WhatsApp Inc. et al v. NSO Group Technologies Limited et al

Filing 67

ORDER by Judge Phyllis J. Hamilton granting #59 Administrative Motion to File Under Seal; granting #60 Administrative Motion to File Under Seal; granting #65 Administrative Motion to File Under Seal. (pjhlc1S, COURT STAFF) (Filed on 5/6/2020)

Case 4:19-cv-07123-PJH Document 67 Filed 05/06/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WHATSAPP INC., et al.,

Case No. 19-cv-07123-PJH

Plaintiffs,

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v.

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ORDER GRANTING MOTIONS TO
SEAL

NSO GROUP TECHNOLOGIES
LIMITED, et al.,

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Re: Dkt. Nos. 59, 60, 65

United States District Court
Northern District of California

Defendants.
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Before the court are three related administrative motions to file under seal. Dkts.

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59, 60, 65. The first, filed by plaintiff WhatsApp Inc. (“WhatsApp” or “plaintiff”),1 seeks to

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file under seal portions of their motion to disqualify and related declarations. The second

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and third, filed by non-party the U.S. Department of Justice (“DOJ”), seeks to file under

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seal in its entirety a declaration by a DOJ Attorney and proposed additional redactions to

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plaintiff’s sealable material. Defendants do not oppose any of the administrative motions.
Due to the several filings necessitated by the motions to seal, the court briefly

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recounts the relevant procedural history. Plaintiff filed its first attempt to file under seal on

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April 10, 2020 (Dkt. 47), which the court subsequently denied without prejudice on April

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22, 2020, because plaintiff and the DOJ did not follow the procedure laid out in Civil Local

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Rule 79-5(e). Dkt. 52. On April 29, 2020, both plaintiff and the DOJ filed administrative

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motions to file under seal that seek to remedy the deficiencies noted in this court’s April

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22, 2020 order. Dkts. 59, 60. Due to the scope of the DOJ’s proposed redactions,

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WhatsApp’s co-plaintiff, Facebook, Inc., has not joined the administrative motion to file
under seal or the underlying motion to disqualify.
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Case 4:19-cv-07123-PJH Document 67 Filed 05/06/20 Page 2 of 4

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plaintiff decided it needed to redact portions of material it filed in connection with the April

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10, 2020 administrative motion and, on May 1, 2020, plaintiff filed a supplemental filing to

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redact portions of an April 10, 2020 declaration and proof of service that refer to

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information that the DOJ recommends as sealable. Dkt. 63. The same day, the DOJ

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filed an amended motion to file under seal in support of plaintiff’s supplemental filing.

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Dkt. 65.

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There is a general presumption in favor of public access to federal court records.
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Foltz v. State Farm Mut.

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Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). “[T]he proponent of sealing bears

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the burden with respect to sealing. A failure to meet that burden means that the default

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United States District Court
Northern District of California

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posture of public access prevails.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172,

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1182 (9th Cir. 2006). When a request to seal documents is made in connection with a

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motion, the court must determine whether the parties are required to overcome that

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presumption with “compelling reasons” or with “good cause.” A party seeking to seal

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materials submitted with a motion that is “more than tangentially related to the merits of

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the case”—regardless whether that motion is “technically dispositive”—must demonstrate

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that there are compelling reasons to keep the documents under seal. Ctr. for Auto Safety

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v. Chrysler Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). Conversely, if the motion

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is only tangentially related to the merits, “a ‘particularized showing,” under the ‘good

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cause’ standard of Rule 26(c) will ‘suffice[] to warrant preserving the secrecy of sealed

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discovery material attached to non-dispositive motions.” Kamakana, 447 F.3d at 1180

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(alteration in original) (quoting Foltz, 331 F.3d at 1135, 38).

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Here, the underlying motion is a motion to disqualify counsel (Dkt. 59-4) and such

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a motion is only tangentially related to the merits because the adjudication of whether

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defendants’ counsel should continue to represent its clients does not affect the merits of

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plaintiffs’ claims. See, e.g., Hartford Cas. Ins. Co. v. Am. Dairy & Food Consulting Labs.,

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Inc., No. 1:09CV-0914-OWW-SKO, 2010 WL 2572858, at *2–3 (E.D. Cal. June 22, 2010)

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(applying good cause standard in reference to an underlying motion to disqualify
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counsel). Therefore, plaintiffs need only meet the good cause standard.
As demonstrated by the DOJ, the material referenced in plaintiff’s motion to

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disqualify has been sealed by a different federal district court pursuant to a statutory

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requirement to seal such material. Dkt. 65 at 3. That matter remains sealed. Id. Plaintiff

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contends that the district court that entered the sealing order should be the court to

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determine whether material should remain sealed. Dkt. 59 at 3. The Ninth Circuit has

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endorsed such an approach in the context of collateral litigants requesting access to

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discovery material in an underlying case. See Foltz, 331 F.3d at 1132 (“[T]he court that

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entered the protective order should satisfy itself that the protected discovery is sufficiently
relevant to the collateral litigation that a substantial amount of duplicative discovery will

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United States District Court
Northern District of California

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be avoided by modifying the protective order.”). While the underlying matter in this

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instance was not sealed pursuant to a discovery protective order, the rationale is the

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same: the court that issued the sealing order is best positioned to determine whether the

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matter should remain sealed. See id. (“The court that issued the order is in the best

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position to make the relevance assessment for it presumably is the only court familiar

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with the contents of the protected discovery.”). As stated, the district court in the

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underlying matter has deemed the matter sealable and, upon review, the material in this

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matter appears sufficiently related to the underlying matter. Therefore, the court finds

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that there is good cause to file the material referenced by plaintiff and the DOJ under

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seal.

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Additionally, in its April 22, 2020 order, the court admonished plaintiff to keep its

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request “narrowly tailored to seek sealing only of sealable material.” Dkt. 52 at 2. Upon

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review of the requested material to be redacted and sealed, the court is satisfied that the

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requested material is narrowly tailored. Finally, the court notes that the DOJ has filed an

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exhibit in which it proposes additional redactions of limited material beyond those

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redactions proposed by plaintiff. Dkt. 66-1. The court finds that the additional redactions

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meet the good cause standard to seal such material and are likewise narrowly tailored.

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For the foregoing reasons, plaintiff’s and DOJ’s administrative motions to file under
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seal are GRANTED. Additionally, plaintiff shall file a revised motion to disqualify2 and

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supporting declarations with the additional redactions proposed by the DOJ; such

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material shall be sealed pursuant to this order when filed. Plaintiff should also serve

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defendants’ counsel with the motion to disqualify and the time for an opposition to the

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motion and a reply to the opposition shall be as of the date the revised motion is filed and

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served and in accordance with Civil Local Rule 7-3.
IT IS SO ORDERED.

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Dated: May 6, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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Plaintiff shall also remove from the docket any previously filed material that the court
has now found to be sealable.
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