Opinion
Case No. 10-cv-02389-RMW
06-29-2015
IN RE: FACEBOOK PRIVACY LITIGATION
ORDER RE: SEALING MOTIONS
Re: Dkt. Nos. 148, 149, 155, 160, 176, 188, 202 Before the court are five administrative motions to seal documents. Dkt. Nos. 148, 155, 176, 188, and 202. For the reasons set forth below, the motions are GRANTED-IN-PART and DENIED-IN-PART.
A sixth, Dkt. No. 149, is DENIED as moot because plaintiff withdrew and re-filed the document with additional redactions. Plaintiff's unopposed motion to remove these incorrectly filed documents is GRANTED. See Dkt. No. 160. --------
I. LEGAL STANDARD FOR MOTIONS TO SEAL
"Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, "a 'strong presumption in favor of access' is the starting point." Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to dispositive motions bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure. Id. at 1178-79.
However, "while protecting the public's interest in access to the courts, we must remain mindful of the parties' right to access those same courts upon terms which will not unduly harm their competitive interest." Apple Inc. v. Samsung Electronics Co., Ltd, 727 F.3d 1214, 1228-29 (Fed. Cir. 2013).
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a trial court has broad discretion to permit sealing of court documents for, inter alia, the protection of "a trade secret or other confidential research, development, or commercial information." Fed. R. Civ. P. 26(c)(1)(G). The Ninth Circuit has adopted the definition of "trade secrets" set forth in the Restatement of Torts, 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." Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972) (quoting Restatement of Torts § 757, cmt. b). "Generally it relates to the production of goods. . . . It may, however, relate to the sale of goods or to other operations in the business. . . ." Id. In addition, the Supreme Court has recognized that sealing may be justified to prevent judicial documents from being used "as sources of business information that might harm a litigant's competitive standing." Nixon, 435 U.S. at 598.
In addition to making particularized showings of good cause, parties moving to seal documents must comply with the procedures established by Civ. L. R. 79-5. Pursuant to Civ. L. R. 79-5(b), a sealing order is appropriate only upon a request that establishes the document is "sealable," or "privileged or protectable as a trade secret or otherwise entitled to protection under the law." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)." Civ. L.R. 79-5(b) (requiring the submitting party to attach a "proposed order that is narrowly tailored to seal only the sealable material" which "lists in table format each document or portion thereof that is sought to be sealed," and an "unreadacted version of the document" that indicates "by highlighting or other clear method, the portions of the document that have been omitted from the redacted version.").
With these standards in mind, the courts rules on the instant motions as follows.
II. SEALING ORDER
Motionto Seal | Document to be Sealed | Ruling | Reason/Explanation |
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148 | Dkt. No. 148-4. Portions of theJanuary 30, 2015 letter fromDefendant Facebook Inc.'s("Defendant" or "Facebook") counselMatthew Brown to Plaintiff's interimco-lead class counsel Kassra P. Nassiri | GRANTED | Narrowly tailored toconfidential businessinformation. |
148 | Dkt. No. 148-5. Defendant'sdocument Bates numbered asFB_ROB_0003292_CONFIDENTIAL | GRANTED | Narrowly tailored toconfidential businessinformation. |
148 | Dkt. Nos. 148-6, 161. Portions of thetranscript of former Plaintiff MikeRobertson's March 11, 2015deposition | DENIED | Docket No. 148-6 wasreplaced by Docket No. 161,which plaintiff seeks to sealin its entirety. Plaintiff'srequest to seal Docket No.161 is denied as it is notnarrowly tailored. |
148 | Dkt. No. 148-9. Portions of the March17, 2015 letter from Defendant'scounsel Matthew Brown | DENIED | Because the informationplaintiff seeks to seal ispublicly available and notconfidential, the motion toseal is denied. |
148 | Dkt. No. 148-10. Defendant'sResponse to Plaintiff's First Set ofInterrogatories dated March 25, 2015 | DENIED | Plaintiff filed under seal outof an abundance of caution,and defendant suggestssealing the names of twoFacebook engineers. Themotion to file under seal isdenied as the documentcontains no sealableinformation. |
148 | Dkt. No. 148-11. Portions of a letterfrom Plaintiff's counsel Adam York toDefendant's counsel Matthew Browndated January 23, 2015 | GRANTED | Narrowly tailored toconfidential businessinformation. |
