Preview
1 Ruby H. Kazi (CA 243872)
Lily A. North (CA 260709)
2 Whitney (Carlson) Johnson (CA 308024) ELECTRONICALLY
Benesch, Friedlander, Coplan & Aronoff LLP
3 One Montgomery, Suite 2700 F I L E D
Superior Court of California,
San Francisco, CA 94104-4505 County of San Francisco
4 Telephone: 628-600-2250
Email: rkazi@beneschlaw.com 01/19/2021
Clerk of the Court
5 lnorth@beneschlaw.com BY: JUDITH NUNEZ
wjohnson@beneschlaw.com Deputy Clerk
6
J. Erik Connolly (IL 6269558) (admitted pro hac vice)
7 Kate Watson Moss (IL 6321176) (admitted pro hac vice)
Madhavi Seth (IL 6330420) (admitted pro hac vice)
8 Benesch, Friedlander, Coplan & Aronoff LLP
71 South Wacker Drive, Suite 1600
9 Chicago, IL 60606
Telephone: 312-212-4949
10 Email: econnolly@beneschlaw.com
kmoss@beneschlaw.com
11 mseth@beneschlaw.com
12 Attorneys for Plaintiff DoorDash, Inc.
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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DOORDASH, INC., Case No. CGC-20-584606
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Plaintiff, PLAINTIFF DOORDASH, INC.’S NOTICE
17 OF MOTION AND MOTION TO FILE
v. UNDER SEAL CONFIDENTIAL PORTIONS
18 OF ITS REPLY IN SUPPORT OF MOTION
901 MARKET ST SF LLC and KNOTEL, FOR SUMMARY JUDGMENT OR, IN THE
19 INC., ALTERNATIVE, SUMMARY
ADJUDICATION; MEMORANDUM OF
20 Defendants. POINTS AND AUTHORITIES
21 Date: Tuesday, February 23, 2021
Time: 9:30 a.m.
22 Department: 501
Judge: Hon. Charles F. Haines
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24
Complaint Filed: May 26, 2020
25 Trial Date: May 3, 2021
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 NOTICE OF MOTION AND MOTION
2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD
3 PLEASE TAKE NOTICE that on Tuesday, February 23, 2021 at 9:30 a.m. or as soon thereafter
4 as this matter may be heard in Department 501 in the Superior Court for the State of California, County
5 of San Francisco, Plaintiff DoorDash, Inc. (“DoorDash”) will, and hereby does, move this Court for an
6 order to seal certain excerpts of DoorDash’s Reply in Support of Motion for Summary Judgment Motion
7 Or, in the Alternative, Summary Adjudication (“Reply”) and exhibits to the Declaration of Madhavi Seth
8 in Support of Plaintiff DoorDash, Inc.’s Reply in Support of Motion for Summary Judgment or, in the
9 Alternative, Summary Adjudication (“Seth Reply Decl.”) -- all of which quote from, paraphrase, and/or
10 contain certain details from confidential documents -- and to file in the public record the redacted versions
11 of the same. Specifically, DoorDash seeks a narrow order sealing:
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13 Identification of Documents to be Sealed Designating Party
14 The following portions of DoorDash’s Reply: DoorDash
Page 7, Lines 21-23
15 Page 8, Line 17
16 Page 13 Lines 7-10
The following portions of the exhibits attached to the Seth DoorDash
17 Reply Decl.:
Exhibit H, Page 4; Lines 14-19
18 Exhibit H, Page 5; Lines 6 & 8-28
19 Exhibit H, Page 6; Lines 3-8, 23, & 25-28
Exhibit H, Page 7, Lines 1-17 & 19-26
20 Exhibit H, Page 8, Lines 11-28
Exhibit H, Page 9, Lines 1-5, 8, 22 & 24-28
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Exhibit H, Page 10, Lines 1-17
22 Exhibit I, Pages 5-6, Lines 6-25
Exhibit I, Page 7-8, Lines 7-26
23 Exhibit I, Page 15, Lines 19-28
Exhibit I, Page 16, Lines 1-10 & 20-28
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Exhibit I, Page 17, Lines 1-11 & 21-28
25 Exhibit I, Page 18, Lines 1-12 & Lines 22-28
Exhibit I, Page 19, Lines 1-13
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 The portions of the Reply and Exhibits to the Seth Reply Decl. at issue quote from or reference
2 the Assignment of Lease Agreement (the “Assignment”) or Guaranty of Lease and Assignment of Lease
