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RAJIV DHARNIDHARKA (Cal. Bar No. 234756)
rajiv.dharnidharka@dlapiper.com
JEANETTE BARZELAY (Cal. Bar No. 261780)
jeanette.barzelay@us.dlapiper.com
MICAH A. CHAVIN (Cal. Bar No. 313634)
micah.chavin@dlapiper.com
DLA PIPER LLP (US)
2000 University Avenue
East Palo Alto, CA 94303-2214
Tel: 650.833.2000
Fax: 650.833.2001
Attorneys for Defendant,
Sycomp A Technology Company Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
TRACE3, LLC a California limited liability CASE NO. 23CV415833
company,
DEFENDANT SYCOMP A
TECHNOLOGY COMPANY, INC.’S
Plaintiff, OPPOSITION TO PLAINTIFF TRACE3,
LLC’S SIXTH MOTION TO FILE
DOCUMENTS UNDER SEAL
SYCOMP A TECHNOLOGY COMPANY, Date: November 30, 2023
INC., a California corporation; TIMOTHY Time: 1:30 p.m.
CORDELL, an individual; LILIAN ELIAS, an Dept: 1
individual; GEOFF PETERSON, an individual;
DEVIN TOMCIK, an individual; and DOES 1- Action Filed: May 12, 2023
10, inclusive;
Defendants.
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INTRODUCTION
Trace3’s Sixth Motion to Seal (“6th Sealing Motion”) asks this Court to seal non-
confidential information that Trace3 itself publicizes. Trace3 continues in its effort to redact former
or current client names, regardless of context, claiming that revealing the mere names of Trace3’s
customers will cause it competitive harm. This is absurd. Trace3 routinely publicizes its customers
and vendors. See 8/31 Declaration of Rajiv Dharnidharka (“8/31 RD Decl.”), Ex. 14 (Thompson
Depo. Tr.), 45:13-46:14; https://www.trace3.com/partners Trace3 is merely trying to hamstring
Sycomp’s ability to show Trace3’s baseless accusations to the relevant clients to better investigate
Trace3’s allegations. The Court should not allow Trace3’s bad faith tactics to continue.
To be sure, Trace3’s 6th Sealing Motion is impermissibly overbroad and runs afoul of
California’s strict requirements for sealing presumptively public court records from public view.
To seal any court record, a court must expressly find that there is an overriding interest in protecting
the information that both outweighs the right of public access and is likely to be harmed, that
the proposed sealing is narrowly tailored and the least restrictive means for protecting the interest
involved. Trace3 cannot make this showing.
Trace3’s 6th Sealing Motion provides no factual basis for the Court to make such findings
here or grant Trace3’s motion. Among other things, Trace3 seeks to seal information about its
former or current clients and vendor, its forensic examiner’s analysis of Stacy Thompson’s Trace3
laptop (see 8/28 Kopelev Decl. Ex. B), and an innocuous Slack chat among its employees (see 8/28
Phillis Decl. Ex. B) (together, the “Lodged Materials” ). Trace3 fails to identify specific
information that is appropriate for sealing in the Lodged Materials. Instead, Trace3 provides a
declaration of counsel to vaguely assert the redacted information would prejudice Trace3. This is
insufficient to meet the sealing standard.
The 6th Sealing Motion is another attempt to abuse the protections afforded under
California law while refusing to identify the specific information Trace3 claims actually meets the
legal standard for sealing court records. Trace3 has not met its burden, and the 6th Sealing Motion
Sycomp does not oppose Trace3’s request to seal Exhibit A to the 8/28 Phillis Decl. and does
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not include that document in the definition of “Lodged Materials.”
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should be denied.
II. FACTUAL BACKGROUND
A. Trace3 Moves to Seal the Lodged Materials Filed with its Supplemental Joint
Status Report
On August 28, Trace3 filed a document titled “Plaintiff Trace3, LLC’s Supplemental Joint
Status Report re: Spousal Privilege Objections” (“Status Report”), signed only by Trace3’s counsel.
See Docket. Trace3 redacted client and vendor names from the report. See id. Along with the status
report, Trace3 filed a Phillis Declaration attaching as Exhibit B an April 12 Slack conversation
between Defendant Timothy Cordell and former-Defendant Lilian Elias that mentions a Trace3
client and a vendor name. Id. Trace3 also filed a Kopelev Declaration that attaches as Exhibit B a
document titled “4th Declaration of Sergio D. Kopelev,” which purports to contain an analysis of
former Trace3 employee Stacy Thompson’s Trace3 laptop. Id. Trace3 moves to seal the entire 4th
Kopelev Decl. even though very few lines reference Trace3 client names. Neither the 6th Sealing
Motion nor the Phillis Declaration in support of the 6th Sealing Motion provide any argument on
why the entire 4th Kopelev Decl. should be sealed – most of it is generic descriptions of the actions
Mr. Kopelev took to purportedly analyze Ms. Thompson’s laptop activity.
