WPE v. Automattic Dkt. 368 — Defendants' Statement on Sealing

WPE v. Automattic Dkt. 368 — Defendants' Statement on Sealing ![rw-book-cover](https://d34adp677peecb.cloudfront.net/static/images/article4.6bc1851654a0.png) 🔗 **Source:** [WPE v. Automattic Dkt. 368 — Defendants' Statement on Sealing](https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf#deepread) > [!note]+ Document Notes > tags: [wordpress-litigation, court-sealing, trade-secrets, spoliation-sanctions, trademark-licensing] > author: Joseph R. Rose, Gibson, Dunn & Crutcher LLP (for Automattic Inc., Matthew Charles Mullenweg, WordPress Foundation, and WooCommerce Inc.) > source: https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf > reference: https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf > date created: 2026-08-13 > > > [!info] Generated analysis — not the author's words. Sections below are machine-written > > from the captured source. Only text inside `> [!quote]` blocks is verbatim from the author. > > Do not quote or attribute any other line to the named author. > > # 🏷️ Title: Defendants' and Counterclaimants' Statement in Connection with Plaintiff's Administrative Motion re: Sealing [Dkt. 368], WPEngine, Inc. v. Automattic, Inc., N.D. Cal. 4:24-cv-06917-AMO >  ## 🧭 Table of Contents - [📝 Summary](#-summary) - [📖 Main Content](#-main-content) - [🗒️ Notes](#️-notes) - [📚 References](#-references) - [🗣️ Paraphrase](#️-paraphrase) - [📰 Newsletter](#-newsletter) - [✅ Action Items](#-action-items) - [🧪 Hypotheses](#-hypotheses) - [📊 Methodology](#-methodology) - [❓ Questions](#-questions) - [🔮 Future Research](#-future-research) - [💡 Implications](#-implications) - [🧠 Learning Styles Assessment](#-learning-styles-assessment) - [📊 Accessibility Assessment](#-accessibility-assessment) - [🌍 DEIB Assessment](#-deib-assessment) - [✅ Logical Validity](#-logical-validity) - [🛡️ DARVO Analysis](#-darvo-analysis) - [🎯 Conclusion](#-conclusion) ### 🔗 References - [Docket 368 main document (PDF)](https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf) - Related docket entries cited in the filing: Dkt. 357 (WPE's spoliation sanctions motion), Dkt. 358 (WPE's administrative sealing motion), Dkt. 104 (Stipulated Protective Order), Dkt. 177 (Oct. 6, 2025 joint discovery letter), Dkt. 266 (updated joint letter), Dkt. 272 (Apr. 28, 2026 order requiring sworn declarations). ## 📝 Summary - **What happened.** On August 4, 2026, Automattic, Matthew Mullenweg, WordPress Foundation, and WooCommerce (through Gibson Dunn) filed a statement under Civil Local Rules 7-11 and 79-5 asking the court to keep sealed a narrow set of materials that WP Engine lodged provisionally under seal with its Motion for Sanctions for Spoliation of Evidence (Dkt. 357/358). The defendants ask to: (1) partially redact Exhibit 18 (Jesse Friedman deposition excerpts) and Exhibit 19 (an internal Automattic leadership message thread); (2) fully seal Exhibit 21 (internal thread on trademark licensing tiers, enforcement, and pricing) and Exhibit 22 (an internal document titled "Pricing Trademarks for Hosting Companies"); and (3) seal only the corresponding lines of WPE's motion (page 17, lines 10-13). They affirmatively consent to public filing of Exhibits 11-14 and everything else. - **Why it matters.** The underlying motion is one of the most consequential in the case: WPE asks the court to find Mullenweg's WhatsApp/Signal/Telegram messages were spoliated, to issue mandatory adverse-inference instructions, to preclude Mullenweg's testimony on his September 2024 state of mind, to dismiss Counterclaims 1-7, and to award fees. This sealing statement determines how much of that record the public sees — and it concedes the preservation-related material can all be public, drawing the confidentiality line only around trademark-licensing pricing and partner identities. - **Key stakeholders.** WP Engine (movant on sanctions); Automattic/Mullenweg/WordPress Foundation/WooCommerce (defendants and counterclaimants); Judge Araceli Martínez-Olguín and Magistrate Judge Ajay S. Krishnan; the WordPress hosting ecosystem, whose members are the unnamed "prospective business partners" and "named hosts" in the sealed exhibits; the public and press following the case. - **Risks and tradeoffs.** For defendants: unsealing would expose the "Pricing Trademarks for Hosting Companies" methodology, host partnership program (HPP) negotiation strategy, and the identities of hosts Automattic was courting. For the public: full sealing of Exhibits 21 and 22 removes from view the very documents WPE describes as evidence that the September 2024 trademark demand was pretextual. The filing threads this by not opposing publication of anything "bearing on the preservation issues." - **Bottom line.** A tactically narrow, well-lawyered sealing request that gives up the spoliation narrative to public view while fighting to keep the trademark-pricing playbook sealed under both the "good cause" and "compelling reasons" standards. ## 📖 Main Content - **Procedural posture.