Herskowitz v. Apple, Inc

Filing 201

ORDER by Judge Lucy H. Koh granting in part and denying in part (105) Administrative Motion to File Under Seal; granting in part and denying in part (156) Administrative Motion to File Under Seal; granting in part and denying in part (169) Administrative Motion to File Under Seal; granting (184) Administrative Motion to File Under Seal; granting (189) Administrative Motion to File Under Seal in case 5:12-cv-02131-LHK (lhklc3S, COURT STAFF) (Filed on 8/7/2014)

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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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ROBERT HERSKOWITZ, individually and on )
behalf of all others similarly situated,
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Plaintiff,
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v.
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APPLE, INC.,
)
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Defendant.
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PHOEBE JUEL, individually and on behalf of all)
others similarly situated,
)
)
Plaintiff,
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v.
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APPLE, INC.,
)
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Defendant.
)
)

Case Nos.: 12-CV-02131-LHK
12-CV-03124-LHK
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO
SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED
DOCUMENT

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Pending before the Court are administrative motions to file under seal documents related to
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Plaintiffs’ motion for class certification, as well as Plaintiffs’ Motion to Remove Incorrectly Filed
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Document. ECF Nos. 105, 156, 169, 184, 189. The Court GRANTS IN PART and DENIES IN
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PART the administrative motions to file under seal and GRANTS the Motion to Remove
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Incorrectly Filed Document for the reasons stated below.
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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I.

ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL

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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.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7

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(1978). “Unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in

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favor of access’ is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178

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

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2003)).

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To overcome this strong presumption, a party seeking to seal a judicial record must
articulate “compelling reasons supported by specific factual findings that outweigh the general

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United States District Court
For the Northern District of California

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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

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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’l Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d

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

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

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“good cause” standard to all non-dispositive motions because such motions “are often unrelated, or

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

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

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

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

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The Ninth Circuit has adopted the definition of “trade secrets” set forth in the Restatement of Torts,

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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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

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

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advantage over competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th

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

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

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Id. In addition, the Supreme Court has recognized that sealing may be justified to prevent judicial

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documents from being used “as sources of business information that might harm a litigant’s

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competitive standing.” Nixon, 435 U.S. at 598.

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Even under the “good cause” standard of Rule 26(c), however, a party must make a

United States District Court
For the Northern District of California

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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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The instant sealing motions all relate to Plaintiffs’ Motion for Class Certification. “[T]he

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Ninth Circuit has not yet addressed whether or not, or under what circumstances, a motion for class

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certification is a dispositive motion for purposes of deciding what standard applies on sealing

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motions[,] and . . . courts in this district have reached different conclusions.” Dugan v. Lloyds TSB

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Bank, PLC, No. 12-2549, 2013 WL 1435223 (N.D. Cal. Apr. 9, 2013) (internal quotation marks

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omitted). This Court has noted that “the vast majority of other courts within this circuit” have

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applied the “good cause” standard to class certification motions. See In re High-Tech Emp.

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Antitrust Litig., No. 11-2509, 2013 WL 5486230, at *2 n.1 (N.D. Cal. Sept. 30, 2013).

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Nevertheless, this Court has also stated, “there may be circumstances in which a motion for class

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certification is case dispositive.” Id.

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The Court finds that the class certification motion in this case is likely to be dispositive. As

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the Eleventh Circuit has observed, a motion for class certification may be dispositive if “a denial of

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class status means that the stakes are too low for the named plaintiffs to continue the matter.”

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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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Prado v. Bush, 221 F.3d 1266, 1274 (11th Cir. 2000). Here, the Court has denied class

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certification, see ECF No. 199, and Plaintiffs’ individual damages claims are limited to refund

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requests for two song purchases in the amount of $1.29 and $.99. See, e.g., Mot. for Class

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Certification, ECF No. 105-4 at 12. Damages this low strongly suggest that the stakes of this case

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following the Court’s denial of class certification are now “too low for the named plaintiffs to

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continue the matter.” Prado, 221 F.3d at 1274. Accordingly, the Court concludes that the

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“compelling reasons” standard should apply.1 With this standard in mind, the Court rules as

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follows:

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Sealing Motion
(ECF No.)
105

United States District Court
For the Northern District of California

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Document

Result

Declaration of Judd B.
Grossman in Support of
Plaintiffs’ Motion for Class
Certification (“Grossman
Decl.”) Ex. 1
Grossman Decl. Ex. 2
Grossman Decl. Ex. 3
Grossman Decl. Ex. 5
Grossman Decl. Ex. 6
Grossman Decl. Ex. 7
Grossman Decl. Ex. 8

GRANTED as to redactions contained in
ECF No. 130-11.

