In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 158

OPPOSITION/RESPONSE (re #156 Administrative Motion to File Under Seal Portions of the Third Amended Consolidated Complaint ) Defendant Facebook, Inc.s Response to Plaintiffs Administrative Motion to File Under Seal filed byFacebook Inc.. (Attachments: #1 Proposed Order, #2 Declaration Naugle Declaration in Support)(Brown, Matthew) (Filed on 8/29/2017)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([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. 12-md-02314 EJD
DEFENDANT FACEBOOK, INC.’S
RESPONSE TO PLAINTIFFS’
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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JUDGE:
COURTROOM:
TRIAL DATE:

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Edward J. Davila
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Not Yet Set

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

149969208

FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD

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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 Third

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Amended Consolidated Complaint Under Seal, filed on August 25, 2017 (Dkt. No. 156-157)

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(“Plaintiffs’ Administrative Motion”).

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Plaintiffs’ Administrative Motion seeks to seal various documents submitted in

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connection with their Third Amended Consolidated Class Action Complaint (Dkt. No. 156-157)

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(“Amended Complaint”) and portions of the Amended Complaint itself that contain information

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that has been designated “Highly Confidential” by Facebook pursuant to the terms of the parties’

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Stipulated Protective Order for Litigation Involving Confidential Information and Trade Secrets

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entered by the Court on April 11, 2014 (Dkt. 75) (the “Protective Order”). As set forth below,

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Facebook confirms the confidentiality of certain documents included in Plaintiffs’ Administrative

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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

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

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defining this right, courts in the Northern District have applied a “compelling reasons” test for

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sealing information filed in or with a complaint. In re Google Inc. Gmail Litig., No. 13-MD-

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02430-LHK, 2013 WL 5366963, at *2 (N.D. Cal. Sept. 25, 2013). Accordingly, Facebook seeks

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to redact only information 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

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

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Elec. Arts, 298 F. App’x 568, 569-70 (9th Cir. 2008). 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

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business, and which gives him an opportunity to obtain an advantage over competitors who do

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not know or use it.” Id. (quoting Restatement of Torts § 757, cmt. B)). Compelling reasons may

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

149969208

1.

FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD

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also exist if sealing is required “to prevent judicial documents from being used ‘as sources of

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business information that might harm a litigant’s competitive standing.’” Id. (citing Nixon v.

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

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B.

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Sealing of Documents Containing Facebook’s Highly Confidential
Information.

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Plaintiffs ask the Court to seal various documents and portions of the Amended Complaint

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containing Facebook’s confidential, proprietary, non-public information and designated “Highly

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Confidential” by Facebook pursuant to the terms of the parties’ Stipulated Protective Order.

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Facebook confirms that Exhibit 2 (which consists of Exhibits U through DD, FF through

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II, and LL to the Amended Complaint) and Exhibit 4 (the Amended Complaint) to the

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Declaration of David A. Straite in Support of Plaintiffs’ Administrative Motion (“Straite

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Declaration”) contain Facebook’s Highly Confidential information.

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Compelling reasons exist to seal Facebook’s Highly Confidential information in the Amended

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Complaint and in Exhibits U through DD, FF through II, and LL thereto because, for the reasons

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set forth in the Naugle Declaration, Facebook would suffer competitive harm if this information

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were publicly disclosed. See In re Google Inc., 2013 WL 5366963, at *2-3 (granting motion to

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

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298 F. App’x at 569-70.

(Naugle Decl. ¶¶ 2-5.)

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The majority of the exhibits sought to be sealed here (Exhibits U through DD) are

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identical to exhibits attached to Plaintiffs’ Second Amended Complaint, for which the Court

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agreed that compelling reasons justified sealing. (See Dkt. No. 150 (granting Plaintiffs’

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Administrative Motion to File Portions of the Second Amended Consolidated Complaint Under

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Seal).)

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For all of the reasons set forth herein and in the Naugle Declaration, Facebook

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respectfully requests that the Court grant Plaintiffs’ Administrative Motion as to Facebook’s

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Highly Confidential information, the public disclosure of which would cause competitive harm to

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Facebook, as stated herein.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

149969208

2.

FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD

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Dated: August 29, 2017

COOLEY LLP

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/s/ Matthew D. Brown
Matthew D. Brown
Attorneys for Defendant Facebook, Inc.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

149969208

3.

FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD