V5 Technologies v. Switch Ltd. et al, No. 2:2017cv02349 - Document 376 (D. Nev. 2020)
Court Description: ORDER denying 366 Motion to Seal. Counsel will have 60 days to refile this motion. Signed by Magistrate Judge Brenda Weksler on 11/10/2020. (Copies have been distributed pursuant to the NEF - DRS)
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V5 Technologies v. Switch Ltd. et al Doc. 376 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 *** 5 V5 Technologies, 6 7 8 Case No. 2:17-cv-02349-KJD-BNW Plaintiff, ORDER v. Switch Ltd., et al., 9 Defendants. 10 11 Before the Court is Defendant’s motion to seal. ECF No. 366. Plaintiffs filed an 12 opposition. ECF No. 369. Defendant’s filed a reply. ECF No. 372. At issue are Exhibits 2, 3, 6, 8, 13 9, 10, 11, 15, 18, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57, 62, 77, 78, 91, 94, 96, 102, 104-106 and 14 110 to Defendant’s Motion for Summary Judgment, Exhibits 1-7 to its Zona Daubert Motion, and 15 Exhibits 1-7 to its Cole Daubert Motion. 16 First, the Court notes that Plaintiff explained, and Defendant agreed, that there is no such 17 thing as Exhibits 102, 104, 105, 106 and 110 to Switch’s Motion for Summary Judgment. Instead, 18 Plaintiff explains that what Switch designated as Exhibits 102, 104, 105, and 106 correspond to 19 Exhibits 1, 3, 4 and 5 to Switch’s Zona Daubert motion; Exhibit 110 corresponds to Exhibit 2 in 20 Switch’s Cole Daubert Motion. Thus, the Court will analyze these exhibits by referring to its 21 corrected designation. 22 23 24 Next, the Court notes that the parties sufficiently met and conferred. As a result, the Court will consider the motion. Switch moves to seal several exhibits filed in support of its Motion for Summary 25 Judgment, as well as its Zona and Cole Daubert Motions. Switch states that all these exhibits 26 could be used to tamper with, destroy, or otherwise access customers’ data without proper 27 authorization. They further contend that these exhibits contain trade secrets and sensitive 28 information about how the data of its customers is processed and stored. They point out that much Dockets.Justia.com 1 of the information customers store at Switch is either confidential or sensitive in nature, and that 2 it is critical for Switch to be able to maintain the integrity of this information free from attacks. 3 They also indicate that an attacker could use this information to identify the physical or digital 4 location of a customer’s data. Switch customers include government entities, hospitals, medical 5 providers, and insurance carriers. Switch explains that even with redactions, the information can 6 be used for social engineering enhanced attacks. 7 Plaintiff opposes the sealing of these records, incorporates the arguments it previously 8 made in its Motion at ECF No. 255, and points to Switch’s conclusory rationale for sealing which 9 lacks specificity as to each exhibit. Plaintiff also argues that Switch previously conceded to the 10 public filing of 34 out of the 47 documents it seeks to seal. Lastly, Plaintiff argues that Switch has 11 not taken proper efforts to redact documents. 12 In its reply, Switch repeats many of the arguments made in its opening brief. 13 Generally, the public has a right to inspect and copy judicial records. Kamakana v. City & 14 Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Such records are presumptively publicly 15 accessible. Id. Consequently, a party seeking to seal a judicial record bears the burden of 16 overcoming this strong presumption. Id. In the case of dispositive motions, the party seeking to 17 seal the record must articulate compelling reasons supported by specific factual findings that 18 outweigh the general history of access and the public policies favoring disclosure, such as the 19 public interest in understanding the judicial process. Id. at 1178-79 (alteration and internal 20 quotation marks and citations omitted). The Ninth Circuit has also held that the compelling 21 reasons standard applies to other documents filed in cases if the documents are “more than 22 tangentially related to the merits of the case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 23 F.3d 1092, 1101 (9th Cir. 2016). 24 Among the compelling reasons which may justify sealing a record are when such court 25 files might become a vehicle for improper purposes, such as the use of records to gratify private 26 spite, promote public scandal, circulate libelous statements, or release trade secrets. Kamakana, 27 447 F.3d at 1179 (quotation omitted). However, avoiding a litigant’s embarrassment, 28 Page 2 of 10 1 incrimination, or exposure to further litigation will not, without more, compel the court to seal its 2 records. Id. Here, while Switch has provided some information for its request, it has not sufficiently 3 4 tied these reasons to each exhibit. Indeed, the Court is left trying to decipher how the rationale 5 provided applies to each exhibit. While the need to seal certain exhibits may be evident, the Court 6 will not do Switch’s job of providing specific facts to seal each exhibit. As a result, the Court 7 denies this motion without prejudice. 8 9 Exhibit Nos. 2, 3, 6, 8, 9, 10, 11, 15, 18, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57, 62, 77, 78, 91, 94, 96, to Switch’s Motion for Summary Judgment 10 The exhibits in question for purposes of this motion are filed under seal at ECF Nos. 204- 11 1, 204-2, 207-1, 207-2, and 209-1. The Court attaches a chart it has assembled in an attempt to 12 rule on this motion. This will provide Switch a better indication of what the Court expects moving 13 forward. 