Motion for Summary Adjudication in Trace3, LLC v. Sycomp, A Technology Company, Inc., et al.| Trellis.Law

On May 12, 2023 a Party Discovery was filed involving a dispute between Trace3, Llc, and Devin Tomcik, Geoffrey Peterson, John Barnes, Lilian Elias, Sycomp A Technology Company, Inc., Timothy Cordell, for Business Tort/Unfair Bus Prac Unlimited (07) in the District Court of Santa Clara County.

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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
COUNTY OF SANTA CLARA

TRACE3, LLC, a California limited liability Case No. 23CV415833
company, Assigned to Hon. Charles Adams
Dept.: 7
Plaintiff,
TRACE3, LLC’S EIGHTH MOTION
TO FILE UNDER SEAL (PORTIONS
OF DEFENDANTS’ MOTION FOR
SYCOMP A TECHNOLOGY COMPANY, SUMMARY ADJUDICATION AND
INC., a California corporation; TIMOTHY SUPPORTING DOCUMENTS FILED
CORDELL, an individual; LILIAN ELIAS, an MARCH 27, 2024); MEMORANDUM
individual; GEOFFREY PETERSON, an OF POINTS AND AUTHORITIES
individual; DEVIN TOMCIK, an individual;
JOHN BARNES, an individual; and DOES 1- [RULES OF COURT 2.550, 2.551]
10, inclusive;
[Declaration of Nicole S. Phillis;
Defendants.
[Proposed] Order filed concurrently]

Date: October 3, 2024
Time: 1:30 p.m.
Dept:

Action Filed: May 12, 2023

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that pursuant to Civil Code section 3426.5, California Rules of

Court 2.550 and 2.551, and the Parties’ Stipulated Protective Order entered June 3, 2023, Plaintiff

Trace3, LLC (“Trace3” or “Plaintiff”) respectfully moves this Court in this Eighth Motion to Seal

(“Motion”) for an order sealing from the public record and restricting inspection and disclosure

designated portions of documents that were lodged conditionally under seal with the Court by the

Defendants in this case prior to the August 15, 2024 hearing on Defendants Motion for Summary

Adjudication: Defendant’s Memorandum of Points and Authorities in Support of Sycomp’s
10 Motion For Summary Adjudication; Defendant’s Separate Statement of Undisputed Material
11 Facts in Support of Sycomp’s Motion for Summary Adjudication; Declaration of James D.
12 Vaughn; Declaration of James D. Vaughn, Exhibits C, F, and G; Declaration of Brian Bartel;
13 Declaration of Jeanette Barzelay; Declaration of Jeanette Barzelay, Exhibits 14, 17, 18, 19, 20, 25,
14 26, 27, 28, and 29; Declaration of Jeanette Barzelay, Exhibit 34, (Declaration of Rajiv
15 Dharnidharka); and Declaration of Jeanette Barzelay, Exhibit 34 (Declaration of Rajiv
16 Dharnidharka, Exhibits 5, 6, and 7).
17 This Motion is made on the grounds that the confidential information sought to be sealed
18 in each of these filings identifies or describes Trace3’s customer and vendor names, individually
19 and as a compilation, and other non-public, proprietary, and trade secret information and has been
20 designated as either confidential or highly confidential pursuant to the Parties’ Stipulated
21 Protective Order or prior sealing orders of this Court. (Declaration of Nicole S. Phillis (“Phillis
22 Decl.”) ¶ 10.) The disclosure of such confidential and/or trade secret information would
23 jeopardize Trace3’s legitimate competitive and commercial interests.
24 This Motion is based upon this Notice of Motion and Motion, the attached Memorandum
25 of Points and Authorities; the concurrently filed Declaration of Nicole S. Phillis; the concurrently
26 filed [Proposed] Order; and all other records and files in this action.
27

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
DATED: April 10, 2024 AVIS RIGHT REMAINE LLP
JEREMY MERKELSON
NICOLE S. PHILLIS

By:
Nicole S. Phillis

Attorneys for Plaintiff TRACE3, LLC

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
TABLE OF CONTENTS

Page

NOTICE OF MOTION AND MOTION ........................................................................................ 2

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 6

I. RELEVANT BACKGROUND .......................................................................................... 7

A. The Parties Enter Into a Stipulated Protective Order. ............................................. 7

B. Trace3 Identifies Four Categories of Alleged Trade Secrets in Its
Disclosure. .............................................................................................................. 7

