The Upper Deck Company v. Pixels.com, LLC et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
THE UPPER DECK COMPANY,
Plaintiff,
v.
PIXELS.COM, LLC,
Defendant.
Case No. 24-cv-00923-BAS-DEB
ORDER:
(1) GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO SEAL (ECF No. 164);
AND
(2) GRANTING PLAINTIFF’S
MOTION TO SEAL (ECF No. 169)
Presently before the Court is Plaintiff Upper Deck Company’s (“Upper Deck”)
renewed motions to seal. 	(ECF Nos. 164, 169.) 	For the reasons below, the Court
GRANTS IN PART and DENIES IN PART Upper Deck’s motion (ECF No. 164) in
accordance with Appendix A. The Court GRANTS Upper Deck’s motion (ECF No. 169)
in accordance with Appendix B.
I. 	BACKGROUND
Defendant Pixels.com (“Pixels”) allegedly interfered with Upper Deck’s exclusive
rights to use intellectual property assets associated with the brand of world-famous
basketball player, Michael Jordan (“Jordan”), to develop sports memorabilia. 	More
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specifically, Pixels allegedly advertised and sold products appropriating Jordan’s likeness
online without either Upper Deck’s or Jordan’s permission. (ECF No. 24 ¶¶ 25–35.) Upper
Deck obtained the rights to use Michael Jordan’s likeness through licensing agreements.
(Id. ¶¶19–24.) Furthermore, Pixels’ products also allegedly misappropriated Upper Deck’s
own trademarks—including Upper Deck’s logo. (Id. ¶ 11.)
On May 28, 2024, Upper Deck initiated this action against Defendant Pixels.com
(“Pixels”). (ECF No. 1.) On October 1, 2024, Upper Deck filed the operative complaint
in this action alleging causes of action, inter alia, for: (1) false advertising and unfair
competition claims under the Lanham Act, 15 U.S.C.A. § 1125(a); (2) trademark dilution
under the Lanham Act, 15 U.S.C.A. § 1125(c); (3) trademark infringement under 15
U.S.C.A. § 1114; (4) deprivation of rights of publicity, Cal. Civ. Code § 3344; (5)
deprivation of rights of publicity under California common law; (6) unfair competition
under California statutory, Cal. Bus. & Prof. Code § 17200 et seq, and common law. (ECF
No. 24.)
Throughout the course of this action, both parties filed motions to seal. 	(See ECF
Nos. 75, 78, 81, 88, 91, 95, 97, 102, 107.) 	The Court granted in part and denied in part
Parties’ motions (see ECF Nos. 110, 160, 163.) Now pending before the Court are Upper
Deck’s motions to seal portions of expert reports, third-party sublicensing agreements
attached to Parties’ motions for summary judgment (ECF No. 164), and portions of exhibits
attached to Parties’ pretrial disclosures (ECF No. 169).
In ECF No. 164, Upper Deck moved to seal specific portions of the following
documents:
1. An executed agreement between Brevettar, LLC and Trends International, LLC for
Trends International, LLC to sublicense Brevettar, LLC’s rights to use Michael
Jordan’s intellectual property (ECF No. 165, Ex. 20);
2. An expert report by Upper Deck’s expert, Christian Tregillis (ECF No. 165-1, Ex.
94);
3. An expert report by Pixels’ expert, Lindsey Fisher. (ECF No. 165-2, Ex. M.)
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In ECF No. 169, Upper Deck moved to seal portions of the following exhibits
attached to pretrial disclosures:
4. An email exchange between third-parties Estee Portnoy and Dwight Manley dated
June 10, 2021. (ECF No. 170, Ex. 2.)
5. An email exchange between Jason Masherah (Upper Deck) and third-party Estee
Portnoy dated March 14, 2024. (ECF No. 170-1, Ex. 3.)
6. An email exchange between Estee Portnoy and Jason Masherah dated between April
1, 2021 and April 5, 2021. (ECF No. 170-2, Ex. 4.)
7. An email exchange between Estee Portnoy and Jason Masherah dated between April
23, 2021 and April 27, 2021. (ECF No. 170-3, Ex. 5.)
8. An email exchange between Estee Portnoy and Jason Masherah dated between April
23, 2021 through April 30, 2021. (ECF No. 170-4, Ex. 6.)
In this Order, the Court evaluates Upper Deck’s pending motions to seal above.
(ECF Nos. 164, 169.)
II. 	LEGAL STANDARD
“[T]he courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.” 	Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978). 	“Unless a particular court record is one
‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.”
Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz
v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption
of access is ‘based on the need for federal courts, although independent—indeed,
particularly because they are independent—to have a measure of accountability and for the
public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler
Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d
1044, 1048 (2nd Cir. 1995)).
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A party seeking to seal a judicial record bears the burden of overcoming the strong
presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden
depends upon whether the documents to be sealed relate to a motion that is “more than
tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1101. When
the underlying motion is more than tangentially related to the merits, the “compelling
reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass
the tangential relevance threshold, the “good cause” standard applies. Id.
“In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in
disclosure and justify sealing court records exist when such ‘court files might have become
a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote
public scandal, circulate libelous statements, or release trade secrets.” 	Kamakana, 447
F.3d at 1179 (quoting Nixon, 435 U.S. at 598). As to this last category, courts have been
willing to seal court filings containing confidential business material, “such as marketing
strategies, product development plans, licensing agreements, and profit, cost, and margin
data,” where the parties have been able to point to concrete factual information to justify
sealing. See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-WVG, 2016 WL 3036302, at *5
(S.D. Cal. May 27, 2016). However, “[t]he mere fact that the production of records may
lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not,
without more, compel the court to seal its records.” 	Kamakana, 447 F.3d at 1179.
Similarly, it is not enough to “mention[] a general category of privilege, without any further
elaboration or any specific linkage with the documents.” Id. at 1184. A blanket protective
order is not itself sufficient to show “good cause,” let alone compelling reasons, for sealing
particular documents. 	See Foltz, 331 F.3d at 1133; San Jose Mercury News, Inc. v. U.S.
Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). The decision to seal documents is
“one best left to the sound discretion of the trial court” upon consideration of the “relevant
facts and circumstances of the particular case.” Nixon, 435 U.S. at 599.
In addition, parties moving to seal documents must comply with the procedures set
forth in this Court’s Standing Order for filing documents under seal. 	See Standing Order
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of the Hon. Cynthia Bashant for Civil Cases § 5. These procedures limit sealing to “only
those documents, or portions thereof, necessary to protect such sensitive information.” Id.
Thus, although sometimes it may be appropriate to seal a document in its entirety,
whenever possible, a party must redact. 	See Kamakana, 447 F.3d at 1183 (noting a
preference for redactions so long as they “have the virtue of being limited and clear”);
Murphy v. Kavo Am. Corp., No. 11-cv-00410-YGR, 2012 WL 1497489, at *2–3 (N.D. Cal.
Apr. 27, 2012) (denying motion to seal exhibits but directing parties to redact confidential
information).
III. 	ANALYSIS
A. 	Whether Upper Deck Presents Compelling Reasons for its Proposed
Redactions (ECF No. 164)
1. 	Related Documents More Than Tangentially Related to Merits
As the Court previously found (ECF No. 110 at 4:6-16; ECF No. 160 at 6:8-17),
Upper Deck’s proposed documents to seal are more than “tangentially related to the merits”
when filed in connection with Parties’ summary judgment motions (ECF Nos. 74, 79). See
Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., No. 17-CV-555-L-NLS, 2018 WL
11457880, at *1 (S.D. Cal. Nov. 5, 2018) (“The compelling reasons standard applies to all
motions except those that are only ‘tangentially related to the merits of a case.’. . .
Defendants’ summary judgment motion is more than tangentially related to the merits”)
(citing Kamakana, 447 F.3d at 1179). 	As such, the Court finds Upper Deck’s renewed
motion to seal (ECF No. 164) is subject to the “compelling reasons” standard in Kamakana,
447 F.3d at 1179.
2. 	“Compelling Reasons” Legal Standard
Preventing the release of trade secrets generally constitutes a compelling reason to
seal such documents. 	Kamakana, 447 F.3d at 1179; see also Nixon, 435 U.S. at 598
(observing that the “common-law right of inspection has bowed before the power of a court
to insure that its records” are not used as “sources of business information that might harm
a litigant's competitive standing”); Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1226–
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28 	(Fed.Cir.2013) 	(holding 	that 	under Ninth 	Circuit 	law, 	detailed 	product-specific
information and internal reports are appropriate to seal under the “compelling reasons”
standard where that information could be used to the company's competitive disadvantage).
A “trade secret may consist of any formula, pattern, device or compilation of
information which is used in [the party]'s business, and which gives [the party] an
opportunity to obtain an advantage over competitors who do not know or use it.” 	In re
Elec. Arts, Inc., 298 F. App'x 568, 569–70 (9th Cir. 2008) (citing Restatement of Torts §
757, cmt. B); see also Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972) (adopting the
Restatement definition and finding that “a detailed plan for the creation, promotion,
financing, and sale of contracts” constitutes a trade secret); Whyte v. Schlage Lock Co., 101
Cal.App.4th 1443, 1455-56 (2002).
Even if proposed material for sealing does not constitute a trade secret, it may still
be sealable as confidential business information. See In re Elec. Arts, Inc., 298 F. App'x at
569 (finding sealable “business information that might harm a litigant's competitive
standing”); see also Ctr. for Auto Safety, 809 F.3d at 1097 (citing Nixon, 435 U.S. at 598–
599) (“sources of business information that might harm a litigant's competitive standing”
are subject to sealing); see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017
WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (sealing is warranted to prevent competitors
from “gaining insight into the parties' business model and strategy”); see also Garrity
Power Servs. LLC v. Samsung Elecs. Co., No. 21-MC-80159-JSC, 2021 WL 3473937, at
*1 (N.D. Cal. July 29, 2021) (“confidential business information in the form of ‘license
agreements, financial terms, details of confidential licensing negotiations, and business
strategies’ is sealable”).
However, not all business information is so confidential or sensitive that it must be
sealed. 	See, e.g., Open Text S.A. v. Box, Inc., No. 13-04910, 2014 WL 7368594, at *3
(N.D. Cal. Dec. 26, 2014) (declining to seal, for example, information about a litigant's
"product design and source code and highly confidential and competitively sensitive
business information including usage data," in the absence of demonstrating “specific
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compelling reasons”); GoDaddy.com LLC v. RPost Commc'ns Ltd., No. 14-00126, 2014
WL 2117349, at *1 (D. Ariz. May 21, 2014) ("[A] party's allegations that material is
'confidential' or 'business information' are insufficient to justify sealing court records
containing such material unless the party proves the existence of compelling reasons such
as those set forth in Kamakana . . . "[O]nly in extremely limited circumstances will
confidential information actually merit the sealing of court records.").
Importantly, “[t]he proponent of sealing bears the burden with respect to sealing.
A failure to meet that burden means that the default posture of public access prevails.”
Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006).
3. 	“Narrowly Tailored” Legal Standard
“Only those documents, or portions thereof, necessary to protect such sensitive
information” may be sealed. 	Standing Order § 5.A. 	As such, whenever possible, the
moving party must redact only what is necessary. 	See Kamakana, 447 F.3d at 1183;
Murphy, 2012 WL 1497489, at *2–3. Redactions must be narrowly tailored such that only
information that meets the compelling reasons standard is redacted. 	See Kamakana, 447
F.3d at 1183 (highlighting the “limited and clear” nature and specificity of the redactions);
ImprimisRx, LLC v. OSRX, Inc., No. 21-cv-01305-BAS-DL, 2023 WL 7029210, at *4
(S.D. Cal. Oct. 24, 2023) (rejecting redactions that were insufficiently tailored). 	The
moving party must provide the compelling reason justifying the proposed redactions.
Foltz, 331 F.3d at 1135.
Litigation predicated upon contracts cannot be conducted in secret. JBS Packerland,
Inc. v. Phillips Cattle Co., Inc., No. 24-cv-01299-BAS-MSB, 2024 WL 4280960, at *2
(S.D. Cal. Sept. 24, 2024). 	The public has the right to know the gist of the underlying
agreements in order to understand the court’s rulings. 	Id. 	Accordingly, mere vague or
ambiguous references to sealed documents, without any discussion of the substance of the
sealed documents, do not meet the compelling reasons standard. 	See Nia v. Bank of Am.,
N.A., No. 21-cv-1799-BAS-BGS, 2024 WL 171659, at *9 (S.D. Cal. Jan. 12, 2024);
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ImprimisRx, LLC, 2023 WL 7029210, at *5. Information already available to the public
also cannot meet the compelling reasons standard. See id. at 1184.
4. 	Analysis of Compelling Reasons
i. 	Financial Data (e.g., Gross Revenue Amount, and Sales Data)
and Damages Calculation
“Sales data may constitute a trade secret if it is not readily ascertainable from a public
source but instead developed with a substantial amount of time, effort, and money.” Yeiser
Rsch. & Dev. LLC v. Teknor Apex Co., 281 F. Supp. 3d 1021, 1046 (S.D. Cal. 2017). The
Court has previously found that Pixels’ financial data and damages calculations based on
Pixels’ sales data are subject to sealing. 	(ECF No. 110 at 10:21–11:20; ECF No. 160 at
9:11-24.)
Here, Upper Deck also moves to seal portions of its expert declarations containing
product 	pricing. 	“[U]nder 	Ninth 	Circuit 	law, 	detailed 	product-specific 	financial
information and customer information may be sealed under the ‘compelling reasons’
standard” where that information could harm the company’s competitive standing. Ovonic
Battery Co., Inc. v. Sanyo Elec. Co., Ltd, No. 14-CV-01637-JD, 2014 WL 2758756, at *2
(N.D. Cal. June 17, 2014) (citing Apple Inc., 727 F.3d at 1226, 1228) (finding that parties
had a significant interest in preventing the release of product-specific financial information
because it could harm their competitive standing). Finally, in the interest of narrowly
tailoring Upper Deck’s proposed redactions, the Court specifically finds that the sealing of
specific numerical values of financial data is proper (e.g., product-specific financial
information, sales data, and gross revenue). 	See In re NCAA Student-Athlete Name &
Likeness Licensing Litig., No. C 09-1967 CW, 2014 WL 662545, at *1 (N.D. Cal. Feb. 20,
2014) (“only the specific dollar amounts. . . may be sealed”); O'Bannon, 2014 WL
12997312, at *1 (same).
Thus, the Court GRANTS Upper Deck’s request to seal numerical values of Pixels’
financial data and of experts’ damages calculations based upon Pixels’ financial data.
(ECF No. 110 at 10:21–11:20; ECF No. 160 at 9:11-24.)
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ii. 	Licensing Agreement Terms
The Ninth Circuit has held that licensing agreement terms are sealable trade secrets
when such terms provide a plan for the formation and sale of contracts. 	In re Elec. Arts,
Inc., 298 F. App'x at 569–70 (finding license agreement to be a trade secret); France
Telecom S.A. v. Marvell Semiconductor Inc., No. 12-CV-04967-WHO, 2014 WL 4965995,
at *3 (N.D. Cal. Oct. 3, 2014) (“the information at issue—terms of a license agreement—
constitutes trade secrets and is properly sealed”). Those terms may constitute trade secrets
because their public disclosure may hinder the trade secret holder’s market competitiveness
and participation. See e.g., In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
2014 WL 662545, at *1 (“Because the public disclosure of some of these terms may
undermine 	NCAA's 	ability 	to 	negotiate 	future 	licensing 	agreements 	with 	other
broadcasters, these terms may be sealed.”).
However, there are limitations on the extent to which terms of a licensing agreement
can be sealed. 	In this section, the Court evaluates whether certain licensing terms that
Upper Deck seeks to redact (and references to those terms) constitute sealable trade secrets.
a. 	Royalty 	Rate, 	Minimum 	Guarantee, 	and
Compensation Clauses
As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.a), it is well-
established in the Ninth Circuit that “pricing terms, royalty rates, and guaranteed minimum
payment terms” of licensing agreements are sealable trade secrets. 	In re Elec. Arts, Inc.,
298 F. App'x at 569–70; see also Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972)
(adopting the Restatement definition and finding that “a detailed plan for the creation,
promotion, financing, and sale of contracts” constitutes a trade secret) (citing Whyte v.