B. The Identity of Trace3 Clients and Vendors is Not Confidential; Trace3 Does
Not Take Reasonable Measures to Maintain Any Information as Confidential.
Four former Trace3 employees have been deposed in this case so far: nonparty Stacy
Thompson and each of the remaining original Individual Defendants (Geoff Peterson, Tim Cordell,
and Devin Tomcik). Relevant to this motion, Ms. Thompson testified that Trace3 never instructed
its employees to keep its clients a secret, and that Trace3 routinely publicizes its partnerships with
clients and vendors. 8/31 RD Decl. Ex. 14 (Thompson Depo. Tr.), 45:13-46:14. Messrs. Cordell,
Peterson, and Tomcik all testified that Trace3 provided no training whatsoever regarding
maintaining the confidentiality of any Trace3 information. Id. Ex. 7 at 96:22-97:1, Ex. 8 at 116:25-
117:4, Ex. 9 at 103:14-17. They also testified that Trace3 employees were free to attach external
storage devices to their computers with no prior approval, and could access their personal emails
from their Trace3 devices without any instructions by Trace3 not to do so. Id. Ex. 7 at 81:12-82:16,
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Ex. 8 at 117:6-118:17, Ex. 9 at 103:19-104:12.
Trace3 also publicizes its customers and its “partners.” https://www.trace3.com/partners;
see also 8/31 Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot of
https://www.linkedin.com/in/jack-robinson-563445155/ ). Trace3 put forward no evidence in the
6th Sealing Motion that it keeps any information found in the Lodged Materials confidential.
III. ARGUMENT
A. Trace3 has not satisfied the strict standard for sealing under Cal. R. Ct. 2.550
as to any of the Lodged Materials.
Trace3’s 6th Sealing Motion fails to make the necessary factual showing to overcome the
strong presumption of openness and public access to the courts. Under California Rule of Court
2.550(c) and (d), “court records are presumed to be open” and may only be sealed if, based on the
moving party’s evidence, the Court expressly finds that: (1) there exists an overriding interest that
overcomes the public’s right of access; (2) the overriding interest supports sealing the record; (3) a
substantial probability exists that the overriding interest will be prejudiced if the record is not
sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to
achieve the overriding interest. See Cal. R. Ct. 2.550(c), (d). These rules embody the underlying
constitutional requirements recognized in NBC Subsidiary (KNBC-TV), Inc. v. Sup. Ct., 20 Cal. 4th
1178, 1212-18 (1999), for preserving the First Amendment right of public access to civil trials.
To satisfy these strict constitutional requirements, the party requesting sealing bears the
burden of presenting facts “identifying the specific information claimed to be entitled to such
treatment” and “identifying the nature of the harm threatened by disclosure.” H.B. Fuller Co. v.
Doe, 151 Cal. App. 4th 879, 894 (2007) (emphasis added). At a minimum, the requesting party
“must come forward with a specific enumeration of the facts sought to be withheld and specific
reasons for withholding them.” Id. (emphasis added).
Trace3’s overbroad 6th Sealing Motion plainly does not meet these standards. Trace3
As of the time of filing this opposition, it seems that Mr. Robinson has removed references to
Trace3 clients from his LinkedIn profile, almost three months after Sycomp first cited the profile
on June 29. This highlights the insincerity of Trace3’s shifting position. Indeed, in its 9/7 reply
briefs to the 4th and 5th Sealing Motions, Trace3 defended Mr. Robinson’s client references
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(days before apparently telling him to remove those references).
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generically asserts that the Lodged Materials “contain references to Trace3 customer names and
specific non-public opportunities, . . . and analysis of Stacy Thompson’s corporate-issued Trace3
laptop” which Trace3 claims “would cause competitive harm to Trace3’s business interests” if not
sealed. 6th Sealing Mot. at 5. But nowhere in Trace3’s 6th Sealing Motion, or the supporting
declarations by counsel, does Trace3 specifically enumerate the facts or information within the
Lodged Materials that allegedly warrant sealing, explain why public disclosure of that information
would subject Trace3 to competitive or other harm sufficient to override the presumption of public
access, or establish that there is no less restrictive means to protect any actually confidential
information. As shown below, Trace3’s 6th Sealing Motion is improper and overbroad and should
be denied. See e.g. Glassdoor, Inc. v. Super. Ct., 9 Cal. App. 5th 623, 638 (2017) (request to seal
entire online job review including portions that “implicate[d] no confidential information” “swept
far too broadly” and was not “narrowly tailored” or the least restrictive means available).
