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CAUSE NO.

2016-CI-06300

TITLE SOURCE, INC., § IN THE DISTRICT COURT OF


§
Plaintiff, §
§
§
vs. § BEXAR COUNTY, TEXAS
§
HOUSECANARY, INC., §
f/k/a CANARY ANALYTICS, INC., §
§
Defendant. § 73RD JUDICIAL DISTRICT

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL RECORDS

TO THE HONORABLE DISTRICT COURT:

Plaintiff Title Source, Inc. files this Opposition to Defendant HouseCanary, Inc.’s Motion

to Seal Records (the “Motion”), asking this Court to deny HouseCanary’s motion in its entirety.

Actions speak louder than words. The documents at issue in the Motion were freely used

in open court as trial exhibits—in many cases, by HouseCanary itself, to successfully advance its

core claims—without the slightest effort to seal or otherwise protect them against public

disclosure. HouseCanary now asks this Court to erase 30 key exhibits from the public record,

claiming that the value of the information therein depends on its confidentiality and that

publication of the exhibits would “significantly harm[]” HouseCanary. Mot. 6. HouseCanary’s

own behavior at trial directly belies these assertions. If these documents were truly as sensitive

as HouseCanary now claims, then HouseCanary would have taken the necessary steps to protect

them before they were introduced at trial—as expressly provided by the Court’s Protective Order

and by Texas Rule of Civil Procedure 76a, and just as HouseCanary tried to do for other

confidential documents. Those failures are telling, and they doom the Motion.

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 1


HouseCanary’s cursory recitation of the Rule 76a standard cannot overcome the fatal

flaws in its argument. Indeed, HouseCanary never engages these critical issues, and its failure to

take even the smallest step to protect the exhibits against public disclosure at trial cannot be

disputed. HouseCanary instead tries to imply that the jury’s findings on trade secrets somehow

compel the sealing of these exhibits after the fact. But a jury verdict cannot, of course, alter the

sealing standard under Texas law or undo HouseCanary’s own actions. The meager arguments

offered in the Motion do not surmount—and certainly not “clearly” so—Rule 76a’s

“presumption of openness.” Tex. R. Civ. P 76a(1).

SUMMARY OF TITLE SOURCE’S OPPOSITION

HouseCanary’s Motion is without merit and should be denied on the following grounds:

I. HouseCanary failed to follow the procedure laid out in the Protective Order

for sealing confidential materials. Under the plain terms of the Court’s Protective Order, a

party that wished to present confidential materials at trial without making those materials part of

the public record was required to obtain a temporary sealing order, followed by a motion to

permanently seal the document within five business days. HouseCanary did not even attempt to

follow that procedure, and makes no effort to explain why not.

II. HouseCanary failed to satisfy the public notice requirements of Rule 76a and

cannot demonstrate any “specific, serious and substantial interest” that “clearly

outweighs” the presumption of openness. As a threshold matter, HouseCanary failed to

comply with the mandatory public notice requirements of Rule 76a, because its notice fails to

provide a “specific description” of the documents it seeks to seal. The Motion should be denied

for that reason alone. Moreover, because HouseCanary made zero effort to seal the exhibits

prior to their use in open court, they are now a matter of public record. The Motion fails to

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grapple with that reality, instead assuming an alternate universe in which sealing is necessary to

“maintain[] confidentiality.” Mot. 6 (emphasis added). But the documents at issue have already

been “revealed to . . . the public.” Id. at 4. As a result, HouseCanary cannot demonstrate any

“specific, serious and substantial interest” that “clearly outweighs” the presumption of openness,

as required by Rule 76a.

III. HouseCanary cannot overcome the public’s common law and First

Amendment right of access to court records. HouseCanary does not—because it cannot—

demonstrate the compelling interest necessary to overcome the public’s common law and First

Amendment right of access to court records. HouseCanary gave away any such interest long

ago. And “the bell, once rung, cannot be unrung. Once in the public domain, the [alleged] trade

secret must remain in the public domain.” McClain v. State, 269 S.W.3d 191, 197 (Tex. App.—

Texarkana 2008, no pet.).

Having elected to offer into evidence and wield many of these documents in open court

to advance its own interests, HouseCanary must live with the consequences. The Protective

Order, Rule 76a, and the public right of access all make clear that this information must remain

on the public record—where HouseCanary put it, and where it belongs.

BACKGROUND

On September 12, 2016, the Court entered a Stipulated Protective Order that was drafted

and agreed to by the parties. The Protective Order was designed to protect certain documents

from “public disclosure” during discovery. Ex. 1, Stipulated Protective Order 1. Under the

Protective Order, a producing party was required to affix to the relevant document a

“Confidential” or “Highly Confidential––Attorneys’ Eyes Only” stamp. Id. ¶ 4.2(a).

3
The Protective Order expressly states that material designated as confidential during

discovery is not protected from public disclosure—absent an additional sealing order—if it is

used in open court at trial. The Order provides that “the protections conferred by this Order do

not cover . . . any information . . . [that] becomes part of the public domain . . . including

becoming part of the public record through trial or otherwise.” Id. ¶ 2. Thus, confidential

documents filed in open court lose their protection unless they are submitted under seal.

