Opinion
Case No. 14-cv-01619-WHO
08-06-2015
FABRIENNE ENGLISH, Plaintiff, v. APPLE INC, et al., Defendants.
ORDER REGARDING SEALING OF MOTION FOR CLASS CERTIFICATION
Re: Dkt. Nos. 180, 182, 183, 186, 187, 197
Between July 1, 2015 and July 14, 2015, plaintiff made six separate filings in connection with her motion for class certification, all filed as exhibits to various administrative motions to file under seal. See Dkt. Nos. 180, 182, 183, 186, 187, 189. On July 1, 2015, she moved to seal the entire motion for class certification and all of its supporting exhibits. Dkt. No. 180. The next day, she filed a "corrected" motion to seal, along with six "corrected" exhibits. Dkt. Nos. 182, 183. A week later, on July 9, 2015, she filed a second "corrected" motion to seal, along with a "corrected" version of her class certification motion. Dkt. No. 186. On July 10, 2015, she filed a third "corrected" motion to seal, accompanied by an "errata" to the "corrected" version of the class certification motion. Dkt. No. 187. Finally, on July 14, 2015, she filed yet another "corrected" motion to seal, this time accompanied by two "corrected" expert reports. Dkt. No. 189.
On July 16, 2015, at Apple's request, I issued an order prohibiting plaintiff from making any further supplemental filings in support of her motion for class certification without prior leave of the Court. Dkt. No. 194. --------
Plaintiff does not identify any confidential information concerning herself or other putative class members in the motion for class certification or its supporting exhibits. She nevertheless seeks to seal the entire motion and all of its exhibits "out of respect for Apple's sensitive trade position, [in] the interest of promoting an amicable resolution, in consideration of how important one's reputation is, and to promote good relations with Apple." Dkt. Nos. 180, 189.
Apple correctly construed plaintiff's sealing request as governed by Civil Local Rule 79-5(e), which applies where the party moving to seal "seek[s] to file under seal a document designated as confidential by the opposing party or a nonparty pursuant to a protective order, or a document containing information so designated by an opposing party or a nonparty." Civil L.R. 79-5(e). After receiving an extension of time, Dkt. Nos. 184, 185, Apple filed its declaration in support of sealing pursuant to Civil Local Rules 79-5(e)(1) and 79-5(d)(1)(A) on July 20, 2015. Dkt. No. 197.
Apple seeks to seal two categories of documents. First, Apple seeks to seal in their entirety those documents that have been supplanted by plaintiff's various "corrected" or other amended filings. Dkt. No. 197 at 1. Those documents are no longer material to this case, and this first request is GRANTED.
Apple also seeks to seal various portions of the most recent versions of the motion for class certification and its exhibits. Apple identifies four categories of information for sealing: (1) information concerning its remanufacturing and testing processes; (2) information concerning its internal training materials; (3) information concerning its sales and service numbers; and (4) information concerning its databases and data capabilities. Vyas Decl. ¶¶ 2-13 (Dkt. No. 197-9).
With respect to each of the four categories, Apple offers essentially the same justification for sealing - i.e., that the information is confidential, and that its disclosure "would pose a substantial risk to Apple's interests and could adversely impact Apple's ability to compete in the future," because competitors could model their own business operations after Apple's or otherwise use the information to "unfairly compete" with Apple. Id. ¶¶ 4, 7, 10, 13.
"The Ninth Circuit has not ruled as to whether a motion for class certification is a dispositive motion for the purposes of determining whether the compelling reasons standard applies" to a sealing request. Ramirez v. Trans Union, LLC, No. 12-cv-00632-JSC, 2014 WL 1677815, at *2 (N.D. Cal. Apr. 28, 2014) (internal quotation marks omitted). Although courts in this district generally treat motions for class certification as nondispositive, they have also recognized that "there may be circumstances in which a motion for class certification is case dispositive," for example, where the "denial of class status means that the stakes are too low for the named plaintiffs to continue the matter." In re High-Tech Employee Antitrust Litig., No. 11-cv-02509-LHK, 2013 WL 163779, at *2 n.1 (N.D. Cal. Jan. 15, 2013) (internal quotation marks omitted); see also Dugan v. Lloyds TSB Bank, PLC, No. 12-cv-02549-NJV, 2013 WL 1435223, at *1 (N.D. Cal. Apr. 9, 2013) ("Unless the denial of a motion for class certification would constitute the death knell of a case, the vast majority of courts within this circuit treat motions for class certification as nondispositive motions to which the good cause sealing standard applies.") (internal quotation marks and alterations omitted).
Here, plaintiff's individual damages claims are sufficiently limited that it is not plausible that she would continue to litigate the case if certification is denied. Accordingly, I find that the compelling reasons standard applies. See Herskowitz v. Apple, Inc., No. 12-cv-02131-LHK, 2014 WL 3920036, at *2 (N.D. Cal. Aug. 7, 2014) (applying compelling reasons standard to documents filed in connection with class certification motion where named plaintiff's limited individual damages claims "strongly suggest that the stakes of this case following the Court's denial of class certification are now too low for the named plaintiffs to continue the matter") (internal quotation marks omitted).
