-DN ClearOne Communications v. Chiang et al, No. 2:2007cv00037 - Document 2505 (D. Utah 2011)

Court Description: MEMORANDUM DECISION AND ORDER re: Sealed Docket Entries, granting 2258 Motion for Access; granting 2280 Motion for Access; finding as moot 2281 Motion to Expedite; granting 2340 Motion for Clarification; granting 2373 Motion for Joinder; granting 2454 Motion for Disclosure; granting in part 2463 Motion for Access. Signed by Magistrate Judge David Nuffer on 6/13/11 (alt)

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______________________________________________________________________________ IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION CLEARONE COMMUNICATIONS, INC., a Utah corporation, Plaintiff, MEMORANDUM DECISION and ORDER GRANTING MOTIONS RELATED TO SEALED DOCKET ENTRIES Civil No. 2:07-cv-037 TC-DN v. ANDREW CHIANG, an individual, JUN YANG, an individual, LONNY BOWERS, an individual, WIDEBAND SOLUTIONS, INC., a Massachusetts corporation, VERSATILE DSP, INC., a Massachusetts corporation, and BIAMP SYSTEMS CORPORATION, an Oregon corporation, District Judge Tena Campbell Magistrate Judge David Nuffer Defendants. WideBand Defendants,1 Biamp Systems Corporation (Biamp) and Interested Party Donald Bowers have made various requests to access the sealed docket entries in this case.2 Many court user only entries have not appeared on the public docket because they are administrative in nature (such as information on service by mail or email, transcript orders, or notes about docket corrections), make the public docket harder to read, and result in added PACER charges for persons downloading the public docket. On November 3, 2010, the 1 The WideBand Defendants are Defendants Lonny Bowers, Andrew Chiang, Jun Yang, WideBand Solutions, Inc., and Versatile DSP, Inc., collectively. 2 See Biamp Systems Corporation, Inc. s Emergency Motion for Access to Docket Items and Protection for Information Protected by the Common-Interest and /or Joint-Defense Privileges, docket no. 2258, filed Sept. 10, 2010; WideBand Defendants and Interested Non-Party Litigants/ Emergency Motion for Access to Docket Items and Protection for Information Protected by the Common Interest, Work Product and/or Joint Defense Privileges, docket no. 2280, filed Sept. 24, 2010; Biamp Systems Corporation, Inc. s Motion for Clarification Regarding Order Regarding Sealed Documents [Docket No. 2339] (Motion for Clarification), docket no. 2340, filed Nov. 11, 2010; Emergency Motion for Access to Court Only User Docket (Motion for Access 2454), docket no. 2454, filed Mar. 3, 2011; Emergency Motion for Access to Court Only User Docket (Motion for Access 2463), docket no. 2463, filed Mar. 11, 2011. magistrate judge issued an order3 explaining that some documents related to the Seizure Order4 were filed under seal because they contained information protected under the Confidentiality Order5 and that later, redacted versions of the sealed documents were filed. The order went on to unseal other sealed docket entries and documents related to the Seizure Order.6 Subsequently, Biamp moved for clarification of the Order Regarding Sealed Documents seeking to gain access to all past docket entries and all docket entries on a go-forward basis. 7 The magistrate judge took the motion for clarification under advisement and emailed a print-out of the entries listed in Biamp s motion to counsel for the parties who have access to attorneys' eyes only information. 8 After reviewing this information, Biamp filed a supplemental memorandum asking the court to fully populate the docket in this case. 9 Plaintiff ClearOne objects to fully populating the docket entries because many of the docket entries indicate that the underlying documents contain information protected by the Confidentiality Order in this case. 10 But ClearOne states that it has no objection to Biamp having access to these docket 3 Order Regarding Sealed Documents, docket no. 2339, filed Nov. 3, 2010. 4 Seizure Order, docket no. 2251, filed under seal Sept. 1, 2010; docket no. 2306, redacted version filed Oct. 8, 2010. 5 Confidentiality Order, docket no. 74, filed Mar. 9, 2007. 6 See Order Regarding Sealed Documents at 3. 7 Motion for Clarification at 3. 8 Docket Text Order, docket no. 2426, filed Feb. 11, 2011; see also Memorandum Decision and Order Granting Motion for Protective Order, docket 1923, filed Sept. 14, 2009 (denying Attorney Frails access to protected information). 9 Biamp Systems Corporation, Inc. s Supplemental Memorandum in Support of Its Motions for Access to Missing Docket Items and Pursuant to Docket Order 2426 (Supplemental Memo) at 2, docket no. 2444, filed under seal on Feb. 25, 2011. 10 Response to Biamp Systems Corporation s Supplemental Memorandum Pursuant to Docket Text Order No. 2426 (Response) at 2, docket no. 2459, filed Mar. 8, 2011 (citing Confidentiality Order, docket no. 74). 2 entries under a Highly Confidential or attorneys eyes only designation if the Court deems it appropriate. 11 Biamp argues that the docket entries must be unsealed because in even those limited situations where secrecy [of docket entries] has been permitted, a showing of absolute compelling reasons for the secrecy is required. 