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Grossman Decl. Ex. 9
Grossman Decl. Ex. 10

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GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 130 ¶ 14.
GRANTED
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 130 ¶ 14.

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The Court further observes that the Ninth Circuit has stated that whether a motion is dispositive
or non-dispositive does not hinge solely on how the motion is formally classified. For instance, in
In re Midland Nat. Life Ins., 686 F.3d at 1119, the Ninth Circuit applied the “compelling reasons”
standard to a Daubert motion, which is not ordinarily considered dispositive. The Ninth Circuit
stated, “[t]hat the records are connected to a Daubert motion does not, on its own, conclusively
resolve the issue. In some cases, such as this one, a Daubert motion connected to a pending
summary judgment motion may be effectively dispositive of a motion for summary judgment.” Id.
(emphasis added and internal quotation marks omitted); see also Apple Inc. v. Samsung Electronics
Co., Ltd., 727 F.3d 1214, 1222 (Fed. Cir. 2013) (citing Midland and stating that “[t]here may be
exceptions to the Ninth Circuit’s general rule that the ‘good cause’ standard applies to documents
attached to motions that are nominally non-dispositive.”); Keirsey v. eBay, Inc., No. 12-1200, 2013
WL 5609318, at *2 (N.D. Cal. Oct. 11, 2013) (“[A] motion seeking the Court’s preliminary
approval of the settlement of the case may be effectively dispositive. While the Court has not
identified any authority discussing the appropriate standard for a motion of this type, the Court
concludes that the ‘compelling reasons’ standard is the appropriate standard.”).
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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Grossman Decl. Ex. 11
Grossman Decl. Ex. 12
Grossman Decl. Ex. 13

GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-3.
GRANTED
GRANTED
GRANTED
GRANTED
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 130 ¶ 14.
GRANTED
GRANTED as to redactions contained in
ECF No. 130-6
GRANTED
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 130 ¶ 14.
GRANTED
GRANTED
GRANTED
GRANTED
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 130 ¶ 14.
GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-13
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-14
GRANTED as to redactions contained in
ECF No. 130-15
GRANTED as to redactions contained in
ECF No. 130-16
GRANTED as to redactions contained in
ECF No. 130-17
GRANTED as to redactions contained in
ECF No. 130-18
GRANTED as to redactions contained in
ECF No. 130-7

Grossman Decl. Ex. 14
Grossman Decl. Ex. 15
Grossman Decl. Ex. 16
Grossman Decl. Ex. 17
Grossman Decl. Ex. 18

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Grossman Decl. Ex. 19
Grossman Decl. Ex. 20
Grossman Decl. Ex. 21
Grossman Decl. Ex. 22

United States District Court
For the Northern District of California

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Grossman Decl. Ex. 23
Grossman Decl. Ex. 24
Grossman Decl. Ex. 25
Grossman Decl. Ex. 26
Grossman Decl. Ex. 27

Grossman Decl. Ex. 28
Grossman Decl. Ex. 29
Grossman Decl. Ex. 30
Grossman Decl. Ex. 31
Grossman Decl. Ex. 32
Grossman Decl. Ex. 33
Grossman Decl. Ex. 34
Grossman Decl. Ex. 35
Grossman Decl. Ex. 36

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Grossman Decl. Ex. 37

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Grossman Decl. Ex. 38

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Grossman Decl. Ex. 39
Grossman Decl. Ex. 40

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Grossman Decl. Ex. 41
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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Grossman Decl. Ex. 42

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Grossman Decl. Ex. 43

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Grossman Decl. Ex. 44
Grossman Decl. Ex. 45

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Grossman Decl. Ex. 46

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Grossman Decl. Ex. 47
Grossman Decl. Ex. 48
Grossman Decl. Ex. 49
Grossman Decl. Ex. 50

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United States District Court
For the Northern District of California

