Moussouris v. Microsoft Corp.

Full title: KATHERINE MOUSSOURIS, HOLLY MUENCHOW, and DANA PIERMARINI, on behalf of…

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Date published: Feb 16, 2018

Case No. 15-cv-1483 JLR (W.D. Wash. Feb. 16, 2018)

Opinion

Case No. 15-cv-1483 JLR

02-16-2018

KATHERINE MOUSSOURIS, HOLLY MUENCHOW, and DANA PIERMARINI, on behalf of themselves and a class of those similarly situated, Plaintiffs, v. MICROSOFT CORPORATION, Defendant.

THE HONORABLE JAMES L. ROBART

REPORT AND RECOMMENDATION ON MOTIONS TO SEAL

I. INTRODUCTION

This matter is before the special master on Plaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini's (collectively, "Plaintiffs") motion to seal Plaintiffs' motion to certify class (dkt. # 228 (sealed)), Exhibit C to the Declaration of Anne B. Shaver ("First Shaver Decl.") filed in support of Plaintiffs' motion to certify class and portions of Exhibits A, F, and H and references thereto (dkt ## 229 (sealed) and 233 (redacted)), the Expert Report of Dr. Henry S. Farber (dkt. # 230 (sealed)) and the Errata to the Expert Report of Dr. Henry S. Farber (dkt. # 332 (sealed)), and the Expert Report of Dr. Ann Marie Ryan (dkt. # 231 (sealed)). Plaintiffs' Mot. (Dkt. # 227). Plaintiffs are not the proponents of this motion to seal. Plaintiffs move to seal these documents pursuant to the parties' stipulated protective order (dkt. # 48) regarding the filing of confidential material under seal and LCR 5(g)(3). Defendant Microsoft Corporation's ("Microsoft") response to the opposition (dkt. # 269) sets forth the grounds for filing these materials under seal. The special master also reviewed Plaintiffs' reply (dkt. # 277), which is essentially the opposition to Microsoft's request to seal, and Microsoft's sur-reply (dkt. # 280).

Also before the special master is Microsoft's unopposed motion to seal documents submitted in support of its opposition to Plaintiffs' motion for class certification, including a motion to seal the Errata to the Expert Report of Dr. Ali Saad Ph.D. Mot. (Dkt. # 283); Mot. to Seal Errata (Dkt. # 333). Microsoft moves to seal the portions of the following documents filed in support of its opposition to Plaintiffs' motion for class certification: (1) Exhibit 1 to the Declaration of Mark Parris (dkt. # 288); (2) portions of the Declaration of Shinder Dhillon and Exhibits C, E, F, H, I, J, and K attached thereto (dkt. ## 297 (sealed) and 298 (redacted)); (3) one sentence of the Declaration of Chris Helf (dkt. ## 301 (sealed) and 300 (redacted)); (4) Exhibit P to the Declaration of Amy M. Jantz (dkt. ## 305 (sealed) and 304 (redacted)); (5) Exhibit B to the Declaration of Joseph Whittinghill (dkt. ## 321 (sealed) and 320 (redacted)); (6) one sentence of the Declaration of Rukmini Iyer (dkt. ## 303 (sealed) and 302 (redacted)); and (7) portions of the Expert Report of Dr. Ali Saad, Ph.D (dkt. ## 290 (sealed) and 289 (redacted)) and portions of the Errata to the Expert Report of Dr. Ali Saad Ph.D (dkt. ## 336 (sealed) and 337 (redacted)).

Having considered the parties' submissions and the record before the special master, including the unredacted documents filed under seal, the special master recommends that the Plaintiffs' motion to seal (dkt. # 227) and Microsoft's motions to seal (dkt. ## 283 and 333)¹ be GRANTED in part and DENIED in part, as described in detail in Sections E, F, and G. Neither party requests that the sealed document be withdrawn, rather than unsealed, if the motion to seal is denied pursuant to LCR 5(g)(6).

1 Objections to the appointment of the special master to assist with the remaining motions to seal (dkt. #333 and 339) are not due until February 19, 2018. Microsoft's motion to seal the Errata to the Expert Report of Dr. Ali Saad Ph.D. does not present any new arguments or request to seal new material. Cf. Mot. to Seal (dkt. # 283) with Mot. to Seal Errata (dkt. # 333). Accordingly, the special master includes the motion to seal Errata with these recommendations.

II. BACKGROUND

This is a putative class action filed in September 2015 by former Microsoft employees alleging gender-based employment discrimination. During discovery Microsoft produced a number of documents marked "confidential" or "highly confidential." Pursuant to the parties' stipulated protective order, these documents were required to be filed under seal. Plaintiffs seek to rely on these documents to support their motion for class certification. Microsoft similarly filed "confidential" or "highly confidential" material in opposition to Plaintiffs' motion to certify class. Microsoft requests that the Court consider the confidential and highly confidential documents filed in support and in opposition to the motion to certify class but not to allow public access to these court filings.

Microsoft also filed a notice of non-opposition by Plaintiffs to its motion to seal (dkt. # 326). As with a stipulation to seal material filed with the Court, a non-opposition also requires a ruling by the Court on a motion to seal. LCR 5(g)(2)(B).

On April 18, 2017, the Court indicated its intent to appoint a special master to assist the Court with certain matters as the Court may determine after notice to the parties. (See Dkt. ## 187, 191). The parties agreed to have the undersigned serve as a special master and, on January 3, 2018 (dkt. # 282), January 9, 2018 (dkt. # 324), and February 15, 2018 (dkt. # 350), the Court ordered the special master to issue a report and recommendation regarding Plaintiffs' motion to seal and Microsoft's motion to seal.

III. ANALYSIS

The parties do not agree on the appropriate legal standard for determining whether materials filed in support and in opposition to a motion to certify class should be filed under seal. Microsoft argues that the Court should evaluate the motions to seal using the "good cause" standard for sealing documents and not the "compelling reasons" standard as argued by Plaintiffs. Microsoft correctly cites Center for Auto Safety v. Chrysler Group, LLC, as the Ninth Circuit's most recent authority on the question of standards for motions to seal. 809 F.3d 1092, 1096-97 (9th Cir. 2016), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 (2016). The special master, however, does not agree with Microsoft's application of Chrysler to the motions before the Court. The special master recommends that the Court employ the "compelling reasons" standard in its own analysis of the motions to seal.

A. Legal Standards

The district court in Chrysler was asked to rule on a third-party intervenor's motion to unseal materials filed in support of a motion for preliminary injunction. 809 F.3d at 1095. As a threshold question, the district court considered whether the motion to unseal was subject to a good cause or compelling reasons standard for sealing. Id. The district court relied on language from prior Ninth Circuit opinions that seemed to make a binary distinction between dispositive and non-dispositive motions. Id. Finding that the motion for preliminary injunction was non-dispositive because it could not "literally lead to the final determination on some issue," the district court applied the "good cause" standard and sealed the materials at issue. Id. at 1096 (internal quotations omitted; emphasis omitted).

On appeal, the Ninth Circuit vacated and remanded the motion to seal finding that the district court should have applied the compelling reason standard. Id. at 1103. In remanding the motion, the Ninth Circuit stated that "permitting the public's right of access to turn on what relief a pleading seeks—rather than on the relevance of the pleading—elevates form too far beyond substance and over reads language on our case law." Id. (emphasis in original). Historically, courts have recognized a "general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978). "Unless a particular court record is one 'traditionally kept secret,' a 'strong presumption in favor of access' is the starting point." Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). The Ninth Circuit's pre-Chrysler case law suggested that there was a bright line rule regarding the applicable standard to apply to dispositive versus non-dispositive motions. Generally, the court has held that because the public's interest in non-dispositive motions is relatively low, a party seeking to seal a document attached to a non-dispositive motion need only demonstrate "good cause." Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010). Conversely, "the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the 'public's understanding of the judicial process and of significant public events.'" Kamakana, 447 F.3d at 1179 (quoting Valley Broadcasting Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)).

The basis for the Chrysler court's clarification that there is not a binary, bright-line rule based on the dispositive versus non-dispositive distinction, as the sole determination of what standard to apply, focused on the reasons for adopting the lower good cause standard in the first place. To begin, the court noted that the compelling standard is essentially the default standard because of the "strong presumption in favor of access to court records." Id. at 1096 (quoting Foltz, 331 F.3d at 1135). Despite the strong presumption for public access, the Ninth Circuit carved out a "good cause" exception for sealed material relating to discovery motions unrelated to the merits of the case. Id. at 1097. The good cause standard is derived from Federal Rule of Civil Procedure 26(c). Fed. R. Civ. P. 26(c) ("The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ."). When the court is asked to rule on issues relating to discovery and whether materials must be disclosed or produced pursuant to a protective order, it is the good cause standard that applies to the analysis of whether the discovery dispute is a private or public matter. This distinction rests on the premise that discovery in our system is largely "conducted in private as a matter of modern practice," so the public is not presumed to have a right of access to it. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) ("Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.").

The Chrysler court recognized that there were non-dispositive motions that may be directly related to the merits of the case. 809 F.3d. at 1099. Thus, the dispositive versus non- dispositive distinction cannot be the ultimate determination.² Rather, the "focus in all of our cases is whether the motion at issue is more than tangentially related to the underlying cause of action." Id.