Trace3 fails to specifically enumerate the facts or information subject to
sealing within the Status Report or Exhibit B to the 8/28 Phillis Decl.
Trace3’s request in the 6th Sealing Motion to seal portions of the Status Report does not
come close to satisfying the requirements of Cal. R. Ct. 2.550 or passing constitutional muster.
Trace3 argues generally that the redacted portions of the Status Report and Exhibit B to the Phillis
Decl. contain “descriptions of named Trace3 customers and vendors who have moved projects or
other business operations over the Sycomp.” 6th Sealing Mot. at 7. This information does not
warrant sealing under California Rules of Court, Rules 2.550 and 2.551.
Trace3 provides no facts to support the contention that passing references to the names of
its alleged customers and vendors overcome the public’s right of access or will cause harm to
Trace3 in any way. Trace3 fails to explain how the disclosure of only a customer’s or vendor’s
name—particularly customers and vendors Trace3 claims are already known to and working with
Sycomp—is somehow secret or commercially sensitive. These customers and vendors are large
technology companies that always have a need for the type of IT equipment integration services
offered by Trace3, Sycomp, and dozens of other industry competitors. Their mere existence as
potential integration services customers and vendors is not Trace3’s or any competitor’s
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confidential information. Indeed, Trace3’s own employees have advertised that Trace3 performs
integration services for these supposedly “secret” customers on their public LinkedIn profiles. 8/31
Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot of Jack Robinson, Trace3 Integration
Specialist). Trace3 also publicly advertises its “partners.” See https://www.trace3.com/partners.
Additionally, former-employee Stacy Thompson testified that Trace3 never instructed its
employees to keep its clients a secret, and that Trace3 routinely publicizes who its clients and
vendors are. Thompson Depo. Tr., 45:13-46:14. This information is not sensitive and should not be
sealed.
Trace3 fails to specifically enumerate the facts or information subject
to sealing within the 4th Kopelev Decl. Ex. B
Trace3’s request to seal the entirety of the 4th Kopelev Decl. Ex. B is both improper and
overbroad. First, while Ex. B does reference Trace3 customer names, sealing this information is
unwarranted for the reasons described above. Second, the vast majority of Ex. B does not reference
any client name nor any other information that Trace3 claims is sensitive. Indeed, Trace3 makes
no attempt to justify sealing the entirety of Ex. B. The 6th Sealing Motion only provides
argument regarding so-called “confidential client and vendor names,” and does not mention the
several pages in Ex. B where Kopelev simply describes the steps he took to analyze the Thompson
laptop and his findings on the files and folder paths he reviewed (none of which are confidential
file names or folder paths). It is Trace3’s burden to establish the elements of Rule of Court 2.550(c).
By not even addressing the substance of the majority of the proposed Ex. B sealing, Trace3 fails to
establish any element. In particular, Trace3 makes no attempt to narrowly tailor its proposed sealing
of Ex. B. The Court should deny sealing Ex. B in its entirely or, in the event the Court does find
sealing of client names warranted, order that only client references shall remain sealed and deny
the Motion as to the remainder of Ex. B.
B. Civil Code § 3426.5 is Not Applicable and Does Not Support Sealing.
Trace3 argues that the Lodged Materials should be sealed pursuant to Cal. Civ. Code
See 6th Sealing Motion. at 7-9. Courts have rejected the premise that “merely by filing a
pleading characterizing certain information as a trade secret, a party can compel the courts to
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withhold that information from the public record until such time as it [is] finally adjudged not to be
a trade secret.” Cypress Semiconductor Corp. v. Maxim Integrated Prods., Inc., 236 Cal. App. 4th
243, 255 (2015). Section 3426.5 only requires the Court to employ reasonable means to “preserve
the secrecy” of an “alleged trade secret.” Id. In other words, section 3426.5 does not mandate the
sealing of any material that a party alleges to be a trade secret if there is, in fact, “no secrecy to
preserve.” Id. (“This was not a colorable trade secret, and [Plaintiff’s] calling it so did not obligate
the court to place it under seal or take any other action to prevent its further disclosure.”).
Here, the Lodged Materials are by no means a colorable trade secret. Indeed, Trace3 does
not even allege that they are. Trace3 has made numerous trade secret disclosures – the most recent
authorized one on August 7, 2023 (“8/7 TS Disclosure”), and not one of them states that Trace3’s
client relationship are a trade secret. Likewise, the 8/7 TS Disclosure does not disclose Mr.
