[00:00:00] Speaker 03:
We'll now hear argument in 191922, Unaloc 2017 versus Apple.

[00:00:07] Speaker 03:
Mr. Jacobs, when you're ready.

[00:00:10] Speaker 02:
Thank you.

[00:00:11] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:14] Speaker 02:
My name is Aaron Jacobs, and I represent the Unaloc Parties in this appeal.

[00:00:17] Speaker 02:
Unaloc respectfully requests that the Court reverse the orders of the District Court below, which directed the Unaloc to make public certain trade secrets of more than 100 third parties and the Unaloc entities.

[00:00:28] Speaker 02:
I'd like to begin by focusing on three points.

[00:00:30] Speaker 02:
First, this appeal focuses on just 23 documents, nearly all of which are only lightly redacted to remove licensing and financial information.

[00:00:39] Speaker 02:
This information qualifies as trade secrets, and not even the Intervenor can find a case in which this sort of narrowly tailored information was forced into the public.

[00:00:48] Speaker 02:
Second, the district court below explicitly stated that Apple's motion to dismiss for standing grounds did not depend on any of the information that Unilock here seeks to seal.

[00:00:59] Speaker 02:
And third,

[00:01:00] Speaker 02:
the district court's order making public this information vitiated more than 100 confidentiality agreements with third parties, which are backed up by more than 100 protective orders in courts across this country.

[00:01:12] Speaker 02:
As interventors brief itself recognized on page 14, the Ninth Circuit in Center for Auto Safety versus Crisis Group emphasized that, quote, the presumption of public access is based on the need for federal courts, although independent, to have a measure of accountability

[00:01:28] Speaker 02:
and for the public to have confidence in the administration of justice.

[00:01:32] Speaker 02:
And as the cases show, this applies in the given case as to the particular issue at hand.

[00:01:38] Speaker 02:
Unless there are any particular issues or questions the panel would like me to address, there are several points I'd like to turn to.

[00:01:47] Speaker 03:
One question I had was with the third party information.

[00:01:52] Speaker 03:
If we were to conclude hypothetically that the names of the licensees

[00:01:56] Speaker 03:
should be redacted.

[00:01:59] Speaker 03:
Does that take away the vast majority of the concerns raised here with regard to the second round of redactions?

[00:02:10] Speaker 02:
Some, but not all, Your Honor.

[00:02:12] Speaker 02:
If you were to redact the names of the licensees, that would presumably address some of the issues, although you could still, for example, take a look at the approximate dates of the payments and line them up with cases.

[00:02:23] Speaker 02:
But that would only address the third party issues.

[00:02:26] Speaker 02:
It would not address, and specifically the licensee third party issues, it would not address Unalox concerns about its own trade secrets and its own interest in maintaining the confidentiality of those license numbers.

[00:02:41] Speaker 04:
So can I ask you this?

[00:02:44] Speaker 04:
Assume for purposes of this question that you're right that the legal standard of the balancing

[00:02:53] Speaker 04:
that the district court engaged in was not right.

[00:02:57] Speaker 04:
Nevertheless, as to the first order, the initial denial of the motion to seal, let's assume that the district court was right in saying that the request to redact was very substantially overbroad.

[00:03:20] Speaker 04:
Why doesn't that

[00:03:23] Speaker 04:
second basis suffice to support the rulings on appeal, which now include the second ruling denying reconsideration on a basis that could have been available to you at the first round.

[00:03:47] Speaker 04:
Why isn't that all by itself enough?

[00:03:50] Speaker 04:
You got one chance

[00:03:52] Speaker 04:
to tailor the redactions, you didn't do so adequately, and you don't get a second chance.

[00:04:04] Speaker 02:
Yes, Your Honor.

[00:04:05] Speaker 02:
As to that, I would say that the court refusing to give the party a second chance specifically to address licensing issues stands out.

[00:04:18] Speaker 02:
Even the Intervenor couldn't find a case in which that happened.

[00:04:21] Speaker 02:
In case after case, including those cited in Uniloc's principal brief at footnotes 10 to 22, and then again on page 49, Uniloc identified instances in which the Northern California repeatedly, and again in every instance we could find, granted a party the right to go back and readdress issues specifically relating to licensing amounts.

[00:04:47] Speaker 02:
We could not find a situation in which the court said, no, you,

[00:04:51] Speaker 02:
over-redacted and therefore you don't get a second chance.

[00:04:55] Speaker 04:
Have you presented a case, and I think I understand the sort of core notice idea or something behind this point, but do you have a case that says that it is an abusive discretion to deny a narrowing opportunity in circumstances

[00:05:20] Speaker 04:
like this, particularly against the background of local rules that, you know, may not be explicit, but, you know, the reconsideration rule is pretty constraining.

[00:05:37] Speaker 02:
Your Honor, addressing those somewhat in reverse order, I would suggest that the question of reconsideration is a bit of a red herring in that we also appealed the original order.