2 While noting that "public access to filed motions and their attachments does not merely depend on whether the motion is technically 'dispositive,'" the Chrysler court nevertheless pointed out that the Ninth Circuit already considers motions for preliminary injunctions to be dispositive in the context of magistrate jurisdiction. Thereby suggesting that even under the dispositive non-dispositive distinction the preliminary injunction motion before the district court in Chrysler should have been treated as a dispositive motion. Id. at 1101 n.8 (citing Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015)). Motions to dismiss or to permit maintenance of a class action are also listed as not pretrial matters under the Federal Magistrate Act and therefore "dispositive" according to Flam. See 28 U.S.C. § 636(b)(1)(A).

B. Tangentially Related

Microsoft argues that a motion to certify class is not tangentially related to the underlying cause of action unless the denial of a motion for class certification would constitute the death knell of a case. Microsoft's Resp. at 4 (citing Stoba v. Saveology.com, LLC, No. 13-CV-02925-BAS(NLS), 2016 WL 1257501, at *2 (S.D. Cal. Mar. 31, 2016) (ruling that "the 'vast majority of [ ] courts within this circuit' treat motions for class certification as non-dispositive motions to which the 'good cause' sealing standard applies.") (quoting Dugan v. Lloyds TSB Bank, PLC, No. 12-CV-02549-WHA(NJV), 2013 WL 1435223, at *1 (N.D. Cal. Apr. 9, 2013)). The origins of the Dugan court's statement that the vast majority of courts treat motions for class certification as non-dispositive, is derived from one line in In re High-Tech Employee Antitrust Litig., in which the district court found that non-dispositive motions are analyzed under the good cause standard and also cited Federal Rule of Civil Procedure 26(c)'s standard for a protective order. 2013 U.S. Dist. L EX IS 6606, *8 at n.1 (N.D. Cal. Jan. 15, 2013). Accordingly, the cases discussing the "death knell" outcome for class certification rely on the dispositive versus non-dispositive distinction.³

3 Microsoft argues that a denial of Plaintiffs' motion to certify class would not be the "death knell" of the case because the Plaintiffs allege damages of over $10,000 per individual. Microsoft's Resp. at 4. Even if the "death knell" standard applied, the special master is not persuaded by this argument as this matter is at its core a putative class action and not three individual claims for gender discrimination.

Microsoft also relies on a September 19, 2017 opinion from this jurisdiction that finds the good cause standard applies to motions to certify class. Microsoft's Sur-Reply at 1-2; Microsoft Mot. to Seal at 3 (citing Kautsman v. Carrington Mortg. Servs., LLC, No. 16-1040, Dkt. # 51, (W.D. Wash. Sept. 19, 2017)). This case is significant, according to Microsoft, as it is the only one in this jurisdiction decided after Chrysler. In Kautsman, the court reasoned that a class certification motion primarily requires an analysis of whether the class device is appropriate and is not a motion on the merits. Kautsman, No. 16-1040, Dkt. # 51 at 2. The court also held that the reason it was applying the "good cause" standard was because the motion was non-dispositive. Id. The court in Kautsman therefore appears to have followed the binary approach rejected by Chrysler and did not analyze the motion to certify class based on whether it was more than tangentially related to the merits of the case.

The proper question before the Court is whether this motion to certify class is more than tangentially related to the merits of the underlying case. As the Supreme Court noted in Wal-Mart Stores, Inc. v. Dukes, the "rigorous analysis" district courts engage in to ensure that the prerequisites of Federal Rule of Civil Procedure 23(a) have been satisfied at the class certification stage "frequently . . . will entail some overlap with the merits of the plaintiff's underlying claim." 564 U.S. 338, 351 (2011) (internal quotation marks omitted). Moreover, after Chrysler, district courts that have addressed the issue have found that the "compelling reasons" standard applies to motions for class certification. See e.g., Opperman v. Path, Inc., 2017 WL 1036652, at *5 (N.D. Cal. Mar. 17, 2017) (ruling on a motion to seal exhibits attached to a motion to certify class under the compelling reason standard); Lucas v. Breg, Inc., 2016 WL 5464549, at *1 (S.D. Cal. Sept. 28, 2016) ("Thus, the Court finds that Plaintiffs' motion for class certification is more than tangentially related to the merits of the case, and that the compelling reasons standard applies.").

Here, at a minimum, the Court's determination of Plaintiffs' motion to certify class will involve considerations relating to whether Microsoft has maintained a common, discriminatory pay and promotions process coined the "Calibration Process" throughout the class period. According to Plaintiffs, this Calibration Process resulted in lower pay and fewer promotions for women compared to their male peers. In order to succeed on a class certification motion, Plaintiffs argue that the Calibration Process is a specific employment practice that causes broad gender-based pay and promotion outcomes that negatively affect women. Because the motion for class certification will involve an evaluation of Microsoft's pay and promotions process as part of the analysis of whether there are common questions of law or fact under Federal Rule of Civil Procedure 23(a), the special master recommends that the Court find that the motion to certify class is more than tangentially related to the merits of the case. The special master therefore recommends that the compelling reasons standard be applied to this motion.

C. Compelling Reasons Standard

"'[C]ompelling reasons' sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such 'court files 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 (quoting Nixon, 435 U.S. at 598). The Nixon court also noted that the "common-law right of inspection has bowed before the power of a court to insure that its records" are not used as "sources of business information that might harm a litigant's competitive standing." 435 U.S. at 598.

To overcome this strong presumption, a party seeking to seal a judicial record must articulate justifications for sealing that outweigh the public policies favoring disclosure. See Kamakana, 447 F.3d at 1178-79. To do this, pursuant to the Court's local rules, the proponent of a motion to seal a document, even if it is a stipulated motion, must include the following: a specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of:

i. the legitimate private or public interests that warrant the relief sought;

ii. the injury that will result if the relief sought is not granted; and

iii. why a less restrictive alternative to the relief sought is not sufficient. Evidentiary support from declarations must be provided where necessary. LCR 5(g)(3)(B). Accordingly, unopposed motions to seal are not presumptively sealed where there is no objection for sealing the document as implied by Microsoft in its notice of non-opposition. See Microsoft's Notice of Non-Opposition. A motion to seal that does not provide an explanation for sealing cannot be granted; a specific reason for sealing must be articulated by the Court. As explained in Chrysler, before the Court may seal a record, it must find a compelling reason to seal and be able to articulate the basis for its ruling without relying on hypothesis or conjecture. 809 F.3d at 1096-97 (quoting Kamakana, 447 F.3d at 1179). Nor would an unsupported motion to seal meet the requirements of LCR 5(g)(3)(B).

D. Meet and Confer Requirement

Prior to filing their motion to seal documents filed in support of Plaintiffs' motion to certify class, pursuant to LCR 5(g), Plaintiffs met and conferred with Microsoft's counsel to discuss whether certain documents that Microsoft had labeled "highly confidential" or "confidential" should be filed under seal. As a result of this process, Microsoft withdrew its confidential designations on forty-three of the one hundred and seventy documents that Plaintiffs provided to Microsoft. Declaration of Lauri A. Damrell ("Damrell Decl.") (Dkt. # 273) at ¶ 4. Based on the dates and times provided in paragraph four of the Damrell Declaration, it appears that Microsoft's counsel was very responsive when Plaintiffs proposed filing documents that had been designated confidential by Microsoft. Id. (Microsoft responded to Plaintiffs' list of confidential documents within approximately 24 hours from the time they received the complete list from Plaintiffs.).

Nevertheless, Plaintiffs still filed their motion to seal documents in support of class certification that included additional documents not previously discussed with Microsoft's counsel. Had Plaintiffs consulted with Microsoft before filing these documents under seal, they would have learned that Microsoft would agree to withdraw some of the confidential designations to the documents thereby avoiding sealing them. Id. For example, Exhibit D to the First Shaver Declaration should not have been filed under seal by Plaintiffs. In an attempt to rectify the situation, Microsoft attached Exhibit D in its entirety to the Damrell Declaration as Exhibit 2. Microsoft also revised its position with respect to Exhibits E, F, G, and H to the First Shaver Declaration. With respect to Exhibits E and G, Microsoft withdrew any confidentiality designations and filed Exhibits E and G in their entirety as Exhibits 3 and 5, respectively, to the Damrell Declaration. With respect to Exhibits F and H, Microsoft provided redacted versions of these documents attached as Exhibits 4 and 6 to the Damrell Declaration, respectively.