14 Exhibit Nos. 1-7 to Switch’s Zona Daubert Motion1 15 The exhibits in question for purposes of this motion are sealed at ECF Nos. 215-1 and 16 217-1. The Court attaches a chart it has assembled in an attempt to rule on this motion. This will 17 provide Switch a better indication of what the Court expects moving forward. The Court also 18 notes that some of Switch’s heading requests that Exhibits 1-7 be sealed, while others request that 19 Switch’s Exhibits 5-7 be sealed. Accordingly, it is not clear to the Court what it is Switch seeks. 20 Exhibit Nos. 1-7 to Switch’s Cole Daubert Motion2 21 The exhibits in question for purposes of this motion are sealed at ECF Nos. 217-1 and 22 218-1. The Court again attaches a chart it has assembled in an attempt to rule on this motion. This 23 will provide Switch a better indication of what the Court expects moving forward. The Court also 24 notes that some of Switch’s heading requests that Exhibits 1-7 be sealed, while others request that 25 Switch’s Exhibits 4-6 be sealed. Again, it is not clear to the Court what it is Switch seeks. 26 27 28 1 As mentioned earlier, what Switch designated as Exhibit Nos. 102, 104, 105 and 106 for purposes of sealing correspond to Exhibits 1, 3, 4 and 5 in Switch’s Zona Daubert Motion. 2 As mentioned earlier, what Switch designated for purposes of sealing as Exhibit No. 110 corresponds to Exhibit 2 in Switch’s Cole Daubert Motion. Page 3 of 10 1 2 Exhibit Nos. 206, 221, and 817 to Plaintiff’s Motion for Summary Judgment These exhibits were discussed at the hearing regarding ECF No. 361. At the hearing, the 3 Court held that the attorney-client privilege had been waived but asked Switch to file a motion to 4 seal if it wished to maintain those exhibits under seal. The Court notes that all of the exhibits 5 discussed during the hearing may not be at play, as Switch seems to only seek the sealing of 6 Exhibit Nos. 206, 211, and 817. The Court will address these exhibits at the time Switch files its 7 new motion. 8 Exhibit No. 116 to this Motion 9 10 Switch has not filed this exhibit on the docket. Thus, the Court cannot make a determination about the need to seal Exhibit 116. 11 IT IS THEREFORE ORDERED that ECF No. 366 is denied. Switch will have 60 days 12 to re-file this motion. If the Court does not receive such a motion, it will unseal the exhibits. The 13 Court takes this opportunity to remind Switch that the Court is extremely busy and expects the 14 moving party to clearly point out where in the docket each of the documents it seeks to seal is 15 located (as opposed to expecting the Court do this). While the Court has taken the time to do this 16 in this instance, moving forward, the Court will simply deny any motion with this same issue. 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 of 10 1 Exhibits 2, 3, 6, 8, 9, 10, 11, 15, 18, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57, 62, 77, 78, 91, 94, 96, to Switch’s Motion for Summary Judgment 2 3 Specific reason Why redaction is 4 for sealing not possible 5 Exhibit 2 Portions of Mr. 6 Ballard’s 7 deposition 8 Exhibit 3 Portions of Mr. 9 Johnston’s 10 deposition 11 Exhibit 6 Portions of Mr. 12 Morley’s 13 deposition 14 Exhibit 8 Sales revenue 15 for several of its 16 customers and 17 dates reflecting 18 contract 19 expiration 20 Exhibit 9 & 10 21 contract 22 negotiations for 23 one of its 24 25 26 27 e-mails re customers Exhibit 11 e-mail involving strategy by switch to 28 Page 5 of 10 1 maintain certain 2 customers 3 Exhibit 15 Portions of Mr. 4 Cole’s 5 deposition 6 Exhibit 18 Portions of Mr. 7 Mendenhall’s 8 deposition 9 Exhibit 46 Portions of Mr. 10 Brown’s 11 deposition 12 Exhibit 47 Portions of Dr. 13 Zona’s 14 deposition 15 Exhibit 49 Portions of Mr. 16 Ritter’s 17 deposition 18 Exhibit 50 Portions of Mr. 19 Castor’s 20 deposition 21 Exhibit 51 Portions of Mr. 22 Kempen’s 23 deposition 24 Exhibit 53 Portions of Mr. 25 Mayne’s 26 deposition 27 28 Page 6 of 10 1 Exhibit 54 Portions of Mr. Roy’s deposition 2 3 Exhibit 55 (filed 4 manually) 5 Exhibit 56 Customer list Portions of Mr. 6 Jamaca’s 7 deposition 8 Exhibit 57 Portions of Mr. 9 Leonard’s 10 deposition 11 Exhibit 62 Portions of Mr. 12 Draayer’s 13 deposition 14 Exhibit 77 2012 e-mail 15 regarding 16 Cobalt’s strategy 17 Exhibit 78 e-mail regarding 18 Switch business 19 strategy 20 Exhibit 91 Portions of Ms. 21 Lanphier’s 22 deposition 23 Exhibit 94 Portions of Mr. 24 Brown’s 25 deposition 26 27 28 Page 7 of 10 1 Exhibit 96 Portions of Mr. 2 Stimmel’s 3 deposition 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 8 of 10 1 Exhibit Nos. 1-7 to Switch’s Zona Daubert Motion 2 3 Specific reason for Why redaction is not 4 sealing possible 5 Exhibit 1 6 7 deposition Exhibit 2 8 9 Exhibit 3 Exhibit 4 Portions of Mr. Cole’s deposition Exhibit 5 Portions of Mr. Castor’s deposition 14 15 Portions of Mr. Morley’s deposition 12 13 Expert Report of J. Douglas 10 11 Mr. Zona’s entire Exhibit 6 & 7 On-line articles 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 9 of 10 1 Exhibit Nos. 1-7 to Switch’s Cole Daubert Motion 2 3 Specific reason for Why redaction is not 4 sealing possible 5 Exhibit 1 6 7 Gabriel Exhibit 2 8 9 Expert Report of G. Mr. Cole’s entire deposition Exhibit 3, 4 & 5 On-line articles 10 Exhibit 6 Settlement agreement 11 Exhibit 7 G. Gabriel’s’ Expert 12 Reply Report 13 14 DATED: November 10, 2020 15 16 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 Page 10 of 10
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