C. The Court Repeatedly Orders Sealing of Trace3 Vendor and Client Names,
as well as Purchase, Sale, and Pricing Information. ............................................... 7
10 D. The Court Denies Sealing of Entirety of the TS/CI List While Affirming
that Prior Sealing Orders Remain in Effect. ........................................................... 8
11
E. Sycomp Lodges Hundreds of Pages of Exhibits Properly Subject to
12 Redaction and Sealing, Including Portions of the TS/CI List. ................................ 9
13 II. LEGAL STANDARD FOR SEALING UNDER CUTSA AND CALIFORNIA
RULES OF COURT 2.550 AND 2.551.............................................................................. 9
14
III. ARGUMENT .................................................................................................................... 10
15
A. The Court Should Grant this Motion to Seal Pursuant to CUTSA’s
16 Mandatory Sealing Provisions. ............................................................................. 13
17 B. The Court Should Also Seal the Redacted Portions of Defendant’s Filings
Under California Rules of Court, Rules 2.550 and 2.551. .................................... 16
18
IV. CONCLUSION ................................................................................................................. 17
19

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
TABLE OF AUTHORITIES

Page(s)
ASES

Bauer Bros. LLC v. Nike, Inc. (S.D. Cal. May 24, 2012)
No. 09cv500, 2012 WL 1899838 ............................................................................................ 14

Brocade Comms. Sys., Inc. v. A10 Networks, Inc. (N.D. Cal. 2012)
873 F. Supp. 2d 1192 .............................................................................................................. 16

Gable-Leigh, Inc. v. N. Am. Miss (C.D. Cal. Apr. 13, 2001)
2001 WL 521695 .................................................................................................................... 17

In re Electronic Arts, Inc. (9th Cir. 2008)
298 F. App’x 568 .................................................................................................................... 14
10
McGuan v. Endovascular Technologies, Inc. (2010)
11 182 Cal.App.4th 974 ......................................................................................................... 13, 14
12
Wn. Air Charter, Inc. v. Sojitz Corp. (C.D. Cal. May 2, 2019)
13 No. CV 18-7361, 2019 WL 4509304...................................................................................... 13

14 Xifin, Inc. v. Sunshine Pathways, LLC (S.D. Cal. Oct. 12, 2016)
2016 WL 5930313 .................................................................................................................. 14
15
TATUTES
16
California Civil Code § 3426.5 .............................................................................................. passim
17
ULES
18

19 California Rules of Court, rule 2.550..................................................................................... passim

20 California Rules of Court, rule 2.551..................................................................................... passim

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff Trace3, LLC (“Trace3”) respectfully submits this Eighth Motion to Seal

requesting an order sealing portions of the briefs and supporting documents lodged conditionally

with the Court on March 27, 2024, by Defendant Sycomp a Technology Company, Inc.

(“Sycomp”) prior to the August 15, 2024 hearing on Defendant’s Motion for Summary

Adjudication. Trace3 requests sealing of redacted portions of the following documents:

Defendant’s Memorandum of Points and Authorities in Support of Sycomp’s Motion for

Summary Adjudication; Defendant’s Separate Statement of Undisputed Material Facts in Support

of Sycomp’s Motion for Summary Adjudication; Declaration of James D. Vaughn; Declaration of
10 James D. Vaughn, Exhibits C, F, and G; Declaration of Brian Bartel; Declaration of Jeanette
11 Barzelay; Declaration of Jeanette Barzelay, Exhibits 14, 19, 20, 27, 28, and 29; Declaration of
12 Jeanette Barzelay, Exhibit 34, (Declaration of Rajiv Dharnidharka); and Declaration of Jeanette
13 Barzelay, Exhibit 34 (Declaration of Rajiv Dharnidharka, Exhibits 5, 6, and 7). The specific page
14 and line redactions which Trace3 seeks to file under seal are described in the chart below.
15 Additionally, Trace3 requests that a limited number of documents that are replete with customer
16 and vendor information be filed under seal in their entirety, namely: Declaration of Jeanette
17 Barzelay, Exhibits 17, 18, 25, and 26.
18 An order sealing these confidential materials within Defendant’s filings should be entered,
19 as they contain references to Trace3 customer and vendor names, and non-public purchase and
20 sales order numbers and locations. All of this information is “alleged trade secrets,” which must
21 be sealed pursuant to California’s UTSA. Furthermore, Trace3 provisionally and actually
22 designated this information as confidential or highly confidential pursuant to the Stipulated
23 Protective Order, and this Court has previously ruled that much of the information is subject to
24 sealing. This information, particularly when taken together as a compilation, if made public,
25 would cause competitive harm to Trace3’s business interests. Notably, there is no countervailing
26 public interest in the disclosure of such confidential information.
27

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
I. RELEVANT BACKGROUND

A. The Parties Enter Into a Stipulated Protective Order.

On June 3, 2023, the Court entered an Order on the Parties’ Stipulated Protective Order

(“SPO”), which includes, among other things, the procedures for sealing motions when

confidential information is used by a non-designating party in non-discovery proceedings. (Phillis

