City of Orlando Police Pension Fund v. Page et al

Filing 76

ORDER by Judge Hamilton granting in part and denying in part 46 Administrative Motion to File Under Seal; granting in part and denying in part 61 Administrative Motion to File Under Seal; granting in part and denying in part 71 Administrative Motion to File Under Seal (pjhlc2, COURT STAFF) (Filed on 2/10/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CITY OF ORLANDO POLICE
PENSION FUND,
Plaintiff,

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v.

ORDER RE MOTIONS TO SEAL

LAWRENCE E. PAGE, et al.,

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For the Northern District of California

United States District Court

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No. C 13-2038 PJH

Defendants.
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Before the court are three motions to seal, filed in connection with defendants’

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motion for summary judgment. The bulk of the motions to seal relates to the Report of the

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Special Committee of the Board of Directors of Google Inc. (“the Report”), which was filed

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by defendants in support of their motion for summary judgment. As stated at the January

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29, 2014 hearing, defendants will be permitted to redact portions of the Report that reflect

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attorney-client communications and/or attorney work-product. Defendants will also be

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permitted to redact the names of Google employees; however, the names of any

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defendants may not be redacted, nor may the names of any Google officers, directors,

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inside or outside counsel, or other high-level management employees be redacted.

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At the hearing, defendants argued that further redactions were justified based on the

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“deliberative process” privilege, and the court rules on that question herein. As an initial

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matter, the “deliberative process” privilege has typically referred to the privilege invoked by

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government entities in response to Freedom of Information Act requests. See, e.g., Dept.

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of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (“deliberative

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process [privilege] covers documents reflecting advisory opinions, recommendations and

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deliberations comprising part of a process by which governmental decisions and policies

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are formulated” (internal citation and quotation omitted)). Defendants appear to be

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advocating for a different type of privilege, used by some courts to shield internal corporate

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deliberations. See Dkt. 46 at 3-4. However, the court finds that defendants’ cited cases

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are inapposite, and thus declines to allow any redactions to the Report other than those

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mentioned above.

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Specifically, defendants first cite to the Sixth Circuit’s opinion in In re Perrigo, in

response to derivative litigation. 128 F.3d 430 (6th Cir. 1997). However, in that case, the

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district court ordered release of the entire report, without any redactions for attorney-client

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privilege or attorney work-product. Id. at 438 (corporation “requested that it be allowed to

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For the Northern District of California

which the court overruled the district court’s decision to release a report prepared in

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United States District Court

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submit a redacted version of the report,” but the district court “rejected that request”). Also,

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the Sixth Circuit did not hold that the report should never be made public, it merely held that

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it should not be “disclosed to the public at this juncture” (emphasis in original), and held that

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disclosure of the report would be appropriate after the district court had read the report and

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“adequately weighed the interests of the public against the interests of Perrigo in

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maintaining its privilege as to all or part of the report.” Id. at 440. Critically, the Sixth

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Circuit then held that “[i]f and when the district court intends to rely on the report in making

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a decision in this case, then at that time it should conduct a hearing regarding whether the

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report or parts thereof should be made to the public.” Id. (emphasis in original). This court

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has engaged in the very process advocated by the Sixth Circuit in Perrigo, holding a

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hearing and ultimately deciding that the privileged portions of the Report should remain

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sealed. Perrigo provides no basis for redacting the Report based on some type of

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corporate deliberative privilege.

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Next, defendants cite to Disney v. The Walt Disney Co., in which the Delaware

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Chancery Court found that release of internal corporate documents could have a “chilling

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effect on board deliberations.” 2005 WL 1538336 (Del. Ch. June 20, 2005). However, in

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Disney, it was the plaintiff who sought to introduce the documents into the litigation and to

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put them into the public record. In contrast, plaintiff in this case has not sought to introduce

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the Report, and instead, it was defendants who asked the court to consider the Report.

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See Defendants’ reply ISO motion for summary judgment at 3, n.3 (“The court made clear,

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however that without the Report it could not find that the Board’s process was reasonable. .

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. Accordingly, defendants provided the Report to the court and plaintiff”). Defendants

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attempted to have this case dismissed without submitting the Report, and after that attempt

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failed, defendants made a calculated choice to submit the Report to support their argument

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that the board’s investigation was conducted reasonably and in good faith. Moreover,

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defendants admit that they contemplated the public release of the Report, as they state in
their reply brief that they made a “minor, common-sense revision to the Report” in

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For the Northern District of California

United States District Court

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anticipation of its possible public release. Reply at 17. Thus, this case is distinguishable

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from Disney, in which the defendant did not expect the documents to become public and

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did not seek to inject them into a legal proceeding.

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Defendants then cite to a number of Delaware cases involving the sealing of reports

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prepared by “special litigation committees.” The court first notes that defendants rely on

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these “special litigation committee” cases while simultaneously quoting the court’s previous

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finding that “[p]laintiff’s reliance on cases involving Delaware’s ‘special litigation committee’

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procedure is misplaced, as those cases involve a specific Delaware procedure which was

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not invoked here.” Reply at 2, n.2 (quoting Dkt. 28 at 10-11). But even putting that aside,

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none of defendants’ cited cases provide any basis for applying a corporate deliberative

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process privilege in addition to the attorney-client privilege and the attorney work-product

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protection.

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The final case cited by defendants in support of their deliberative process privilege

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argument involves the protection of the identities of prison inmate witnesses, and has no

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applicability to the present case. See Goodrick v. Sandy, 2013 WL 1729108 (D. Idaho Apr.

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22, 2013).

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Accordingly, defendants’ claimed deliberative process privilege is rejected.
Defendants are directed to prepare a redacted version of the Report to submit to the court
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for in camera review. As stated above, the only permitted redactions are those covering (1)

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attorney-client communications, (2) attorney work-product, and (3) the names of Google

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employees other than defendants, other officers/directors, inside or outside counsel, and

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other high-level management employees. Defendants shall submit the Report with the

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proposed redactions by February 24, 2014. If the court approves the redactions, the

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parties will be directed to re-file their summary judgment briefs to include any unsealed

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portions of the Report.

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Finally, defendants also seek the sealing of Exhibits A through G of the Kellar

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declaration, which “reference, quote, or consist of minutes of meetings of the Google Board
or the Special Committee of the Google Board or communications from counsel to the

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For the Northern District of California

United States District Court

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Special Committee to Special Committee members regarding the Special Committee’s

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investigation.” Dkt. 71 at 3. Defendants argue that these documents “contain or reflect

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internal deliberations among Google Board members.” Id. Defendants do not present any

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independent argument for sealing these documents, instead arguing that the “compelling

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reasons for sealing Google’s internal corporate deliberation are fully addressed in

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defendants’ briefing on their administrative motion to file the Report under seal.” Id.

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Accordingly, the court similarly incorporates its findings regarding the Report to Exhibits A

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through G of the Kellar declaration. Defendants shall be permitted to seal only those

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portions of the exhibits that disclose (1) attorney-client communications, (2) attorney work-

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product, and (3) the names of Google employees other than defendants, other

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officers/directors, inside or outside counsel, and other high-level management employees.

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Defendants are directed to submit its proposed redactions for in camera review by

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February 24, 2014. If the court approves the redactions, the parties will be directed to re-

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file their summary judgment briefs to include any unsealed portions of the exhibits.

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Accordingly, the motions to seal are GRANTED in part and DENIED in part as
indicated above, subject to the court’s approval of the proposed redactions.
IT IS SO ORDERED.

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Dated: February 10, 2014
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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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