In re: High-Tech Employee Antitrust Litigation

Filing 319

Administrative Motion to File Under Seal re Google's Opposition to Plaintiffs' Motion to Compel and Supporting Documents filed by Google Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Declaration of Laszlo Bock, #4 Declaration of Eric B. Evans, #5 Proposed Order)(Evans, Eric) (Filed on 1/25/2013)

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MAYER BROWN LLP
LEE H. RUBIN (SBN 141331)
[e-mail]
EDWARD D. JOHNSON (SBN 189475)
[e-mail]
DONALD M. FALK (SBN 150256)
[e-mail]
ERIC B. EVANS (SBN 232476)
[e-mail]
ANNE M. SELIN (SBN 270634)
[e-mail]
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306-2112
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
Google Inc.

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UNITED STATES DISTRICT COURT

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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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Master Docket No. 11-CV-2509-LHK
DEFENDANT GOOGLE INC.’S
ADMINISTRATIVE MOTION TO SEAL
PORTIONS OF GOOGLE’S
OPPOSITION TO PLAINTIFFS’
MOTION TO COMPEL, AND THE
ENTIRETY OF THE DECLARATION
OF WILLIAM CAMPBELL IN
SUPPORT THEREOF

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GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL)
MASTER DOCKET NO. 11-CV-2509-LHK

Pursuant to N.D. Cal. Civ. L.R. 7-11 and 79-5, Defendant Google Inc. (“Google”) hereby

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moves to seal the following information:

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(i) Portions of Google’s Opposition to Plaintiffs’ Motion to Compel Production of

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Google Documents (“Opposition to Motion to Compel”) (proposed redacted

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version attached as Exhibit 1); and

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(ii) The Declaration of William Campbell in Support of Google’s Response to

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Plaintiffs’ Motion to Compel (“Campbell Declaration”) (in its entirety).

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This information has been designated Confidential or Attorneys-Eyes Only under the

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Stipulated Protective Order (Modified by the Court) (Dkt. No. 107). Google is filing the

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accompanying Declaration of Laszlo Bock and Declaration of Eric Evans in support of Google’s

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sealing request.

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I.

LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure provides broad discretion for a trial

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court to permit sealing of court documents for, inter alia, the protection of “a trade secret or other

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confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G).

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The Ninth Circuit has “carved out an exception to the presumption of access to judicial records

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for a sealed discovery document [attached] to a nondispositive motion,” where the requesting

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party shows good cause exists to keep the records under seal. Navarro v. Eskanos & Adler, No.

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C-06 02231, 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana

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v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (“[A] ‘particularized showing’

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

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sealed discovery material attached to nondispositive motions.”); see also Pintos v. Pacific

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Creditors Assoc., 565 F.3d 1106, 1115 (9th Cir. 2009) (“In light of the weaker public interest in

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nondispositive materials, we apply the ‘good cause’ standard when parties wish to keep them

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under seal.”).
II.
GOOD CAUSE EXISTS TO SEAL GOOGLE’S CONFIDENTIAL
INFORMATION

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The entirety of the Campbell Declaration and accompanying exhibits contain confidential
and highly sensitive information related to the unique business arrangement between Mr.
-2GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL)
MASTER DOCKET NO. 11-CV-2509-LHK

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William Campbell and Google regarding his role as a senior advisor to Google, including how

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this arrangement was formalized and documented, as well as the details and express terms and

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conditions of that arrangement (such as the specific manner in which Mr. Campbell has been,

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and continues to be, compensated for his work as a senior advisor to Google). As this

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accompanying Declaration of Laszlo Bock (“Bock Decl.”) demonstrates, this information is

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closely held within Google and available only to select members of Google’s senior management

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and legal department. Bock Decl. ¶ 4. If this information were made public, Google would

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suffer competitive harm because Google’s competitors would discover, and therefore better

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understand, the unique and confidential arrangement between Mr. Campbell and Google

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regarding his role as senior advisor to Google, including how this arrangement was formalized

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and documented and the details and express terms and conditions of that arrangement (such as

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the specific manner in which Mr. Campbell has been, and continues to be, compensated for his

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work as a senior advisor to Google). Bock Decl. ¶ 5. Similarly, portions of the Opposition to

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Motion to Compel reference and quote extensively from the Campbell Declaration and therefore

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also contain confidential information that would cause Google competitive harm if it were made

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public. Declaration of Eric Evans ¶¶ 2-3. Google designated the foregoing information

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“Confidential” or “Attorneys Eyes Only” under the Protective Order.

