Case Name: Sinco Technologies PTE Ltd. v. Liew Soon, et al.
Case No.: 16CV301867

Continued from 4/6/17 and 5/18/17

Plaintiff brings a noticed motion for a preliminary injunction against defendant Liew Yew Soon, aka Mark Liew (Line 13). Lines 14 and 15 are plaintiff’s motion to seal records filed in support of plaintiff’s preliminary injunction motion (including in reply to defendant’s opposition), and defendant’s joinder in and request for expansion of the motion to seal, including certain records filed in opposition to the preliminary injunction motion.

The Court continued the hearing from April 6, 2017, ordering counsel to present to the court a full, complete, unredacted chambers copy of all paper filed relating to the preliminary injunction motion – along with a redacted copy for comparison, in order to enable the court to review and determine whether it could make the required findings to seal records under California Rule of Court 2.550.

The Court has now reviewed and considered all papers submitted, and issues the following tentative rulings.

Motion for preliminary injunction

Plaintiff’s motion for preliminary injunction against defendant Liew Yew Soon, aka Mark Liew, is GRANTED. The Court finds the requested injunction will preserve the status quo between the parties, does not harm the defendant, and protects the plaintiff from irreparable interim harm that may result if the injunction were not to be issued. Thus, the court determines the balance of harm or potential hardship weighs significantly in plaintiff’s favor. Further, the court finds plaintiff has demonstrated a reasonable probability of success on the merits. Finally, the court determines that no undertaking is required under Code of Civil Procedure §529, as defendant has not raised this issue and it appears to the court that defendant cannot show he may sustain any amount of monetary damages as a result of the issuance of the preliminary injunction, which the court views as merely maintaining the status quo between the parties.
Thus, a preliminary injunction shall issue, restraining and prohibiting defendant as specifically stated in paragraphs one through three of plaintiff’s proposed order. Plaintiff shall prepare the preliminary injunction order and submit it to defendant’s counsel for approval as to form, according to the procedure of Rule of Court 3.1312.

Motions to seal/joinder and expansion

The court has carefully reviewed the unredacted and proposed redacted/sealed records. The records proposed to be sealed are contained within 35 sealed envelopes, submitted conditionally under seal pending the court’s ruling.

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(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

(5) No less restrictive means exist to achieve the overriding interest.”

(Cal. Rules of Court, rule 2.550(d).)

The California Rules of Court do not define what constitutes an “overriding interest.” Instead, this has been left to case law. Different “[c]ourts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn.3 [quoting Judicial Council advisory committee comment to Rule 243.1] [affirming lower court order unsealing certain records over defendants’ objection that the materials contained proprietary trade secrets]; see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n.46 [overriding interests found in various cases include: protection of minor victims of sex crimes from further trauma and embarrassment, privacy interests of a prospective juror during individual voir dire, protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify, protection of trade secrets, protection of information within the attorney-client privilege, and enforcement of binding contractual obligations not to disclose, safeguarding national security, ensuring the anonymity of juvenile offenders in juvenile court, ensuring the fair administration of justice, and preservation of confidential investigative information]; Civ. Code, § 3426.5 [“In an action under this title, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, 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.”].)

A party moving to seal a record must file a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules of Court, rule 2.551(b)(1).) A declaration supporting a motion to seal should be specific, not conclusory, as to the facts supporting the overriding interest. If the court finds that the supporting declarations are conclusory or otherwise unpersuasive, it may conclude that the moving party has failed to demonstrate an overriding interest that overcomes the right of public access. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at 301.)

Further, where some material within a document warrants sealing but other material does not, the document should be edited or redacted if possible, to accommodate the moving party’s overriding interest and the strong presumption in favor of public access. (See Cal. Rules of Court, rule 2.550(e)(1)(B); See also In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (See In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.)

The Court has reviewed the records submitted conditionally under seal, and consistent with the California Rules of Court and the case law discussed above, makes the following findings and orders.

The motion is GRANTED, only as to the records identified below. As to these records only, the court is able to make all of the required findings under Rule of Court 2.550. As to each of these records, the overriding interest identified is the protection of either private, trade secret information of plaintiff or other employees; or private, personal information concerning the defendant. As to these documents only, a substantial probability exists that this overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest.

GRANTED:

Exhibits to Declaration of Lael Andrada:
B, E, F, G, J, K, L, M, O, Q and U

Declaration of Jonathan Chee in Reply – only paragraph 7 on page 3; and
Exhibits D and E

The motion is DENIED as to all records identified below this paragraph. As to these records, the court is unable to make all the required findings to override the presumption that court records are open and that the public has a right of access to court records. Specifically and by way of example, the court does not find that the mere identification of names of large and well-known companies with which either side of this case make have contact or do business constitutes confidential customer lists or protected trade secret information. This applies equally to the deposition testimony and discovery responses, the proposed redactions of which are not narrowly tailored as required by law.

DENIED:

Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction;

Declaration of Jon M. Chee in Support of Motion;

Exhibits to Declaration of Lael Andrada:
A, C, D and R

Opposition papers:
Exhibits A, B and C

Reply Memorandum of Points and Authorities

Declaration of Jonathan Chee in Reply – all other portions of declaration, and Exhibit B.