Schlage Lock Co., 101 Cal.App.4th 1443, 1455-56 (2002)). 	However, courts within the
Ninth Circuit have agreed that sealing only specific numerical values within such terms is
appropriate to ensure that redactions are narrowly tailored. See In re NCAA Student-Athlete
Name & Likeness Licensing Litig., 2014 WL 662545, at *1 (“only the specific dollar
amounts. . . may be sealed”); O'Bannon, 2014 WL 12997312, at *1 (same). Here, Upper
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Deck moves again to seal royalty information in a licensing agreement. (See ECF No. 164
at 3:17–4:19). Since the Court previously granted redacting numerical values in licensing
clauses regarding royalty rates, minimum guarantees, and compensation and references to
those values in other documents (e.g., expert reports) (see ECF No. 160 § III.B.4.ii.a), the
Court GRANTS Upper Deck’s request to do so here (ECF No. 164).
b. 	Sample Review and Approval
As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.b), terms detailing
the process through which Upper Deck—as licensee of certain intellectual property
assets—submits its products for review by its licensor can also constitute trade secrets.
Those terms provide a blueprint for product development strategy, which if revealed, could
provide competitors an economic advantage. 	In re Hydroxycut Mktg. & Sales Practices
Litig., No. 09md2087 BTM (AJB), 2011 WL 864897, *2 (S.D. Cal. Mar. 11, 2011) (finding
compelling reasons to seal documents containing information revealing business and
marketing strategy and product development); see also In re ConAgra Foods, Inc., No.
CV1105379MMMAGRX, 2014 WL 12577132, at *5 (C.D. Cal. July 11, 2014) (finding
compelling reasons to seal given “the inclusion of trade secrets such as a company's internal
strategies, marketing research, sales data, and product development plans”).
Here, Upper Deck moves to seal the number of samples that Upper Deck submits to
Jump 23 for review and approval prior to distribution in its expert report. (See ECF No.
164 at 4:23-27, 5:11-15.) 	Since the Court has previously held Upper Deck can seal the
number of samples for review from the terms of its licensing agreements (ECF No. 160 §
III.B.4.ii.b), the Court GRANTS Upper Deck’s request to redact expert report references
to the number of samples for review and approval provided by licensing agreements. (See
ECF No. 164 at 4:23-27, 5:11-15.)
c. 	Signature-Related Terms
Upper Deck further moves to redact signature alternatives that its licensor agreed for
Michael Jordan to contribute for the development of Upper Deck’s products and services.
As discussed in this Court’s prior order (ECF No. 160 § III.B.4.ii.c), terms related to the
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provision of signatures are part of the product development process and thus, are trade
secrets. 	In re Hydroxycut Mktg. & Sales Practices Litig., 2011 WL 864897, *2 (finding
compelling reasons to seal documents containing information revealing business and
marketing strategy and product development).
Here, Upper Deck moves to seal expert report references to licensing agreement
terms detailing alternatives to signatures. (See ECF No. 164 at 6:5-8, 6:18-20.) Since the
Court has previously held Upper Deck can seal licensing terms detailing alternatives to
signatures (ECF No. 160 § III.B.4.ii.c), the Court GRANTS Upper Deck’s request to redact
expert report references to signature alternatives provided in licensing agreements. 	(See
ECF No. 164 at 6:5-8, 6:18-20.)
d. 	Third-Party Information (e.g., Names)
This Court has previously held (ECF No. 160 § III.B.4.ii.e) that the identities of third
parties are generally not sealable as trade secrets unless the movant “provide[s] a
particularized showing that specific harm will result if the [identities are] made publicly
available.” 	Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846 LHK PSG, 2012 WL
4120541, at *2 (N.D. Cal. Sept. 18, 2012); see also Fitzhenry-Russell v. Dr. Pepper
Snapple Grp., Inc., No. 17-CV-00564 NC, 2018 WL 10472795, at *2 (N.D. Cal. Apr. 23,
2018) (“The identity of Dr. Pepper's third-party vender, Givaudan is not sealable as a trade
secret under the compelling reasons standard”).
Here, Upper Deck moves to redact portions of expert reports including the names of
third parties. (See ECF No. 164 at 5:18-27.) Since its first motion to seal, Upper Deck has
still not provided any justification for how specifically revealing the identities of third
parties would result in particularized harm to its market position. Further, Upper Deck has
failed to allege how third-party information involves any other privacy interests that
“outweigh the traditional right of public access” in Kamakana, 447 F.3d at 1178. See also
Bunsow De Mory LLP v. N. Forty Consulting LLC, No. 20-CV-04997-JSC, 2021 WL
4521143, at *7 (N.D. Cal. Jan. 22, 2021) (rejecting motion to seal because “the names of
third-parties in this action constitute neither trade secrets nor confidential information”).
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Though the identities of third parties in licensing agreements may be sealable in some
circumstances, such as when the “existence of the agreement[s]. . . 	[are] not otherwise
publicly known,” Upper Deck has failed to allege any such circumstances here for their
proposed redactions of third-party names, such as “Mr. Crystal,” “Trends,” and “Ikonick”,
in its expert report (Ex. 94 ¶ ¶ 114, 121). See Huawei, 340 F. Supp. 3d at 1004.
Thus, the Court DENIES WITHOUT PREJUDICE Upper Deck’s requested
redactions of third-party information, such as names of entities and the parties’ employees
or agents. (See ECF No. 164 at 5:18-27.)
iii. 	Business 	Negotiations 	Qualify 	as 	Confidential 	Business
Information
Even if business negotiations do not amount to a trade secret, they are nonetheless
sealable as “sources of business information that might harm a litigant’s competitive
standing.” 	Nixon, 435 U.S. at 589; 	see also Garrity, 2021 WL 3473937, at *1
(“confidential business information in the form of ‘license agreements, financial terms,
details of confidential licensing negotiations, and business strategies’ is sealable”).