Under the plain terms of the Protective Order, a party that wished to present confidential

materials at trial without making those materials part of the public record was required to obtain

“a court order authorizing the sealing of the specific Protected Material at issue.” Id. ¶ 11.3. The

Protective Order itself would operate as a “temporary sealing order.” Id. But for that material to

remain under seal, “the party desiring to maintain the confidentiality of such material” was

required to “file a motion to seal the information pursuant to Rule 76a within five (5) business

days” of filing the document under temporary seal. Id.

The parties were well aware that the Protective Order required the filing of a separate

motion to seal in order to maintain confidentiality over documents used at trial. During the trial,

Title Source adhered to this procedure and moved for a temporary and permanent sealing order

to protect Title Source’s proprietary computer source code for its MyAVM model, seeking to

protect this confidential source code before Dr. Claude Wang testified regarding MyAVM. See

Ex. 2, Mot. to Protect Trade Secrets & Seal Docs. HouseCanary opposed the motion, contending

that there is “a presumption in favor of allowing all parties to have access to the trade secret

evidence.” Ex. 3, Opp. to Mot. to Protect Trade Secrets & Seal Docs. 1. On February 28, 2018,

the Court granted Title Source’s motion in part, sealing “[a]ll records and exhibits of Dr. Wang’s

testimony concerning the Source Code, his research for the Source Code . . . and all exhibits

4
containing the Source Code itself.” Ex. 4, Order on Mot. to Protect Trade Secrets & Seal Docs.

¶ 2. The Court further ruled that the courtroom would be closed during Dr. Wang’s testimony,

and that his testimony “shall not be disclosed to anyone except attorneys for the parties and their

experts in this case and shall not be made public or used for any purpose besides litigating this

case.” Id. ¶¶ 3–5. The Court then ensured that the courtroom was cleared of members of the

public during discussions of Title Source’s source code. See, e.g., Trial Tr. 2/28/2018 AM

162:3–17; Trial Tr. 2/28/18 PM 6:4–15.

HouseCanary likewise understood the importance of requesting that confidential material

be sealed prior to its use at trial. For example, HouseCanary requested that the Court temporarily

seal a document reflecting HouseCanary’s source code before it was presented in the courtroom.

The Court granted that request and closed the courtroom during discussion of HouseCanary’s

source code, as it had done for the discussion of Title Source’s source code. See, e.g., Trial Tr.

3/1/2018 AM 128:3–11.

By contrast, HouseCanary never asked that any of the exhibits it now seeks to seal—or

any other documents—be either temporarily or permanently sealed before they were introduced

at trial. Nor did it request that the courtroom be closed during any other portion of the trial.

Instead, these exhibits were freely referenced, presented, and discussed in open court. And with

the sole exception of PX193 (a data vendor contract that was never mentioned by either side),

every single one of these exhibits was admitted into evidence either by HouseCanary itself or

without any objection from HouseCanary. See App.; Trial Tr. 1/26/2018 59:20–61:17, 155:7–

156:2. Moreover, HouseCanary relied heavily on several of these exhibits to support its claims.

For example, PX64––an email attaching House Canary’s “data dictionary”—was referenced in

HouseCanary’s opening statement and discussed repeatedly by several witnesses in open court.

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See App. 1–2. Similarly, DX759—a document describing House Canary’s “similarity score”

and “valuation suitability score”—was repeatedly discussed by both parties throughout the trial.

Id. at 3. Indeed, with the exception of one duplicate exhibit,1 all the exhibits that relate to

HouseCanary’s “trade secrets” were discussed in open court throughout the trial, including by

HouseCanary itself.

On April 26, 2018—43 days after the trial was concluded—HouseCanary filed its

Motion, claiming that certain of the trial exhibits (the “Exhibits”) that it previously allowed to be

publicly disclosed are so sensitive that they cannot remain available to the public. The Motion

breaks down the Exhibits into a category of documents that supposedly “reflect” HouseCanary’s

purported “trade secrets”2 and three other categories of purportedly “confidential” and

“proprietary” business and financial information comprising financials,3 contracts,4 and a board

presentation.5 Mot. 3–5.

ARGUMENT

HouseCanary claims that its interest in retroactively sealing the Exhibits is powerful

enough to overcome the longstanding rule that court records should be open to the public. The

best test of that assertion is not what HouseCanary says, but what it did. At trial, HouseCanary

never treated the Exhibits as confidential—to the contrary, it freely used many of those Exhibits

1
DX835, which HouseCanary pre-admitted into evidence, includes the same material that was
attached to PX49 and PX64—both of which were used at trial. See App. 3, 4.
2
DX95, DX342, DX561, DX759, DX800, DX835, PX49, PX64.
3
DX633/PX337, PX22, PX24, PX36, PX390.
4
DX93/PX59, DX239/PX154, DX808/PX9, DX1011/PX127, DX1012/PX128,
DX1013/PX169, DX1014/PX170, DX1015/PX267, DX1016/PX129, PX40, PX62, PX193,
PX386, PX388, PX389, PX395. HouseCanary’s pairing of DX239/PX154 appears to be in
error, as DX239 and PX154 are different documents.
5
PX100.