[00:05:48] Speaker 02:
This is not an appeal just of the rejection of the motion for leave to file a reconsideration.

[00:05:53] Speaker 02:
Rather, we used that as a chance to give this court the chance to address those documents again and put into the record the retrenched redactions.

[00:06:03] Speaker 02:
Regarding whether it's an abusive discretion, I can't find a case like that because no court has ever said this is the only chance you get to seal these documents.

[00:06:13] Speaker 02:
And this particular information

[00:06:15] Speaker 02:
which every court in the Northern District of California ever to address this has said, these are trade secrets.

[00:06:22] Speaker 02:
I could not find a case in which the court said, no, you don't get another chance.

[00:06:27] Speaker 02:
If every single instance in which this particular issue has been addressed in the Northern District of California, if in every single one of those, every other party has been given the chance to go back and revise its redactions,

[00:06:42] Speaker 03:
then I would... But we're talking about a circumstance.

[00:06:46] Speaker 03:
The district court has a lot of discretion in these matters.

[00:06:49] Speaker 03:
He's followed the case.

[00:06:51] Speaker 03:
And why is this, I mean, aside from the notice issue that Judge Toronto referred to briefly, why, if a court had said, you're going to get one chance to do this, you wouldn't be here, I assume.

[00:07:11] Speaker 03:
Right?

[00:07:12] Speaker 03:
I mean, your suggestion is that you're arguing that you should always get a chance because that's what everybody else does.

[00:07:18] Speaker 03:
Are you positing that even if the judge had said to you first up, you're going to get one chance to do this, guys, and you better get it right.

[00:07:26] Speaker 03:
Would you still be here?

[00:07:27] Speaker 03:
I don't know, Your Honor.

[00:07:35] Speaker 03:
to let parties know because of scheduling or other issues that they better take proper care in the first instance so as not to drain the time for the district court and his staff.

[00:07:47] Speaker 03:
Are you suggesting that that in and of itself is an abuse of discretion?

[00:07:52] Speaker 02:
No, Your Honor.

[00:07:52] Speaker 02:
I would submit that if it was a published and known rule from the court that you get one and only one chance, that would be a different situation.

[00:08:00] Speaker 02:
But again, in this situation, every single precedent, every single example

[00:08:05] Speaker 02:
has given the parties the chance to go back and do it again.

[00:08:08] Speaker 02:
In retrospect, yes.

[00:08:09] Speaker 02:
It would have been the better practice if we had known, if we had ever seen anything like this, we would have asked for more time.

[00:08:17] Speaker 02:
Because frankly, when we got the motion at 10.30 PM on a Friday and had to file the motions to seal the following Tuesday, we did not have time to address the line by line points.

[00:08:27] Speaker 02:
In retrospect, that would have been the better practice.

[00:08:31] Speaker 02:
But in this court and in every instance we have seen,

[00:08:35] Speaker 02:
The courts either sealed all of the documents or some of the documents if they were identified as redactions or granted the party the chance to go back again.

[00:08:46] Speaker 02:
If the court had said, you get one and only one chance, that is my rule, that would be one thing.

[00:08:52] Speaker 02:
But that's not the situation we see here.

[00:08:54] Speaker 02:
And we're not suggesting that the court say that a district court can't do that.

[00:09:06] Speaker 04:
I think I asked this before, but I want to be sure.

[00:09:15] Speaker 04:
Do you have a case that says when, on the assumption that you're right about the premises here,

[00:09:26] Speaker 04:
A consistent practice cannot be changed without advance notice relevant to circumstances like this, even though it's not like changing a formal rule, but it's changing what you say is a uniform practice everywhere any of the parties here have been able to find.

[00:09:52] Speaker 04:
that it's actually an abuse of discretion, a case that says that.

[00:10:00] Speaker 02:
No, Your Honor, I don't have a specific case that says that.

[00:10:03] Speaker 03:
Okay, thanks.

[00:10:04] Speaker 03:
And it's also the case, is it not, that the district court, I mean, there's nothing that suggests that all district court judges in a particular jurisdiction have to follow the same rule, correct?

[00:10:16] Speaker 03:
Correct, they don't, but in this instance, everyone... It's not an abuse of discretion.

[00:10:20] Speaker 03:
Well, yeah, but it's an abuse of discretion if you've got six judges and then you get a new judge appointed and that judge, under circumstances here, which let's assume we construe as being fairly extreme in terms of the initial submission, that a district court can't decide on his or her own that they want to be a little more stringent and scrupulous about how they review these documents.

[00:10:47] Speaker 03:
What's the problem with that?

[00:10:49] Speaker 02:
Right?

[00:10:50] Speaker 02:
The problem is that it does not give the party notice on how it should have handled the matter at that point.

[00:10:59] Speaker 02:
Perhaps going forward it would, but from that point it wouldn't.

[00:11:02] Speaker 02:
In terms of extreme, I would address, again, the case of Apple versus Samsung, the appeal that this court heard and that Your Honor Chief Judge Prost wrote the opinion for.

