In re: High-Tech Employee Antitrust Litigation

Filing 273

ORDER by Judge Lucy H. Koh granting in part and denying in part (186) Administrative Motion to File Under Seal Documents Related to Plaintiffs' Motion for Class Certification; granting in part and denying in part (211) Administrative Motion to File Under Seal Documents Related to Defendants' Opposition to Class Certification; granting in part and denying in part (246) Administrative Motion to File Under Seal Documents Related to Plaintiffs' Consolidated Reply in Support of its Motion for Class Certification and Opposition to Defendants' Motion to Strike; granting (252) Administrative Motion to File Under Seal Portion of Glackin Letter; granting in part and denying in part (254) Defendants' Joint Administrative Motion to File Under Seal in case 5:11-cv-02509-LHK (lhklc3, COURT STAFF) (Filed on 1/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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IN RE: HIGH-TECH EMPLOYEE
ANTITRUST LITIGATION

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THIS DOCUMENT RELATES TO:

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ALL ACTIONS

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Case No.: 11-CV-02509-LHK

ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO
SEAL

Before the Court are numerous administrative motions to seal related to Plaintiffs’ Motion
for Class Certification. See ECF Nos. 186, 211, 246, 252, and 254 (“Sealing Motions”). For the
reasons stated herein, the Court GRANTS in part and DENIES in part the parties’ administrative

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motions to seal.
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I.
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Legal Standard
Historically, courts have recognized a “general right to inspect and copy public records and

documents, including judicial records.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7
(1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in
favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th

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Cir. 2003)).

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In order to overcome this strong presumption, a party seeking to seal a judicial record must

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articulate “compelling reasons supported by specific factual findings that outweigh the general

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history of access and the public policies favoring disclosure.” Id. at 1178-79 (internal quotation

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marks and citations omitted). “In general, ‘compelling reasons’ . . . exist when such ‘court files

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might have become a vehicle for improper purposes,’ such as the use of records to gratify private

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spite, promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179

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(citing Nixon, 435 U.S. at 598). “The mere fact that the production of records may lead to a

United States District Court
For the Northern District of California

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litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more,

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compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136).

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However, the Ninth Circuit has “carved out an exception to the presumption of access to

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judicial records . . . [that is] expressly limited to judicial records filed under seal when attached to a

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non-dispositive motion.” In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litigation, 686

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F.3d 1115, 1119 (9th Cir. 2012) (per curiam) (internal quotation marks and citation omitted)

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(emphasis in original); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010)

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(applying a “good cause” standard to all non-dispositive motions because such motions “are often

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unrelated, or only tangentially related, to the underlying cause of action”) (internal quotation marks

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and citation omitted). Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a trial court

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has broad discretion to permit sealing of court documents for, inter alia, the protection of “a trade

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secret or other confidential research, development, or commercial information.” Fed. R. Civ. P.

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26(c)(1)(G). The Ninth Circuit has adopted the definition of “trade secrets” set forth in the

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Restatement of Torts, holding that “[a] trade secret may consist of any formula, pattern, device or

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compilation of information which is used in one’s business, and which gives him an opportunity to

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obtain an advantage over competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006,

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1009 (9th Cir. 1972) (quoting Restatement of Torts § 757, cmt. b). “Generally it relates to the

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production of goods. . . . It may, however, relate to the sale of goods or to other operations in the

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business. . . .” Id. In addition, the Supreme Court has recognized that sealing may be justified to
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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prevent judicial documents from being used “as sources of business information that might harm a

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litigant’s competitive standing.” Nixon, 435 U.S. at 598.
Even under the “good cause” standard of Rule 26(c), however, a party must make a

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“particularized showing” with respect to any individual document in order to justify sealing the

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relevant document. Kamakana, 447 F.3d at 1180; San Jose Mercury News, Inc. v. U.S. Dist. Court,

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N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). “Broad allegations of harm, unsubstantiated by

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specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Indus., Inc.

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v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (internal quotation marks and citation omitted).

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United States District Court
For the Northern District of California

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Litigants’ Administrative Motions to Seal

II.

Here, the parties seek to seal portions of: (1) Plaintiffs’ Motion for Class Certification, see

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ECF No. 187 (“Motion for Class Certification” or “Mot.”); (2) Defendants’ Opposition to

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Plaintiffs’ Motion for Class Certification, see ECF No. 209 (“Opposition” or “Opp’n”); (3)

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Defendants’ Motion to Strike the Report of Dr. Edward E. Leamer, see ECF No. 210 (“Motion to

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Strike” or “Mot. to Strike”); (4) Plaintiffs’ Consolidated Reply in Support of Motion for Class

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Certification and Opposition to Defendants’ Motion to Strike the Report of Dr. Edward E. Leamer,

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see ECF No. 247 (“Reply”); and (5) a letter regarding a correction to the Reply, see ECF No. 253

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(“Glackin Letter”), as well as various declarations, reports, and exhibits offered in support of these

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documents. Plaintiffs’ Motion for Class Certification is a non-dispositive motion.1 Therefore, the

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parties need only demonstrate “good cause” in order to support their requests to seal. Pintos, 605

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F.3d at 678 (applying “good cause” standard to all non-dispositive motions). The Court will

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address its ruling with respect to each motion to seal below.

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The Court recognizes that there may be circumstances in which a motion for class
certification is case dispositive. As the Eleventh Circuit observed in Prado v. Bush, 221 F.3d 1266,
(11th Cir. 2000), a motion for class certification might be dispositive if “a denial of class status
means that the stakes are too low for the named plaintiffs to continue the matter.” Id. at 1274.
Nevertheless, the Court applies a “good cause” standard here in accordance with the vast majority
of other courts within this circuit. See, e.g., In re NCAA Student-Athlete Name and Likeness
Licensing Litigation, No. 09-01967, 2012 WL 5395039 (N.D. Cal. Nov. 5, 2012); Vietnam
Veterans of America v. C.I.A., No. 09-0037, 2012 WL 1094360, *1-2 (N.D. Cal. March 29, 2012);
Buchanan v. Homeservices Lending LLC, No. 11-0922, 2012 WL 5505775, *2 (S.D. Cal. Nov. 13,
2012); Davis v. Social Service Coordinators, Inc., No. 10-02372, 2012 WL 2376217 (E.D. Cal.
June 22, 2012); Rich v. Hewlett-Packard Co., No. 06-03361, 2009 WL 2168688 (N.D. Cal. Jul. 20,
2009).
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

A.

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Plaintiffs’ Administrative Motion to Seal Documents Related to
its Motion for Class Certification

On October 1, 2012, Plaintiffs filed an administrative motion for a sealing order, ECF No.

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186, pursuant to Northern District Civil Local Rule 79-5(d), and lodged under seal certain

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information contained in: (a) Plaintiffs’ Motion for Class Certification; (b) Exhibits 1–5, 11–55,

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58–68, and 70 to the Declaration of Anne B. Shaver in Support of Plaintiffs’ Motion for Class

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Certification, see ECF No. 188 (“Shaver Decl.”); (c) the Declaration of Edward T. Colligan and

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Exhibits A and B thereto, ECF No. 189 (“Colligan Decl.”); and (d) the Expert Report of Edward R.

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Leamer, Ph.D., see ECF No. 190 (“Leamer Report”).2 Plaintiffs also filed redacted versions of

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these documents. See ECF Nos. 187, 188, 189, 190.

United States District Court
For the Northern District of California

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For the reasons stated below, the Court DENIES Plaintiffs’ request to file portions of the

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Colligan Declaration and the two exhibits attached to this declaration under seal. The Court

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GRANTS in part, and DENIES in part, the request to file under seal portions of the Motion for

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Class Certification and exhibits in support thereof that Defendants designated either “Confidential”

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or “Confidential – Attorneys’ Eyes Only” under the Stipulated Protective Order, as modified by the

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Court, at ECF No. 107.

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1. Plaintiffs’ Request to Maintain the Confidentiality of Certain ThirdParty Materials

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In support of Plaintiffs’ motion to seal portions of the Colligan Declaration and the two

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attached exhibits, Plaintiffs filed redacted versions of the declaration and exhibits, see ECF No.

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189 (redacting part of the first sentence in paragraph 5, all of paragraphs 6 through 8, and all of

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Exhibits A and B), as well as a Declaration from Robert H. Booth, the Chief Litigation Counsel of

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non-party Palm, Inc., explaining why Palm, Inc. seeks to maintain the confidentiality of the

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information contained within these documents, see ECF No. 192 (“Booth Decl.”).