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in open court to support its claims, and never objected to the admission or Title Source’s use of

the others. Although the Protective Order spells out a specific procedure for sealing confidential

material used at trial, HouseCanary never even tried to use that procedure to seal the Exhibits—

even though it did ask to seal other material—before they were publicly revealed. The Protective

Order, Rule 76a, the common law right of public access, and the First Amendment each clearly

prevent HouseCanary from retroactively sealing court documents that it voluntarily placed in the

public record. The Motion must be denied.

I. HouseCanary’s Motion Should Be Denied Because It Violates the Plain Terms of the
Protective Order

HouseCanary failed to comply with the requirements of the Protective Order for

maintaining the confidentiality of documents used at trial.

It is undisputed that HouseCanary never filed any motion to seal the Exhibits prior to

their disclosure in open court. It was not until six weeks after trial ended—long after the

Exhibits were used at trial and the Protective Order’s five-day window to move for permanent

sealing expired—that HouseCanary filed the instant Motion. HouseCanary offers no excuse for

its failure to seal the Exhibits before they were disclosed at trial—even though it certainly knew

how to do so, as evinced by HouseCanary’s request to seal information about its source code

before that information was used in open court.

HouseCanary instead tries to confuse the issue by insinuating that the mere fact that the

Exhibits were marked as “Confidential” or “Highly Confidential—Attorneys’ Eyes Only” during

discovery somehow operated to preserve confidentiality during trial. See Mot. 2–3. That is

wrong. Those designations were made pursuant to the Protective Order’s provisions regarding

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confidentiality in the discovery process, not confidentiality at trial.6 To keep documents

admitted into evidence at trial out of the public realm, the Protective Order required a motion to

seal within five business days of submitting the document under temporary seal. See Ex. 1

¶ 11.3 (“party desiring to maintain the confidentiality” of a trial record must file separate motion

“within five (5) business days” of disclosure). HouseCanary never made such a motion.

The Motion therefore fails under the plain terms of the Protective Order, and should be

denied in its entirety for that reason alone.

II. HouseCanary’s Motion Also Fails Under Rule 76a’s Procedural and Substantive
Requirements

HouseCanary’s public disclosure of the Exhibits also bars it from retroactively sealing

these public court records under Rule 76a.

Rule 76a governs the sealing of “court records,” which are broadly defined to include “all

documents of any nature filed in connection with any matter before any civil court,” with certain

exceptions not relevant here. Tex. R. Civ. P. 76a(2)(a) (emphasis added). The Exhibits at issue

qualify as “court records,” as HouseCanary itself recognizes by moving to sealing them under

Rule 76a. See Mot. 5–6 (moving to seal under Rule 76a). And “court records . . . are presumed

to be open to the general public and may be sealed only” if HouseCanary proves, among other

things, “a specific, serious and substantial interest which clearly outweighs . . . this presumption

of openness.” Tex. R. Civ. P. 76a(1); see also id. 76a(7) (“[T]he burden of making the showing

6
Indeed, a protective order that allowed a party to file documents under seal at trial merely
because they were marked “confidential” during discovery would violate Rule 76a. See
Clear Channel Commc’ns, Inc. v. United Servs. Auto. Ass’n, 195 S.W.3d 129, 136 (Tex.
App.—San Antonio 2006, no pet.) (rejecting protective order that directed clerk to file
documents under seal on the basis that they were marked “confidential” in discovery without
complying with motion to seal requirements under Rule 76a).

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required by paragraph 1, shall always be on the party seeking to seal records.”). HouseCanary

cannot carry that heavy burden.

For starters, HouseCanary has not met Rule 76a’s strict public notice requirements.

Under Rule 76a(3), any party moving to seal records is required to post and file a “public notice”

containing “a brief but specific description of . . . the records which are sought to be sealed.”

“Rule 76a by its very terms operates to benefit the public at large and not just the party litigants.”

Chandler v. Hyundai Motor Co., 844 S.W.2d 882, 883 (Tex. App.—Houston [1st Dist.] 1992, no

writ). The “specific description” requirement ensures “that the public can immediately

determine the subject of the proceeding,” to better inform decisions by members of the public

about whether to oppose sealing. Lloyd Doggett & Michael J. Mucchetti, Public Access to

Public Courts: Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643, 679 (1991) (“A

more particularized description is necessary to further the Rule’s purposes; it must explain why

sealing is sought and what type of records are involved without endangering the alleged secret.”).

The notice HouseCanary posted does not include any “specific description” of the records

it seeks to seal—instead, the notice merely lists exhibit numbers. Ex. 5, Public Not. of Mot. to

Seal ¶ 3. HouseCanary has thus failed to comply with the mandatory notice requirements of

Rule 76a(3). The Motion can and should be denied for that threshold reason alone. See Stroud

Oil Props., Inc. v. Henderson, 2-03-003-CV, 2003 WL 21404820, at *1 (Tex. App.—Fort Worth

June 19, 2003, pet. denied) (reversing sealing order when the notice “did not give a specific

description of the documents that were sought to be sealed”).