E. Analysis of Categories of Sealed Documents

Before the Court may seal a record, it must find a compelling reason to seal and be able to articulate the basis for its ruling without relying on hypothesis or conjecture. The Court must then balance the compelling reasons found for sealing the document with the public's interest in open access to the court's records. Chrysler, 809 F.3d at 1097. Microsoft's compelling reasons for sealing the documents identified in the motions to seal generally fall into four categories that it seeks to protect from disclosure: (1) the privacy interests of non-parties; (2) confidential settlement agreements; (3) Office of Federal Contract Compliance Programs ("OFCCP") investigative information, notices of violations and responses thereto; and (4) confidential business records and to prevent competitive harm. Microsoft's Resp. at 5-12. Each category is analyzed separately.

a. Privacy Interests of Non-Parties

Microsoft seeks to file under seal Exhibit C in its entirety and portions of Exhibit A to the First Shaver Declaration because they reveal the names and other identifying information of non-parties. First Shaver Decl., Exs. A and C. In its own motion to seal, Microsoft moves to seal one sentence of the Iyer Declaration found at pages three and four and limited portions of the Expert Report of Ali Saad Ph.D. and Errata also on the basis that they reveal the names and other identifying information of non-parties. The special master finds that the privacy interests of non-parties—most of whom raised allegations that they were discriminated against or harassed while employed by Microsoft—outweighs the public's interest in knowing the identity of the non-parties. "Such information is private to the individuals involved, who have not sought to place that private information in the public sphere." Nettles v. Farmers Ins. Exch., No. C06-5164RJB, 2007 WL 858060, at *1 (W.D. Wash. Mar. 16, 2007). The names of non- parties and any other identifying information should be redacted from the public record as explained specifically below.

i. Exhibit A to First Shaver Declaration

With respect to Exhibit A to the First Shaver Declaration, Microsoft seeks to redact individuals' names to the greatest extent possible. Microsoft's Resp. at 6. Where redacting just the names of the non-party would not be sufficient to protect their identities, Microsoft seeks to redact further identifying information that would allow someone to identify the non-party. For example, unique job titles, specific client account information, and roles within the organization. Id. To determine what information should be redacted from Exhibit A to the First Shaver Declaration, the special master compared the sealed version of the First Shaver Declaration Exhibit A with the redacted version attached to the Damrell Declaration Exhibit 1 (dkt. # 273-1). The special master's recommendations are identified as "Non-Party Identifying Information" as the basis for granting the motion in the below charts titled "Exhibit A to First Shaver Declaration" in Section F.

ii. Exhibit C to First Shaver Declaration

Exhibit C to the First Shaver Declaration contains two summary charts revealing the names of Microsoft employees who asserted claims or allegations against Microsoft regarding themselves and others that were investigated by the Employee Relations Investigation Teams ("ERIT"). Specifically, Exhibit C consists of two ERIT logs produced by Microsoft. The "First ERIT Log" is dated October 14, 2016; the "Second ERIT Log" is dated January 9, 2017. First Shaver Decl. at ¶ 7. Although Plaintiffs initially agreed to the sealing of Exhibit C, arguing that Exhibit C meets the compelling reason standard (mot. to seal at 1), in their reply to the motion, Plaintiffs now move to unseal Exhibit C with appropriate redactions to remove the names and identifiers of the complainants. Second Shaver Decl. (Dkt. ## 278 (redacted) and 279-3 (sealed)) ¶ 6 (chart prepared by Plaintiffs setting forth Plaintiffs' position with respect to sealed exhibits).

Even with the identifying information redacted from Exhibit C, Microsoft continues to object to unsealing Exhibit C on the basis that the charts reveal the number of internal complaints lodged by employees and the number of times that Microsoft found a company policy violation. Microsoft's Sur-Reply at 5. Microsoft's basis for sealing the number and outcomes of its investigations is confusing. Microsoft seems to argue that this type of information may be protected by attorney-client privilege or the work product doctrine. Id. These charts were produced to Plaintiffs without redaction so privilege cannot form the basis of its objections. Microsoft next argues that it keeps these investigations confidential and they are stored in confidential ERIT files or legal files which have restricted access. Id. This does not explain why, after redaction, there is a compelling reason to keep the numbers and outcomes sealed from the public view.

Microsoft also argues without explanation that the numbers and outcomes of its investigations could "easily be associated with frequent training and communications designed to encourage employees to come forward and may also reflect the positive reputation of the investigation process and staff as an effective problem solving mechanism." Id. It appears that Microsoft is implying that if the numbers and outcomes of its investigations, with the dates, is unsealed it could disclose how often it does trainings regarding harassment and discrimination. Id. The special master finds that argument too remote a possibility of harm to satisfy the compelling reasons standards for sealing documents.

Finally, Microsoft argues that Plaintiffs' attempts to paint a picture with just the raw data as to the effectiveness of Microsoft's investigatory process may deter Microsoft employees from taking advantage of the process in the future. Id. Again, Plaintiffs' ability to paint a negative picture of the effectiveness of Microsoft's investigatory process and whether that picture will deter future Microsoft employees from taking advantage of the process is far too remote a competitive or business harm to meet the compelling reason standard. The special master therefore recommends that the Complainant Alias, Complainant Name from the First ERIT chart, and the Complainant's name in the Second ERIT attached to the First Shaver Declaration as Exhibit C be redacted and the charts be filed on the public docket. See, e.g., Second Shaver Decl., Ex. D (redacted version of Exhibit C to First Shaver Declaration).

In other documents filed by Plaintiffs, Microsoft seeks to redact any reference to the number of complaints it has received as well as the outcomes of those complaints. Microsoft offers the same arguments for redacting this information as for First Shaver Declaration, Exhibit C. The special master similarly finds Microsoft's arguments regarding its need to redact the numbers and outcomes of internal investigations to fall short of the compelling reason standard.

iii. One Sentence of the Iyer Declaration

Asserting the privacy interests of non-parties, Microsoft seeks to redact a sentence found at paragraph nine of the Iyer Declaration wherein the declarant discusses a situation in which she mentored a direct report through a difficult time. Iyer Decl., at ¶ 9. Because a description of the employee's difficult period may reveal the identity of the employee, the special master recommends that the one sentence of the Iyer Declaration remain redacted.

iv. Portions of the Expert Report of Dr. Ali Saad Ph.D. and Errata

Microsoft also moves the Court to allow redactions of the Expert Report of Dr. Ali Saad Ph.D. to protect the identity of non-parties to this lawsuit as they have not chosen to place this information in the public record. Mot. at 7.⁴ At paragraphs 41-42, including charts and footnotes, Dr. Saad discusses Plaintiff Moussouris's total compensation, as well as the compensation of non-parties to the lawsuit. Moussouris has put her compensation at issue by filing this lawsuit and therefore her own compensation is not subject to protection on the basis of protecting non-parties. However, as discussed below at Section E(d), Moussouris's compensation as it relates to her peers does reveal information about Microsoft's confidential compensation structure and therefore there is a compelling reason to keep this information under seal.

4 Microsoft filed an Errata to the Expert Report of Dr. Ali Saad Ph.D. at 136. The Errata relates to errors in numbers and compensation figures only and does not change the analysis of non-party identifying information.

Paragraphs 161-165 of Dr. Saad's report gives a detailed description of multiple employees' compensation, job duties, and performance evaluation. Although the employees are identified by employee number, the descriptions in their evaluations and the references to their first names in the evaluations would make it easy to identify the employee. The redactions in paragraphs 161-165 protect non-party identifying information that meets the compelling reasons standard.

Paragraph 188-192 of Dr. Saad's report compares employees in the same role with their corresponding salary. The personnel number for each employee is not redacted but the descriptions of their roles and responsibilities is redacted. Thus, it is not clear whether Microsoft is attempting to protect the employee non-parties or the description of their roles and responsibilities. The special master recommends that Microsoft unredact the descriptions of the employees' roles and responsibilities unless the description reveals a trade secret relating to product development, as discussed further below.

b. Confidential Settlement Agreements

Microsoft argues that portions of Exhibit A to the First Shaver Declaration should be sealed because they include settlement agreements in other cases. As pointed out by Microsoft, in another matter, this Court previously sealed the contents of confidential settlement negotiations from related litigation under a compelling reasons analysis. Microsoft's Resp. at 7 (citing Microsoft v. Motorola, No. 2:10-CV-01823-JLR, 2012 WL 5476846, at *2 (W.D. Wash. Nov. 12, 2012 (Robart, J.)). The Court in Motorola did find that the "importance of encouraging frank settlement negotiations outweighs the public's interest in knowing what was discussed in those settlement negotiations" and thus sealed the exhibit relating to the parties' prior negotiations. Id. The Motorola Court, however, viewed the sealing requirement from a Federal Rule of Evidence 408 basis. Id. (noting the purpose of Fed. R. Evid. 408 "encourages the compromise and settlement of existing disputes"). Here, Microsoft seeks to seal wholly unrelated confidential settlement agreements as opposed to settlement negotiations involving similar parties and allegations as was the case in Motorola.

In further support of its motion, Microsoft cites Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002), in which the court permitted the sealing of confidential settlement agreements. The Ninth Circuit in Phillips analyzed whether the confidential settlement agreements could be filed under seal pursuant to a "good cause" standard and found that they could. Id. at 1212. The court did not address whether the agreements would be filed under seal based on a compelling reason standard.

The only basis given by Microsoft for sealing all settlement negotiations and agreements in Exhibit A is that the parties agreed to keep these agreements confidential and for "attorneys eyes only." The existence of a confidentiality provision, without more, does not constitute good cause, let alone a compelling reason, to seal. See e.g., Foltz, 331 F.3d at 1136-38; Select Portfolio Servicing v. Valentino, No. C 12-0334 SI, 2013 WL 1800039, at *3 (N.D. Cal. Apr. 29, 2013) (that the parties agreed among themselves to make the settlement agreement confidential was insufficient to shield the information from public access); Bernstein v. Target Stores, Inc., No. 13-CV-01018 NC, WL 5807581, at *3 (N.D. Cal. Oct. 28, 2013) ("The existence of a confidentiality provision [in a settlement agreement], without more, does not constitute good cause, let alone a compelling reason, to seal.").

The fact that the settlement agreements are confidential is not a sufficient basis for sealing the agreements. Microsoft does not explain the legitimate private or public interests that warrant the relief sought other than to say the that parties wanted them to be confidential. Nor does Microsoft explain what injury will result if the relief sought is not granted or whether there is a less restrictive alternative to the relief sought. See LCR 5(g)(3)(B). Without such information, the special master recommends that the Court find that the confidentiality provision in the settlement agreements is insufficient justification to grant the Microsoft's motion to seal the entire agreements where redaction of non-party identifying information would suffice.

c. OFCCP Investigative Information

Microsoft argues that the OFCCP documents attached to Exhibit A to the Shaver Declaration are exempt from disclosure under Exemption 7A of the Freedom of Information Act ("FOIA") and should therefore be filed under seal. Microsoft's Resp. at 8 (citing 5 U.S.C. § 552(b)(7)(A)). Microsoft alternatively argues that the information it submitted to the OFCCP was confidential business information. Microsoft's Sur-Reply at 2. And, Microsoft argues that because they are in the conciliation and resolution process with OFCCP, the Notice of Violation ("NOV") is tantamount to a confidential settlement communication. Id. at 3.

