Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG03121510
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In the midst of a jury trial in a consumer class action, appellants Sprint Spectrum, L.P. and Wirelessco, L.P. (collectively Sprint) asked the court to seal certain testimony that had already been presented in open court and exhibits previously admitted into evidence, asserting that sealing was required to protect its trade secrets. After hearing, the court granted the motion in part, permitting partial redaction of certain exhibits, but otherwise denied the request. Sprint appeals the order to the extent it denied the motion to seal. We accept Sprint’s contention that the exhibits and evidence it wished the court to seal included trade secret information, but nevertheless conclude that the trial court acted within the bounds of its discretion in balancing the carrier’s interest in protecting its confidential and proprietary information against the public’s constitutionally-protected right to access civil trial records. We therefore affirm.
Background
This case against Sprint, challenging its policy of charging early termination fees (ETF’s) to customers cancelling service prior to expiration of defined contract periods, was coordinated in 2003 with similar actions against other wireless carriers. (In re Cellphone Termination Fee Cases (Super. Ct. Alameda County, 2003, JCCP No. 4332).) In May 2008, this case was severed and remanded for trial. A jury trial commenced May 12, 2008, and the jury returned a verdict with special findings on June 12, 2008. The outcome of the trial is not at issue in this appeal.
To contest plaintiffs’ claims that the ETF’s were unlawful liquidated damage provisions, Sprint sought to prove that its actual damages were substantially greater than the fees charged. Its trial evidence included information concerning Sprint’s costs, revenues, the frequency and timing of early terminations, and its efforts to collect ETF’s. It alleges that much of this information is confidential and proprietary, and constitutes trade secrets.
Before trial, Sprint submitted a joint trial brief which it asked the court to file under seal. Sprint also made motions in limine and asked the court to file some of those motions, supporting exhibits and supporting briefs under seal. As far as the appellate record discloses, Sprint did not initially ask the court to keep any testimony or exhibits received in evidence at trial under seal.
Sprint states in its opening brief, “Because of the volume of confidential documents produced in the litigation and potentially at issue at trial, the parties agreed to address confidentiality concerns in the context of individual documents and testimony, rather than en masse in a prophylactic fashion.” Sprint supports this assertion with a citation to the June 10, 2008, hearing on its first motion to seal, where the court stated, “[A]s I recall it, there was certainly something raised by Sprint with respect to the fact that there might be some confidential information and that that would be brought to the Court’s attention if there was some [¶]... [¶] concern at the time a topic was being raised. And I think the other day when that first came up, I think it might have been Mr. Gresham indicating, well, when we looked around and we only saw counsel here who were covered by the protective order so we didn’t say anything. Well, we have a public record that’s being created by a transcript.” We infer from the court’s statement that Sprint did not bring any motions to seal the trial record when, during trial, it presented the testimony and exhibits that are at issue in this appeal. Rather, as shall be explained, Sprint sought a sealing order only after the exhibits and testimony had been received in evidence at trial.
Sprint’s June 6, 2008 Motion to Seal
During the jury trial, on June 4, 2008, a news story appeared that quoted from plaintiffs’ opening statement. On June 5, 2008, Sprint then applied ex parte for an order temporarily sealing portions of the trial transcript that contained allegedly confidential, proprietary information. The court issued that order and on June 6, 2008, Sprint filed a noticed motion to seal that covered not only the trial transcript excerpts but also several trial exhibits. The court denied the motion by two orders, issued on June 11, 2008 and June 12, 2008, with the exception of information “from January 1, 2004, to the present” contained in Exhibits 522 and 755. The court’s ruling on the June 6 motion to seal is the subject of a separate pending appeal by Sprint. While the court’s rulings on this June 6 motion are not before us in this appeal, the court’s discussion of the requisite criterion for sealing of trial records and exhibits, and its evaluation of the competing considerations presented, is relevant to our disposition of this matter, as discussed post.
On June 13, 2008, Sprint filed a petition for a writ of mandate challenging the court’s June 11, 2008 ruling on its June 6, 2008, motion to seal. (Sprint Spectrum, L.P. v. Superior Court, Appeal No. A121794.) By order dated June 17, 2008, we denied the petition.
Sprint’s June 12, 2008 Motion to Seal
On June 12, 2008, Sprint filed a supplemental motion which is the subject of this appeal. Sprint sought to seal additional trial transcript excerpts and trial exhibits. On June 24, the court granted in part the supplemental motion to seal. The court ordered the sealing of Exhibits 600 (Sprint’s pricing methodology), 356 (Sprint/RadioShack chargeback data), and 368 (monthly recurring charge data for 2007). As to three exhibits Sprint characterizes as ETF Collectability Analysis (Exhibits 501, 528A, 866), the court granted the motion only as to information “from January 1, 2005, to the present.” The court found that information predating this period was “stale and has less commercial value.” As to an exhibit Sprint characterizes as California Collection Data (Exhibit 351), which contains data current through June 2005, and an exhibit Sprint characterizes as 2005 Churn Data (Exhibit 318), which contains data from most of 2005, the court denied the motion because the information was “stale.” The court also denied the motion to seal the declarations of a Sprint executive (Declaration of Bruce Pryor [Exhibit 319]) and an expert (Declaration of Christian Dippon [Exhibit 364]), and the related trial transcript excerpts, because the information was of a general historical nature or had already been disclosed in open court.
The jury rendered its verdict on the same day.
There is some overlap between the two motions to seal. The June 12, 2008, motion asked the court to seal Exhibit 522, but the court had already sealed that exhibit in response to the June 6 motion. The court denied the June 12 motion as to Exhibit 522 as moot. The June 12 motion also asked the court to seal portions of the June 4 transcript that had already been the subject of the June 6 motion. As we explain, the court denied the June 12 motion to seal these portions of the June 4 transcript in part because they were “the subject of Sprint’s previous motion to seal that was denied.”
As to Exhibit 368, the trial court ordered “that Sprint file a public redacted version on or before June 26, 2008. Sprint may redact information from January 1, 2005, to the present, as that information presumably has commercial value. Sprint may not redact information on or prior to December 31, 2004, as that information is stale and has less commercial value.” The exhibit, however, appears to include information only from 2007. Sprint does not challenge the court’s order as to Exhibit 368 on appeal. Therefore, we construe the court’s order as ordering the sealing of Exhibit 368 in its entirety.
The exhibit submitted for our review on appeal is marked “528” rather than “528A.” There is no contention that this exhibit is different from the exhibit reviewed by the trial court and we assume that they are identical.
On July 1, 2008, Sprint filed this appeal from the June 24 order. On July 2, 2008, it filed a petition for a writ of supersedeas, which we granted.
The petition and order were initially filed in Ayyad v. Sprint Spectrum, L.P., Appeal No. A121948. By order dated December 12, 2008, the documents were refiled in this appeal. Our order on the petition stays the public disclosure of the transcripts and exhibits sought to be sealed in Sprint’s June 12 motion until further order of this court or issuance of the remittitur in this appeal, whichever comes first.
Discussion
We are required to address, as was the trial court, the competing considerations of a party’s legitimate interest in protection of its proprietary information, and the public’s compelling interest in the openness and transparency of trial proceedings. We start from the premise that “[u]nless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “ ‘The rules recognize the First Amendment right of access to documents used at trial or as a basis of adjudication.’ [Citation.]” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 84.) It is undisputed that the documents at issue here were used at trial, and since they were received in evidence, were presumably relevant to the issues presented and therefore a basis of adjudication.
All rule references are to the California Rules of Court.
“[I]n general, the First Amendment provides a right of access to ordinary civil trials and proceedings....” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 (NBC Subsidiary).) “[O]pen trials serve to demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings [citation]; ‘[m]ore importantly,’ open trials provide a means, ‘akin in purpose to the other checks and balances that infuse our system of government,’ by which citizens scrutinize and ‘check’ the use and possible abuse of judicial power [citation]; and finally, ‘with some limitations’ [citation], open trials serve to enhance the truth-finding function of the proceeding [citation].” (Id. at pp. 1201-1202, quoting Justice Brennan’s concurring opinion in Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [public access to criminal trial]; see NBC Subsidiary, at p. 1211 [concluding same principles apply to civil trials].) “ ‘Popular attendance at trials, in sum, substantially furthers the particular public purposes of that critical judicial proceeding. In that sense, public access is an indispensible element of the trial process itself....’ [Citation.]” (NBC Subsidiary, at p. 1202.)
The right of public access, however, is not unrestricted. (NBC Subsidiary, supra, 20 Cal.4th at p. 1211.) “[T]he presumption of openness can be overcome upon a proper showing.” (Ibid.) Closure of civil trials is allowed if two factors are satisfied. (Id. at p. 1217.) “First, a trial court must provide notice to the public of the contemplated closure.... [¶] Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (Id. at pp. 1217-1218, fns. omitted.) These principles have been incorporated into rules 2.550 and 2.551 (former rules 243.1 & 243.2). (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298 & fn. 3 (Providian).) “With the passage of Proposition 59 effective November 3, 2004, the people’s right of access to information in public settings now has state constitutional stature.... (Cal. Const., art. I, § 3, subd. (b)[, par.] (1))....” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 597.)
Sprint asserts that protection of its trade secrets is an overriding interest that trumps the presumption in favor of public access. “The Legislature has defined trade secrets as ‘information, including a formula, pattern, compilation, program, device, method, technique, or process that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.’ (Civ. Code, § 3426.1, subd. (d).)’ ” (Providian, supra, 96 Cal.App.4th at p. 300.) Protection of trade secrets has been recognized as an interest that can support a motion to seal records in civil proceedings. (Id. at pp. 298-299 & fn. 3; see NBC Subsidiary, supra, 20 Cal.4th at p. 1222, fn. 46.)
Sprint first has the burden of establishing that the information it wished to seal is trade secret, a factual determination that is made by the trial court. (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1537; Providian, supra, 96 Cal.App.4th at pp. 300-301.) The trial court is entitled to consider the entire record before it and is not restricted to declarations submitted in support of a motion to seal. (Providian, at p. 301.) We review a trial court’s finding on trade secret status for substantial evidence. (Ibid.)
Sprint appears to argue however that this determination, if made in its favor either below or here, is the end of the analysis. It is not. The mere presence of claimed trade secrets does not automatically mandate confidentiality. (Providian, supra, 96 Cal.App.4th at p. 298.) The existence of confidential and proprietary content is merely a threshold requirement in assessing whether there is arguably an overriding interest supporting sealing. As the trial court recognized in its June 11, 2008 order, even if Sprint establishes the information it seeks to seal qualifies as trade secret, it still bears the burden of proving that, under the factors set forth in NBC Subsidiary, supra, 20 Cal.4th 1178 and rule 2.550, its interest in protecting the confidentiality of this information overcomes the public’s right to access the entire record of the civil trial and that there is a probability of prejudice absent sealing.
Confidentiality is mandated only in actions initiated pursuant to the Uniform Trade Secrets Act for misappropriation of trade secrets. (See Civ. Code, § 3426.5 [“In an action under this title, a court shall preserve the secrecy of an alleged trade secret....”].)
At oral argument, Sprint’s counsel appeared to suggest that the extent of the public interest, and therefore the weight to be accorded that interest in the ultimate balance, is dependent upon the nature of the content and that the data that Sprint seeks to protect here would be of little interest to members of the general public. We are aware of no authority for this proposition, and Sprint cites to none.
The determination of the scope of public access is committed to the trial court’s discretion. (Providian, supra, 96 Cal.App.4th at p. 299.) The party seeking a sealing order bears the burden of overcoming the presumption of public access. (Id. at p. 301.) We review that determination for abuse of discretion. (Id. at p. 299.)
I. Waiver
As a preliminary matter, we consider whether Sprint’s motion should have been denied because the records had already been released at the public trial by the time the motion was filed. (See Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1247 [“it makes little sense to seal information after the fact” once it has already been disseminated to the public]; Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1286.) Plaintiffs urge us to deny Sprint relief on appeal because the information it seeks to seal has already entered the public domain.