12 Many of the documents in this case are sealed for compelling reasons because they contain protected, proprietary or trade secret information.13 But according to the authority Biamp cites, the compelling reasons standard only applies to entries and documents that are related to dispositive motions, while a good cause showing is sufficient to seal other documents under Rule 26(c).14 The Kamakana court stated that it had previously reasoned that when a district court grants a protective order to seal documents during discovery, it already has determined that good cause exists to protect this information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality. 15 There was good cause to seal the documents in this case that were filed under the confidentiality order. Yet, after a complete review of the docket in this case,16 the magistrate judge finds that making all the docket entries public would not reveal any protected information, except for one sealed minute entry, docket no. 277, which may contain proprietary information. Further, it appears there are means of ensuring trade secret and proprietary information is protected without sealing so many documents in their entirety. 11 Id. (noting that it may not be appropriate for the court to release Court Notes or internal communications noted on the docket). 12 Id. at 4 (citing Kamakana v. City & County of Honolulu, 447 F. 3d 1172, 1180 (9th Cir. 2006). 13 See id. at 1179. 14 Id. at 1179-80. 15 Id. (quoting Phillips v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). 16 The docket in this case now contains over 2500 docket entries. 3 ORDER IT IS HEREBY ORDERED that Biamp s Motion for Clarification17 and WideBand Defendants Emergency Motion for Access 245418 are GRANTED. The relief requested on this subject in Biamp s Emergency Motion for Access to Docket Items,19 Donald Bowers s and WideBand Defendants Emergency Motion for Access20 (which is all that remains in those motions as the protection of private and privileged information has been accomplished) and WideBand Defendant s Motion for Joinder21 is GRANTED. Donald Bowers s Motion for Access 246322 is GRANTED IN PART because the remainder of his requested relief is unsupported. WideBand Defendants and Interested Non-Party Litigants Motion to Expedite23 is now MOOT. IT IS FURTHER ORDERED that all the docket entries on this case docket except docket no. 277 will be made public after 14 days from the date of this order, unless any party objects as to a specified docket entry within that time, stating specific reasons the docket entry should not be part of the public docket. After reviewing any objections, the court will issue an order 17 Biamp Systems Corporation, Inc. s Motion for Clarification Regarding Order Regarding Sealed Documents [Docket No. 2339] (Motion for Clarification), docket no. 2340, filed Nov. 11, 2010. 18 Emergency Motion for Access to Court Only User Docket (Motion for Access 2454), docket no. 2454, filed Mar. 3, 2011. 19 Biamp Systems Corporation, Inc. s Emergency Motion for Access to Docket Items and Protection for Information Protected by the Common-Interest and /or Joint-Defense Privileges, docket no. 2258, filed Sept. 10, 2010. 20 WideBand Defendants and Interested Non-Party Litigants/ Emergency Motion for Access to Docket Items and Protection for Information Protected by the Common Interest, Work Product and/or Joint Defense Privileges, docket no. 2280, filed Sept. 24, 2010. 21 The WideBand Defendants Notice of Joinder for Access to Hidden Docket Items, docket no. 2373, filed Dec. 8, 2010. 22 Emergency Motion for Access to Court Only User Docket (Motion for Access 2463), docket no. 2463, filed Mar. 11, 2011. 23 WideBand Defendants and Interested Non-Party Litigants Motion to Expedite Emergency Motion for Access to Docket Items and Protection for Information Protected by the Common Interest, Work Product and/or Joint Defense Privileges, docket no. 2281, filed Sept. 24, 2010. 4 unsealing docket entr g ries. The do ocuments ass sociated with the current sealed do h tly ocket entries will, however, remain seal at that tim , led me. IT IS FURTH T HER ORDER RED that any party whic desires th a specific sealed y ch hat c documen in this case file remain sealed mus file within 60 days of t order, as to each suc nt e n st this s ch documen (a) a redac version of such doc nt, cted cument attach to a No hed otice of Filin Redacted ng Version of Sealed Do o ocument identifying the sealed docu e ument to wh the reda hich acted version n relates or (b) a statem of facts justifying th a specific document should rema sealed in its r ment hat c ain n entirety and contains no content which can be made publ a w lic. Those p parties that ar not electro re onic filers wil provide the Notice and redacted ve ll e d ersion or stat tement of fa on a CD, in PDF form acts mat accompa anied by a pa aper copy. Sixty days af entry of t order, th magistrate judge will S fter this he e enter an order unseal o ling documen in this ca nts ase. IT IS FURTH T HER ORDER RED that fro this date forward, any party that files a docum om y ment designate to be filed under seal, must do so by providin it to the cl ed d , ng lerk on a CD in PDF form D mat, accompa anied by the paper copy. Registered electronic fi p ilers shall als electronic so cally file on the public do ocket (a) a re edacted versi or (b) sta ion atement of fa justifyin that the d facts ng document sho ould remain se ealed in its entirety and contains no content whic can be made public. e c ch Dated June 13 2011 D 3, BY THE CO OURT: __________ __________ __________ David Nuff fer U.S. Magist trate Judge 5

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