Kopelev’s forensic analysis as a trade secret. It is true that the 8/7 TS Disclosure includes Trace3’s
“customer lists” and “vendor lists” as two of its four alleged trade secret categories. But those
categories refer to specific files identified in Appendix A to the disclosure, and Trace3 does not
claim any such file is referenced by the Lodged Materials. There is no justification for the sealing
of stray references to Trace3 clients or the banal details of Mr. Kopelev’s analysis of a laptop.
Additionally, Trace3’s reliance on federal case law sealing sensitive business materials is
inapposite. None of Trace3’s cited cases sealed mere client references or high-level descriptions of
forensic analysis. Wn. Air Charter, Inc. v. Sojitz Corp., 2019 WL 4509304, at *5 (C.D. Cal. May
2, 2019) (sealing copies of a Stock Purchase Agreement and Escrow Agreement that, if disclosed,
“would give [ ] future business partners the upper-hand in negotiations of similar deals”); Bauer
Bros. LLC v. Nike, Inc., 2012 WL 1899838 (S.D. Cal. May 24, 2012) (sealing “marketing strategies,
sales and retailer data, product development plans, unused prototypes, and detailed testimony
regarding the same”); In re Electronic Arts, Inc. 298 F. App’x 568, 569 (9th Cir. 2008) (sealing
“pricing terms, royalty rates, and guaranteed minimum payment terms found in paragraph 6 of the
2006 Licensing Agreement”); Xifin, Inc. v. Sunshine Pathways, LLC 2016 WL 5930313 (S.D. Cal.
Oct. 12, 2016) (sealing a “Services Agreement” that contained “pricing, proprietary service
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protocols and processes, and contractual terms”). Trace3’s citation to these cases only spotlights
the fact that Trace3’s sealing request is unsupported by any law Trace3 (or Sycomp) can find.
To the extent the Court finds federal law persuasive, it should consider the Ninth Circuit
mandate that “[s]imply mentioning a general category of privilege, without any further elaboration
or any specific linkage with the documents, does not satisfy the burden” to overcome the
presumption of public access to records. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,
1184 (9th Cir. 2006). “In particular, an unsupported assertion of ‘unfair advantage’ to competitors
without explaining how a competitor would use the information to obtain an unfair advantage is
insufficient.” Open Text S.A. v. Box, Inc., 2014 WL 7368594, at *2 (N.D. Cal. Dec. 26, 2014).
Ninth Circuit courts, like California courts, require “specific compelling reasons to seal” records,
and deny a sealing request when the designating party fails to provide such reasons for each
proposed redaction. See, e.g. id. at *4 (ruling item-by-item on each proposed sealed record, and
denying the request to seal “the identities of [moving party’s] customers”). Ninth Circuit courts
do not seal mere references to the names of clients See id.; see also Primus Grp., Inc. v. Inst.
for Env't Health, Inc., 395 F. Supp. 3d 1243, 1270 (N.D. Cal. 2019) (rejecting argument that records
should be sealed “because they contain the identity of and information about specific customers”).
Trace3’s 6th Sealing Motion is rife with “unsupported assertion[s]” that the Lodged Materials
should be sealed, including mere client names, but lack any “specific compelling reasons” for a
single sealing request. Federal law, as persuasive authority, supports denying the motion.
Finally, Trace3 also argues, incorrectly, that it takes “reasonable secrecy measures . . . to
protect this confidential information from public view.” See 6th Sealing Mot. at 8. This is false.
Trace3 takes no measures to maintain the confidentiality of its customers and vendors. The opposite
is true: Trace3 publicizes this information. See 8/31 RD Decl. Ex. 14 (Thompson Depo. Tr.), 45:13-
46:14; https://www.trace3.com/partners; 8/31 Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot
https://www.linkedin.com/in/jack-robinson-563445155/ . Moreover, Trace3 provided no
training to its employees whatsoever on keeping any information confidential. Id. Ex. 7 at 96:22-
97:1, Ex. 8 at 116:25-117:4, Ex. 9 at 103:14-17. Its employees were also free to attach external
storage devices to their computers with no prior approval and could access their personal emails
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from their Trace3 devices without any instructions by Trace3 not to do so. Id. Ex. 7 at 81:12-82:16,
Ex. 8 at 117:6-118:17, Ex. 9 at 103:19-104:12. In short, Trace3 seemingly has not undertaken
measures to protect or maintain the confidentiality of its clients and vendors. It should not be
allowed to do so now by restricting the public’s right of access. Civil Code section 3426.5 does not
support Trace3’s position, and the motion must be denied.
CONCLUSION
For these reasons, Trace3’s 6th Sealing Motion should be denied.