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According to Mr. Booth, “[t]he documents attached to the declaration of Mr. Colligan

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consist of, cite to, and/or identify confidential, nonpublic, and proprietary business information of

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Palm, including information regarding Palm’s intellectual property portfolio and competitive

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This Order does not address the parties’ request to file under seal portions of the Leamer
Report. The Court will address the parties’ request to file portions of this report under seal in a
separate order.
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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position.” Booth Decl. ¶ 5. In addition, the Colligan Declaration “references and describes the

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same documents.” Id. Booth also declares that “Palm has taken reasonable steps to preserve the

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confidentiality of information of the type contained in the exhibits to Mr. Colligan’s declaration

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and the redacted portion of Mr. Colligan’s declaration,” Id. ¶ 6, and that “[p]ublic disclosure of this

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information presents a risk of placing Palm at a competitive disadvantage.” Id. ¶ 5.
The Court finds that Plaintiffs’ have not made a particularized showing with respect to

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these documents. See Kamakana, 447 F.3d at 1180; San Jose Mercury News, Inc., 187 F.3d at

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1103. Plaintiffs do not explain why the information contained in these documents is “confidential”

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given that the materials relate to communications between the former Chief Executive Office of

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United States District Court
For the Northern District of California

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Palm and Steve Jobs of Apple . If Palm and Apple had a non-disclosure agreement, then Palm’s

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declaration in support of sealing should so state. Moreover, only a small portion of these

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communications referenced “Palm’s intellectual property portfolio and competitive position.”

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Booth Decl. ¶ 5. Furthermore, Palm has not explained how “[p]ublic disclosure of th[e]

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information” contained in the relevant documents “presents a risk of placing Palm at a competitive

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disadvantage” given that Hewlett Packard acquired Palm in 2011, and these documents were

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created in 2007, nearly six years ago. Accordingly, the Court DENIES Plaintiffs’ motion to seal

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portions of the Colligan Declaration and Exhibits A and B attached thereto.

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2. Defendants’ Request to Maintain the Confidentiality of Certain
Defendant-Related Company Materials
As part of Plaintiffs’ administrative motion, Plaintiffs also submitted under seal portions of
the Motion for Class Certification and exhibits in support thereof that Defendants designated either
“Confidential” or “Confidential – Attorneys’ Eyes Only” under the modified Stipulated Protective
Order. Civil Local Rule 79-5(d) governs motions to seal documents designated as confidential by
another party. This rule requires “the designating party . . . [to] file with the Court and serve a
declaration establishing that the designated information is sealable” within seven days of the
motion. N.D. Cal. Civ. L. R. 79-5(d).

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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Here, in compliance with Civil Local Rule 79-5(d), Defendants submitted timely

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declarations on behalf of each Defendant in support of Plaintiffs’ motion to seal various portions of

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Plaintiffs’ Motion for Class Certification and the exhibits filed in support thereof:

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For the Northern District of California

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(1) Defendant Adobe Systems, Inc. filed a Declaration of Donna Morris,
ECF No. 196 (“Morris Decl.”);
(2) Defendant Intuit Inc. filed a Declaration of Lisa Borgeson,
ECF No. 197 (“Borgeson Decl.”);
(3) Defendant Lucasfilm Ltd. filed a Declaration of David Anderman,
ECF No. 199 (“Anderman Decl.”);
(4) Defendant Google, Inc. filed a Declaration of Alan Eustace,
ECF No. 200 (“Eustace Decl.”);
(5) Defendant Google, Inc. filed a Declaration of Frank Wagner,
ECF No. 201 (“Wagner Decl.”);
(6) Defendant Pixar filed a Declaration of James M. Kennedy,
ECF No. 202 (“Kennedy Decl.”);
(7) Defendant Intel Corp. filed a Declaration of Tine M. Evangelista,
ECF No. 203 (“Evangelista Decl.”);
(8) Defendant Apple Inc. filed a Declaration of Mark Bentley,
ECF No. 204 (“Bentley Decl.”).
In addition, Defendants filed a Joint Response to Plaintiffs’ Administrative Motion to Seal
in which Defendants explained their justification for seeking to maintain the confidentiality of
certain exhibits and portions of the Motion for Class Certification. See ECF No. 195 (“Joint
Response”). Specifically, Defendants contend that the materials that they seek to preserve under
seal “contain confidential and commercially sensitive information about employee compensation,
including Defendants’ compensation data,” in addition to “information that reflects certain
Defendants’ internal decision-making regarding their business strategies related to compensation
and internal assessments of their and other employers’ competitive position in the labor market.”
Joint Response at 3. “Defendants also seek to keep under seal those materials that reflect
compensation practices, strategies, and policies; recruiting and hiring data, practices, strategies, and
policies; and personal identifying information of employees or candidates.” Id.
Defendants maintain that they “keep the sealed information confidential and the public
disclosure of this information would cause each Defendant harm by giving third-parties (including
individuals responsible for competitive decision-making) insights into confidential and sensitive
aspects of each of the Defendants’ strategies, competitive positions, and business operations,
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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allowing these third-parties to potentially gain an unfair advantage in dealings with and against

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each of the Defendants.” Joint Response at 3. The declarations filed by representatives from each

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Defendant also explain why each individual Defendant seeks to maintain the confidentiality of

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specific information contained in particular exhibits and portions of the motion under seal, as well

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as the harm that would flow to the company from public disclosure.

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In light of Defendants’ joint and separate declarations, the Court finds that Defendants have
made a particularized showing with respect to sealing the following portions of the Motion for

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Class Certification: page 17, lines 16-17; page 18, lines 1-3 and 8-10; page 18, line 21, to page 19,

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line 2; page 19, lines 13-14; page 20, lines 20-23; page 20, line 24, to page 21, line 5; page 21,

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United States District Court
For the Northern District of California

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lines 13-28; and page 22, lines 1-3. In addition, the Court finds that Defendants have made a

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particularized showing with respect to sealing the following exhibits to the Shaver Declaration in

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their entirety: Exhibit 15, Exhibits 43-49, Exhibit 54, and Exhibit 59. The Court also finds that

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Defendants have made a particularized showing with respect to the redacted portions of the

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following exhibits to the Shaver Declaration: Exhibit 4, Exhibit 21, Exhibit 24, Exhibit 25, Exhibit

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29, Exhibit 32, Exhibit 34, Exhibit 37, Exhibit 39, Exhibit 40, Exhibit 42, Exhibits 62-63, and

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Exhibits 67-68.

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The Court finds that the portions of the Motion for Class Certification and the exhibits

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identified above include confidential information regarding Defendants’ compensation and

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recruiting strategies, policies, and procedures, including quantitative data concerning those topics,

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and that the disclosure of this information could cause Defendants’ competitive harm.

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Additionally, some of the materials include personal information of non-parties. The Court also

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finds that Defendants’ requests are sufficiently specific as to the sealed materials and that

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Defendants have plausibly articulated the need for maintaining their confidentiality given the

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potential harm that may come from public disclosure. Consequently, the Court finds good cause to

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GRANT the motion to maintain these documents under seal.

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However, the Court finds that Defendants have not made a particularized showing of good

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cause for sealing with respect to the following portions of Plaintiffs’ Motion for Class

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Certification: page 2, line 4; page 3, lines 10-12 and 25-26; page 8, lines 20-25; page 13, lines 267
Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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27; page 14, line 11, to page 15, line 3; page 17, lines 10-16; page 18, lines 5-8, 14-15; page 19,

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lines 5-8; and page 24, lines 20-21. In addition, the Court finds that Defendants have not made a

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particularized showing of good cause for sealing the following exhibits to the Shaver Declaration:

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Exhibit 14, Exhibit 22, Exhibits 60-61, and Exhibit 70. As to these exhibits and portions of the

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Motion, the Court finds that Defendants have not made a particularized showing that these

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materials contain confidential information. Furthermore, to the extent Defendants contend that

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disclosure of these materials would cause Defendants’ competitive harm, the Court finds that

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Defendants have not supported their assertions with sufficiently particularized facts. Therefore, the

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Court DENIES these requests without prejudice.