Whether the OFCCP documents are protected from public release under FOIA is not dispositive on the issue of whether the documents must be filed under seal. Such exempt documents "are not automatically privileged in civil discovery." Kamakana, 447 F.3d at 1185 (citing Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984) ("If information in government documents is exempt from disclosure to the general public under FOIA, it does not automatically follow the information is privileged . . . and thus not discoverable in civil litigation.")). Even if discoverable, "FOIA is a statutory scheme directed to regulating the public access to documents held by the federal government; the public's 'need' for a document is unrelated to whether it will be disclosed." Id. (citations omitted). By contrast, the public right of access to court documents is grounded on principles related to the public's right and need to access court proceedings. According to the Kamakana court, "it is unsound to equate the FOIA exemptions and similar discovery privileges" because the two schemes serve different purposes. Id. (holding that the court would not import wholesale FOIA exemptions as new categories of documents that are traditionally kept secret for sealing purposes). The fact that the documents are exempt under FOIA is not support for sealing documents on the court docket under a compelling reasons standard.

As with the other confidential business information that is properly redacted by Microsoft, as discussed below, the business information that is revealed in the OFCCP documents that Microsoft would like to keep confidential can easily be redacted from the public filing. Thus, the special master does not find that this basis is adequate to seal all the communications regarding the OFCCP investigation. See LCR 5(g)(3)(B).

The special master is persuaded, however, that the OFCCP conciliation process is an attempt to settle the claims by the OFCCP relating to similar allegations as are present in this case and therefore are confidential settlement communications. See Motorola, 2012 WL 5476846, at *2 ("The court views settlement negotiations between Microsoft and Motorola related to Motorola's standard essential patent portfolios in a similar light . . . the purpose of Federal Rule of Evidence 408 is to encourage the compromise and settlement of existing disputes. See Josephs v. Pac. Bell, 443 F.3d 1050, 1064 (9th Cir. 2006)."). By preventing settlement negotiations from being admitted as evidence, full and open disclosure is encouraged, thereby furthering the policy toward settlement. Id. (citing United States v. Contra Costa Cnty. Water Dist., 678 F.2d 90, 92 (9th Cir. 1982)).

Here, Microsoft seeks to seal the OFCCP NOV, Amended Notice of Violation ("ANOV"), and Microsoft's counsel's responses thereto. The OFCCP Compliance Manual explains that the NOV initiates the conciliation and resolution process. OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, FEDERAL CONTRACT COMPLIANCE MANUAL 264, §8F01 (2014). The conciliation and resolution process is a negotiation between a compliance officer and a contractor to resolve findings of noncompliance. Id. at 265, §8G. The process involves discussions using various methods of communication including the exchange of letters and e-mails, telephone conferences, and in-person meetings. Id. at §8G01. If these negotiations are successful, the compliance officer will document the terms of the settlement in a formal conciliation agreement. Id. The compliance evaluation is not complete until the compliance officer issues a closure letter to the contractor. Id. at §8G00. Given that the OFCCP documents represent Microsoft's attempts to settle the NOV and ANOV with the OFCCP, the special master recommends that the Court find that the importance of encouraging frank settlement negotiations between the OFCCP and Microsoft outweighs the public's interest in knowing what was discussed in those settlement negotiations.⁵ That said, if there is a final closure letter or final conciliation agreement, the analysis would change and the OFCCP closure documents would likely be made public.

5 The recommendations regarding OFCCP documents are reflected in the chart of recommendations to Exhibit A to the First Shaver Declaration.

d. Confidential Business Records and to Prevent Competitive Harm

Microsoft moves to seal portions of Exhibits A, F, and H to the Second Shaver Declaration, the Expert Report of Dr. Ann Marie Ryan and the Expert Report of Dr. Henry S. Farber and its Errata on the basis that they reflect Microsoft's confidential business strategy. Microsoft's Resp. at 9 (citing First Declaration of Shinder Dhillon ("First Dhillon Decl.") (Dkt. # 272), ¶ 3; First Declaration of Joseph Whittinghill ("First Whittinghill Decl.") (Dkt. # 270), ¶ 3). Microsoft also seeks to seal portions of exhibits it filed in opposition to the motion to certify class: Exhibit 1 to the Declaration of Mark Parris ("Parris Decl."); Exhibit P to the Declaration of Amy M. Jantz ("Jantz Decl."); Exhibit B to the Second Whittinghill Declaration and portions of the Expert Report of Dr. Ali Saad Ph.D. and its Errata; lines 5:8-9 and 6:13-14 of the Second Dhillon Declaration (dkt. ## 296 (redacted); 297 (sealed)) and Exhibits C, E, F, H, I, J, and K also attached to the Second Dhillon Declaration. Specifically, Microsoft asserts that portions of these documents reflect its confidential business strategies relating to (1) product development; (2) confidential human resources strategies reflecting how Microsoft compensates and evaluates its employees; and (3) confidential diversity initiatives and strategies. Id. at 10-11.

The special master has reviewed the materials filed in redacted form and begins the analysis with the understanding that "[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." Kamakana at 1179 (citing Foltz, 331 F.3d at 1136). "In general, 'compelling reasons' . . . . exist when such 'court files might have become a vehicle for improper purposes,' such as the use of records to . . . release trade secrets." Id. (citing Nixon, 435 U.S. at 598). The Ninth Circuit adopted the Restatements' definition of "trade secret" for purposes of sealing, holding that "[a] 'trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." In re Electronic Arts, 298 Fed. App'x 568, 569 (9th Cir.2008) (quoting Restatement of Torts § 757, cmt. b). Additionally, "compelling reasons" may exist if sealing is required to prevent judicial documents from being used 'as sources of business information that might harm a litigant's competitive standing." Id. at 569 (citing Nixon, 435 U.S. at 598) (holding that "the common-law right of inspection has bowed before the power of a court to insure that its records are not used . . . as sources of business information that might harm a litigant's competitive standing").

Thus, there is tension between what is considered information that may harm a litigant's competitive standing and information that is simply embarrassing or incriminating to the business. Although the special master does not find that Microsoft attempted to redact all embarrassing or incriminating materials, there is some material that may be harmful but is not a trade secret as the Ninth Circuit defines that term. When supported by argument or declarations, the special master recommends that Microsoft be permitted to redact materials that relate to (1) current product development or product information that Microsoft keeps a secret; (2) confidential human resources strategies including compensation and evaluations; and (3) Microsoft's confidential diversity initiatives.

i. Current Product Development

Microsoft redacted confidential product development strategies related to the development, promotion, and implementation of new Microsoft product. These redactions are reflected below in Exhibit A to the Shaver Declaration as "Confidential Product Development." There are only two redactions that Microsoft requests in this category and the special master finds that the redactions are narrowly tailored to protect its confidential product development information.

ii. Confidential Human Resources Strategies

Microsoft argues that the information contained in the exhibits to the Shaver Declaration, as well as the Expert Reports of Dr. Ann Marie Ryan and Dr. Henry S. Farber reflect confidential human resources strategy describing how Microsoft compensates its employees and how Microsoft evaluates employees for compensation and promotion. First Whittinghill Decl., ¶ 3. The processes explained in these documents were developed by and for Microsoft management to further Microsoft's ability to meet strategic objectives. Id. Microsoft does not allow the general employee population to access these materials; they are only accessible by Human Resources and Microsoft management. Id. Also, Whittinghill declares that the information redacted from the Farber Report "could be used to reverse engineer the compensation of Microsoft's engineers and IT operations professionals." Id.

Microsoft's Director of Compensation, Amy M. Jantz, likewise submitted a declaration in support of Microsoft's motion to seal wherein she explained that "Microsoft is just one of many companies competing for skilled engineering employees. Some of our primary competitors for engineers include Amazon, Facebook, Google, Oracle, and Salesforce. This competition for engineering employees is a factor that affects compensation at Microsoft in various ways." Jantz Decl. at ¶ 18. Jantz provided an example of a PowerPoint presentation entitled Project Inoculate II which provides details about this campaign to retain a specific type of highly sought-after engineering employees. Id. at ¶ 20 (Project Inoculate II as it relates to holographic computing - "there is a war for talent"). According to its declarants, human resource strategies is the type of information that Microsoft's competitors highly desire.

Accordingly, documents reflecting Microsoft's compensation structure and strategies to retain employees as reflected in the exhibits to the Shaver Declaration and the expert reports are designated as "Confidential Human Resource Strategies."

iii. Confidential Diversity Initiatives

Microsoft's position is that diversity and inclusion is a business imperative for it. Microsoft's Resp. at 11. Microsoft relies on the First Dhillon Declaration to support its explanation as to why its diversity initiatives are the equivalent of trade secrets for its business operations. Dhillon explains that Microsoft's diversity initiatives give it an advantage over its competitors. First Dhillon Decl., ¶ 4. These initiates help build the "emotional connection" employees need to demonstrate high-levels of commitment and contribution. Id. Microsoft's ability to foster greater diversity in the workforce and to recruit top diverse talent in a highly competitive labor market is important to its success. Id. To this end, Dhillon declares that Microsoft invests tens of millions of dollars in developing and implementing its diversity initiatives. Id. Dhillon also explains that Microsoft's competitors could unjustly gain access to Microsoft's diversity initiatives, strategies, and representation data to implement on their own and to try to recruit Microsoft's talent. Id. at ¶ 5.