Moreover, even if HouseCanary had satisfied the procedural requirements of Rule 76a, it

has failed to make the necessary substantive showing to preclude access to public records: a

“specific, serious and substantial interest which clearly outweighs . . . th[e] presumption of

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openness.” Tex. R. Civ. P. 76a(1); see Boardman v. Elm Block Dev. Ltd. P’ship, 872 S.W.2d

297, 299 (Tex. App.—Eastland 1994, no writ) (a movant must satisfy “the heavy burdens” of

Rule 76a “in order to secure an order sealing court records”). The entirety of HouseCanary’s

cursory argument is that the Exhibits it belatedly seeks to seal purportedly contain “trade secrets”

and other “sensitive financial and business information.” Mot. 6. HouseCanary further posits

that documents containing supposedly confidential business and financial information must also

be sealed as a matter of law. Id. Both claims are erroneous.

Courts routinely (and correctly) refuse to seal trade secrets or other supposedly

confidential materials that have been freely discussed in open court or admitted into evidence

without objection. As a matter of blackletter law, publicly disclosing information in open court

bars the discloser from later claiming that the information is confidential. “It is a well-

established principle of American jurisprudence that the release of information in open trial is a

publication of that information and, if no effort is made to limit its disclosure, operates as a

waiver of any rights a party had to restrict its further use.” Level 3 Commc’ns, LLC v. Limelight

Networks, Inc., 611 F. Supp. 2d 572, 583 (E.D. Va. 2009) (internal quotation marks omitted).7

This principle is embodied in “the rule in Texas that the protections afforded by a privilege are

waived by voluntary disclosure of the privileged documents.” Jordan v. Court of Appeals, 701

S.W.2d 644, 649 (Tex. 1985); see also Stroud Oil Props., 2003 WL 21404820, at *3 (Tex.

7
See also Littlejohn v. Bic Corp., 851 F.2d 673, 680 (3d Cir. 1988) (rejecting confidentiality
protections for documents, including purported trade secrets, on the ground that “the release
of information in open court ‘is a publication of that information and, if no effort is made to
limit its disclosure, operates as a waiver of any rights a party had to restrict its future use’”);
In re Cont’l Ill. Secs. Litig., 732 F.2d 1302, 1314–15 (7th Cir. 1984) (public disclosure in
court waives confidentiality); Nat’l Polymer Prods. v. Borg-Warner Corp., 641 F.2d 418,
421 (6th Cir. 1981) (same).

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App.—Fort Worth June 19, 2003, pet. denied) (explaining that parties “waived any alleged

privileged information when they voluntarily disclosed it in open court”).

The rule that confidentiality protections are waived by voluntary disclosure applies with

particular force where, as here, a party failed to comply with the provisions of a protective order.

Courts have held that material cannot be sealed under Rule 76a when the movant ignored

confidentiality procedures in a protective order. Simply put: “[N]oncompliance with the

[protective] order [is] intentional conduct inconsistent with claiming confidentiality.” Compaq

Comput. Corp. v. Lapray, 75 S.W.3d 669, 675 (Tex. App.—Beaumont 2002, no pet.) (rejecting

sealing motion under Rule 76a for purported “trade secrets” when party failed to seal them

according to the protective order’s procedures); see also Volvo Car Corp. v. Marroquin, 13-06-

00070-CV, 2009 WL 3647348, at *3–4 (Tex. App.—Corpus Christi Nov. 5, 2009, pet. denied)

(materials could not be sealed where protective order required separate motion to protect

documents disclosed at trial, and party failed to make such a motion or otherwise limit disclosure

of purported trade secrets in open court).

This waiver-by-disclosure rule squarely applies not only to HouseCanary’s financial and

business documents, but also to the documents supposedly containing HouseCanary’s trade

secrets. “It is self-evident that the subject matter of a trade secret must be secret.” Luccous v.

J.C. Kinley Co., 376 S.W.2d 336, 338 (Tex. 1964) (emphasis added). Courts therefore reject

arguments that “if it’s a trade secret, it must be sealed as a matter of law.” Compaq, 75 S.W.3d

at 674. The owner of a purported trade secret “will lose his secret by its disclosure unless it is

done in some manner by which he creates a duty and places it on the other party not to further

disclose.” Furr’s Inc. v. United Specialty Advert. Co., 385 S.W.2d 456, 459 (Tex. Civ. App.—El

Paso 1964, writ ref’d n.r.e.); see Interox Am. v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir.

11
1984) (“One who voluntarily discloses information or who fails to take reasonable precautions to

ensure its secrecy cannot properly claim that the information constitutes a trade secret.”).

Thus, information that is disclosed on the public record cannot be said to constitute a

trade secret, whatever its prior status. See Tewari De-Ox Sys., Inc. v. Mountain States/Rosen,

L.L.C., 637 F.3d 604, 612 (5th Cir. 2011) (information that is publicly disclosed is not a trade

secret); see also Sw. Research Inst. v. Keraplast Techs., Ltd., 103 S.W.3d 478, 482 (Tex. App.—

San Antonio 2003, no pet.) (“no trade secret protection is available when the material or

procedure at issue has been publicly disclosed”). “Once in the public domain, the [alleged] trade

secret must remain in the public domain.” McClain, 269 S.W.3d at 197.

HouseCanary implies that the jury’s findings that the data dictionary, similarity score,

and valuation suitability score constitute trade secrets8 somehow trumps this body of authority.