The trial court discussed the issue as follows: “During most, if not every, trial day in the Ayyad v. Sprint trial the Court observed that there were attorneys representing Verizon Wireless, AT&T Wireless/Cingular, and T-Mobile in the courtroom observing the proceedings. Those entities are all competitors of Sprint and are defendants in other cases that are part of [In re Cellphone Termination Cases, supra,] J.C.C.P. 4332. [¶] On June 5, 2008, the FCC announced that it was holding a hearing on June 12, 2008, concerning early termination fees. That public hearing concerned, in part, the subject matter of this lawsuit, specifically the issue of preemption.... Some of the evidence from... this trial was disclosed at the F.C.C. hearing or in the media relating to the F.C.C. hearing. [¶]... [The court reporter] has informed the Court that Verizon Wireless, AT&T Wireless/Cingular, and T-Mobile all requested daily trial transcripts of the Sprint trial.... [¶] The jurors were discharged on June 12, 2008. At that time the jurors were informed that they were now free to talk to anyone about the subject matter of the trial.”
At the June 20 hearing on the motion to seal, Sprint represented that it monitored who was in the courtroom during the presentation of evidence at trial and ensured that inside counsel for the other carriers were not present when confidential information was disclosed. Outside counsel for the carriers, who were present, were bound by a pretrial protective order not to disclose the information to inside counsel or executives of the carriers. Sprint also stated that it acted immediately to rectify the situation once it learned transcripts had been shared with the news media. On the fact that the jury had been discharged and told they were free to discuss the case, Sprint argued, “[W]e also note that the jury was instructed that they could not bring their notebooks, and they could not bring the binders that had been prepared for them with exhibits. Those stayed in the court. So they would have to have extraordinarily good memories to take anything away from the hearing... that would reveal significant portions of the confidential information that Sprint is contending should not be disclosed further, and should be sealed.”
That prohibition applied to documents produced in the litigation and marked “Confidential – Outside Counsel’s Eyes Only.” Of the materials Sprint sought to be sealed, all of the trial exhibits at issue in this appeal (Exhibits 866, 318, 501, 528A, 351, 368) except the two declarations (Exhibits 319, 364) bear this designation.
In its written order, the trial court concluded, “Based on Sprint’s reasonably prompt action and the evidence that the transcripts and exhibits have not been distributed to the public, the Court finds that... [it] may still seal the transcripts and exhibits at issue.”
Plaintiffs argue we should independently determine, as a matter of law based on undisputed facts in the record, that the information which the trial court declined to seal is already in the public domain, and affirm the order on that basis. We decline to do so. While the specific facts cited in the trial court order may be undisputed, the factual basis for the court’s ruling cannot be so narrowly construed. The court presided over the trial and thus had an extensive record from which to determine whether the precautions taken by counsel to protect its confidentiality interests during trial were adequate, and whether any lapses were excusable. We will not second guess the court’s judgment in this context, where it is particularly suited to make the assessment at issue. Critically, plaintiffs produce no evidence that specific information the trial court ordered sealed had already been disseminated to public sources from which it could not be withdrawn. However, Sprint’s belated action to protect its interest is not irrelevant to the rest of our analysis in this appeal. The trial court could reasonably take Sprint’s conduct into consideration when it balanced Sprint’s interests against the public’s right to access the records and exercised its discretion to define the scope of public access to the trial record.
II. ETF Collectability Analysis (Exhibits 501, 528A, 866)
As to the three exhibits that Sprint characterizes as ETF Collectability Analysis (Exhibits 501, 528A, 866), the court ordered only the most recent three and one half years of information kept under seal. Sprint argues the cutoff of protection at three and one half years was not supported by any evidence and thus was an abuse of discretion. As noted previously, we review a factual determination of trade secret status, or lack thereof, applying the substantial evidence standard, and review the decision to seal, or not seal, for abuse of discretion. (Providian, supra, 96 Cal.App.4th at p. 299.)
The court ruled: “Exhibit 501 (ETF monthly billing, write off, and collectability data January 2002-December 2005). SEALED. The Court ORDERS that Sprint file a public redacted version on or before June 26, 2008. Sprint may redact information from January 1, 2005, to the present, as that information presumably has commercial value. Sprint may not redact information on or prior to December 31, 2004, as that information is stale and has less commercial value.