Microsoft is also concerned that if its diversity data is released it could be misconstrued by outsiders and cause unnecessary disruption to Microsoft's business or improperly confuse and/or influence Microsoft's customers, employees, or potential employees. Id. To avoid this, Dhillon explains that Microsoft treats the diversity metrics and related strategy and analytics in Exhibit A as non-public and highly-sensitive. Id. at ¶ 6. Microsoft requires its employees that have access to diversity data to sign non-disclosure agreements. Id. at ¶ 7.

The special master finds Microsoft's argument that its diversity initiatives and strategies are trade secrets to be very persuasive and supported by the First Dhillon Declaration. The argument that the actual raw diversity data is highly confidential and could cause competitive harm and what is essentially business reputational harm is less persuasive. Microsoft's own statements that releasing diversity demographic analyses could be misconstrued to cause business harm, suggests that Microsoft's concern is that the release of the data would have a negative effect on its reputation and not so much that it is a trade secret. Therefore, the special master does not recommend that this information be redacted unless it also reveals confidential information regarding Microsoft's diversity initiatives and strategies. The redactions based on confidential diversity initiatives are identified in the First Dhillon Declaration at n.1. Microsoft's Resp. at 11 n.6. These redactions are reflected below in Exhibit A to the Shaver Declaration as "Confidential Diversity Initiatives."

F. Recommendations Regarding Plaintiffs' Motion to Seal (Dkt. # 227)

Exhibit A to First Shaver Declaration

(Dkt. # 229-1 (sealed); Dkt. # 233 (redacted))

BatesNumberPrefix: MSFT-MOUSSOURIS	Description	Recommendation
00002273-00002300	Performance Calibration: Roles andResponsibilities by Phase - Chart andGuide	GRANTTrade Secret - ConfidentialHuman Resource Strategies
000022538-000022549	Email string last dated June 19, 2015regarding notes from another C&EWLC Dinner Redacted names anddescriptions	GRANT IN PARTPartially Trade Secret -Confidential ProductDevelopmentThis document is over redacted,for example Microsoft redactedbenign statements such as "greatopportunity to hear from C&Eleadership" and the ratio ofwomen to men on PM team.Appropriate redactions includeconversations relating to businessoperations/trade secrets andbusiness performance
00059215-00059242	Attorney letter regarding settlement ofgender discrimination claim andattached exhibits	GRANTNon-Party IdentifyingInformation
00064918-00064931	Attorney letter regarding settlement ofgender discrimination claim	GRANT IN PARTNon-Party IdentifyingInformation except00064918 - no basis to redactlast sentence00064292 - redacted portion ofemail that does not reveal third-party information
00064978-00064983	Attorney letter regarding settlement ofgender discrimination claim andattached exhibits	GRANTNon-Party IdentifyingInformation

00064984-00064991	Attorney letter regarding settlement ofsexual harassment claim and attachedexhibits	GRANTNon-Party IdentifyingInformation
00065680-00065683	EEOC Charge and attachments for sexdiscrimination and retaliation	GRANTNon-Party IdentifyingInformation
00065719-00065738	OFCCP Notice of Violation dated May5, 2016 and attachments	GRANTOFCCP Settlement NegotiationFully redacted and Sealedversion partially redacted(assuming as irrelevant) exceptfor Violations 6 and 7
00067920	PowerPoint Presentation produced innative titled Gender Retention AnalysisRecommendations	GRANTTrade Secret - ConfidentialDiversity Initiatives Fullyredacted
00072044-00072046	Rainbow PUSH Coalition Forum +ChrisCap Marketing Call Draft Q&Adated December 3, 2014	GRANT IN PARTTrade Secret - ConfidentialDiversity Initiatives exceptredaction of leadership teamacronyms and pay equitypercentage should not beredacted
00074974	Email regarding Women of Officedated November 5, 2011	GRANTNon-Party IdentifyingInformationConfidential Diversity Initiatives
00074988-00074990	Email regarding L3/L4 DiversitySnapshot dated October 25, 2012	DENYNot Trade Secret - Results ofDiversity Initiatives
00150613	PowerPoint Presentation produced innative titled MOD Diversity &Inclusion Council Report dated March2012	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted
00150735-00150754	Microsoft on Yammer dated October23, 2014	GRANTTrade Secret - ConfidentialProduct Development Partiallyredacted business confidences

00166305-00166309	Email string regarding UnconsciousBias Training dated last dated October15, 2015	GRANTNon-Party IdentifyingInformationPartially redacted to removenames of third parties
00187720	PowerPoint Presentation produced innative titled Actions in Progress andCareer Model	GRANTTrade Secret - ConfidentialHuman Resource StrategiesFully redacted
00201435	Email dated February 15, 2010regarding Data Dive Themes	DENYNot Trade Secret - Partiallyredacted to remove informationregarding promotions atMicrosoft
00231183	Email string dated October 16, 2014regarding Yesterday's Q&A Session	GRANT IN PARTNon-Party IdentifyingInformation of individuals maybe redacted. Division nameswithin Microsoft are not TradeSecret
00231184-00231185	Email string last dated October 15,2014 regarding Today's Q&A Session	MOOTNo redactions made to publicfiling
00243465	PowerPoint Presentation produced innative titled Women's CareerFramework - Speaker name	GRANT IN PARTTrade Secret - ConfidentialDiversity InitiativesFully redacted - addressesconcerns of female attrition andhow to address itSurvey results are not TradeSecret and should not be redacted
00259655-00259658	Email string last dated July 26, 2010regarding IT Diversity and InclusionRecap and Next Steps	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted includes ITinitiatives, next steps, missionstatement

00278390	PowerPoint Presentation produced innative titled FY 15 D&I Core Prioritiesand Action Plan	GRANTTrade Secret - ConfidentialDiversity Initiatives Fullyredacted includes action plandetailing accountabilities, keysteps, timeline, etc.
00284174-00284212	PowerPoint slides titled OneEngineering GD&I Strategy	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted - Detailedinformation regarding GD&IStrategy and Focus Areas, HiringTrends and Goals
00308243 -	Microsoft outside counsel July 29, 2016letter to OFCCP regarding AmendedNOV	GRANTOFCCP Settlement NegotiationFully redacted - includesconfidential and proprietarybusiness information - sealedversion also redacted fornonresponsive - communicationsas part of the conciliation process
00341320-00341400	PowerPoint slides titled EVPSuccession Planning CompensationCommittee March 9, 2015	GRANTTrade Secrets - ConfidentialDiversity InitiativesFully redacted - SensitiveBusiness Information
00342925-00342937	PowerPoint slides titled ASG D&IUpdated dated December 8, 2015	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted - vision, strategyfor Microsoft D&I, overview ofcompetitors in the space
00371657-00371660	Email string last dated December 4,2015 regarding Microsoft has a longway to go	GRANTNon-Party IdentifyingInformation -Partially redacted to removenames and roles that mayidentify the non-party
00418344-0418345	Email string last dated April 27, 2015regarding	GRANTNon-Party Identifying

	ABI_TopCompanyForWomenInComputing	InformationPartially redacted to removenames and roles that mayidentify the third-party
00420916-00420948	PowerPoint slides titled MOD Diversity& Inclusion dated May 3, 2012	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted - informationregarding diversity strategy,including recruiting, leadershipdevelopment, flexible work
00432789-00432791	Email string last dated April 16, 2014regarding D&I update-diagnostics andplanning for FY15	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted relating to aMaturity Model Survey andDiagnostic effort regarding D&I
00441086-00441090	Email string last dated June 2, 2015Diversity Transparency	DENYNot Trade Secret - Fullyredacted email string relating toresponse to email questioningdiversity initiatives and an articleregarding Google'sannouncementNon-Party IdentifyingInformation may be redacted
00441092-00441097	Email string last dated June 2, 2015Diversity Transparency (part of stringfrom above)	DENYNot Trade Secret - Partiallyredacted email string relating toresponse to email questioningdiversity initiativesNon-Party IdentifyingInformation may be redacted
00561670-00561673	Email string last dated November 30,2014 regarding redacted names	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation

00562093-00562094	Email string last dated October 15,2014 "any comment on this"	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00563277-00563278	Email string last dated October 15,2014 regarding "Today's Q&ASession"	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames
00592294	Pay Equity Meeting March 11, 2016	DENYNot Trade Secret - Fullyredacted meeting notes relatingto pay equity transparencyNon-Party IdentifyingInformation may be redacted
00623396-00623399	Email string last dated August 4, 2015regarding redacted name investigationsummary	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00631799-00631824	ER Investigations Summary MemoDated January 15, 2013 withattachments	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00632037-00632117	ER Investigations Summary MemoDated December 17, 2012 withattachments	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00632500-00632528	ER Investigations Summary MemoDated August 20, 2012 withattachments	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifying info.

