In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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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)
(rhodesmg@cooley.com)
MATTHEW D. BROWN (196972)
(brownmd@cooley.com)
KYLE C. WONG (224021)
(kwong@cooley.com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
(415) 693-2000
Facsimile:
(415) 693-2222
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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
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