In its June 11, 2008 order, the court observed that Sprint had failed to provide testimony or documentary evidence in support of its June 6, 2008 motion that would permit it to make the factual findings required for sealing. Sprint then filed, in connection with the motion at issue here, the declaration of Will Souder, Vice-President in Strategic Pricing. In its June 24, 2008 order, the trial court did not reference Souder’s declaration or make any express findings that the contested information would not qualify as trade secret, but instead noted in several instances that the older information was “stale” or had “less commercial value.” While we agree with Sprint that older information does not necessarily lose trade secret protection by virtue of being “stale,” we still conclude the trial court did not abuse its discretion in denying the motion to seal the information.
These exhibits consist of tables of monthly figures for ETF’s billed and collected from January 2002 to December 2007, along with the percentage of the fees that were collected in each month and for certain cumulative time periods. In his publicly filed declaration, Souder avers that the information contained is “proprietary because such collection data represents the ability and success of Sprint to collect ETF revenue along with actual collection rate figures that is not available to the public. It also shows Sprint’s bad debt write-off policies related to uncollected ETF revenue and collection policies.... If Sprint’s data is available to its competitors, the collection rates and bad debt treatment of ETF revenue, particularly as it relates to voluntary and involuntary churn, provide insight into Sprint’s strategy to manage bad debt, and is, therefore, competitively sensitive information. Additionally, collection of revenue, like all other non-disclosed financial data, provides profitability insight into Sprint.” No contradictory evidence was presented, and Plaintiffs have not drawn our attention to other evidence in the trial court record that impeached the declaration. Case law supports Sprint’s position that cost and profitability information such as that included in the ETF Collectability Analysis qualifies for trade secret protection. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451-1455 [listing cases] (Whyte).)
Although there is authority holding that trade secret information may lose its protection with the passage of time (see, e.g., Whyte, supra, 101 Cal.App.4th at pp. 1451-1452, cited by the trial court in its order), the loss of protection occurs only if the passage of time has stripped the information of current commercial value for competitors. In Whyte, the court rejected an argument that trade secret information that was less than two years old had lost its commercial value, finding the claim unsupported by the record. (Ibid.) Decisions Sprint cites from other jurisdictions are in accord. “Determination of when trade secret information becomes stale cannot be made by reference to a bright line rule and necessarily requires fact specific consideration.” (Synergetics, Inc. v. Hurst (8th Cir. 2007) 477 F.3d 949, 958 (Synergetics).) “[T]rade-secret status may continue indefinitely so long as there is no public disclosure. [Citations.]” (Enterprise Leasing Co. of Phoenix v. Ehmke (Ariz. 1999) 3 P.3d 1064, 1070 (Enterprise).) As to these three exhibits, we therefore assume, in the absence of contrary findings by the trial court, that the information for the periods prior to December 31, 2004, would still qualify as trade secrets, and our own examination of the exhibits supports this conclusion.
Nevertheless, the ultimate issue before the trial court was not whether the information in the exhibits was trade secret. Rather, the question it was required to decide was whether Sprint’s interest in protecting its trade secret information outweighed the public’s constitutionally-protected interest in access to civil trial proceedings and overcame the presumption of public access. The three lead cases cited by Sprint and discussed in the previous paragraph were trade secret misappropriation cases that did not raise First Amendment concerns. (See Whyte, supra, 101 Cal.App.4th at p. 1447; Synergetics, supra, 477 F.3d at p. 952; Enterprise, supra, 3 P.3d at p. 1066.) Once the courts in those cases decided the information deserved trade secret status, they had no further duty to balance that interest against the First Amendment interest in a public trial. Sprint cites three cases that did involve First Amendment balancing tests. (See Encyclopedia Brown Productions, v. Home Box Office (S.D.N.Y. 1998) 26 F.Supp.2d 606, 614 [1991 information afforded trade secret status in 1998, and documents sealed at trial]; Braintree Elec. Light Dept. v. Department of Energy (D.D.C. 1980) 494 F.Supp. 287, 291 [1973 information in 1980]; Bradburn Parent/Teacher Store, Inc. v. 3M (E.D. Pa., May 19, 2004, No. Civ.A. 02-7676) 2004 WL 1146665 [1994 strategic plan in 2004].) None of these cases are controlling authority here, and the fact that those trial courts, under the facts before them, exercised discretion in favor of sealing older trade secret information does not establish that a contrary decision would have been an abuse of discretion.