** WPE filed its spoliation sanctions motion (Dkt. 357) with an administrative motion to consider whether another party's material should be sealed (Dkt. 358), because the potentially confidential material belongs to the defendants. Under L.R. 79-5, the designating party — here the defendants — must then justify sealing. Dkt. 368 is that justification, with four attachments: 368-1 (proposed redacted Exhibit 18), 368-2 (proposed redacted Exhibit 19), 368-3 (proposed redacted version of the motion itself), and 368-4 (a proposed order). - **The legal framework.** The filing walks the Ninth Circuit's two-tier sealing regime. Records attached to merits-related filings need "compelling reasons" to seal (Kamakana v. City & County of Honolulu); records tied to non-merits filings need only "good cause" (Center for Auto Safety v. Chrysler Group). Defendants argue a discovery-sanctions motion is at most tangentially related to the merits, so good cause governs — citing Phillips ex rel. Estates of Byrd v. General Motors, which applied good cause to a discovery-sanctions motion. They preempt the obvious counter (WPE seeks dismissal of seven counterclaims, which sounds dispositive) by quoting Center for Auto Safety's warning against letting the requested remedy flip the standard, and argue any other rule would let a party convert a routine discovery dispute into a merits proceeding just by demanding dismissal. They then argue in the alternative that the material satisfies even the compelling-reasons standard as competitively harmful business information (Nixon v. Warner Communications; Apple v. Samsung; In re Electronic Arts). - **What they want sealed, exhibit by exhibit.** Exhibit 18: excerpts of the January 23, 2026 Friedman deposition, partial redactions covering trademark-licensing terms and negotiation strategy. Exhibit 19 (A8C00706126-27): an internal message thread among Automattic leadership including Mullenweg — the thread WPE's motion quotes for Mullenweg's August 15, 2024 statement that "we're now going [on] a litigation track with WPE" — with redactions limited to names of non-public prospective business partners and internal negotiating posture. Exhibit 21 (A8C01401821-25): full sealing of an internal thread on licensing tiers, enforcement, and revenue-share terms, on the ground that confidential content "pervades" it. Exhibit 22 (A8C00920900-06): full sealing of "Pricing Trademarks for Hosting Companies," Exhibit 8 to the Friedman deposition, described as Automattic's proprietary methodology for calculating trademark licensing fees and forward-looking negotiation strategy for specific counterparties. Motion page 17 lines 10-13: the passage describing those documents. - **What they concede to the public.** Everything bearing on preservation: Exhibits 11-14 in their entirety, the rest of the Friedman transcript excerpts, the rest of Exhibit 19, and all provisional redactions in the motion that draw solely from those materials. This is a deliberate framing move — it signals confidence on (or at least resignation about) the spoliation record while protecting commercial terms. - **Attachment 368-3 — the motion being partially unsealed.** The proposed redacted version of WPE's sanctions motion is substantively explosive and now almost entirely public by defendants' own consent. It alleges: the duty to preserve attached by July 19, 2024 (per defendants' own privilege log); Mullenweg publicly told insiders on September 21, 2024 to use "Signal with disappearing messages"; six WPE letters between November 2024 and June 2025 flagged deletions (X posts, the Post Status Slack account renamed "gone," ACF plugin reviews); defendants told WPE on April 3, 2025 that all reasonable preservation steps had been taken — two weeks before the first imaging of any Mullenweg device on April 17, 2025, which failed to capture WhatsApp/Signal because a week-old iOS version defeated Cellebrite; re-imaging waited eleven more months, until March 16, 2026, two months before discovery closed; Mullenweg's May 5, 2026 declaration admitted ephemeral messaging was enabled since September 2024, "purportedly only for 'highly sensitive personal communications with romantic partners'"; his Pixel Fold was "lost while traveling" and the MacBook's location is unknown; at deposition he answered "I don't know" to why re-imaging took a year and how many disappearing messages were received in the gap. Relief sought: deemed facts, mandatory adverse inferences on interference/defamation/CFAA intent, testimony preclusion, dismissal of Counterclaims 1-7, and fees. - **Attachment 368-1 — Friedman deposition excerpts.** The proposed redacted Exhibit 18 shows the visible (unredacted) testimony: Friedman repeatedly testified he did not recall the July 3, 2024 Zoom call with WPE's Victor Yuan that Automattic has relied on as evidence of negotiations with WPE; contentious exchanges between WPE counsel Margret Caruso and defense counsel Joseph Rose over whether Friedman should read the call transcript mid-deposition; Friedman's discussion of "land and expand" in the host partnership program (HPP), attributed vaguely to Paul Maiorana; his professed inability to recall "carrots and sticks" specifics (he offered that a stick is "motivation" and resisted characterizing it as negative); he was not aware of any host that signed an HPP agreement; he could not recall preparing or seeing "Pricing Trademarks for Hosting Companies" (Exhibit 8, Bates A8C00920900); he explained P2 authorship conventions (a named author may reflect collaboration) but confirmed the named author reviews a post before publication, including his September 12, 2024 post; the deposition ended with WPE reserving rights to recall the witness over preparation concerns and defense counsel refusing to hold the deposition open after seven-plus hours. Several pages (245-256, and portions elsewhere) are blank in the redacted version — those are the proposed redactions covering licensing terms and negotiation strategy. - **Attachment 368-2 — Exhibit 19 slip sheet.