See Mot. 4. But a jury verdict cannot, of course, change the law of Rule 76a or retroactively cure

HouseCanary’s failures to follow proper procedures at trial. And nothing in HouseCanary’s

Motion explains how the Exhibits actually reveal any trade secret. In any event, regardless of

whether the Exhibits might once have been considered confidential, their subsequent public

disclosure at trial stripped them of any trade secret status or other confidentiality protection. See,

e.g., Level 3, 611 F. Supp. 2d at 583 (use “of information in open trial . . . operates as a waiver of

any rights a party had to restrict its further use”). Here, the Exhibits relating to the alleged trade

secrets were all offered up as evidence and discussed at trial by HouseCanary itself (with the

exception of the duplicate document), making the case for the loss of protected status all the

more powerful.

8
Title Source does not believe that these findings are legally or factually supportable, and will
submit further briefing on these issues in due course.

12
For all these reasons, HouseCanary’s “interest in maintaining secrecy does not ‘clearly

outweigh’ the presumption of openness” under Rule 76a. Volvo Car Corp., 2009 WL 3647348,

at *4. HouseCanary freely discussed and publicly disclosed the Exhibits throughout the trial—

and that bell “cannot be unrung.” McClain, 269 S.W.3d at 197.

III. The First Amendment and the Common Law Right of Public Access Prohibit
HouseCanary’s Attempt To Remove the Exhibits From the Public Court Record

Even if the Protective Order, Rule 76a, and the waiver of any confidentiality or “trade

secret” rights did not defeat the Motion—and they do—the right of public access to open court

records separately precludes HouseCanary’s efforts to erase the Exhibits from the trial record.

“Because public access is a first principle of judicial decision-making, courts recognize a

strong presumption favoring public access to all judicial records and documents.” In re Doe, 501

S.W.3d 313, 338 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Ashpole v. Millard,

778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no writ) (“Courts have long

recognized the general right of the public to have access to judicial records.”). This

“presumption” of court openness has been expressed in a variety of contexts, including, as

HouseCanary previously recognized, in the Trade Secrets Act. See Ex. 3, Opp. to Mot. to Protect

Trade Secrets & Seal Docs 1 (noting that the Trade Secrets Act contains a “presumption” in

favor of allowing broad access to “trade secret evidence”).

The “strong presumption” of public access to judicial records “is rooted in both the

common law and the First Amendment.” Doe, 501 S.W.3d at 338. But “[i]rrespective of the

particular basis underlying the right of access to judicial records,” that right “may be abrogated

only in unusual circumstances.” Id. at 339 (internal quotation marks omitted).

Specifically, “in order to pass constitutional muster and overcome the presumption of

openness, a trial court must: (1) identify an overriding or compelling interest; (2) make findings,

13
sufficiently specific for review, that the exclusion of the public and/or media is essential to

preserve higher values; and (3) consider whether alternatives to total exclusion or closure are

available in order to narrowly tailor the solution to serve the identified interest or value.” Hous.

Chronicle Pub. Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, no

writ); see also id. at 106 (this is “the minimum” showing that must be made to seal public court

records under the U.S. Constitution). Where, as here, much of the “the information at issue . . .

was introduced in open court during a public court session, the burden of showing that the

information should be stricken from the public record is especially high.” Kroy IP Holdings,

LLC v. Safeway, Inc., 2:12-CV-00800-WCB, 2015 WL 432012, at *3 (E.D. Tex. Feb. 2, 2015).

HouseCanary’s Motion does not come close to meeting that exacting standard. It

identifies no “countervailing interests heavily outweigh[ing] the public interests in access” to

these public records, and no reason to believe that sealing these records is “narrowly tailored to

serve” any such compelling interest. Doe, 501 S.W.3d at 339 (internal quotation marks omitted).

HouseCanary asserts—in purely conclusory terms—that it “would be significantly

harmed” absent sealing. Mot. 6. But “[s]uch general assertions of prospective harm are not

sufficient to satisfy the requirement that a compelling showing be made to support a redaction or

sealing order, particularly when the information has already been disclosed in open court.”

Safeway, Inc., 2015 WL 432012, at *3. Given that the Exhibits were “introduced into the record

by [HouseCanary’s] counsel without any suggestion that [they were] sensitive or confidential,”

there can be no compelling interest sufficient to override the presumption of openness. Id.; see

also N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna Healthcare, 781 F.3d 182, 204 (5th Cir.

2015) (affirming grant of unsealing motion when party seeking to maintain sealing “d[id] not

identify any particular confidential information in the orders that may cause it harm, and much of

14
the information therein is available” publicly); Dickey’s Barbecue Pit, Inc. v. Neighbors, 4:14-

CV-484, 2015 WL 13466613, at *3 (E.D. Tex. June 5, 2015) (“As the information in this

document has already been disclosed [in court], the public’s common-law right of access

outweighs Dickey’s interest in keeping it sealed.”).

In short, “[t]he First Amendment public right of access to these exhibits sprang into

existence upon their being offered into evidence for the jury’s consideration at trial.” Level 3,

611 F. Supp. 2d at 588. Because “no request was made to seal them prior to or at that time,”

HouseCanary “waived any future right to assert any competing interest to be weighed by the

Court and, thus, any objection to the public availability of the exhibits in the Court’s files.” Id.

HouseCanary’s asserted interest in secrecy is a horse that it let out of the barn long ago. There is

nothing to be accomplished by slamming the door shut now, except undermining the public’s

right to know.