Decl. ¶ 5.) Under section 12.3(b) of the Parties’ Stipulated Protective Order, a “Designating

Party” (defined therein) has 10 business days to file a motion to seal “Protected Material” (defined

therein) when a Party lodges Protected Material with the Court but does not seek to have that

Protected Material sealed. (Ibid.)
10 B. Trace3 Identifies Four Categories of Alleged Trade Secrets in Its Disclosure.
11 Pursuant to Code of Civil Procedure section 2019.210, Trace3 identified its four categories
12 of alleged trade secrets at issue in this case: (1) compilation of its build documents for its
13 Northern California Rack and Roll services, which provide a blueprint for its business; (2)
14 customer lists for its Rack and Roll, Loose Gear, Integration, and Cloud Services; (3) vendor lists
15 for Rack and Roll and Loose Gear Services; and (4) competitive sales and revenue information,
16 including pricing information. (Phillis Decl., Ex. A.)
17 C. The Court Repeatedly Orders Sealing of Trace3 Vendor and Client Names, as well as
18 Purchase, Sale, and Pricing Information.
19 On July 24, 2023, the Court ordered that Trace3’s Trade Secret and Confidential
20 Information List (“TS/CI List”), filed in support of Plaintiff’s Motion for a Temporary
21 Restraining Order, be sealed in the Order Regarding Plaintiff’s Motion to Seal (“Sealing Order
22 No. 1”). The TS/CI List is a compendium of file names of documents containing trade secrets and
23 confidential or proprietary information. By virtue of listing file names and related document
24 information, the TS/CI list also itself includes customer and vendor names, and purchase and sales
25 order numbers and locations which, as discussed below, this Court has repeatedly ruled are
26 subject to sealing.
27 Following Sealing Order No. 1, this Court has ruled on at least three further occasions that
28 customer and vendor names, as well as purchase and sales order numbers and pricing, warrant

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
sealing:

On August 7, 2023, the Court ordered customer names, vendor names, deal and pricing

information, and related confidential business to be sealed following the hearing on

Trace3’s Omnibus Second Motion to File Under Seal (“Sealing Order No. 2”).

On October 2, 2023, the Court again held that information related to those customers

and vendors that have moved projects or other business operations to Sycomp was

narrowly tailored to the needs of this lawsuit and warranted sealing under both

CUTSA and the California Rules of Court (“Sealing Order Nos. 3, 4, and 5”).

On January 30, 2024, the Court held there was “no reason to depart” from its prior
10 rulings as to the sealing of customer names, and also ordered the sealing of certain
11 documents, in their entirety, which contain information with specific software and
12 technology used by Trace3 employees, confidential and/or trade secret file names, and
13 the identities of related clients and vendors (“Sealing Order No. 7”).
14 D. The Court Denies Sealing of Entirety of the TS/CI List While Affirming that Prior
15 Sealing Orders Remain in Effect.
16 On November 7, 2023, the Court revisited Sealing Order 1, in part, and ruled that Trace3
17 had failed to show “why every single entry on the TS/CI list should be sealed.” (November 7,
18 2023 Order (emphasis added).) The Court therefore denied Trace3’s motion to seal the entirety of
19 that list. (Id.) In reaching this conclusion, the Court noted that Trace3’s motion to seal failed to
20 identify specific entries to the court and explain why those entries were subject to sealing. (Id. at
21 pp. 4-5.) For the same reasons, the Court also denied Trace3’s motion to designate the entirety of
22 the TS/CI list as “Highly Confidential” under the SPO, but did not order the TS/CI List previously
23 filed with the Court in support of Trace3’s TRO unsealed or de-designated. (Id. at 5.)
24 Importantly, the Court’s November 7, 2023 Order did not preclude redaction and sealing
25 of only confidential elements of the TS/CI list, particularly documents containing customer
26 names, project names, and/or vendor names. Accordingly, on November 13, 2023, Trace3 served
27 Defendants with a version of the TS/CI List with narrowly tailored, line-by-line confidentiality
28 designations, which designated rows containing client names, vendor names, and purchase and

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
sales order numbers and locations as confidential. (Phillis Decl. Exh. B.) Defendants have not and

did not challenge these specific designations. (Phillis Decl. ¶ 18.)

On January 30, 2024, in Sealing Order No. 7, the Court again affirmed its prior holdings

that customer and vendor names, project and pricing information, and other competitively

sensitive information should be filed under seal. (Sealing Order No. 7 at pp. 17-19).

E. Sycomp Lodges Hundreds of Pages of Exhibits Properly Subject to Redaction and

Sealing, Including Portions of the TS/CI List.