3 Agreement (“Guaranty”), which were previously ordered sealed by this Court on August 5, 2020.
4 Therefore, these portions of the Reply and exhibits to the Seth Reply Decl. should be sealed in this instance
5 and for the reasons articulated by the Court in its August 5, 2020 Order.
6 This motion is based on this Notice of Motion and Motion, the attached Memorandum of Points
7 and Authorities, the Declaration of Madhavi Seth in support of this Motion, the complete files and records
8 in this case, and such other argument or evidence as may be presented at the hearing on this motion.
9 ///
10 ///
11 Dated: January 19, 2021 Respectfully submitted,
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14 Ruby H. Kazi (CA 243872)
Lily A. North (CA 260709)
15 Whitney (Carlson) Johnson (CA 308024)
Benesch, Friedlander, Coplan & Aronoff LLP
16 One Montgomery, Suite 2700
San Francisco, CA 94104-4505
17 Telephone: 628-600-2250
Email: rkazi@beneschlaw.com
18 lnorth@beneschlaw.com
wjohnson@beneschlaw.com
19
J. Erik Connolly (admitted pro hac vice)
20 Kate Watson Moss (admitted pro hac vice)
Madhavi Seth (admitted pro hac vice)
21 Benesch, Friedlander, Coplan & Aronoff LLP
71 South Wacker Drive, Suite 1600
22 Chicago, IL 60606
Telephone: 312-212-4949
23 Email: econnolly@beneschlaw.com
kmoss@beneschlaw.com
24 mseth@beneschlaw.com
25 Attorneys for Plaintiff DoorDash, Inc.
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28
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND PROCEDURAL HISTORY
3 On May 26, 2020, Plaintiff DoorDash, Inc. (“DoorDash”) filed a redacted version of its Complaint
4 for Damages (“Complaint”) in the present litigation and lodged an unredacted copy of the same that was
5 conditionally filed under seal. See Declaration of Madhavi Seth In Support of Motion to File Under Seal
6 Confidential Portions of DoorDash’s Reply in Support of Motion for Summary Judgment Or, In the
7 Alternative, Summary Adjudication (“Seth Decl.”), ¶ 2, filed concurrently herewith. On July 9, 2020,
8 DoorDash noticed a hearing on its unopposed motion to seal certain portions of its Complaint and two
9 exhibits thereto: (1) the April 2017 Office Lease Agreement, and (2) the Landlord Consent to Assignment
10 and Assumption of Lease (which included as attachments an Assignment of Lease Agreement and a
11 Guaranty of Lease and Assignment of Lease Agreement). Id. ¶ 3. On August 5, 2020, this Court granted
12 DoorDash’s unopposed sealing motion, finding that “no opposition was filed and the motion complie[d]
13 with California Rules of Court, Rules 2.550 and 2.551.” Id. ¶ 4, Ex. A. This Court further found that
14 “there exists an overriding interest that overcomes the right of public access to the portions of the records
15 to be sealed; the overriding interest supports sealing those records; a substantial probability exists that the
16 overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored;
17 and no less restrictive means exist to achieve the overriding interest.” Id.