PRAYER

For the foregoing reasons, Plaintiff respectfully submits that Defendant’s Motion to Seal

Records should be denied.

15
Dated: May 9, 2018 Respectfully submitted,

/s/ Catherine M. Stone

David M. Prichard Catherine M. Stone


State Bar No. 16317900 State Bar No. 19286000
PRICHARD YOUNG LANGLEY & BANACK, INC.
10101 Reuntion Place 745 E. Mulberry Avenue, Suite 700
Suite 600 San Antonio, Texas 78212
San Antonio, Texas 78216 Telephone: (210) 736-6600
Telephone: (210) 477-7401 Facsimile: (210) 735-6889
Facsimile: (210) 477-7450 cstone@langleybanack.com
dprichard@prichardyoungllp.com
Veronica S. Lewis
Peter S. Wahby State Bar No. 24000092
State Bar No. 24011171 Andrew P. LeGrand
Stephanie R. Smiley State Bar No. 24070132
State Bar No. 24066097 GIBSON, DUNN & CRUTCHER, LLP
Samuel G. Davison 2100 McKinney Avenue
State Bar No. 24084280 Dallas, TX 75201-6912
Allison M. Stewart Telephone: (214) 698-3100
State Bar No. 24102538 Facsimile: (214) 571-2936
GREENBERG TRAURIG, LLP vlewis@gibsondunn.com
2200 Ross Avenue, Suite 5200 alegrand@gibsondunn.com
Dallas, Texas 75201
Telephone: (214) 665-3673 Helgi C. Walker*
Facsimile: (214) 665-3601 GIBSON, DUNN & CRUTCHER, LLP
wahbyp@gtlaw.com 1050 Connecticut Avenue, N.W.
smileys@gtlaw.com Washington, DC. 20036-5306
davisons@gtlaw.com Telephone: (202) 955-8500
stewarta@gtlaw.com Facsimile: (202) 530-9595
hwalker@gibsondunn.com
*pro hac vice pending

Attorneys for Plaintiff Title Source, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of May, 2018, the foregoing document was served on

the following counsel of record by email in accordance with the Texas Rules of Civil Procedure:

Max L. Tribble
Matt Behncke
Rocco Magni
SUSMAN GODFREY
1000 Louisiana St., Suite 5100
Houston, TX 77002-5096
mtribble@susmangodfrey.com
mbehncke@susmangodfrey.com
rmagni@susmangodfrey.com

Kalpana Srinivasan
SUSMAN GODFREY LLP
1901 Avenue of the Stars, Suite 950
Los Angeles, CA, 90067-6029
ksrinivasan@susmangodfrey.com

Elisha Barron
SUSMAN GODFREY LLP
1301 Ave. of the Americas, 32nd Floor
New York, NY 10019
ebarron@susmangodfrey.com

Ricardo Cedillo
DAVIS, CEDILLO & MENDOZA, INC.
755 E. Mulberry, Suite 500
San Antonio, Texas 78212
Telephone: (210) 822-6666
Facsimile: (210) 822-1151
rcedillo@lawdcm.com

/s/ Catherine M. Stone


CATHERINE M. STONE

17
APPENDIX

Trial Exhibits Identified in HouseCanary’s Proposed Motion to Seal Records

Exhibit Description References in Trial Transcript


“Trade Secrets”
PX49 Email from J. Sicklick to D. 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Majewski, J. Petkovski re:
HouseCanary Analytics 1/31/18 PM Tr. at 40:12-49:24 (discussed by TSI
Overview ‐ Preview to Thursday counsel/witness during direct examination)
with attachments (HouseCanary
April 30, 2015 Presentation and 2/5/18 PM Tr. at 20:12-32:22 (discussed by TSI
Data Dictionary) (TSI‐HC counsel/witness during direct examination)
00723712‐00723750.214)
2/15/18 AM Tr. at 82:9-86:22 (discussed by TSI
counsel/witness during direct examination)

2/22/18 AM Tr. at 134:2-136:11 (discussed by TSI


counsel/witness during redirect examination)

2/23/18 AM Tr. at 51:5-53:16 (discussed by HC expert


witness during Daubert cross examination by TSI counsel)

2/26/18 PM Tr. at 10:1-23; 25:11-36:14 (discussed by HC


witness during cross examination by TSI counsel)

2/27/18 PM Tr. at 29:24-31:5 (discussed by TSI


counsel/witness during direct examination)

3/6/18 PM Tr. at 90:5-91:8 (discussed by HC expert


witness during cross examination by TSI counsel)

3/8/18 AM Tr. at 90:16-96:11 (discussed by HC witness


during cross examination by TSI counsel)

3/9/18 AM Tr. at 74:16-75:22 (discussed by HC


counsel/witness during redirect examination); 108:20-
120:19 (discussed by HC witness during re-cross
examination by TSI counsel)

PX64 Email from J. Sicklick to J. 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Petkovski, D. Majewski cc to R.
Walker, C. Stroud re: 1/31/18 AM Tr. at 86:18-87:9 (discussed by HC counsel
HouseCanary Analytics Proposal during opening argument)

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 1


Exhibit Description References in Trial Transcript
with attachments (TSI‐HC
00724743‐00724779.223) 2/6/18 AM Tr. at 32:3-42:6 (discussed by TSI
counsel/witness during direct examination)