[00:11:13] Speaker 02:
If you recall in that instance, Apple and Samsung filed more than 30 motions to seal

[00:11:18] Speaker 02:
And Apple sought to seal 250 documents spanning thousands of pages.

[00:11:23] Speaker 02:
Those motions were denied once, twice, three times, four times, over three hearings.

[00:11:30] Speaker 02:
And Apple reduced its focus from 250 documents to 30.

[00:11:35] Speaker 02:
And in each instance, Apple was given a chance to come back again and again.

[00:11:39] Speaker 02:
That is the practice we have seen in the Northern District of California.

[00:11:44] Speaker 02:
That is the practice we have seen in the cases cited by

[00:11:47] Speaker 02:
our principal and responsive briefs.

[00:11:50] Speaker 02:
And in that instance, Judge Coe did grant the motion to seal certain documents, specifically including licensing and other financial terms.

[00:11:57] Speaker 02:
Again, she sealed the very information that we're trying to seal here, but she denied the motion that's got certain other materials.

[00:12:06] Speaker 02:
So when that case finally made it to this court, Apple reduced the amount it sought to seal, yet again, just 14 documents, barely 5% of what's originally at issue.

[00:12:18] Speaker 02:
And even after Judge Coe gave Apple four sets of pleadings and three hearings, this court concluded that Judge Coe abused her discretion in not sealing those remaining materials.

[00:12:30] Speaker 02:
Based upon what your honors have been saying, you would almost suggest that, well, she gave you one try and that was enough.

[00:12:36] Speaker 02:
She gave them four tries and yet still this information your honors directed to seal that information.

[00:12:44] Speaker 02:
So even that district courts again, which this court determined abusive discretion and not stealing Apple's documents.

[00:12:51] Speaker 02:
Even that district court recognized that licensing and financial information, which is what Unilock here seeks to seal is sealable and should be sealed.

[00:13:02] Speaker 02:
The district court of Northern California has reaffirmed this point again and again, licensing and financial terms are sealable and should be sealed and to call out and deny Unilock and only

[00:13:12] Speaker 02:
Unlock that protection.

[00:13:14] Speaker 02:
I submit your honors was an abuse of discretion.

[00:13:18] Speaker 03:
So how many tries do you get?

[00:13:23] Speaker 03:
What if you had gotten one trial and one try and just pared it down to 60% of what you were asking for?

[00:13:32] Speaker 03:
And the judge clearly within his discretion said that was really way over broth.

[00:13:39] Speaker 03:
Would we still be here on try three?

[00:13:44] Speaker 02:
Your honors, I would submit that I see my time expired.

[00:13:48] Speaker 02:
Can I answer the question?

[00:13:49] Speaker 02:
You can answer.

[00:13:50] Speaker 03:
You can answer.

[00:13:51] Speaker 03:
And I think Judge Toronto may have another question, which you should hear.

[00:13:54] Speaker 03:
But go ahead.

[00:13:55] Speaker 02:
Sure.

[00:13:57] Speaker 02:
I would agree that at least one try is sufficient.

[00:14:02] Speaker 02:
If the district court judge made then a mistake of law or upon the laws of the facts, or for that matter, a mistake of practice, then I would submit that there is still an issue that could be appealed to this court.

[00:14:14] Speaker 02:
I certainly agree that abusive discretion is a very high standard.

[00:14:18] Speaker 02:
But I would also submit that the judge in the court below did abuse his discretion.

[00:14:24] Speaker 02:
And so even if a party is given a second chance and the judge says, no, I still don't agree with this, it's all going to be public.

[00:14:32] Speaker 02:
If there's information in there that should be sealed and is clearly sealable based upon the precedence of that court, then there would be an issue to appeal based upon the abusive discretion standard.

[00:14:46] Speaker 04:
Judge Toronto, did you have?

[00:14:47] Speaker 02:
Yeah.

[00:14:47] Speaker 04:
So my, my, my quick question, um, do you happen to remember in Apple Samsung was the argument made, um, or addressed by this court that, um, irrespective of the details of what was denied, um, uh, ceiling treatment at rounds two, three, and four, it was sufficient to, um, affirm Judge Coe there.

[00:15:16] Speaker 04:
that those requests came too late since the initial requests were overbroad?

[00:15:25] Speaker 02:
No, I don't believe that was addressed in any of those cases.

[00:15:28] Speaker 02:
In each instance, Judge Coe said, this is too much, come back.

[00:15:32] Speaker 02:
In each instance, Apple did.

[00:15:34] Speaker 02:
And in each instance, Apple dropped more and more and more documents.

[00:15:38] Speaker 02:
And then again, after

[00:15:40] Speaker 04:
So you're relying on the Apple Samsung for kind of what happened in fact, not for a ruling to the effect that overbred that round one can never be sufficient to deny an opportunity for a round two.