148 | Dkt. No. 148-13. Defendant's SecondSupplemental Responses to formerPlaintiff Mike Robertson's First Set ofInterrogatories to Defendant datedMarch 17, 2015 | GRANTED | Plaintiff filed the documentunder seal in its entiretybecause plaintiff asserts thatdefendant designated theinformation contained |
therein confidential under theprotective order in this case.Defendant filed proposedredactions of confidentialbusiness information. SeeDkt. No. 154-3. Becausedefendant's proposedredactions are narrowlytailored to confidentialbusiness information, thecourt grants the motion toseal as to the followingpages: 2:20, 4:22, 4:23, 6:16,and 6:17. | |||
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148 | Dkt. No. 148-14. Defendant'sResponse to Plaintiff's First Set ofRequests for Production of Documentsdated March 25, 2015 | DENIED | Plaintiff filed under seal outof an abundance of caution,but defendant states thatDocket No. 148-14 containsno sealable information. |
148 | Dkt. No. 148-15. Defendant's SecondSupplemental Responses to formerPlaintiff Mike Robertson's First Set ofRequests for Admission to Defendantdated March 17, 2015 | GRANTED | Plaintiff filed the documentunder seal in its entiretybecause plaintiff asserts thatdefendant designated theinformation containedtherein confidential under theprotective order in this case.Defendant filed proposedredactions of confidentialbusiness information. SeeDkt. No. 154-5. Becausedefendant's proposedredactions are narrowlytailored to confidentialbusiness information, thecourt grants the motion toseal as to the followingpages: 10:19-20, 10:24-26,and 12:18-21. |
148 | Dkt. No. 148-17. Portions ofPlaintiff's interim co-lead classcounsel Kassra P. Nassiri's letter datedMarch 19, 2015 | GRANTED | Narrowly tailored toconfidential businessinformation. |
148 | Dkt. No. 148-19. Portions ofPlaintiff's interim co-lead classcounsel Kassra P. Nassiri's Meet andConfer e-mail to Mr. Brown datedMarch 20, 2015 | GRANTED-IN-PART,DENIED-IN-PART: deniedas toRobertson's | The information regardingRobertson's formeremployers is publiclyavailable and notconfidential, and thereforethe motion to seal is denied |
formeremployers,granted as torest. | as to such information. Theother proposed redaction isnarrowly tailored toconfidential businessinformation and is thereforegranted. | ||
148 | Dkt. No. 148-20. Defendant'sResponses to former Plaintiff MikeRobertson's First Request forProduction of Documents datedOctober 14, 2014 | DENIED | Plaintiff filed under seal outof an abundance of caution,but defendant states thatDocket No. 148-20 containsno sealable information. |
148 | Dkt. No. 148-22. Portions of theMemorandum of Points andAuthorities in Support of Plaintiff'sMotion for Leave to AmendComplaint and to Amend SchedulingOrder | GRANTED-IN-PART,DENIED-IN-PART: deniedas toRobertson'sformeremployers,granted as torest. | The information regardingRobertson's formeremployers is publiclyavailable and notconfidential, and thereforethe motion to seal is deniedas to such information. Theother proposed redactions(on pages i, 1, 2, 11, and 13)are narrowly tailored toconfidential businessinformation and the motionis granted as to theseproposed redactions. |
148 | Dkt. No. 148-24. Portions ofPlaintiff's interim co-lead classcounsel Kassra P. Nassiri's declarationin support of Plaintiff's Motion forLeave to Amend Complaint and toAmend Scheduling Order | DENIED | Because the informationplaintiff seeks to seal ispublicly available and notconfidential, the motion toseal is denied. |
155 | Dkt. No. 155-4. Portions of thetranscript of former Plaintiff MikeRobertson's March 11, 2015deposition | GRANTED | Plaintiff withdrew itsproposed redactions for thisdocument, see Dkt. No. 160,and instead sought to file theentire document under seal,see Dkt. No. 161. The courtdenied that motion above asnot narrowly tailored.Defendant filed a motion tofile this document under sealwith more limited redactions.Dkt. No. 155. Defendant'sproposed redactions arenarrowly tailored toconfidential businessinformation, and the motionis granted. |
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176 | Dkt. No. 176-3. Plaintiff Robertson'sObjections and Responses toDefendant Facebook's First Set ofInterrogatories | GRANTEDonly as toplaintiff'sproposedredactions atDkt. No. 182-2.OtherwiseDENIED. | Defendant filed entiredocument under seal out ofan abundance of caution.Plaintiff filed proposedredactions at Dkt. No. 182-2.Plaintiff's proposedredactions are narrowlytailored to protect plaintiff'sconfidential information, andthe motion to seal istherefore granted only as tothese proposed redactions. |
176 | Dkt. No. 176-5. Plaintiff Robertson'sSupplemental Responses to DefendantFacebook's First Set of Interrogatories | DENIED | Defendant filed under sealout of an abundance ofcaution, but plaintiff statesthat Docket No. 176-5contains no sealableinformation. |