On March 27, 2024, Defendant Sycomp filed its Motion for Summary Adjudication and a

memorandum of points and authorities in support thereof. (Id. ¶ 5.) In connection with its motion,
10 Sycomp also filed a Separate Statement of Undisputed Material Facts and eight supporting
11 declarations introducing numerous exhibits amounting to many hundreds of pages. (Id.) Pursuant
12 to the obligations outlined in the SPO entered by the Court on June 3, 2023, Sycomp publicly
13 filed redacted versions and conditionally lodged unredacted versions of its Memorandum of
14 Points and Authorities; Separate Statement of Undisputed Material Facts; Declaration of James D.
15 Vaughn and exhibits thereto; Declaration of Brian Bartel; and Declaration of Jeanette Barzelay
16 and numerous exhibits thereto. (Id. ¶ 6.) Sycomp did not file a motion to seal all of those filings,
17 but sought sealing only of Exhibit 3 attached to the Bartel Declaration; Exhibit 19 attached to the
18 Barzelay Declaration; and Exhibit B attached to the Vaughn Declaration. (Id. ¶ 7.) Defendant
19 Sycomp filed a Notice of Lodging as to the portions of their filings that were lodged conditionally
20 under seal. (Id.)
21 Trace3 now moves to seal portions of these filings.
22 II. LEGAL STANDARD FOR SEALING UNDER CUTSA AND CALIFORNIA
23 RULES OF COURT 2.550 AND 2.551.
24 Under California Uniform Trade Secrets Act (CUTSA), Civil Code section 3426.5, courts
25 shall preserve the secrecy of an alleged trade secret by reasonable means,” including “sealing the
26 records of the action, and ordering any person involved in the litigation not to disclose an alleged
27 trade secret without prior court approval.” (Emphasis added.)
28

TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
Additionally, the California Rules of Court, rules 2.550 and 2.551 allow certain records or

portions of records to be filed under seal. Specifically, under rule 2.550(d), a court may order a

record sealed if:

(1) There exists an overriding interest that overcomes the right of

public access to the record;

(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
10 (5) No less restrictive means exist to achieve the overriding interest.
11 (Cal. Rules of Court, rule 2.550(d).) Further, “[t]he order [sealing records] must state whether
12 any person other than the court is authorized to inspect the sealed record.” (See id.,
13 rule 2.551(e)(3).) Because Defendant is Trace3’s direct competitor, the Court should seal the
14 redacted portions of the filings identified herein.
15 III. ARGUMENT
16 The designated portions of the filings identified herein should be kept from public
17 disclosure consistent with CUTSA, Civil Code section 3426.5, Rules of Court, rules 2.550 and
18 2.551, prior sealing orders of this Court, and the agreement of the Parties as reflected in the
19 Stipulated Protective Order entered June 3, 2023, as they contain trade secret and/or competitively
20 sensitive business information which would harm Trace3’s business interests if disclosed and for
21 which there is no countervailing public interest in disclosure. (Phillis Decl. ¶ 9.) Specifically, the
22 appended redactions contain descriptions of named Trace3 customers and vendors who have
23 moved projects or other business operations over to Sycomp, as well as technical and customer
24 purchase and sale information. (Id. ¶ 9.) Trace3 has narrowly tailored the documents and
25 redactions that it seeks to keep from public disclosure: Trace3 primarily seeks the sealing of
26
California Rules of Court, rules 2.550 and 2.551 “do not apply to records that are required to be
27 kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(2).) Thus, Trace3 is not required to
comply with these rules to obtain sealing of its trade secrets under CUTSA. (Civ. Code § 3426.5.)
28 In any case, Trace3’s request easily satisfies these rules, providing alternative grounds for sealing.

10
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
redacted portions of Defendant’s filings which directly identify Trace3’s customers and vendors

(and employees thereof) that have moved projects or other business operations to Sycomp, as well

as specific pricing and purchase information. Trace3 requests sealing of a limited number of

documents (4) in their entirety, and only those which are so replete with confidential information

that redaction would be insufficient or futile. As to the voluminous TS/CI List, which Sycomp has

lodged with the Court in full, Trace3 moves to seal only of those redacted lines of the List which

Trace3 previously designated as confidential and which themselves reveal client names, vendor

names, and purchase and sales order numbers and locations.