United States District Court
For the Northern District of California

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3. The Court’s Ruling on Plaintiffs’ Administrative Motion to Seal
Documents Related to Plaintiffs’ Motion for Class Certification

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In summary, for the Motion for Class Certification, the Court rules as follows:
Pages/Lines
to be sealed
Page 2, line 4

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Page 3, lines
10-12 and
25-26

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Page 8, lines
20-25

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Page 13, lines
26-27

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Page 14, line

Ruling
DENIED. Pixar states that the information contained in this excerpt is
“confidential and competitively sensitive” and relates to “business strategy of
[The Walt Disney Company] and its subsidiaries.” See Kennedy ¶ 5(a). This
excerpt quotes portions of Exhibit 61, which as set forth above, the Court has
declined to seal. Having reviewed this excerpt, the Court finds that Pixar has
not made a particularized showing that the information contained therein is
“confidential.” Id.
DENIED. Pixar states that the information contained in these excerpts is
“confidential and competitively sensitive” and relates to “business strategy of
[The Walt Disney Company] and its subsidiaries.” See Kennedy ¶ 5(a). These
excerpts quote portions of Exhibit 61, which as set forth above the Court has
declined to seal. Having reviewed these excerpts, the Court finds that Pixar has
not made a particularized showing that the information contained therein is
“confidential.” Id.
DENIED. Pixar states that the information contained in this excerpt is
“confidential and competitively sensitive” and relates to “business strategy of
[The Walt Disney Company] and its subsidiaries.” See Kennedy ¶ 5(a). This
excerpt quote portions of Exhibit 61, which as set forth above the Court has
declined to seal. Having reviewed this excerpt, the Court finds that Pixar has
not made a particularized showing that the information contained therein is
“confidential.” Id.
DENIED. Pixar states that this excerpt “contains confidential and
competitively sensitive information regarding Pixar’s practices and strategy
with respect to compensation, benefits, and [Pixar’s] long-term incentive
program.” See Kennedy ¶ 5(c). This excerpt quotes portions of Exhibit 70,
which as set forth above the Court has declined to seal. Having reviewed this
excerpt, the Court finds that Pixar has not made a particularized showing that
the information contained therein is “confidential.” Id.
DENIED. This excerpt references and quotes portions of the Colligan
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ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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11, to Page
15, line 3
Page 17, lines
10-16

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Page 18, lines
1-3, 5-10, and
14-15

United States District Court
For the Northern District of California

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Page 18, line
21, to page 19,
line 2
Page 19, lines GRANTED as to lines 13-14. See Wagner Decl. ¶ 10.
5-8 and 13-14
DENIED as to lines 5-8. Google contends that this excerpt “quotes and
references Exhibits 46, 48, and 49, which Google [also seeks]… to seal.” See
Wagner Decl. ¶ 10. Google further states that “this excerpt contains
confidential and highly sensitive details about Google’s compensation of its
employees and its compensation philosophy.” See Wagner Decl. ¶ 10. While
the Court has sealed Exhibits 46, 48, and 49, the particular fact disclosed in this
excerpt does not appear to be confidential. Accordingly, the Court finds that
Google has not made a particularized showing why this excerpt should be
sealed.
Page 20, lines
20-23
Page 20, line
24, to page 21,
line 5
Page 21, lines
13-28
Page 22, lines
1-3, lines 1012

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DENIED as to lines 10-16. This excerpt references and quotes portions of
Exhibit 14. Adobe states that Exhibit 14 “contains confidential information
regarding recruiting and hiring data, practices, strategies, and policies….” See
Morris Decl. ¶¶ 3-7. As set forth above, the Court has found that Adobe has not
made a particularized showing as to why Exhibit 14 should be sealed in its
entirety. Accordingly, the Court denies Adobe’s request to seal the portions of
that exhibit quoted on Page 17.
GRANTED as to lines 1-3, 8-10. See Wagner Decl. ¶ 10; Evangelista Decl. ¶¶
7-9; Kennedy Decl. ¶ 5(a).
DENIED as to lines 5-8, 14-15. Pixar states that the information contained in
these excerpts is “confidential and competitively sensitive” and relates to
“business strategy of [The Walt Disney Company] and its subsidiaries.” See
Kennedy ¶ 5(a). These excerpts quote portions of Exhibit 61, which as set forth
above the Court has declined to seal. Having reviewed these excerpts, the Court
finds that Pixar has not made a particularized showing that the information
contained therein is “confidential.” Id.
GRANTED. See Wagner Decl. ¶ 10; Morris Decl. ¶¶3-7.

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Declaration and the exhibits to the Colligan Declaration. Palm’s request to seal
this excerpt is denied for the same reasons as set forth above in connection with
the Colligan Declaration. See Booth Decl. ¶¶ 3-6.
GRANTED as to lines 16-17.

Page 24, lines
20-21

GRANTED. See Wagner Decl. ¶ 10; Morris Dec. ¶¶ 3-7.
GRANTED. See Wagner Decl. ¶ 10; Morris Dec. ¶¶ 3-7.
GRANTED. See Wagner Decl. ¶ 10.
GRANTED as to lines 1-3. See Wagner Decl. ¶ 10; Morris Dec. ¶¶ 3-7.
DENIED as to lines 10-12. Dr. Leamer’s findings may be derived in part from
confidential information. However, the particular finding reflected in this this
portion of the Motion does not reveal any confidential information about any
particular Defendant. Defendants have not explained how disclosure of this
particular finding would reveal confidential and sensitive information regarding
Defendants’ compensation strategy.
DENIED. Pixar states that the information contained in this excerpt is
“confidential and competitively sensitive” and relates to “business strategy of
[The Walt Disney Company] and its subsidiaries.” See Kennedy ¶ 5(a). This
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

excerpt quotes portions of Exhibit 61, which as set forth above the Court has
declined to seal. Having reviewed this excerpt, the Court finds that Pixar has
not made a particularized showing that the information contained therein is
“confidential.” Id.

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Regarding the proposed redactions for the Exhibits to the Declaration of Ann B. Shaver, the

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Court rules as follows:

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Exhibits
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14
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United States District Court
For the Northern District of California

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47-48
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Ruling
GRANTED as to the redacted portions identified by Defendants. See Morris
Decl. ¶¶ 3-7.
DENIED. See Morris Decl. ¶¶ 3-7. Adobe states that this document, which is a
presentation regarding Adobe’s recruiting strategies, “contains confidential
information regarding recruiting and hiring data, practices, strategies, and
policies….” While portions of this document may be sealable, the Court finds
that Adobe has not made a particularized showing as to why the entire
document should be sealed.
GRANTED. See Morris Decl. ¶¶ 3-7.
GRANTED as to the redacted portions identified by Defendants. See Bentley
Decl. ¶ 6.
DENIED. Apple states that this document contains “confidential and
competitively sensitive information regarding Apple’s business and recruiting
strategies.” See Bentley Decl. ¶ 5. Having reviewed this document, the Court
is not persuaded that the information contained therein is confidential.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 7-8.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 9.
GRANTED as to the redacted portions identified by Defendants. See Wagner
Decl. ¶ 7-8.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Wagner Decl. ¶¶ 5-6.
GRANTED. See Evangelista Dec. ¶¶ 3-6.
GRANTED. See Eustace ¶¶ 3-5; Borgeson ¶ 6.
DENIED. Lucasfilm states that this document contains information regarding
Lucasfilm’s “confidential business practices, particularly [Lucasfilm’s]
recruiting practices.” See Anderman ¶¶ 5-6. Lucasfilm states that disclosure of
this information might provide Lucasfilm’s competitors with an “unfair
10

Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

advantage” by providing Lucasfilm’s competitors with “information regarding
the specific manner in which Lucasfilm recruits potential employees and makes
employment offers.” Id. Having reviewed this document, the Court finds that
Lucasfilm has not made a particularized showing that the information contained
therein is “confidential” or that disclosure of this information would provide
Lucasfilm’s competitors with an unfair advantage. Id.
DENIED. Pixar states that the information contained in this document is
“confidential and competitively sensitive” and relates to “business strategy of
[The Walt Disney Company] and its subsidiaries.” See Kennedy ¶ 5(a).
Having reviewed this document, the Court finds that Pixar has not made a
particularized showing that the information contained therein is “confidential.”
Id.
GRANTED as to the redacted portions identified by Defendants. See Kennedy
¶ 5(b).
GRANTED as to the redacted portions identified by Defendants. See Kennedy
¶ 5(b).
DENIED. Pixar states that this document “contains confidential and
competitively sensitive information regarding Pixar’s practices and strategy
with respect to compensation, benefits, and [Pixar’s] long-term incentive
program.” See Kennedy ¶ 5(c). Having reviewed this document, the Court
finds that Pixar has not made a particularized showing that the information
contained therein is “confidential.” Id.

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4

61

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6
7
8
9

62-63
67-68
70

United States District Court
For the Northern District of California

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B.

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Defendants’ Motion to Seal Documents Related to its Opposition to
Plaintiffs’ Motion for Class Certification

In connection with Defendants’ Opposition to Plaintiffs’ Motion for Class Certification,

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Defendants seek to file under seal: (1) portions of Defendants’ Opposition; (2) all or portions of

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Exhibits 1-6, 8-23, 25-27 to the Declaration of Christina Brown filed in support of Defendants’

17

Opposition, see ECF No. 215 (“Brown Decl. Supp. Opp’n”); (3) Defendants’ Motion to Strike the

18

Report of Dr. Edward E. Leamer, ECF No. 210; (4) Exhibits A-H to the Declaration of Susan

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Welch in Support of Defendants’ Motion to Strike, see ECF No. 210; and (5) portions of the Expert

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Report of Kevin Murphy, see ECF No. 230.3 Defendants note that the information contained in

21

these documents has been designated “Confidential” or “Attorneys-Eyes Only” under the modified

22

Stipulated Protective Order. Defendants also filed declarations on behalf of each Defendant in

23

support of their respective sealing requests. See ECF Nos. 214, 217-222.

