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NICOLE PHILLIS (State Bar No. 291266)
nicolephillis@dwt.com
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
Telephone: (213) 633-6800
Fax: (213) 633-6899
JEREMY MERKELSON (Admitted Pro Hac Vice)
jeremymerkelson@dwt.com
DAVIS WRIGHT TREMAINE LLP
1301 K Street NW, Suite 500 East
Washington, D.C., 20005
Telephone: (202) 973-4200
Fax: (202) 973-4499
Attorneys for Plaintiff TRACE3, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
TRACE3, LLC a California limited liability Case No. 23CV415833
corporation, Assigned to Hon. Sunil R. Kulkarni
Dept. 1
Plaintiff,
REPLY IN SUPPORT OF PLAINTIFF
vs. TRACE3, LLC’S MAY 18, 2023,
APPLICATION TO FILE DOCUMENTS
SYCOMP A TECHNOLOGY COMPANY, UNDER SEAL PURSUANT TO
INC., a California corporation; TIMOTHY CALIFORNIA RULES OF COURT 2.550
CORDELL, an individual; LILIAN ELIAS, an AND 2.551
individual; GEOFFREY PETERSON, an
individual; DEVIN TOMCIK, an individual; Date: July 20, 2023
and DOES 1-10, inclusive; Time: 1:30 p.m.
Defendants. Action Filed: May 12, 2023
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I. INTRODUCTION
In its Application to Seal (“Application”), Plaintiff Trace3, LLC set forth the specific
bases for the Court to seal its trade secret and other highly sensitive business information, more
than satisfying its burden under: (1) the Uniform Trade Secret Act’s (“CUTSA”) mandatory
sealing provision, Civil Code section 3426.5, which requires sealing for Trace3’s alleged trade
secrets; and (2) Rule of Court 2.550, on the grounds that Trace3’s documents contain sensitive
and confidential business information, which if made publicly available, could be used by its
competitors to harm it. Consistent with the Court’s May 23, 2023 Order, and in the interest of
easing the burden on the Court, Trace3 has taken a further review of the documents subject to its
10 Application and has significantly narrowed the universe of documents to be sealed.
11 Despite Trace3 clearly laying out its two bases for sealing, Sycomp’s brief in opposition
12 (“Opposition”): (1) hardly acknowledges that the CUTSA mandatory sealing provision exists, let
13 alone explains why it should not apply here (it does); and (2) as for the CRC 2.550(d) factors,
14 relies on the same tactic Defendants have improperly employed throughout this case, seeking to
15 exploit the extreme volume of documents Defendants misappropriated to their advantage and
16 obscure their own wrongdoing. Fundamentally, Sycomp argues that, because Defendants stole
17 about half a million documents, Trace3 was required to forensically recover, examine, and then
18 “specify” the confidential information contained in each document, all before it even filed its
19 emergency motion. No California case imposes such a burden (and Sycomp cites none), nor
20 should this Court so extend the law here. Trace3 has more than satisfied the applicable legal
21
22 The records Defendants stole from Trace3 include some personal files. On June 12, 2023,
Trace3 completed its best effort to segregate the personal files from company ones, producing a
23 file listing of thousands of pages that identified as “provisionally personal” only about a quarter of
the 456,012 files that Defendants ultimately deleted, diverted, copied or otherwise
24 misappropriated when leaving Trace3. See Bates TRACE3 0012539 (Trace3’s one-page
summary of its “First Amended TS/CI List”). On June 15, 2023, Trace3 explained that
25 Defendants were in the best position to know whether these files in fact belong to them and
whether, for example, the photos contained in the First Amended TS/CI list included photos of
26 customer installations or only personal matters. (Declaration of Nicole Phillis (“Phillis Decl.”),
Ex. 1 [6/15/23 Email from J. Merkelson to R. Dharnidharka].) Trace3 stated that once
27 Defendants confirmed that the provisionally personal documents were correctly identified, Trace3
could then withdraw any overbroad confidentiality designations. Ibid. Defendants, having had
28 this list for the better part of a month, did nothing with it, and have refused to confer on any
aspect of the designation process.
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standard, so Sycomp’s Opposition fails.
Trace3 briefly summarizes below the remaining areas of dispute for this Court, and its
proposed revised redactions and sealed exhibit lists (which Trace3 submits concurrently with this
filing in light of this Court’s prior direction):
Exhibits A1-A9 to the Declaration of April Turner, which contain examples of Trace3’s
trade secrets and must be sealed pursuant to Civil Code section 3426.5. These items are
separately marked “Highly Confidential – Attorney’s Eyes Only” (or “AEO”), consistent with
Section 2.7 of the Stipulated Protective Order (“SPO”) entered June 5, 2023. The one case
Defendants cite as to why these materials should not be sealed (Cypress Semiconductor Corp.
10 v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243), described the plaintiff in
11 that case’s trade secret claim as “not merely specious, but nonsensical” and the defendants in
12 that case were able to convince the judge that all of the documents at issue were already in the
13 public record (id. at 255). That is not our case. Here, Trace3 has shown by numerous trade
14 secret identifications, in affirmative discovery, and through its materials filed in support of the
15 sealing application why each of these 9 documents is a trade secret and therefore must be
16 sealed under Civil Code section 3426.5. In granting the TRO, the Court acknowledged the
17 likelihood of success on these alleged trade secrets, and Trace3 is entitled to the
18 confidentiality protections under CUTSA. Moreover, Defendants have never challenged or
19 sought to meet and confer with Trace3 about the AEO designation of these files pursuant to
20 section 6.2 of the SPO, and therefore cannot seek judicial intervention on the AEO
21 designation by merely opposing the sealing application without violating the process
22 established under section 6.3 of the SPO.
23 Trace3’s redacted version of the Declaration of April Turner, which narrows the sealed
24 portions to limited segments of paragraphs 9, 10, 23 26, 27(a)–(f), and Exhibits B–F thereto.
25 This tranche concerns specific client names, contact information, and pricing data relating to
26
27 Specifically, Trace3 has withdrawn the confidentiality designations as to the entirety of the
Kopelev declaration and its Exhibits A, 1, and 2, Exhibits 1–59 to the Rodriguez declaration
28 (except as to the redacted portions containing PII), and all but certain very limited redacted
portions of Exhibits B–F and paragraphs 9, 10, 23, 26, and 27a–f of the Turner declaration.