Trace3 specifically seeks that the following redactions and documents be filed under seal:
10 Trade Secret(s) and/or
Defendant's Filing Portion to be sealed Confidential Information
11 Referenced
12 Defendant’s Memorandum of Redactions at pages 11:25; Customer and vendor names
Points and Authorities in 12:1-14; 18:24; 20:14; 21:1-4;
13 Support of Sycomp’s Motion 22:1-3, 22-24, 25; 23:1-7.
For Summary Adjudication
14
Defendant’s Separate Statement Redactions at pages 27:10; Customer and vendor names
15 of Undisputed Material Facts in 28:7, :17, :21-28; 29:2-7; 34:27;
Support of Sycomp’s Motion 35:24; 36:8-28; 39:18-28; 40:2-
16 for Summary Adjudication 21.
17 Declaration of James D. Redactions at pages 11:2, :18- Customer and vendor names
Vaughn 23; 12:22-28.
18
Declaration of James D. Redactions at page 4:24. Customer name
19 Vaughn, Exhibit C

20 Declaration of James D. Redactions at pages 160; 164; Customer and vendor names
Vaughn, Exhibit F 169; 173-174; 176; 178-179;
21 193; 195-196; 201; 203-204.
Declaration of James D. Redactions at pages 210-217; Customer and vendor names
22
Vaughn, Exhibits G 219-220; 222.
23 Declaration of Brian Bartel Redactions at pages 3:9-21. Vendor name
Declaration of Jeanette Redactions at pages 4:9, :12; Customer and vendor names
24
Barzelay 5:5.
25 Declaration of Jeanette Redactions of portions of Customer and vendor names;
Barzelay, Exhibit 14 (TS/CI Plaintiffs’ TS/CI List purchase and sales order
26 List) containing customer and vendor numbers
names, purchase and sale order
27 numbers and locations, as
described below.
28

11
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
Declaration of Jeanette Entire document. Customer name and pricing
Barzelay, Exhibit 17 information (customer purchase
order)
Declaration of Jeanette Entire document. Customer name and pricing
Barzelay, Exhibit 18 information (customer purchase
order)
Declaration of Jeanette Redactions at pages 555-566; Vendor name and technical
Barzelay, Exhibit 19 629; 631-632; 648-649; 652; information throughout
654 1087; 1195-1196; 1205; document
1212; 1220; 1230; 1232; 1236;
1471 1475.
Declaration of Jeanette Redactions at pages1478:9, 15, Customer and vendor names
Barzelay, Exhibit 20 18, 22-23; 1479:2, 8, 13, 20, 26;
1480:5-6; 1486:4-7, 13;
1487:10-13, 19; 1488:17-20,
26.
10
Declaration of Jeanette Entire document. Vendor name and technical
11 Barzelay, Exhibit 25 information throughout
document
12 Declaration of Jeanette Entire document. Vendor name and technical
Barzelay, Exhibit 26 information throughout
13 document
Declaration of Jeanette Redactions at pages 26:14-22; Customer and vendor names;
14 Barzelay, Exhibit 27 27:20-28:4; 29:3-11. technical information

15 Declaration of Jeanette Redactions at pages 1625:1-4; Customer and vendor names
Barzelay, Exhibit 28 1626:22; 1627:15; 1628:25;
16 1629:1; 1629:20; 1630:14-16;
1631:8-10; 1632:3-5, 25-27;
17 1633:19-21; 1634:14-15;
1635:7-8; 1637:16; 1638:9;
18 1644:19; 1645:15-21; 1647:9-
23; 1648:4-5, 12, 18-21;
19 1650:18-28; 1651:3-4, 13-14,
21, 27-28; 1652:1-2; 1657:1-3.
20
Declaration of Jeanette Redactions at pages 1667:15; Customer and vendor names
21 Barzelay, Exhibit 29 1668:5; 1669:6, 22.

22 Declaration of Jeanette Redactions at pages 4:1-25; Customer and vendor names;
Barzelay, Exhibit 34, 5:14-18; 6:9; 7:19. technical information
23 Declaration of Rajiv
Dharnidharka
24 Declaration of Jeanette Redactions at pages 1727:1-25; Customer name and technical
Barzelay, Exhibit 34 1728:14-18; 1729:9; 1730:19; information
25 Declaration of Rajiv 1775; 1779-1783; 1785-1795;
Dharnidharka Exhibit 5 1797-1798; 1824-1825; 1829;
26 1831-1832; 1834; 1841.
27

12
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
Declaration of Jeanette Redactions at page 2. Customer names
Barzelay, Exhibit 34
Declaration of Rajiv
Dharnidharka Exhibit 6
Declaration of Jeanette Redactions at page 2. Customer names
Barzelay, Exhibit 34,
Declaration of Rajiv
Dharnidharka Ex. 7
Declaration of Jeanette Redactions at pages 1900:17; Customer and vendor names
Barzelay, Exhibit 39 1904:8, 13-17, 21; 1906:6-7,
13-14; 1911:17; 1912:25;
1913:14-25; 1914:10-17, 27-28.

Declaration of Jeanette Redactions at pages 1923:25- Customer and vendor names
Barzelay, Exhibit 40 27; 1929:3, 7, 11, 15, 19, 23;
1930:8-17.

