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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 In re Facebook Biometric Information Privacy Litigation Case No. 15-cv-03747-JD ORDER DENYING ADMINISTRATIVE MOTIONS TO SEAL 9 10 Re: Dkt. Nos. 208, 211 United States District Court Northern District of California 11 12 This order resolves the pending administrative motions to file documents under seal in this 13 case, as well as the identical motions in the related case Gullen v. Facebook, 16-cv-937-JD, Dkt. 14 Nos. 78, 81. 15 I. GOVERNING STANDARD 16 In our circuit, in evaluating a motion to seal, two different standards apply depending on 17 whether the request is being made in connection with a dispositive motion or a non-dispositive 18 motion. 19 For dispositive motions, the historic, “strong presumption of access to judicial records” 20 fully applies, and a party seeking sealing must establish “compelling reasons” to overcome that 21 presumption. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006) 22 (quoting Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). This 23 standard presents a “high threshold,” and “a ‘good cause’ showing will not, without more, satisfy” 24 it. Id. at 1180 (citations omitted). When ordering sealing in this context, the district court must 25 also “articulate the rationale underlying its decision to seal.” Apple Inc. v. Psystar Corp., 658 F.3d 26 1150, 1162 (9th Cir. 2011). 27 The non-dispositive motion context is different. There, “the usual presumption of the 28 public’s right of access is rebutted,” the “public has less of a need for access to court records 1 attached only to non-dispositive motions,” and the “public policies that support the right of access 2 to dispositive motions, and related materials, do not apply with equal force to non-dispositive 3 materials.” Kamakana, 447 F.3d at 1179-80 (citations omitted). In that context, materials may be 4 sealed so long as the party seeking sealing makes a “particularized showing” under the “good 5 cause” standard of Federal Rule of Civil Procedure 26(c). Id. at 1180 (quoting Foltz, 331 F.3d at 6 1138). In either case, however, “[a]n unsupported assertion of ‘unfair advantage’ to competitors 7 without explaining ‘how a competitor would use th[e] information to obtain an unfair advantage’ 8 is insufficient.” Hodges v. Apple, Inc., No. 13-cv-01128-WHO, 2013 WL 6070408, at *2 (N.D. 9 Cal. Nov. 18, 2013) (quoting Dunbar v. Google, Inc., No. 5:12-cv-003305-LHK, 2012 WL 10 United States District Court Northern District of California 11 6202719, at *4-5 (N.D. Cal. Nov. 18, 2013)). In our district, in addition to meeting the applicable standard under Kamakana, all parties 12 requesting sealing must also comply with Civil Local Rule 79-5, including that rule’s requirement 13 that the request must “establish[] that the document, or portions thereof, are privileged, protectable 14 as a trade secret or otherwise entitled to protection under the law,” i.e., is “sealable.” Civil L.R. 15 79-5(b). The sealing request must also “be narrowly tailored to seek sealing only of sealable 16 material.” Id. 17 II. 18 Both of the pending motions are associated with a non-dispositive discovery dispute, so the 19 20 21 22 23 24 DISCUSSION “good cause” standard applies. A. 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. 25 26 27 28 2 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. 1 2 3 4 5 6 7 8 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 9 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. 10 United States District Court Northern District of California 11 III. 12 The parties should file unredacted versions of the documents within 7 days of this order. 13 14 CONCLUSION IT IS SO ORDERED. Dated: August 29, 2017 15 16 JAMES DONATO United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 3

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