Singer et al v. Facebook, Inc.

Filing 253

ORDER RE MOTIONS TO SEAL. Signed by Judge James Donato on 1/8/2021. (jdlc3S, COURT STAFF) (Filed on 1/8/2021)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DZ RESERVE, et al., Plaintiffs, 8 9 10 v. FACEBOOK, INC., ORDER RE MOTIONS TO SEAL Re: Dkt. Nos. 141, 147, 152, 159, 165, 172, 183, 189, 191, 199, 201, 207, 216, 222, 228, 232, 239, 242, 247 Defendant. 11 United States District Court Northern District of California Case No. 3:18-cv-04978-JD 12 13 A hallmark of our federal judiciary is the “strong presumption in favor of access to court 14 records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Public 15 access maintains confidence in the fair and impartial administration of justice, and protects the 16 integrity and independence of the courts. This is why the business of the federal judiciary is done 17 in open court. 18 In limited circumstances, there may be grounds for curtailing public access. This is an 19 exception to the rule, and so a party requesting that a document or evidence be sealed from the 20 public needs to present a good reason explaining why. A particularized showing of good cause is 21 required to seal documents related to non-dispositive motions, and a compelling reason supported 22 by specific facts is needed before the Court will consider sealing records involving dispositive 23 motions such as a summary judgment motion. Kamakana v. City & Cty. of Honolulu, 447 F.3d 24 1172, 1179-80 (9th Cir. 2006). 25 Both sides in this litigation have filed a slew of motions to seal nearly every kind of filing 26 in this case: discovery letters, supporting declarations, motions, scheduling stipulations, and even 27 the complaint itself. All told, the parties seek to seal a mountain of records that ordinarily would 28 be accessible to the public. While the sheer breadth of the sealing requests prompts concerns, the 1 main problem is that the parties often made a sub-par effort to justify their motions. Each side 2 frequently offered perfunctory claims that a document contained “commercially sensitive,” 3 “proprietary,” or “confidential” information relating to “internal assessments and analyses,” and 4 other equally unilluminating statements. See, e.g., Dkt. No. 169-1 ¶¶ 3-4. Such conclusory and 5 unsupported formulations, which for example do not explain how a competitor would use the 6 information to obtain an unfair advantage, are insufficient for sealing. Ochoa v. McDonald’s 7 Corp., Case No. 14-cv-02098-JD, 2015 WL 13064913, at *1 (N.D. Cal. Apr. 13, 2015). The sealing motions also violate our District’s local rules. “A sealing order may issue only 9 upon a request that establishes that the document, or portions thereof, are privileged, protectable as 10 a trade secret or otherwise entitled to protection under the law.” Civil L-R 79-5(b). “The request 11 United States District Court Northern District of California 8 must be narrowly tailored to seek sealing only of sealable material.” Id. In this case, the parties 12 ask to seal any document or record that even minutely touches upon Facebook’s products, and 13 with little discernable effort to limit sealing to genuinely protectable materials. 14 For purposes of illustration, the Court highlights an example of the questionable sealing 15 requests. Facebook seeks to seal large portions of plaintiffs’ Third Amended Complaint on the 16 proffered ground that the reliability of Facebook’s Potential Reach estimate for advertisers is 17 “sensitive” and “confidential,” and would cause competitive harm if publicly known. Dkt. No. 18 169-1 ¶¶ 5-8. Why that may be so is not explained. Facebook merely insists that unspecified 19 competitors might “gain an unfair advantage against Facebook by exploiting details” about 20 Facebook products. Dkt. No. 169-1 ¶¶ 5, 6, 7, 8, 9, 10, 11. These allegations stand at the heart of 21 plaintiffs’ claims, and sealing them would make this litigation virtually incomprehensible to the 22 public. The fact that one or another party may have designated the Potential Reach information as 23 confidential under the stipulated protective in this case merely begs the question of sealing. See, 24 e.g., Foltz, 331 F.3d at 1135; see also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 25 (9th Cir. 1992) (a stipulated “blanket protective order” is “by its nature overinclusive,” especially 26 if no individualized “good cause” showing is made before party designates document as 27 protectible). 28 2 1 This example is just the tip of the iceberg. The Court declines to expend its own resources 2 on cataloguing the full extent of the sealing problems. The better approach is to return this to the 3 parties for corrective action that follows our local rules, the Court’s sealing practices, and 4 governing law. The Court would be well within bounds to order everything filed in the public 5 record, but it will give the parties a second chance to make a well-supported request to seal a 6 discrete number of records. 7 If the parties would like to try again for other materials, they may file a single consolidated 8 motion to seal identifying each document for sealing. The parties must meet and confer on any 9 sealing disputes before filing the consolidated motion. For those documents that the parties agree should not be sealed, they must be filed on the public docket noting the docket number and pin 11 United States District Court Northern District of California 10 cite of the previous sealing request. The parties must mail (not deliver) to Chambers a binder 12 containing all of the documents proposed for sealing, with consecutive tab numbers for each 13 document. Each tab should contain an unredacted version of the document with the proposed 14 redactions highlighted in yellow. The highlighting must allow the Court to easily read the 15 underlying text. If the parties propose to redact an entire document, they should make a note on 16 the first page of the document and omit highlighting. For long documents, they should include 17 only the pages with portions that the party wishes to seal. No other materials should be in this 18 binder -- no arguments, declarations, or anything else. In addition, a full copy of each unredacted 19 document with only the proposed redactions highlighted must be filed under seal on ECF. 20 Any renewed administrative motion to seal must be accompanied by a joint declaration 21 that states with particularity, and in a non-conclusory fashion, the factual bases supporting sealing 22 under the applicable legal standard. Any disagreements should be noted in the joint declaration. 23 The parties must also provide a single proposed order in the table format specified in Civil Local 24 Rule 79-5(d)(1)(B) as modified here: (i) the far left column should list the tab number for each 25 document; (ii) the next column should specify the exact portions to be sealed; (iii) the next column 26 should state succinctly the specific and particularized reason for sealing and give pin cites to the 27 declaration paragraphs supporting the reasons to seal; and (iv) the rightmost column should 28 provide a space for the Court to indicate whether the request is denied or granted. 3 1 These materials must be filed by February 1, 2021. If no motion is filed, parties must file 2 unredacted copies of each of the documents previously sought to be sealed in the public docket by 3 February 19, 2020. 4 For any future motions to seal, the Court expects the parties will embrace this order and 5 use the same approach. The Court advises the parties that it will restrict or bar the opportunity to 6 file future motions to seal if a party shows again an inability to conform to the governing 7 standards, the local rules, or the Court’s orders. 8 9 IT IS SO ORDERED. Dated: January 8, 2021 10 United States District Court Northern District of California 11 JAMES DONATO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?