Here, Upper Deck seeks to seal documented discussions between Mr. Crystal and
Mr. Tregellis regarding license contract negotiations and Upper Deck’s negotiating
position. (See ECF No. 164 at 5:18-27 (seeking to seal Ex. 94 ¶ 114).) Upper Deck alleges
that this is “[t]rade secret and privacy . . . [t]he discussion about Mr. Crystal’s thoughts
about license negotiations with vendors should be redacted, in conformity with the Court’s
reasoning in Order [ECF No. 160] at Section III(B)(ii)(a).” 	The Court does not find the
rationale for sealing Ex. 94 ¶ 114 under ECF No. 160 § III.B.4.ii.a, as a trade secret, to be
sound. 	However, after reviewing Ex. 94 ¶ 114, the Court finds Upper Deck’s proposed
redaction is a confidential licensing negotiation—which is a type of confidential business
information sealable under the compelling reasons standard. 	See Garrity, 2021 WL
3473937, at *1.
Thus, the Court GRANTS Upper Deck’s request to seal Ex. 94 ¶ 114 as a
confidential business negotiation. (See ECF No. 164 at 5:18-27.)
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B. 	Whether Upper Deck Presents Good Cause for its Proposed Redactions
(ECF No. 169)
1. 	Documents Only Tangentially Related to Merits
The Court finds that Pixels’ exhibits that Upper Deck seeks to seal from ECF. No
169 are only “tangentially related” to the merits of the case, since they are originally
attached to Pixels’ non-dispositive pretrial disclosures (ECF No. 130). Ctr. for Auto Safety,
809 F.3d at 1098–1101 (“Discovery-related motions are often unrelated to the merits of a
case.”). 	Accordingly, the Court applies the “good cause” standard, rather than the more
exacting “compelling reasons” standard it applied in its prior orders (ECF Nos. 110, 160.)
Id.
2. 	“Good Cause” Legal Standard
Federal Rule of Civil Procedure (“Rule”) 26(c) states that when a party or other
person from whom discovery is sought makes a motion asserting good cause for a
protective order, “the court in which the action is pending . . . may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense,” based on any of several listed reasons. 	As previously
mentioned, the Ninth Circuit applies the “good cause” standard—adopted from Rule
26(c)—to evaluate requests to seal documents related to non-dispositive motions. 	See
Kamakana, 447 F.3d at 1180; Foltz, 331 F.3d at 1130; Phillips v. Gen. Motors, 307 F.3d
1206, 1212 (9th Cir.2002). 	Pertinent here, Rule 26(c)(1)(G) states that a court may
“requir[e] that a trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a specified way.” 	A party asserting
good cause bears the burden, for each particular document it seeks to protect, of showing
that specific prejudice or harm will result if no court order is granted. 	Foltz, 331 F.3d at
1130–31; see also Beckman, 966 F.2d at 476 (“[B]road allegations of harm, unsubstantiated
by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”).
Additionally, the “good cause” standard is less exacting than the “compelling
reasons” standard applied to evaluating sealing documents related to dispositive motions.
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See Ctr. for Auto Safety, 809 F.3d at 1098–1101; Skillz Platform Inc. v. AviaGames Inc.,
No. 21-CV-02436-BLF, 2023 WL 8430369, at *2 (N.D. Cal. Dec. 4, 2023). 	Thus,
information that would be sealable under the “compelling reasons” standard is also sealable
under the “good cause” standard. Id.
3. 	Analysis
Courts have been willing to seal court filings containing confidential business
material, “such as marketing strategies, product development plans, licensing agreements,
and profit, cost, and margin data,” where the parties have been able to point to concrete
factual information to justify sealing. 	See, e.g., Cohen v. Trump, No. 13-cv-2519-GPC-
WVG, 2016 WL 3036302, at *5 (S.D. Cal. May 27, 2016); see also Skillz Platform Inc. v.
AviaGames Inc., No. 21-CV-02436-BLF, 2023 WL 8430369, at *2 (N.D. Cal. Dec. 4,
2023) (“[C]onfidential business information that would harm a party's competitive standing
meet[s] the compelling reasons standard, and thus also meet[s] the ‘less exacting’ good
cause standard.”).
Third-party information is typically not alone sufficient grounds for sealing. Jones
v. PGA Tour, Inc., No. 22-CV-04486-BLF, 2023 WL 3594058, at *3 (N.D. Cal. May 22,
2023) (“[T]he fact that disclosure would reveal the substance of communications with non-
parties does not, by itself, demonstrate good cause for sealing.”). However, courts within
this Circuit have sealed “documents contain[ing] information regarding the identity and
operations of third party supplied components in [movant]'s products” as confidential
business information. 	See e.g., DSS Tech. Mgmt., Inc. v. Apple, Inc., No. 14-CV-05330-
HSG, 2020 WL 210318, at *8 (N.D. Cal. Jan. 14, 2020), aff'd, 845 F. App'x 963 (Fed. Cir.
2021).
Lastly, “documents containing private information should be filed in redacted form
rather than sealed in their entirety.” 	Murphy v. Kavo Am. Corp., No. CV 11 0410 YGR,
2012 WL 1497489, at *3 (N.D. Cal. Apr. 27, 2012) (citing Foltz, 331 F.3d at 1137) (finding
no good cause to seal documents in their entirety where a small number of confidential
details could be redacted with minimal effort).
