TWiT, LLC et al v. Twitter Inc.

Filing 43

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 42 Administrative Motion to File Under Seal. (ahm, COURT STAFF) (Filed on 6/1/2018)

Case 3:18-cv-00341-JSC Document 43 Filed 06/01/18 Page 1 of 2

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

TWIT, LLC, ET AL.,
Plaintiffs,

8
9
10

United States District Court
Northern District of California

11

Case No.18-cv-00341-JSC
ORDER RE: PLAINTIFFS' AMENDED
ADMINISTRATIVE MOTION TO SEAL

v.
TWITTER INC.,

Re: Dkt. No. 42

Defendant.

12
13

Plaintiffs’ motion to disqualify Durie Tangri, LLP as counsel for Defendant Twittter, Inc.

14

was accompanied by an administrative motion to seal. Plaintiffs sought to seal vast swaths of the

15

motion, supporting declarations, and exhibits thereto based on the fact that they contain “private

16

financial information regarding the prior representation and confidential information pertaining to

17

TWiT’s business affairs” as well as “attorney-client communications.” (Dkt. No. 24-1) At the

18

May 24, 2018 hearing on the motion to disqualify, the Court denied Plaintiffs’ motion to seal

19

without prejudice to Plaintiff refiling a narrowly tailored administrative motion to seal which

20

complies with Local Rule 79-5 and addresses the extent to which Plaintiffs had waived any claim

21

of privilege. The Court has reviewed Plaintiffs’ amended administrative motion to seal and it is

22

DENIED IN PART and GRANTED IN PART. (Dkt. No. 42.)

23

Local Rule 79-5 permits sealing only where the parties have “establishe[d] that the

24

document or portions thereof is privileged or protectable as a trade secret or otherwise entitled to

25

protection under the law.” Civ. L.R. 79-5(b). The rule requires the parties to “narrowly tailor”

26

their requests only to the sealable material. Id. at 79-5(d). Here, Plaintiffs seek sealing of all

27

aspects of their communications with Durie Tangri. As the Court noted at the hearing, this is

28

improper as the request for sealing is neither narrowly tailored, nor does it seek sealing of matters

Case 3:18-cv-00341-JSC Document 43 Filed 06/01/18 Page 2 of 2

1

that are truly privileged. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (“The

2

[attorney-client] privilege only protects disclosure of communications; it does not protect

3

disclosure of the underlying facts by those who communicated with the attorney.”) (emphasis

4

added). In the amended motion, Plaintiff have again sought sealing of nearly all of the same

5

information. Plaintiffs’ amended motion also fails to address the extent to which they waived any

6

assertion of privilege by disclosing the contents of these communications to a third-party: Twitter.

7

See Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (“An express waiver [of the attorney-

8

client privilege] occurs when a party discloses privileged information to a third party who is not

9

bound by the privilege, or otherwise shows disregard for the privilege by making the information

10

United States District Court
Northern District of California

11

public.”).
Accordingly, because Plaintiffs’ motion fails to comply with Rule 79-5 and this Court’s

12

Order with respect to any amended motion, the motion is DENIED as to the motion to disqualify

13

and the supporting declarations including the exhibits thereto except that it is GRANTED as to

14

exhibit B to the Declaration of Lisa Laporte given that the exhibit contains TWiT’s financial

15

information.

16

Twitter also filed portions of its opposition, supporting declarations, and exhibits thereto

17

under seal because the information referenced therein had been designated as confidential by

18

Plaintiffs. (Dkt. No. 35.) Plaintiffs, however, failed to file a declaration in support of sealing as

19

required by Local Rule 79-5(e). Nonetheless, to avoid further motion practice on this matter, the

20

Court preemptively rules on any renewed motion to seal and DENIES sealing for the reasons

21

stated above.

22

This Order disposes of Docket Nos. 24, 35 & 42.

23

IT IS SO ORDERED.

24

Dated: June 1, 2018

25
26
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

27
28
2