Facebook, Inc. v. Fisher et al

Filing 69

Administrative Motion to File Under Seal filed by Facebook, Inc.. Motion Hearing set for 8/27/2010 09:30 AM. (Attachments: # 1 Declaration, # 2 Proposed Order)(Cutler, Joseph) (Filed on 8/26/2010)

Facebook, Inc. v. Fisher et al

Doc. 69

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Brian Hennessy State Bar No. 226721 [e-mail] PERKINS COIE LLP 101 Jefferson Drive Menlo Park, California 94025 Telephone: [phone] Facsimile: 650.838.4350 James McCullagh, pro hac vice [e-mail] Joseph Cutler, pro hac vice [e-mail] PERKINS COIE LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Telephone: [phone] Facsimile: 206.359.9000 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., a Delaware corporation, Plaintiff, v. JEREMI FISHER; PHILIP POREMBSKI; RYAN SHIMEALL; and JOHN DOES 125, individuals; and CHOKO SYSTEMS LLC; HARM, INC.; PP WEB SERVICES LLC, iMEDIA ONLINE SERVICES LLC, and JOHN DOES 26-50, corporations, Defendants.

Case No. C 09-05842 JF NOTICE OF MOTION AND MOTION FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE UNDER SEAL CERTAIN PORTIONS OF DOCUMENTS FILED IN CONNECTION WITH PLAINTIFF FACEBOOK, INC.'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANTS PHILIP POREMBSKI AND PP WEB SERVICES, LLC AND TO CLOSE THE COURTROOM DURING THE DEFAULT HEARING

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NOTICE OF MOTION AND MOTION TO FILE UNDER SEAL & CLOSE COURTROOM Case No. C 09-05842 JF

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NOTICE OF MOTION AND MOTION FOR ADMINISTRATIVE RELIEF DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT pursuant to Local Rules 7-11 and 79-5(c), Plaintiff Facebook, Inc. ("Facebook") respectfully requests that the Court order the Clerk of the Court to file under seal certain portions of the following confidential documents Facebook is lodging with the Court on August 27, 2010: 1. Plaintiff Facebook, Inc.'s Application for, and Memorandum of Points and Authorities in Support of, Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC; 2. Declaration of Joseph P. Cutler in Support of Plaintiff's Application for Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC; and 3. Declaration of Facebook Employee in Support of Plaintiff's Application for Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC. Facebook also respectfully requests that any hearing on Facebook's Motion for Entry of Default Judgment be closed to the public. Facebook seeks this motion for administrative relief on the grounds that the abovementioned documents contain information relating to Facebook's confidential and proprietary network structure, defensive safety measures, methods for investigating a security breach, and the identity of Facebook personnel responsible for maintaining the security of the network and identifying perpetrators and other information that constitute Facebook's trade secrets. Facebook treats all such information as confidential and would be irreparably harmed if such trade secret and/or confidential information is made available to the public. Also, public release of this information could place the safety of Facebook's employees in jeopardy. Pursuant to Local Rule 79-5(c), Facebook will lodge with the Clerk of the Court: (1) two copies of the unredacted documents, with the sealable portions highlighted in yellow, one of which is to be delivered to Chambers, and (2) a redacted version of the documents that the Clerk may file in the public record.
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Dated: August 26, 2010 By:

PERKINS COIE LLP /s/ Joseph P. Cutler Attorneys for Plaintiff Facebook, Inc.

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Pursuant to Federal Rule of Civil Procedure 26(c) and Local Rules 7-11 and 79-5(c), Plaintiff Facebook, Inc. ("Facebook") respectfully makes this Administrative Request for an Order allowing Facebook to file under seal, certain portions of the following confidential documents, Facebook is lodging with the Court on August 27, 2010: 1. Plaintiff Facebook, Inc.'s Application for, and Memorandum of Points and Authorities in Support of, Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC; 2. Declaration of Joseph P. Cutler in Support of Plaintiff's Application for Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC; and 3. Declaration of Facebook Employee in Support of Plaintiff's Application for Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC. Facebook also respectfully requests that any hearing on Facebook's Motion for Entry of Default Judgment be closed to the public. Good cause exists justifying the filing of portions of the above documents under seal because the requested relief is necessary and narrowly tailored to protect the confidentiality of not only Facebook's trade secrets and/or confidential competitive and business information, but also to protect the security of the Facebook network and Facebook's employees. Accordingly, Facebook would be irreparably harmed if the identified information was made available to the public. Pursuant to Local Rule 79-5, this request is supported by the declaration of Joseph P. Cutler and is accompanied by a proposed order. See Declaration of Joseph P. Cutler in Support of Notice of Motion and Motion for Administrative Relief for Leave to File Under Seal Certain Portions of Documents Filed in Connection With Plaintiff Facebook, Inc.'s Motion for Entry of Default Judgment Against Defendants Philip Porembski and PP Web Services, LLC and to Close the Courtroom During the Default Hearing.
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Furthermore, in order to hold a hearing that includes open and frank discussion of the issues presented in Facebook's Motion for Entry of Default Judgment, the courtroom should be closed to the public. The parties will inevitably discuss and recount facts and text contained within the sealed portions of the redacted documents, which would defeat the purpose of sealing them from public inspection in the first place. This case has attracted the attention of the public media, who will likely attempt to attend the hearing and publish content from the proceedings therein. II. ARGUMENT Upon a showing of good cause, a court may make any order that justice requires to protect a party, including an order "that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." Fed. R. Civ. P. 26(c)(7). In particular, a court may deny access to the public where documents could "become a vehicle for improper purposes." Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 (9th Cir. 1995). Good cause exists to protect Facebook's security, trade secret and/or confidential business and competitive information. Facebook's request for relief is narrowly tailored and the confidential information contained in these documents is highly susceptible to use for an improper purpose. Facebook seeks only to seal the portions of these documents that would reveal Facebook's confidential trade secrets regarding the structure of the Facebook network, Facebook's defensive safety measures, its methods for investigating a security breach, and the identity of Facebook personnel responsible for maintaining the security of the network and identifying perpetrators. The highly confidential information contained in the documents will also likely be discussed during any hearing on Facebook's Application for Default Judgment. If this information is made public, it may be abused by malicious hackers and other copycat spam-artists seeking to breach Facebook's security, or even by Facebook's competitors, thus causing irreparable harm to Facebook and the integrity of its network. Additionally, Facebook is concerned about the safety of its employees and wishes to protect the identity of its personnel in charge of security.
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III.

CONCLUSION For the reasons set forth above, good cause exists to (1) file under seal the identified

portions of the above-referenced documents, which relate to Facebook's confidential, commercially sensitive, proprietary trade secret information, including Facebook's carefully guarded security information, and (2) to close any hearings related thereto to the extent that it will require the disclosure of such confidential and sensitive information. Accordingly, Facebook respectfully requests that the Court grant its administrative request in the form of the Proposed Order filed herewith. Dated: August 26, 2010 By: PERKINS COIE LLP /s/ Joseph P. Cutler Attorneys for Plaintiff Facebook, Inc.

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