In re Facebook Biometric Information Privacy Litigation

Filing 215

ORDER by Judge James Donato denying (208), (211) Administrative Motions to File Under Seal in case 3:15-cv-03747-JD; denying (78), (81) Administrative Motions to File Under Seal in case 3:16-cv-00937-JD. (jdlc1S, COURT STAFF) (Filed on 8/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re Facebook Biometric Information
Privacy Litigation

Case No. 15-cv-03747-JD
ORDER DENYING ADMINISTRATIVE
MOTIONS TO SEAL

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Re: Dkt. Nos. 208, 211

United States District Court
Northern District of California

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This order resolves the pending administrative motions to file documents under seal in this

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case, as well as the identical motions in the related case Gullen v. Facebook, 16-cv-937-JD, Dkt.

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Nos. 78, 81.

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I.

GOVERNING STANDARD

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In our circuit, in evaluating a motion to seal, two different standards apply depending on

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whether the request is being made in connection with a dispositive motion or a non-dispositive

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motion.

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For dispositive motions, the historic, “strong presumption of access to judicial records”

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fully applies, and a party seeking sealing must establish “compelling reasons” to overcome that

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presumption. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006)

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(quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). This

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standard presents a “high threshold,” and “a ‘good cause’ showing will not, without more, satisfy”

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it. Id. at 1180 (citations omitted). When ordering sealing in this context, the district court must

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also “articulate the rationale underlying its decision to seal.” Apple Inc. v. Psystar Corp., 658 F.3d

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1150, 1162 (9th Cir. 2011).

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The non-dispositive motion context is different. There, “the usual presumption of the

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public’s right of access is rebutted,” the “public has less of a need for access to court records

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attached only to non-dispositive motions,” and the “public policies that support the right of access

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to dispositive motions, and related materials, do not apply with equal force to non-dispositive

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materials.” Kamakana, 447 F.3d at 1179-80 (citations omitted). In that context, materials may be

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sealed so long as the party seeking sealing makes a “particularized showing” under the “good

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cause” standard of Federal Rule of Civil Procedure 26(c). Id. at 1180 (quoting Foltz, 331 F.3d at

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1138). In either case, however, “[a]n unsupported assertion of ‘unfair advantage’ to competitors

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without explaining ‘how a competitor would use th[e] information to obtain an unfair advantage’

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is insufficient.” Hodges v. Apple, Inc., No. 13-cv-01128-WHO, 2013 WL 6070408, at *2 (N.D.

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Cal. Nov. 18, 2013) (quoting Dunbar v. Google, Inc., No. 5:12-cv-003305-LHK, 2012 WL

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United States District Court
Northern District of California

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6202719, at *4-5 (N.D. Cal. Nov. 18, 2013)).
In our district, in addition to meeting the applicable standard under Kamakana, all parties

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requesting sealing must also comply with Civil Local Rule 79-5, including that rule’s requirement

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that the request must “establish[] that the document, or portions thereof, are privileged, protectable

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as a trade secret or otherwise entitled to protection under the law,” i.e., is “sealable.” Civil L.R.

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79-5(b). The sealing request must also “be narrowly tailored to seek sealing only of sealable

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material.” Id.

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II.

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Both of the pending motions are associated with a non-dispositive discovery dispute, so the

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DISCUSSION

“good cause” standard applies.
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Facebook’s Motion (Dkt. No. 208).

Dkt. No. Portion of Document Sealed
Reason for Sealing
Facebook’s Discovery Letter Brief, Confidential designation
209-3
Exhibit C.
by plaintiffs. Dkt. No.
208. Plaintiffs have
been notified per Civil
L.R. 79-5.

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Granted/Denied
Denied.
Plaintiffs did not file
a responsive
declaration
explaining why the
material is sealable.
Further, there is not
good cause to seal
the information and
the request is not
narrowly tailored.

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B.

Plaintiffs’ Motion (Dkt. No. 211).

Dkt. No. Portion of Document Sealed
Reason for Sealing
Plaintiffs’ discovery letter brief -- This portion of
212-2
Portion of page 2.
plaintiffs’ discovery
letter brief contains
statements attributed to a
company executive
during a private meeting
about plans for rolling
out a new feature of
Facebook’s service.
Dkt. No. 212 ¶ 5-6

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Granted/Denied
Denied.
No good cause has
been shown to seal
this information.
The mere fact that
these statements are
purportedly made
by a company
executive during a
private meeting
does not constitute
good cause.

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United States District Court
Northern District of California

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III.

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The parties should file unredacted versions of the documents within 7 days of this order.

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CONCLUSION

IT IS SO ORDERED.
Dated: August 29, 2017

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JAMES DONATO
United States District Judge

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