11 Due to the immense size of the TS/CI List, standard redaction tools are impractical for
12 both the Parties and the Court. Trace3 has therefore separately submitted to the Court a thumb
13 drive containing a redacted TS/CI list, in native format, from which trade secret and confidential
14 information has been deleted. Specifically, only those file names containing customer and vendor
15 names, or purchase and sale order numbers and locations, have been redacted from the
16 spreadsheet.
17 The Court should (A) grant this Motion to Seal pursuant to CUTSA’s mandatory sealing
18 provisions; and (B) also seal the documents and redactions in Defendant’s filings under California
19 Rules of Court, rules 2.550 and 2.551.
20 A. The Court Should Grant this Motion to Seal Pursuant to CUTSA’s Mandatory
21 Sealing Provisions.
22 Sealing of the above documents and redactions is warranted under CUTSA’s mandatory
23 sealing provisions. The California legislature and courts recognize that the need to protect such
24 non-public, commercially sensitive information provides a justification for a sealing order, and for
25 restricting the parties’ dissemination of that information. (See McGuan v. Endovascular
26 Technologies, Inc. (2010) 182 Cal.App.4th 974, 988–989 [“Courts have found that the protection
27 of trade secrets is an interest that can support sealing records in a civil proceeding.”]; Wn. Air
28 Charter, Inc. v. Sojitz Corp. (C.D. Cal. May 2, 2019) No. CV 18-7361, 2019 WL 4509304, at *4

13
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
[“A compelling reason [to seal] exists where public disclosure of proprietary business information

could harm competitive standing and/or result in the improper use of the information by

[competitors].”].) In UTSA/CUTSA cases, as here, the Legislature went even further to make

sealing of an “alleged trade secret” mandatory. (Civ. Code § 3426.5.)

Furthermore, courts routinely grant motions to seal confidential or sensitive business

information, especially when disclosure of such information could put a party at a competitive

disadvantage. (See, e.g., McGuan, supra, 182 Cal.App.4th at pp. 988-989 [affirming order sealing

documents reflecting “business methods and processes Defendants have developed”]; Bauer Bros.

LLC v. Nike, Inc. (S.D. Cal. May 24, 2012) No. 09cv500, 2012 WL 1899838, at *2–4 [finding
10 “compelling reasons” to seal “confidential business materials, including marketing strategies, . . .
11 product development plans, [and] unused prototypes . . . [because their public disclosure] could
12 result in improper use by business competitors”]; see also In re Electronic Arts, Inc. (9th Cir.
13 2008) 298 F. App’x 568, 569 [finding a compelling reason to seal existed where disclosure would
14 reveal “sources of business information that might harm a litigant’s competitive standing”]; Xifin,
15 Inc. v. Sunshine Pathways, LLC (S.D. Cal. Oct. 12, 2016) No. 16-CV-01218, 2016 WL 5930313,
16 at *3 [granting motion to seal information related to “pricing structure, the nature of the services it
17 provides, . . . among other information, that could expose Plaintiff to a competitive disadvantage
18 if revealed”].)
19 Here, Trace3 seeks to seal its “alleged trade secrets” for which the Civil Code mandates
20 sealing: (1) narrow redactions from the TS/CI List of client names, vendor names, and purchase
21 and sales order numbers and locations; (2) commercially competitive information regarding
22 customer and vendor names and identities, and specific pricing for new business opportunities
23 identified in briefing or deposition testimony; and (3) file names disclosing the same, all of which
24 Trace3 alleges constitutes part of the trade secrets at issue in this litigation. (See Civ. Code
25 § 3426.5.) This Court has consistently applied well-established law in granting Trace3’s motions
26 to seal exactly the information which Trace3 again seeks to seal here: documents and portions of
27 documents containing customer and vendor names, deal and pricing information, information
28 about specific software and technology used by Trace3 employees, and confidential and/or trade

14
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
secret file names. (Sealing Order No. 1; Sealing Order No. 2; Sealing Order Nos. 3, 4, and 5; and

Sealing Order No. 7).

While Civil Code section 3426.5 mandates sealing for all alleged trade secrets without

further inquiry, Trace3 has in numerous previous filings identified the reasonable secrecy

measures it has taken to protect this confidential information from public view, as well as the

independent economic value that such information holds from not being readily accessible to the

public. (See, e.g., the May 18, 2023, Declarations of Bryan Kissinger, Danielle Rodriguez, and

April Turner in support of Trace3’s Ex Parte Application for Temporary Restraining Order and