In Providian, a consumer class action against credit card issuers, the trial court’s decision to unseal documents filed in support of the class certification motion was affirmed, despite Providian’s claim that its confidential and proprietary information would be compromised. (Providian, supra, 96 Cal.App.4th at p. 292.) As here, Providian argued that the commercial data in its documents was “sufficiently sensitive and current that they should have been left protected against disclosure.” (Id. at p. 297.) The court held that the trial court was entitled to consider the entire record before it and to exercise its discretion in determining whether or not the defendants had demonstrated an overriding interest that would overcome the right of public access. (Id. at pp. 300-301.)
As reflected in both its June 11, 2008 and June 24, 2008 orders, the trial court here carefully balanced the sensitivity and value of Sprint’s confidential information against the public interest, granting protection to current information and denying it as to older information which the court found to be of less commercial value. The court could reasonably have determined that, in light of Sprint’s belated efforts to seal the information after disclosure of that information in a public forum, and the less current nature of the information, Sprint had not demonstrated a substantial probability of prejudice to its interests, or that an order that sealed the entire exhibits would not have been as narrowly tailored as required to protect Sprint’s interests. (Rule 2.550(d).) We stress that the trial court presided over the entire trial and could draw on its extensive familiarity with those proceedings to assess the probability of prejudice and the weight of Sprint’s trade secret interests when compared to the public’s interest in access to the record. Sprint has provided us with only a small portion of the trial record. We therefore cannot review the court’s determination in light of the whole record, and we will not second guess the court’s determination without a more particularized showing by Sprint that the information it belatedly sought to have sealed was materially different from other information publicly disclosed in its defense against plaintiff’s claims. It certainly cannot be said that the line drawn by the trial court here “exceeded the bounds of reason.” (Providian, supra, 96 Cal.App.4th at p. 299.) Sprint has not established an abuse of discretion by the trial court in refusing to seal information current before January 1, 2005, in Exhibits 501, 528A and 866.
III. California Collections Data (Exhibit 351)
As to the exhibit Sprint characterizes as California Collections Data (Exhibit 351), the court denied the motion to seal because the information in the exhibit, which covered the period 2001 to June 2005, was “stale.” Again, Sprint argues the cutoff of protection at three years was not supported by any evidence and thus was an abuse of discretion. We disagree.
The court ruled: “Exhibit 351 (ETF billing and collection data 2001-2005) – Not sealed. This is stale information.”
Our analysis of this ruling is similar to our analysis of the court’s ruling on the ETF Collectability Analysis. Exhibit 351 consists of estimates of Sprint’s ETF charges (net of credits) to California subscribers, ETF revenue from California subscribers, and number of California subscribers who paid ETF’s, for the years 2001 to 2004 and the first six months of 2005. Sprint describes the proprietary nature of the information in exactly the same terms as the ETF Collectability Analysis. We agree that the information sheds some light on Sprint’s costs and profitability and thus generally qualifies as trade secret information. The trial court did not find otherwise. For the reasons stated with respect to the ETF Collectability Analysis, however, we conclude the trial court did not abuse its discretion in denying the motion to seal as to information before January 1, 2005.
The only difference in the court’s ruling on the ETF Collectability Analysis and its ruling on the California Collection Data was that the court did not seal information in the latter exhibit that covered the first six months of 2005. This difference in approach does not establish an abuse of discretion. The court did not have to apply the exact same criteria to each exhibit. The court’s assessment of what information was too stale to overcome the presumption of public access with respect to Exhibit 351 was roughly equivalent as to the two sets of exhibits. Therefore, Sprint has not established an abuse of discretion in the court’s denial of the motion as to Exhibit 351.
IV. Churn Data (Exhibit 318)
As to the exhibit Sprint characterizes as 2005 Churn Data (Exhibit 318), the court denied the motion to seal because the information in the exhibit, which apparently covered the period January to November 2005, was stale. Again, Sprint argues the cutoff of protection, in this case at less than three years, was not supported by any evidence and thus was an abuse of discretion. We disagree.
