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`Jeffrey M. Davidson (Bar No. 248620)
`Isaac D. Chaput (Bar No. 326923)
`
`COVINGTON & BURLING LLP
`Salesforce Tower
`415 Mission Street, Suite 5400
`San Francisco, California 94105-2533
`Telephone: + 1 (415) 591-6000
`Facsimile: + 1 (415) 591-6091
`Email: jdavidson@cov.com
`Email: ichaput@cov.com
`
`Attorneys for Respondents
`The Regents of the University of California,
`Jagdeep Bachher, Albert Lee, and John Ritter
`Additional counsel listed on following page
`
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`EXEMPT FROM FILING FEES
`CAL. GOV. CODE § 6103
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`09/16/2022
`Clerk of the Court
`BY: ERNALYN BURA
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF SAN FRANCISCO
` Civil Case No.: CPF-22-517852
`
`RESPONDENT THE REGENTS OF THE
`UNIVERSITY OF CALIFORNIA’S
`APPLICATION TO SEAL CERTAIN
`EXHIBITS FILED IN SUPPORT OF
`PETITIONERS’ PETITION TO COMPEL
`ARBITRATION
`
`Petition to Compel Arbitration Served:
`September 6, 2022
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`
`
`
`8MINUTENERGY US INVESTOR LLC;
`8MINUTENERGY US INVESTOR 2, LLC;
`8MINUTE POWER LLC; 8MINUTE SOLAR
`ENERGY LLC; 8MINUTE US SOLAR
`HOLDINGS LLC; and 8MINUTENERGY US
`MANAGER LLC,
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`
`
`
`
`THE REGENTS OF THE UNIVERSITY OF
`CALIFORNIA; UPPER BAY
`INFRASTRUCTURE PARTNERS; MARIO
`MASELLI; MARIETTA MOSHIASHVILI;
`JAGDEEP BACHHER; ALBERT LEE; JOHN
`RITTER; ROBERT COUSIN; and DOES 1-100,
`
`
`
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`Petitioners,
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`v.
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`Respondents.
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`RESPONDENT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S APPLICATION TO SEAL
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`

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`Counsel for Respondents The Regents of the University of California, Jagdeep Bachher, Albert Lee, and
`John Ritter, continued
`
`Lindsey Barnhart (Bar No. 294995)
`COVINGTON & BURLING LLP
`3000 El Camino Real
`5 Palo Alto Square
`Palo Alto, CA 94306-2112
`Telephone: + 1 (650) 632-4700
`Facsimile: + 1 (650) 632-4800
`
`Charles F. Robinson (Bar No. 113197)
`Norman J. Hamill (Bar No. 154272)
`Rhonda S. Goldstein (Bar No. 250387)
`THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
`OFFICE OF THE GENERAL COUNSEL
`1111 Franklin Street, 8th Floor
`Oakland, California 94607-5200
`Telephone: + 1 (510) 987-9800
`Facsimile: + 1 (510) 987-9757
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`2
`RESPONDENT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S APPLICATION TO SEAL
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`APPLICATION TO SEAL
`Respondent The Regents of the University of California (the “University”) hereby moves to seal
`Exhibits D and J to the Declaration of Felicia Draper (“Draper Decl.”), filed in support of Petitioners’
`Petition to Compel Arbitration (the “Confidential Exhibits”). Unredacted copies of the Confidential
`Exhibits are currently lodged conditionally under seal.
`The University’s Application to Seal should be granted because the Confidential Exhibits were
`produced by the University subject to confidentiality obligations under a protective order to which
`Petitioners agreed, and because they are commercially sensitive documents, public disclosure of which
`would significantly harm the University.
`
`I.
`
`Background
`On December 13, 2021, the University filed a lawsuit in Alameda County Superior Court under
`the California False Claims Act against a number of the Petitioners and their controlling manager,
`Thomas Buttgenbach (collectively, “8minute”), who fraudulently induced the University’s $150 million
`investment and promptly misappropriated those funds. See Declaration of Jeffrey M. Davidson in Support
`of Application to Seal (“Davidson Decl.”) ¶ 3. In response, 8minute filed a motion to compel arbitration,
`which was denied after extensive briefing and oral argument on the issue. Id. at ¶ 4. 8minute has
`appealed this ruling. Id. at ¶ 5.
`On September 6, 2022, Petitioners served the University with a petition to compel arbitration in
`this action, seeking, yet again, to compel the University to arbitrate despite it never consenting to do so.