Order to Show Cause re Preliminary Injunction; July 21, 2023, Declaration of Jeremy Morris, ¶¶
10 3–9.) Sealing the narrowly tailored, redacted portions of these filings, as well as the entirety of
11 four documents which are replete with trade secret information, is reasonable and necessary to
12 “preserve the secrecy” of these trade secrets. Thus, such information is subject to mandatory
13 sealing under CUTSA. (Civ. Code § 3426.5.)
14 While the Court previously denied Trace3’s motion to seal the TS/CI List in full, the
15 November 7, 2023 Order recognized that some portions of the TS/CI List revealing client and
16 vendor names and deal information may warrant designation and sealing upon a more specific
17 showing. Consistent with the Court’s prior order, Trace3 has now redacted and seeks sealing of
18 only those portions of the TS/CI List which reveal client names, vendor names, and purchase and
19 sales order numbers and locations—information it has alleged constitutes its trade secrets. (Phillis
20 Decl., Ex. B.) As this Court has repeatedly ruled, such information is confidential and Trace3 has
21 an overriding interest in its nondisclosure – a holding the Court reaffirmed after the November 7,
22 2023, Order. (Sealing Order No. 7). Moreover, there is no public benefit related to accessing the
23 confidential customer and vendor information and deal and pricing information contained in the
24 TS/CI List. (Phillis Decl., ¶ 11; Sealing Order No. 7 at 18).
25 Sealing the redacted information in the TS/CI List is both warranted under binding law,
26 and would be most consistent with the Court’s prior Sealing Orders, as it would narrowly
27 maintain the secrecy of trade secrets and confidential information the Court has repeatedly
28 ordered sealed without sealing non-confidential information. The alternative – allowing the entire

15
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
document to enter the public record unsealed – would lead to an absurd result, as it would result in

much of the confidential and trade secret information at issue in this case being disclosed,

effectively nullifying the Court’s prior Sealing Orders.

Given the highly sensitive nature of the information subject to this motion, Trace3

requests the Court include in its sealing order a designation that review of the filings be restricted

to the Court and the Parties. (See Civ. Code § 3426.5 [“In an action under [the Uniform Trade

Secrets Act], a court shall preserve the secrecy of an alleged trade secret by reasonable means,

which may include . . . sealing the records of the action, and ordering any person involved in the

litigation not to disclose an alleged trade secret without prior court approval]; Cal. Rules of Court,
10 rule 2.551(e)(3) [“The order [sealing records] must state whether any person other than the court
11 is authorized to inspect the sealed record.”].) Such protections are necessary to maintain secrecy.
12 B. The Court Should Also Seal the Redacted Portions of Defendant’s Filings Under
13 California Rules of Court, Rules 2.550 and 2.551.
14 In addition to constituting alleged trade secrets in this litigation (and, therefore, being
15 independently subject to mandated sealing under CUTSA), the redacted portions of these filings
16 and four documents which should be sealed in their entirety also qualify for sealing under
17 California Rules of Court, rules 2.550 and 2.551. Specifically, Rules 2.550 and 2.551 allow
18 certain records or portions of records to be filed under seal when: (1) There exists an overriding
19 interest that overcomes the right of public access to the record; (2) The overriding interest
20 supports sealing the record; (3) A substantial probability exists that the overriding interest will be
21 prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No
22 less restrictive means exist to achieve the overriding interest.
23 Here, all five requirements are met.
24 First, the redacted portions of the filings listed above contain confidential client and
25 vendor names (or the names of employees of the same) or purchase and sales order numbers and
26 locations. (Phillis Decl. ¶ 13.) As this Court has repeatedly held, these constitute competitively
27 sensitive, non-public commercial information in which there is no countervailing public interest in
28 disclosure. (See Brocade Comms. Sys., Inc. v. A10 Networks, Inc. (N.D. Cal. 2012) 873 F. Supp.

16
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
2d 1192, 1215 [“[C]onfidential customer-related information including customer lists and contact

information, pricing guidelines, historical purchasing information, and customers’ business

needs/preferences . . . [are] routinely given trade secret protection. (Citation).) This information

has potential or actual value from not being generally known to the public: information about

customers’ preferences can aid in ‘securing and retaining their business.’ (Citation).”]; Gable-

Leigh, Inc. v. N. Am. Miss (C.D. Cal. Apr. 13, 2001) No. CV 01-01019, 2001 WL 521695, at *16