00645459	Excerpt from OneNote file regardingInvestigation	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00646449	Additional Excerpt from OneNote fileregarding Investigation	GRANTNon-Party IdentifyingInformation -Partially redactedto redact names and identifyinginformation (page 676 has aredaction of the date and timethat should not be redacted)
00677331	PowerPoint Presentation produced innative titled Insight Diagnostic forSenior Level and Mid-Level WomenDated June 11, 2015	GRANT IN PARTTrade Secret - ConfidentialDiversity InitiativesFully redacted Business strategypresentation on actionablepathways for gender inclusionand diversity in technical fieldexcept quotes from employeesare not Trade Secret
00677712-00667733	PowerPoint slides dated OneEngineering D&I Board ReviewMeeting March 3, 2016	GRANTTrade Secret - ConfidentialDiversity Initiatives Fullyredacted business secretsregarding strategy and focusareas
00678321-00678327	Microsoft Diversity and Inclusion May2015 progress update	GRANT IN PARTTrade Secret - ConfidentialDiversity InitiativesFully redacted strategies, Q&Amarketing answers regardingdiversity and inclusions shouldbe redactedMessaging about confidentialdiversity initiatives is not TradeSecret(MSFT_MOUSSOURIS_00678322-3)

00688508-00688523	Career Guide FAQ for GHRO Only	GRANTTrade Secret - ConfidentialHuman Resource StrategiesFully redacted internal script onhow to answer questions
00703435-00703436	Email string last dated April 11, 2016regarding equal pay for equal work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00705352-00705354	Email string last dated April 20, 2016regarding equal pay for equal work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00705901-00705904	Email string last dated April 21, 2016regarding equal pay for equal work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00708659-00708663	Email string last dated April 25, 2016regarding equal pay for equal work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00714794-00715795	Email string last dated April 21, 2016regarding Missed conversation withredacted name	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00743994-00743995	Email string last dated April 30, 2016regarding Mid-Year 2016 Promotions inFUN PM	GRANT IN PARTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifying

		informationRedacted ratios of men versuswomen promotions are - NotTrade Secret and should beunredacted
00744097-00744099	Email string last dated April 19, 2016regarding Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00744107-00744109	Email string last dated April 19, 2016regarding Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00744109-00744111	Email string last dated April 19, 2016regarding Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00744230-00744232	Email string last dated April 14, 2016regarding Gender Equity	GRANT IN PARTNon-Party IdentifyingInformation should be redactedRedactions relating to marketingstrategy conversations are notTrade Secret and should beunredacted
00744437-0074438	Email string last dated April 20, 2016regarding Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00744437-0074438	Email string last dated April 20, 2016regarding Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifying info.

00775226-00775228	Email string last dated April 19, 2016regarding Equal Pay for Equal Work -ACP	DENYPartially redacted - legal adviceredacted from sealed versionNo explanation as to basis forredacting remaining portions ofdocument
00784718-00784732	Responses to KH Equal Pay email -Batches 1-5	DENYFully redacted - chart ofresponses that Microsoft receivedafter sending out the email from00744437-38 - internalcollection of employee feedbackon equal pay for equal work isnot Trade Secret
00792417-00792420	Email string last dated October 15,2011 regarding attorney client privilege- advice needed	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - privilegedinformation redacted from sealedversion
00797920-00797924	Email string last dated April 28, 2016Equal Pay for Equal Work	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - privilegedinformation redacted from sealedversion
00801714-00801714_0020	US Department of Labor OFCCP letterto Microsoft Chief Executive Officerdated June 22, 2016 regardingAmended NOV	GRANTOFCCP Settlement Negotiation -Fully redacted nonresponsiveinformation redacted from sealedversion
00802741-00802741_0069	US Department of Labor OFCCP letterto Microsoft Chief Executive Officerdated August 17, 2016 regardingAmended NOV	GRANTOFCCP Settlement Negotiation -Fully redacted letter andnonresponsive informationredacted from sealed version -

		continue the conciliation process- attachments to letter not sealed
00806770-00806771	Email string last dated April 11, 2016regarding Early Coverage on Equal Pay	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00809030-00809031	Confidential Draft of ExecutiveSummary dated March 1, 2016	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00809046-00809079	Report of Investigation datedSeptember 1, 2015	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00809106	Excerpt from OneNote file regardingInvestigation of Complaint	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation
00814864-00814899	Closure Information regardingInvestigation of Complaint dated July20, 2016	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00815228-00815234	ER Investigations Summary Memodated April 14, 2014	GRANTNon-Party IdentifyingInformation -Partially redacted to redact

		names and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00815540-00815544	ER Investigations Summary Memodated April 20, 2010	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00816432-00816436	ER Investigations Summary Memodated September 23, 2013	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00818175-00819179	ER Investigations Summary Memodated March 20, 2014	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00819252-00819286	Closure Information regardingInvestigation of Complaint datedOctober 19, 2016	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation - large redactionsare organizational charts thatwould identify the complainant
00825924-00825929	Microsoft Global Diversity andInclusion Messaging and Narrative -April 2015 progress update Draft	GRANTTrade Secret - ConfidentialDiversity InitiativesFully redacted - strategy,initiatives, and business ops.

00859406-00859426	Microsoft outside counsel September27, 2013 letter to law firms regardingresults of commitments it made inCodwell, et al. v. Microsoft Corporation	DENYNot Confidential SettlementNegotiationsIf there is Confidential DiversityInitiatives revealed in the letterthat should be redacted
00865592-	Attorney letter regarding settlement ofgender discrimination claim	GRANTNon-Party IdentifyingInformation -Partially redacted to redactnames and identifyinginformation

Excerpts from Deposition of John Ritchie

(Dkt. # 229-6 (sealed); Dkt. # 273-10 (redacted))

Page: Line-	Recommendation
137:2-3, 9-10	GRANT - Size of cohort in stack ranking system - Trade Secret
139:3-9, 13-16, 24-25	GRANT - Guidance regarding size of cohort in stack ranking system- Trade Secret
150:5-8	GRANT - Confidential Human Resource Strategies - CalibrationGroupings - Trade Secret
156:15-17	GRANT - Confidential Human Resource Strategies - CalibrationGroupings - Trade Secret
221:7-19	GRANT - Confidential Human Resource Strategies - CalibrationGroupings - Trade Secret
222:3-223:12;223:16	GRANT - Confidential Human Resource Strategies - Microsoft'sinternal process for finalizing its Calibration Groupings - TradeSecret
228:25-229:6	DENY - Difference between a people discussion and calibrationdiscussion - Not Trade Secret
229:11-22	GRANT - Confidential Human Resource Strategies - CalibrationGroupings - Trade Secret
230:2-25	GRANT - Confidential Human Resource Strategies - Discussion oftool used to manage rewards - Trade Secret

233:25-235:15	GRANT - Confidential Human Resource Strategies - Discussion ofMRT tool and rating process - Trade Secret
236:11-12; 236:23-25; 237:2-12	GRANT - Confidential Human Resource Strategies - Discussion oftool used to manage rewards, budget constraints and who is arecipient of the tool - Trade Secret
267:24-25; 268:5-23; 269:8-25	GRANT - Confidential Human Resource Strategies - Discussion ofwho sees the final rewards information - Trade Secret
308:9-13	DENY - Description of who is on Ritchie's team - Not Trade Secret
358:6-10	GRANT - Confidential Human Resource Strategies - Guidance onsalary increases - Trade Secret
392:15-25; 393:1-23	DENY - Discussion of historical salary ranges at Microsoft - NotTrade Secret
394:6-11; 39422-24	GRANT - Confidential Human Resource Strategies - Discussionregarding salary ranges - Trade Secret
447:15	DENY - Name of employee at Microsoft does not reveal any privateinformation about the employee - Not Trade Secret
447:19-23	GRANT - Confidential Human Resource Strategies - Discussion oftool used to manage rewards - Trade Secret
448:4-449:8	GRANT - Confidential Human Resource Strategies - Discussion oftool used to manage rewards - Trade Secret
520:1-3	DENY - An expectation regarding promotion - Not Trade Secret
520:17-25	GRANT - Confidential Human Resource Strategies - Discussion ofpromotion tool - Trade Secret
521:15-25	GRANT - Confidential Human Resource Strategies - Discussion ofpromotion tool - Trade Secret
522:6-7; 522:11-15; 52220-21;522:24-25	GRANT - Confidential Human Resource Strategies - Discussion ofpromotion tool - Trade Secret
526:23-527:1	GRANT - Confidential Human Resource Strategies - Discussion ofrewards calculations - Trade Secret

527:13-17; 528:12	GRANT - Confidential Human Resource Strategies - Discussion ofwhich department has final review of compensation and promotiondecision - Trade Secret
528:16-17	DENY - Discussion of whether Microsoft attempted to determinewhether there was pay equity - Not Trade Secret

Both sides provided a list of pages and lines where redactions where made to the deposition transcript of John Ritchie. See Dkt. ## 278-3, 269-1. None of the page and line cites provided match up to any of the redactions from the Ritchie transcript. Accordingly, the special master went through each page to determine what had been redacted.

Excerpts from Deposition of Melinda De Lanoy

(Dkt. # 229-8 (sealed); (Dkt. # 273-11 (redacted))

Page: Line-	Recommendation
89:3; 89:6-10	DENY - The term Senior Leadership Team - Not Trade Secret
89:11-17; 89-19-25; 91:2-25	GRANT - Confidential Diversity Initiatives (although Microsoftreferred to this discussion as Confidential Human ResourcesStrategies) - discussion of diversity reports, who it goes to, etc. -Trade Secret
92:1-5; 92:25	DENY - Nonresponsive answer and "I don't know" - Not TradeSecret
96:16-20; 96:24	DENY - Questions regarding witness's knowledge - Not Trade Secret
97:2-9; 97:15-25	DENY - Questions relating to witness's knowledge regardingtracking diversity and inclusion priorities - Not Trade Secret
98:2-28	DENY - Questions relating to witness's knowledge changes totracking promotions - Not Trade Secret
99:3-4; 99:8-10;13-18; 99:19-25;	DENY - Questions relating to witness's knowledge regarding focusgroups relating to diversity and inclusion - Not Trade Secret
118:1-20	DENY - Discussion of results of diversity initiatives - Not TradeSecret
118:22-119:1	GRANT - Confidential Diversity Initiatives - Discussion of how theinitiative works - Trade Secret

119:3-24	DENY - Discussion of results of diversity initiatives - Not TradeSecret
120:1-15	DENY - Discussion of results of diversity initiatives - Not TradeSecret
120:17-21	GRANT - Confidential Diversity Initiatives - Discussion of specificmetrics - Trade Secret

Both sides provided a list of pages and lines where redactions where made to the deposition transcript of Melinda De Lanoy. See Dkt. ## 278-3, 269-1. None of the page and line cites provided match up to any of the redactions from the Lanoy Ritchie transcript. Accordingly, the special master went through each page to determine what had been redacted.

