In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 156

Administrative Motion to File Under Seal Portions of the Third Amended Consolidated Complaint filed by Perrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Attachments: #1 Declaration of David A. Straite, #2 Proposed Order, #3 Exhibit 1 (Redacted Version of Complaint), #4 Exhibit 2 (Sealed Exhibits), #5 Exhibit 3 (Redacted Version of Exhibits), #6 Exhibit 4 (Sealed Complaint), #7 Certificate/Proof of Service)(Straite, David) (Filed on 8/25/2017)

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1 2 3 4 5 6 7 8 9 10 11 12 13 Frederic S. Fox (admitted pro hac vice) David A. Straite (admitted pro hac vice) KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Tel.: (212) 687-1980 Fax: (212) 687-7714 dstraite@kaplanfox.com Stephen G. Grygiel (admitted pro hac vice) SILVERMAN THOMPSON SLUTKIN WHITE LLC 201 N. Charles Street, 26th Floor Baltimore, MD 21201 Tel.: (410) 385-2225 Fax: (410) 547-2432 sgrygiel@mdattorney.com Laurence D. King (206423) Mario Choi (243409) KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, 4th Floor San Francisco, CA 94104 Tel.: (415) 772-4700 Fax: (415) 772-4707 lking@kaplanfox.com UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 14 15 16 No. 5:12-md-02314-EJD IN RE: FACEBOOK, INC. INTERNET TRACKING LITIGATION 18 PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE PORTIONS OF THIRD AMENDED CONSOLIDATED COMPLAINT UNDER SEAL 19 N.D. Cal. L.R. 7-11 and 79-5 17 20 21 22 Judge: The Honorable Edward J. Davila Ctrm: 4, 5th Floor Date: n/a Time: n/a 23 24 25 26 27 28 PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE THIRD AMENDED COMPLAINT UNDER SEAL No. 5:12-md-02314-EJD 1 I. INTRODUCTION 2 Pursuant to Civil Local Rules 7-11 and 79-5(e), Plaintiffs Perrin Davis, Cynthia Quinn, Matthew 3 Vickery, and Brian Lentz (the “Plaintiffs”) respectfully submit this administrative motion to file portions 4 of the Third Amended Consolidated Class Action Complaint (the “TAC” or “Amended Complaint”) 5 under seal. Plaintiffs are lodging the TAC under seal because it contains quotes from (or references to) 6 (1) documents which this Court has previously sealed in its Order Granting Plaintiffs’ Administrative 7 Motion to File Portions of Second Amended Consolidated Complaint Under Seal (the “Sealing Order”) 8 [ECF No. 150]; and (2) additional documents produced in discovery that Defendant Facebook Inc. has 9 designated as “Highly Confidential” pursuant to the Stipulated Protective Order entered by Magistrate 10 Judge Paul S. Grewal in this matter on April 11, 2014 (the “Protective Order”) [ECF No. 75]. 11 Pursuant to Civil Local Rule 79-5(d)(1), accompanying this motion is a Declaration of David A. 12 Straite (1) identifying the portions of the Amended Complaint (and attachments thereto) that are the 13 subject of this sealing motion; (2) providing 15 documents sought to be sealed which accompany the 14 Amended Complaint; (3) providing redacted versions of the documents sought to be sealed; (4) providing 15 an unredacted version of the Amended Complaint highlighting the text that reflects discovery material 16 designated by Facebook as “Confidential” or “Highly Confidential;” and (5) providing a redacted version 17 of the Amended Complaint. 18 II. DISCUSSION 19 Public policy favors public access to court records. See Kamakana v. City and Cnty. of Honolulu, 20 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 21 1124, 1134-35 (9th Cir. 2003); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) 22 (recognizing “a general right to inspect and copy public records and documents, including judicial records 23 and documents”). Furthermore, “a party seeking to seal a judicial record must articulate justifications for 24 sealing that outweigh the public policies favoring disclosure.” Dunbar v. Google, Inc., No. 5:12-cv- 25 003305-LHK, 2012 WL 6202719, at *1 (N.D. Cal. Dec. 12, 2012). 26 Concurrent with this Motion to Seal, Plaintiffs are filing the Amended Complaint. Several pages 27 of the Amended Complaint reflect materials previously sealed by the Court, as well as other discovery 28 material designated “Confidential” or “Highly Confidential” by Facebook. The Amended Complaint also 1 PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE THIRD AMENDED COMPLAINT UNDER SEAL No. 5:12-md-02314-EJD 1 includes several attachments of internal Facebook documents produced in discovery, and designated 2 “Highly Confidential” by Facebook. To comply with the Sealing Order, the Protective Order, and Civil 3 Local Rule 79-5, Plaintiffs have lodged the Amended Complaint under seal. To the best of Plaintiffs’ 4 knowledge, the redactions to the Amended Complaint are consistent with Facebook’s designations and 5 the Sealing Order. 6 The parties must show that the information is such that the information sought to be kept 7 confidential would provide “the business entity with a financial or competitive advantage when it is kept 8 secret and [would] result[] in financial or competitive harm when it is released to the public.” Ohio Valley 9 Environmental Coalition v. Elk Run Coal Co., Inc., 291 F.R.D. 114, 119 (S.D. W. Va. 2013); see also 10 Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006); Diamond State Ins. Co. v. Rebel Oil 11 Co., Inc., 157 F.R.D. 691, 697 (D. Nev. 1994) (“Confidential commercial information” is “information, 12 which disclosed, would cause substantial economic harm to the competitive position of the entity from 13 whom the information was obtained.”). Plaintiffs take no position as to the designations of confidentiality 14 by Facebook. 15 III. CONCLUSION 16 Plaintiffs have filed this motion in compliance with the Sealing Order, the Protective Order, and 17 Civil Local Rule 79-5 to identify portions of the TAC that Facebook has designated “Confidential” or 18 “Highly Confidential” and to redact the TAC in accordance therewith. 19 /// 20 /// 21 /// 22 23 24 25 26 27 28 2 PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE THIRD AMENDED COMPLAINT UNDER SEAL No. 5:12-md-02314-EJD 1 Respectfully submitted, 2 3 DATED: August 25, 2017 4 5 6 7 8 Laurence D. King (206423) Mario Choi (243409) 350 Sansome Street, 4th Floor San Francisco, CA 94104 Telephone: (415) 772-4700 Fax: (415) 772-4707 lking@kaplanfox.com 9 10 11 12 13 14 KAPLAN, FOX & KILSHEIMER LLP By: /s/ David A. Straite Frederic S. Fox (admitted pro hac vice) David A. Straite (admitted pro hac vice) 850 Third Avenue New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 dstraite@kaplanfox.com DATED: August 25, 2017 15 16 17 18 19 SILVERMAN, THOMPSON, SLUTKIN & WHITE LLC By: /s/ Stephen G. Grygiel Stephen G. Grygiel (admitted pro hac vice) 201 N. Charles St., #2600 Baltimore, MD 21201 Telephone (410) 385-2225 Facsimile: (410) 547-2432 sgrygiel@mdattorney.com Interim Co-Lead Counsel 20 21 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3) 22 I, David A. Straite, attest that concurrence in the filing of this document has been obtained from 23 the other signatory. I declare under penalty of perjury under the laws of the United States of America that 24 the foregoing is true and correct. 25 Executed this 25th day of August, 2017, at New York, New York. 26 /s/ David A. Straite DAVID A. STRAITE 27 28 3 PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE THIRD AMENDED COMPLAINT UNDER SEAL No. 5:12-md-02314-EJD

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