[customer lists are trade secrets where “its disclosure would allow a competitor to direct its sales

efforts to those customers who have already shown a willingness to use a unique type of service

or product as opposed to a list of people who only might be interested. Its use enables the former
10 employee to solicit both more selectively and more effectively. (Citation).”]; Sealing Order No.
11 7.)
12 Second, this overriding interest supports sealing the record to maintain the secrecy of
13 Trace3’s confidential information. Third, the disclosure of such information would, in fact,
14 prejudice Trace3 by harming its legitimate business interests by aiding competitors (namely the
15 competitors subject to this lawsuit) in directing commercial efforts towards Trace3 customers and
16 vendors. (Phillis Decl. ¶ 15.) Fourth, the redacted portions of the filings have been narrowly
17 tailored to include only the aforementioned confidential information. (Id. ¶ 16.) Those documents
18 that Trace3 requests be sealed in their entirety are so replete with sensitive information that
19 effective redaction would be futile or impossible. Finally, no less restrictive means exist to protect
20 such information. (Id. ¶ 17.)
21 Therefore, the redacted portions of the three filings should also be sealed under California
22 Rules of Court, rules 2.550 and 2.551.
23 IV. CONCLUSION
24 Trace3 respectfully requests that the Court grant this Eighth Motion to Seal and issue an
25 order restricting the review of the designated portions of the filings to the Court and the Parties,
26 pursuant to CUTSA section 3426.5, and alternatively under California Rules of Court, rules 2.550
27 and 2.551.
28

17
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
DATED: April 10, 2024 AVIS RIGHT REMAINE LLP
JEREMY MERKELSON
NICOLE S. PHILLIS

By:
Nicole S. Phillis

Attorneys for Plaintiff TRACE3, LLC

18
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
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 April 10, 2024, I served the document described as “TRACE3, LLC’S EIGHTH
MOTION TO FILE UNDER SEAL (PORTIONS OF DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION AND SUPPORTING DOCUMENTS FILED MARCH 27,
2024); MEMORANDUM OF POINTS AND AUTHORITIES” upon the interested parties in
this action addressed as follows:

Rajiv Dharnidharka Attorneys for Defendant
Jeanette Barzelay SYCOMP A TECHNOLOGY COMPANY, INC.
Micah Chavin
10 Erin Heiferman
DLA Piper
11 2000 University Ave
East Palo Alto, CA 94303
12 Tel: 650-833-2322
Email:
13 Rajiv.Dharnidharka@us.dlapiper.com
Jeanette.barzelay@us.dlapiper.com
14 Micah.Chavin@us.dlapiper.com
Erin.Heiferman@us.dlapiper.com
15
Lyn Agre Attorneys for Individual Defendants
16 Edward Shapiro TIMOTHY CORDELL, GEOFFREY PETERSON,
Lesa Libatique (Paralegal) DEVIN TOMCIK and JOHN BARNES
17 Glenn Agre Bergman & Fuentes
44 Montgomery Street, Suite 2410
18 San Francisco, CA 94104
Telephone: 415.599.0880
19 E-Mail: lagre@glennagre.com
eshapiro@glennagre.com
20 llibatique@glennagre.com
21 Megan M. Reilly (Pro Hac Vice) Attorneys for Individual Defendants
Glenn Agre Bergman & Fuentes LLP TIMOTHY CORDELL, GEOFFREY PETERSON,
22 1185 Avenue of the Americas, 22nd Floor DEVIN TOMCIK and JOHN BARNES
New York, New York 10036-2603
23 Telephone: (516) 551-4895
E-Mail: mreilly@glennagre.com
24

25
X (VIA EMAIL) By forwarding a portable document file to the electronic mail address(es)
26 below from electronic mail address linapearmain@dwt.com, at Suite 2400, 865 South
Figueroa Street, Los Angeles, California.
27

19
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551
Executed on April 10, 2024, Los Angeles, California.

X (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.

LINA PEARMAIN

20
TRACE3’S EIGHTH MOTION TO FILE UNDER SEAL PURSUANT TO R. CT. 2.550, 2.551

Case Info

Judge

Beth A. R. McGowen Track Judge’s New Case

Case No.

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Document Filed Date

April 10, 2024

Case Filing Date

May 12, 2023

County

Parties

Devin Tomcik Defendant
Geoffrey Peterson Defendant
John Barnes Defendant
Lilian Elias Defendant
Lyn Robyn Agre Attorney For The Defendant
Nicole Susan Phillis Attorney For The Plaintiff
Rajiv Sajjan Dharnidharka Attorney For The Defendant
Rodney Brandon Sorensen Attorney
Stacy Thompson Thompson Interested Party
Superior Court of CA, County of Santa Clara Attorney
Superior Court of California Notice
Sycomp a Technology Company, Inc. Defendant
Timothy Cordell Defendant
Trace3, LLC Plaintiff
Edward Shapiro Attorneys for Defendants
Micah Chavin Attorneys for Defendants
Heather Canner Attorneys for Plaintiffs
Erin Heiferman Attorneys for Defendants
Megan Reilly Attorneys for Defendants
Joseph Schultz Attorney
Jibraun Riaz Attorneys for Plaintiffs
Neal Callahan Attorney

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Party Discovery: Trace3, LLC v. Sycomp, A Technology Company, Inc., et al.

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