Expert Report of Dr. Henry S. Farber

(Dkt. ## 230 (sealed); 273-14 (Microsoft's redactions); 279-2 (sealed version with

Plaintiffs' proposed redactions) Errata # 332 (sealed)) ⁶

6 The Errata to the Expert Report Henry S. Farber does not alter any of Microsoft's requested redactions to the report. --------

Microsoft's primary concern is that Dr. Farber's report reflects Microsoft's confidential business strategy. Specifically, Microsoft's confidential human resources strategy reflecting how it compensates its employees and how it evaluates and promotes them. Microsoft's Resp. (Dkt. # 269) at 11 n.5. Accordingly, Microsoft seeks to redact all compensation figures stated in the report or for which a reverse engineer analysis would lead to the discovery of compensation figures. The special master relies entirely on the declarations of Joseph Whittinghill (dkt. # 270) for the proposition that revealing person-year numbers that correspond to the compensation class and advancement class would allow for a reverse engineering of the figures to identify specific compensation rates. If this assertion turns out to be not accurate, then the special master would recommend that the figures be unredacted.

Paragraph-	Description	Recommendation
Report at ¶ 11	Microsoft seeks to redact the number ofperson-year that correspond to the putativecompensation class and the putativeadvancement class numbers	GRANT - Trade Secret- Confidential HumanResource Strategies -potential to reverseengineer compensationdata. Whittinghill Decl. ¶ 3
Report at ¶ 26	Microsoft seeks to redact the ratings scaleused to measure performance	GRANT - Trade Secret- Confidential HumanResource Strategies -reflects information thatis part of the back-endlogic used to calculateemployee compensation.Whittinghill Decl. ¶ 3
Report at ¶ 50	Microsoft seeks to redact the actual dollaramount of Dr. Farber's findings regardingthe differences in average totalcompensation	GRANT - Trade Secret- Confidential HumanResource Strategies -potential to reverseengineer compensationdata. Whittinghill Decl. ¶ 3
Report at ¶ 75	Microsoft seeks to redact the number ofperson-year observations and woman-yearobservations	GRANT - Trade Secret- Confidential HumanResource Strategies -potential to reverseengineer compensationdata. Whittinghill Decl. ¶ 3
Report at ¶¶ 79, 80	Microsoft seeks to redact the amount thatthe compensation class earned during theclass period	GRANT - Trade Secret-Confidential HumanResource Strategies -potential to reverseengineer compensationdata. Whittinghill Decl. ¶ 3
Report at Table	Microsoft seeks to redact all references toEmployee Years numbers and WomanYears numbers from Dr. Farber's tables,	GRANT - Trade Secret- Confidential HumanResource Strategies -

the difference in mean total compensationfrom Table 2 and his conclusions ondamages

potential to reverseengineer compensationdata. Whittinghill Decl. ¶3

Expert Report of Dr. Ann Marie Ryan

(Dkt. # 231 (sealed); 273-13 (Microsoft's Redactions))

Paragraph-	Description	Recommendation
Report at ¶ 19	Microsoft seeks to redact two sentencesfrom the Dr. Ryan report on the groundsthat it reveals confidential human resourcestrategy reflecting how Microsoftcompensates its employees and howMicrosoft evaluates employees forcompensation and promotion. Microsoft'sResp. at 11, n.5	DENYNot Trade Secret -see reference ShaverDecl., Ex. A at00859406

G. Recommendations Regarding Microsoft's Motions to Seal (Dkt. ## 283 and 333)

Exhibit 1 to Parris Declaration

(Dkt. ## 288-1 parts 1, 2, and 3 (sealed); 287-1,-2,-3 (redacted))

Bates NumberPrefix: MSFT-MOUSSOURIS-	Description	Recommendation
00001595	Performance Calibration: Roles andResponsibilities by Phase (Not BatesNumbered)	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted
00001955-00001956	Methods of Calibration	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted
00001984-00001985	Promotion Philosophy and Guidelines	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted
00002269-00002300	HR and Manger Performance CalibrationGuide	GRANT - Trade Secret- Confidential HumanResource Strategies -

		Partially Redacted
00004097-00004113	Microsoft's Performance and DevelopmentPhilosophy, Objectives, Strategies	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted
00004281-00004288	Promotion Overview, Guidelines, Budgets,	GRANT - Trade Secret- Confidential HumanResource Strategies -Partially Redacted
00004299	Human Resource Process & Tasks	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted
00022538-00022549	Email string last dated June 19, 2015regarding Notes from another great C+EWLC Dinner Series dinner	GRANT - Non-PartyIdentifying Information- Partially RedactedUnrelated ProductDevelopment Discussion
00065921	Independent Analysis of Microsoft'sTechnology & Strategy -CorporateOrganization Chart with names	GRANT - Non-PartyIdentifying Information- Trade Secret -Confidential HumanResource Strategies -Fully Redacted
00123431-00123433	Email string last dated August 9, 2012regarding FINAL . . . 5 PPComms	GRANT - Non-PartyIdentifying Information- Trade Secret -Confidential HumanResource StrategiesBoth sealed version andpublic version arePartially Redacted
00238536-00238542	Diversity and Inclusion at MicrosoftGoals redacted	GRANT - Trade Secret- Confidential HumanResource Strategies -Partially Redacted
00306526-00306530	Hiring & Attrition Slides and FY13Diversity & Inclusion Execution Plan	GRANT - Trade Secret- Confidential Human

		Resource Strategies -Fully Redacted
00677331	PowerPoint Presentation produced in nativetitled Insight Diagnostic for Senior Leveland Mid-Level Women dated June 11,2015	GRANT -Trade Secret -Confidential HumanResource Strategies -Fully redacted
00822237-00822333	Executive Retreat Slides - Diversity &Inclusion at Microsoft - Overview of D&IChallenges & Opportunities for Microsoft;D&I Investments and Initiatives	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully redacted
00835957-00835964	Slides titled "D&I Path Forward: AProposal for Strategic Transformation	GRANT -Trade Secret -Confidential HumanResource Strategies -Fully redacted exceptTitle
P007578	Correspondence to Moussouris from EEOC	GRANT - Trade Secret- Confidential HumanResource Strategies- Partially RedactedSalary information

There are many redactions in the exhibits to the Parris Declaration that are redacted in both the public version and the sealed version. For example, MSFT_MOUSSOURIS_00029679 and MSFT_MOUSSOURIS_00029690 are redacted in both versions. As Microsoft is not asking the Court to rely on information that it has redacted from both the public and judicial view, there is no compelling reason analysis required. Redactions in both the public record and the sealed judicial record do not implicate the public's right of access to judicial records. See Microsoft Mot. to Seal at 1, n.1.

Excerpts from Deposition of Katie Moussouris

(Dkt. ## 287-3 (redacted); 288-5 (sealed))

Before filing excerpts from the Deposition of Katie Moussouris on the public record, Microsoft contacted Plaintiffs' counsel and provided them with a copy of the documents it intended to file in opposition to the motion to certify class. Damrell Decl., ¶ 3. In response, Plaintiffs provided a list of deposition excerpts that should be filed under seal. Id. Pursuant to LCR 5(g)(3)(B), Microsoft filed the depositions in redacted form but did not provide the justification for sealing leaving that task to Plaintiffs as the proponents of sealing this information. Plaintiffs failed to provide an explanation for sealing this information. Accordingly, because neither party offered an articulable justification for sealing the excerpts, the special master recommends that the entire Exhibit 9 to the Parris Declaration be unsealed. See Kamakana, at 1178-79.