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Here, Upper Deck moves to file the proposed exhibits under seal on the basis that
they involve “[d]iscussion of nonfungible tokens and the names of decisionmakers between
Upper Deck’s senior management and key strategic partner Jump 23 [which] would allow
competitors with an undue advantage if publicly known.” 	(ECF No. 169.) 	Upper Deck
has sufficiently alleged that the disclosure of the confidential business information
contained in the email exchanges (i.e., concerning the proprietary development of Upper
Deck’s products, including the involvement of third parties) would create specific harm by
allowing competitors with an undue advantage. 	Foltz, 331 F.3d at 1130–31; see also
Beckman, 966 F.2d at 476. 	Additionally, Upper Deck has established good cause by
providing the declaration of Gabriel Garcia who, as the Senior Director of Upper Deck
Authenticated (the memorabilia and collectibles division of Upper Deck), has knowledge
of the documents sought to be sealed. (ECF No. 169-6.) See Orthopaedic Hosp. v. Encore
Med. L.P., No. 19-CV-970 JLS (AHG), 2022 WL 257104, at *3 (S.D. Cal. Jan. 27, 2022);
see also Kilbourne v. Coca-Cola Co., No. 14CV984-MMA BGS, 2015 WL 5117080, at *3
(S.D. Cal. July 29, 2015) (finding good cause where “defendants have filed a supplemental
declaration under seal detailing with particularity the exhibits that contain confidential
information and the manner in which disclosure of such information would be detrimental
to Defendants or otherwise improper.”).
Garcia alleged that the information, if allowed into the public domain, “would
provide competitors with (1) the names of the decision-makers, (2) insight into highly
confidential negotiations for rights between Upper Deck’s President Jason Masherah and
Jump 23’s Senior Vice President, Estee Portnoy, and (3) litigation settlement discussions
and strategy.” 	(ECF No. 169-6.) 	Garcia claims that the disclosure of such information
would be detrimental to Upper Deck’s business operations by providing competitors with
insights into Upper Deck’s processes, harming their competitive standing. 	See e.g., In re
Elec. Arts, Inc., 298 F. App'x at 569 (finding sealable “business information that might
harm a litigant's competitive standing”); Lin v. Solta Med., Inc., No. 21-CV-05062-PJH,
2024 WL 2112893, at *3 (N.D. Cal. Apr. 11, 2024) (finding good cause where movant
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alleged competitors would gain insight into internal processes if not for sealing); Fed.
Trade Comm'n v. Qualcomm, Inc., No. 17-cv-00220-LHK, 2019 WL 95922, at *3 (N.D.
Cal. Jan. 3, 2019) (finding compelling reasons for “information that, if published, may
harm [a party's] or third parties' competitive standing and divulges terms of confidential
contracts, contract negotiations, or trade secrets”). 	Furthermore, the request is not
overbroad as Upper Deck only seeks to redact confidential details rather than the
documents in their entirety. See Foltz, 331 F.3d at 1137.
Thus, Upper Deck sufficiently alleged that the disclosure of this information would
allow competitors with an undue advantage if publicly known. 	See In re Elec. Arts, Inc.,
298 F. App'x at 569. Since this information meets the compelling reasons standard, it also
meets the less stringent good cause standard. See Ctr. for Auto Safety, 809 F.3d at 1098–
1101.
Upper 	Deck 	has 	demonstrated 	its 	proposed 	sealings 	qualify 	as 	“business
negotiations,” and thus, established good cause for sealing them. As such, the Court thus
GRANTS Upper Deck’s motion to seal. (ECF No. 169.)
* * *
The Court includes Appendix A and B, providing an individual ruling on each of
Upper Deck’s proposed redactions.
IV. 	CONCLUSION
For the reasons above, the Court GRANTS IN PART and DENIES IN PART
Upper Deck’s renewed motion to seal (ECF No. 164), in accordance with Appendix A.
Additionally, the Court GRANTS Upper Deck’s renewed motion to seal (ECF No. 169),
in accordance with Appendix B.
If Upper Deck or Pixels wishes to file a renewed motion to seal for the denied
requests in ECF No. 164, they may do so no later than March 6, 2026, after the issuance
of this order. To the extent either Party wishes to renew its motion to seal for any document
or portion thereof, that party is ORDERED to append to its briefing a table similar to that
in the Appendices to this Order listing: the title of the document, the ECF number of the
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public document, the ECF number of the lodgment, the page and line number(s) or the
section or paragraph numbers of the proposed redactions (or stating that the party wishes
to seal the entirety of the document), and the compelling reason for sealing each proposed
redaction or document.
Otherwise, Upper Deck and Pixels are instructed to file the unredacted versions of
the aforementioned documents in ECF No. 164 as directed by the Court in this Order on
the public docket no later than March 6, 2026. Parties shall publicly file on CM/ECF as a
“Notice Regarding Exhibit Attachment” revised versions of these documents with only
those redactions that the Court has approved. 	When filing the documents on the public
docket, Parties must strictly adhere to the relevant Federal Rules of Civil Procedure, this
district’s Civil Local Rules, this Court’s Standing Order for Civil Cases, and this district’s
Electronic Case Filing Administrative Policies & Procedures Manual. 	Non-compliance
with this order or any relevant rules may result in sanctions pursuant to Civil Local Rule
83.1. 	Further, the Clerk of Court shall ACCEPT and FILE UNDER SEAL any
documents accompanying ECF No. 165 and 170.
IT IS SO ORDERED.
DATED: February 26, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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APPENDIX A
Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
Exhibit 20 to
Upper
Deck’s
Renewed
Motion 	to
Seal 	(ECF
No. 	165) 	–
Licensing
Agreement
between
Brevettar and
Trends
International,
LLC
UpperDeck
67, § E
Trade 	secret 	and
privacy – Royalty
information.
These 	redactions
should 	be 	made,
even 	though
Appendix A to the
Order 	currently
lists these items as
having 	been
DENIED
WITHOUT
PREJUDICE. 	In
the 	December 	9,
2025 	Order 	at
pages 	10-11, 	the
Court 	noted 	in
Section
III(B)(4)(ii)(a): 	It
is well-established
in 	the 	Ninth
Circuit 	that
“pricing 	terms,
royalty rates, and
guaranteed
minimum
payment 	terms”
are sealable trade
secrets. In re Elec.
Arts, Inc., 298 F.
App'x at 569–70;
see also Clark v.