** A four-page proposed redacted version of Exhibit 19 whose substantive pages are blank in the text layer — effectively a sealed slip sheet. Note as sealed; content known only through descriptions in 368.0 (internal Automattic leadership thread including Mullenweg, containing the "litigation track" statement quoted in the motion and names of prospective partners). - **Attachment 368-4 — proposed order.** A table-form order for Magistrate Judge Krishnan finding good cause and granting partial sealing of Exhibits 18 and 19 and the motion, and full sealing of Exhibits 21 and 22, with a Granted/Denied column left blank for the court. - **Uncertainties and contested claims.** Whether the good-cause standard truly governs a sanctions motion seeking dismissal of counterclaims is a live legal question; defendants hedge by arguing both standards. Whether Exhibits 21 and 22 are genuinely "collateral" to the motion is contested by implication — WPE's motion cites them in its narrative of pretext, and the sealing chart concedes the motion's page 17 describes them. The Friedman testimony's characterization (non-recollection vs. evasion) is sharply disputed between counsel on the record itself. ### 🗒️ Notes - Filing is signed by Joseph R. Rose of Gibson Dunn; the Gibson Dunn team spans San Francisco, Palo Alto, Los Angeles, and New York (Orin Snyder, Howard Hogan pro hac vice). - The chart in 368.0 maps each sealed item to its redacted and unredacted docket numbers: Ex. 18 → 368-1/358-7; Ex. 19 → 368-2/358-8; Ex. 21 → 357-22/358-9; Ex. 22 → 357-23/358-10; Motion → 368-3/358-2. - Key case citations: Kamakana (strong presumption of access), Center for Auto Safety (two-tier standard; remedy demanded doesn't control), Phillips v. GM (good cause for discovery-sanctions motions), Pintos v. Pacific Creditors (no cognizable public interest in non-merits discovery documents), Nixon v. Warner (business information harming competitive standing), In re Qualcomm (licensing terms sealable), Apple v. Samsung, In re Electronic Arts, Actian v. AB Sciex, Jam Cellars, Miotox, Day v. GEICO. - The defendants' one-sentence theory of harm: disclosure reveals trademark licensing and partnership pricing methodology, negotiation strategies, and counterparty identities that competitors and prospective partners could exploit. - For Exhibits 21 and 22 only, defendants argue no less restrictive alternative exists because confidential content "pervades" the documents — the required narrow-tailoring showing for full sealing. - The sealing fight is asymmetric in an unusual way: the party accused of spoliation is volunteering the spoliation evidence for public filing and fighting only over commercial terms. That choice itself communicates litigation strategy — contesting the sanctions motion on law and characterization, not on secrecy. - WPE's motion (368-3) carries an "Artificial Intelligence Certification" signed by Rachel Herrick Kassabian certifying human verification of any AI-generated content — a notable 2026-era procedural artifact. - Hearing on the underlying sanctions motion: October 1, 2026, 2:00 p.m., Courtroom 5, Oakland, before Judge Martínez-Olguín. - The Friedman deposition excerpts show the WPE-Automattic negotiation record itself is thin enough that Automattic's own witness could not recall the July 3, 2024 meeting Automattic cites as evidence WPE negotiated in bad faith. - Timeline anchors from 368-3: July 19, 2024 (draft C&D circulated; privilege log start), Aug. 15, 2024 ("litigation track" message), Sept. 20, 2024 (WordCamp keynote), Sept. 21, 2024 (Signal/disappearing messages post), Sept. 23, 2024 (mutual cease-and-desist letters; WPE preservation demand), Oct. 4, 2024 (complaint filed), Oct. 12, 2024 (ACF→SCF takeover), Apr. 17, 2025 (first, failed imaging), Oct. 6, 2025 ("have been preserved" representation), Mar. 16, 2026 (successful re-imaging), May 5, 2026 (Mullenweg declaration), Aug. 4, 2026 (this filing). ## 📚 References - [Dkt. 368 main document](https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf) - [CourtListener docket, WPEngine, Inc. v. Automattic, Inc., 4:24-cv-06917](https://www.courtlistener.com/docket/69221176/wpengine-inc-v-automattic-inc/) - Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) - Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016) - Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002) - Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) - Fed. R. Civ. P. 37(e) (spoliation sanctions framework, cited throughout attachment 368-3) ## 🗣️ Paraphrase - Defendants tell the court: we've kept our sealing request as small as the law demands. WPE's sanctions motion is a discovery dispute, not a merits fight, so the lenient good-cause standard applies — and even if you use the strict compelling-reasons test, confidential licensing prices, negotiation playbooks, and