In re Google RTB Consumer Privacy Litigation

Filing 577

Order by Magistrate Judge Virginia K. DeMarchi granting in part 571 Motion to Seal May 16, 2023 Hearing. Signed on 9/11/2023. (vkdlc1, COURT STAFF) (Filed on 9/11/2023)

Case 4:21-cv-02155-YGR Document 577 Filed 09/11/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE GOOGLE RTB CONSUMER
PRIVACY LITIGATION

Case No.21-cv-02155-YGR (VKD)

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ORDER GRANTING IN PART
MOTION TO SEAL MAY 16, 2023
HEARING

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Re: Dkt. No. 571

United States District Court
Northern District of California

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On August 28, 2023, defendant Google LLC (“Google”) filed an administrative motion to

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seal portions of the transcript of the Court’s May 16, 2023 discovery hearing. Dkt. No. 571.

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Plaintiffs oppose this motion, arguing that Google has not established good cause to seal the

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information in question, that its supporting declaration is improper, and that the motion is

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untimely. Dkt. No. 574.

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This is Google’s second motion to seal the May 16, 2023 hearing transcript. See Dkt. No.

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561. The Court denied Google’s earlier request without prejudice, noting that the hearing was

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open to the public, the motion was untimely, and that Google had not established good cause to

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seal the portions of the transcript it identified. Dkt. No. 564.

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There is a strong presumption in favor of access by the public to judicial records and

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documents accompanying dispositive motions that can be overcome only by a showing of

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“compelling reasons supported by specific factual findings.” Kamakana v. City & Cnty. of

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Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (cleaned up). However, the presumption does

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not apply equally to a motion addressing matters that are only “tangentially related to the merits of

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a case.” Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). A

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party seeking to seal documents or information in connection with such a motion must meet the

United States District Court
Northern District of California

Case 4:21-cv-02155-YGR Document 577 Filed 09/11/23 Page 2 of 4

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lower “good cause” standard of Fed. R. Civ. P. 26(c). Id. at 1098-99; Kamakana, 447 F.3d at

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1179-80. The discovery hearing at issue here does not address the merits of either party’s claims

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or defenses, so the Court applies the “good cause” standard of Rule 26(c).

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Google argues that good cause exists here because “[p]ublic disclosure of [the identified]

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information would reveal Google’s internal strategies, system designs, and business practices for

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operating and maintaining its important proprietary services.” Dkt. No. 571 at 4. It also claims

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that disclosure would “create[] a serious cybersecurity risk as third parties may seek to use this

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information to compromise Google’s data sources, including data logs.” Id. Google notes that its

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current sealing request is narrower than its first sealing request. Id. at 1. See also Dkt. No. 571-1

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¶ 3; Dkt. No. 561-1 ¶ 3. Google relies on a declaration by its counsel that counsel says is “based

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on [his] review, consultation with [his] client, and familiarity with this Court’s prior sealing

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orders.” Dkt. No. 571-1 ¶ 3.

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Plaintiffs argue that much of the information Google seeks to seal is already publicly

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available and that Google’s allegations of potential harm are generic. Dkt. No. 574 at 2-3. They

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also complain that Google relies on a declaration from its counsel for factual support. Id. at 3-4.

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The Court agrees with Google that good cause exists to seal many of the portions of the

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May 16, 2023 hearing transcript it identifies. Its prior order faulted Google for seeking to seal

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information that was publicly available elsewhere, like the names of its internal data fields. Dkt.

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No. 564 at 3. Google’s revised redactions are more narrowly tailored to protect information

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regarding the company’s internal systems and operations. Dkt. No. 571-1 ¶ 3; Dkt. No. 561-1 ¶ 3;

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Civil L.R. 79-5(c)(3). The plaintiffs argue that much of the information Google seeks to seal here

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was revealed in Brown v. Google (No. 20-cv-3664), a related case. See Dkt. No. 574-1 ¶ 2. After

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reviewing the filings in Brown cited by the plaintiffs, the Court concludes they do not reveal all of

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the information Google seeks to seal here and do not compel public disclosure of the entire

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hearing transcript. However, the Court agrees with plaintiffs that some of Google’s proposed

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redactions cover publicly available information or high-level descriptions that are not appropriate

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subjects for sealing. See id. ¶¶ 1, 4. The Court identifies the portions of the transcript for which it

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finds good cause for sealing in the table below.
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Case 4:21-cv-02155-YGR Document 577 Filed 09/11/23 Page 3 of 4

United States District Court
Northern District of California

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Plaintiffs’ other arguments are not persuasive. While Google’s prior motion contained

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only generic statements that “public disclosure of this information presents serious risk of

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irreparable harm” (Dkt. No. 561-1 ¶ 7), its current submission addresses the “specific prejudice or

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harm” that would results from its disclosure. In re Volkswagen "Clean Diesel" Mktg., Sales

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Pracs., & Prod. Liab. Litig., No. 3:16-CV-2086-CRB, 2019 WL 13268668, at *3 (N.D. Cal. Sept.