Dated: October 26, 2023 DLA PIPER LLP (US)
By:/s/ Rajiv Dharnidharka
RAJIV DHARNIDHARKA
JEANETTE BARZELAY
MICAH A. CHAVIN
Attorneys for Defendant Sycomp A Technology
Company, Inc.
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RAJIV DHARNIDHARKA (Cal. Bar No. 234756) rajiv.dharnidharka@dlapiper.com JEANETTE BARZELAY (Cal. Bar No. 261780) jeanette.barzelay@us.dlapiper.com MICAH A. CHAVIN (Cal. Bar No. 313634) micah.chavin@dlapiper.com DLA PIPER LLP (US) 2000 University Avenue East Palo Alto, CA 94303-2214 Tel: 650.833.2000 Fax: 650.833.2001 Attorneys for Defendant, Sycomp A Technology Company Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TRACE3, LLC a California limited liability CASE NO. 23CV415833 company, DEFENDANT SYCOMP A TECHNOLOGY COMPANY, INC.’S Plaintiff, OPPOSITION TO PLAINTIFF TRACE3, LLC’S SIXTH MOTION TO FILE DOCUMENTS UNDER SEAL SYCOMP A TECHNOLOGY COMPANY, Date: November 30, 2023 INC., a California corporation; TIMOTHY Time: 1:30 p.m. CORDELL, an individual; LILIAN ELIAS, an Dept: 1 individual; GEOFF PETERSON, an individual; DEVIN TOMCIK, an individual; and DOES 1- Action Filed: May 12, 2023 10, inclusive; Defendants. DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 INTRODUCTION Trace3’s Sixth Motion to Seal (“6th Sealing Motion”) asks this Court to seal non- confidential information that Trace3 itself publicizes. Trace3 continues in its effort to redact former or current client names, regardless of context, claiming that revealing the mere names of Trace3’s customers will cause it competitive harm. This is absurd. Trace3 routinely publicizes its customers and vendors. See 8/31 Declaration of Rajiv Dharnidharka (“8/31 RD Decl.”), Ex. 14 (Thompson Depo. Tr.), 45:13-46:14; https://www.trace3.com/partners Trace3 is merely trying to hamstring Sycomp’s ability to show Trace3’s baseless accusations to the relevant clients to better investigate Trace3’s allegations. The Court should not allow Trace3’s bad faith tactics to continue. To be sure, Trace3’s 6th Sealing Motion is impermissibly overbroad and runs afoul of California’s strict requirements for sealing presumptively public court records from public view. To seal any court record, a court must expressly find that there is an overriding interest in protecting the information that both outweighs the right of public access and is likely to be harmed, that the proposed sealing is narrowly tailored and the least restrictive means for protecting the interest involved. Trace3 cannot make this showing. Trace3’s 6th Sealing Motion provides no factual basis for the Court to make such findings here or grant Trace3’s motion. Among other things, Trace3 seeks to seal information about its former or current clients and vendor, its forensic examiner’s analysis of Stacy Thompson’s Trace3 laptop (see 8/28 Kopelev Decl. Ex. B), and an innocuous Slack chat among its employees (see 8/28 Phillis Decl. Ex. B) (together, the “Lodged Materials” ). Trace3 fails to identify specific information that is appropriate for sealing in the Lodged Materials. Instead, Trace3 provides a declaration of counsel to vaguely assert the redacted information would prejudice Trace3. This is insufficient to meet the sealing standard. The 6th Sealing Motion is another attempt to abuse the protections afforded under California law while refusing to identify the specific information Trace3 claims actually meets the legal standard for sealing court records. Trace3 has not met its burden, and the 6th Sealing Motion Sycomp does not oppose Trace3’s request to seal Exhibit A to the 8/28 Phillis Decl. and does DLA I PER LLP (US) not include that document in the definition of “Lodged Materials.” ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 should be denied. II. FACTUAL BACKGROUND A. Trace3 Moves to Seal the Lodged Materials Filed with its Supplemental Joint Status Report On August 28, Trace3 filed a document titled “Plaintiff Trace3, LLC’s Supplemental Joint Status Report re: Spousal Privilege Objections” (“Status Report”), signed only by Trace3’s counsel. See Docket. Trace3 redacted client and vendor names from the report. See id. Along with the status report, Trace3 filed a Phillis Declaration attaching as Exhibit B an April 12 Slack conversation between Defendant Timothy Cordell and former-Defendant Lilian Elias that mentions a Trace3 client and a vendor name. Id. Trace3 also filed a Kopelev Declaration that attaches as Exhibit B a document titled “4th Declaration of Sergio D. Kopelev,” which purports to contain an analysis of former Trace3 employee Stacy Thompson’s Trace3 laptop. Id. Trace3 moves to seal the entire 4th Kopelev Decl. even though very few lines reference Trace3 client names. Neither the 6th Sealing Motion nor the Phillis Declaration in support of the 6th Sealing Motion provide any argument on why the entire 4th Kopelev Decl. should be sealed – most of it is generic descriptions of the actions Mr. Kopelev took to purportedly analyze Ms. Thompson’s laptop activity. B. The Identity of Trace3 Clients and Vendors is Not Confidential; Trace3 Does Not Take Reasonable Measures to Maintain Any Information as Confidential. Four former Trace3 employees have been deposed in this case so far: nonparty Stacy Thompson and each of the remaining original Individual Defendants (Geoff Peterson, Tim Cordell, and Devin Tomcik). Relevant to this motion, Ms. Thompson testified that Trace3 never instructed its employees to keep its clients a secret, and that Trace3 routinely publicizes its partnerships with clients and vendors. 