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`UNITED STATES DISTRICT COURT
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`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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`AND RELATED COUNTERCLAIM
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`TO ALL PARTIES AND COUNSEL OF RECORD:
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`Case No. 4:20-cv-05640-YGR
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`TRIAL ORDER NO. 5 RE: (1) MOTION FOR
`ADVERSE CREDIBILITY FINDING; (2)
`SEALING REQUESTS; (3) STIPULATIONS;
`AND (4) RELATED CASES COUNSEL ACCESS
`TO SEALED DOCUMENTS AND TRANSCRIPTS
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`Northern District of California
`United States District Court
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`The Court issues this Order with respect to several items on the docket:
`1. Motion for Adverse Credibility Finding (Dkt. No. 602)
`The Court has received defendant Apple Inc.’s motion for an adverse credibility finding as
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`to Lori Wright, a witness from third party Microsoft Corporation. (Dkt. No. 602.) The Court
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`understands that Microsoft intends to file a response to the pending motion. The Court therefore
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`SETS the following briefing schedule on the motion: on or before May 17, 2021, Microsoft and
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`plaintiff Epic Games, Inc. may file a response to the pending motion. Apple may thereafter file a
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`reply on or before May 24, 2021. The Court will decide the motion on the papers unless
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`otherwise so ordered by the Court.
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 2 of 8
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`2. New Sealing Requests
`The Court has received several new requests to seal from both the parties and third parties.
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`As the Court explained in both Pretrial Orders Number 7 and 9, as well as Trial Order 1:
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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
`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:1
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`(Dkt. No. 547 at 1-2; Dkt. No. 564 at 1-2; Dkt. No. 594 at 2-3.)2 With this prior framework in
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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 The Court similarly stated in Trial Order No. 3:
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`Trial records enjoy a “strong presumption in favor of access” that can
`only be overcome by “compelling reasons supported by specific
`factual findings that outweigh the general history of access and the
`public policies favoring disclosure.” Kamakana v. City & Cty. of
`Honolulu, 447 F.3d 1172, 1178- 79 (9th Cir. 2006). “In general,
`‘compelling reasons’ 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 gratify private spite, promote public scandal,
`circulate libelous statements, or release trade secrets.” Id. at 1179
`(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
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`(Dkt. No. 613 at 1.)
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`Northern District of California
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 3 of 8
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`mind, the Court addresses the below administrative motions and requests to seal.
`a. Apple’s Individual Request to Seal (PX-314)
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`As stated in Trial Order No. 3, the Court ordered Apple to submit proposed redactions for
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`PX-314. Apple has submitted proposed redactions in accordance with Trial Order No. 3. Having
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`reviewed the document and the proposed redactions therein, the Court finds that the proposed
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`redactions are narrowly tailored in seeking sensitive and confidential information, the disclosure
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`of which would result to competitive harm to Apple. Thus, the Court APPROVES of the proposed
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`redactions submitted by Apple.
`b. Roblox Inc.’s Motion to Seal. (Dkt. No. 573)
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`Third party Roblox Inc. has filed an administrative motion to seal requesting the sealing of
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`Figure 5 from the written direct testimony of Apple’s expert witness Lorin Hitt. (Dkt. No. 573.)
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`As stated in Trial Order No. 4, the Court granted the sealing of Figure 5. (Dkt. No. 614 at 9.)
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`Thus, the Court GRANTS this motion.
`c. Sony Interactive Entertainment LLC’s Motion to Seal (Dkt. No. 576)
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`Third party Sony Interactive Entertainment LLC has filed an administrative motion to seal
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`sensitive and confidential documents (DX-3660, DX-3865, DX-3988, DX-4425, DX-4493, DX-
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`4519, DX-3094, DX-3125, DX-3433, and DX-3582), selected portions of deposition testimony
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`from Joe Kreiner, and selected portions of the written direct testimony from Apple’s expert
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`witness Lorin Hitt. The Court has already addressed Sony’s request to seal selected portions of
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`deposition testimony from Kreiner. (See Dkt. No. 609 (Trial Order No. 2).) The Court addresses
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`the remaining two requests. Thus:
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`First, as the Court has stated on the record and recognized in Trial Order No. 2, the parties
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`inadvertently disclosed confidential documents belonging to Sony in the maintaining of the
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`publicly accessible box during the course of this bench trial. The disclosure of these documents
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`has already been widely reported.3 Given that these documents have already been widely
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`3 See, e.g., https://www.theverge.com/2021/5/3/22417560/sony-ps4-cross-play-
`confidential-documents-epic-games-agreements.
