Dunbar v. Google, Inc.

Filing 290

ORDER by Judge Lucy H. Koh granting in part and denying in part 230 Administrative Motion to File Under Seal; granting in part and denying in part 234 Administrative Motion to File Under Seal (lhklc1, COURT STAFF) (Filed on 8/14/2013)

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1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION KEITH DUNBAR, individually and on Behalf of ) those similarly situated, ) ) Plaintiff, ) ) v. ) ) GOOGLE, INC., ) ) Defendant. ) ) Case No.: 5:12-cv-003305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL On August 28, 2012, Plaintiff Keith Dunbar (“Plaintiff”) filed his Motion for Leave to File 18 His Third Amended Class Action Complaint (“Motion for Leave to Amend”). ECF No. 205. 19 Defendant Google, Inc. (“Google”) sought to seal portions of Plaintiff’s Motion for Leave to 20 Amend; Proposed Third Amended Complaint (“TAC”); Google’s Opposition to the Motion for 21 Leave to Amend; Plaintiff’s Reply; and a number of exhibits submitted by the parties in connection 22 with their briefs addressing the Motion for Leave to Amend. See ECF Nos. 204, 208, 210, 213, 23 214. The Court granted-in-part and denied-in-part Google’s sealing requests. See ECF No. 227 24 (“First Sealing Order”). The Court denied with prejudice several requests to seal Google 25 documents designated “Confidential” or “Confidential Attorneys’ Eyes Only” because Google 26 27 28 1 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 agreed that the information did not need to be sealed. See First Sealing Order at 4, 11. The 2 remaining denials to seal were without prejudice. See id. at 12.1 3 Presently before the Court is Google’s renewed Motion to Seal: (1) portions of the Motion 4 for Leave to Amend; (2) portions of Plaintiff’s proposed TAC; (3) portions of Google’s Opposition 5 to the Motion for Leave to Amend; (4) portions of the deposition testimony of Thompson Gawley, 6 which were attached as: (i) Exhibit A to the Declaration of Whitty Somvichian in Support of 7 Google’s Opposition, and (ii) Exhibit O to the Declaration of Sean F. Rommel in Support of the 8 Motion for Leave to Amend; (5) portions of Plaintiff’s Reply; and (6) Exhibits F and G to the 9 Declaration of F. Jerome Tapley in Support of the Motion for Leave to Amend. ECF No. 230 United States District Court For the Northern District of California 10 (“Renewed Motion to Seal”). Also before the Court is Google’s Motion seeking to seal portions of 11 the final TAC. ECF No. 234 (“Motion to Seal the TAC”) (collectively, “Motions to Seal”). The 12 Court GRANTS IN PART AND DENIES IN PART Google’s Motions to Seal. 13 I. LEGAL STANDARD 14 Courts have recognized a “general right to inspect and copy public records and documents, 15 including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & 16 n.7 (1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong 17 presumption in favor of access’ is the starting point. Kamakana v. City and Cnty. of Honolulu, 447 18 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 19 1135 (9th Cir. 2003)). In order to overcome this strong presumption, a party seeking to seal a 20 judicial record must articulate justifications for sealing that outweigh the public policies favoring 21 disclosure. See id. at 1178-79. Because the public’s interest in non-dispositive motions is 22 relatively low, a party seeking to seal a document attached to a non-dispositive motion need only 23 demonstrate “good cause.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) 24 (applying “good cause” standard to all non-dispositive motions, because such motions “‘are often 25 1 26 27 28 On page 11 of the First Sealing Order, the Court erroneously denied without prejudice Plaintiff’s requests to seal: (1) Motion for Leave to Amend pages 4:26, 5:1-2, 5:8-10, 5:17-19, 7:14-19, 9:25, and 10:26-27, and (2) Exhibit P to the Rommel Declaration. Because Google does not wish to seal these Google documents that were designated “Confidential” or “Confidential Attorney’s Eyes Only,” the Court hereby denies Plaintiff’s request to seal these documents with prejudice. Id. at 11. Google has not, in its Renewed Motion to Seal, requested that these excerpts be sealed. 