8/31 RD Decl. Ex. 14 (Thompson Depo. Tr.), 45:13-46:14. Messrs. Cordell, Peterson, and Tomcik all testified that Trace3 provided no training whatsoever regarding maintaining the confidentiality of any Trace3 information. Id. Ex. 7 at 96:22-97:1, Ex. 8 at 116:25- 117:4, Ex. 9 at 103:14-17. They also testified that Trace3 employees were free to attach external storage devices to their computers with no prior approval, and could access their personal emails from their Trace3 devices without any instructions by Trace3 not to do so. Id. Ex. 7 at 81:12-82:16, DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 Ex. 8 at 117:6-118:17, Ex. 9 at 103:19-104:12. Trace3 also publicizes its customers and its “partners.” https://www.trace3.com/partners; see also 8/31 Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot of https://www.linkedin.com/in/jack-robinson-563445155/ ). Trace3 put forward no evidence in the 6th Sealing Motion that it keeps any information found in the Lodged Materials confidential. III. ARGUMENT A. Trace3 has not satisfied the strict standard for sealing under Cal. R. Ct. 2.550 as to any of the Lodged Materials. Trace3’s 6th Sealing Motion fails to make the necessary factual showing to overcome the strong presumption of openness and public access to the courts. Under California Rule of Court 2.550(c) and (d), “court records are presumed to be open” and may only be sealed if, based on the moving party’s evidence, the Court expressly finds that: (1) there exists an overriding interest that overcomes the public’s right of access; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. See Cal. R. Ct. 2.550(c), (d). These rules embody the underlying constitutional requirements recognized in NBC Subsidiary (KNBC-TV), Inc. v. Sup. Ct., 20 Cal. 4th 1178, 1212-18 (1999), for preserving the First Amendment right of public access to civil trials. To satisfy these strict constitutional requirements, the party requesting sealing bears the burden of presenting facts “identifying the specific information claimed to be entitled to such treatment” and “identifying the nature of the harm threatened by disclosure.” H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 894 (2007) (emphasis added). At a minimum, the requesting party “must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” Id. (emphasis added). Trace3’s overbroad 6th Sealing Motion plainly does not meet these standards. Trace3 As of the time of filing this opposition, it seems that Mr. Robinson has removed references to Trace3 clients from his LinkedIn profile, almost three months after Sycomp first cited the profile on June 29. This highlights the insincerity of Trace3’s shifting position. Indeed, in its 9/7 reply briefs to the 4th and 5th Sealing Motions, Trace3 defended Mr. Robinson’s client references DLA I PER LLP (US) (days before apparently telling him to remove those references). ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 generically asserts that the Lodged Materials “contain references to Trace3 customer names and specific non-public opportunities, . . . and analysis of Stacy Thompson’s corporate-issued Trace3 laptop” which Trace3 claims “would cause competitive harm to Trace3’s business interests” if not sealed. 6th Sealing Mot. at 5. But nowhere in Trace3’s 6th Sealing Motion, or the supporting declarations by counsel, does Trace3 specifically enumerate the facts or information within the Lodged Materials that allegedly warrant sealing, explain why public disclosure of that information would subject Trace3 to competitive or other harm sufficient to override the presumption of public access, or establish that there is no less restrictive means to protect any actually confidential information. As shown below, Trace3’s 6th Sealing Motion is improper and overbroad and should be denied. See e.g. Glassdoor, Inc. v. Super. Ct., 9 Cal. App. 5th 623, 638 (2017) (request to seal entire online job review including portions that “implicate[d] no confidential information” “swept far too broadly” and was not “narrowly tailored” or the least restrictive means available). Trace3 fails to specifically enumerate the facts or information subject to sealing within the Status Report or Exhibit B to the 8/28 Phillis Decl. Trace3’s request in the 6th Sealing Motion to seal portions of the Status Report does not come close to satisfying the requirements of Cal. R. Ct. 2.550 or passing constitutional muster. Trace3 argues generally that the redacted portions of the Status Report and Exhibit B to the Phillis Decl. contain “descriptions of named Trace3 customers and vendors who have moved projects or other business operations over the Sycomp.” 