In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 106

RESPONSE (re #104 Administrative Motion to File Under Seal ) to Plaintiffs' Administrative Motion to File Under Seal filed byFacebook Inc.. (Attachments: #1 Declaration of Natalie Naugle in Support of Defendant Facebook, Inc.'s Response to Plaintiffs' Administrative Motion to File Under Seal, #2 Proposed Order Granting in Part Plaintiffs' Administrative Motion to File Under Seal)(Brown, Matthew) (Filed on 2/22/2016)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
JEFFREY M. GUTKIN (216083)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
101 California Street
5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
FACEBOOK, 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: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD

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DEFENDANT FACEBOOK, INC.’S RESPONSE
TO PLAINTIFFS’ ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

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DATE:
TIME:
COURTROOM:
JUDGE:

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April 28, 2016
9:00 a.m.
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Hon. Edward J. Davila

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Pursuant to Civil Local Rules 7-11 and 79-5, Defendant Facebook, Inc. (“Facebook”)

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submits this response (“Response”) to Plaintiffs’ Administrative Motion to File Portions of their

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Memorandum of Points and Authorities in Opposition to Facebook’s Motion to Dismiss Under Seal

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(“Administrative Motion”), filed on February 18, 2016 (Dkt. No. 104).

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Plaintiffs’ Administrative Motion seeks to seal portions of their Memorandum of Points and

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Authorities in Opposition to Facebook’s Motion to Dismiss (“Opposition”) (Dkt. No. 105) that

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contain information that has been designated “Highly Confidential” by Facebook pursuant to the

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terms of the parties’ Stipulated Protective Order for Litigation Involving Confidential Information

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’
ADMIN MOTION TO FILE UNDER SEAL
CASE NO. 5:12-MD-02314 EJD

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and Trade Secrets entered by the Court on April 11, 2014 (Dkt. No. 75) (“Protective Order”). As set

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forth below, Facebook confirms the confidentiality of certain documents included in Plaintiffs’

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Administrative Motion.

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Pursuant to Civil Local Rule 79-5(e), Facebook’s Response is supported by the Declaration
of Natalie Naugle (“Naugle Declaration”), filed herewith.

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A.

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The Ninth Circuit has recognized that the public’s “access to judicial records is not absolute.”

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Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). In defining this right,

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the Ninth Circuit has applied a “compelling reasons” test for sealing information in a motion that is

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“more than tangentially related to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC,

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809 F.3d 1092, 1098-1101 (9th Cir. 2016). Accordingly, Facebook seeks to redact only information

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it has compelling reasons to protect from public disclosure.

Legal Standard

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Courts find compelling reasons to seal information where “court files might have become a

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vehicle for improper purposes, such as the use of records to . . . release trade secrets.” In re Elec.

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Arts, 298 F. App’x 568, 569-70 (9th Cir. 2008) (citation omitted). The Ninth Circuit has adopted the

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Restatement’s definition of “trade secret” for purposes of sealing, such that a “trade secret may

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consist of any formula, pattern, device or compilation of information which is used in one’s business,

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and which gives him an opportunity to obtain an advantage over competitors who do not know or

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use it.” Id. (quoting Restatement of Torts § 757, cmt. b). Compelling reasons may also exist if

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sealing is required to prevent judicial documents from being used “as sources of business

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information that might harm a litigant’s competitive standing.”

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Commc’ns, Inc., 435 U.S. 589, 598 (1978)).

Id.

(citing Nixon v. Warner

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B.

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Plaintiffs ask the Court to seal portions of Plaintiffs’ Opposition containing Facebook’s

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confidential, proprietary, non-public information and designated “Highly Confidential” by Facebook

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pursuant to the terms of the parties’ Stipulated Protective Order.

Sealing of Documents Containing Facebook’s Highly Confidential Information.

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Facebook confirms that Exhibit 2 (the Opposition) to the Declaration of David A. Straite in

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Support of Plaintiffs’ Administrative Motion contains Facebook’s Highly Confidential information.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’
ADMIN MOTION TO FILE UNDER SEAL
CASE NO. 5:12-MD-02314 EJD

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(Naugle Decl. ¶ 2.) Compelling reasons exist to seal Facebook’s Highly Confidential information in

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the Opposition.

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competitive harm if this information were publicly disclosed. See In re Google Inc. Gmail Litig., No.

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13-MD-02430-LHK, 2013 WL 5366963, at *2-3 (N.D. Cal. Sept. 25, 2013) (granting motion to seal

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documents filed with complaint describing how company’s technology operates); Elec. Arts, 298

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F. App’x at 569-70. Unlike the information in Dunbar v. Google, Inc., the information that Plaintiffs

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have moved to be sealed is not known to the public and is not available in other public sources.

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No. 5:12-cv-003305-LHK, 2012 WL 6202719, at *4 (N.D. Cal. Dec. 12, 2012). For all of the

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reasons set forth herein and in the Naugle Declaration, Facebook respectfully requests that the Court

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grant Plaintiffs’ Administrative Motion as to Facebook’s Highly Confidential information, the public

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disclosure of which would cause competitive harm to Facebook, as limited herein.

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For the reasons set forth in the Naugle Declaration, Facebook would suffer

As explained in the Naugle Declaration, Facebook does not seek to seal all of the information
that Plaintiffs move to seal in their Administrative Motion.

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Dated: February 22, 2016

COOLEY LLP

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/s/ Matthew D. Brown
Matthew D. Brown (196972)
Attorneys for Defendant
FACEBOOK, INC.

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127970186

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEBOOK, INC.’S RESPONSE TO PLAINTIFFS’
ADMIN MOTION TO FILE UNDER SEAL
CASE NO. 5:12-MD-02314 EJD