Doshier et al v. Facebook Inc

Filing 140

ORDER GRANTING IN PART AND DENYING PART 121 ADMINISTRATIVE MOTION TO FILE UNDER SEAL; GRANTING 124 AND 133 ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL Signed by Judge William Alsup. (whalc5S, COURT STAFF) (Filed on 6/10/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOTSTRATEGY, CO.,

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United States District Court
Northern District of California

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Plaintiff,

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No. 20-00170 WHA

v.
FACEBOOK, INC.,
Defendant.

OMNIBUS SEALING ORDER RE
DKT. NOS. 121, 123, 124, 133, 134

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This case centers on Facebook, Inc.’s, alleged obligation to refund its advertiser-

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customers when fake accounts interact with their advertisements. This order addresses

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requests by Facebook to maintain under seal portions of nine documents—and a tenth in its

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entirety—the parties seek to file in connection with plaintiff’s motion for class certification.

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The public has “a general right to inspect and copy public records and documents,

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including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,

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597 (1978). Thus, “we start with a strong presumption in favor of access to court records.”

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Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).

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“A party seeking to seal a judicial record then bears the burden of overcoming this strong

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presumption by meeting the ‘compelling reasons’ standard.” Kamakana v. City and Cnty. of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation omitted). The party seeking to

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maintain court records under seal “must ‘articulate compelling reasons supported by specific

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factual findings.’” Ibid. (citation omitted).

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A compelling reason to seal a court record is to protect confidential “business

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information that might harm a litigant’s competitive standing” if publicly disclosed. Ctr. for

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Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016).

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In addition, requests to seal “must be narrowly tailored to seek sealing only of sealable
material, and must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b).
Here, Facebook seeks to seal portions of nine filings: plaintiff’s expert’s opening and
rebuttal reports; plaintiff’s expert’s deposition transcript; defendant’s expert’s report and

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deposition transcript; the declaration by a data-scientist-employee of defendant; and the

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United States District Court
Northern District of California

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declaration and deposition transcript of an engineering director of defendant designated by

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defendant under Rule 30(b)(6). In addition, Facebook seeks to maintain under seal the entirety

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of an internal Facebook document describing the process Facebook uses to identify fake or

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compromised accounts.

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Facebook asserts that the filings warrant sealing because they contain two categories of

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information which qualify as proprietary information. The first category, which covers the

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bulk of the sealing requests, is information about “Facebook’s systems designed to prevent,

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detect, enforce against, classify, and document abusive fake accounts” (Dkt. No. 123 at 3).

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That information includes discussion of databases Facebook used in that effort and “data stored

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in the databases, the structure of the databases, details about the fields in these databases and

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what they mean” (ibid.).

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After close review, this order finds that information satisfies the compelling reason

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standard because if publicly disclosed, Facebook’s efforts to combat the prevalence of fake

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accounts on its platform and maintain the security of its platform could be undermined, thus

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harming its competitive standing in the social media industry. Other district judges in this

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district have found similar information warranted sealing. See Adtrader, Inc. v. Google LLC,

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2020 WL 6391210 (Judge Beth Labson Freeman); In re Google Inc. Gmail Litig., 2014 WL

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10537440 (Judge Lucy H. Koh).
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The second category of information Facebook seeks to seal, covering the lesser portion of

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the total, is data about the performance of advertisements, about how consumer accounts

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interact with advertisements, advertiser preferences, and the interaction of fake or abusive

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accounts with advertisements (overlap with the first category). That information also qualifies

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for sealing because it relates to how Facebook offers highly customizable advertising

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campaigns to its advertiser-customers, which is the foundation of its business model (see Dkt.

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Nos. 105 at ¶ 5, 125 at 8). Facebook’s competitive standing would be harmed by the public

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disclosure of that information.
In addition, most of Facebook’s requests are narrowly tailored to only those portions of

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the filings containing information that warrant protection; however, some of the requests are

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United States District Court
Northern District of California

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not narrowly tailored.

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Facebook has otherwise complied with Civil Local Rule 79-5.

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Therefore, the motions to seal are GRANTED IN PART AND DENIED IN PART AS

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FOLLOWS:

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1.