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particular RnR opportunities, and is information not readily known to the general public and
which should not be filed absent a sealing order. Page 18, lines 12-20, of Trace3’s TRO
Memorandum, similarly discusses these specific business opportunities with specific clients,
none of which is in the public domain.
The Redacted Text of Declaration of Sergio Kopelev Exhibit A, and Exhibits 3a, 3b, 3c,
3d, 3e, 4a, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 thereto, which
contain references to Trace3 customer opportunities and detailed lists of Trace3 trade secrets
and confidential business information and which, in total, present an effective roadmap to all
of Trace3’s RnR work. The list itself reflects the trade secret information that is entitled to
confidentiality under CUTSA and CRC 2.550 and 2.551. Trace3 has narrowed its sealing
request as best as it can based on the information within its possession, custody, or control.
For any further redaction to occur, Defendants should be ordered to confirm whether the
identified files are in fact personal.
Portions of the May 22, 2023 Transcript at 10:7–23, 11:2, 11:23–26, 13:1–3, 15:12–26;
22:20–21, 22:3, 27:17–19, 33:6–8, 33:12, 36:26–27, 37:23–26, and 41:18–19, which contain
references to Trace3 customer names and specific non-public opportunities.
All of the above information must be filed under seal under both Civil Code section
3426.5 and CRC 2.550(d). Trace3 has already explained in detail why such data is competitively
sensitive. Sycomp has long had these documents in its possession since Trace3 filed its brief. It
identifies no compelling public interest in Trace3’s entire portfolio of sales orders, purchase
histories, and other lists showing the entirety of its RnR work for the clients targeted by the
Defendants. Sycomp’s real basis for bringing its lengthy opposition is to gain a litigation
advantage, forcing Trace3 to expend resources and detract from its own wrongdoing. The
application to seal, as narrowed, should be granted.
After entering
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II. ARGUMENT
A. A1-A9 Are Trade Secrets That Must Be Sealed Under Civil Code Section 3426.5.
Trace3 established in its Application that Exhibits A1–A9 of the Turner Declaration are
subject to mandatory sealing under CUTSA, as they contain some of the trade secrets at issue.
Contrary to Sycomp’s vague claim that Trace3 relies on “vague grounds” of confidentiality that
are insufficiently specific to warrant protections (Opp. 15:11–14), Trace3 explained that these
nine documents are examples of the very trade secret information Defendants stole from Trace3,
which Trace3 has specified in detail throughout this litigation. (Appl. 5:14–18.) Sycomp uses its
Opposition as an opportunity to argue that Trace3’s trade secrets are not in fact trade secrets,
10 which is irrelevant to the Application. In support of its argument, Sycomp contends that CUTSA
11 does not automatically apply to any alleged trade secret, citing only Cypress Semiconductor Corp.
12 v. Maxim Integrated Products, Inc., supra 236 Cal.App.4th at p. 255, which is inapposite. (Opp.
13 15:23–16:13). The court in Cypress, however, did acknowledge that a presumption of
14 confidentiality under CUTSA generally should apply where the information is “secret.” (Cypress,
15 supra, 236 Cal.App.4th at p. 255.) The court then held that the alleged “trade secret” was not
16 protected because the plaintiff sought to seal information the defendant had collected from
17 publicly available sources—a far cry from the highly confidential material at issue here (on which
18 the Court has already found a likelihood of success). Thus, even under Sycomp’s own authority,
19 where, as here, the trade secret information is “at least arguably secret,” the mandatory
20 confidentiality provision under CUTSA should apply. (Ibid. [emphasis in original].)
21 Defendants make no argument that Exhibits A1-A9 were not kept secret by Trace3 or
22 otherwise subject to reasonable secrecy efforts. (Nor could they.) They do not deny that these
23 materials derive independent economic value from not being generally known by the public, as
24 detailed in Turner’s declaration at paragraphs 12–24. Instead, Defendants claim Trace3 has not
25 done enough to identify what specifically within A1–A9 constitutes a trade secret under a
26 different code section, 2019.210 (Opp. Br. at 15–16), which is not the standard for sealing
27
28
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confidential records under section 3426.50. Making matters worse, Defendants misleadingly
state that Trace3 has not identified what is secret within A1-A9 when Trace3’s June 28, 2023
Amended Trade Secret Identification (“Identification”) does just that. In that document, Trace3
identifies in A1 and A2 the specific customer lists at issue, the competitive sales and revenue
information contained in A4, and all of the Build Documents identified in A5, A6, A7, A8, and
A9. (Identification at pp. 3-4.) The sole remaining item, A3, is described by Turner as a “Label
Template” that “illustrates the format of all labels for builds.” (Turner Decl., ¶ 23.) As
Defendants note, “the document consists of 15 pages of combined letters, numbers, and symbols
set forth in a 6x7 grid pattern…” But then Defendants argue, with no factual support whatsoever,
10 that this document is “similar to any standard grid-label print format” and that “Sycomp cannot
11 conceive of any non-public information conveyed by this document or any competitive value to
12 be derived from it.” (Opp. at 15.) That may be Defendants’ off-the cuff read of this document,
13 but it is not enough to rebut the actual evidence before the Court that device labeling, power and
14 network labeling, and related processes are part and parcel of the RnR methodology that Trace3
15 uses to save its customers money and to provide value. (Turner Decl., ¶ 12.)
16 Even on its face, the Court can see that A3 contains a thought-out structure of rows and
17 rows of numerical codes that apply to particular builds, not merely “any” grid-label print format.