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 4 of 8
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`disseminated to the public, the Court does not intend to seal these documents. The bell has
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`already been rung. To the extent that any of these identified documents have not been disclosed to
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`the public, Sony may file on or before May 14, 2021 a renewed administrative motion to seal
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`which identifies these as of yet undisclosed documents along with their proposed redactions for
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`the Court’s consideration. At this time, the motion is DENIED WITHOUT PREJUDICE with respect
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`to these documents.
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`Second, Sony Interactive Entertainment seeks to seal portions of the Lorin Hitt direct
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`written testimony. The Court GRANTS sealing as to the first and second bullet points of paragraph
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`114 only, which contain confidential negotiated terms whose disclosure could harm Sony in future
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`negotiations. (Dkt. No. 576-22 ¶ 19.) The remainder of paragraphs 114 and 115 shall be
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`unredacted as containing highly generalized and already-public information. Sealing is further
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`DENIED as to paragraph 163, which contains information that has already been disclosed to the
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`public. Figure 4 is sealed in accordance with multiple parties’ confidential information. (See Dkt.
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`No. 614.)
`d. Apple’s and Epic Games’ Sealing Requests (Dkt. Nos. 577, 596)
`The Court DENIED WITHOUT PREJUDICE the parties’ sealing requests on the record on
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`Friday, May 7, 2021. The parties submitted a smaller subset of documents for the Court’s
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`consideration, which included those documents used by the parties during the first week, and to
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`which the Court issued its ruling in Trial Order No. 3. (Dkt. No. 613.)
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`Going forward, the parties are ORDERED to file an administrative motion by 6:00 PM
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`PDT on Friday, May 14, 2021 for any exhibits admitted into evidence for the past week and for
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`which they seek to seal in whole or in part. To the extent that there are any exhibits admitted into
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`evidence for which they seek to seal the following week, the parties shall similarly file an
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`administrative motion by 6:00 PM PDT on Friday, May 21, 2021. Finally, should this trial
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`continue into the week of May 24, 2021, any final administrative motion to seal admitted exhibits
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`for that week shall be filed within twenty-four (24) hours of the close of the final trial day.
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`Any such third-party declarations in support of the administrative motions filed by the
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`parties must be filed within twenty-four (24) hours of the filing of the administrative motion.
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`Northern District of California
`United States District Court
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 5 of 8
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`e. Nintendo of America Inc.’s Request to Seal, Motion to Seal, and Motion for
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`Reconsideration (Dkt. Nos. 610, 624, 625)
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`Third party Nintendo of America, Inc. has filed (1) a declaration in support of sealing
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`several exhibits (DX-4365, DX-4485, PX-2456, PX-2442) (Dkt. No. 610), (2) an administrative
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`motion to seal the specific agreement between Nintendo and Epic Games (DX-3464) (Dkt. No.
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`624), and (3) a motion for reconsideration as to the denial of sealing of Joe Kreiner’s deposition
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`designation (specifically, 82:14-83:3 and 83:12-16). (Dkt. No. 625.) The Court addresses each in
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`turn:
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`First, with respect to the declaration in support of sealing several exhibits (DX-4365, DX-
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`4485, PX-2456, PX-2442), the Court GRANTS the request as follows:
` DX-4365
`o This document is appropriately sealed, as the document contains sensitive
`and confidential information, including user and platform data, the release
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`of which would result in competitive harm to Nintendo. That said, the Court
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`does not intend to seal the courtroom if general references summarizing the
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`information without reference to specific numbers are discussed during
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`trial.
` DX-4485
`o 4485.001: The financial amounts as to each platform shall be sealed. The
`remainder on this page and in the document shall be unredacted.
` PX-2456
`o The Switch specific financial amounts shall be sealed on EPIC_02030347,
`EPIC_02030355, and EPIC_02030363. The remainder shall be unredacted
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`barring any further requests from Epic Games or other third parties.
` PX-2442
`o This page (EPIC_00126837) shall be unredacted and not sealed. This page
`is highly relevant to determining platform overlap with respect to Fortnite
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`and is relevant to determining substitutability between different platforms.
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 6 of 8
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`Second, the Court DEFERS consideration of the specific Epic Games and Nintendo
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`agreement (DX-3464) until its use at trial. (See Dkt. No. 524.) As the Court stated in Pretrial
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`Order No. 9, the Court is inclined to seal party specific agreements given that these documents
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`reflect sensitively negotiated terms and conditions. (Dkt. No. 564 at 3-4.) However, to obtain a
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`comprehensive understanding of the considerations of sealing versus the public’s right of access,
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`the Court finds it appropriate to defer this request until its use at trial. That said, given that the
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`template or generic agreement has been ordered unsealed, the Court intends to only seal terms
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`which deviate from this generic version. Nintendo or Epic Games shall therefore submit a red line
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`between the generic version and the specific agreement for the Court’s consideration.
