In re: High-Tech Employee Antitrust Litigation

Filing 333

ORDER GRANTING-IN-PART SEALING MOTIONS by Judge Paul S. Grewal granting #313 Administrative Motion to File Under Seal; granting in part and denying in part #319 Administrative Motion to File Under Seal; granting in part and denying in part #326 Administrative Motion to File Under Seal; granting in part and denying in part #329 Administrative Motion to File Under Seal; granting in part and denying in part #331 Administrative Motion to File Under Seal; granting #279 Administrative Motion to File Under Seal (psglc2, COURT STAFF) (Filed on 2/28/2013)

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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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Case No.: 11-CV-2509-LHK-PSG
ORDER GRANTING-IN-PART
MOTIONS TO SEAL
(Re: Docket Nos. 279, 313, 319, 326, 329,
331)

Accompanying the parties’ various papers regarding Plaintiffs Michael Devine, Mark

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Fichtner, Siddharth Hariharan, Brandon Marshall, and Daniel Stover (collectively “Plaintiffs”)

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motion to compel production of documents from Defendant Google Inc. (“Google”) are several

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motions to seal or redact brought pursuant to Civil L.R. 79-5. All of the motions, whether brought

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by Plaintiffs or Google, arise from Google’s assertion of confidentiality over the nature and terms

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of its relationship with Bill Campbell (“Campbell”) or over communications between its executives

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regarding employee retention.

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“Historically, courts have recognized a ‘general right to inspect and copy public records and

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documents, including judicial records and documents.’” 1 Accordingly, when considering a sealing

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Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).
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Case No.: 11-2509 LHK (PSG)
ORDER

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request, “a strong presumption in favor of access is the starting point.” 2 Parties seeking to seal

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judicial records relating to dispositive motions bear the burden of overcoming the presumption

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with “compelling reasons” that outweigh the general history of access and the public policies

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favoring disclosure. 3

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Records attached to nondispositive motions, however, are not subject to the strong
presumption of access. 4 Because the documents attached to nondispositive motions “are often

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unrelated, or only tangentially related, to the underlying cause of action,” parties moving to seal
must meet the lower “good cause” standard of Rule 26(c). 5 As with dispositive motions, the

United States District Court
For the Northern District of California

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standard applicable to nondispositive motions requires a “particularized showing” 6 that “specific

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prejudice or harm will result” if the information is disclosed. 7 “[B]road allegations of harm,

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unsubstantiated by specific examples or articulated reasoning” will not suffice. 8 A protective order

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sealing the documents during discovery may reflect the court’s previous determination that good
cause exists to keep the documents sealed, 9 but a blanket protective order that allows the parties to

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designate confidential documents does not provide sufficient judicial scrutiny to determine whether
each particular document should remain sealed. 10

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Id.

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Id. at 1178-79.

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See id. at 1180.

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Id. at 1179 (internal quotations and citations omitted).

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Id.

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Fed. R. Civ. P. 26(c).

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Id.

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See id. at 1179-80.

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See Civil L.R. 79-5(a).
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Case No.: 11-2509 LHK (PSG)
ORDER

In addition to making particularized showings of good cause, parties moving to seal

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documents must comply with the procedures established by Civil Local Rule 79-5. The rule allows

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sealing orders only where the parties have “establishe[d] that the document or portions thereof is

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privileged or protectable as a trade secret or otherwise entitled to protection under the law.” 11 The

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rule requires parties to “narrowly tailor” their requests only to sealable material. 12

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Google first seeks to seal any references to Campbell’s relationship to Google, including
redacting significant portions of the parties’ papers, 13 redacting significant portions of a deposition
of Campbell, 14 and sealing entirely Campbell’s declaration and the copies of the agreements he

United States District Court
For the Northern District of California

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signed with Google during his relationship with it. 15 Google asserts that its “unique business

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arrangement” with Campbell is “confidential and highly sensitive” and that it would suffer

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“competitive harm” because its competitors “would discover, and therefore better understand, the

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unique and confidential arrangement between Mr. Campbell and Google regarding his role as
senior advisor to Google.” 16

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Although parts of the documents properly may be sealed, such as Campbell’s Social

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Security number 17 and the amount and nature of his compensation, 18 Google has not made a

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particularized showing how descriptions of the services Campbell provided to Google would be

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Id.

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Id.

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See Docket No. 313 Ex. 1; Docket No. 319 Ex. 1; Docket No. 329 Ex. 1; Docket No. 331 Ex. A.

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See Docket No. 331 Ex. B.

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See Docket No. 319.

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See Docket No. 331; see also Docket Nos. 319, 329.

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See Fed. R. Civ. P. 5.2(a)(1).

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See Apple, Inc. v. Samsung Elecs. Co., Case No. 11-CV-1846-LHK, 2012 WL 3283478, at *7
(N.D. Cal. Aug. 9, 2012) (granting motions to seal information about compensation).
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Case No.: 11-2509 LHK (PSG)
ORDER

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detrimental if revealed, especially in light of the publicity around his role at Google. 19 Given that

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publicity, the court finds that sealing references to or descriptions of his relationship to Google is

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inappropriate and so Google’s requests are not narrowly tailored. The court therefore DENIES

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WITHOUT PREJUDICE Google’s sealing requests regarding Campbell. Because the deposition,

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the consultant agreement, and the employment agreement include information about Campbell’s

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compensation and his Social Security Number, Google may renew its motion to seal with narrowly

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tailored redactions of that information.
Google additionally seeks redaction of names of people that Google employees either

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United States District Court
For the Northern District of California

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communicated with or about in emails attached to Plaintiffs’ motion. 20 Google also requests that

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emails attached to Plaintiffs’ motion containing Google employees’ conversations about strategies

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for employee retention be sealed. 21 The privacy interests of third parties outweigh the limited

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public interest in their information that accompanies a non-dispositive motion. 22 As to the emails,

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the court notes that Judge Koh already has determined that “compensation and recruiting strategies,
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policies, and procedures” of the various defendants in this case may remain under seal. 23 Google
likewise here has made a sufficient showing that disclosure of its compensation and retention

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See, e.g., Miguel Helft, “Bill Campbell on Coaching RockMelt and Google vs. Apple,” New
York Times, Nov. 8, 2010 (available at http://bits.blogs.nytimes.com/2010/11/08/bill-campbell-oncoaching-rockmelt-and-google-vs-apple/); Robert Hof, “Tech Startup Secrets of Bill Campbell,
Coach of Silicon Valley,” Forbes, July 27, 2011 (available at
http://www.forbes.com/sites/roberthof/2011/07/27/startups-secrets-of-bill-campbell-the-coach-ofsilicon-valley/).
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See Docket No. 313 Exs. 2, 3.

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See Docket No. 313.

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See Nettles v. Farmers Ins. Exch., Case No. C06-5164, 2007 WL 858060, at *2, (W.D. Wash.
Mar. 16, 2007).
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See Docket No. 273.
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Case No.: 11-2509 LHK (PSG)
ORDER

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policies could cause competitive harm. Google’s requests to seal Exhibits E, K, L, and M in their

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entirety and to redact Exhibits D and J and portions of Plaintiffs’ motion are GRANTED.

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IT IS SO ORDERED.

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Dated: February 28, 2013

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
For the Northern District of California

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Case No.: 11-2509 LHK (PSG)
ORDER