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13, 2019) (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th

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Cir. 2002)). In particular, Google explains that this information could be used by cybercriminals

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to target its users if publicly disclosed. See Dkt. No. 571-1 ¶¶ 7-8. Additionally, the Court notes

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that the District’s Local Rules only require “evidentiary support from declarations where

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necessary.” Civil L.R. 79-5(c)(2) (emphasis added); Dkt. No. 531 at 3. Declarations from counsel

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may be insufficient to support a sealing request in some instances. See Waymo LLC v. Uber

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Techs., Inc., No. 17-CV-00939-WHA (JSC), 2017 WL 3581171, at *3 (N.D. Cal. Aug. 18, 2017)

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(“There is no point in having attorneys submit declarations in support of sealing if the Court is

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required to order a document sealed merely because an attorney says he thinks it should be.”);

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Celgard, LLC v. Targray Tech. Int'l Inc., No. 19-CV-02401-VKD, 2019 WL 3841997, at *2 (N.D.

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Cal. Aug. 15, 2019) (counsel declaration which “briefly and generally asserts” potential for harm

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would “ordinarily . . . be insufficient”). While a declaration of counsel is less compelling than a

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declaration of a knowledgeable party employee, the Court relies principally on the arguments

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Google makes in support of its sealing request, a review of the record in this case regarding what

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has already been publicly disclosed, and a careful examination of the material sought to be sealed.

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In these circumstances the Court concludes that Google has demonstrated good cause to
seal the following material and the Court orders that it be sealed:

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Document
May 16, 2023
Hearing Transcript

Portions to be filed Under Seal
Portions highlighted at page(s) of Dkt. No. 571-2: 7:511; 7:13; 7:18-20; 7:25 – 8:3; 8:8-11; 8:16; 10:1;
10:8-10; 11:2; 12:4-5; 12:12; 16:14-15; 16:20;
19:11-13; 19:16; 20:6-7; 22:22-23; 23:9; 24:10-16;
24:18-21; 27:2-3; 27:9; 28:8; 28:11-13; 28:15;
28:17-20; 28:22 – 29:2; 29:18; 30:2; 30:6; 33:19-20;
33:24-25; 34:2-6; 34:12; 34:20; 34:22 – 35:2; 35:5;

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Case 4:21-cv-02155-YGR Document 577 Filed 09/11/23 Page 4 of 4

36:7-8; 37:5-6; 37:21-22; 37:24; 38:6-8; 38:19;
38:22-23; 39:3-5; 39:8; 39:10; 39:15; 39:20-22;
40:21; 41:11; 41:20; 41:22; 41:24; 43:2; 43:5;
43:11-12; 43:16; 44:7; 44:13-14; 44:16; 45:16;
45:21; 45:25; 47:3; 47:12; 47:17; 47:20; 48:3-4;
49:20; 49:23-24; 50:23 – 51:2; 51:18; 53:8-9; 55:2;
55:21; 55:24; 56:8-12; 56:14-15; 56:17-19; 57:11;
57:21-22; 57:24; 58:9-12; 58:18-19; 58:25; 59:2;
59:15; 59:19; 60:13; 60:15; 60:19-22; 61:7-9; 61:12;
61:15; 62:4; 62:7; 62:10; 62:13; 62:15-16; 62:18-19;
62:21-22; 63:2-3; 63:11-12; 63:20; 63:23-24; 64:24;
65:3; 65:7-8; 65:12; 65:14; 65:21; 66:3-4; 67:10-11;
67:25; 68:9-11; 69:22; 70:14; 70:17-18; 71:11

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United States District Court
Northern District of California

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The Clerk of Court is directed to coordinate with the certified transcriber to prepare a

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redacted transcript as described above. The certified transcriber shall file a redacted transcript on

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the docket. This order terminates Dkt. No. 571.

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IT IS SO ORDERED.
Dated: September 11, 2023

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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Google has not established good cause to seal the following portions of the transcript: Dkt. No.
571-2 at 15:15-16; 17:3-4; 40:3 and 40:5.
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