[00:16:01] Speaker 02:
Your Honor, there's a great deal of useful precedent in the Applebee-Samsung case that applies, and I would suggest this is positive in this matter.

[00:16:09] Speaker 02:
But as to that one particular issue, I would agree that it doesn't address that particular issue.

[00:16:14] Speaker 02:
Yes, Your Honor.

[00:16:15] Speaker 03:
Okay, thanks.

[00:16:17] Speaker 03:
All right.

[00:16:18] Speaker 03:
Well, thank you, and we'll restore your rebuttal time.

[00:16:21] Speaker 03:
Let's hear from Ms.

[00:16:22] Speaker 03:
Moss.

[00:16:23] Speaker 03:
Are you there?

[00:16:24] Speaker 00:
Yes.

[00:16:26] Speaker 00:
Thank you, Your Honors, and may it please the court

[00:16:29] Speaker 00:
I, you know, there are a number of issues in the briefs and I heard the argument focus on a sort of particular issue on the question of notice on the applicability of Apple v. Samsung and the number of tries there and the district court's discretion in applying the presumption of public access and managing its docket unless there are other questions that the court has first.

[00:16:56] Speaker 04:
No, I guess I would very much like you to address that.

[00:17:00] Speaker 04:
First of all, the premise that nobody has pointed to another instance where a rejection of a ceiling request as overbroad was not followed by an opportunity to narrow.

[00:17:17] Speaker 00:
Yes, well, frankly, Your Honor, we didn't find a case with initial redactions that were anywhere near this excessive.

[00:17:26] Speaker 00:
noticed this case from seeing the docket and trying to read the pages of the standing motion and the entire pages of it were redacted, entire legal argument sections were redacted.

[00:17:41] Speaker 00:
And none of the cases that we're aware of that are being cited are in fact, you know, precedential decisions and the district court here

[00:17:53] Speaker 00:
having seen the excessiveness of the first set of redactions, and also having seen the support that was supplied, which were largely litigation counsel's assertion.

[00:18:03] Speaker 00:
But then on the second round, when the district court had a set of revised redactions, but redactions that were still excessive, that still included the request to seal exhibits in their entirety, still requested to seal information that's in the district court's opinion.

[00:18:19] Speaker 00:
There are still portions of that that are redacted.

[00:18:21] Speaker 00:
And the district court looking at the second set that were still overbroad and what was supplied to support them were more generalized assertions of the same type that had been rejected.

[00:18:34] Speaker 00:
And under those circumstances, the other cases that counsels recognized simply don't come close to that situation.

[00:18:46] Speaker 00:
So there were, importantly, what happened between the different sites at the Apple was an entire trial, a jury trial.

[00:18:54] Speaker 00:
The analogy between Apple v. Samsung we think supports our position because there you had initially a large list of potential trial exhibits and it's very common that the parties have a long list of things they think may get into trial and that doesn't happen.

[00:19:11] Speaker 00:
And here the remaining exhibits ended up not being admitted to trial.

[00:19:15] Speaker 00:
It was clear that they couldn't have been part of the jury's verdict because the jury didn't know that they existed.

[00:19:22] Speaker 00:
We think that is an example of an important change in circumstances that might justify a second try.

[00:19:30] Speaker 00:
Here, these are just filings on a dispositive motion.

[00:19:34] Speaker 00:
And what happened was there was a hearing that couldn't even substantively address the details because of the ceiling.

[00:19:40] Speaker 00:
You know, all of the submissions that were supplied the second round were available at the first.

[00:19:46] Speaker 00:
And turning to the notice question, you know, it is true that EFF filed its motion to intervene and seal the day before the hearing.

[00:19:54] Speaker 00:
But that's because we really didn't want to intervene.

[00:19:57] Speaker 00:
We reached out to the parties in November and in December we had a long meeting conferred.

[00:20:03] Speaker 04:
And we... Well, just to be clear, at least I wasn't understanding this question of notice

[00:20:09] Speaker 04:
having anything whatsoever to do with EFF, but rather with the idea that an over-broad redaction request was at least according to what's being cited for the first time not accompanied with an opportunity to narrow.

[00:20:32] Speaker 04:
And maybe you're saying, well, yeah, that's the first time, but there are no other circumstances where

[00:20:37] Speaker 04:
the initial request was comparably overbroad.

[00:20:43] Speaker 04:
But I guess just on the premise, I'm not hearing you saying, yeah, there are other cases in which, under any circumstance, there was no opportunity to narrow an initially overbroad request.

[00:20:58] Speaker 04:
And I assume you're also saying even doing it for the first time is perfectly legally sufficient.

[00:21:06] Speaker 00:
Sorry, can I clarify what you mean doing which the first time?

[00:21:10] Speaker 04:
Saying over broad, go away, these documents are now going to be in the public record unless you come back and show us something that you couldn't have told us the initial round under the three prong reconsideration standard.

[00:21:29] Speaker 00:
Oh, returning to the reconsideration question, the district court, the rules,

[00:21:36] Speaker 00:
you know, require there to be a basis that's new.