`Id. at ¶ 6. In support of the petition to compel arbitration, Petitioners attached certain exhibits to the
`Declaration of Felicia Draper, five of which were lodged conditionally under seal. Id. at 7. The exhibits
`lodged conditionally under seal included:
` Exhibit D: an internal investment memorandum prepared by the University relating to the
`transaction at issue in the University’s California False Claims Act lawsuit; and
` Exhibit J: excerpts from private contracts between the University and an investment firm.
`The University produced the Confidential Exhibits to Petitioners in an earlier arbitration pursuant
`to a third-party subpoena issued to the University. Id. at ¶ 8. All documents produced in that arbitration
`are subject to a Protective Order. Id. The Confidential Exhibits contain highly commercially sensitive
`
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`3
`RESPONDENT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S APPLICATION TO SEAL
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`information, including internal financial analyses and models, and private contractual terms. Id at ¶ 9.
`These exhibits were previously sealed in Alameda County Superior Court. Id.
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`II.
`
`Argument
`Under Rules of Court, rule 2.550(d), the Court may seal a record if the facts show: (1) there is an
`overriding interest that overcomes the right of public access; (2) that interest supports sealing the record;
`(3) it is substantially probable the interest will be prejudiced if the record is not sealed; (4) the proposed
`sealing is narrowly tailored; and (5) there is no less restrictive means to achieve the overriding interest.
`See McNair v. Nat’l Collegiate Athletic Ass’n (2015) 234 Cal.App.4th 25, 29.
`First, the University has overriding interests that overcome public access rights, including (1)
`maintaining the integrity of protective orders; (2) protecting from disclosure the University’s
`commercially sensitive information that has previously been disclosed only in private, confidential
`arbitration; (3) preserving the confidentiality of the financial analyses and models that underlie the
`University’s private market investments; and (4) preserving the confidentiality of the University’s
`private contractual terms. See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th
`1273, 1285-86 (confidential financial information involving business operations of a party may be
`sealed where public revelation of the information would interfere with the party’s ability to effectively
`compete in the marketplace).
`Exhibit D, which was sealed in the Alameda County Superior Court action, contains sensitive
`financial models, projections, and discussions of the investment and risk positions that the University
`was taking in its decision to approve the $150 million investment at issue in this dispute. Davidson Decl.
`at ¶ 9 & Ex. A at ¶ 4. Exhibit D also contains confidential due diligence materials that were provided by the
`
`University’s investment partners for investment underwriting purposes and are generally not to be released
`externally. Id. Ex. A at ¶ 5. Public disclosure of Exhibit D would significantly harm the University’s
`ability to transact fairly in the marketplace. Id. at ¶¶ 4-5. This harm overrides any interest in public
`access. Exhibit J contains confidential investment terms, and was also sealed in the previous Alameda
`County Superior Court action due to its commercially sensitive information and the likelihood that the
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`4
`RESPONDENT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S APPLICATION TO SEAL
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`University would face irreparable harm if it were publically disclosed. Davidson Decl. at ¶ 9. Both of the
`Confidential Exhibits are subject to a protective order. Id. at ¶ 8.
`Second, the University’s interests support sealing the Confidential Exhibits. Public disclosure of
`the University’s confidential, commercially sensitive documents would undermine the integrity of the
`arbitration protective order, and could damage the University’s ability to negotiate with current and
`prospective investment partners by publicly disclosing the University’s confidential analyses and
`financial models supporting its investment decisions. Id.
`Third, it is substantially probable that the University’ interests would be prejudiced if the
`Confidential Exhibits are not sealed. The University’s ability to negotiate future investments and
`transact fairly in the marketplace would likely be harmed if its investment analyses and financial models
`were made public. Id.
`Finally, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve
`the overriding interests. The University seeks to seal only those documents that are subject to a
`protective order and that contain commercially sensitive information. Although Petitioners filed five
`exhibits conditionally under seal, the University requests sealing only two of those documents.
`
`III.
`
`Conclusion
`For the foregoing reasons, the University respectfully requests that the Confidential Exhibits be
`filed under seal.
`
`DATED: September 16, 2022
`
`Respectfully submitted,
`COVINGTON & BURLING LLP
`
`By:
`
`Jeffrey M. Davidson
`Attorneys for Respondent
`The Regents of the University of California
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`5
`RESPONDENT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S APPLICATION TO SEAL
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