2/15/18 AM Tr. at 86:23-100:12 (discussed by TSI


counsel/witness during direct examination)

2/15/18 PM Tr. at 11:23-18:13 (discussed by TSI


counsel/witness during direct examination)

2/28/18 AM Tr. at 22:15-23:12 (discussed by TSI


counsel/expert witness during direct examination)
DX95 Email from B. Wang to T. Yang 1/26/18 Tr. at 59:20-61:23 (HC offered and pre-admitted)
re: HC Data Dictionary (TSI-HC
00776782-00776819) 2/26/18 PM Tr. at 141:24-157:12 (discussed by HC
counsel/witness during direct examination)

2/27/18 PM Tr. at 40:3-45:4 (discussed by TSI


counsel/witness during direct examination)

3/6/18 PM Tr. at 116:9-119:21 (discussed by HC


counsel/expert witness during redirect examination)
DX342 Email from C. Watson to T. 1/26/18 Tr. at 59:20-61:23 (HC offered and pre-admitted)
Yang re: Property Attributes and
similarity score information (R. 2/26/18 AM Tr. at 134:2-136:2 (discussed by HC witness
Yang 21) (TSI-HC 00807325- during cross examination by TSI counsel)
00807326)
3/2/18 PM Tr. at 163:23-24 (HC counsel identified DX342
as R. Yang deposition exhibit 21 and a pre-admitted trial
exhibit after playing R. Yang video deposition clips)

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 2


Exhibit Description References in Trial Transcript
DX561 Email from J. Sicklick to J. 1/26/18 Tr. at 59:20-61:23 (HC offered and pre-admitted)
Petkovski re: Appraisal
Complexity score (HC 2/23/18 AM Tr. at 63:6-64:6 (discussed by HC expert
00030956-0030964) witness during cross examination by TSI counsel)

2/26/18 AM Tr. at 125:19-132:10 (discussed by HC


witness during cross examination by TSI counsel)

2/26/18 PM Tr. at 61:7-64:2 (GDC 03288-3291)


(discussed by HC counsel/witness during direct
examination)

3/7/18 AM Tr. at 108:17-115:10 (GDC 05518-5525)


(discussed by HC counsel/witness during direct
examination)
DX759 Attributes of Similarity and 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (HC offered
Valuation Suitability Scores and pre-admitted)
(Watson 9) (TSI-HC 00718141)
2/23/18 AM Tr. at 69:17-76:7 (discussed by HC expert
witness during Daubert cross examination by TSI
counsel); 80:12-83:16 (discussed by HC counsel/expert
witness during Daubert direct examination); 88:3-90:17
(discussed by HC expert witness during Daubert re-cross
examination by TSI counsel); 92:15-94:15 (discussed by
HC counsel/expert witness during Daubert redirect
examination)

2/26/18 PM Tr. at 157:13-158:5; 162:8-174:17 (discussed


by HC counsel/witness during direct examination);
196:11-197:2 (discussed by HC witness during re-cross
examination by TSI counsel)

2/27/18 AM Tr. at 97:16-101:13; 103:12-104:23; 112:9-13


(discussed by TSI witness during cross examination by
HC counsel); 142:10-144:23 (discussed by TSI
counsel/witness during redirect examination)

3/6/18 AM Tr. at 134:12-135:18 (discussed by HC expert


witness/counsel during direct examination)

3/6/18 PM Tr. at 72:25-77:14 (discussed by HC expert


witness during cross examination by TSI counsel)

3/7/18 AM Tr. at 103:6-107:25 (discussed by HC

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 3


Exhibit Description References in Trial Transcript
counsel/witness during direct examination)

DX800 Presentation re: House Canary 1/26/18 Tr. at 59:20-61:23 (HC offered and pre-admitted)
Appraisal Complexity API (TSI-
HC 00001008-00001015) 2/26/18 PM Tr. at 187:5-189:5 (discussed by HC
counsel/witness during direct examination)
DX835 Spreadsheet re Summary of Data 1/26/18 Tr. at 59:20-61:23 (HC offered and pre-admitted)
Dictionary (TSI-HC 00724741)
“Financials”
PX22 Email from J. Sicklick to B. 1/26/18 Tr. at 155:17-156:2 (TSI offered and pre-
West re: Old Financials with admitted)
attachment (HouseCanary
Financial Model 8‐29)
(HC00059206‐00059207.081)
PX24 Email from D. Petty to B. West, 1/26/18 Tr. at 155:17-156:2 (TSI offered and pre-
cc: J. Sicklick, G. Klier and D. admitted)
Chan, re: Financials with
attachments (HouseCanary Cap
Table and Financial Model 8‐29)
(HC00063914‐0063917.003)
PX36 Email from B. West to J. 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Sicklick re: The 1,000 appraiser
challenge with attachment 3/8/18 AM Tr. at 74:9-80:3 (discussed by HC witness
(HouseCanary Financial during cross examination by TSI counsel)
Model_15‐03‐20)
(HC00063406‐00063408)
PX337/ Email from G. Klier to J. 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted
DX6331 Sicklick re: HC Financials PX337; HC offered and pre-admitted DX633)
March 2016 with Attachment
(HC00027809‐00027811)