18 All of the information presently sought to be filed under seal in connection with DoorDash’s Reply
19 in Support of Motion for Summary Judgment Or, In the Alternative, Summary Adjudication (“Reply”)
20 has previously been sealed by this Court. In addition, it is also being sought to be sealed by Defendants
21 in connection with their Opposition to the Motion for Summary Judgment Or, In the Alternative, Summary
22 Adjudication (“Opposition”). In support of its Reply, DoorDash again submits (and seeks to seal)
23 reference to language paraphrased or quoted directly from the Assignment and Guaranty. This language
24 can be found on pages 3, 7 and 9 of the Reply, as well as in Exhibits H and I to the Seth Reply Decl.
25 DoorDash has an overriding interest in complying with its contractual obligations to maintain
26 confidentiality, and out of an abundance of caution, it seeks to protect these agreements from public
27 disclosure consistent with Rule of Court 2.550. Seth Decl., ¶ 5. Public disclosure of the material proposed
28 for redaction here could prejudice DoorDash’s interests in abiding by its contractual obligations and has
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 the possibility of exposing DoorDash to potential liability for breaching the confidentiality provisions of
2 the contracts. Id.
3 II. LEGAL STANDARD
4 Although court records are presumed to be open and available to the public, not every document
5 filed with the Court can (or should) be available to the public. To that end, the Court has “inherent power
6 to control its record to protect the rights of litigants before it.” In re Estate of Hearst (1977) 67 Cal.App.3d
7 777, 783. Separately, the California Rules of Court provide guidance with respect to when a filing need
8 not be made public. “The court may order that a record be filed under seal” where “it expressly finds facts
9 that establish:
10 (1) There exists an overriding interest that overcomes the right of public access to the record;
11 (2) The overriding interest supports sealing the record;
12 (3) A substantial probability exists that the overriding interest will be prejudiced if the record is
13 not sealed;
14 (4) The proposed sealing is narrowly tailored; and
15 (5) No less restrictive means exist to achieve the overriding interest.”
16 Cal. R. Ct. 2.550(d). Rule 2.550 “vest[s] a trial court with a considerable amount of discretion in deciding
17 whether to seal or unseal portions of a judicial record.” In re Providian Credit Card Cases (2002) 96
18 Cal.App.4th 292, 295.
19 III. THE REQUESTED RECORDS SHOULD BE SEALED
20 California courts recognize that a “contractual obligation not to disclose can constitute an
21 overriding interest within the meaning of” the Rules. Universal City Studios, Inc. (2003) 110 Cal.App.4th
22 1273, 1281–83; NBC Subsidiary (KNBC-TV), Inc. v. Super. Ct. (1999) 20 Cal.4th 1178, 1223 n.46
23 (recognizing that “enforcement of binding contractual obligations not to disclose” may constitute an
24 overriding interest) (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984));
25 Publicker, 733 F.2d at 1073 (“[W]here there is a binding contractual obligation not to disclose certain
26 information which to the court seems innocuous but newsworthy,” “unbridled disclosure . . . would
27 deprive the litigant of his right to enforce a legal obligation.”).
28
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 The Assignment cited by DoorDash contains a confidentiality provision that requires DoorDash
2 to keep the Assignment and Guaranty confidential. Seth Decl., ¶ 3. Because pages 3, 7 and 9 of the Reply,
3 pages 5-11 of Exhibit H to the Seth Reply Decl., and pages 6-9 and 16-20 of Exhibit I to the Seth Reply
4 Decl. directly quote from either the Assignment or Guaranty, DoorDash, out of an abundance of caution,
5 seeks to keep that quoted language confidential. Id. at ¶ 5.