The court ruled: “Exhibit 318 (Nextel churn data from 2005) – Not sealed. This is stale information. Whyte v. Schlage Lock Co.[, supra,] 101 Cal.App.4th 1443, 1451-1452.”
The exhibit is a detailed analysis of the rates at which Sprint accounts “churned,” that is, the rates at which Sprint customers terminated their contracts early. As described by Souder, the exhibit lists data “by month with a large amount of detail for the purpose of analyzing customer behavior on both the iDen and CDMA networks. The data is a roadmap to what types of customers are most likely to churn and, most importantly, the exact month they will churn. If publicly disclosed, this data will provide information to Sprint’s competitors and the public explaining when Sprint is most vulnerable for customers to churn, along with the profile of those customers. The business customer breakdown provides a clear picture of vulnerability in the business segment because business churn behavior results in large numbers of handset deactivations. When and whether a Sprint/Nextel business customer is willing to pay the alternative ETF payment instead of remaining in the contract is extremely useful competitive knowledge. Even though this document contains 2005 data, many of the bundled pricing elements utilized by Sprint in 2005 remain in effect today. As a result, this data is still useful for modeling and would provide competitors insight into Sprint’s vulnerabilities with respect to its current business and consumer subscribers.” Our review of the document confirms Souder’s description.
We accept Sprint’s argument that the information in this exhibit was trade secret information that had not lost its trade secret status by the passage of time. That is, the exhibit contains confidential information which could potentially be of current commercial value to Sprint’s competitors. Once again, however, the court needed to further find that the value of this information to Sprint outweighed the public’s interest in obtaining access to the information. The trial court was in the best position to determine how critical this information was to the public’s structural role in the civil trial process: its role in assessing how well justice was meted out and whether the factfinding process at trial was accurate. (See NBC Subsidiary, supra, 20 Cal.4th at pp. 1201-1202.) Sprint has not provided enough context for us to review this determination in light of the entire trial record. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [“Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. [Citations.]”].) Therefore, Sprint has failed to establish that the trial court abused its discretion in refusing to seal the exhibit.
V. Pryor Declaration (Exhibit 319)
The trial court refused to seal the declaration of Sprint Vice-President of Marketing Bruce Pryor, stating the declaration concerned “events of 2000 and general statements regarding status as of 3Q 2006.” Sprint argues the court erred because decisionmaking processes are entitled to trade secret protection and because the declaration included specific, not only general, information about the company. We find no error.
The court ruled: “Exhibit 319 (Pryor Dec. regarding Sprint business practices – signed 1/26/07) – Not sealed. Concerns events of 2000 and general statements regarding status as of 3Q 2006.”
Sprint argues in Souder’s declaration that this exhibit “contains the various elements that Sprint considers prior to making a pricing decision. This decision-making process, and the various factors that go into it, constitutes proprietary and competitively sensitive information.” The court reasonably concluded that Pryor’s discussion of the decisionmaking process was too general to give rise to a substantial probability of prejudice. Common sense would generate the list of factors Pryor states that Sprint takes into account when it sets a price, and Pryor does not disclose any more specific information, such as the relative weight Sprint gives to the various factors or a mathematical formula for setting a price, that might give other carriers a competitive advantage if disclosed.
Sprint argues on appeal that the declaration contains specific financial information that was not acknowledged by the trial court. We have reviewed the declaration and agree it includes specific information about the termination patterns of Sprint subscribers and about Sprint’s profit margin. However, Sprint did not ask the trial court to seal the declaration on the ground that it contained this specific financial information. Therefore, the court did not abuse its discretion in failing to seal the declaration on this ground. (See also Ward v. Taggart (1959) 51 Cal.2d 736, 742 [ordinarily Court of Appeal will not consider an argument first raised on appeal].)
VI. Transcript Excerpts (May 19 and June 4, 2008)
The trial court refused to seal the excerpts from the May 19 and June 4, 2008, trial transcripts because they contained only “general historical information not likely to be of current commercial value.” Sprint argues the court erred because transcripts included specific and not only general information about the company. We again find no error.