Bunker, 453 F.2d
1006, 	1009 	(9th
Cir.1972)
(adopting 	the
Restatement
In 	ECF 	No. 	160, 	the 	Court
inadvertently 	denied 	Upper 	Deck’s
request to redact royalty information
in its appendix. 	In this Order, the
Court 	GRANTS 	Upper 	Deck’s
request, supra § III.A.4.ii.a.
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
definition 	and
finding 	that 	“a
detailed 	plan 	for
the 	creation,
promotion,
financing, and sale
of 	contracts”
constitutes a trade
secret) 	(citing
Whyte v. Schlage
Lock 	Co., 	101
Cal.App.4th 1443,
1455-56, 	125
Cal.Rptr.2d 	277
(2002)). Thus, the
Court 	GRANTS
sealing 	the
specific numerical
values 	of 	royalty
rate 	minimum
guarantee 	and
compensation
terms. 	See 	In 	re
NCAA 	Student-
Athlete 	Name 	&
Likeness
Licensing 	Litig.,
2014 WL 662545,
at 	*1 	(“only 	the
specific 	dollar
amounts. . . may
be 	sealed”);
O'Bannon, 	2014
WL 12997312, at
*1 	(same). 	To
clarify, 	the
numerical 	values
of 	royalty 	rates,
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
minimum
guarantee, 	and
compensation
should 	also 	be
sealed 	in 	other
documents 	(such
as expert reports)
discussing 	those
values.
UpperDeck
68, § F
Trade 	secret 	and
privacy 	–
Minimum
Guarantee. 	The
minimum
guarantees should
remain out of the
public's 	view, 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii)(a).
GRANTED, supra § III.A.4.ii.a.
UpperDeck
68, § G
Trade secret – The
number of samples
should remain out
of 	the 	public's
view, 	in
conformity 	with
the 	Court's
reasoning 	in
December 8, 2025
Order 	at 	Section
III(B)(4)(ii)(b).
GRANTED, supra § III.A.4.ii.b.
UpperDeck
68, § H
Trade 	secret 	and
privacy – Royalty
information 	and
guarantee
payments. 	The
GRANTED, supra § III.A.4.ii.a.
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
percentages 	for
damage
contingencies
should remain out
of 	the 	public's
view, 	in
conformity 	with
the 	Court's
reasoning 	in
December 9, 2025
Order 	at 	Section
III(B)(4)(ii)(a).
Exhibit 20 to
Upper
Deck’s
Renewed
Motion 	to
Seal 	(ECF
No. 165-1)
¶ 51
Trade 	secret 	–
number 	of
samples. 	The
number of samples
should remain out
of 	the 	public's
view, 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii)(b).
GRANTED, supra § III.A.4.ii.b.
¶ 55
Trade 	secret 	and
privacy 	– 	The
percentage
attributed 	to 	the
three 	athletes
should 	be
redacted, 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii)(a).
GRANTED, supra § III.A.4.ii.a.
¶ 114
Trade 	secret 	and
privacy 	– 	The
GRANTED 	IN 	PART 	regarding
Upper Deck’s requested redaction of
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
discussion 	about
Mr. 	Crystal's
thoughts 	about
license
negotiations 	with
vendors should be
redacted, 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
text 	beyond 	third-party 	names 	as
confidential 	business 	negotiations,
supra § III.A.4.iii;
DENIED 	IN 	PART 	WITHOUT
PREJUDICE 	regarding 	Upper
Deck’s requested redaction of third-
party names, supra § III.A.4.ii.d.
¶ 121
Trade 	secret 	and
privacy 	– 	The
discussion 	about
Mr. 	Crystal's
thoughts 	about
license
negotiations 	with
vendors 	and
pricing should be
redacted, 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED 	IN 	PART 	regarding
Upper Deck’s requested redaction of
specific 	numerical 	values 	supra 	§
III.A.4.i; 	DENIED 	WITHOUT
PREJUDICE 	regarding 	Upper
Deck’s 	requested 	redaction 	of
discussion about license negotiations
with 	vendors 	and 	pricing 	supra 	§
III.A.4.ii;
DENIED WITHOUT PREJUDICE
regarding 	Upper 	Deck’s 	requested
redaction of third-party names, supra
§ III.A.4.ii.d.
In ECF No. 164, Upper Deck only
moves to seal “[t]he discussion about
Mr. Crystal’s thoughts about license
negotiation 	with 	vendors” 	in 	the
second half of the paragraph in Ex. 94
¶ 121. 	Considering their request, the
Court finds the cost of the posters to be
financial information supra § III.A.4.i.
The 	rest 	of 	the 	paragraph 	is 	not
sealable because it does not constitute
financial 	data 	supra 	§ 	III.A.4.i,
licensing 	agreement 	terms 	supra 	§
III.A.4.ii, 	nor 	business 	negotiations
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
supra § III.A.4.iii. 	The discussions
merely 	described 	their 	sublicenses
rather 	than 	any 	ongoing 	or 	past
business negotiations. 	Therefore, the
remainder 	of 	the 	paragraph 	is 	not
sealable 	based 	on 	Upper 	Deck’s
reasoning. Additionally, Upper Deck
has 	not 	demonstrated 	that 	the
information 	does 	not 	include
boilerplate sublicensing terms. 	(ECF
No. 160 § III.B.4.ii.f.)
Exhibit M to
Upper
Deck’s
Renewed
Motion 	to
Seal 	(ECF
No. 165-2)
Footnote
23
Trade 	secret 	and
privacy 	–
alternatives 	to
signatures.
Alternatives 	to
signatures 	are
trade 	secret
information 	and
should be redacted
in conformity with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED.