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In addition, Defendants seek to seal certain portions of the Opposition; Exhibits 2-6 and 9-

25

13 to the Brown Declaration in Support of Defendants’ Opposition; and Exhibits B, C, and D to the

26

Welch Declaration, each of which reflect portions of deposition transcripts of Plaintiffs and their

27

This Order does not address the parties’ request to file under seal portions of the Murphy
Report. The Court will address the parties’ request to file portions of this report under seal in a
separate order.
11

28

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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expert that Plaintiffs designated “Confidential” or “Attorneys’ Eyes Only” under the modified

2

Stipulated Protective Order.

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United States District Court
For the Northern District of California

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1. Plaintiffs’ Request to Maintain the Confidentiality of Certain
Plaintiff-Specific Job Information
In compliance with Civil Local Rule 79-5, Plaintiffs filed a timely declaration in support of
maintaining portions of the Opposition, exhibits to the Brown Declaration in Support of
Defendants’ Opposition, and exhibits to Welch Declaration under seal. See Declaration of Joseph
P. Forderer In Support of Defendants’ Joint Administrative Motion to Seal as to Information
Designated by Plaintiffs, ECF. No. 240 (“Forderer Decl.”).
After having reviewed all of the material from the Opposition for Class Certification that
Plaintiffs seek to seal, the Court finds that good cause exists to seal the following pages and lines
of the Opposition: page 8, line 28; page 9, lines 1-3 and 11-12; page 10, lines 6-7; and page 14,
lines 3-5. In addition, the Court finds that Plaintiffs have made a particularized showing with
respect to sealing portions of Exhibits 2-6 and 9-13 to the Brown Declaration. Finally, the Court
finds that Defendants have made a particularized showing with respect to redacted portions of
Exhibits B, C, and D, which were filed in connection with the Welch Declaration.
The Court finds that good cause exists to file the requested material under seal because
some of the excerpts contain “Plaintiffs’ confidential compensation information such as salaries,
stock options, and other benefits.” See Forderer Decl. ¶ 6. In addition, some of the materials
“contain Plaintiffs’ confidential information regarding job applications to non-Defendants,
including the identities of associated non-parties such as individuals who acted as Plaintiffs’
references.” Id. ¶ 7. Accordingly, the Court GRANTS the motion to seal these documents.
However, the Court does not find that Plaintiffs have set forth good cause to maintain under
seal page 9, lines 9-10, of the Opposition. See Forderer Decl. ¶ 7. Although Plaintiffs allege that
the information contained within this sentence includes Mr. Marshall’s “confidential information
regarding job applications to non-Defendants, including the identities of associated non-parties
such as individuals who acted as Plaintiff[’]s references,” the information Plaintiffs propose to seal
does not actually appear to involve any information of this nature. Therefore, Plaintiffs have not
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

established why this information is confidential. Accordingly, the Court DENIES the request to

2

maintain this sentence under seal.

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In support of Defendants’ request to seal, Defendants filed a joint administrative motion,
see ECF No. 211 (“Joint Mot. to Seal Opp’n”), as well as declarations on behalf of each Defendant:

14

(1) Defendant Intuit Inc. filed a Declaration of Catherine T. Zeng, ECF No. 214
(“Zeng Opp’n Decl.”);
(2) Defendant Adobe Systems, Inc. filed a Declaration of Lin Kahn, ECF No. 217
(“Kahn Opp’n Decl.”);
(3) Defendant Pixar filed a Declaration of James M. Kennedy, ECF No. 218
(“Kennedy Opp’n Decl.”);
(4) Defendant Lucasfilm Ltd. filed a Declaration of Justina Sessions, ECF No. 219
(“Sessions Opp’n Decl.”);
(5) Defendant Intel Corp. filed a Declaration of Frank Busch, ECF No. 220 (“Busch
Opp’n Decl.”);
(6) Defendant Google, Inc. filed a Declaration of Frank Wagner, ECF No. 221
(“Wagner Opp’n Decl.”);
(7) Defendant Apple Inc. filed a Declaration of Christina Brown, ECF No. 222
(“Brown Opp’n Decl.”).

15

As with Defendants’ requests in connection with the Motion for Class Certification,

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Defendants contend that the redacted portions of the Opposition; Exhibits 1, 8, 14-23, and 25-27 to

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the Brown Declaration; portions of the Motion to Strike; and the declarations filed in support of

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these documents contain “confidential and commercially sensitive information about employee

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compensation, including Defendants’ compensation data,” as well as “information that reflects

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certain Defendants’ compensation data as well as information that reflects certain Defendants’

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internal decision-making regarding their business strategies related to compensation and internal

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assessments of their and other employers’ competitive position in the labor market.” Joint Mot. to

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Seal Opp’n at 3. “Defendants also seek to keep under seal those materials that reflect

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compensation practices, strategies and policies; recruiting and hiring data, practices, strategies and

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policies; and personal identifying information of employees or candidates.” Id.

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United States District Court
For the Northern District of California

2. Defendants’ Request to Maintain the Confidentiality of Certain
Defendant-Related Company Materials

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Defendants raise concerns that “public disclosure of this information,” which the

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Defendants keep confidential, “would cause each Defendant harm by giving third-parties

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(including individuals responsible for competitive decision-marking) insights into confidential and
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

sensitive aspects of each of the Defendants’ strategies, competitive positions, and business

2

operations, allowing these third-parties to potentially gain an unfair advantage in dealings with and

3

against each of the Defendants.” Id. After reviewing Defendants’ joint and separate declarations,

4

the relevant case law, and each of the documents that Defendants seek to maintain under seal, the

5

Court finds that Defendants have made a particularized showing with respect to sealing the

6

following portions of the Opposition to the Class Certification Motion: page 6, lines 22-23; page 6,

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footnote 2; page 7, line 1; page 7, lines 5-7, 8-9, 9-10, and 12-15; page 7, lines 18-20; page 7, lines

8

20-21; page 7, lines 22-23; page 7, lines 23-25; page 7, lines 25-26; page 7, line 26 though page 8,

9

line 1; page 8, lines 6-8; page 8, lines 9-14; page 8, lines 20-22; page 18, lines 3-10; page 18, lines

United States District Court
For the Northern District of California

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23-24; and page 19, lines 1-5. The Court is persuaded that Defendants’ requests are sufficiently

11

specific and that Defendants have plausibly articulated the need for maintaining the confidentiality

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of this information given the potential harm that may come from public disclosure.

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In addition, the Court finds that Defendants have made a particularized showing with

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respect to sealing the following exhibits and portions of exhibits to the Brown Declaration in

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Support of Defendants’ Opposition:
 Exhibit 1: page 60, lines 23-25; page 79, lines 19-21; page 80, lines 7-23; page 92,
line 20, through page 93, line 24; page 163, lines 3-6, 10, and 13-24; page 456, lines
3-17; page 460, lines 19-22; page 467, lines 5-10, and page 467, line 21 through
page 469; page 470, lines 7-21.
 Exhibit 17: paragraphs 3-16 and Exhibits A–F;
 Exhibit 18: paragraphs 3-5 and 7-10, as well as Exhibits F, G, and H; and
 Exhibit 23: page 2, lines 4-8, 11-17, 20-24, and 26-27, and page 4, lines 6-7, as well
as Exhibit 1.

21

The Court finds that Defendants’ requests to seal these exhibits and portions thereof are sufficiently

22

specific and that Defendants have plausibly articulated the need for maintaining their

23

confidentiality given the potential harm that may come from public disclosure.

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17
18
19

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Finally, the Court finds that Defendants have made a particularized showing with respect to

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sealing the following portions of Defendants’ Motion to Strike: page 7, lines 4-7; page 11, lines 1-

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2; page 15, lines 1-2; page 17, footnote 13, lines 2-3; page 19, footnote 16; pages 20-21, Figure 16;

27

and page 21, lines 9-10. In addition, the Court finds that Defendants have set forth good cause to

28

file under seal the following exhibits to the Welch Declaration in support of Defendants’ Motion to
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

Strike: Exhibit A (as to page 76, lines 2-25; page 90, lines 19-23; page 106, lines 18-23; page 163,

2

lines 3-6, 10, 13-24; page 261, lines 14-23; page 262, line 3, through page 263, line 25; page 400,

3

lines 11-13, 16; page 435, lines 4-5; and page 468, line 5, through page 469, line 25); and Exhibit B

4

(page 65, lines 5-21). Consequently, the Court finds good cause to GRANT the motion to maintain

5

these documents under seal.