2 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 unrelated, or only tangentially related, to the underlying cause of action’” (citing Kamakana, 447 2 F.3d at 1179)). 3 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 5 process and of significant public events.’” Kamakana, 447 F.3d at 1179 (quoting Valley 6 Broadcasting Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)). Thus, 7 a party seeking to seal a judicial record attached to a dispositive motion or presented at trial must 8 articulate “compelling reasons” in favor of sealing. See id. at 1178. “In general, ‘compelling 9 reasons’ . . . exist when such ‘court files might have become a vehicle for improper purposes,’ such 10 United States District Court For the Northern District of California 4 as the use of records to . . . release trade secrets.” Id. at 1179 (citing Nixon, 435 U.S. at 598). The 11 Ninth Circuit has adopted the Restatement’s definition of “trade secret” for purposes of sealing, 12 holding that “[a] ‘trade secret may consist of any formula, pattern, device or compilation of 13 information which is used in one’s business, and which gives him an opportunity to obtain an 14 advantage over competitors who do not know or use it.” In re Electronic Arts, 298 Fed. App’x 15 568, 569-70 (9th Cir. 2008) (quoting Restatement of Torts § 757, cmt. b). Additionally, 16 “compelling reasons” may exist if sealing is required to prevent judicial documents from being 17 used “‘as sources of business information that might harm a litigant’s competitive standing.’” Id. 18 at 569 (9th Cir. 2008) (citing Nixon, 435 U.S. at 598). 19 Accordingly, the Court applies the “compelling reasons” standard to Google’s requests to 20 seal the TAC and the proposed TAC2 because the TAC forms the “foundation” of Plaintiff’s 21 lawsuit against Google. See In re NVIDIA Corp. Derivative Litig., C 06-06110 SBA, 2008 WL 22 1859067, at *3 (N.D. Cal. Apr. 23, 2008) (holding that the “compelling reasons” standard applied 23 to complaint because, “[w]hile a complaint is not, per se, the actual pleading by which a suit may 24 be disposed of, it is the root, the foundation, the basis by which a suit arises and must be disposed 25 of”). Because the other documents Google seeks to seal do not form the foundation of Plaintiff’s 26 lawsuit and are non-dispositive, the Court applies the good cause standard. See First Sealing Order 27 2 28 Plaintiff filed the proposed TAC with his Motion for Leave to Amend. After leave was granted, Plaintiff filed the TAC. 3 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 at 3 (citing Pintos, 605 F.3d at 678 (applying “good cause” standard to all non-dispositive 2 motions)). 3 II. 4 DISCUSSION In the Renewed Motion to Seal and Motion to Seal the TAC, Google has narrowed its sealing requests and set forth with particularity its basis for sealing portions of the TAC; Motion 6 for Leave to Amend; Opposition; Reply; and exhibits submitted with these documents. See 7 Declaration of Deepak Jindal in Support of Renewed Motion to Seal, ECF No. 231 (“Jindal Decl.”) 8 at 9-15. The Court having reviewed Google’s Motions to Seal and the supporting declaration of 9 Deepak Jindal rules as follows: 10 United States District Court For the Northern District of California 5 Document TAC and Proposed TAC (Jindal Decl., Ex. B) TAC and Proposed TAC (Jindal Decl., Ex. B) Motion for Leave to Amend (Jindal Decl., Ex. A) Motion for Leave to Amend (Jindal Decl., Ex. A) Motion for Leave to Amend (Jindal Decl., Ex. A) Motion for Leave to Amend (Jindal Decl., Ex. A) Motion for Leave to Amend (Jindal Decl., Ex. A) Opposition (Jindal Decl., Ex. C) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Line/Page Page 9, lines 5-6 Page 6, lines 14 and 18 Page 10, line 1517, 22 Page 10, line 2425 Page 11, lines 1011 Page 17, line 11 Page 5, lines 1517, 22 Page 4, lines 2223 Opposition (Jindal Decl., Ex. C) Page 5, lines 5-6, 73 Deposition of Thompson Gawley Page 203, lines 56, 9-10, 16-17 Deposition of Thompson Gawley Page 191, lines 4(Jindal Decl., Ex. D) 5, 13, 21-22 Deposition of Thompson Gawley Page 193, line 23 (Jindal Decl., Ex. D) Deposition of Thompson Gawley Page 195, lines (Jindal Decl., Ex. D) 10-13, 16-19, 22- Ruling DENIED. This information has already been publicly disclosed. See Tr. at 33:5-8. GRANTED. GRANTED. DENIED. This information has already been publicly disclosed. See Tr. at 33:5-8. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. 3 27 28 Line 7 is not identified in the Jindal Declaration. However, this line is redacted in Google’s proposed redacted Opposition. See ECF No. 231-1 at 5. Moreover, the redacted information is the same type of confidential information that Google has sought to seal and that this Court finds meets the good cause standard for sealing. 4 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 Deposition of Thompson Gawley Page 199, lines (Jindal Decl., Ex. D) 14-15, 17-21, 2325 Deposition of Thompson Gawley Page 200, line 8 (Jindal Decl., Ex. D) Deposition of Thompson Gawley Page 200, line 8 (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley Page 200, lines 19-25 Page 201, lines 9, 23-25 Page 202, lines 2, 4-10, 12-13, 16, 23 Page 204, lines 10-11, 14-19, 24 Page 205, lines 9, 14, 21, 254 Page 206, lines 1, 8-9 Page 207, lines 45, 12-13, 15-17, 20-22 Page 208, lines 2, 11-13, 15-16 Page 209, lines 15-18, 20, 24 Page 210, lines 1, 6-7, 17-18, 22 Page 211, lines 10-11, 22 Page 212, lines 12, 4, 18 Page 213, lines 3, 6-7, 9-17, 19-20 Page 216, lines 67, 10, 13-14, 1920 Page 221, lines 57 Page 222, lines GRANTED. GRANTED. DENIED. This information has already been publicly disclosed. See Tr. at 31:2032:2. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. 26 4 27 28 Lines 9 and 14 are not identified in the Jindal Declaration. However, these lines are redacted in Google’s proposed redacted Opposition. See ECF No. 231-4 at 205. Moreover, the redacted information is the same type of confidential information that Google has sought to seal and that this Court finds meets the good cause standard for sealing. 5 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 2 3 (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) Deposition of Thompson Gawley (Jindal Decl., Ex. D) 10-11 Page 223, lines 10-13 Page 82, lines 34, 17, 23-24 4 5 6 7 8 9 Deposition of Thompson Gawley Page 83, lines 5(Jindal Decl., Ex. D) 14 Reply (Jindal Decl., Ex. E) Page 4, lines 1519, 21-22 Reply (Jindal Decl., Ex. E) Reply (Jindal Decl., Ex. E) Page 4, lines 4-8 Page 5, lines 1-2, 16 Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Page 100, lines 67, 12-14 Page 101, lines 34, 7-8, 11, 14, 19 Page 103, lines 34, 15, 22 Page 104, lines 12, 14-15 Page 105, lines 15-17, 23 Page 106, lines 23, 7-8, 12-13, 1617, 21 Page 176, lines 13, 16-18, 22, 25 Page 177, lines 15, 8, 11, 14, 19 Page 178, lines 57, 9-10, 12, 15-18 Page 199, 14-15, 17-21, 23-25 Page 200, line 8 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Deposition of Thompson Gawley (Jindal Decl, Ex. F) Page 200, lines 19-25 Page 209, lines 15-18, 20, 24 Page 210, lines 1, 6-7, 17-18, 22 6 GRANTED. DENIED. While these lines are identified for sealing in the Jindal Declaration, they are not redacted in Google’s publicly filed, proposed redacted Opposition. See ECF No. 231-4 at 82. Thus, the information has been publicly available for months. GRANTED. DENIED. This information has already been publicly disclosed. See Tr. at 31:2032:2. GRANTED. DENIED. This information has already been publicly disclosed. See Tr. at 31:2032:2. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. GRANTED. DENIED. This information has already been publicly disclosed. See Tr. at 31:2032:2. GRANTED. GRANTED. GRANTED. Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL 1 Deposition of Thompson Gawley Page 82, lines 3(Jindal Decl, Ex. F) 4, 17, 23-24 2 3 4 5 6 Exhibit F to the Declaration of F. Jerome Tapley Exhibit G to the Declaration of F. Jerome Tapley 7 8 Dated: August 14, 2013 _________________________________ LUCY H. KOH United States District Judge 10 United States District Court For the Northern District of California GRANTED. IT IS SO ORDERED. 9 N/A (seeking to seal document in its entirety) N/A (seeking to seal document in its entirety) DENIED. While these lines are identified for sealing in the Jindal Declaration, they are not redacted in Google’s publicly filed, proposed redacted Opposition. See ECF No. 231-4 at 82. Thus, the information has been publicly available for months. GRANTED. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No.: 12-CV-03305-LHK ORDER RE: RENEWED ADMINISTRATIVE MOTIONS TO SEAL