the names of hosts we were quietly negotiating with are exactly what courts routinely seal. We're not hiding the preservation story: publish Exhibits 11-14, publish the deposition fights, publish the motion's accusations. Just keep our pricing methodology and partner list out of competitors' hands. - The attachments tell the other half: WPE's now-mostly-public motion accuses Mullenweg and Automattic of letting twenty months of WhatsApp and Signal messages evaporate behind repeated written assurances that everything "has been preserved," and asks for case-shaping sanctions up to dismissal of all seven counterclaims. The Friedman deposition excerpts show Automattic's partnerships witness unable to recall the negotiation meeting Automattic itself relies on, while the "Pricing Trademarks for Hosting Companies" document he was shown stays fully sealed. ## 📰 Newsletter - The WP Engine v. Automattic docket delivered again: Automattic's team filed its response to the sealing question hanging over WPE's blockbuster spoliation motion, and the shape of the request is the story. Defendants agreed to let nearly all of the preservation record go public — the six warning letters, the failed iPhone imaging, the "I don't know" deposition answers — and drew the line only at trademark-licensing prices, the "Pricing Trademarks for Hosting Companies" playbook, and which hosts they were courting for the host partnership program. - For the hosting community, the sealed bits are the map of who was in HPP talks and at what price — worth remembering next time a partnership announcement drops. - Watch October 1, 2026: the sanctions hearing could reshape the counterclaims entirely. - Primary source: the [Dkt. 368 filing](https://storage.courtlistener.com/recap/gov.uscourts.cand.437474/gov.uscourts.cand.437474.368.0.pdf) on CourtListener. ## ✅ Action Items #### DevRel - Track the October 1, 2026 hearing and brief community channels on outcomes with primary-source links, not commentary threads. - Prepare a neutral explainer on sealing standards (good cause vs. compelling reasons) for ecosystem writers covering the case. #### OSPO - Policy & Governance: use this filing as a case study in why ephemeral-messaging policies and litigation-hold procedures must cover executives' personal devices. - Security Management: review internal disclosure/embargo channels so sensitive reports never depend on one individual's personal Signal account. - Strategic Alignment: brief leadership on how trademark-licensing programs create discoverable pricing records; document intended enforcement rationale contemporaneously. #### Community - Maintainers: note that P2-style collaborative authorship (named author ≠ sole author) complicated deposition testimony; keep authorship metadata accurate. - Ecosystem: hosts approached for trademark/partnership deals should assume terms may surface in litigation; negotiate with that in mind. #### WordPress - Core: no direct action; the case does not change contribution workflows. - Meta: the ACF→SCF plugin takeover and review-migration issues remain reputationally live in the public exhibits; plugin-directory governance transparency would reduce recurrence risk. - Plugins: document and publish the policy basis for any future plugin-listing takeover before acting. - Hosting: cross-host interest group should monitor unsealed portions for HPP terms that become public. #### The WPOCC - Programs: The WP Open Community Collective can cite the public portions of this record in governance-independence advocacy; avoid characterizing sealed content. - Funding experiments: transparent ledgers stand in useful contrast to sealed pricing methodologies; make that contrast concrete in materials. ### FAIR - Technical independence: the wordpress.org API block and ACF takeover narrative in the public motion is the canonical argument for federated/mirrored plugin distribution; keep provenance and signature checks first-class. - Policies and covenants: add anti-capture language addressing unilateral registry control demonstrated in the September-October 2024 events. ## 🧪 Hypotheses - H1: The court will apply the good-cause standard and grant the sealing request substantially as proposed, because the request is narrow, the exhibits are commercial, and defendants consented to publish the preservation record. - H2: Full sealing of Exhibit 22 ("Pricing Trademarks for Hosting Companies") will face more scrutiny than the partial redactions, because WPE's motion characterizes it as evidence of pretext, making it arguably merits-adjacent. - H3: Defendants' concession that all preservation-related material may be public predicts an opposition brief that fights the sanctions motion on intent (Rule 37(e)(2)) rather than on the fact of non-preservation. - H4: The identities of prospective host partners redacted from Exhibit 19 will eventually surface through other unsealed filings or third-party discovery, because partner identities leak across multi-document records. - H5: The spoliation motion, whatever its outcome, will shift settlement leverage toward WPE more than any single merits ruling to date, because adverse-inference and preclusion remedies constrain Mullenweg's trial testimony. ### 📊 Methodology - Track the docket for the magistrate's ruling on Dkt. 358/368 and code which rows