Zellmer v. Facebook, Inc.

Filing 86

ORDER RE MOTIONS TO SEAL. Signed by Judge James Donato on 3/31/2022. (jdlc3, COURT STAFF) (Filed on 3/31/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLAYTON P. ZELLMER,
Plaintiff,

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ORDER RE MOTIONS TO SEAL

v.

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Case No. 3:18-cv-01880-JD

Re: Dkt. Nos. 66, 70, 75, 79
FACEBOOK, INC.,
Defendant.

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United States District Court
Northern District of California

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The Court has addressed the standards for sealing requests in conjunction with case filings,

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see In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165, (N.D. Cal.

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Aug. 25, 2021), and that decision is incorporated here. In pertinent summary, “judicial records are

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public documents almost by definition, and the public is entitled to access by default.” Id. at *1

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(quoting Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); see also

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Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (when

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considering a request to seal, “we start with a strong presumption in favor of access to court

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records.”) (quotation omitted). The party seeking to seal a document bears the burden of

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articulating “compelling reasons supported by specific factual findings that outweigh the general

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history of access and the public policies favoring disclosure.” Id. (quotation and citation omitted).

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General assertions of potential competitive or commercial harm are not enough to establish good

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cause for sealing court records, and the “fact that the parties may have designated a document as

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confidential under a stipulated protective order is also not enough to justify sealing.” Id. (citation

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omitted).

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The documents proposed for sealing were produced by Facebook, and used by both parties

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in conjunction with their briefing on Facebook’s motion for summary judgment. See Dkt. Nos.

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67, 71, and 76. As required by Civil Local Rule 79-5, Facebook filed the initial notice of sealing

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for documents submitted in connection with its briefing, and Zellmer filed the initial notice of

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sealing for documents submitted with his briefing. Because all of the documents the parties seek

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to seal were produced by Facebook, or contain references to materials Facebook produced,

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Facebook bears the burden of stating why the documents should be sealed under Civil Local Rule

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79-5.

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The Court’s sealing determinations are stated in the attached chart. See Ex. A. On the

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whole, Facebook’s motions to seal requested to seal entire documents, and did not propose ways

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of tailoring sealing to the narrowest possible scope, as required by Civil Local Rule 79-5. The

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requests also made conclusory statements about the competitive harm that Facebook will suffer as

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a result of the documents’ disclosure. Additionally, Facebook publicly announced that it would be
suspending use of its facial recognition system, so it is unclear how Facebook could be

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United States District Court
Northern District of California

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competitively harmed by the disclosure of documents relating to a system that it no longer uses.

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See Torsten Kracht, Lisa Sotto, & Bennett Sooy, Facebook Pivots from Facial Recognition System

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Following Biometric Privacy Suit, REUTERS (Jan. 26, 2022),

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https://www.reuters.com/legal/legalindustry/facebook-pivots-facial-recognition-system-following-

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biometric-privacy-suit-2022-01-26/. Consequently, the majority of the sealing requests are

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denied. The Hashimi report, which undertakes analysis of Facebook’s source code and contains

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explicit references to and excerpts of the source code, may be sealed.

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The “default posture of public access prevails” for the documents that the Court declines to

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seal. In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165 at *3

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(quoting Kamakana, 447 F.3d at 1182). The parties are directed to file unredacted versions of the

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documents on ECF within 7 days of this order. Civil L.R. 79-5(f).

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IT IS SO ORDERED.
Dated: March 31, 2022

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JAMES DONATO
United States District Judge

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Exhibit A to Order re Motions to Seal

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Document

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Facebook’s
Memorandum
of Points and
Authorities in
Support of
Motion for
Summary
Judgment
Dkt. No. 67

United States District Court
Northern District of California

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Proffered Reason for
Sealing

Page 1/Line 8
Page 2/Lines 4-5
Page 5/Lines 1-3, 811, 15-17, 21-26
Page 6/Lines 1, 5-11,
21-22, 25-27
Page 9/Lines 23-24,
26-27
Page 10/Lines 27-28
Page 11/Lines 19-23
Page 12/Lines 4-5
Page 15/Lines 5, 23-26
Page 16/Lines 11-12
Page 18/Line 8
Page 20/Lines 7-8

Discusses confidential Denied.
and sensitive
information that
Facebook also seeks to
seal. (See Dkt. No. 66
a 3-4)

Declaration of Paragraphs 2-12 and
Gary McCoy, 16
Dkt. No. 67-2

Designated
confidential or highly
confidential and
contains trade secrets
about how Facebook
designs computer
systems and
proprietary facerecognition
technology. (See Dtk.
No. 66 at 2; Dkt. No.
66-1 at ¶¶ 7-8)

Denied. The declaration
portions that Facebook
seeks to seal provide highly
general explanations of
Facebook’s facerecognition software.
These general, high-level
descriptions are not tradesecrets, and Facebook’s
counsel has already
discussed them at length
with the Court in public
hearings.