18 Moreover, according to Turner, this document (labeled as “version 4”, showing its development
19 over time) is a template for “all labels for all builds” at Trace3. It is precisely because of the
20
21
Defendants cite a handful of inapposite cases for the proposition that the sealing party must
22 identify the “specific information” claimed to be entitled to confidential treatment. See Opp. Br.
at 7:1-8, 7:20-22, 8:10, 18-19, 9:28-10:5, 18:9–16, citing H.B. Fuller Co. v. Doe (2007) 151
23 Cal.App.4th 879, 894–897 (in a non-trade-secrets case, plaintiff made only “circuitous and
conclusory” statements that confidential information was involved without identifying the specific
24 data at issue or how public disclosure would harm it); Glassdoor, Inc. v. Superior Court (2017) 9
Cal.App.5th 623, 638 (request to seal entire online job review including portions that
25 “implicate[d] no confidential information” “swept far too broadly” and was not “narrowly
tailored” or the least restrictive means available); Universal City Studios, Inc. v. Superior Court,
26 110 Cal.App.4th 1273, 1283–1284 (2003) (discussing confidentiality of a table of contents and
pages of legal argument from a judgment on the pleadings motion in a non-trade-secrets case).
27 These cases do not hold that no information should have been sealed, or that something more than
Trace3’s detailed trade secret identification is necessary to justify sealing documents containing
28 Trace3’s trade secrets.
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valuable nature of this, and the other records taken by Defendants that Trace3 is seeking to ensure
they remain confidential and not readily available to the public. Nothing more is needed to justify
sealing the trade secret examples A1–A9.
B. The Redacted Portions Of Turner Exhibits B–F, Paragraphs 9, 10, 23, 26, 27(A)–(F),
And TRO Memorandum Page 18, Lines 12–20, Contain Competition-Sensitive Non-
Public Business Information That Must Also Be Sealed.
Following this Court’s admonitions, Trace3 has narrowed the scope of its sealing motion.
Trace3 sufficiently identified the bases for sealing its confidential information—namely, its own
customer’s names associated with specific, non-public business opportunities and any specific
10 pricing information, specific historical sales and opportunity information, email addresses and
11 other contact information, inventory and gear information, customer location and facility data, and
12 other competitively sensitive information that derives independent economic value from not being
13 generally known to the public. Indeed, this is precisely the type of information that must be kept
14 confidential under California Rules of Court 2.550 and 2.551 and the cases cited in Trace3’s
15 opening brief, which Defendants do not bother to rebut. (Sealing Appl. at pp. 5–6 [collecting
16 cases].) In response, Defendants argue that (1) customer names alone are not confidential, and
17 some customer names vaguely appear in a random employee’s LinkedIn page, and (2) the request
18 is overbroad. The latter is mooted by Trace3’s revisions to its sealing request, and neither
19 overcomes Trace3’s sufficient showing.
20 To begin, it does not matter that one particular Trace3 employee, as Defendants apparently
21 found, listed his generic affiliation on LinkedIn as having performing some unspecified
22
23 Defendants alternatively argue that the AEO designation to A1–A9 should be voided because, as
Trace3 alleges, Defendants have already taken these documents and have been improperly using
24 them anyway. (Opp. at 16.) Were this argument to hold water, then no trade secret plaintiff could
ever justify sealing or applying an AEO designation as to any materials stolen since, the fact of
25 the taking itself strips the owner of any confidentiality protections. For obvious reasons, the
Court should reject this claim. Moreover, any challenge to the AEO designation must be taken up
26 under SPO section 6.3, and Defendants have yet to lodge any challenge to that designation under
those procedures, rendering their efforts both premature and procedurally improper.
27 Sycomp’s table comparing the publicly filed complaint to the sealed Turner Declaration (Opp.
11:25-12:25) confirms that Trace3 has consistently protected the identities of its clients and kept
28 them out of the public record.
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“integration” services for some of these customers at some point in time, or that Trace3 and
Sycomp are both known as Value Added Resellers in the general marketplace that one named
customer might seek to hire for unspecific integration services (while Sycomp has no prior history
of serving as an RnR industry player). (See Opp. Br. at 13, 17.) It is not publicly known, nor
does Sycomp proffer any evidence otherwise, that Trace3’s customers were seeking quotes on
specific business opportunities at specific points in time and with respect to particular locations
and specific OEM products, as reflected in Exhibits B–F, nor is the customer contact information,
pricing, and other data listed in these documents public information. (See Brocade
Communications Systems, Inc. v. A10 Networks, Inc. (N.D. Cal. 2012) 873 F. Supp. 2d 1192,
10 1215 [“[C]onfidential customer-related information including customer lists and contact
11 information, pricing guidelines, historical purchasing information, and customers' business
12 needs/preferences . . . [are] routinely given trade secret protection. (Citation). This information
13 has potential or actual value from not being generally known to the public: information about
14 customers’ preferences can aid in ‘securing and retaining their business.’ (Citation).”]; Gable-
15 Leigh, Inc. v. North American Miss (C.D. Cal. Apr. 13, 2001) No. CV 01–01019, 2001 WL
16 521695, at *16 [customer lists are trade secrets where “its disclosure would allow a competitor to
17 direct its sales efforts to those customers who have already shown a willingness to use a unique
18 type of service or product as opposed to a list of people who only might be interested. Its use
19 enables the former employee to solicit both more selectively and more effectively. (Citation).”].)
20 For instance, in Exhibit B, the public has no overriding need to know that one particular
21 customer was seeking an Oracle re-racking and consulting services opportunity quote at a
22 particular time at a particular facility in its northern California footprint. The majority of that
23 document can become public, while redacting the customer’s name.
24 Similarly in Exhibit C, the public has no overriding need to know that a different customer
25 was seeking a particular Dell server quote at a particular time at a particular facility, including
26 how it wanted to receive that particular quote, and the exact pricing information down to the cent.
27 Exhibit D is a “To Do” list that Dawn McCale took with her to Sycomp, listing several
28 specific ongoing projects with particular customers, among them an $11 million deal with one
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particular customer that Sycomp eventually won. (See Turner Decl. ¶ 27c.) A redacted version of
this document, too, can be made public while protecting the list of sensitive competitive business
information contained within it.
Likewise, Exhibit E, contains specific client information relating to a specific Oracle
licensing project and projected value of that license—all non-public data for which there is no
overriding public need to know.
Finally, Exhibit F contains non-public client contact email addresses, pricing information,
and specific business opportunity details relating to a project that has since been acquired by
Sycomp against Trace3 competition. This information, too, can be redacted in a way that strikes
10 the balance necessary under California Rules of Court 2.550 and 2.551 by releasing details of the
11 opportunity itself without disclosing client names, email addresses and pricing information.