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`Finally, Nintendo moves for reconsideration as to the denial of the sealing of Joe Kreiner’s
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`deposition designation (specifically, 82:14-83:3 and 83:12-16). (Dkt. No. 525.) As noted above,
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`it is the Court’s standard practice to seal specialized terms that were the result of the parties’
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`negotiations. Here, the terms at issue (i) have already been discussed by several fact witnesses
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`and expert witnesses on the record; and (ii) impact gameplay mechanics within Fortnite that are
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`readily apparent to anybody who has played the game itself. Nintendo’s request to seal the mere
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`mention of the existence of these terms, whose existence can be inferred by merely playing
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`Fortnite, is wholly inappropriate without further explanation in light of the foregoing.
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`Accordingly, the Court DENIES the motion.
`f. Samsung Electronics Co. Ltd. Transcript Sealing (Dkt. No. 615)
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`The Court has reviewed Apple’s notice regarding the proposed unsealing of the transcript
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`from the trial day on May 3, 2021 relating to Samsung Electronics Co. Ltd. (Dkt. No. 615.) The
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`Court HEREBY ORDERS as follows:
` The specific numerals referenced a page 203, lines 16, 20, and 21; and page 205,
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`line 16 are sealed.
` Following the comma in page 209, line 13 through line 16 are sealed.
` Page 209, lines 21-22 in their entirety are sealed.
` Following that “that” in page 210, line 5 through line 7 is sealed.
` Following the comma in page 211, line 5 through line 9 is sealed.
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 7 of 8
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` Following “disclosed” in page 211 until line 10 until “correct” in line 11.
` All other proposed redactions are DENIED. The remainder of the transcript shall be
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`unsealed other than the above redactions.
`g. PayPal Inc.’s Request to Seal (Dkt. No. 627)
`The Court GRANTS PayPal Inc’s request to seal PX-2451. The request is narrowly tailored
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`to redact certain information, the disclosure of which would competitively harm PayPal.
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`Samsung request to seal
`h. Spotify USA Inc.’s Motion to Seal (Dkt. No. 638)
`The Court GRANTS Spotify USA Inc.’s request to seal the proposed redactions in the
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`document with bates numbers SPOT-EPIC-00000932 through SPOT-EPIC-00000943. (Dkt. No.
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`638.) The Court is unclear if this document will be used as an exhibit in this bench trial. That
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`said, should this document be admitted into evidence or referenced in any way during the course
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`of the trial, the Court does not intend to seal the courtroom if general references summarizing the
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`redacted information without reference to specific numbers are discussed during trial.
`3. Pending Stipulations
`Having reviewed the stipulations, and for the good cause shown therein, the Court GRANTS
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`the following pending stipulations.
` Dkt. No. 519
`o The written direct testimony and rebuttal reports for each expert witness
`will only be formally admitted into evidence and therefore warrant posting
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`on the public box (subject to the resolution of sealing issues) on the day of
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`the expert witness’ testimony, absent any instruction on sealing.
` Dkt. No. 629
`o The Clerk of the Court shall admit into evidence the exhibits attaching the
`testimony identified in the witness deposition designations reflected on page
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`2 of the stipulation.
` Dkt. No. 635
`o The Clerk of the Court shall admit into evidence the exhibits identified in
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`Northern District of California
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`Case 4:20-cv-05640-YGR Document 643 Filed 05/12/21 Page 8 of 8
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`this stipulation. All exhibits shall be posted to the public box except for
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`those in which the parties have identified any potential sealing issue. Those
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`documents for which the Court has issued a definitive ruling (i.e. a ruling
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`other than deferred) shall be placed into the public box in conformance with
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`the Court’s Orders (or shall be appropriately withheld in the event that the
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`entirety of the document is appropriately sealed).
` Dkt. No. 637
`o In accordance with the parties’ stipulation, DX-5552, reflecting categories
`with the Apple App Store, is ADMITTED into evidence.
`4. Related Cases Counsel Access to Sealed Documents and Transcripts
`As discussed on the record on May 12, 2021, counsel in the related cases (In re Apple
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`Antirust Litigation, 4:11-cv-6714-YGR, and Cameron v. Apple Inc., 4:19-cv-3074) are
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`PERMITTED to access the sealed documents and sealed transcripts in this action in light of their
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`agreements to the stipulated protective orders in this action.
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`This Order terminates Docket Numbers 519, 573, 576, 577, 596, 610, 615, 624, 625, 627,
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`629, 635, 637, and 638.
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`IT IS SO ORDERED.
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`Dated: May 12, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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