[00:21:39] Speaker 00:
And I think the point about our, you know, notice point in the beginning is that, you know, appellant has suggested that it wouldn't have been, you know, possible to have, you know, provided these additional support.

[00:21:54] Speaker 00:
And in fact, they had, you know, months and months where they could have done that.

[00:21:58] Speaker 00:
And we did put them on notice that the, you know, redactions were overbroad.

[00:22:04] Speaker 00:
And I mean, this is entire pages of the legal argument section were redacted.

[00:22:10] Speaker 03:
Yeah, no, no, no.

[00:22:10] Speaker 03:
But again, the notice we're talking about, Ms.

[00:22:13] Speaker 03:
Moss, is the notice that they didn't recognize because of the practice in the district or otherwise that they would not get another chance if the district court in fact concluded that their initial request was overbought.

[00:22:29] Speaker 03:
That's the notice, right?

[00:22:30] Speaker 03:
And you don't know of another circumstance where that has happened.

[00:22:34] Speaker 03:
Your argument is, however, that this was extreme.

[00:22:38] Speaker 00:
Yes, that's correct.

[00:22:39] Speaker 00:
They don't have a case in the district offhand where that happened.

[00:22:44] Speaker 00:
But the rules do require narrowly tailored redactions.

[00:22:49] Speaker 00:
That's part of the rules.

[00:22:50] Speaker 00:
I think reading the local rules should have put the parties on notice that they had to comply with them.

[00:22:56] Speaker 04:
And yet, as far as we know, every single district court in every single case that has been cited to us

[00:23:03] Speaker 04:
including in the Northern District of California, where this rule has had the same language for a long time, has given an opportunity to narrow.

[00:23:17] Speaker 00:
We do not see a case there where there has been anything that is close to this.

[00:23:25] Speaker 00:
And to be honest, there are, unfortunately, in a lot of patent cases in particular,

[00:23:32] Speaker 00:
District courts don't always do the rigorous analysis and scrutiny of the assertions that are supplied in support of a ceiling request.

[00:23:41] Speaker 00:
And there may indeed be examples of situations where courts didn't scrutinize as closely as Judge Alsop did.

[00:23:48] Speaker 00:
But we think that Judge Alsop was correct and well within his discretion to undertake that rigorous scrutiny and to look at the assertions that were provided

[00:23:58] Speaker 00:
compare them to what was being sealed, and see if they could support that and stand up.

[00:24:03] Speaker 03:
Well, the point you make, I think, is correct.

[00:24:07] Speaker 03:
The point you made where, if we're being honest, a lot of judges excessively just allow these redactions.

[00:24:13] Speaker 03:
But that's kind of the reservation we're having, which is whether they have a sufficient basis to think that this was going to be a problem, or at least they wouldn't get a second chance.

[00:24:25] Speaker 03:
Can I just move you on to one question where we started with your friend on the other side, which is what about the third party names of the licensees?

[00:24:33] Speaker 03:
I mean, even if for the reasons you say there's nothing that's ever been this excessive at the get-go, why do we penalize or apply an extraordinarily stringent rule to the private, to the interests of third parties who don't bear any responsibility for whatever excesses were

[00:24:55] Speaker 03:
included in the initial submission.

[00:24:59] Speaker 00:
Frankly, because Appellant isn't taking them seriously.

[00:25:03] Speaker 00:
As Your Honor suggested, the way to protect the identities of these licensees would be to redact just their names and disclose the substantive information anonymously.

[00:25:16] Speaker 00:
And that has never been a request that was before Judge Alsop.

[00:25:20] Speaker 00:
It's not even a request that here on this third try Appellant is willing to accept.

[00:25:25] Speaker 00:
And I think the fact that the driving concern isn't third-party licensees information, you'll see that on Appendix 576 to 577, two third-party licenses said they agreed to disclose everything, all the information.

[00:25:40] Speaker 00:
And then it says Uniloc still views the amounts these licensees paid for their licenses as highly confidential and sensitive financial information of Uniloc.

[00:25:49] Speaker 03:
So... But wait a minute, but there are the, some licensees have come in,

[00:25:54] Speaker 03:
and objected and made a case.

[00:25:57] Speaker 03:
Even, you know, Judge Alsop refers to that in certain of the exhibits in this case, that licensees have filed.

[00:26:04] Speaker 03:
I don't know how specific it was, but licensees have come in and voiced their concerns about being identified.

[00:26:13] Speaker 03:
Is that not right?

[00:26:15] Speaker 00:
Well, I believe that they have voiced concerns about being identified, but what we are saying is that Unalox has never suggested or accepted

[00:26:25] Speaker 00:
Simply hiding the licensees' names, that would be the narrow and effective way to protect the identity of licensees, would be to redact their names.

[00:26:35] Speaker 00:
Unalak has not taken that approach and has not accepted it.