6 DoorDash therefore seeks a narrow order sealing:
7 Identification of Documents to be Sealed Designating Party
8 The following portions of DoorDash’s Reply: DoorDash
Page 7, Lines 21-23
9 Page 8, Line 17
10 Page 13 Lines 7-10
The following portions of the exhibits attached to the Seth DoorDash
11 Reply Decl.:
Exhibit H, Page 4; Lines 14-19
12 Exhibit H, Page 5; Lines 6 & 8-28
13 Exhibit H, Page 6; Lines 3-8, 23, & 25-28
Exhibit H, Page 7, Lines 1-17 & 19-26
14 Exhibit H, Page 8, Lines 11-28
Exhibit H, Page 9, Lines 1-5, 8, 22 & 24-28
15
Exhibit H, Page 10, Lines 1-17
16 Exhibit I, Pages 5-6, Lines 6-25
Exhibit I, Page 7-8, Lines 7-26
17 Exhibit I, Page 15, Lines 19-28
Exhibit I, Page 16, Lines 1-10 & 20-28
18
Exhibit I, Page 17, Lines 1-11 & 21-28
19 Exhibit I, Page 18, Lines 1-12 & Lines 22-28
Exhibit I, Page 19, Lines 1-13
20
If the materials that are the subject of this motion are not sealed, there is a risk that DoorDash’s
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overriding interests would be prejudiced. Were DoorDash to voluntarily publicly file these materials, it
22
could risk potential legal, financial, or other consequences for breaching the confidentiality provisions of
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the Assignment. See Seth Decl., ¶ 5.
24
Finally, the proposed sealing is narrowly tailored. This Court has previously ordered the
25
Assignment, Guaranty and direct quotes from them to be sealed. See Seth Decl., ¶ 4, Ex. 1 (DoorDash
26
Sealing Order). Defendants also seek to have the Assignment, Guaranty and references to it sealed. See
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Defendants’ Notice of Motion and Motion to File Under Seal Confidential Portions of its Opposition to
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1 Plaintiff DoorDash, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
2 and Documents in Support Thereof; Memorandum of Points and Authorities. DoorDash’s request is
3 limited to only those portions of the Reply and supporting declaration that directly quote or describe in
4 detail portions of the Assignment or Guaranty. There is no less restrictive means to protect DoorDash’s
5 confidential contracts.
6 IV. CONCLUSION
7 For the foregoing reasons, DoorDash respectfully requests that the Court grant the instant motion
8 and order sealed the following:
9 Portions of the Reply found at: Page 7, Lines 21-23; Page 8, Line 17; and Page 13 Lines 7-10
10 Portions of Exhibit H to the Seth Reply Decl. found at: Page 4, Lines 14-19; Page 5, Lines 6
11 & 8-28; Page 6, Lines 3-8, 23, & 25-28; Page 7, Lines 1-17 & 19-26; Page 8, Lines 11-28;
Page 9, Lines 1-5, 8, 22 & 24-28; and Page 10, Lines 1-17
12
Portions of Exhibit I to the Seth Reply Decl. found at: Pages 5-6, Lines 6-25; Page 7-8, Lines
13 7-26; Page 15, Lines 19-28; Page 16, Lines 1-10 & 20-28; Page 17, Lines 1-11 & 21-28; Page
18, Lines 1-12 & Lines 22-28; and Page 19, Lines 1-13
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
1
2 DATED: January 19, 2021
3 Ruby H. Kazi (CA 243872)
Lily A. North (CA 260709)Whitney (Carlson)
4 Johnson (CA 308024)
Benesch, Friedlander, Coplan & Aronoff LLP
5
One Montgomery, Suite 2700
6 San Francisco, CA 94104-4505
Telephone: 628-600-2250
7 Email: rkazi@beneschlaw.com
lnorth@beneschlaw.com
8 wjohnson@beneschlaw.com
9
J. Erik Connolly (admitted pro hac vice)
10 Kate Watson Moss (admitted pro hac vice)
Madhavi Seth (admitted pro hac vice)