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Personal compensation information is regularly sealed because of its confidential and
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private nature. See Renfro v. Unum, et al., No. 09-2661, 2010 BL 104197 (N.D. Cal. May 10,
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2010) (granting a motion to seal records containing plaintiffs’ salary information); Nettles v.
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Farmers Ins. Exch., No. C06-5164, 2007 WL 858060, at *2, 2007 BL 247444 (W.D. Wash. Mar.
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16, 2007) (holding that salary review notices for third parties “who have not chosen to have their
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salary history placed into the public record” could be sealed.); EEOC v. Kokh, LLC, No. CIV-0724
1043, 2010 U.S. Dist. LEXIS 82526, at n.1, 2010 BL 187807 (W.D. Okla. Aug. 09, 2012)
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(noting that portions of summary judgment materials were filed under seal because they
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contained “confidential salary information”). Similarly, compensation practices and decisions
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are routinely subject to a sealing order. Hertz Equip. Rental Co. v. Useda, No. CV-10-4953,
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-3GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL)
MASTER DOCKET NO. 11-CV-2509-LHK

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2010 BL 259718, at *2 (N.D. Cal. Nov. 02, 2010) (granting a temporary restraining order to

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enjoin a former employee from using a company’s “confidential and/or trade secret employee

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compensation information”). Moreover, the sealed information also includes Mr. Campbell’s

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social security number, which is required to be redacted under the Federal Rules. Fed. R. Civ. P.

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5.2.
In addition, good cause exists to seal confidential information relating to a company’s

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internal business strategies, such as its decisions on how to formalize and document unique

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business arrangements. See Fed. R. Civ. Proc. 26(c)(1)(G) (permitting sealing of “a trade secret

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or other confidential research, development, or commercial information”) (emphasis added);

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Krieger v. Atheros Commc’ns, Inc., Case No. 11-CV-00640, 2011 U.S. Dist. LEXIS 68033 at

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*3-4 (N.D. Cal. June 25, 2011) (holding that a company could seal a presentation from its

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investment adviser that contained “sensitive and confidential information, including long-term

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financial projections, discussions of business strategy, and competitive analyses”); Network

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Appliance, Inc. v. Sun Microsystems Inc., Case No. C-07-06053, 2010 U.S. Dist. LEXIS 21721,

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at *9 (N.D. Cal. Mar. 10, 2010) (sealing “internal information regarding [defendant’s] business

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strategies and opportunities that were not widely distributed”); see also TriQuint Semiconductor,

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Inc. v. Avago Techns. Ltd., Case No. CV 09-531, 2011 U.S. Dist. LEXIS 143942, at *9 (D. Ariz.

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Dec. 13, 2011) (granting motion to seal “market analysis information,” under “compelling”

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reason standard applicable to dispositive motions, including a “spreadsheet tracking information

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regarding potentially competitive products,” and other business strategy documents, such as

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information relating to “product competitiveness, and market and technological opportunities

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and risks”).

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III.

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CONCLUSION
For the foregoing reasons, Google respectfully requests that this Court order portions of

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the Opposition to Motion to Compel and the entirety of the Campbell Declaration to be placed

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under seal. In accordance with Civil Local Rule 79-5(b) and (c), a proposed order granting the

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Administrative Motion to Seal Portions of Google’s Opposition to Plaintiffs’ Motion to Compel

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and the Entirety of the Declaration of William Campbell In Support Thereof has been lodged
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MASTER DOCKET NO. 11-CV-2509-LHK

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with the Clerk in hard copy and served on counsel for Plaintiffs. Pursuant to this Court’s January

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11, 2013 Order, a copy of the Opposition to the Motion to Compel with the proposed redactions

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highlighted in yellow is attached as Exhibit 2. In accordance with Civil Local Rule 79-5(b) and

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(c), Google’s proposed redacted version of the Opposition to the Motion to Compel and the

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entirety of the Campbell Declaration are being lodged with the Clerk in hard copy within a

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sealed envelope and will be served on counsel for Plaintiffs.

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Dated: January 25, 2013

MAYER BROWN LLP

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By:

/s/ Eric Evans
Eric Evans

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Lee H. Rubin
Edward D. Johnson
Donald M. Falk
Eric Evans
Two Palo Alto Square
3000 El Camino Real, Suite 300
Palo Alto, CA 94306-2112
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant GOOGLE INC.

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-5GOOGLE’S ADMINISTRATIVE MOTION TO SEAL (RE: OPP’N TO MOTION TO COMPEL)
MASTER DOCKET NO. 11-CV-2509-LHK