Garvey et al v. Kissmetrics et al

Filing 126

Order by Magistrate Judge Laurel Beeler denying 125 Administrative Motion to File Under Seal.(lblc1S, COURT STAFF) (Filed on 10/18/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
IN RE HULU PRIVACY LITIGATION

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-03764 LB
ORDER DENYING ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

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[RE: ECF NO. 125]
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____________________________________/

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The parties in this putative class action are in the process of briefing their summary judgment

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and class certification motions. See Scheduling Order, ECF No. 122. On October 1, 2013, Hulu

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filed a summary judgment motion regarding Plaintiffs’ “Comscore” and “Facebook ‘Like’ Button”

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theories of liability along with several supporting exhibits. See ECF No. 125-3 to 125-10. A portion

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of Hulu’s motion and one of the supporting exhibits contain information that Plaintiffs marked

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Confidential under the parties’ stipulated protective order. See Schwartz Decl., ECF No. 125-1.

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Accordingly, Hulu also filed an administrative motion to file under seal. ECF No. 125. Hulu

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explains that it seeks to file its summary judgment motion under seal “because it references

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plaintiffs-designated Confidential documents and information.” Schwartz Decl., ECF No. 125-1 at

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2. Plaintiffs’ confidentiality designation is the only reason Hulu gives for filing under seal.

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A party seeking to seal a judicial record or an attached exhibit must show “compelling reasons”

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if the record is a dispositive pleading or”good cause” if the record is a non-dispositive pleading.

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Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). “In general,

ORDER (C 11-03764 LB)

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‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing

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court records exist when such ‘court files might have become a vehicle for improper purposes,’ such

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as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or

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release trade secrets.” Id. at 1179 (quoting Nixon v. Warner Commcationns, Inc., 435 U.S. 589, 597

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(1978)).

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In this district, a party that seeks to file documents under seal must also comply with the

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procedures established by Civil Local Rule 79-5. Under Local Rule 79-5(e), where a party seeks to

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“file under seal a document designated as confidential by the opposing party . . . pursuant to a

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protective order,” within four days, “the Designating Party must file a declaration . . . establishing

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Here, because Hulu’s summary judgment is dispositive, the public’s right to access prevails in

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For the Northern District of California

UNITED STATES DISTRICT COURT

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that all of the designated material is sealable.”

the absence of compelling reasons. Plaintiffs have not filed a declaration establishing that all (or

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any) of the designated material is sealable. See generally Docket. Possibly this is because the

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information is benign. Accordingly, the court DENIES Hulu’s administrative motion to file under

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seal. Unless Plaintiffs show good cause and the court intervenes to delay the public docketing as

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permitted by Local Rule 79-5(e)(2), Hulu may publicly file its summary judgment motion and the

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attached exhibits no earlier than 4 days and no later than 10 days from the date of this order.

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This disposes of ECF No. 125.

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IT IS SO ORDERED.

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Dated: October 18, 2013

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER (C 11-03764 LB)

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