12 Trace3’s proposed redactions to paragraphs 9, 10, 23, 26, and 27a–f of the Turner
13 Declaration, which reveal the clients’ names associated with these particular non-public business
14 opportunities, and that they purchase RnR services, and its memorandum in support of the initial
15 TRO application (page 18, lines 12–20) all fall in line with this same reasoning.
16 C. The Kopelev Exhibits Listing Trace3’s Entire Library of Confidential and Trade
17 Secret Business Information Must Be Filed Under Seal.
18 With this reply, Trace3 has filed a completely public version of the Kopelev Declaration
19 and Exhibits A, 1, and 2 thereto, as well as PII-only redacted versions of the 59 Rodriguez
20 declaration exhibits. What remains are the voluminous listings of the almost half a million
21 documents that were deleted, diverted, copied or otherwise misappropriated by Defendants and
22 contained within Kopelev Exhibits 3a, 3b, 3c, 3d, 3e, 4a, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 6-15 and the
23 reference in Table F to Exhibit A of the Kopelev declaration, which contains non-public
24 information concerning Trace3 business and projects.
25 Defendants reiterate the same vague objections here, as to the other categories: (1) the
26 request is overbroad, and (2) that Trace3 is not “specific” enough regarding the confidential
27 content of the documents. (Opp. 7:25–10:5.) The first is mooted by Trace3’s revised sealing
28 requests. As to the second, Trace3 established in its Application, and in various other briefing,
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that the file listings constitute a compendium that, in and of itself, provides an effective roadmap
to all of Trace3’s RnR work. Having these lists would allow a competitor to ascertain the entirety
of any particular customer’s ordering history, its needs at specific facilities and business locations,
the cadence of the customer’s needs over the course of a year and during different business cycles,
the specific types of gear and other associated data necessary to perform work for the customer
and other details that are not known or public available. The file names likewise reflect customer
identities, orders, the timing of those orders, the locations of their RnR sites, and other sensitive
information which, if made public, would provide a competitive advantage to Trace3’s
competitors and cause it harm. (See Brocade, supra, 873 F. Supp. 2d at p. 1215 [customer-related
10 information like customer lists and business needs are “routinely given trade secret protection”
11 and, if public, could “aid [competitors] in ‘securing and retaining their business.’”]; Gable-Leigh,
12 supra, 2001 WL 521695, at *16 [customer lists are trade secret where, as here, “its disclosure
13 would allow a competitor to direct its sales efforts to those customers” who certainly “use a
14 unique type of service . . . as opposed to a list of people who only might be interested”].)
15 Trace3 took on the laborious effort of pairing this data down into one neatly defined list
16 and gave Defendants the benefit of identification each and every one of the 116,901 provisionally
17 personal items as distinguished from the remaining 300,000+ items in the Kopelev Exhibits.
18 Trace3 has done its best to parse out those personal items based on the limited information in its
19 possession, custody, or control. Once Defendants take the time to actually review that list and
20 provide confirmation of what is personal from what is company data (which, to date, Defendants
21 have refused to do despite Trace3’s repeated and proper requests), Trace3 will be in a position to
22 further redact the Kopelev Exhibits to exclude any personal items. Trace3 cannot take further
23 efforts to narrow the confidential data until Defendants take this step.
24 D. The Court Should Narrowly Seal Portions of the TRO Transcript that Contain
25 Trace3’s Confidential and Trade Secret Information.
26 At the May 22, 2023, hearing on the Ex Parte Application for TRO, the Court ordered the
27 transcript to be provisionally sealed, with the parties to further meet and confer regarding what
28 should ultimately remain sealed. Sycomp rejected Trace3’s modest and justified proposed
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redactions to the transcript without any legitimate basis (Phillis Decl., ¶ 5 & Ex. B), and was not
responsive to Trace3’s proposed briefing schedule (Phillis Decl., ¶ 5 & Ex. B). For the same
reasons that the trade secret information should be sealed as described in the Application and
above, the same information reflected in the transcript should likewise be redacted, including the
names of customers for which Trace3 has provided RnR services and specific opportunities and
deals with those customers. Trace3 has submitted its proposed redacted hearing transcript with
this reply, which redacts discussion of specific
Nicole S. Phillis
Attorneys for Plaintiff
TRACE3, LLC
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 865 S. Figueroa Street, Suite 2400,
Los Angeles, CA 90017.On July 6, 2023, I served the document described as
REPLY IN SUPPORT OF PLAINTIFF TRACE3, LLC’S MAY 18, 2023
APPLICATION TO FILE DOCUMENTS UNDER SEAL PURSUANT TO
CALIFORNIA RULES OF COURT 2.550 AND 2.551
upon the interested parties in this action addressed as follows:
Rajiv Dharnidharka Attorneys for Defendant
10 Micah Chavin SYCOMP A TECHNOLOGY COMPANY,
Jeanette.Barzelay INC.
11 Erin Heiferman
DLA Piper
12 2000 University Ave
East Palo Alto, CA 94303
13 Tel: 650-833-2322
Email: Rajiv.Dharnidharka@us.dlapiper.com
14
Micah.Chavin@us.dlapiper.com
15 Jeanette.Barzelay@us.dlapiper.com
Erin.Heiferman@us.dlapiper.com
16
Edward E. Shapiro Attorneys for Individual Defendants
17 Lyn R. Agre TIMOTHY CORDELL, LILIAN ELIAS,
Glenn Agre Bergman & Fuentes GEOFFREY PETERSON, DEVIN TOMCIK
18 44 Montgomery Street, Suite 2410
San Francisco, CA 94104
19 Telephone: 415.599.0880
Email: lagre@glennagre.com
20 eshapiro@glennagre.com
21
X (VIA EMAIL) By forwarding a portable document file to the electronic mail address(es)
22 below from electronic mail address linapearmain@dwt.com, at Suite 2400, 865 South
Figueroa Street, Los Angeles, California.
23
Executed on July 6, 2023, Los Angeles, California.
24
X (State) I declare under penalty of perjury under the laws of the State of California that the
25 above is true and correct.
