declaration within 7 days that
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`includes:
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02834-BLF Document 867 Filed 04/13/23 Page 2 of 4
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`(1) a specific statement of the applicable legal standard and the reasons for keeping
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`a document under seal, including an explanation of:
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`(i) the legitimate private or public interests that warrant sealing;
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`(ii) the injury that will result if sealing is denied; and
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`(iii) why a less restrictive alternative to sealing is not sufficient;
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`(2) evidentiary support from declarations where necessary; and
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`(3) a proposed order that is narrowly tailored to seal only the sealable material, and
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`which lists in table format each document or portion thereof that is sought to be
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`sealed.
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`Civ. L.R. 79-5(f)(3); 79-5(c)(1). For records attached to motions that re “not related, or only
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`tangentially related, to the merits of the case,” such as discovery motions, the party seeking to seal
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`court records must show “good cause” to overcome the “strong presumption in favor of access” to
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`judicial records and documents. See Ctr. For Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099
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`(9th Cir. 2016); Kamakana v. City & Cnty. Of Honolulu, 447 F.3d 1172, 1178, 1179 (9th Cir.
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`2006).
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`The Motion to Seal at Dkt. 859 was filed on March 24, 2023, but as of the date of this
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`Order the Designating Party (non-party Brilliant Digital Entertainment) has not filed the
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`declaration/statement required under Civil Local Rule 79-5(f)(3). By contrast, the Designating
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`Parties (non-parties Brilliant Digital Entertainment, Monto Holdings, Europlay Capital Advisors,
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`and Claria Innovations (collectively, the “Investors”)) did file a response to the Motion to Seal at
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`Dkt. 863. Dkt. 866. In their response, the Investors acknowledge the requirements set forth above
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`but argue that it is “overly burdensome” to respond to each document that Amazon has
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`provisionally filed under seal in the time frame stated in Rule 79-5. Id. at 2. They further state
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`that “when the Court has already decided that certain documents should be shielded from public
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`access pursuant to a protective order, the party designating the same as confidential or attorneys
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`eyes only is not required to come forward with a showing of good cause for sealing when such
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`documents are filed with a non-dispositive motion.” Id. at 2-3 (citing Phillips ex rel Estate of
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`Byrd v. General Motion Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)).
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`Case 5:18-md-02834-BLF Document 867 Filed 04/13/23 Page 3 of 4
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`To the extent the Investors suggest that the subject documents should be sealed simply
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`because they designated the documents as confidential under the Amended Protective Order in this
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`case, this District’s Civil Local Rules, as well as the Amended Protective Order itself, provide
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`otherwise. See Civ. L.R. 79-5(c) (“Reference to a stipulation or protective order that allows a
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`party to designate certain documents as confidential is not sufficient to establish that a document,
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`or portions thereof, are sealable.”); Dkt. 427 § 1 (acknowledgments in the Amended Protective
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`Order in this case that “this order does not confer blanket protections on all disclosures or
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`responses to discovery” and “the protection it affords from public disclosure and use extends only
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`to the limited information or items that are entitled to confidential treatment under the applicable
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`legal principles” and stating that “Civil Local Rule 79-5 sets forth the procedures that must be
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`followed and the standards that will be applied when a party seeks permission from the Court to
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`file material under seal”); id. at § 15.4 (stating that “[p]ursuant to Civil Local Rule 79-5, a sealing
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`order will issue only upon a request establishing that the Protected Material at issue is privileged,
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`protectable as a trade secret, or otherwise entitled to protection under the law”); see also Dkt. 786
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`(order granting stipulation to extend provisions of Amended Protective Order to Investors).
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`Simply put, “a blanket protective order that allows the parties to designate confidential documents
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`does not provide sufficient judicial scrutiny to determine whether each particular document should
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`remain sealed.” Jones v. PGA Tour, Inc., No. 22-cv-4486-BLF, 2023 WL 2232094, at *1 (N.D.
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`Cal. Feb. 23, 2023); see also Phillips, 307 F.3d at 1211 n.1 (“the burden of proof will remain with
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`the party seeking protection when the protective order was a stipulated order and no party had
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`made a ‘good cause’ showing”).
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`In the present circumstances, the Court declines the Investors’ suggestion that “the
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`resources of the Court are better utilized focusing on the merits of Amazon’s underlying motion to
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`compel as opposed to being side-tracked on a document-by-document determination of good cause
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`for the claimed confidential treatment” and that the Court simply “enter the proposed order
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`granting Amazon’s motion.” Dkt. 866 at 3. Although the Investors did not seek additional time to
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`file the statements/declarations required under Civil Local Rule 79-5(f)(3) in connection with the
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`Motions to Seal, the Court will provide them one final opportunity to do so. The Investors must
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`Case 5:18-md-02834-BLF Document 867 Filed 04/13/23 Page 4 of 4
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`file the required statements/declarations in response to the Motions to Seal at Dkts. 859 and 863
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`no later than April 27, 2023. Failure to file the statements/declarations by this deadline will result
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`in denial of the Motions to Seal without further notice to the Investors or other Parties.
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`SO ORDERED.
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`Dated: April 13, 2023
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`SUSAN VAN KEULEN
`United States Magistrate Judge
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