The court ruled: “The May 19, 2008, testimony at 79:22-26 (the range of Sprint’s Cost Per Gross Add over the class period) – Not sealed. This is general historical information not likely to be of current commercial value.
The specific information disclosed in the May 19, 2008 transcript excerpt was the cost of adding one new customer at the time it introduced ETF’s in 2000. The trial court ruled this historical information, which was at least eight years old at the time of trial, was not likely to be of current commercial value. The court had heard extensive testimony about the evolution of the carriers’ early termination fee practices over time and was in a better position to make this assessment than this court, particularly when we do not have access to most of the trial transcript. We find no abuse of discretion in this ruling.
The specific information disclosed in the June 4, 2008, transcript excerpts was Sprint’s monthly recurring cost revenue number. We have already concluded that the trial court did not abuse its discretion in refusing to seal Exhibit 318, which includes information about Sprint’s monthly costs per subscriber. It follows that similar information disclosed in another piece of evidence did not have to be sealed by the trial court. Moreover, portions of the June 4 trial transcript that are in the record but that Sprint does not seek to seal seem to indirectly disclose the same information. Further and dispositively, these transcript excerpts were the subject of a separate motion and possibly motion for reconsideration, which are the subjects of separate appeals before this court. Review of the court’s refusal to seal the transcripts in this appeal would constitute an improper collateral attack on those orders, which are subject to review only in those pending appeals.
VII. Dippon Declaration (Exhibit 364)
The trial court refused to seal the declaration of Sprint’s expert witness Christian M. Dippon because the declaration contained “[d]ata concerning the class” that was “discussed extensively in open Court.” Sprint contends on appeal that only half the declaration concerned the size of the class, and the second half of the declaration disclosed Sprint’s monthly recurring charges, information that was ignored by the trial court. Sprint, however, does not demonstrate that the latter information was not relevant to the class certification or that it was not discussed extensively in open court. For example, Sprint does not produce the transcript of the class certification hearing to demonstrate that the monthly recurring charge data was not discussed extensively in open court. Therefore, we cannot conclude that the trial court abused its discretion in declining to seal the declaration.
The court ruled: “Exhibit 364 (Dippon Dec regarding Sprint data) – Not sealed. Data concerning the class. This was discussed extensively in open Court.”
Disposition
The June 24, 2008 order denying in part Sprint’s supplemental motion to seal portions of the trial transcript and certain exhibits is affirmed. Sprint shall pay plaintiffs’ costs on appeal.
We concur: Jones, P. J., Needham, J.
Sprint appealed the June 11, 2008 order (Ayyad v. Sprint Spectrum, L.P., Appeal No.A121948) and filed a petition for a writ of supersedeas (Sprint Spectrum, L.P. v. Ayyad, Appeal No. A121870). By order dated June 23, 2008, we denied the supersedeas petition, and the appeal is awaiting our review.
In January 2009, Sprint filed an appeal from an order denying reconsideration of the June 6 2008, motion to seal. (Ayyad v. Sprint Spectrum, L.P., Appeal No. A124082.) That case is not yet fully briefed.
“Exhibit 528A (ETF monthly billing, write off, and collectability data January 2002-December 2007). SEALED. The Court ORDERS that Sprint file a public redacted version on or before June 26, 2008. Sprint may redact information from January 1, 2005, to the present, as that information presumably has commercial value. Sprint may not redact information on or prior to December 31, 2004, as that information is stale and has less commercial value. [¶]... [¶]
“Exhibit 866 (ETF monthly billing, write off, and collectability data January 2002-December 2007.). SEALED. The Court ORDERS that Sprint file a public redacted version on or before June 25, 2008. Sprint may redact information from January 1, 2005, to the present, as that information presumably has commercial value. Sprint may not redact information on or prior to December 31, 2004, as that information is stale and has less commercial value.”
“The June 4, 2008, testimony at 1409:28-1410:19, 1422:2-7, 1425:2-11, and 1428:23-1429:1 (Sprint’s average MRC revenue in California for the class period) – Not sealed. This is general historical information not likely to be of current commercial value and was the subject of Sprint’s previous motion to seal that was denied.”