Excerpted
Deposition of
Gary McCoy,
Dkt. No. 67-5

Contains confidential
details of Facebook’s
network architecture,
face-recognition
technology, and
computer systems, the
disclosure of which
would result in
competitive harm to
Facebook. (See Dkt.

Denied. The deposition
portions that Facebook
seeks to seal provide highly
general explanations of
Facebook’s facerecognition software.
These general, high-level
descriptions are not tradesecrets, and Facebook’s
counsel has already
discussed them at length

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Ruling

MOTION FOR SUMMARY JUDGMENT

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Information sought
to be sealed

Entire Document

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Document

Information sought
to be sealed

Proffered Reason for
Sealing

Ruling

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No. 66 at 3; Dkt. No.
66-1 at ¶¶ 10-11)

with the Court in public
hearings.

Excerpted
Entire Document
Deposition of
Yaniv
Taigman, Dkt.
No. 67-4

Contains confidential
details of Facebook’s
network architecture,
face-recognition
technology, and
computer systems, the
disclosure of which
would result in
competitive harm to
Facebook. (See Dkt.
No. 66 at 3; Dkt. No.
66-1 at ¶¶ 10-11)

Denied. The request is
overbroad, and is not
narrowly tailored. It
includes background
information about the
deponent that is clearly not
confidential, as well as
including high level
discussions of Facebook’s
technology.

Excerpted
Deposition of
Omry Yadan,
Dkt. No. 67-6

Contains confidential
details of Facebook’s
network architecture,
face-recognition
technology, and
computer systems, the
disclosure of which
would result in
competitive harm to
Facebook. (See Dkt.
No. 66 at 3; Dkt. No.
66-1 at ¶¶ 10-11)

Denied. The deposition
portions that Facebook
seeks to seal provide highly
general explanations of
Facebook’s facerecognition software.
These general, high-level
descriptions are not tradesecrets, and Facebook’s
counsel has already
discussed them at length
with the Court in public
hearings.

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United States District Court
Northern District of California

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Entire Document

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OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Zellmer’s
Opposition to
Motion for
Summary
Judgment,
Dkt. No. 71

Page 1/Lines 10-16, 20
Page 2/Lines 1-8, 1619, 23-26
Page 3/Lines 1-23
Page 4/Lines 1-9
Page 5/Lines 5-20, 2326
Page 6/Lines 1-4, 7-14
Page 7/Lines 17-20
Page 8/Lines 6, 24-27
Page 14/Lines 6-13
Page 15/Lines 4-14

Discusses documents
and materials that have
been designated as
confidential. (See Dkt.
No. 70-1 at ¶ 4c)

Granted in part. The
request is granted for the
following pages and lines:
Page 2/Lines 16-19
Page 3/Lines 1-23
Page 4/Lines 1-9
Page 15/Lines 4-14
These portions cite to the
Hashimi Report, for which
Facebook has made a
showing of compelling
reasons for sealing.

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Document

Information sought
to be sealed

Proffered Reason for
Sealing

Ruling

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Exhibit 1 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed, and the
document contains a public
post on Facebook about
tagging.

Excerpted
Deposition of
Robert
Sherman,
Exhibit 2 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed.

Excerpted
Deposition of
Yaniv
Taigman,
Exhibit 3 to
Opposition

Entire Document

Contains proprietary
and confidential
information about
Facebook’s face
recognition
technology, the
disclosure of which
would put Facebook at
competitive
disadvantage. (See
Dkt. No. 79 at 4-5)

Denied. The excerpts
discuss Facebook’s face
recognition technology at a
high level that does not
disclose information that
would put Facebook at a
competitive disadvantage.

Exhibit 4 to
Opposition

Entire Document

Contains proprietary
and confidential
information about
Facebook’s face
recognition
technology, the
disclosure of which
would put Facebook at
competitive
disadvantage. (See
Dkt. No. 79 at 4-5)

Denied. The document
discusses the face
recognition technology at a
high level that does not
disclose information that
would put Facebook at a
competitive disadvantage.
These general, high-level
descriptions have already
been discussed by
Facebook’s counsel with
the Court in public
hearings.