6

However, the Court is not convinced that Defendants have set forth good cause to maintain

7

under seal page 18, lines 20, to page 20, line 12, of the Opposition, as requested by Defendant

8

Google, or lines 21-23 of page 19, as requested by Defendant Pixar. In addition, the Court finds

9

that Defendants have not made a particularized showing with respect to sealing the following

United States District Court
For the Northern District of California

10

exhibits to the Brown Declaration: Exhibits 14-16; Exhibits 19-22; and Exhibit 25. Finally, the

11

Court finds that Defendants have failed to sufficiently justify the need to maintain under seal lines

12

2 through 4 of page 13 of Defendants’ Motion to Strike. Accordingly, the Court DENIES without

13

prejudice Defendants’ request to maintain these materials under seal.

14

3. The Court’s Ruling on Defendants’ Administrative Motion to Seal
Documents Related to its Opposition to the Motion for Class
Certification

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In summary, for the Opposition to the Class Certification Motion, the Court rules as
follows:
Pages/Lines
to be Sealed
Page 6, lines
22-23
Page 6,
footnote 2

Ruling

Page 7, line 1
Page 7, lines
5-7, 8-9, 9-10,
12-15

GRANTED. See Brown Opp’n Decl. ¶ 3.
GRANTED. See Zeng Opp’n Decl. ¶ 7; Kahn Opp’n Decl. ¶ 7(c); Brown Opp’n
Decl. ¶ 3.

Page 7, lines
18-20

GRANTED. See Kennedy Opp’n Decl. ¶ 5(a).

Page 7, lines
20-21
Page 7, lines

GRANTED. See Busch Opp’n Decl. ¶ 8.

GRANTED. Zeng Opp’n Decl. ¶ 7; Brown Decl. ¶ 3; Kahn Opp’n Decl. ¶ 7(b).
GRANTED. See Sessions Opp’n Decl. ¶ 3(i); Brown Opp’n Decl. ¶ 3; Wagner
Opp’n Decl. ¶ 2(a); Busch Opp’n Decl. ¶ 8; Zeng Opp’n Decl. ¶ 7; Kahn Opp’n
Decl. ¶ 7(a).

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GRANTED. See Brown Opp’n Decl. ¶ 3.
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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United States District Court
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22-23
Page 7, lines
23-25
Page 7, lines
25-26
Page 7, line
26, through
page 8, line 1
Page 8, lines
6-8
Page 8, lines
9-14

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GRANTED. See Zeng Opp’n Decl. ¶ 7; see also Kahn Opp’n Decl. ¶ 7(e); Busch
Opp’n Decl. ¶ 8.

GRANTED. See Forderer Decl. ¶ 7.

Page 18, lines
23-24
Page 19, Lines
1-5
Page 19, Lines
21-23

GRANTED. See Zeng Opp’n Decl. ¶ 7.

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GRANTED. See Wagner Opp’n Decl. ¶2(c).

Page 10, lines
6-7
Page 14, lines
3-5
Page 18, lines
3-10

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GRANTED. See Zeng Opp’n Decl. ¶ 7.

GRANTED. See Sessions Opp’n Decl. ¶ 3.

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16

GRANTED. See Kahn Opp’n Decl. ¶7(d).

Page 8, lines
20-22
Page 8, line
28
Page 9, lines
1-3, 9-10, 1112

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GRANTED. See Wagner Opp’n Decl. ¶2(b).

GRANTED. See Forderer Decl. ¶ 7.
GRANTED as to lines 1-3 and 11-12. See Forderer Decl. ¶ 7.
DENIED as to lines 9-10. See Forderer Decl. ¶ 7. Although Plaintiffs allege that
the information contained within this sentence includes Mr. Marshall’s
“confidential information regarding job applications to non-Defendants,
including the identities of associated non-parties such as individuals who acted as
Plaintiff[’]s references,” the information Plaintiffs propose to maintain under seal
does not actually appear to involve information of this nature. Therefore,
Plaintiffs have not established why this information is confidential, and the Court
declines to find good cause to grant Plaintiffs’ request to maintain this sentence
under seal.

GRANTED. See Forderer Decl. ¶ 7.
GRANTED. See Brown Opp’n Decl. ¶ 3; Sessions Opp’n Decl. ¶ 3; Zeng Opp’n
Decl. ¶ 8; Kahn Opp’n Decl. ¶ 7(f).

GRANTED. See Busch Opp’n Decl. ¶ 8.
DENIED. Defendant Pixar contends that “[t]hese portions of Defendants’
Opposition refer to and quote from a Pixar document that has been designated
confidential. The document contains confidential and competitively sensitive
information regarding business strategy and internal compensation and recruiting
practices of the Walt Disney Company, Pixar, and ImageMovers Digital.” See
Kennedy Opp’n Decl. ¶ 5(c). These excerpts quote portions of Exhibit 61 of the
Shaver Declaration, which as set forth above the Court has declined to seal.
Having reviewed these excerpts, the Court finds that Pixar has not sufficiently
alleged good cause to keep this sentence under seal.

Page 18, line
DENIED. See Wagner Opp’n Decl. ¶ 2(d). Defendant Google seeks to seal
20, to page 20, portions of Defendants’ Opposition because it “quotes and references documents
line 12
that contain confidential and highly sensitive details about Google’s
compensation of its employees and its compensation philosophy.” Wagner Decl.
¶ 2(d). The Court does not find Defendant Google’s request to be particularized.
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

Consequently, the Court declines to find that Defendant Google has sufficiently
set forth good cause to maintain all of the proposed redactions within these two
pages under seal.

1
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Regarding the proposed redactions to the Exhibits to the Brown Declaration in Support
3

of Defendants’ Opposition, the Court rules as follows:

4
5

Exhibits
1

6
7
8

2
3

10
United States District Court
For the Northern District of California

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4

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12

Ruling
GRANTED as to page 60, lines 23-25; page 79, lines 19-21; page 80, lines 7-23;
page 92, line 20 through page 93, line 24; page 163, lines 3-6, 10, and 13-24; page
456, lines 3-17; page 460, lines 19-22; page 467, lines 5-10, and line 21 through
page 469, line 25; page 470, line 7-21. See Kahn Opp’n Decl. ¶ 7(u); Busch
Opp’n Decl. ¶ 8; Brown Decl. Opp’n ¶ 4.
GRANTED as to page 97, lines 22-24; page 98, lines 24-25; page 132, lines 2425; page 135, lines 20-25; page 136, lines 1-12; page 137, lines 21, 23-24; page
142, lines 203. See Forderer Decl. ¶ 7.
GRANTED as to page 125, lines 16-17; page 126, lines 11-12; page 197, lines 12, 7. See Forderer Decl. ¶ 7.
GRANTED as to page 80, lines 1-12; page 80, lines 13-25; page 81, lines 1-25;
page 82, lines 1-23; page 87, lines 8-9, 13, 21-22; page 88, lines 2-7, 13-15; page
90, lines 7-25; page 91, lines 1-25; page 125: lines 22-23; page 138, lines 1-2, 1112; page 175, lines 22-25. See Forderer Decl. ¶ 7.

5

GRANTED as to page 138, lines 3-6; page 155, lines 9-25; 156, lines 1-25; 157,
lines 1-25; 182, lines 3, 16-25; 183, lines 1-25; 184, lines 1-25; 202, lines 1-25;
203, lines1-25; 204, lines 1-4; page 204, lines 12-25; page 337, lines 4-8. See
Forderer Decl. ¶ 7.

16

6

17

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GRANTED as to pages 105, lines 1-25; 106, lines 24-25; 107, lines 1-25; 108,
lines 1-25; 113, lines 1-25; page 220, line 25. See Forderer Decl. ¶ 7
GRANTED as to page 5, lines 10, 14, 19-20, 25; page 6, lines 1, 5-6, 10, 14-15,
20, 27-28; page 7, lines 1, 6, 10, 14-15, 20, 27-28; page 8, lines 8-9, 12-13; page
9, lines 14-16. See Forderer Decl. ¶ 7.
GRANTED as to page 5, lines 10, 15-16, 20, 25; page 6, lines 19-22; page 7, lines
1, 18-20; page 8, lines 9-18; page 9, lines 3-6. See Forderer Decl. ¶ 7.
GRANTED as to page 5, lines 13-15, 19, 25-26; page 6, lines 4-6; page 6, lines
25-28; page 7, lines 1-5. See Forderer Decl. ¶ 7.
GRANTED as to page 5, lines 16, 21, 26; page 6, lines 8-9, 14, 17, 21; page 7,
lines 5,9, 14-15, 20-23, 26-27; page 9, lines 2-3. See Forderer Decl. ¶ 7.
GRANTED as to page 5, lines 10, 15, 20, 25; page 6, lines 2-3, 19. See Forderer
Decl. ¶ 7.
DENIED. Defendant Adobe seeks to maintain under seal Exhibit 14, which is a
copy of the Declaration of Donna Morris of Adobe Systems, Inc. in Support of
Defendants’ Opposition to Plaintiffs’ Motion for Class Certification. See Kahn
Opp’n Decl. ¶ 7(v). Adobe contends that this declaration “establishes that
Adobe’s compensation data, practices, strategies and policies, as well as its
recruiting data, practices, strategies and policies are confidential and
commercially sensitive.” Id. ¶ 3. While the Court finds that Defendant Adobe
has established good cause to maintain much of the substance of this declaration
under seal, the Court is not convinced that Adobe’s request—which includes at
least 100 pages worth of power point slides—is sufficiently particularized.
Therefore, the Court DENIES Adobe’s request to seal Ms. Morris’s declaration in
its entirety, with leave to amend.