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Facebook seeks to maintain under seal portions of the expert report of plaintiff’s expert,

DKT. NOS. 121, 123.

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Dr. Robert Kneuper. Facebook seeks to seal the following sentence from Section 1.4,

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Paragraph 4 of Dr. Kneuper’s report: “According to Facebook, these same data are available

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for other Class members going back more than three years.” The sentence refers to Facebook’s

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data about fake accounts discussed in greater detail in the preceding paragraph, which

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Facebook also seeks to seal.

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The quoted sentence only vaguely refers to the proprietary data. It is no more revealing

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than the following sentence from the same page of the Kneuper report which Facebook does

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not seek to seal: “Facebook maintains and generates a substantial amount of detailed data

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relating to fake accounts removed from the platform, advertisers, advertiser spending, and

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users.” Facebook has not explained how the fact that the data “go[es] back more than three

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years” is sealable given that the class definition itself includes advertisements from much

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earlier than three years prior and Dr. Kneuper’s report elsewhere states that “Facebook has

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produced data for the Plaintiff which shows how restitution can be measured in this case . . . .”

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The public, including would-be bad actors, presumably can add two and two together.

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Because the only information in Section 1.4, Paragraph 4, Sentence 1, of Dr. Kneuper’s report

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not otherwise disclosed is nonetheless readily inferable from the public information in this

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case, the motion to seal that sentence is DENIED.

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Facebook seeks to seal the following sentence from Section 3.2, Paragraph 1 of Dr.

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Kneuper’s report: “According to Facebook, these same data are available for other Class

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members going back substantially in time.” For the reason stated above, the motion to seal that

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sentence is DENIED.

United States District Court
Northern District of California

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Facebook seeks to seal the following clause from Section 3.2, Paragraph 4 of Dr.

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Kneuper’s report: “Facebook recently described the steps that it undertook in order generate

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this estimate: . . . .” The clause refers to the percentage of “ad impressions Facebook attributed

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to accounts that were late deemed invalid by Facebook due to the users’ activities subsequently

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being deemed invalid” for a recent quarter, which is disclosed in the immediately preceding

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sentence. The steps themselves will remain under seal, but the clause referred to does not

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disclose proprietary information or otherwise warrant sealing. The motion to seal the opening

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clause of Section 3.2, Paragraph 4, Sentence 3 of Dr. Kneuper’s report is DENIED.

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The motion to file under seal those specific portions of Dr. Kneuper’s report identified in
Dkt. No. 123, with the three exceptions described above, is GRANTED.
THE PARTIES MUST REFILE a redacted version of Dr. Kneuper’s report on the public
docket with the redactions limited as described above.

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2.

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Facebook also seeks to file under seal portions of the following documents in support of

DKT. NO. 124.

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its opposition to plaintiff’s motion for class certification: the report of its expert, Dr. Catherine

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Tucker; the declaration of John Lyle, an engineering director on the account integrity team at

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Facebook who Facebook designated under Rule 30(b)(6) for deposition; and the declaration of

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Jennifer Foster, a data scientist at Facebook.
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The portions of those filings Facebook seeks to maintain under seal contain specific

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information about its advertisers’ billing preferences, and its systems for preventing, detecting,

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and enforcing against abusive or fake accounts, including names of data tables. That

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information qualifies for sealing under standards described above. In addition, the information

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is not necessary for the public to understand the case, and the requests to seal are narrowly

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tailored to cover only those portions of the filings truly warranting sealing.

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Therefore, the motion to file under seal, Dkt. No. 124, is GRANTED.

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3.

DKT. NOS. 133, 134.

Facebook also seeks to maintain under seal portions of the following documents plaintiff
has filed in connection with its reply in support of class certification: the reply brief itself; the
deposition transcripts of John Lyle, Dr. Kneuper, Dr. Tucker; and Dr. Kneuper’s rebuttal
report. In addition, Facebook seeks to maintain under seal the entirety of a document titled
“PDO Labeling Guidelines.”
This order finds the information warrants sealing and the requests narrowly tailored.
Therefore, the motion to file under seal, Dkt. No. 133, is GRANTED.

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Northern District of California

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IT IS SO ORDERED.

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Dated: June 10, 2021

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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