11 Benesch, Friedlander, Coplan & Aronoff LLP
71 South Wacker Drive, Suite 1600
12 Chicago, IL 60606
Telephone: 312-212-4949
13
Email: econnolly@beneschlaw.com
14 kmoss@beneschlaw.com
mseth@beneschlaw.com
15
16 Attorneys for Plaintiff DoorDash, Inc.
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30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in
Support of MSJ/SA; MPA
31 Case No. CGC-20-584606
Preview
1 Ruby H. Kazi (CA 243872) Lily A. North (CA 260709) 2 Whitney (Carlson) Johnson (CA 308024) ELECTRONICALLY Benesch, Friedlander, Coplan & Aronoff LLP 3 One Montgomery, Suite 2700 F I L E D Superior Court of California, San Francisco, CA 94104-4505 County of San Francisco 4 Telephone: 628-600-2250 Email: rkazi@beneschlaw.com 01/19/2021 Clerk of the Court 5 lnorth@beneschlaw.com BY: JUDITH NUNEZ wjohnson@beneschlaw.com Deputy Clerk 6 J. Erik Connolly (IL 6269558) (admitted pro hac vice) 7 Kate Watson Moss (IL 6321176) (admitted pro hac vice) Madhavi Seth (IL 6330420) (admitted pro hac vice) 8 Benesch, Friedlander, Coplan & Aronoff LLP 71 South Wacker Drive, Suite 1600 9 Chicago, IL 60606 Telephone: 312-212-4949 10 Email: econnolly@beneschlaw.com kmoss@beneschlaw.com 11 mseth@beneschlaw.com 12 Attorneys for Plaintiff DoorDash, Inc. 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN FRANCISCO 15 DOORDASH, INC., Case No. CGC-20-584606 16 Plaintiff, PLAINTIFF DOORDASH, INC.’S NOTICE 17 OF MOTION AND MOTION TO FILE v. UNDER SEAL CONFIDENTIAL PORTIONS 18 OF ITS REPLY IN SUPPORT OF MOTION 901 MARKET ST SF LLC and KNOTEL, FOR SUMMARY JUDGMENT OR, IN THE 19 INC., ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF 20 Defendants. POINTS AND AUTHORITIES 21 Date: Tuesday, February 23, 2021 Time: 9:30 a.m. 22 Department: 501 Judge: Hon. Charles F. Haines 23 24 Complaint Filed: May 26, 2020 25 Trial Date: May 3, 2021 26 27 28 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 NOTICE OF MOTION AND MOTION 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 3 PLEASE TAKE NOTICE that on Tuesday, February 23, 2021 at 9:30 a.m. or as soon thereafter 4 as this matter may be heard in Department 501 in the Superior Court for the State of California, County 5 of San Francisco, Plaintiff DoorDash, Inc. (“DoorDash”) will, and hereby does, move this Court for an 6 order to seal certain excerpts of DoorDash’s Reply in Support of Motion for Summary Judgment Motion 7 Or, in the Alternative, Summary Adjudication (“Reply”) and exhibits to the Declaration of Madhavi Seth 8 in Support of Plaintiff DoorDash, Inc.’s Reply in Support of Motion for Summary Judgment or, in the 9 Alternative, Summary Adjudication (“Seth Reply Decl.”) -- all of which quote from, paraphrase, and/or 10 contain certain details from confidential documents -- and to file in the public record the redacted versions 11 of the same. Specifically, DoorDash seeks a narrow order sealing: 12 13 Identification of Documents to be Sealed Designating Party 14 The following portions of DoorDash’s Reply: DoorDash Page 7, Lines 21-23 15 Page 8, Line 17 16 Page 13 Lines 7-10 The following portions of the exhibits attached to the Seth DoorDash 17 Reply Decl.: Exhibit H, Page 4; Lines 14-19 18 Exhibit H, Page 5; Lines 6 & 8-28 19 Exhibit H, Page 6; Lines 3-8, 23, & 25-28 Exhibit H, Page 7, Lines 1-17 & 19-26 20 Exhibit H, Page 8, Lines 11-28 Exhibit H, Page 9, Lines 1-5, 8, 22 & 24-28 21 Exhibit H, Page 10, Lines 1-17 22 Exhibit I, Pages 5-6, Lines 6-25 Exhibit I, Page 7-8, Lines 7-26 23 Exhibit I, Page 15, Lines 19-28 Exhibit I, Page 16, Lines 1-10 & 20-28 24 Exhibit I, Page 17, Lines 1-11 & 21-28 25 Exhibit I, Page 18, Lines 1-12 & Lines 22-28 Exhibit I, Page 19, Lines 1-13 26 27 28 2 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 The portions of the Reply and Exhibits to the Seth Reply Decl. at issue quote from or reference 2 the Assignment of Lease Agreement (the “Assignment”) or Guaranty of Lease and Assignment of Lease 3 Agreement (“Guaranty”), which were previously ordered sealed by this Court on August 5, 2020. 