26
27
LINA PEARMAIN
28
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NICOLE PHILLIS (State Bar No. 291266) nicolephillis@dwt.com DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street, 24th Floor Los Angeles, California 90017-2566 Telephone: (213) 633-6800 Fax: (213) 633-6899 JEREMY MERKELSON (Admitted Pro Hac Vice) jeremymerkelson@dwt.com DAVIS WRIGHT TREMAINE LLP 1301 K Street NW, Suite 500 East Washington, D.C., 20005 Telephone: (202) 973-4200 Fax: (202) 973-4499 Attorneys for Plaintiff TRACE3, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA TRACE3, LLC a California limited liability Case No. 23CV415833 corporation, Assigned to Hon. Sunil R. Kulkarni Dept. 1 Plaintiff, REPLY IN SUPPORT OF PLAINTIFF vs. TRACE3, LLC’S MAY 18, 2023, APPLICATION TO FILE DOCUMENTS SYCOMP A TECHNOLOGY COMPANY, UNDER SEAL PURSUANT TO INC., a California corporation; TIMOTHY CALIFORNIA RULES OF COURT 2.550 CORDELL, an individual; LILIAN ELIAS, an AND 2.551 individual; GEOFFREY PETERSON, an individual; DEVIN TOMCIK, an individual; Date: July 20, 2023 and DOES 1-10, inclusive; Time: 1:30 p.m. Defendants. Action Filed: May 12, 2023 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 I. INTRODUCTION In its Application to Seal (“Application”), Plaintiff Trace3, LLC set forth the specific bases for the Court to seal its trade secret and other highly sensitive business information, more than satisfying its burden under: (1) the Uniform Trade Secret Act’s (“CUTSA”) mandatory sealing provision, Civil Code section 3426.5, which requires sealing for Trace3’s alleged trade secrets; and (2) Rule of Court 2.550, on the grounds that Trace3’s documents contain sensitive and confidential business information, which if made publicly available, could be used by its competitors to harm it. Consistent with the Court’s May 23, 2023 Order, and in the interest of easing the burden on the Court, Trace3 has taken a further review of the documents subject to its 10 Application and has significantly narrowed the universe of documents to be sealed. 11 Despite Trace3 clearly laying out its two bases for sealing, Sycomp’s brief in opposition 12 (“Opposition”): (1) hardly acknowledges that the CUTSA mandatory sealing provision exists, let 13 alone explains why it should not apply here (it does); and (2) as for the CRC 2.550(d) factors, 14 relies on the same tactic Defendants have improperly employed throughout this case, seeking to 15 exploit the extreme volume of documents Defendants misappropriated to their advantage and 16 obscure their own wrongdoing. Fundamentally, Sycomp argues that, because Defendants stole 17 about half a million documents, Trace3 was required to forensically recover, examine, and then 18 “specify” the confidential information contained in each document, all before it even filed its 19 emergency motion. No California case imposes such a burden (and Sycomp cites none), nor 20 should this Court so extend the law here. Trace3 has more than satisfied the applicable legal 21 22 The records Defendants stole from Trace3 include some personal files. On June 12, 2023, Trace3 completed its best effort to segregate the personal files from company ones, producing a 23 file listing of thousands of pages that identified as “provisionally personal” only about a quarter of the 456,012 files that Defendants ultimately deleted, diverted, copied or otherwise 24 misappropriated when leaving Trace3. See Bates TRACE3 0012539 (Trace3’s one-page summary of its “First Amended TS/CI List”). On June 15, 2023, Trace3 explained that 25 Defendants were in the best position to know whether these files in fact belong to them and whether, for example, the photos contained in the First Amended TS/CI list included photos of 26 customer installations or only personal matters. (Declaration of Nicole Phillis (“Phillis Decl.”), Ex. 1 [6/15/23 Email from J. Merkelson to R. Dharnidharka].) Trace3 stated that once 27 Defendants confirmed that the provisionally personal documents were correctly identified, Trace3 could then withdraw any overbroad confidentiality designations. Ibid. Defendants, having had 28 this list for the better part of a month, did nothing with it, and have refused to confer on any aspect of the designation process. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 standard, so Sycomp’s Opposition fails. Trace3 briefly summarizes below the remaining areas of dispute for this Court, and its proposed revised redactions and sealed exhibit lists (which Trace3 submits concurrently with this filing in light of this Court’s prior direction): Exhibits A1-A9 to the Declaration of April Turner, which contain examples of Trace3’s trade secrets and must be sealed pursuant to Civil Code section 3426.5. These items are separately marked “Highly Confidential – Attorney’s Eyes Only” (or “AEO”), consistent with Section 2.7 of the Stipulated Protective Order (“SPO”) entered June 5, 2023. The one case Defendants cite as to why these materials should not be sealed (Cypress Semiconductor Corp. 10 v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243), described the plaintiff in 11 that case’s trade secret claim as “not merely specious, but nonsensical” and the defendants in 12 that case were able to convince the judge that all of the documents at issue were already in the 13 public record (id. at 255). That is not our case. Here, Trace3 has shown by numerous trade 14 secret identifications, in affirmative discovery, and through its materials filed in support of the 15 sealing application why each of these 9 documents is a trade secret and therefore must be 16 sealed under Civil Code section 3426.5. In granting the TRO, the Court acknowledged the 17 likelihood of success on these alleged trade secrets, and Trace3 is entitled to the 18 confidentiality protections under CUTSA. Moreover, Defendants have never challenged or 19 sought to meet and confer with Trace3 about the AEO designation of these files pursuant to 20 section 6.2 of the SPO, and therefore cannot seek judicial intervention on the AEO 21 designation by merely opposing the sealing application without violating the process 22 established under section 6.3 of the SPO. 23 Trace3’s redacted version of the Declaration of April Turner, which narrows the sealed 24 portions to limited segments of paragraphs 9, 10, 23 26, 27(a)–(f), and Exhibits B–F thereto. 25 This tranche concerns specific client names, contact information, and pricing data relating to 26 27 Specifically, Trace3 has withdrawn the confidentiality designations as to the entirety of the Kopelev declaration and its Exhibits A, 1, and 2, Exhibits 1–59 to the Rodriguez declaration 28 (except as to the redacted portions containing PII), and all but certain very limited redacted portions of Exhibits B–F and paragraphs 9, 10, 23, 26, and 27a–f of the Turner declaration. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 particular RnR opportunities, and is information not readily known to the general public and which should not be filed absent a sealing order. Page 18, lines 12-20, of Trace3’s TRO Memorandum, similarly discusses these specific business opportunities with specific clients, none of which is in the public domain. The Redacted Text of Declaration of Sergio Kopelev Exhibit A, and Exhibits 3a, 3b, 3c, 3d, 3e, 4a, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 thereto, which contain references to Trace3 customer opportunities and detailed lists of Trace3 trade secrets and confidential business information and which, in total, present an effective roadmap to all of Trace3’s RnR work. The list itself reflects the trade secret information that is entitled to confidentiality under CUTSA and CRC 2.550 and 2.551. Trace3 has narrowed its sealing request as best as it can based on the information within its possession, custody, or control. For any further redaction to occur, Defendants should be ordered to confirm whether the identified files are in fact personal. Portions of the May 22, 2023 Transcript at 10:7–23, 11:2, 11:23–26, 13:1–3, 15:12–26; 22:20–21, 22:3, 27:17–19, 33:6–8, 33:12, 36:26–27, 37:23–26, and 41:18–19, which contain references to Trace3 customer names and specific non-public opportunities. All of the above information must be filed under seal under both Civil Code section 3426.5 and CRC 2.550(d). Trace3 has already explained in detail why such data is competitively sensitive. Sycomp has long had these documents in its possession since Trace3 filed its brief. It identifies no compelling public interest in Trace3’s entire portfolio of sales orders, purchase histories, and other lists showing the entirety of its RnR work for the clients targeted by the Defendants. Sycomp’s real basis for bringing its lengthy opposition is to gain a litigation advantage, forcing Trace3 to expend resources and detract from its own wrongdoing. The application to seal, as narrowed, should be granted. After entering RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 II. ARGUMENT A. A1-A9 Are Trade Secrets That Must Be Sealed Under Civil Code Section 3426.5. Trace3 established in its Application that Exhibits A1–A9 of the Turner Declaration are subject to mandatory sealing under CUTSA, as they contain some of the trade secrets at issue. Contrary to Sycomp’s vague claim that Trace3 relies on “vague grounds” of confidentiality that are insufficiently specific to warrant protections (Opp. 15:11–14), Trace3 explained that these nine documents are examples of the very trade secret information Defendants stole from Trace3, which Trace3 has specified in detail throughout this litigation. (Appl. 5:14–18.) Sycomp uses its Opposition as an opportunity to argue that Trace3’s trade secrets are not in fact trade secrets, 10 which is irrelevant to the Application. In support of its argument, Sycomp contends that CUTSA 11 does not automatically apply to any alleged trade secret, citing only Cypress Semiconductor Corp. 12 v. Maxim Integrated Products, Inc., supra 236 Cal.App.4th at p. 255, which is inapposite. (Opp. 13 15:23–16:13). The court in Cypress, however, did acknowledge that a presumption of 14 confidentiality under CUTSA generally should apply where the information is “secret.” (Cypress, 15 supra, 236 Cal.App.4th at p. 255.) The court then held that the alleged “trade secret” was not 16 protected because the plaintiff sought to seal information the defendant had collected from 17 publicly available sources—a far cry from the highly confidential material at issue here (on which 18 the Court has already found a likelihood of success). Thus, even under Sycomp’s own authority, 19 where, as here, the trade secret information is “at least arguably secret,” the mandatory 20 confidentiality provision under CUTSA should apply. (Ibid. [emphasis in original].) 21 Defendants make no argument that Exhibits A1-A9 were not kept secret by Trace3 or 22 otherwise subject to reasonable secrecy efforts. (Nor could they.) They do not deny that these 23 materials derive independent economic value from not being generally known by the public, as 24 detailed in Turner’s declaration at paragraphs 12–24. Instead, Defendants claim Trace3 has not 25 done enough to identify what specifically within A1–A9 constitutes a trade secret under a 26 different code section, 2019.210 (Opp. Br. at 15–16), which is not the standard for sealing 27 28 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 confidential records under section 3426.50. Making matters worse, Defendants misleadingly state that Trace3 has not identified what is secret within A1-A9 when Trace3’s June 28, 2023 Amended Trade Secret Identification (“Identification”) does just that. In that document, Trace3 identifies in A1 and A2 the specific customer lists at issue, the competitive sales and revenue information contained in A4, and all of the Build Documents identified in A5, A6, A7, A8, and A9. (Identification at pp. 3-4.) The sole remaining item, A3, is described by Turner as a “Label Template” that “illustrates the format of all labels for builds.” (Turner Decl., ¶ 23.) As Defendants note, “the document consists of 15 pages of combined letters, numbers, and symbols set forth in a 6x7 grid pattern…” But then Defendants argue, with no factual support whatsoever, 10 that this document is “similar to any standard grid-label print format” and that “Sycomp cannot 11 conceive of any non-public information conveyed by this document or any competitive value to 12 be derived from it.” (Opp. at 15.) That may be Defendants’ off-the cuff read of this document, 13 but it is not enough to rebut the actual evidence before the Court that device labeling, power and 14 network labeling, and related processes are part and parcel of the RnR methodology that Trace3 15 uses to save its customers money and to provide value. (Turner Decl., ¶ 12.) 16 Even on its face, the Court can see that A3 contains a thought-out structure of rows and 17 rows of numerical codes that apply to particular builds, not merely “any” grid-label print format. 18 Moreover, according to Turner, this document (labeled as “version 4”, showing its development 19 over time) is a template for “all labels for all builds” at Trace3. It is precisely because of the 20 21 Defendants cite a handful of inapposite cases for the proposition that the sealing party must 22 identify the “specific information” claimed to be entitled to confidential treatment. See Opp. Br. at 7:1-8, 7:20-22, 8:10, 18-19, 9:28-10:5, 18:9–16, citing H.B. Fuller Co. v. Doe (2007) 151 23 Cal.App.4th 879, 894–897 (in a non-trade-secrets case, plaintiff made only “circuitous and conclusory” statements that confidential information was involved without identifying the specific 24 data at issue or how public disclosure would harm it); Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 638 (request to seal entire online job review including portions that 25 “implicate[d] no confidential information” “swept far too broadly” and was not “narrowly tailored” or the least restrictive means available); Universal City Studios, Inc. v. Superior Court, 26 110 Cal.App.4th 1273, 1283–1284 (2003) (discussing confidentiality of a table of contents and pages of legal argument from a judgment on the pleadings motion in a non-trade-secrets case). 