6th Sealing Mot. at 7. This information does not warrant sealing under California Rules of Court, Rules 2.550 and 2.551. Trace3 provides no facts to support the contention that passing references to the names of its alleged customers and vendors overcome the public’s right of access or will cause harm to Trace3 in any way. Trace3 fails to explain how the disclosure of only a customer’s or vendor’s name—particularly customers and vendors Trace3 claims are already known to and working with Sycomp—is somehow secret or commercially sensitive. These customers and vendors are large technology companies that always have a need for the type of IT equipment integration services offered by Trace3, Sycomp, and dozens of other industry competitors. Their mere existence as potential integration services customers and vendors is not Trace3’s or any competitor’s DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 confidential information. Indeed, Trace3’s own employees have advertised that Trace3 performs integration services for these supposedly “secret” customers on their public LinkedIn profiles. 8/31 Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot of Jack Robinson, Trace3 Integration Specialist). Trace3 also publicly advertises its “partners.” See https://www.trace3.com/partners. Additionally, former-employee Stacy Thompson testified that Trace3 never instructed its employees to keep its clients a secret, and that Trace3 routinely publicizes who its clients and vendors are. Thompson Depo. Tr., 45:13-46:14. This information is not sensitive and should not be sealed. Trace3 fails to specifically enumerate the facts or information subject to sealing within the 4th Kopelev Decl. Ex. B Trace3’s request to seal the entirety of the 4th Kopelev Decl. Ex. B is both improper and overbroad. First, while Ex. B does reference Trace3 customer names, sealing this information is unwarranted for the reasons described above. Second, the vast majority of Ex. B does not reference any client name nor any other information that Trace3 claims is sensitive. Indeed, Trace3 makes no attempt to justify sealing the entirety of Ex. B. The 6th Sealing Motion only provides argument regarding so-called “confidential client and vendor names,” and does not mention the several pages in Ex. B where Kopelev simply describes the steps he took to analyze the Thompson laptop and his findings on the files and folder paths he reviewed (none of which are confidential file names or folder paths). It is Trace3’s burden to establish the elements of Rule of Court 2.550(c). By not even addressing the substance of the majority of the proposed Ex. B sealing, Trace3 fails to establish any element. In particular, Trace3 makes no attempt to narrowly tailor its proposed sealing of Ex. B. The Court should deny sealing Ex. B in its entirely or, in the event the Court does find sealing of client names warranted, order that only client references shall remain sealed and deny the Motion as to the remainder of Ex. B. B. Civil Code § 3426.5 is Not Applicable and Does Not Support Sealing. Trace3 argues that the Lodged Materials should be sealed pursuant to Cal. Civ. Code See 6th Sealing Motion. at 7-9. Courts have rejected the premise that “merely by filing a pleading characterizing certain information as a trade secret, a party can compel the courts to DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 withhold that information from the public record until such time as it [is] finally adjudged not to be a trade secret.” Cypress Semiconductor Corp. v. Maxim Integrated Prods., Inc., 236 Cal. App. 4th 243, 255 (2015). Section 3426.5 only requires the Court to employ reasonable means to “preserve the secrecy” of an “alleged trade secret.” Id. In other words, section 3426.5 does not mandate the sealing of any material that a party alleges to be a trade secret if there is, in fact, “no secrecy to preserve.” Id. (“This was not a colorable trade secret, and [Plaintiff’s] calling it so did not obligate the court to place it under seal or take any other action to prevent its further disclosure.”). Here, the Lodged Materials are by no means a colorable trade secret. Indeed, Trace3 does not even allege that they are. Trace3 has made numerous trade secret disclosures – the most recent authorized one on August 7, 2023 (“8/7 TS Disclosure”), and not one of them states that Trace3’s client relationship are a trade secret. Likewise, the 8/7 TS Disclosure does not disclose Mr. Kopelev’s forensic analysis as a trade secret. It is true that the 8/7 TS Disclosure includes Trace3’s “customer lists” and “vendor lists” as two of its four alleged trade secret categories. But