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

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DENIED. Defendant Adobe also seeks to maintain under seal Exhibit 15, which
is a copy of the Declaration of Jeff Vijungco of Adobe Systems, Inc. in Support of
Defendants’ Opposition to Plaintiffs’ Motion for Class Certification. See Kahn
Opp’n Decl. ¶ 7(w). Defendant Adobe contends that paragraph 3 of this
declaration “established that Adobe’s recruiting and hiring date, policies and
strategies are confidential and that public dissemination of that information could
cause Adobe competitive harm.” Id. ¶ 6. While the Court finds that Adobe has
established good cause to maintain some of this exhibit under seal, the Court is
not convinced that Defendant Adobe’s request is particularized.

16

DENIED.

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6
7

Defendant Apple seeks to maintain under seal all of Exhibit 16, which is a copy of
the Declaration of Steven Burmeister in Support of Defendants’ Opposition to
Plaintiffs’ Motion for Class Certification, as well as attached exhibits B & C.
Brown Opp’n Decl. ¶ 5. Steven Burmeister contends in his declaration, that “[t]he
information contained in this declaration and the attached Exhibits B and C is
extremely sensitive, and Apple considers it to be, and treats it as, confidential,
proprietary, and competitively sensitive. Public disclosure of this information
would give Apple’s competitors insight into its confidential and proprietary
employee compensation practices and strategies, deprive Apple of its investment
in developing these strategies, and put Apple at a significant disadvantage with
respect to recruiting, hiring, and compensating its employees.” Burmeister Decl.
¶ 11; see also Brown Opp’n Decl. ¶ 5 (stating that the information in this exhibit,
as well as the attached exhibits B and C, “contain and reflect Apple’s highly
confidential and competitively sensitive compensation data and strategies.”).
While the Court finds that Defendant Apple has established good cause to
maintain some of this exhibit under seal, the Court is not persuaded that
Defendant Apple’s request is particularized.

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United States District Court
For the Northern District of California

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12
13
14
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16

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GRANTED as to paragraphs 3-16 and Exhibits A–F. See Busch Opp’n Decl. ¶ 8.

17

18

GRANTED as to paragraphs 3-5 and 7-10, as well as Exhibits F, G, and H. See
Busch Opp’n Decl. ¶ 8.

19

DENIED. Defendant Intuit seeks to maintain under seal Exhibit 19, which is a
copy of the Declaration of Mason Stubblefield in Support of Defendants’
Opposition to Plaintiffs’ Motion for Class Certification, as well as the attached
exhibits. See Zeng Opp’n Decl. ¶ 5. Zeng’s declaration asserts that paragraph 3
of the Declaration of Mason Stubblefield and accompanying exhibits . . .
establishes that Intuit’s salary and compensation data and methodologies is
confidential and that public dissemination of that information could cause Intuit
competitive harm.” See Id. ¶¶ 5, 7; see also Stubblefield Decl. ¶ 3. Having
reviewed this document, the Court finds that Intuit has not made a particularized
showing that all of the information contained therein is “confidential.” Id.

20

DENIED. Defendant Intuit also seeks to maintain under seal Exhibit 20, which is
a copy of the Declaration of Chris Galy in Support of Defendants’ Opposition to
Plaintiffs’ Motion for Class Certification, as well as the attached exhibits. See
Zeng Opp’n Decl. ¶ 6. Zeng’s declaration asserts that paragraph 2 of the
Declaration of Chris Galy “establishes that information pertaining to Intuit’s
recruiting methods, strategies, practices, and data is confidential and that public
dissemination of that information could cause Intuit competitive harm.” Id.; see
Galy Decl. ¶ 2. Having reviewed this exhibit, the Court finds that Intuit has not
made a particularized showing that all of the information contained therein is
18

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

“confidential.” Id.
DENIED. Defendant Google seeks to maintain under seal Exhibit 21, which is a
copy of the Declaration of Frank Wagner in Support of Defendants’ Opposition to
Plaintiffs’ Motion for Class Certification, as well as the attached exhibits. See
Wagner Opp’n Decl. ¶ 4. According to Wagner, the information in this
declaration is “confidential and highly sensitive” and “Google derives economic
benefit by maintaining its confidentiality.” Id. ¶ 6. Attached to this declaration
are three exhibits that also “contain highly confidential information about
Google’s compensation and recruiting practices,” Wagner Sealing Decl. ¶ 7,
which “Google does not disclose . . . to its competitors, customers or the general
public,” id. ¶ 8. While the Court finds that Defendant Google has established
good cause to maintain some of this exhibit under seal, the Court is not persuaded
that Defendant Google’s request is sufficiently particularized.

21

2
3
4
5
6
7
8

22

DENIED. Defendant Lucasfilm seeks to maintain under seal Exhibit 22, which is
a copy of the Declaration of Michelle Maupin in Support of Defendants’
Opposition to Plaintiffs’ Motion for Class Certification, as well as attached
exhibits. Lucasfilm seeks to maintain the entire declaration and accompanying
exhibits under seal.” Sessions Opp’n Decl. ¶ 5. Having reviewed this exhibit and
the attachments, the Court finds that Lucsfilm has not made a particularized
showing that all of the information contained therein is “confidential.”
GRANTED as to lines 4-8, 11-17, 20-24, and 26-27 on page 2, and lines 6-7 on
page 4 of the McAdams declaration, as well as Exhibit 1. See Kennedy Opp’n
Decl. ¶ 5(a).
DENIED. Defendant Google also seeks to maintain under seal Exhibit 25, which
is a “confidential presentation related to Google’s compensation practices and
philosophy.” Wagner Opp’n Decl. ¶ 10. According to Wagner, this document
“contains highly sensitive and confidential information about Google’s
compensation program, including its bonus targets, the disclosure of which would
likely cause competitive harm to Google by giving third parties (including
Google’s competitors in the labor market) direct insight into highly confidential
and competitively sensitive aspects of Google’s internal decision-making
processes related to its business operations.” Id. While the Court finds that
Defendant Google has established good cause to maintain some of this exhibit
under seal, the Court is not persuaded that Defendant Google’s request is
sufficiently particularized.

9

United States District Court
For the Northern District of California

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25

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For portions of Defendants’ Motion to Strike, the Court rules as follows:
Paragraphs
Page 7, lines
4-7
Page 11, lines
1-2
Page 13

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25
26
27
28

Page 15, lines
1-2
Page 17,
footnote 13,
lines 2-3

Ruling
GRANTED. See Busch Opp’n Decl. ¶ 8.
GRANTED. See Kennedy Opp’n Decl. ¶ 5(e).
DENIED. Although Defendant Google appears to contend that lines 2 through 4
of this page “contain[] a confidential and highly sensitive discussion of Google’s
compensation data in the context of analyzing the findings of Professor Leamer,”
Wagner Opp’n Decl. ¶ 9(a), it is unclear from either the text of this Motion to
Strike or the referenced deposition testimony of Professor Leamer how this
sentence reveals anything confidential or potentially harmful to Defendants.
GRANTED. See Brown Opp’n Decl. ¶ 7.
GRANTED. See Kennedy Opp’n Decl. ¶ 5(e); Wagner Opp’n Decl. ¶9(b).

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1
2
3

Page 19,
footnote 16
Pages 20-21,
Fig. 16
Page 21, lines
9-10

4

GRANTED. See Wagner Opp’n Decl. ¶ 9(c).
GRANTED. Brown Opp’n Decl. ¶ 7.