Exhibit 5 to
Opposition

Entire Document

Designated
confidential by
Facebook during

Denied. No further
showing was made by
Facebook to demonstrate

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United States District Court
Northern District of California

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Document

Information sought
to be sealed

Proffered Reason for
Sealing

Ruling

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discovery. (See Dkt.
No. 70-1 at ¶ 4b)

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Expert Report
of Dr. Atif
Hashimi,
Exhibit 6 to
Opposition

Entire Document

Report contains
detailed analysis of
Facebook’s source
code and other
documents relating to
Facebook’s face
recognition
technology, which
would put Facebook at
a competitive
disadvantage if
disclosed. (See Dkt.
No. 79 at 4)

Granted. The report
discusses Facebook’s face
recognition in great detail,
including with reference to
specific portions of
Facebook’s source code.

Excerpted
Deposition of
Dan Barak
Exhibit 7 to
Opposition

Entire Document

Contains confidential
details of sources of
data that Facebook
collects, the disclosure
of which would cause
competitive harm to
Facebook. (See Dkt.
No. 79 at 3)

Denied. The document
discusses data sources and
technology at a high level
that does not disclose
information that would put
Facebook at a competitive
disadvantage.

Exhibit 8 to
Opposition

Entire Document

Contains proprietary
and confidential
information about
Facebook’s face
recognition
technology, the
disclosure of which
would put Facebook at
competitive
disadvantage. (See
Dkt. No. 79 at 4-5)

Denied. The document
contains high level
discussions of potential
improvements to the face
recognition technology. It
does not contain details
about how the technology
works or how
improvements would be
implemented. Facebook
has not provided
compelling reasons for why
the disclosure of this
document would cause
competitive harm.

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United States District Court
Northern District of California

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why this document should
be sealed.

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Document

Information sought
to be sealed

Proffered Reason for
Sealing

Ruling

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Exhibit 9 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed.

Exhibit 10 to
Opposition

Entire Document

Contains proprietary
and confidential
information about
Facebook’s face
recognition
technology, the
disclosure of which
would put Facebook at
competitive
disadvantage. (See
Dkt. No. 79 at 4-5)

Denied. The document is
an assignment for
improvements to the face
recognition technology, but
does not describe any
details about the
technology. Facebook has
not provided compelling
reasons for why the
disclosure of this document
would cause competitive
harm.

Exhibit 11 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed, and the
document is an issued
patent, which is already
public.

Excerpted
Deposition of
Gary McCoy,
Exhibit 12 to
Opposition

Entire Document

Contains confidential
details of Facebook’s
face-recognition
technology, the
disclosure of which
would result in
competitive harm to
Facebook. (See Dkt.
No. 66 at 3; Dkt. No.
66-1 at ¶¶ 10-11)

Denied. The deposition
portions that Facebook
seeks to seal provide only
high level explanations of
Facebook’s facerecognition software.
These general, high-level
descriptions are not tradesecrets, and Facebook’s
counsel has already
discussed them at length
with the Court in public
hearings.

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United States District Court
Northern District of California

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Document

Information sought
to be sealed

Proffered Reason for
Sealing

Ruling

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3

Exhibit 15 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed.

Exhibit 16 to
Opposition

Entire Document

Designated
confidential by
Facebook during
discovery. (See Dkt.
No. 70-1 at ¶ 4b)

Denied. No further
showing was made by
Facebook to demonstrate
why this document should
be sealed.

Exhibit 17 to
Opposition

Entire Document

Contains proprietary
and confidential
information about
Facebook’s face
recognition
technology, the
disclosure of which
would put Facebook at
competitive
disadvantage. (See
Dkt. No. 79 at 4-5)

Denied. The document
discusses face recognition
at a high level in
connection with product
launch. Facebook has not
provided compelling
reasons for why the
disclosure of this document
would cause competitive
harm.

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United States District Court
Northern District of California

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REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Facebook’s
Reply in
Support of its
Motion for
Summary
Judgment,
Dkt. No. 76

Page 1/Line 13
Page 2/Lines 12-13
Page 3/Line 28
Page 4/Lines 5, 11-12,
23
Page 8/Line 27
Page 9/Lines 18-19,
23-24
Page 10/Lines 10-14

Discusses documents
Denied.
and materials that have
been designated as
confidential. (See Dkt.
No. 79 at 5)

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