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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 ) ) ) In re HIGH-TECH EMPLOYEE ANTITRUST ) LITIGATION ) ) ) ) ) ) 12 13 14 15 16 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 17 18 Fichtner, Siddharth Hariharan, Brandon Marshall, and Daniel Stover (collectively “Plaintiffs”) 19 motion to compel production of documents from Defendant Google Inc. (“Google”) are several 20 motions to seal or redact brought pursuant to Civil L.R. 79-5. All of the motions, whether brought 21 by Plaintiffs or Google, arise from Google’s assertion of confidentiality over the nature and terms 22 of its relationship with Bill Campbell (“Campbell”) or over communications between its executives 23 24 regarding employee retention. 25 “Historically, courts have recognized a ‘general right to inspect and copy public records and 26 documents, including judicial records and documents.’” 1 Accordingly, when considering a sealing 27 1 28 Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). 1 Case No.: 11-2509 LHK (PSG) ORDER 1 request, “a strong presumption in favor of access is the starting point.” 2 Parties seeking to seal 2 judicial records relating to dispositive motions bear the burden of overcoming the presumption 3 with “compelling reasons” that outweigh the general history of access and the public policies 4 favoring disclosure. 3 5 6 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 7 8 9 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 10 standard applicable to nondispositive motions requires a “particularized showing” 6 that “specific 11 prejudice or harm will result” if the information is disclosed. 7 “[B]road allegations of harm, 12 unsubstantiated by specific examples or articulated reasoning” will not suffice. 8 A protective order 13 14 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 15 16 17 designate confidential documents does not provide sufficient judicial scrutiny to determine whether each particular document should remain sealed. 10 18 19 2 Id. 3 Id. at 1178-79. 4 See id. at 1180. 5 Id. at 1179 (internal quotations and citations omitted). 6 Id. 7 Fed. R. Civ. P. 26(c). 8 Id. 27 9 See id. at 1179-80. 28 10 20 21 22 23 24 25 26 See Civil L.R. 79-5(a). 2 Case No.: 11-2509 LHK (PSG) ORDER In addition to making particularized showings of good cause, parties moving to seal 1 2 documents must comply with the procedures established by Civil Local Rule 79-5. The rule allows 3 sealing orders only where the parties have “establishe[d] that the document or portions thereof is 4 privileged or protectable as a trade secret or otherwise entitled to protection under the law.” 11 The 5 rule requires parties to “narrowly tailor” their requests only to sealable material. 12 6 7 8 9 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 10 signed with Google during his relationship with it. 15 Google asserts that its “unique business 11 arrangement” with Campbell is “confidential and highly sensitive” and that it would suffer 12 “competitive harm” because its competitors “would discover, and therefore better understand, the 13 14 unique and confidential arrangement between Mr. Campbell and Google regarding his role as senior advisor to Google.” 16 15 Although parts of the documents properly may be sealed, such as Campbell’s Social 16 17 Security number 17 and the amount and nature of his compensation, 18 Google has not made a 18 particularized showing how descriptions of the services Campbell provided to Google would be 19 11 Id. 12 Id. 13 See Docket No. 313 Ex. 1; Docket No. 319 Ex. 1; Docket No. 329 Ex. 1; Docket No. 331 Ex. A. 14 See Docket No. 331 Ex. B. 15 See Docket No. 319. 16 See Docket No. 331; see also Docket Nos. 319, 329. 26 17 See Fed. R. Civ. P. 5.2(a)(1). 27 18 20 21 22 23 24 25 28 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). 3 Case No.: 11-2509 LHK (PSG) ORDER 1 detrimental if revealed, especially in light of the publicity around his role at Google. 19 Given that 2 publicity, the court finds that sealing references to or descriptions of his relationship to Google is 3 inappropriate and so Google’s requests are not narrowly tailored. The court therefore DENIES 4 WITHOUT PREJUDICE Google’s sealing requests regarding Campbell. Because the deposition, 5 the consultant agreement, and the employment agreement include information about Campbell’s 6 compensation and his Social Security Number, Google may renew its motion to seal with narrowly 7 8 tailored redactions of that information. Google additionally seeks redaction of names of people that Google employees either 9 United States District Court For the Northern District of California 10 communicated with or about in emails attached to Plaintiffs’ motion. 20 Google also requests that 11 emails attached to Plaintiffs’ motion containing Google employees’ conversations about strategies 12 for employee retention be sealed. 21 The privacy interests of third parties outweigh the limited 13 public interest in their information that accompanies a non-dispositive motion. 22 As to the emails, 14 the court notes that Judge Koh already has determined that “compensation and recruiting strategies, 15 16 17 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 18 19 20 21 22 23 19 See, e.g., Miguel Helft, “Bill Campbell on Coaching RockMelt and Google vs. Apple,” New York Times, Nov. 8, 2010 (available at; Robert Hof, “Tech Startup Secrets of Bill Campbell, Coach of Silicon Valley,” Forbes, July 27, 2011 (available at 20 See Docket No. 313 Exs. 2, 3. 25 21 See Docket No. 313. 26 22 24 27 See Nettles v. Farmers Ins. Exch., Case No. C06-5164, 2007 WL 858060, at *2, (W.D. Wash. Mar. 16, 2007). 23 28 See Docket No. 273. 4 Case No.: 11-2509 LHK (PSG) ORDER 1 policies could cause competitive harm. Google’s requests to seal Exhibits E, K, L, and M in their 2 entirety and to redact Exhibits D and J and portions of Plaintiffs’ motion are GRANTED. 3 IT IS SO ORDERED. 4 Dated: February 28, 2013 5 6 _________________________________ PAUL S. GREWAL United States Magistrate Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No.: 11-2509 LHK (PSG) ORDER

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