Upper Deck moves to seal signature
alternatives 	under 	ECF 	No. 	160 	§
III.B.4.ii (stating licensing terms are
generally sealable). The Court more
specifically 	finds 	that 	it 	is 	finds
signature 	alternatives 	are 	sealable
supra § III.A.4.ii.c.
¶ 23 and
footnote 46
and 47
Trade 	secret 	and
privacy 	– 	pixels
sales 	data 	and
damage
calculations.
Information about
royalty 	rates 	and
damages
calculations
should be redacted
in conformity with
the 	Court's
reasoning in Order
GRANTED, 	supra 	§§ 	III.A.4.i,
III.A.4.ii.a.
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
at 	Section
III(B)(4)(ii)(a).
¶ 32
Trade 	secret 	and
privacy 	–
Information about
royalty 	rates 	and
damages
calculations
should be redacted
in conformity with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii)(a).
GRANTED, 	supra 	§§ 	III.A.4.i,
III.A.4.ii.a.
¶ 33
Trade 	secret 	and
privacy 	–
Alternatives 	to
signatures 	are
trade 	secrets 	and
should be redacted
in conformity with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED.
Upper Deck moves to seal signature
alternatives 	under 	ECF 	No. 	160 	§
III.B.4.ii (stating licensing terms are
generally sealable). The Court more
specifically 	finds 	that 	it 	is 	finds
signature 	alternatives 	are 	sealable
supra § III.A.4.ii.c.
¶ 34 and
footnote 61
Trade 	secret 	and
privacy – scope of
license.
Information about
sales 	data 	and
composition 	of
types of products
should be redacted
in conformity with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED, supra § III.A.4.i.
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
¶ 35
Trade 	secret 	and
privacy 	– 	pixels
sales 	data 	and
damage
calculations.
Information about
damages
calculations
should be redacted
in conformity with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED, supra § III.A.4.i.
¶ 42
Trade 	secret 	and
privacy 	– 	pixels
sales 	data 	and
damage
calculations.
Information about
sales 	data 	should
be 	redacted 	in
conformity 	with
the 	Court's
reasoning in Order
at 	Section
III(B)(4)(ii).
GRANTED, supra § III.A.4.i.
¶ 43
Trade 	secret 	and
privacy 	– 	pixels
sales 	data 	and
damage
calculations.
Information about
damages
calculations
should be redacted
in conformity with
the 	Court's
GRANTED, supra § III.A.4.i.
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Exhibit 	Pin Cite
Upper 	Deck's
Reasoning 	(ECF
No. 164)
Court’s Ruling
reasoning in Order
at 	Section
III(B)(4)(ii).
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APPENDIX B
Exhibit 	Description
Upper 	Deck’s
Reasoning 	(ECF
No. 169)
Court’s Ruling
Exhibit 2 to Upper
Deck’s 	Renewed
Motion 	to 	Seal
(ECF No. 170)
Email exchange
between Estee
Portnoy and Dwight
Manley dated June 10,
2021
(UpperDeck_002290).
Discussion 	of
nonfungible
tokens and the
names 	of
decisionmakers
and litigation
strategy 	between
Upper
Deck’s senior
management 	and
key
strategic 	partner
Jump 23
would 	allow
competitors
with 	an 	undue
advantage
if publicly known.
GRANTED, supra
§ III.B.3.
Exhibit 3 to Upper
Deck’s 	Renewed
Motion 	to 	Seal
(ECF No. 170-1)
Email exchange
between Jason
Masherah and Estee
Portnoy dated March
14, 2024
(UpperDeck_002499-
2500).
Discussion 	of
nonfungible
tokens and the
names 	of
decisionmakers
and litigation
strategy 	between
Upper
Deck’s senior
management 	and
key
strategic 	partner
Jump 23
would 	allow
competitors
with 	an 	undue
advantage
if publicly known.
GRANTED, supra
§ III.B.3.
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Exhibit 	Description
Upper 	Deck’s
Reasoning 	(ECF
No. 169)
Court’s Ruling
Exhibit 4 to Upper
Deck’s 	Motion 	to
Seal (ECF No. 170-
2)
Email exchange
between Estee
Portnoy and Jason
Masherah dated
between April 1-5,
2021
(UpperDeck_002283-
84).
Discussion 	of
nonfungible
tokens and the
names 	of
decisionmakers
and litigation
strategy 	between
Upper
Deck’s senior
management 	and
key
strategic 	partner
Jump 23
would 	allow
competitors
with 	an 	undue
advantage
if publicly known.
GRANTED, supra
§ III.B.3.
Exhibit 5 to Upper
Deck’s 	Motion 	to
Seal (ECF No. 170-
3)
Email exchange
between Estee
Portnoy and Jason
Masherah dated
between April 23-27,
2021
(UpperDeck_002285-
86).
Discussion 	of
nonfungible
tokens and the
names 	of
decisionmakers
and litigation
strategy 	between
Upper
Deck’s senior
management 	and
key
strategic 	partner
Jump 23
would 	allow
competitors
with 	an 	undue
advantage
if publicly known.
GRANTED, supra
§ III.B.3.
Exhibit 6 to Upper
Deck’s 	Motion 	to
Email exchange
between Estee
Discussion 	of
nonfungible
GRANTED, supra
§ III.B.3.
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Exhibit 	Description
Upper 	Deck’s
Reasoning 	(ECF
No. 169)
Court’s Ruling
Seal (ECF No. 170-
4)
Portnoy and Jason
Masherah dated
between April 23-30,
2021 (UpperDeck
_002287-89).
tokens and the
names 	of
decisionmakers
and litigation
strategy 	between
Upper
Deck’s senior
management 	and
key
strategic 	partner
Jump 23
would 	allow
competitors
with 	an 	undue
advantage
if publicly known.
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