SmartMetric Inc (SMME)

[badbilly11]

STRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-11-7126-MWF (AJWx) Date: April 17, 2013
Title: Smartmetric, Inc. v. Mastercard International, Inc. et al.
Present: The Honorable MICHAEL W. FITZGERALD, U.S. DISTRICT JUDGE
Rita Sanchez Not Reported N/A
Deputy Clerk Court Reporter/Recorder Tape No.
Attorneys Present for Plaintiff: Attorneys Present for Defendant:
Not Present Not Present
Proceedings (In Chambers): ORDER DENYING EX PARTE APPLICATION
AS MOOT [89] AND DENYING MOTION TO
FILE UNDER SEAL [107]
I. EX PARTE APPLICATION TO ENFORCE SCHEDULING ORDER
Defendants filed an Ex Parte Application on March 14, 2013 asking the
Court to order the withdrawal of the Gussin Report, to strike the Gussin
Declaration, and to chastise Smartmetric for violating the Court’s scheduling order.
(Docket No. 89). At the hearing on March 25, 2013, the Court instructed
Defendants to address the Gussin materials in their opposition to Smartmetric’s
Motion for Summary Judgment.
On March 28, 2013, counsel for Smartmetric filed a supplemental
declaration in opposition to the Ex Parte Application, stating that the deposition of
Mr. Gussin went forward on that day. (Docket No. 102). Accordingly, the Ex
Parte Application is DENIED AS MOOT, although the denial is without prejudice
to further motion practice regarding the propriety of the Gussin Report and Gussin
Declaration. The Court is not foreclosing the imposition of sanctions for the late
designation of Gussin and the untimely disclosure of the Gussin Report.
II. MOTION TO FILE UNDER SEAL
Plaintiff Smartmetric’s Motion for Partial Summary Judgment remains
scheduled for hearing on May 13, 2013. (Docket No. 100). However,
Smartmetric’s Motion to File under Seal is DENEID because it does not comport
with the Court’s instructions. (Docket No. 107). “In this circuit, we start with a
Case 2:11-cv-07126-MWF-AJW Document 112 Filed 04/17/13 Page 1 of 2 Page ID #:1437UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-11-7126-MWF (AJWx) Date: April 17, 2013
Title: Smartmetric, Inc. v. Mastercard International, Inc. et al.
strong presumption in favor of access to court records. The common law right of
access, however, is not absolute and can be overridden given sufficiently
compelling reasons for doing so.” Foltz v. State Farm Mut. Auto. Ins. Co., 331
F.3d 1122, 1135 (9th Cir. 2003) (citations omitted). The concern regarding access
is particularly acute in the case of dispositive motions like this one. Id. at 1136;
see also Cal. Rs. Ct. 2.550, 2.551 (discussing distinction between placing under
seal discovery documents and documents submitted in support of adjudication in
court). In the absence of the proper showing, the Court will not assume that a
document designated as “Confidential” pursuant to a Protective Order should be
protected from disclosure.
Smartmetric’s filing does not include any showing that the “Confidential”
materials contain trade secrets that cannot be publically disclosed, a showing the
Court specifically instructed counsel to make at the hearing held on March 25,
2013. And once again, Smartmetric attempts to file the entire memorandum and
expert declaration under seal. As the Court previously ordered, counsel for
Smartmetric must identify only those portions of the documents that specifically
include or refer to trade secrets for filing under seal. A copy of the documents
must also be filed electronically, with the trade secret portions redacted. Only
those portions should be redacted. The current filing instead seeks to seal the
entirety of the documents.
The Court orders Smartmetric to file the following within 3 days of the date
of this order: (1) an ex parte application offering a detailed good cause showing
why specific portions of the memoranda and the expert declaration ought to be
sealed; (2) a proposed, unredacted, under seal filing of the memoranda and the
expert declaration; and (3) a proposed redacted version of the memoranda and
expert declaration to be filed on CM/ECF should the Court approve the filing
under seal. The Court once again refers counsel to Local Rule 79-5.1 for
procedures regarding confidential records. The Court also refers counsel to this
Court’s Procedures available on the website for the Central District of California.
The hearing will remain scheduled for May 13, 2013, but the Court will issue a
separate minute order setting forth a briefing schedule after the Motion is properly
filed.
IT IS SO ORDERED.
Case 2:11-cv-07126-MWF-AJW Document 112 Filed 04/17/13 Page 2 of 2 Page ID #:1438