4 Therefore, these portions of the Reply and exhibits to the Seth Reply Decl. should be sealed in this instance 5 and for the reasons articulated by the Court in its August 5, 2020 Order. 6 This motion is based on this Notice of Motion and Motion, the attached Memorandum of Points 7 and Authorities, the Declaration of Madhavi Seth in support of this Motion, the complete files and records 8 in this case, and such other argument or evidence as may be presented at the hearing on this motion. 9 /// 10 /// 11 Dated: January 19, 2021 Respectfully submitted, 12 13 14 Ruby H. Kazi (CA 243872) Lily A. North (CA 260709) 15 Whitney (Carlson) Johnson (CA 308024) Benesch, Friedlander, Coplan & Aronoff LLP 16 One Montgomery, Suite 2700 San Francisco, CA 94104-4505 17 Telephone: 628-600-2250 Email: rkazi@beneschlaw.com 18 lnorth@beneschlaw.com wjohnson@beneschlaw.com 19 J. Erik Connolly (admitted pro hac vice) 20 Kate Watson Moss (admitted pro hac vice) Madhavi Seth (admitted pro hac vice) 21 Benesch, Friedlander, Coplan & Aronoff LLP 71 South Wacker Drive, Suite 1600 22 Chicago, IL 60606 Telephone: 312-212-4949 23 Email: econnolly@beneschlaw.com kmoss@beneschlaw.com 24 mseth@beneschlaw.com 25 Attorneys for Plaintiff DoorDash, Inc. 26 27 28 3 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND PROCEDURAL HISTORY 3 On May 26, 2020, Plaintiff DoorDash, Inc. (“DoorDash”) filed a redacted version of its Complaint 4 for Damages (“Complaint”) in the present litigation and lodged an unredacted copy of the same that was 5 conditionally filed under seal. See Declaration of Madhavi Seth In Support of Motion to File Under Seal 6 Confidential Portions of DoorDash’s Reply in Support of Motion for Summary Judgment Or, In the 7 Alternative, Summary Adjudication (“Seth Decl.”), ¶ 2, filed concurrently herewith. On July 9, 2020, 8 DoorDash noticed a hearing on its unopposed motion to seal certain portions of its Complaint and two 9 exhibits thereto: (1) the April 2017 Office Lease Agreement, and (2) the Landlord Consent to Assignment 10 and Assumption of Lease (which included as attachments an Assignment of Lease Agreement and a 11 Guaranty of Lease and Assignment of Lease Agreement). Id. ¶ 3. On August 5, 2020, this Court granted 12 DoorDash’s unopposed sealing motion, finding that “no opposition was filed and the motion complie[d] 13 with California Rules of Court, Rules 2.550 and 2.551.” Id. ¶ 4, Ex. A. This Court further found that 14 “there exists an overriding interest that overcomes the right of public access to the portions of the records 15 to be sealed; the overriding interest supports sealing those records; a substantial probability exists that the 16 overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; 17 and no less restrictive means exist to achieve the overriding interest.” Id. 18 All of the information presently sought to be filed under seal in connection with DoorDash’s Reply 19 in Support of Motion for Summary Judgment Or, In the Alternative, Summary Adjudication (“Reply”) 20 has previously been sealed by this Court. In addition, it is also being sought to be sealed by Defendants 21 in connection with their Opposition to the Motion for Summary Judgment Or, In the Alternative, Summary 22 Adjudication (“Opposition”). In support of its Reply, DoorDash again submits (and seeks to seal) 23 reference to language paraphrased or quoted directly from the Assignment and Guaranty. This language 24 can be found on pages 3, 7 and 9 of the Reply, as well as in Exhibits H and I to the Seth Reply Decl. 25 DoorDash has an overriding interest in complying with its contractual obligations to maintain 26 confidentiality, and out of an abundance of caution, it seeks to protect these agreements from public 27 disclosure consistent with Rule of Court 2.550. Seth Decl., ¶ 5. Public disclosure of the material proposed 28 for redaction here could prejudice DoorDash’s interests in abiding by its contractual obligations and has 4 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 the possibility of exposing DoorDash to potential liability for breaching the confidentiality provisions of 2 the contracts. Id. 3 II. LEGAL STANDARD 4 Although court records are presumed to be open and available to the public, not every document 5 filed with the Court can (or should) be available to the public. To that end, the Court has “inherent power 6 to control its record to protect the rights of litigants before it.” In re Estate of Hearst (1977) 67 Cal.App.3d 7 777, 783. Separately, the California Rules of Court provide guidance with respect to when a filing need 8 not be made public. “The court may order that a record be filed under seal” where “it expressly finds facts 9 that establish: 10 (1) There exists an overriding interest that overcomes the right of public access to the record; 11 (2) The overriding interest supports sealing the record; 12 (3) A substantial probability exists that the overriding interest will be prejudiced if the record is 13 not sealed; 14 (4) The proposed sealing is narrowly tailored; and 15 (5) No less restrictive means exist to achieve the overriding interest.” 16 Cal. R. Ct. 2.550(d). Rule 2.550 “vest[s] a trial court with a considerable amount of discretion in deciding 17 whether to seal or unseal portions of a judicial record.” In re Providian Credit Card Cases (2002) 96 18 Cal.App.4th 292, 295. 19 III. THE REQUESTED RECORDS SHOULD BE SEALED 20 California courts recognize that a “contractual obligation not to disclose can constitute an 21 overriding interest within the meaning of” the Rules. Universal City Studios, Inc. (2003) 110 Cal.App.4th 22 1273, 1281–83; NBC Subsidiary (KNBC-TV), Inc. v. Super. Ct. (1999) 20 Cal.4th 1178, 1223 n.46 23 (recognizing that “enforcement of binding contractual obligations not to disclose” may constitute an 24 overriding interest) (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984)); 25 Publicker, 733 F.2d at 1073 (“[W]here there is a binding contractual obligation not to disclose certain 26 information which to the court seems innocuous but newsworthy,” “unbridled disclosure . . . would 27 deprive the litigant of his right to enforce a legal obligation.”). 28 5 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 The Assignment cited by DoorDash contains a confidentiality provision that requires DoorDash 2 to keep the Assignment and Guaranty confidential. Seth Decl., ¶ 3. Because pages 3, 7 and 9 of the Reply, 3 pages 5-11 of Exhibit H to the Seth Reply Decl., and pages 6-9 and 16-20 of Exhibit I to the Seth Reply 4 Decl. directly quote from either the Assignment or Guaranty, DoorDash, out of an abundance of caution, 5 seeks to keep that quoted language confidential. Id. at ¶ 5. 