1
Exhibits listed as PX/DX are duplicate exhibits.

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 4


Exhibit Description References in Trial Transcript
PX390 Parent Account: Canary 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Analytics Holdings, LLC
(Consolidated) Income 1/24/18 Tr. at 40:10-42:16 (discussed by HC expert
Statement (HC00133623.001‐ witness during Daubert cross examination by TSI counsel)
00133623.010)
3/8/18 AM Tr. at 80:5-85:18 (discussed by HC witness
during cross examination by TSI counsel)

3/12/18 AM Tr. at 85:21-90:9 (discussed by HC expert


witness during cross examination by TSI counsel)
“Data Vendor Contracts”
PX9/ RELAR Data License 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted
DX808 Agreement (HC00132830‐ PX9; HC offered and pre-admitted DX808)
00132843)
2/26/18 PM Tr. at 86:12-95:10 (DX808) (discussed by HC
counsel/witness during direct examination)
PX40 Black Knight Product Evaluation 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Agreement (HC00125447-
00125481) 2/26/18 PM Tr. at 7:14-10:23 (discussed by HC witness
during cross examination by TSI counsel); 204:16-205:8
(discussed by HC witness during re-cross examination by
TSI counsel)

3/9/18 AM Tr. at 73:21-74:15 (discussed by HC


counsel/witness during redirect examination)

PX59/ ClearCapital.com, Inc. Contract 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted
DX93 for MLS Real Estate Analytics PX59; HC offered and pre-admitted DX93)
(HC00132799‐00132815)

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 5


Exhibit Description References in Trial Transcript
PX62 License Agreement between 1/26/18 Tr. at 59:20-61:23 (TSI offered and pre-admitted)
Black Knight Data & Analytics
and HouseCanary 2/26/18 PM Tr. at 10:14-25:10 (discussed by HC witness
(HC001328769‐00132798) during cross examination by TSI counsel); 64:3-68:2
(discussed by HC counsel/witness during direct
examination)

3/6/18 PM Tr. at 47:17-52:8 (discussed by HC expert


witness during cross examination by TSI counsel)

3/8/18 AM Tr. at 98:23-105:18 (discussed by HC witness


during cross examination by TSI counsel)

3/9/18 AM Tr. at 73:13-74:15 (discussed by HC


counsel/witness during redirect examination)

3/12/18 AM Tr. at 21:14-29:25 (discussed by HC expert


witness during cross examination by TSI counsel)

PX127/ Real Estate Digital LLC 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
DX1011 Statement of Work to and pre-admitted PX127; HC offered and pre-admitted
Technology & Services DX1011)
Agreement rDesk BPO Web
Services (HC00120522‐
00120538)
PX128/ Real Estate Digital LLC 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
DX1012 Technology Services Agreement and pre-admitted PX128; HC offered and pre-admitted
(HC00121331‐00121344) DX1012)

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 6


Exhibit Description References in Trial Transcript
PX129/ Real Estate Digital LLC 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
DX1016 Amended and Restated and pre-admitted PX129; HC offered and pre-admitted
Statement of Work to DX1016)
Technology & Services
Agreement rDeskBPO Web
Services (HC00133352‐
00133371)
PX154/ Service Provider Agreement 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (HC offered
DX2392 between Canary Analytics Inc. and pre-admitted DX239)
and FNC, Inc. (HC00120035‐
00120054)
PX169/ Amendment Number 1 to 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (HC offered
DX1013 Statement of Work 1 Between and pre-admitted DX1013)
First American Data Tree LLC
and HouseCanary, Inc.
(HC00122372‐00122377)
PX170/ Master License Agreement 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (HC offered
DX1014 between HouseCanary and Data and pre-admitted DX1014)
Tree (HC00132754‐00132768)
PX193 First Addendum to Data License (Not offered, admitted, or discussed)
Agreement between Real Estate
Portal and HouseCanary
(HC00133382-00133383)
PX267/ Strategic Relationship/Data 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
DX1015 Services Agreement between and pre-admitted PX267; HC offered and pre-admitted
HouseCanary, Inc. and Software DX1015)
Incubator, Inc. (HC00132844‐
00132878)
PX386 Amendment to Amended and 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
Restate Statement of Work to and pre-admitted)
Technology & Services
Agreement (“rDeskBPO Web
Services SOW”) between Real
Estate Digital LLC and Xome
Inc. and HouseCanary, Inc.
(HC00133372‐00133373)

2
Note that DX239 is a different document than PX154.

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 7


Exhibit Description References in Trial Transcript
PX388 Data Use and License and 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
Services Agreement and pre-admitted)
(HC00133404‐00133407)
PX389 Flood Data Products License 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
Agreement (HC00133384‐ and pre-admitted)
00133391)
PX395 Benutech, Inc. General Terms 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
and Conditions (HC00134252‐ and pre-admitted)
00134253)
“Presentation to Board of Directors”
PX100 HouseCanary Board of Directors 1/26/18 Tr. at 59:20-61:23 (GDC 00281-283) (TSI offered
Presentation (HC00102596‐ and pre-admitted)
00102648)
2/28/18 AM Tr. at 22:15-23:12 (GDC 03820-3821)
(discussed by TSI counsel/expert witness during direct
examination)

APPENDIX TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO SEAL Page 8