In re: High-Tech Employee Antitrust Litigation

Filing 319

Administrative Motion to File Under Seal re Google's Opposition to Plaintiffs' Motion to Compel and Supporting Documents filed by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Declaration of Laszlo Bock, # 4 Declaration of Eric B. Evans, # 5 Proposed Order)(Evans, Eric) (Filed on 1/25/2013)

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1 2 3 4 5 6 7 8 MAYER BROWN LLP LEE H. RUBIN (SBN 141331) lrubin@mayerbrown.com EDWARD D. JOHNSON (SBN 189475) wjohnson@mayerbrown.com DONALD M. FALK (SBN 150256) dfalk@mayerbrown.com ERIC B. EVANS (SBN 232476) eevans@mayerbrown.com ANNE M. SELIN (SBN 270634) aselin@mayerbrown.com Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Telephone: (650) 331-2000 Facsimile: (650) 331-2061 9 10 Attorneys for Defendant Google Inc. 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 16 IN RE: HIGH-TECH EMPLOYEE ANTITRUST LITIGATION 17 THIS DOCUMENT RELATES TO: 18 ALL ACTIONS 19 20 Master Docket No. 11-CV-2509-LHK DEFENDANT GOOGLE INC.’S ADMINISTRATIVE MOTION TO SEAL PORTIONS OF GOOGLE’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL, AND THE ENTIRETY OF THE DECLARATION OF WILLIAM CAMPBELL IN SUPPORT THEREOF 21 22 23 24 25 26 27 28 GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL) MASTER DOCKET NO. 11-CV-2509-LHK Pursuant to N.D. Cal. Civ. L.R. 7-11 and 79-5, Defendant Google Inc. (“Google”) hereby 1 2 moves to seal the following information: 3 (i) Portions of Google’s Opposition to Plaintiffs’ Motion to Compel Production of 4 Google Documents (“Opposition to Motion to Compel”) (proposed redacted 5 version attached as Exhibit 1); and 6 (ii) The Declaration of William Campbell in Support of Google’s Response to 7 Plaintiffs’ Motion to Compel (“Campbell Declaration”) (in its entirety). 8 This information has been designated Confidential or Attorneys-Eyes Only under the 9 Stipulated Protective Order (Modified by the Court) (Dkt. No. 107). Google is filing the 10 accompanying Declaration of Laszlo Bock and Declaration of Eric Evans in support of Google’s 11 sealing request. 12 13 I. LEGAL STANDARD Rule 26(c) of the Federal Rules of Civil Procedure provides broad discretion for a trial 14 court to permit sealing of court documents for, inter alia, the protection of “a trade secret or other 15 confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). 16 The Ninth Circuit has “carved out an exception to the presumption of access to judicial records 17 for a sealed discovery document [attached] to a nondispositive motion,” where the requesting 18 party shows good cause exists to keep the records under seal. Navarro v. Eskanos & Adler, No. 19 C-06 02231, 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana 20 v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (“[A] ‘particularized showing’ 21 under the ‘good cause’ standard of Rule 26(c) will ‘suffice[] to warrant preserving the secrecy of 22 sealed discovery material attached to nondispositive motions.”); see also Pintos v. Pacific 23 Creditors Assoc., 565 F.3d 1106, 1115 (9th Cir. 2009) (“In light of the weaker public interest in 24 nondispositive materials, we apply the ‘good cause’ standard when parties wish to keep them 25 under seal.”). II. GOOD CAUSE EXISTS TO SEAL GOOGLE’S CONFIDENTIAL INFORMATION 26 27 28 The entirety of the Campbell Declaration and accompanying exhibits contain confidential and highly sensitive information related to the unique business arrangement between Mr. -2GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL) MASTER DOCKET NO. 11-CV-2509-LHK 1 William Campbell and Google regarding his role as a senior advisor to Google, including how 2 this arrangement was formalized and documented, as well as the details and express terms and 3 conditions of that arrangement (such as the specific manner in which Mr. Campbell has been, 4 and continues to be, compensated for his work as a senior advisor to Google). As this 5 accompanying Declaration of Laszlo Bock (“Bock Decl.”) demonstrates, this information is 6 closely held within Google and available only to select members of Google’s senior management 7 and legal department. Bock Decl. ¶ 4. If this information were made public, Google would 8 suffer competitive harm because Google’s competitors would discover, and therefore better 9 understand, the unique and confidential arrangement between Mr. Campbell and Google 10 regarding his role as senior advisor to Google, including how this arrangement was formalized 11 and documented and the details and express terms and conditions of that arrangement (such as 12 the specific manner in which Mr. Campbell has been, and continues to be, compensated for his 13 work as a senior advisor to Google). Bock Decl. ¶ 5. Similarly, portions of the Opposition to 14 Motion to Compel reference and quote extensively from the Campbell Declaration and therefore 15 also contain confidential information that would cause Google competitive harm if it were made 16 public. Declaration of Eric Evans ¶¶ 2-3. Google designated the foregoing information 17 “Confidential” or “Attorneys Eyes Only” under the Protective Order. 