GRANTED as to redactions contained in
ECF No. 130-8
GRANTED as to redactions contained in
ECF No. 130-9
GRANTED
GRANTED as to redactions contained in
ECF No. 130-19
GRANTED as to redactions contained in
ECF No. 130-20
GRANTED
GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-10
GRANTED
GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-21
GRANTED as to redactions contained in
ECF No. 130-22
GRANTED as to redactions contained in
ECF No. 130-23
GRANTED as to redactions contained in
ECF No. 130-24
GRANTED as to redactions contained in
ECF No. 130-25
GRANTED as to redactions contained in
ECF No. 130-26
GRANTED as to redactions contained in
ECF No. 130-27
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED
GRANTED as to redactions contained in
ECF No. 130-29
GRANTED as to pp. 5:4-12; 6:5-19; 6:2426; 7:1-2; 7:9; 7:13-14; 8:15-16; 14:1; and
nn. 1, 15, 19. The Motion to Seal is also
GRANTED as to the description of Exhibit
51 in footnote 21.

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Grossman Decl. Ex. 51
Grossman Decl. Ex. 52
Grossman Decl. Ex. 53
Grossman Decl. Ex. 54

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Grossman Decl. Ex. 55

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Grossman Decl. Ex. 56

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Grossman Decl. Ex. 57

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Grossman Decl. Ex. 58

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Grossman Decl. Ex. 59
Grossman Decl. Ex. 60
Grossman Decl. Ex. 61
Grossman Decl. Ex. 62
Grossman Decl. Ex. 63
Grossman Decl. Ex. 64
Grossman Decl. Ex. 65
Grossman Decl. Ex. 66
Grossman Decl.

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Plaintiffs’ Motion for Class
Certification

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DENIED as to 1:22-23; 4:17-19; 5:18-20;
6:20-23; 7:10-11; 7:15-16; 8:1-2; 8:10-14;
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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United States District Court
For the Northern District of California

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9:8-20; 10:5-23; 11:2-12; 12:20-24; 14:5-7;
14:11-17; 21:6-8; and nn. 17, 18, 22, 37, 80,
81. The Motion to Seal is also DENIED as
to the description of Exhibit 52 in footnote
21.
Declaration of Larry Phillips in GRANTED
Support of Apple’s Opposition
to Class Certification (“Phillips
Decl.”) Ex. 3
Phillips Decl. Ex. 4
GRANTED
Phillips Decl. Ex. 5
GRANTED
Phillips Decl. Ex. 6
GRANTED
Phillips Decl. Exs. 7-32
GRANTED
Phillips Decl. ¶¶ 6-10, 11-12,
GRANTED
19, 28-31, 37, ¶ 46
Declaration of Christopher
GRANTED
Wysocki in Support of Apple’s
Opposition to Class
Certification (Wysocki Decl.”)
¶¶ 3-5
Declaration of Winston Krone GRANTED
in Support of Apple’s
Opposition to Class
Certification (“Krone Decl.”)
¶ 66
Krone Decl. ¶¶ 5, 7, 10, 13-27, DENIED
32, 34-37, 40-41, 43-45, 51-52,
57-65, 68-71, 74-75
Declaration of Kishore
GRANTED as to paragraphs 12 and 14 and
Karkera in Support of Apple’s note 2; DENIED as to paragraphs 8 and 11.
Opposition to Class
Certification (“Karkera Decl.”)
¶¶ 8, 11, 12, 14 & n.2
Declaration of Roozbeh
GRANTED as to Exhibit 1; DENIED as to
Ghaffari in Support of Apple’s paragraphs 9, 13, and 14
Opposition to Class
Certification (“Ghaffari
Decl.”) ¶¶ 9, 13-14; Ex. 1
Declaration of Suzanna
DENIED
Brickman in Support of
Apple’s Opposition to Class
Certification (“Brickman
Decl.”) Exs. 2, 5
Brickman Decl. Ex. 4
DENIED
Apple’s Opposition to Class
GRANTED as to pp. 5:19-24; and nn. 8, 9.
Certification
DENIED as to pp. i:18-19; 2:5; 2:21-24;
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

4:25-28; 5:7-8; 5:13-14; 6:18-20; 8:11-14;
10:9; 11:7; 11:9-10; 11:11-14; 11:16; 12:69; 12:10-12; 12:13-16; 13:7-11; 13:21-22;
14:2-4; 17:21-23; 18:17-19; 21:17-18; 23:12 and nn. 3, 5, 7, 10, 11, 12, 13, 18, 21.
GRANTED