of the proposed-order table are granted vs. denied (tests H1, H2). - Compare defendants' forthcoming opposition to the sanctions motion against the concession pattern here: count pages devoted to disputing non-preservation vs. disputing intent and prejudice (tests H3). - Build a named-entity index across all public filings in the case; monitor for host names appearing in later unsealed exhibits (tests H4). - Follow post-ruling case events (settlement talks, trial-setting, counterclaim amendments) against a pre-ruling baseline (tests H5). ### ❓ Questions - Does WPE oppose the sealing request, or accept it since its motion's force survives redaction? - Will Judge Krishnan treat a sanctions motion seeking dismissal of counterclaims as effectively dispositive despite Center for Auto Safety's language? - What do the fully sealed Exhibits 21 and 22 say about proposed revenue-share percentages, and do they corroborate WPE's "pretext for financial coercion" theory? - Why did re-imaging of Mullenweg's iPhone wait eleven months after the failed April 2025 attempt — the question neither the Robins declaration nor Mullenweg answered? - Did any host ever sign an HPP agreement? Friedman didn't know; the record may answer elsewhere. ### 🔮 Future Research - A systematic study of sealing outcomes in N.D. Cal. discovery-sanctions motions: how often does "good cause" carry full-document sealing? - The evidentiary treatment of ephemeral messaging in commercial litigation post-2024 — this case is becoming a leading fact pattern. - Open-source project governance and litigation risk: how registry control (wordpress.org) interacts with corporate liability when one person holds both roles. - Comparative analysis of trademark-licensing programs run against ecosystem participants (Automattic's HPP vs. analogous programs) and their disclosure footprints. ### 💡 Implications - Practice: litigation-hold execution must reach executives' personal devices immediately; a nine-month imaging delay plus an OS-update incompatibility converted a preservation gap into a sanctions exposure. - Policy: the two-tier sealing regime lets parties concede transparency where it is strategically cheap and fight it where commercially expensive; courts and press should read consent patterns as signal. - Security: publicly inviting whistleblowers onto disappearing-message channels during anticipated litigation is now Exhibit A for intent arguments; secure-disclosure programs need institutional, preserved intake channels. - Education: the filing pair (368.0 + 368-3) is a teachable unit on Rule 37(e), Kamakana/Center for Auto Safety sealing law, and deposition practice. - Funding models: sealed pricing methodologies for trademark licenses sit uneasily beside open-source community norms of transparency; expect governance projects to cite this record. ### 🧠 Learning Styles Assessment - Reading level estimate: Flesch-Kincaid grade level approximately 16-18 (dense legal citation prose; long compound sentences; Latin and term-of-art vocabulary). #### 👀 Visual learners - Present: the sealing chart in 368.0 and the table-form proposed order in 368-4 are genuinely visual summaries. - Improve: a timeline graphic of the preservation events (July 2024 → March 2026) and a diagram mapping exhibits to docket numbers would clarify the record. #### 🔊 Aural learners - Present: none; court filings have no audio component. - Improve: a short recorded docket-recap segment summarizing the sealing request and the sanctions motion. #### 🗣️ Verbal learners - Present: precise definitions of the two sealing standards with case authority; quotable framing sentences. - Improve: a plain-language glossary (spoliation, adverse inference, slip sheet, Bates number, custodial file). #### 🧩 Kinesthetic learners - Present: nothing interactive. - Improve: a hands-on exercise reconciling the chart in 368.0 against the docket to locate each redacted/unredacted pair. #### 🧠 Logical learners - Present: strong — a stepwise legal argument (standard selection → application → alternative holding → exhibit-by-exhibit showing) and the five-factor Anheuser-Busch analysis in 368-3. - Improve: a decision tree for good cause vs. compelling reasons. #### 🧑‍🤝‍🧑 Social learners - Present: none in the source. - Improve: structured discussion prompts comparing WPE's and defendants' characterizations of the same events. #### 🧘‍♀️ Solitary learners - Present: self-contained document with full citations enabling independent verification. - Improve: reflection prompts on where the reader would draw the sealing line. #### 🌿 Naturalistic learners - Present: none. - Improve: ecosystem framing — the WordPress hosting economy as a habitat where registry control shapes every participant's survival strategy. ### 📊 Accessibility Assessment #### Screen reader semantics - Present: the source is an OCR'd court PDF; 368-1's text layer is badly fragmented (letter-spaced OCR), which would render poorly in assistive tech. - Improve: publish tagged, text-native PDFs; provide HTML versions of filings. #### Keyboard navigation - Present: not applicable to static PDFs beyond standard reader controls. - Improve: bookmarked headings per section and exhibit. #### Contrast and readability - Present: standard black-on-white pleading format with adequate contrast. - Improve: none needed for contrast; line-numbered pleading format aids citation but hinders flow reading. #### Text resizing and reflow - Present: fixed-layout PDF; no reflow. - Improve: reflowable HTML alternative on CourtListener/RECAP. #### Media and captions - Present: not applicable; no media. - Improve: not applicable. #### Forms and interactions - Present: not applicable; the proposed order's Granted/Denied column is the only "form." - Improve: not applicable. #### Standards reference - Gaps map to WCAG 2.2 AA 1.1.1 (non-text content in scanned pages), 1.3.1 (info and relationships in untagged tables), and 1.4.10 (reflow). ### 🌍 DEIB Assessment #### Cultural breadth - Present: none; single-jurisdiction U.S. federal litigation document. - Improve: not the document's job; ecosystem coverage should note the global WordPress community affected by a California case. #### Inclusive language - Present: standard formal legal register; party names used consistently. - Improve: plain-language summaries for the non-lawyer community members whose ecosystem this case governs. #### Neurodiversity support - Present: numbered structure and headings aid navigation. - Improve: the dense citation strings and nested parentheticals are high cognitive load; a summary table per section would help. #### Representation - Present: counsel lists show large-firm teams on both sides; the record itself centers a small set of executives. - Improve: not applicable to a pleading. #### Psychological safety - Present: the filing is professionally restrained; the attached motion (368-3) contains charged language ("nuclear war," "ransom") quoted from the record. - Improve: community discussions of the sealed/unsealed material should avoid speculating about redacted third-party host identities, which the sealing exists to protect. ### ✅ Logical Validity #### Strong reasoning - Standard-selection argument (368.0 pages 2-3): a clean rule-based syllogism — non-merits motions take good cause; a discovery-sanctions motion is non-merits (Phillips applied good cause to exactly that); therefore good cause governs. Strengthened by the belt-and-suspenders alternative holding that compelling reasons are also satisfied, which insulates the request from losing on standard selection. - Anticipation of the strongest objection: the filing addresses head-on that WPE's demanded remedy (dismissal of counterclaims) might make the motion dispositive, quoting Center for Auto Safety's own reasoning that remedy demands should not flip the standard. Engaging the best counterargument is a marker of sound advocacy. - Narrow tailoring as evidence: consenting to public filing of Exhibits 11-14 and most of the motion operationalizes the "narrowly cabined" claim rather than merely asserting it — the request's structure is itself the proof. - Exhibit-by-exhibit particularization: each sealing request pairs a specific description of content with a specific harm mechanism and on-point authority, meeting Phillips' "particularized showing" requirement rather than resting on generic confidentiality claims. #### Fallacies - Potential slippery slope (368.0 page 3): the claim that any contrary rule "would allow a party to recast a routine discovery dispute as a merits proceeding through nothing more than a demand for dismissal" assumes courts could not police that case-by-case; it is rhetorically effective but overstates inevitability. Fix: acknowledge courts can weigh remedy severity as one factor without flipping the standard wholesale. - Question-begging risk in "collateral" framing: asserting the court "can resolve the Motion without reference to Automattic's pricing and licensing strategy" presumes the answer to a contested question — WPE's motion argues the pricing documents evidence pretext, which is central to the requested counterclaim dismissal. Fix: address why pretext can be adjudicated without the specific dollar figures. - Assertion of pervasiveness for full sealing: for Exhibits 21 and 22, the claim that confidential content "pervades" the documents is offered without demonstration (necessarily, since the content is sealed), requiring the court to take it on faith plus in camera review. Fix: line-by-line sealing logs. #### Tone of voice - Measured, formal, and concessive-strategic: repeated emphasis on what defendants do not seek to seal ("Mindful of the strong presumption of public access...") frames the request as restrained. Contrast with the attached WPE motion (368-3), whose tone is accusatory and maximal ("Defendants lied about it, both to WPE and to this Court"). The deposition excerpts (368-1) capture openly adversarial counsel colloquy. ### 🛡️ DARVO Analysis - Deny: the sealing statement itself neither denies nor addresses the spoliation allegations — it conspicuously brackets them ("materials bearing on the preservation issues" are conceded to the public record). Within the attached record, denial appears historically: defendants' April 3, 2025 and October 6, 2025 representations that communications "have been preserved," which WPE's motion says their own vendor's declaration now contradicts. - Attack: mild and procedural rather than personal — the filing characterizes WPE's motion as potentially "recast[ing] a routine discovery dispute as a merits proceeding" with a "thin" record and "disproportionate" requested relief, undercutting the movant's framing without attacking WPE's credibility directly. In the deposition excerpts, defense counsel attacks the examination itself ("testified left, right, and sideways") rather than the examiner. - Reverse victim/offender: the harm framing consistently positions Automattic as the party at risk — of competitors "exploit[ing]" pricing, of "irreparabl[e]" harm to negotiating positions — while the underlying motion positions WPE as the injured party deprived of evidence. This is conventional sealing-law framing rather than clear DARVO, but the net rhetorical effect of 368.0 is to make Automattic the protected party in a filing occasioned by allegations of its own misconduct. - Emotional cues and rhetoric: 368.0 is emotionally flat by design; the loaded language ("nuclear war," "ransom," "hijacked," "coverup") all lives in WPE's attached motion. The asymmetry in register is itself strategic: calm incumbent versus alarmed accuser. ## 🎯 Conclusion - Bottom line: Dkt. 368 is a disciplined, narrow sealing request that concedes public access to the entire spoliation narrative — the failed imaging, the contradicted assurances, the "I don't know" deposition answers — while defending only Automattic's trademark-licensing pricing methodology, negotiation strategy, and prospective-partner identities under both the good-cause and compelling-reasons standards. - Practical next steps for readers: read the now-public proposed redacted motion (368-3) for the full spoliation record; watch for the magistrate's ruling on the proposed order (368-4) and for defendants' substantive opposition to the sanctions motion; calendar the October 1, 2026 hearing; treat the sealed Exhibits 21-22 descriptions ("Pricing Trademarks for Hosting Companies," licensing tiers, revenue-share terms) as the map of what the ecosystem still cannot see. ## 🔄 Refactor Appendix — Defendants' Statement re Sealing (Dkt. 368) > Density: 2–5 Literature atoms (H3), 0–3 Permanent candidates (H4). > Defaults: 3 Literature, 1 Permanent. Resonance filter: if you can't > articulate in one line why a claim matters, drop it. > > Konik claim-header rules: present tense, declarative, ≤10 words when > possible, searchable, unique, mirrors annotation focus if present. > > Atomicity: one declarative sentence per atom. "and"/"also" → split. > > Tag pool: #bmf · #addendum · #xref · #articleseed · #storystem · #share · #aphorisms ### 📚 Literature Atoms (H3) #### [H1] Sanctions motions take good-cause sealing, not compelling reasons > [!quote] ID:rw_pending > The Motion concerns alleged spoliation of evidence in discovery and is not related—or at most tangentially related—to the merits of this case. *(Source: gov.uscourts.cand.437474.368.0.txt, pages 2-3 of the filing)* **Context & use**: - Main statement, standard-selection argument, immediately before "Accordingly, the 'good cause' standard governs." - The pivot the whole filing turns on: classify the motion as non-merits and the sealing bar drops. **Tags**: #xref **Highlight**: [view highlight](readwise://pending)  #### [H2] Automattic names pricing methodology as the sealed harm > [!quote] ID:rw_pending > Disclosure of the Designated Material would reveal Automattic’s confidential trademark licensing and partnership pricing methodology, its negotiation strategies, and the identities of and terms discussed with third-party counterparties. *(Source: gov.uscourts.cand.437474.368.0.txt, page 2 of the filing)* **Context & use**: - The particularized-harm showing under Phillips; defines exactly what defendants consider competitively sensitive. - Everything outside this sentence's scope was conceded to the public record — the sentence is the confidentiality perimeter. **Tags**: #xref #articleseed **Highlight**: [view highlight](readwise://pending)  #### [H3] Defendants consent to publishing the preservation record > [!quote] ID:rw_pending > Defendants do not seek to seal any of the materials bearing on the preservation issues raised by the Motion *(Source: gov.uscourts.cand.437474.368.0.txt, page 1 of the filing; sentence continues "and affirmatively consent to public filing of Exhibits 11 through 14 in their entirety")* **Context & use**: - Opening page of the statement; frames the request as narrowly cabined. - Strategic signal: the spoliation fight will be waged on law and intent, not secrecy. **Tags**: #xref **Highlight**: [view highlight](readwise://pending)  #### [H4] A sealed document titles Automattic's trademark pricing playbook > [!quote] ID:rw_pending > is an internal strategy document titled “Pricing Trademarks for Hosting Companies,” designated “Highly Confidential – Attorneys’ Eyes Only” under the Protective Order. *(Source: gov.uscourts.cand.437474.368.0.txt, page 5 of the filing, describing Exhibit 22 / A8C00920900-06)* **Context & use**: - Exhibit-22 justification paragraph; the document's own title is the most information the public record yields about it. - Anchor for tracking whether HPP pricing terms ever surface in later unsealed filings. **Tags**: #xref #addendum **Highlight**: [view highlight](readwise://pending)  #### [H5] WPE alleges preservation assurances were false when made > [!quote] ID:rw_pending > were not preserved, and Defendants lied about it, both to WPE and to this