For the Exhibits to the Welch Declaration in support of the Motion to Strike, the Court rules as

5

follows:

6

Exhibits
A

7
8
9

B

10
United States District Court
For the Northern District of California

GRANTED. Brown Opp’n Decl. ¶ 7

C
D

11

Ruling
GRANTED as to page 76, lines 2-25; page 90, lines 19-23; page 106, lines 1823; page 163, lines 3-6, 10, 13-24; page 261, lines 14-23; page 262, line 3
through page 263, line 25; page 400, lines 11-13, 16; page 435, lines 4-5; and
page 468, line 5, through page 469, line 25. See Kahn Opp’n Decl. ¶ 7(x);
Kennedy Opp’n Decl. ¶ 5(a); Busch Opp’n Decl. ¶ 8; Brown Opp’n Decl. ¶ 8.
GRANTED as to page 65, lines 5-21, and page 197, lines 1-2, 7. See Busch
Opp’n Decl. ¶ 8; Forderer Decl. ¶ 7.
GRANTED as to page 181, lines 18, 22-25. See Forderer Decl. ¶ 7.
GRANTED as to page 97, lines 22-25. See Forderer Decl. ¶ 7

13

Plaintiffs’ Motion to Seal Documents Related to the Consolidated Reply
in Support of its Motion for Class Certification and in Opposition to
Defendants’ Motion to Strike

14

Finally, in connection with Plaintiffs’ Reply in Support of its Motion for Class Certification

C.

12

15

and in Opposition to Defendants’ Motion to Strike, Plaintiffs filed an administrative motion for a

16

sealing order, ECF No. 246, and lodged under seal certain information contained in: (a) Plaintiffs’

17

Reply, see ECF No. 247; (b) Exhibits 1-6, 9-10, and 12-30 to the Declaration of Dean M. Harvey

18

in Support of Plaintiffs’ Consolidated Reply, see ECF Nos. 248 (“Harvey Decl.”); and (c) the

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Reply Expert Report of Edward R. Leamer, Ph.D., see ECF No. 249.4 In addition, on December

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12, 2012, Plaintiffs filed a letter from Brendan Glackin regarding a Correction to the Reply, see

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ECF No. 253, indicating that portions of the letter be filed under seal because it refers to data that

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Defendants have designated as “Confidential – Attorneys’ Eyes Only” under the Stipulated

23

Protective Order. See ECF No. 252.

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25

For the reasons stated herein, the Court GRANTS the request to file under seal portions of
the Reply and exhibits in support thereof that Defendants designated either “Confidential” or

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4

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28

This Order does not address the parties’ request to file under seal portions of the Leamer
Reply Report. Accordingly, this Order also does not address Defendants’ request to remove the
reply expert report from the ECF docket due to the report’s headings. See ECF No. 254. The
Court will address the parties’ requests to file portions of this report under seal in a separate order.
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

“Confidential – Attorneys’ Eyes Only,” under the modified Stipulated Protective Order. The Court

2

also GRANTS the request to file the designated portion of the Glackin Letter under seal.

3

1. Defendants’ Request to Maintain the Confidentiality of Certain
Defendants-Related Company Materials

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5
6
7

declarations on behalf of each Defendant in support of Plaintiffs’ Reply and the exhibits filed in
support thereof:

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(1) Defendant Intel Corp. filed a Declaration of Susan J. Welch, see ECF No. 255
(“Welch Reply Decl.”);
(2) Defendant Intuit Inc. filed a Declaration of Catherine T. Zeng, see ECF No. 256
(“Zeng Reply Decl.”);
(3) Defendant Adobe Systems, Inc. filed a Declaration of Lin W. Kahn, see ECF
No. 257 (“Kahn Reply Decl.”);
(4) Defendant Apple Inc. filed a Declaration of Christina, see ECF No. 258
(“Brown Reply Decl.”);
(5) Defendant Pixar Filed a Declaration of James M. Kennedy, see ECF No. 259
(“Kennedy Reply Decl.”);
(6) Defendant Lucasfilm Ltd. filed a Declaration of Justina K. Sessions, see ECF
No. 260 (“Sessions Reply Decl.”);
(7) Defendant Google Inc. filed a Declaration of Frank Wagner, see ECF No. 261
(“Wagner Reply Decl.”).

16

Defendants also filed a Joint Administrative Motion to Seal and Motion to Remove

8
9
10
United States District Court
For the Northern District of California

In compliance with Civil Local Rule 79–5(d), Defendants have submitted timely

11
12
13
14

17

Incorrectly Filed Document. See ECF No. 254. As with Defendants’ prior declarations

18

seeking to seal documents connected with Plaintiffs’ Motion for Class Certification,

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Defendants contend that “redacted portions of the Reply [and] Exhibits 1, 2, 3, 6, 10, 13,

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15-17, 19, 20, 22-27, 29, and 30 to the Harvey Declaration . . . contain confidential and

21

commercially sensitive information about employee compensation, including Defendants’

22

compensation data,” in addition to “information that reflects certain Defendants’ internal

23

decision-making regarding their business strategies related to compensation and internal

24

assessments of their and other employers’ competitive position in the labor market.” ECF

25

No. 254 at 2. Defendants further assert that they “seek to keep under seal those materials

26

that reflect compensation practices, strategies and policies; recruiting and hiring data,

27

practices, strategies and policies; and personal identifying information of employees or

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21
Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

candidates” which Defendants designated as “Confidential” or “Attorneys’ Eyes Only”

2

under the modified Stipulated Protective Order. Id.

3

Defendants assert that “public disclosure of this information,” which the Defendants keep

4

confidential, “would cause each Defendant harm by giving third-parties (including individuals

5

responsible for competitive decision-marking) insights into confidential and sensitive aspects of

6

each of the Defendants’ strategies, competitive positions, and business operations, allowing these

7

third-parties to potentially gain an unfair advantage in dealings with and against each of the

8

Defendants.” Id.
After reviewing Defendants’ joint and separate declarations, the relevant case law, and each

10
United States District Court
For the Northern District of California

9

of the documents that Defendants seek to maintain under seal, the Court finds that Defendants have

11

made a particularized showing with respect to sealing the following portions of the Reply: i,

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Headings III.B.1, III.B.2, III.C, and III.D; page 3, lines 18-25; page 11, lines 15-16; page 12, lines

13

18-21; page 13, line 23, through page 14, line 12; page 14, footnote 10; page 16, lines 11-12; page

14

16, lines 18-19; page 17, lines 13-22; page 17, line 27, through page 18, line 11; page 18, lines 14-

15

28; page 19, lines 5-9; page 19, lines 14-16; page 19, lines 17-27; page 20, lines 3-26; page 21,

16

lines 5-7; page 21, lines 7-13; page 21, lines 13-14; page 21, footnote 13; page 22, lines 5-7; page

17

23, footnote 14, second sentence; page 24, lines 14-21; page 25, lines 1-6. The Court is persuaded

18

that Defendants’ requests are sufficiently specific and that Defendants have plausibly articulated

19

the need for maintaining the confidentiality of this information given the potential harm that may

20

come from public disclosure.

21

In addition, the Court finds that Defendants have made a particularized showing with

22

respect to sealing the following exhibits and portions of exhibits to the Harvey Declaration:

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Exhibit 1 (page 57, lines 6, through page 58, line 23; page 73, line 20 through page 74, line 3; page

24

74, line 18 through page 76, line 25); Exhibit 2 (page 244, line 1 through page 247, line 25);

25

Exhibit 10 (page 327, line 17 through page 328, line 25); Exhibit 13 (pages 255-258; page 260, line

26

11-25, page 283, lines 7-25, page 284, lines 1-4, 12-20; page 294, lines 15-25; and page 295, line

27

22 through page 296, line 5); Exhibit 15; Exhibit 16; Exhibit 17; Exhibit 18; Exhibit 19; Exhibit

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20; Exhibit 22; Exhibit 23; Exhibit 24; Exhibit 25; and Exhibit 30. The Court finds that
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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

Defendants’ requests are sufficiently specific as to these exhibits and that Defendants have

2

plausibly articulated the need for maintaining their confidentiality given the potential harm that

3

may come from public disclosure. Consequently, the Court finds good cause to GRANT the

4

motion to maintain these documents under seal. Finally, the Court GRANTS the request to file

5

portions of the Glackin letter under seal.

6

However, the Court finds that Defendants have not made a sufficiently particularized

7

showing of good cause with respect to the following portions of Plaintiffs’ Reply: page 13, lines

8

14-18; page 13, lines 22-23; and page 20, line 26, through page 21, line 4. In addition, the Court

9

finds that Defendants have not made a particularized showing with respect to sealing the following

United States District Court
For the Northern District of California

10

exhibits to the Harvey Declaration: Exhibit 3, Exhibit 4, Exhibits 6, Exhibit 26, Exhibit 27, and

11

Exhibit 29. Furthermore, to the extent Defendants contend that disclosure of these materials would

12

cause Defendants’ competitive harm, the Court finds that Defendants have not supported their

13

assertions with sufficiently particularized facts. Therefore, the Court DENIES these requests

14

without prejudice.

15

2.