[00:26:39] Speaker 00:
And we think the fact that it is not amenable to that solution reflects the fact that the privacy of third-party licensees is not the driving rationale for these ceiling requests.

[00:26:56] Speaker 03:
I guess part of your answer, I'm a little confused, because part of your answer seems to be that that wasn't really an issue before the district court.

[00:27:07] Speaker 03:
But he acted like that was an issue.

[00:27:10] Speaker 03:
At appendix 36, he specifically has a paragraph, short as it may be, that explicitly addresses this question, rejecting licensing information, including their identity.

[00:27:25] Speaker 03:
And he says no.

[00:27:29] Speaker 00:
Well, so to be clear, the licensing, the table that's at issue is a summary table that has licensee names, the date of the license, and then the amount.

[00:27:44] Speaker 03:
Why don't you please finish answering the question.

[00:27:47] Speaker 00:
Our point is that if the request before Judge Alsop had been just to redact the licensee name column in that table,

[00:27:55] Speaker 00:
we would be having a very different conversation.

[00:27:58] Speaker 00:
And even on appeal, we're saying that the question is not, can the licensee name column be sealed?

[00:28:06] Speaker 00:
That's not the question.

[00:28:07] Speaker 00:
Appellant has insisted on bundling licensee names with the date of the license, with the amount.

[00:28:13] Speaker 00:
And so we don't have before us the question of just protecting those third-party identities.

[00:28:19] Speaker 00:
And if there were a proposal to hide the names of those,

[00:28:24] Speaker 00:
licensees, that that would be a very different type of request and it's simply not as it wasn't before Judge Alsop and he couldn't have abused his discretion in denying a request that nobody made.

[00:28:36] Speaker 04:
Okay, can I just ask one follow-up question on that?

[00:28:40] Speaker 04:
I think Mr. Jacobs made a passing reference to this.

[00:28:45] Speaker 04:
If the names were gone, would the dates essentially enable you through Westlaw or

[00:28:51] Speaker 04:
other searches to quite quickly identify what the names are?

[00:28:56] Speaker 00:
I don't believe so.

[00:29:02] Speaker 04:
I mean to the extent that they were settlements of litigation and there certainly are services and databases that kind of keep track of litigation and there'll be a dismissal order or voluntary dismissal or something and one could figure that out.

[00:29:20] Speaker 04:
Is that wrong?

[00:29:22] Speaker 04:
I took it.

[00:29:22] Speaker 04:
It was something on the order of what I just said that Mr. Jacobs was adverting to.

[00:29:28] Speaker 00:
To be honest, Your Honor, I don't know how far or if at all those cases proceeded in litigation.

[00:29:37] Speaker 00:
I don't know that any of them were filed on court dockets.

[00:29:40] Speaker 00:
I certainly don't know which of them were.

[00:29:43] Speaker 00:
It looks like of two that are disclosed, the licensees go back to 2010.

[00:29:49] Speaker 00:
And I, you know, so I don't know and don't have any grounds based on what is publicly available to think that we could reverse engineer based on the dates.

[00:30:02] Speaker 03:
Okay, thank you.

[00:30:03] Speaker 03:
Thank you.

[00:30:04] Speaker 03:
Mr. Winard.

[00:30:08] Speaker 05:
Yes, may I please the court?

[00:30:09] Speaker 05:
Doug Winard on behalf of Apple.

[00:30:11] Speaker 05:
I've only got four minutes, so I'm going to jump straight into the questions the court has raised.

[00:30:15] Speaker 05:
First, regarding prior cases where a district court only gave one chance, Apple cited such a case on page 11 of its brief.

[00:30:23] Speaker 05:
That's the Nevro Corp case at appendix 931.

[00:30:27] Speaker 05:
In that case, the district court rejected overbroad requests that were justified solely by bowler plate statements and required the parties to, if they wanted to fix that, file a motion for reconsideration, which was also denied.

[00:30:41] Speaker 05:
And the parties were, the party requesting this was ultimately sanctioned.

[00:30:44] Speaker 05:
So there is, as Apple pointed out in its brief, there is precedent for courts giving only one chance.

[00:30:49] Speaker 05:
And the local rules do contemplate.

[00:30:51] Speaker 03:
What district was that case in?

[00:30:53] Speaker 03:
It's easy.

[00:30:53] Speaker 01:
Where was that case?

[00:30:56] Speaker 05:
Sorry, Your Honor.

[00:30:56] Speaker 05:
It was in the Northern District of California.

[00:30:58] Speaker 05:
It was applying the same rules that Judge Allsup was applying here.

[00:31:04] Speaker 05:
And in fact, it's not cited in our brief, but Judge Allsup had done something similar in the case of Lew v. Ma Laboratories, Inc.

[00:31:13] Speaker 05:
Civil case number 1205409.

[00:31:16] Speaker 05:
In that case, the party had wholly failed to provide a declaration in a timely manner as the rules required, and the court did not give them a second chance.