176 | Dkt. No. 176-7. Plaintiff Pohl'sObjections and Responses toDefendant Facebook's First Set ofRequests for Production of Documents | DENIED | Defendant filed under sealout of an abundance ofcaution, but plaintiff statesthat Docket No. 176-7contains no sealableinformation. |
176 | Dkt. No. 176-9. Portions of thetranscript of Plaintiff Pohl's April 1,2015 deposition | DENIED | Defendant filed under sealbecause defendant assertsthat plaintiff designatedDocket No. 176-9 asconfidential pursuant toprotective order, but plaintiffstates that it contains nosealable information. |
176 | Dkt. No. 176-11. DefendantFacebook's Opposition to Plaintiff'sMotion for Leave to File ThirdAmended Consolidated Class ActionComplaint and to Amend SchedulingOrder | DENIED | Defendant seeks to sealportions of plaintiff'sresponses to discoveryrequests out of an abundanceof caution in case theresponses contain sensitiveand confidential information.Plaintiff states that thedocument contains no suchinformation other than onPage 8, at line 4. However,this information is publiclyavailable and notconfidential, and so themotion to seal is denied. |
188 | Dkt. No. 188-3. Email correspondencefrom Defendant's counsel to MatthewD. Brown | GRANTEDonly as todefendant'sproposedredactions atDkt. No. 193.OtherwiseDENIED. | Plaintiff filed the entiredocument under seal, statingthat defendant designated theinformation contained in thedocument as confidential.Defendant states that onlypart contains confidentialinformation, and filedproposed redactions at Dkt.No. 193. Defendant'sproposed redactions arenarrowly tailored toconfidential businessinformation and the motionis therefore granted as tothese proposed redactions. |
188 | Dkt. No. 188-5. Portions of Plaintiff'sReply in Support of her Motion toCompel Further Responses toDiscovery & supporting Memorandumof Points & Authorities | GRANTED-IN-PART as toproposedredactions atDkt. No. 193-2(1:3, 1:4,1:17,1:18, 5:14, 6:17,and 11:17) andDENIED-IN-PART as to theremainder. | Plaintiff seeks to sealportions of this documentbecause it containsinformation defendant hasdesignated as confidentialbusiness information.Defendant identified certainredactions it feels arenecessary, and stated that theremainder of plaintiff'sproposed redactions are notnecessary to protectdefendant's confidentialinformation. See Dkt. No.193-2. Defendant's proposedredactions are narrowlytailored to confidentialbusiness information and themotion is therefore grantedas to these proposedredactions. |
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188 | Dkt. No. 188-7. Plaintiff's ad-clickdata produced by Facebook | GRANTED | Narrowly tailored toconfidential businessinformation. |
188 | Dkt. No. 188-9. Excerpts fromPlaintiff's Deposition | DENIED | Plaintiff filed under seal outof an abundance of caution,but defendant states thatDocket No. 188-9 containsno sealable information. |
188 | Dkt. No. 188-11. Defendant'sSupplemental Response to formerPlaintiff Make Robertson's First Set of | GRANTED-IN-PART as toproposed | Plaintiff filed the entiredocument under seal, statingthat defendant designated the |
Requests for Production | redactions atDkt. No. 193-4(4:6 and 5:18)and DENIED-IN-PART as tothe remainder. | information contained in thedocument as confidential.Defendant filed proposedredactions at Dkt. No. 193-4.Defendant's proposedredactions are narrowlytailored to confidentialbusiness information and themotion is therefore grantedas to these proposedredactions. | |
188 | Dkt. No. 188-13. Portions of theDeclaration of Kassra P. Nassiri inSupport of Plaintiff's Reply toDefendant's Opposition to Plaintiff'sMotion for Leave to File AmendedComplaint and to Amend SchedulingOrder | DENIED | Plaintiff filed under seal outof an abundance of caution,but defendant states thatDocket No. 188-13 containsno sealable information. |
202 | Dkt. No. 202-3. Exhibit A to theDeclaration of Kyle C. Wong inSupport of Facebook's Objections toNew Evidence in Plaintiff's ReplyMemorandum and Reply Declarationin Support of Plaintiff's Motion forLeave to File Amended Complaint andAmend Scheduling Order | GRANTED | Narrowly tailored toconfidential businessinformation. |
202 | Dkt. No. 202-5. Exhibit B to theDeclaration of Kyle C. Wong inSupport of Facebook's Objections toNew Evidence in Plaintiff's ReplyMemorandum and Reply Declarationin Support of Plaintiff's Motion forLeave to File Amended Complaint andAmend Scheduling Order | GRANTED | Narrowly tailored toconfidential businessinformation. |
The parties shall file documents with updated redactions in accordance with this order by July 9, 2015. Any objections or motions for reconsideration must also be filed by July 9, 2015.
IT IS SO ORDERED. Dated: June 29, 2015
/s/_________
Ronald M. Whyte
United States District Judge