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17
18
19
20
21
22
23
24
25

In summary, for the Reply in Support of the Motion for Class Certification, the Court rules
as follows:
Pages/Lines to
be Sealed
i, Headings
III.B.1, III.B.2,
III.C, and III.D
Page 3, lines
18-25
Page 11, lines
15-16
Page 12, lines
18-21
Page 13, lines
14-18

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27
28

The Court’s Rulings on Plaintiffs’ Administrative Motion to
Seal Documents Related to its Reply

Page 13, lines
22-23

Ruling
GRANTED. See Wagner Reply Decl. ¶2(a).
GRANTED. See Wagner Reply Decl. ¶2(b).
GRANTED. See Zeng Reply Decl. ¶ 7.
GRANTED. See Kahn Reply Decl. ¶ 7(a).
DENIED. This excerpt references and quotes portions of the Colligan
Declaration and the exhibits to the Colligan Declaration. As the Court has
denied Palm’s request to seal this excerpt in connection with Plaintiffs’ Motion
for Class Certification, the same reasons apply to denying the request to seal
here. See Booth Decl. ¶¶ 3-6; Zeng Reply Decl. 10.
DENIED. Pixar contends that good cause exists to file under seal this specific
quotation from Exhibit 61 to the Shaver Declaration. See Kennedy Reply Decl.
¶ 5. This excerpt quotes a portion of Exhibit 61, which as set forth above the
23

Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17

Page 13, line
23 through
page 14, line
12
Page 14,
Footnote 10

20
21
22
23
24
25
26
27

GRANTED. See Welch Reply Decl. ¶ 8; Kahn Reply Decl. ¶ 7(b); Brown
Reply Decl. ¶ 3; Wagner Reply Decl. ¶ 2(d).

Page 16, lines
11-12
Page 16, lines
18-19
Page 17, lines
13-22

GRANTED. See Wagner Reply Decl. ¶2(e).

Page 17, line
27, through
page 18, line
11
Page 18, lines
14-28
Page 19, lines
5-9
Page 19, lines
14-16
Page 19, lines
17-27
Page 20, lines
3-26
Page 20, line
26 through
page 21, line 4

GRANTED. See Kahn Reply Decl. ¶ 7(c).

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19

Court has declined to seal. Having reviewed this excerpt, the Court finds that
Pixar has not made a particularized showing that the information contained
therein is “confidential.” Id.
GRANTED. See Wagner Reply Decl. ¶2(c).

Page 21, lines
5-7
Page 21, lines
7-13
Page 21, lines
13-14
Page 21,
Footnote 13
Page 22, lines
5-7
Page 23,
footnote 14,
second
sentence
Page 24, lines
14-21
Page 25, lines
1-6

GRANTED. See Wagner Reply Decl. ¶2(f).
GRANTED. See Brown Reply Decl. ¶ 3; Wagner Reply Decl. ¶2(g); Welch
Reply Decl. ¶¶ 8, 9; Sessions Reply Decl. ¶ 4(i).

GRANTED. See Brown Reply Decl. ¶ 3; Wagner Reply Decl. ¶2(h); Welch
Reply Decl. ¶¶ 8, 9.
GRANTED. See Zeng Reply Decl. ¶ 7; Sessions Reply Decl. ¶ 4(i).
GRANTED. See Kahn Reply Decl. ¶ 7(d).
GRANTED. See Kahn Reply Decl. ¶ 7(d).
GRANTED. See Wagner Reply Decl. ¶2(i).
DENIED. Pixar contends that good cause exists to file under seal this specific
quotation from Exhibit 61 to the Shaver Declaration. See Kennedy Reply Decl.
¶ 5. As set forth above, the Court has declined to seal Exhibit 61. Thus, having
reviewed these excerpts, the Court finds that Pixar has not made a particularized
showing that the information contained therein is “confidential.” Id.
GRANTED. See Wagner Reply Decl. ¶2(j).
GRANTED. See Brown Reply Decl. ¶ 3.
GRANTED. See Welch Reply Decl. ¶¶ 8, 9; Zeng Reply Decl. ¶ 7.
GRANTED. See Zeng Reply Decl. ¶ 7; Sessions Reply Decl. ¶ 4.
GRANTED. See Brown Reply Dec. ¶ 3; Wagner Reply Decl. ¶2(k).
GRANTED. See Welch Reply Decl. ¶¶ 8, 9.

GRANTED. See Welch Reply Decl. ¶¶ 8, 9.
GRANTED. See Brown Reply Decl. ¶ 3.

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1

Regarding the proposed redactions to the exhibits to the Harvey Declaration in Support of

2

Plaintiffs’ Consolidated Reply, the Court rules as follows:

3

Exhibits
1

4
5

2

6

3

7
8
9

4

United States District Court
For the Northern District of California

10
11
12

6

13
14
15

10

16

13

17
18
19
20
21
22
23

15
16
17
18
19
20
22
23
24
25
26

24
25

27

26
29
27
28

30

Ruling
GRANTED as to page 57, line 6, through page 58, line 23; page 73, line 20,
through page 74, line 3; page 74, line 18, through page 76, line 25. See Kahn
Reply Decl. ¶ 7(v).
GRANTED as to page 244, line 1 through page 247, line 25. See Kahn Reply
Decl. ¶ 7(w).
DENIED. This exhibit involves excerpts from the deposition of Apple witness
Mark Bentley, which allegedly reflect Apple’s confidential recruiting practices
and strategies. See Brown Reply Decl. ¶ 5. Having reviewed this document,
the Court finds that Apple has not made a particularized showing that all of the
information contained therein is “confidential.”
DENIED. This exhibit contains “transcript excerpts from the deposition of
Arnon Geshuri, dated August 17, 2012, and reflects confidential and highly
sensitive details about Google’s recruiting strategies and resources with
respect to particular types of candidates.” See Wagner Reply Decl. ¶4(a).
Having reviewed this document, the Court finds that Google has not made a
particularized showing that all of the information contained therein is
“confidential.”
DENIED. This exhibit contains excerpts from the deposition of Steven
Burmeister which allegedly “reflect Apple’s sources of highly confidential
employee compensation data.” See Brown Reply Decl. ¶ 5. Having reviewed
this document, the Court finds that Apple has not made a particularized
showing that all of the information contained therein is “confidential.”
GRANTED as to page 327, line 17 through page 328, line 25. See Wagner
Reply Decl. ¶4(b).
GRANTED as to pages 255-258; page 260, line 11-25; page 283, lines 7-25;
page 284, lines 1-4, 12-20; page 294, lines 15-25; and page 295, line 22,
through page 296, line 5. See Kahn Reply Decl. ¶ 7(x), Brown Reply Decl. ¶
5, Wagner Reply Decl. ¶4(c).
GRANTED. See Kahn Reply Decl. ¶ 7(y).
GRANTED. See Kahn Reply Decl. ¶ 7(z).
GRANTED. See Kahn Reply Decl. ¶ 7(aa).
GRANTED. See Kahn Reply Decl. ¶ 7(bb).
GRANTED. See Brown Reply Decl. ¶ 5.
GRANTED. See Brown Reply Decl. ¶ 5.
GRANTED. See Wagner Reply Decl. ¶4(d).
GRANTED. See Wagner Reply Decl. ¶4(e).
GRANTED. See Wagner Reply Decl. ¶4(f).
GRANTED. See Wagner Reply Decl. ¶4(g).
DENIED. See Welch Decl. ¶ 3. Having reviewed this document, the Court
finds that Intel has not made a particularized showing that all of the
information contained therein is “confidential.”
DENIED. See Welch Decl. ¶ 3. Having reviewed this document, the Court
finds that Intel has not made a particularized showing that all of the
information contained therein is “confidential.”
DENIED. See Zeng Reply Decl. ¶ 8. Having reviewed this document, the
Court finds that Intuit has not made a particularized showing that all of the
information contained therein is “confidential.”
GRANTED. See Sessions Reply Decl. ¶¶ 4(i); 5.
25

Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13

Finally, for the Glackin Letter, the Court rules as follows:
Exhibits
Glackin Letter
III.

Ruling
GRANTED. See Welch Decl. ¶ 8.

Conclusion
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART the

parties’ administrative motions to seal documents. For each motion and exhibit to a motion where
the Court has denied a request to seal, Plaintiffs shall re-file that motion and exhibit consistent with
this Order and the Court’s Standing Order within seven days. Defendants shall do the same for any
motion and exhibit to a motion for which its motion to seal has been granted-in-part and denied-in
part. In addition, if any portion of the exhibits that the parties wish to file under seal becomes part
of the public record, such as during the hearing on class certification, the parties must file that
portion publicly within seven days of public disclosure.
IT IS SO ORDERED.

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15

Dated: January 15, 2013

________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-02509-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTIONS TO SEAL