[00:31:26] Speaker 05:
So it is, we agree that courts have discretion in this matter to give multiple chances, but they also should all have, and we think the local rules allow to give them discretion to give parties only one chance.

[00:31:39] Speaker 05:
and then or set a high standard such as meeting the reconsideration standard of local rule 7-9 before they can come back and try to fix what they should have done right in the first place.

[00:31:50] Speaker 05:
So on the second point, I think about the third party information.

[00:31:55] Speaker 05:
I think Apple would agree that Uniloc has provided compelling reasons to seal that information and that it is sealable.

[00:32:03] Speaker 05:
Apple would not have hosed

[00:32:04] Speaker 05:
a remand for instruction to seal the information.

[00:32:07] Speaker 05:
I think it's the table in Exhibit A to Apple's original motion below.

[00:32:12] Speaker 05:
That information to us makes good sense.

[00:32:16] Speaker 05:
We also do want to... Wait a minute.

[00:32:19] Speaker 03:
Let me just be clear on that.

[00:32:22] Speaker 03:
You're saying that you would not oppose taking the table, which does not just consist of the licensee's name, but consists of all the information about the licenses.

[00:32:34] Speaker 05:
Yeah, I think it's names, amount, and time.

[00:32:37] Speaker 05:
I think there are, I don't know for all of the cases, but at least some of them.

[00:32:40] Speaker 05:
I think there is a distinct possibility that you could match them, certainly in amount and time, to at least some of the cases that were settled.

[00:32:48] Speaker 05:
And so for that reason, we do think it would make sense and that compelling reasons were shown for that table to feel that, to respond to the court's question on that.

[00:32:58] Speaker 04:
Can you just say again, you said, besides the Nevereau case, which you cited on page 11 of your red brief, you said you had identified another case from Indycal, in fact, from Judge Al.

[00:33:09] Speaker 04:
So, Loo against somebody, and how do you spell Loo?

[00:33:14] Speaker 05:
L-O-U against Ma Laboratories, M-A Laboratories, Inc.

[00:33:20] Speaker 05:
That case was more... And what year was that?

[00:33:23] Speaker 05:
2013.

[00:33:24] Speaker 05:
Okay.

[00:33:28] Speaker 05:
So often district courts do provide multiple chances, but I think in this case,

[00:33:34] Speaker 05:
It was, as the district court pointed out, a lot of what Unalak was trying to seal included citations to federal circuit case law and things that this court, I think, had called out in in-ray violation of Rule 20-AD as matters that should not be sealed.

[00:33:48] Speaker 05:
And so the district court, in that context, saw that and decided to set essentially a higher standard to reconsider the original ruling denying the request in its entirety, as Local Rule 79-5 contemplates a district court is allowed to do.

[00:34:06] Speaker 03:
What about the alternatives of sanctions?

[00:34:09] Speaker 03:
I mean, of course, I'm not recalling any particular case, but I know in our experience when people over-redact in the old days of confidentiality over markings, I think our course would be if there was a significant over-redaction, including names of cases and kind of things you're talking about here, the court would do a notice to show cause as to why the parties shouldn't be sanctioned.

[00:34:34] Speaker 03:
But what the relief provided was not that we don't allow them to have any confidentiality markings at all because of that.

[00:34:44] Speaker 03:
Jim, do you have my question?

[00:34:46] Speaker 05:
Yes, Your Honor.

[00:34:47] Speaker 05:
And just to answer, I know my time is up.

[00:34:49] Speaker 05:
I think it would have been well within the district court's discretion to follow that path.

[00:34:53] Speaker 05:
And I believe that is the path that the district court followed in NEVRO Corp.

[00:34:57] Speaker 05:
Here, the district court also had discretion to first apply the local rule requiring narrowly tailored requests.

[00:35:04] Speaker 05:
upon finding that they were far from narrowly tailored, as set in Appendix 32, then have the discretion to grant leave or not under Local Rule 7.9.

[00:35:15] Speaker 05:
So, yes, the district court could have taken that path, and it would have been possibly within its discretion to explore that, but it also acted within its discretion to act as it did.

[00:35:26] Speaker 04:
And can I just, can I just double-check something?

[00:35:29] Speaker 04:
when there was an opportunity given for reconsideration and the reason for rejection of reconsideration was that the requests were still unjustified, not just that they could have been made at the first round.

[00:35:44] Speaker 04:
Is that right or wrong?

[00:35:46] Speaker 05:
Yes, so my understanding of reading the other cases, and we didn't cite the follow-on cases, but the court there found that the requests were not justified, even the second time around.

[00:35:57] Speaker 04:
Right, so that's not really quite precedent.

[00:36:01] Speaker 04:
I know district court decisions are not precedent, but that doesn't really stand for the proposition that you don't get a second chance to do it right.

[00:36:12] Speaker 05:
Your Honor, I would say it stands to the proposition that the second chance could be that you have to meet the local rule 7-9.

[00:36:20] Speaker 05:
And that's what happened in that case.