18 Personal compensation information is regularly sealed because of its confidential and 19 private nature. See Renfro v. Unum, et al., No. 09-2661, 2010 BL 104197 (N.D. Cal. May 10, 20 2010) (granting a motion to seal records containing plaintiffs’ salary information); Nettles v. 21 Farmers Ins. Exch., No. C06-5164, 2007 WL 858060, at *2, 2007 BL 247444 (W.D. Wash. Mar. 22 16, 2007) (holding that salary review notices for third parties “who have not chosen to have their 23 salary history placed into the public record” could be sealed.); EEOC v. Kokh, LLC, No. CIV-0724 1043, 2010 U.S. Dist. LEXIS 82526, at n.1, 2010 BL 187807 (W.D. Okla. Aug. 09, 2012) 25 (noting that portions of summary judgment materials were filed under seal because they 26 contained “confidential salary information”). Similarly, compensation practices and decisions 27 are routinely subject to a sealing order. Hertz Equip. Rental Co. v. Useda, No. CV-10-4953, 28 -3GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL) MASTER DOCKET NO. 11-CV-2509-LHK 1 2010 BL 259718, at *2 (N.D. Cal. Nov. 02, 2010) (granting a temporary restraining order to 2 enjoin a former employee from using a company’s “confidential and/or trade secret employee 3 compensation information”). Moreover, the sealed information also includes Mr. Campbell’s 4 social security number, which is required to be redacted under the Federal Rules. Fed. R. Civ. P. 5 5.2. In addition, good cause exists to seal confidential information relating to a company’s 6 7 internal business strategies, such as its decisions on how to formalize and document unique 8 business arrangements. See Fed. R. Civ. Proc. 26(c)(1)(G) (permitting sealing of “a trade secret 9 or other confidential research, development, or commercial information”) (emphasis added); 10 Krieger v. Atheros Commc’ns, Inc., Case No. 11-CV-00640, 2011 U.S. Dist. LEXIS 68033 at 11 *3-4 (N.D. Cal. June 25, 2011) (holding that a company could seal a presentation from its 12 investment adviser that contained “sensitive and confidential information, including long-term 13 financial projections, discussions of business strategy, and competitive analyses”); Network 14 Appliance, Inc. v. Sun Microsystems Inc., Case No. C-07-06053, 2010 U.S. Dist. LEXIS 21721, 15 at *9 (N.D. Cal. Mar. 10, 2010) (sealing “internal information regarding [defendant’s] business 16 strategies and opportunities that were not widely distributed”); see also TriQuint Semiconductor, 17 Inc. v. Avago Techns. Ltd., Case No. CV 09-531, 2011 U.S. Dist. LEXIS 143942, at *9 (D. Ariz. 18 Dec. 13, 2011) (granting motion to seal “market analysis information,” under “compelling” 19 reason standard applicable to dispositive motions, including a “spreadsheet tracking information 20 regarding potentially competitive products,” and other business strategy documents, such as 21 information relating to “product competitiveness, and market and technological opportunities 22 and risks”). 23 III. 24 CONCLUSION For the foregoing reasons, Google respectfully requests that this Court order portions of 25 the Opposition to Motion to Compel and the entirety of the Campbell Declaration to be placed 26 under seal. In accordance with Civil Local Rule 79-5(b) and (c), a proposed order granting the 27 Administrative Motion to Seal Portions of Google’s Opposition to Plaintiffs’ Motion to Compel 28 and the Entirety of the Declaration of William Campbell In Support Thereof has been lodged -4GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL) MASTER DOCKET NO. 11-CV-2509-LHK 1 with the Clerk in hard copy and served on counsel for Plaintiffs. Pursuant to this Court’s January 2 11, 2013 Order, a copy of the Opposition to the Motion to Compel with the proposed redactions 3 highlighted in yellow is attached as Exhibit 2. In accordance with Civil Local Rule 79-5(b) and 4 (c), Google’s proposed redacted version of the Opposition to the Motion to Compel and the 5 entirety of the Campbell Declaration are being lodged with the Clerk in hard copy within a 6 sealed envelope and will be served on counsel for Plaintiffs. 7 Dated: January 25, 2013 MAYER BROWN LLP 8 9 10 By: /s/ Eric Evans Eric Evans 14 Lee H. Rubin Edward D. Johnson Donald M. Falk Eric Evans Two Palo Alto Square 3000 El Camino Real, Suite 300 Palo Alto, CA 94306-2112 Telephone: (650) 331-2057 Facsimile: (650) 331-4557 15 Attorneys for Defendant GOOGLE INC. 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 -5GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL) MASTER DOCKET NO. 11-CV-2509-LHK