those categories refer to specific files identified in Appendix A to the disclosure, and Trace3 does not claim any such file is referenced by the Lodged Materials. There is no justification for the sealing of stray references to Trace3 clients or the banal details of Mr. Kopelev’s analysis of a laptop. Additionally, Trace3’s reliance on federal case law sealing sensitive business materials is inapposite. None of Trace3’s cited cases sealed mere client references or high-level descriptions of forensic analysis. Wn. Air Charter, Inc. v. Sojitz Corp., 2019 WL 4509304, at *5 (C.D. Cal. May 2, 2019) (sealing copies of a Stock Purchase Agreement and Escrow Agreement that, if disclosed, “would give [ ] future business partners the upper-hand in negotiations of similar deals”); Bauer Bros. LLC v. Nike, Inc., 2012 WL 1899838 (S.D. Cal. May 24, 2012) (sealing “marketing strategies, sales and retailer data, product development plans, unused prototypes, and detailed testimony regarding the same”); In re Electronic Arts, Inc. 298 F. App’x 568, 569 (9th Cir. 2008) (sealing “pricing terms, royalty rates, and guaranteed minimum payment terms found in paragraph 6 of the 2006 Licensing Agreement”); Xifin, Inc. v. Sunshine Pathways, LLC 2016 WL 5930313 (S.D. Cal. Oct. 12, 2016) (sealing a “Services Agreement” that contained “pricing, proprietary service DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 protocols and processes, and contractual terms”). Trace3’s citation to these cases only spotlights the fact that Trace3’s sealing request is unsupported by any law Trace3 (or Sycomp) can find. To the extent the Court finds federal law persuasive, it should consider the Ninth Circuit mandate that “[s]imply mentioning a general category of privilege, without any further elaboration or any specific linkage with the documents, does not satisfy the burden” to overcome the presumption of public access to records. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1184 (9th Cir. 2006). “In particular, an unsupported assertion of ‘unfair advantage’ to competitors without explaining how a competitor would use the information to obtain an unfair advantage is insufficient.” Open Text S.A. v. Box, Inc., 2014 WL 7368594, at *2 (N.D. Cal. Dec. 26, 2014). Ninth Circuit courts, like California courts, require “specific compelling reasons to seal” records, and deny a sealing request when the designating party fails to provide such reasons for each proposed redaction. See, e.g. id. at *4 (ruling item-by-item on each proposed sealed record, and denying the request to seal “the identities of [moving party’s] customers”). Ninth Circuit courts do not seal mere references to the names of clients See id.; see also Primus Grp., Inc. v. Inst. for Env't Health, Inc., 395 F. Supp. 3d 1243, 1270 (N.D. Cal. 2019) (rejecting argument that records should be sealed “because they contain the identity of and information about specific customers”). Trace3’s 6th Sealing Motion is rife with “unsupported assertion[s]” that the Lodged Materials should be sealed, including mere client names, but lack any “specific compelling reasons” for a single sealing request. Federal law, as persuasive authority, supports denying the motion. Finally, Trace3 also argues, incorrectly, that it takes “reasonable secrecy measures . . . to protect this confidential information from public view.” See 6th Sealing Mot. at 8. This is false. Trace3 takes no measures to maintain the confidentiality of its customers and vendors. The opposite is true: Trace3 publicizes this information. See 8/31 RD Decl. Ex. 14 (Thompson Depo. Tr.), 45:13- 46:14; https://www.trace3.com/partners; 8/31 Sycomp Opp. to 4th and 5th Sealing Mot. (screenshot https://www.linkedin.com/in/jack-robinson-563445155/ . Moreover, Trace3 provided no training to its employees whatsoever on keeping any information confidential. Id. Ex. 7 at 96:22- 97:1, Ex. 8 at 116:25-117:4, Ex. 9 at 103:14-17. Its employees were also free to attach external storage devices to their computers with no prior approval and could access their personal emails DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2 from their Trace3 devices without any instructions by Trace3 not to do so. Id. Ex. 7 at 81:12-82:16, Ex. 8 at 117:6-118:17, Ex. 9 at 103:19-104:12. In short, Trace3 seemingly has not undertaken measures to protect or maintain the confidentiality of its clients and vendors. It should not be allowed to do so now by restricting the public’s right of access. Civil Code section 3426.5 does not support Trace3’s position, and the motion must be denied. CONCLUSION For these reasons, Trace3’s 6th Sealing Motion should be denied. Dated: October 26, 2023 DLA PIPER LLP (US) By:/s/ Rajiv Dharnidharka RAJIV DHARNIDHARKA JEANETTE BARZELAY MICAH A. CHAVIN Attorneys for Defendant Sycomp A Technology Company, Inc. DLA I PER LLP (US) ALO L TO SYCOMP’S OPPOSITION TO TRACE3’S SIXTH MOTION TO SEAL; CASE NO. 23CV415833 ACTIVE\900696107.2