[00:36:22] Speaker 05:
You have to meet the standard for reconsideration.

[00:36:25] Speaker 04:
And was reconsideration denied on the ground that everything you are now saying you could have said before, or that you still have not justified some narrower set of proposed redactions?

[00:36:39] Speaker 05:
Your Honor, I don't recall.

[00:36:41] Speaker 04:
That would be the key point, I think, right?

[00:36:45] Speaker 05:
Your Honor, I would absolutely agree that if it addressed the failure to have done it right the first time, I kind of explained that.

[00:36:52] Speaker 05:
It would be fully on point.

[00:36:55] Speaker 05:
I do think it still is helpful to show that district courts do have discretion and have exercised that in the past to require parties that they want a second chance, in some cases, that they have to show that reconsideration under Rule 7.9 is appropriate.

[00:37:12] Speaker 03:
Okay, thank you.

[00:37:13] Speaker 03:
Mr. Jacobs will restore your two minutes of rebuttal.

[00:37:23] Speaker 03:
Mr. Jacobs?

[00:37:26] Speaker 02:
Yes, Your Honor, thank you.

[00:37:28] Speaker 02:
To clarify, what I was saying before was that there were no cases in which the court did not grant a narrowing of redactions on licensing information.

[00:37:36] Speaker 02:
That was not apparently at issue in NEVRO, which, for example, at Appendix 932 refers to

[00:37:42] Speaker 02:
an email from one person to another as opposed to licensing.

[00:37:46] Speaker 02:
Again, to quote Judge Coe, pricing terms, royalty rates, and minimum payments of licensing agreements plainly constitute trade secrets and are thus sealable.

[00:37:56] Speaker 03:
Can I just ask you for clarification?

[00:37:58] Speaker 03:
I know you have very little time left.

[00:38:00] Speaker 03:
I don't want to use it, but your friend from Apple, as I understood, just expressed that he would not oppose

[00:38:08] Speaker 03:
this table of the licenses.

[00:38:10] Speaker 03:
Is there more stuff that the licensees are arguing about, or is most of the information that's in dispute included in the table that Mr. Winnard referred to?

[00:38:22] Speaker 02:
The third party licensees are only concerned about that document.

[00:38:27] Speaker 02:
There are other third parties that are concerned about other matters, for example, the loan agreements and other financial information that have third party information in them.

[00:38:36] Speaker 02:
But in terms of the licensees,

[00:38:37] Speaker 02:
It's only that one table.

[00:38:40] Speaker 03:
Okay.

[00:38:40] Speaker 03:
Thank you.

[00:38:41] Speaker 02:
You can keep going.

[00:38:42] Speaker 02:
We won't.

[00:38:44] Speaker 02:
Yeah.

[00:38:44] Speaker 02:
I appreciate that.

[00:38:45] Speaker 02:
Um, in terms of overbred, we see cases from the district court and specifically this year's court judge also both before and since in which he sealed the exact same sorts of documents based upon even thinner attorney declarations.

[00:38:59] Speaker 02:
Uh, Unalak cited these in its reply brief at pages nine through 10.

[00:39:03] Speaker 02:
So for example, in the Juniper case,

[00:39:05] Speaker 02:
There was a declaration from a partner at the party's firm saying, quote, I am informed and believe that Exhibit 7 is a full unredacted confidential license agreement between Juniper and the third party, which information that falls within the definition of trade secrets.

[00:39:25] Speaker 02:
And then one week after Judge Alsop refused to seal anything from Unilock, Judge Alsop granted this party's motion to seal the entire license agreement

[00:39:35] Speaker 02:
based upon that one sentence.

[00:39:38] Speaker 02:
Finally, Your Honor, Unilock's licensing terms and loan information are the equivalent to Apple's source code, to Apple.

[00:39:47] Speaker 02:
It is the lifeblood of a company that relies upon licensing its intellectual property.

[00:39:52] Speaker 02:
And to let this fall to the public would be incredibly damaging.

[00:39:56] Speaker 02:
As court after court has recognized, licensing information is confidential and should be sealable.

[00:40:02] Speaker 02:
If you take one example,

[00:40:04] Speaker 02:
if I may just conclude briefly, Your Honors.

[00:40:06] Speaker 02:
Yes.

[00:40:07] Speaker 03:
Yes.

[00:40:07] Speaker 03:
Finish your sentence.

[00:40:08] Speaker 03:
Thank you.

[00:40:09] Speaker 02:
Imagine this.

[00:40:10] Speaker 02:
Imagine a third party knew that Unilock had licensed a patent, say, four times at four slightly different rates.

[00:40:17] Speaker 02:
That third party would start its negotiations with a ceiling of the absolute lowest rates, and things could only go down from there.

[00:40:25] Speaker 02:
By publishing this information or the other financial information, Unilock would be indelibly and permanently

[00:40:33] Speaker 02:
prejudice in all future such negotiations.

[00:40:39] Speaker 03:
We thank both sides and the case is submitted.