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United States District Court
For the Northern District of California

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Declaration of Judd B.
Grossman in Support of
Plaintiffs’ Reply in Support of
Class Certification (“Grossman
Reply Decl.”) Ex. A
Grossman Reply Decl. Ex. B
GRANTED
Grossman Reply Decl. Ex. C
DENIED. Apple’s request to seal the
entirety of the Deposition of Colin Meldrum
is substantially overbroad.
Grossman Reply Decl. Ex. D
GRANTED as to redactions contained in
ECF No. 177-4
Grossman Reply Decl. Ex. E
GRANTED as to redactions contained in
ECF No. 177-6
Grossman Reply Decl. Ex. F
DENIED
Grossman Reply Decl. Ex. G
GRANTED as to redactions contained in
ECF No. 177-8
Grossman Reply Decl. Ex. H
GRANTED as to redactions contained in
ECF No. 177-10
Grossman Reply Decl. Ex. I
GRANTED as to redactions contained in
ECF No. 177-12
Grossman Reply Decl. Ex. J
GRANTED as to redactions contained in
ECF No. 177-14
Grossman Reply Decl. Ex. K
DENIED. Apple’s request to seal the
entirety of the Deposition of Kishore
Karkera is substantially overbroad.
Grossman Reply Decl. Ex. L
GRANTED as to redactions contained in
ECF No. 177-16
Grossman Reply Decl. Ex. M
GRANTED as to redactions contained in
ECF No. 177-18
Grossman Reply Decl. Ex. N
GRANTED as to redactions contained in
ECF No. 177-2
Grossman Reply Decl. Ex. O
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 177 ¶ 15.
Grossman Reply Decl. Ex. R
GRANTED
Grossman Reply Decl. Ex. S
DENIED
Grossman Reply Decl. Ex. T
GRANTED as to redactions contained in
ECF No. 177-20
Grossman Reply Decl. Ex. U
DENIED AS MOOT, as Apple has
withdrawn the confidentiality designation
for this document. ECF No. 177 ¶ 15.
Grossman Reply Decl.
GRANTED as to redactions contained in
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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT

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Plaintiffs’ Reply in Support of
Class Certification

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DENIED as to pp. 2:1; 2:9; 2:18-20; 3:1;
3:16-20; 3:24-25; 4:4-8; 4:12-19; 4:22-23;
6:8; 6:11-21; 7:1-6; 7:11-14; 11:5-6; 11:810; 12:6-7; 13:1-3; 13:19-20; 14:1; and nn.
4, 5, 9, 14, 15, 16, 17, 18, 33.
GRANTED

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184

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189

United States District Court
For the Northern District of California

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II.

ECF No. 177-24
GRANTED as pp. 1:4-5; 1:18-19 and nn.
20, 31.

Declaration of Frank A.
Bartela in Support of
Plaintiffs’ Opposition to
Apple’s Motion for Leave to
File Surreply Declaration, Ex.
A
Plaintiffs’ Opposition to
GRANTED
Apple’s Motion for Leave to
File Surreply Declaration, page
2:6-10

MOTION TO REMOVE INCORRECTLY FILED DOCUMENT

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Also pending is Plaintiffs’ Motion to Remove Incorrectly Filed Document. ECF No. 189.

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This Motion results from an error in redactions in the filing process, and the document subject to

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this Motion has been locked by the Clerk. The Motion is unopposed. Accordingly, the Court

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GRANTS the Motions to Remove Incorrectly Filed Document.

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III.

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CONCLUSION
For the foregoing reasons, the administrative motions to seal are GRANTED IN PART and

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DENIED IN PART. This denial is WITH PREJUDICE, except as to Apple’s requests to seal the

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depositions of Colin Meldrum and Kishore Karkera, which are Grossman Reply Declaration

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Exhibits C and K, which are denied WITHOUT PREJUDICE. Apple may file an amended motion

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to seal these two exhibits within seven days of this Order. The Motion to Remove Incorrectly Filed

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Document is GRANTED.

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IT IS SO ORDERED.

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Dated: August 7, 2014

________________________________
LUCY H. KOH
United States District Judge

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Case Nos.: 12-CV-02131-LHK; 12-CV-03124-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL; GRANTING MOTION TO
REMOVE INCORRECTLY FILED DOCUMENT