27 These cases do not hold that no information should have been sealed, or that something more than Trace3’s detailed trade secret identification is necessary to justify sealing documents containing 28 Trace3’s trade secrets. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 valuable nature of this, and the other records taken by Defendants that Trace3 is seeking to ensure they remain confidential and not readily available to the public. Nothing more is needed to justify sealing the trade secret examples A1–A9. B. The Redacted Portions Of Turner Exhibits B–F, Paragraphs 9, 10, 23, 26, 27(A)–(F), And TRO Memorandum Page 18, Lines 12–20, Contain Competition-Sensitive Non- Public Business Information That Must Also Be Sealed. Following this Court’s admonitions, Trace3 has narrowed the scope of its sealing motion. Trace3 sufficiently identified the bases for sealing its confidential information—namely, its own customer’s names associated with specific, non-public business opportunities and any specific 10 pricing information, specific historical sales and opportunity information, email addresses and 11 other contact information, inventory and gear information, customer location and facility data, and 12 other competitively sensitive information that derives independent economic value from not being 13 generally known to the public. Indeed, this is precisely the type of information that must be kept 14 confidential under California Rules of Court 2.550 and 2.551 and the cases cited in Trace3’s 15 opening brief, which Defendants do not bother to rebut. (Sealing Appl. at pp. 5–6 [collecting 16 cases].) In response, Defendants argue that (1) customer names alone are not confidential, and 17 some customer names vaguely appear in a random employee’s LinkedIn page, and (2) the request 18 is overbroad. The latter is mooted by Trace3’s revisions to its sealing request, and neither 19 overcomes Trace3’s sufficient showing. 20 To begin, it does not matter that one particular Trace3 employee, as Defendants apparently 21 found, listed his generic affiliation on LinkedIn as having performing some unspecified 22 23 Defendants alternatively argue that the AEO designation to A1–A9 should be voided because, as Trace3 alleges, Defendants have already taken these documents and have been improperly using 24 them anyway. (Opp. at 16.) Were this argument to hold water, then no trade secret plaintiff could ever justify sealing or applying an AEO designation as to any materials stolen since, the fact of 25 the taking itself strips the owner of any confidentiality protections. For obvious reasons, the Court should reject this claim. Moreover, any challenge to the AEO designation must be taken up 26 under SPO section 6.3, and Defendants have yet to lodge any challenge to that designation under those procedures, rendering their efforts both premature and procedurally improper. 27 Sycomp’s table comparing the publicly filed complaint to the sealed Turner Declaration (Opp. 11:25-12:25) confirms that Trace3 has consistently protected the identities of its clients and kept 28 them out of the public record. AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 “integration” services for some of these customers at some point in time, or that Trace3 and Sycomp are both known as Value Added Resellers in the general marketplace that one named customer might seek to hire for unspecific integration services (while Sycomp has no prior history of serving as an RnR industry player). (See Opp. Br. at 13, 17.) It is not publicly known, nor does Sycomp proffer any evidence otherwise, that Trace3’s customers were seeking quotes on specific business opportunities at specific points in time and with respect to particular locations and specific OEM products, as reflected in Exhibits B–F, nor is the customer contact information, pricing, and other data listed in these documents public information. (See Brocade Communications Systems, Inc. v. A10 Networks, Inc. (N.D. Cal. 2012) 873 F. Supp. 2d 1192, 10 1215 [“[C]onfidential customer-related information including customer lists and contact 11 information, pricing guidelines, historical purchasing information, and customers' business 12 needs/preferences . . . [are] routinely given trade secret protection. (Citation). This information 13 has potential or actual value from not being generally known to the public: information about 14 customers’ preferences can aid in ‘securing and retaining their business.’ (Citation).”]; Gable- 15 Leigh, Inc. v. North American Miss (C.D. Cal. Apr. 13, 2001) No. CV 01–01019, 2001 WL 16 521695, at *16 [customer lists are trade secrets where “its disclosure would allow a competitor to 17 direct its sales efforts to those customers who have already shown a willingness to use a unique 18 type of service or product as opposed to a list of people who only might be interested. Its use 19 enables the former employee to solicit both more selectively and more effectively. (Citation).”].) 20 For instance, in Exhibit B, the public has no overriding need to know that one particular 21 customer was seeking an Oracle re-racking and consulting services opportunity quote at a 22 particular time at a particular facility in its northern California footprint. The majority of that 23 document can become public, while redacting the customer’s name. 24 Similarly in Exhibit C, the public has no overriding need to know that a different customer 25 was seeking a particular Dell server quote at a particular time at a particular facility, including 26 how it wanted to receive that particular quote, and the exact pricing information down to the cent. 27 Exhibit D is a “To Do” list that Dawn McCale took with her to Sycomp, listing several 28 specific ongoing projects with particular customers, among them an $11 million deal with one AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 particular customer that Sycomp eventually won. (See Turner Decl. ¶ 27c.) A redacted version of this document, too, can be made public while protecting the list of sensitive competitive business information contained within it. Likewise, Exhibit E, contains specific client information relating to a specific Oracle licensing project and projected value of that license—all non-public data for which there is no overriding public need to know. Finally, Exhibit F contains non-public client contact email addresses, pricing information, and specific business opportunity details relating to a project that has since been acquired by Sycomp against Trace3 competition. This information, too, can be redacted in a way that strikes 10 the balance necessary under California Rules of Court 2.550 and 2.551 by releasing details of the 11 opportunity itself without disclosing client names, email addresses and pricing information. 