6 DoorDash therefore seeks a narrow order sealing: 7 Identification of Documents to be Sealed Designating Party 8 The following portions of DoorDash’s Reply: DoorDash Page 7, Lines 21-23 9 Page 8, Line 17 10 Page 13 Lines 7-10 The following portions of the exhibits attached to the Seth DoorDash 11 Reply Decl.: Exhibit H, Page 4; Lines 14-19 12 Exhibit H, Page 5; Lines 6 & 8-28 13 Exhibit H, Page 6; Lines 3-8, 23, & 25-28 Exhibit H, Page 7, Lines 1-17 & 19-26 14 Exhibit H, Page 8, Lines 11-28 Exhibit H, Page 9, Lines 1-5, 8, 22 & 24-28 15 Exhibit H, Page 10, Lines 1-17 16 Exhibit I, Pages 5-6, Lines 6-25 Exhibit I, Page 7-8, Lines 7-26 17 Exhibit I, Page 15, Lines 19-28 Exhibit I, Page 16, Lines 1-10 & 20-28 18 Exhibit I, Page 17, Lines 1-11 & 21-28 19 Exhibit I, Page 18, Lines 1-12 & Lines 22-28 Exhibit I, Page 19, Lines 1-13 20 If the materials that are the subject of this motion are not sealed, there is a risk that DoorDash’s 21 overriding interests would be prejudiced. Were DoorDash to voluntarily publicly file these materials, it 22 could risk potential legal, financial, or other consequences for breaching the confidentiality provisions of 23 the Assignment. See Seth Decl., ¶ 5. 24 Finally, the proposed sealing is narrowly tailored. This Court has previously ordered the 25 Assignment, Guaranty and direct quotes from them to be sealed. See Seth Decl., ¶ 4, Ex. 1 (DoorDash 26 Sealing Order). Defendants also seek to have the Assignment, Guaranty and references to it sealed. See 27 Defendants’ Notice of Motion and Motion to File Under Seal Confidential Portions of its Opposition to 28 6 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 Plaintiff DoorDash, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication 2 and Documents in Support Thereof; Memorandum of Points and Authorities. DoorDash’s request is 3 limited to only those portions of the Reply and supporting declaration that directly quote or describe in 4 detail portions of the Assignment or Guaranty. There is no less restrictive means to protect DoorDash’s 5 confidential contracts. 6 IV. CONCLUSION 7 For the foregoing reasons, DoorDash respectfully requests that the Court grant the instant motion 8 and order sealed the following: 9 Portions of the Reply found at: Page 7, Lines 21-23; Page 8, Line 17; and Page 13 Lines 7-10 10 Portions of Exhibit H to the Seth Reply Decl. found at: Page 4, Lines 14-19; Page 5, Lines 6 11 & 8-28; Page 6, Lines 3-8, 23, & 25-28; Page 7, Lines 1-17 & 19-26; Page 8, Lines 11-28; Page 9, Lines 1-5, 8, 22 & 24-28; and Page 10, Lines 1-17 12 Portions of Exhibit I to the Seth Reply Decl. found at: Pages 5-6, Lines 6-25; Page 7-8, Lines 13 7-26; Page 15, Lines 19-28; Page 16, Lines 1-10 & 20-28; Page 17, Lines 1-11 & 21-28; Page 18, Lines 1-12 & Lines 22-28; and Page 19, Lines 1-13 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 7 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606 1 2 DATED: January 19, 2021 3 Ruby H. Kazi (CA 243872) Lily A. North (CA 260709)Whitney (Carlson) 4 Johnson (CA 308024) Benesch, Friedlander, Coplan & Aronoff LLP 5 One Montgomery, Suite 2700 6 San Francisco, CA 94104-4505 Telephone: 628-600-2250 7 Email: rkazi@beneschlaw.com lnorth@beneschlaw.com 8 wjohnson@beneschlaw.com 9 J. Erik Connolly (admitted pro hac vice) 10 Kate Watson Moss (admitted pro hac vice) Madhavi Seth (admitted pro hac vice) 11 Benesch, Friedlander, Coplan & Aronoff LLP 71 South Wacker Drive, Suite 1600 12 Chicago, IL 60606 Telephone: 312-212-4949 13 Email: econnolly@beneschlaw.com 14 kmoss@beneschlaw.com mseth@beneschlaw.com 15 16 Attorneys for Plaintiff DoorDash, Inc. 17 18 19 20 21 22 23 24 25 26 27 28 8 30 Plaintiff DoorDash, Inc.’s Notice of Motion and Motion to File Under Seal Confidential Portions of Its Reply in Support of MSJ/SA; MPA 31 Case No. CGC-20-584606