Under that standard, a party seeking to seal materials must identify "compelling reasons supported by specific factual findings . . . that outweigh the general history of access" to judicial records. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotation marks, citations, and alterations omitted). "This presumption of access may be overcome only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture." Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (internal quotation marks omitted). In general, compelling reasons sufficient to justify sealing exist when the materials "might have become a vehicle for improper purposes, such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Kamakana, 447 F.3d at 1179 (internal quotation marks omitted). But "[t]he mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Id.
In addition, under this district's civil local rules, "[a] sealing order may issue only upon a request that establishes that the document, or portions thereof, are privileged, protectable as a trade secret, or otherwise entitled to protection under the law." Civil L.R. 79-5(b). The sealing request must also be "narrowly tailored." Id.
With these principles in mind, I rule as follows:
| Information Concerning Apple's Remanufacturing and Testing Processes | ||||
|---|---|---|---|---|
| Dkt.No. | ExhibitNo. | Document Name | Portions Identified for Sealing | Ruling |
| 186-1 | N/A | Motion for ClassCertification | 4:19-219:1-312:6-9 | DENIED |
| 180-8 | 3 | Lanigan Depo. | 27:1-2528:1-8, 24-2593:1-2, 4-2594:1-25105:1-3, 15, 18160:1-2, 5-13, 22-25161:1-10, 12-13, 15-25163:1-23167:1-4, 7-8, 11-25168:1-25169:1-20171:11-25177:17-25215:1-2, 5-7, 9-11, 13, 17-22,24-25216:1-2, 4-9, 13-24220:1-15221:3-4, 7-18, 20-25225:1-4, 6-11226:24-25227:1-14, 16-25272:9-15, 20-21273:7-13, 16-17, 19-25274:1-14, 18-20, 22-24 | DENIED |
| 180-23 | 18 | Dixon Decl. | 2:7-283:1-8.5, 12-14.5 | DENIED |
| Information Concerning Apple's Internal Training Materials | ||||
| Dkt.No. | ExhibitNo. | Document Name | Portions Identified for Sealing | Ruling |
| 186-1 | N/A | Motion for ClassCertification | 10:26-2811:1-512:24-2713:5-10 | DENIED |
| 183-5 | 19 | Reed Decl. | 4:10-12 | DENIED |
| 180-25 | 20 | Apple Productsand Services:AppleRetail TrainingCore TrainingFacilitatorGuide | All | CONDITIONALLYGRANTED |
| 183-6 | 21 | Ramos Decl. | 3:11-13 | DENIED |
| 180-27 | 22 | Apple Services:Market CoreTrainingFacilitator Guide | All | CONDITIONALLYGRANTED |
| 180-28 | 23 | Core TrainingFacilitator Guide:Apple Productsand Services | All | CONDITIONALLYGRANTED |
| 180-29 | 24 | Louise:AppleCare+Timeline Updates:Black Project | All | CONDITIONALLYGRANTED |
| 180-34 | 29 | AOS Learning:Selling theAppleCareProtection PlanFacilitator's Guide | All | CONDITIONALLYGRANTED |
| 180-35 | 30 | Training Activity | All | CONDITIONALLYGRANTED |
| 180-36 | 31 | Training Materialsand TestQuestions | All | CONDITIONALLYGRANTED |
| 180-38 | 33 | Apple Products | All | CONDITIONALLYGRANTED |
| 180-39 | 34 | AppleCare+ Enrollat Time ofIncident | All | CONDITIONALLYGRANTED |
| 180-40 | 35 | AppleCare+ EnrollWithin 30 Days ofPurchase | All | CONDITIONALLYGRANTED |
| 180-41 | 36 | PositioningAppleCare+ in theFamilyRoom | All | CONDITIONALLYGRANTED |
| 180-42 | 37 | APL00000791 | All | CONDITIONALLYGRANTED |
| Information Concerning Apple's Sales and Service Numbers | ||||
|---|---|---|---|---|
| Dkt.No. | ExhibitNo. | Document Name | Portions Identified for Sealing | Ruling |
| 186-1 | N/A | Motion for ClassCertification | 10:1318:7-9 | CONDITIONALLYGRANTED |
| 180-31 | 26 | Defendant AppleInc.'s HighlyConfidentialResponses toPlaintiff'sInterrogatories,(Set Two) | 4:195:126:107:5 | CONDITIONALLYGRANTED |
| Information Concerning Apple's Databases and Data Capabilities | ||||
|---|---|---|---|---|
| Dkt.No. | ExhibitNo. | Document Name | Portions Identified for Sealing | Ruling |
| 186-1 | N/A | Motion for ClassCertification | 9:20.5-27.510:1-217:28.518:1 | DENIED |
| 180-10 | 5 | Morrison Depo. | 67:5-1171:14-1879:16170:17-20 | DENIED |
Because it appears that at least some of the denied sealing requests listed above are merely overbroad and/or concern information that could be sealable upon a proper showing, I will deny the requests without prejudice. Apple may file a revised declaration narrowing its sealing requests and/or articulating specific reasons justifying those requests within seven days of the date of this order. If Apple does not do so, the materials will be unsealed.
In addition, as the motion for class certification is not yet fully briefed, it is not yet clear what information will be material to resolution of that motion. Accordingly, certain of the sealing requests listed above are granted conditionally, subject to reconsideration once the motion for class certification has been fully briefed and argued. I rule on the sealing requests now to provide the parties some guidance on what constitutes sealable information in this case.
IT IS SO ORDERED. Dated: August 6, 2015
/s/_________
WILLIAM H. ORRICK
United States District Judge