Court. *(Source: gov.uscourts.cand.437474.368.3.txt, motion conclusion, page 22; full sentence begins "Mr. Mullenweg’s relevant communications during the most critical time period in this case")* **Context & use**: - The one-sentence thesis of the attached sanctions motion whose sealing 368.0 partially addresses. - Pairs with the Robins-declaration timeline (first imaging April 17, 2025; re-imaging March 16, 2026) as the factual spine. **Tags**: #xref #articleseed **Highlight**: [view highlight](readwise://pending)  ### 🧠 Permanent Candidates (H4) #### [P1] Sealing-consent patterns reveal litigation strategy **Claim** (one sentence, Courtney's voice): What a party volunteers to unseal maps where it believes it can win in public. **Evidence pointer**: [[#H3]] — defendants conceded the entire preservation record while sealing only commercial terms. **Scope & conditions**: Holds in two-tier sealing regimes (Kamakana/Center for Auto Safety) where consent is cheap on non-damaging material; breaks when a protective order or third-party confidentiality forces sealing regardless of strategy. **Links** (≥1 with annotation): - [[Court filings as ecosystem primary sources]] — because extends - [[WP Engine v Automattic case timeline]] — because applies-in tracking the docket - [[Transparency as governance signal]] — because evidence-for  ### ✏️ Fleeting Queue - [F1] Check the docket for WPE's response to Dkt. 368 and the magistrate's ruling on the proposed order — CourtListener docket 69221176 #fleeting #inbox - [F2] Did any host ever sign an HPP agreement? Friedman couldn't say; watch later depositions/exhibits #fleeting #inbox - [F3] Note the AI certification block in WPE's motion as a 2026 N.D. Cal. practice artifact for the governance wiki #fleeting #inbox ### → Things 3 (max 2 actions) - [ ] Add October 1, 2026 sanctions-motion hearing to case-tracking calendar — WPE v. Automattic #things - [ ] Pull Dkt. 272 (April 28, 2026 order) for the wiki's spoliation timeline — CourtListener #things ``` Processed: Defendants' Statement re Sealing (Dkt. 368) - Literature atoms: 5 / 5 cap - Permanent candidates: 1 / 3 cap - Fleeting items: 3 - Things 3 actions: 2 / 2 cap - Konik tags used: [#xref, #articleseed, #addendum] - Triage callouts populated: [n/a — appendix emit only] - Quality gates: [verbatim ✓, atomicity ✓, link annotations ✓, YAML ✓, triage n/a, diff-readiness ✓] - Override conditions triggered: [dense source with 5+ distinct claims → 5 Literature atoms] ```  📄 **Full text:** [[Full Document Contents/Articles/WPE v. Automattic Dkt. 368 — Defendants' Statement on Sealing.md|WPE v. Automattic Dkt. 368 — Defendants' Statement on Sealing by Automattic/Mullenweg (Gibson Dunn)]] ## Highlights - “Confidential” and “Highly Confidential – Attorneys’ Eyes Only” under the parties’ Stipulated Protective Order (Dkt. 104). For the reasons set forth herein, Defendants and Counterclaimants respectfully request that the Designated Material remain sealed. Mindful of the strong presumption of public access, Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), Defendants have narrowly cabined their request and seek to seal only nonpublic, competitively sensitive business information reflected in exhibits that do not bear on the merits of the Motion, together with the corresponding passages of the Motion. Defendants do not seek to seal any of the materials bearing on the preservation issues raised by the Motion and affirmatively consent to public filing of Exhibits 11 through 14 in their entirety, and propose only narrow redactions of Exhibits 18 and 19. Defendants likewise do not seek to seal any portion of the Motion that draws solely from these materials and submit that the corresponding provisional redactions in the Motion may be lifted. ([View Highlight](https://read.readwise.io/read/01kzxrkc4ftze3ed5qmtqwsspz)) - Note: Defendants concede the entire spoliation narrative to public view — sealing only trademark-pricing material. - Tags: atom/literature/h1 - alleged spoliation of evidence in discovery and is not related—or at most tangentially related—to the DEFENDANTS’ AND COUNTERCLAIMANTS’ STATEMENT IN CONNECTION WITH PLAINTIFF’S ADMINISTRATIVE MOTION RE: SEALING CASE NO. 4:24-CV-06917-AMO ([View Highlight](https://read.readwise.io/read/01kzxrkfvfr0rte4ee56nqdd8f)) - Note: The legal hook: good-cause standard (not compelling-reasons) because the motion is non-merits. - Tags: atom/literature/h3 - confidential trademark licensing and partnership pricing methodology, its negotiation strategies, and ([View Highlight](https://read.readwise.io/read/01kzxrkk4g76vwnv1qf8471p20)) - Note: What Automattic actually wants hidden: trademark-licensing pricing methodology and negotiation strategy. - Tags: atom/literature/h2 - strategy document titled “Pricing Trademarks for Hosting Companies,” designated “Highly ([View Highlight](https://read.readwise.io/read/01kzxrkre5tq090hx82m8h8bph)) - Note: Exhibit 22: internal AEO strategy doc "Pricing Trademarks for Hosting Companies." - Tags: atom/literature/h2 - provisionally sealed material. Defendants do not seek to seal, and consent to the public filing of, all ([View Highlight](https://read.readwise.io/read/01kzxrkwtmqmtra1xjxe8yy3gw)) - Note: Consent to unsealing everything else lodged with the sanctions motion. - Tags: atom/literature/h3