Excerpts from the Second Declaration of Shinder Dhillon

(Dkt. ## 296 (redacted); 297 (sealed))

Exhibit C, E, F, H, I, J, and K to Dhillon Declaration

Excerpt/Exhibit	Description	Recommendation
Declaration 5:8-9	Statement as to why high-level employeeswere leaving Microsoft	DENY - Not TradeSecret
Declaration 6:13-14	Description of specific diversity initiativesfor particular groups within Microsoft	GRANT - Trade Secret- Confidential DiversityInitiatives
Exhibit C	Collective guidance for facilitators usingMicrosoft's Inclusive Dialogues Toolkit	GRANT - Trade Secret- Confidential DiversityInitiatives -Fully Redacted
Exhibit E	PowerPoint presentation explaining theMicrosoft's Maturity Model Frameworktool assessment results	GRANT - Trade Secret- Confidential DiversityInitiatives -Fully Redacted

Exhibit F	PowerPoint presentation explainingMicrosoft's Infusing D&I program tool	GRANT - Trade Secret- Confidential DiversityInitiatives -Partially Redacted
Exhibit H	Engineering 5-Point Plan - Key ExecutionSlides for 3 Year GD&I Plan	GRANT - Trade Secret- Confidential DiversityInitiatives -Fully Redacted
Exhibit I	SLT D&I Core Priorities plan for ASG	GRANT - Trade Secret- Confidential DiversityInitiatives -Partially Redacted
Exhibit J	C&E Guidance	GRANT - Trade Secret- Confidential DiversityInitiatives -Partially Redacted
Exhibit K	Q&A regarding D&I Basics; The BusinessCase for Diversity; Cultural Awareness;Hiring; Leadership; Legal; Data; and Cost	GRANT - Trade Secret- Confidential DiversityInitiatives -Fully Redacted

Declaration of Chris Helf

(Dkt. ## 300 (redacted); 301 (sealed))

Excerpt-	Description	Recommendation
Declaration 14:17-18	Statement regarding the percentage targetfor top rewards	GRANT - Trade Secret- Confidential HumanResource Strategies

Exhibit P to the Jantz Declaration

(Dkt. ## 304 (redacted); 305 (sealed))

Exhibit	Description	Recommendation
Exhibit P	PowerPoint presentation entitled ProjectInoculate II details Microsoft's campaign toretain highly sought-after engineeringemployees	GRANT - Trade Secret- Confidential HumanResource Strategies -Fully Redacted

Exhibit B to the Whittinghill Declaration

(Dkt. ## 320 (redacted); 321 (sealed))

Exhibit	Description	Recommendation
Exhibit B	Data for employees in the United States inEngineering and IT Operations Professionsin roles at Stock Levels 59-67 for years2013-2016	DENY - Not TradeSecret - Data is not aConfidential HumanResource Strategies

This exhibit is a detailed chart of employees and provides the following information: Standard Title, Career Stage, Stock Level, Org Exec. Summary, Org Exec, Org Exec Detail And Function Exec Summary. Whittinghill Declaration, Ex. B. Microsoft argues that this exhibit "describe[s] processes developed by and for Microsoft management to further its ability to meet strategic objectives and advance its competitive interests." Microsoft's Mot. to Seal at 4. The special master is not convinced that the raw, underlying data constitutes confidential human resources strategies. Accordingly, the special master recommends that Exhibit B be unsealed.

Declaration of Rukmini Iyer

(Dkt. ## 302 (redacted); 303 (sealed))

Excerpt-	Description	Recommendation
Declaration 3:27-4:2.	See Section E(a)(iii) above	GRANT - Non-PartyIdentifying Information

Expert Report of Dr. Ali Saad Ph.D.

(Dkt. ## 290 (sealed); 289 (redacted); Errata 336 (sealed); 337 (redacted)

Paragraph-	Description	Recommendation
Report at ¶ 7	Microsoft seeks to redact the proportion ofpromotions that take place during theannual review cycle	DENYNot Trade Secret -This fraction alone doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate why

		this is a trade secret
Report at ¶¶ 8, 14,19, 26, 27, table at28, 43, 50	Microsoft redacted compensation numbersfor a group of employees and totalcompensation	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶¶ 52table, 55 table, 56,57 table, 97 table,104 table, 167table, 175 table,186 table,Appendix 2	Redacted "Employee Years" column andother mentions of this category throughoutthe report	ENYNot Trade Secret -No articulated basis forredacting the employeeyears variable from theentire report
Report at ¶¶ 14,104 table, 118table, 119, 120,122 table	Microsoft seeks to redact the percentage ofpromotions during the annual review periodversus mid-year review and other periods	DENYNot Trade Secret -This fraction alone doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate whythis is a trade secret
Report at ¶¶ 41, 42,including tablesand footnotes	Microsoft seeks to redact compensationinformation of the Plaintiffs as compared toher peers	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 54	Report discusses business strategyinformation as to how stock awards, rewardbonuses and merit increases are calculated	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 71	Microsoft seeks to redact its rewardoutcome measures for 2014-2016 as itreveals Microsoft's reward outcomemeasures for this period	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶¶ 76, 81,81 table, 82 table	Microsoft seeks to redact reward outcomevarious and review ratings range and howthey correlate to Annual bonus Stockawards and merit increases as well as thenumber of female employees to maleemployees in the table at ¶ 82	GRANT IN PART-Trade Secret -Confidential HumanResource Strategies as itrelates to the rewardoutcome various andreview ratings range andhow they correlate toAnnual bonus Stockawards and merit

		increases as wellThe number of femaleverses male employees isnot Trade Secret
Report at ¶ 92	Microsoft seeks to redact discussionsrelating to the number of promotions thatoccur in connection with the annual fiscalyear performance rating process	DENY - Not TradeSecret - The number ofpromotions that occur atthe annual performancereview does not identifya human resourcesstrategy and Microsoftdoes not otherwisearticulate why this is atrade secret
Report at ¶ 103	Promotion Budget Numbers	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 109	The report, in searching for otherjustifications for variable, providesexamples of business developments atMicrosoft that are not public knowledge	GRANT - Trade Secretgenerally
Report at ¶ 110,table	Microsoft seeks to redact the proportion ofpromotions that take place during theannual review cycle versus other times	DENYNot Trade Secret -This information doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate whythis is a trade secret
Report at ¶ 113	Microsoft seeks to redact detaileddiscussion of how managers nominate theiremployees for promotion within Microsoft	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 131	Microsoft seeks to redact the averagevelocity for female employees and maleemployees	DENYNot Trade Secret -This information doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate whythis is a trade secret

Report at ¶¶ 138,143 and table, 146table, 152 andtable, 153, 157table, 158 table,159 table, 189, 193and table,194 table,201, 202 and 209Appendix 1 & 2table 8	These redactions represent Microsoft'scompensation structures, including salariesfor specific positions and totalcompensation numbers	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 144 andtable	Report summarizes employee educationaldata - including advanced degrees etc.	GRANT - Trade Secret- Confidential HumanResource Strategies
Report at ¶ 167	Microsoft seeks to redact the number ofdata points used in the analysis	DENYNot Trade Secret -This information doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate whythis is a trade secret
Report at ¶ 176	Microsoft seeks to redact the number ofobservations used in the analysis	DENYNot Trade Secret -This information doesnot identify a humanresources strategy andMicrosoft does nototherwise articulate whythis is a trade secret

IV. CONCLUSION

With respect to Plaintiffs' motion to seal (dkt. # 227), the special master recommends that the Court order as follows:

1. Microsoft file a revised Exhibit A to the First Shaver Declaration (dkt. # 233) consistent with recommendations in Section F above;

2. The Clerk partially unseal Exhibit C to the First Shaver Declaration by unsealing the version of Exhibit C that is attached to the Second Shaver Declaration as Exhibit D (dkt. # 279-3) as discussed in Section E(ii) above;

3. The Clerk unseal Exhibits D (dkt. # 229-4), E (dkt. #229-5), and G (dkt. # 229-7) to the First Shaver Declaration as discussed in Section D above;

4. Microsoft file a revised version of the Excerpts from the Deposition of John Ritchie (dkt. # 273-10) consistent with recommendations in Section F above;

5. Microsoft file a revised version of the Excerpts from the Deposition of Melinda De Lanoy (dkt. # 273-11) consistent with recommendations in Section F above;

6. Microsoft file a revised Expert Report of Dr. Henry S. Farber's Errata (dkt. # 332) consistent with recommendations in Section F above; and

7. Microsoft file a revised Expert Report of Dr. Ann Marie Ryan (dkt. # 273-13) consistent with recommendations in Section F above.

With respect to Microsoft's motions to seal (dkt. ## 333; 227), the special master recommends that the Court order as follows:

1. No revisions recommended to Exhibit 1 to the Parris Declaration (dkt. # 288-1, 2, 3) consistent with recommendations in Section G above;

2. The Clerk unseal Exhibit 9 (excerpts from the Deposition of Katie Moussouris) (dkt. # 288-5) consistent with recommendations in Section G above;

3. Microsoft file a revised Dhillon Declaration (dkt. # 296) consistent with recommendations in Section G above;

4. No revisions recommended to Exhibits C, E, F, H, I, J, and K of the Second Dhillon Declaration (dkt. # 296-1, 2) consistent with recommendations in Section G above;

5. No revisions recommended to the Helf Declaration (dkt. # 300) consistent with recommendations in Section G above;

6. No revisions recommended to Exhibit P to the Jantz Declaration (dkt. # 304) consistent with recommendations in Section G above;

7. Microsoft file a revised Exhibit B to the Whittinghill Declaration (dkt. # 320) consistent with recommendations in Section G above;

8. No revisions recommended to Iyer Declaration (dkt. # 302) consistent with recommendations in Section G above; and

9. Microsoft file a revised Expert Report of Dr. Ali Saad Ph.D. Errata (dkt. # 337) consistent with recommendations in Section G above.

Objections to this Report and Recommendation, if any, should be filed with the clerk and served upon all parties to this suit by no later than February 26, 2018. Failure to file objections within the specified time may affect the parties' right to appeal. Objections should be noted for consideration on the Court's motion calendar for the second Friday after they are filed. Responses and replies to objections may be filed in accordance with LCR 7(d)(2). If no timely objections are filed, the matter will be ready for consideration by the Court on February 27, 2018.

The special master further recommends that the Court order the parties to file revised redacted version of the motion to certify class (dkt. # 232) and Microsoft's opposition (dkt. # 285) within 10 days of the final order of the Court on the motions to seal.

DATED this 16th of February, 2018

MICHELLE PETERSON LAW, PLLC

By /s/_________

Michelle Peterson, WSBA No. 33598

Special Master