12 Trace3’s proposed redactions to paragraphs 9, 10, 23, 26, and 27a–f of the Turner 13 Declaration, which reveal the clients’ names associated with these particular non-public business 14 opportunities, and that they purchase RnR services, and its memorandum in support of the initial 15 TRO application (page 18, lines 12–20) all fall in line with this same reasoning. 16 C. The Kopelev Exhibits Listing Trace3’s Entire Library of Confidential and Trade 17 Secret Business Information Must Be Filed Under Seal. 18 With this reply, Trace3 has filed a completely public version of the Kopelev Declaration 19 and Exhibits A, 1, and 2 thereto, as well as PII-only redacted versions of the 59 Rodriguez 20 declaration exhibits. What remains are the voluminous listings of the almost half a million 21 documents that were deleted, diverted, copied or otherwise misappropriated by Defendants and 22 contained within Kopelev Exhibits 3a, 3b, 3c, 3d, 3e, 4a, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 6-15 and the 23 reference in Table F to Exhibit A of the Kopelev declaration, which contains non-public 24 information concerning Trace3 business and projects. 25 Defendants reiterate the same vague objections here, as to the other categories: (1) the 26 request is overbroad, and (2) that Trace3 is not “specific” enough regarding the confidential 27 content of the documents. (Opp. 7:25–10:5.) The first is mooted by Trace3’s revised sealing 28 requests. As to the second, Trace3 established in its Application, and in various other briefing, AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 that the file listings constitute a compendium that, in and of itself, provides an effective roadmap to all of Trace3’s RnR work. Having these lists would allow a competitor to ascertain the entirety of any particular customer’s ordering history, its needs at specific facilities and business locations, the cadence of the customer’s needs over the course of a year and during different business cycles, the specific types of gear and other associated data necessary to perform work for the customer and other details that are not known or public available. The file names likewise reflect customer identities, orders, the timing of those orders, the locations of their RnR sites, and other sensitive information which, if made public, would provide a competitive advantage to Trace3’s competitors and cause it harm. (See Brocade, supra, 873 F. Supp. 2d at p. 1215 [customer-related 10 information like customer lists and business needs are “routinely given trade secret protection” 11 and, if public, could “aid [competitors] in ‘securing and retaining their business.’”]; Gable-Leigh, 12 supra, 2001 WL 521695, at *16 [customer lists are trade secret where, as here, “its disclosure 13 would allow a competitor to direct its sales efforts to those customers” who certainly “use a 14 unique type of service . . . as opposed to a list of people who only might be interested”].) 15 Trace3 took on the laborious effort of pairing this data down into one neatly defined list 16 and gave Defendants the benefit of identification each and every one of the 116,901 provisionally 17 personal items as distinguished from the remaining 300,000+ items in the Kopelev Exhibits. 18 Trace3 has done its best to parse out those personal items based on the limited information in its 19 possession, custody, or control. Once Defendants take the time to actually review that list and 20 provide confirmation of what is personal from what is company data (which, to date, Defendants 21 have refused to do despite Trace3’s repeated and proper requests), Trace3 will be in a position to 22 further redact the Kopelev Exhibits to exclude any personal items. Trace3 cannot take further 23 efforts to narrow the confidential data until Defendants take this step. 24 D. The Court Should Narrowly Seal Portions of the TRO Transcript that Contain 25 Trace3’s Confidential and Trade Secret Information. 26 At the May 22, 2023, hearing on the Ex Parte Application for TRO, the Court ordered the 27 transcript to be provisionally sealed, with the parties to further meet and confer regarding what 28 should ultimately remain sealed. Sycomp rejected Trace3’s modest and justified proposed 10 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 redactions to the transcript without any legitimate basis (Phillis Decl., ¶ 5 & Ex. B), and was not responsive to Trace3’s proposed briefing schedule (Phillis Decl., ¶ 5 & Ex. B). For the same reasons that the trade secret information should be sealed as described in the Application and above, the same information reflected in the transcript should likewise be redacted, including the names of customers for which Trace3 has provided RnR services and specific opportunities and deals with those customers. Trace3 has submitted its proposed redacted hearing transcript with this reply, which redacts discussion of specific Nicole S. Phillis Attorneys for Plaintiff TRACE3, LLC 11 RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 865 S. Figueroa Street, Suite 2400, Los Angeles, CA 90017.On July 6, 2023, I served the document described as REPLY IN SUPPORT OF PLAINTIFF TRACE3, LLC’S MAY 18, 2023 APPLICATION TO FILE DOCUMENTS UNDER SEAL PURSUANT TO CALIFORNIA RULES OF COURT 2.550 AND 2.551 upon the interested parties in this action addressed as follows: Rajiv Dharnidharka Attorneys for Defendant 10 Micah Chavin SYCOMP A TECHNOLOGY COMPANY, Jeanette.Barzelay INC. 11 Erin Heiferman DLA Piper 12 2000 University Ave East Palo Alto, CA 94303 13 Tel: 650-833-2322 Email: Rajiv.Dharnidharka@us.dlapiper.com 14 Micah.Chavin@us.dlapiper.com 15 Jeanette.Barzelay@us.dlapiper.com Erin.Heiferman@us.dlapiper.com 16 Edward E. Shapiro Attorneys for Individual Defendants 17 Lyn R. Agre TIMOTHY CORDELL, LILIAN ELIAS, Glenn Agre Bergman & Fuentes GEOFFREY PETERSON, DEVIN TOMCIK 18 44 Montgomery Street, Suite 2410 San Francisco, CA 94104 19 Telephone: 415.599.0880 Email: lagre@glennagre.com 20 eshapiro@glennagre.com 21 X (VIA EMAIL) By forwarding a portable document file to the electronic mail address(es) 22 below from electronic mail address linapearmain@dwt.com, at Suite 2400, 865 South Figueroa Street, Los Angeles, California. 23 Executed on July 6, 2023, Los Angeles, California. 24 X (State) I declare under penalty of perjury under the laws of the State of California that the 25 above is true and correct. 26 27 LINA PEARMAIN 28 12 AVIS RIGHT REMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 REPLY ISO TRACE3’S MAY 18 APPLICATION LOS ANGELES, CALIFORNIA 90017-2566 TO FILE DOCUMENTS UNDER SEAL (213) 633-6800 Fax: (213) 633-6899