In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
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RESPONSE (re #92 Administrative Motion to File Under Seal PORTIONS OF SECOND AMENDED CONSOLIDATED COMPLAINT UNDER SEAL CORRECTION OF DOCKET #90 , #90 Administrative Motion to File Under Seal ) filed by Facebook 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)(Gutkin, Jeffrey) (Filed on 12/4/2015) Modified on 12/7/2015 (cv, COURT STAFF).
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COOLEY LLP
MICHAEL G. RHODES (116127)
(rhodesmg@cooley.com)
MATTHEW D. BROWN (196972)
(brownmd@cooley.com)
JEFFREY M. GUTKIN (216083)
(jgutkin@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
124812649
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
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Second Amended Consolidated Complaint Under Seal, filed on November 30, 2015 (Dkt. No. 90)
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and Plaintiffs’ Corrected Administrative Motion to File Portions of Second Amended
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Consolidated Complaint Under Seal, filed on December 1, 2015 (Dkt. No. 92) (together,
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“Plaintiffs’ Administrative Motion”).1
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Plaintiffs’ Administrative Motion seeks to seal various documents submitted in
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connection with their Second Amended Consolidated Class Action Complaint (Dkt. No. 91) and
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Corrected Second Amended Consolidated Class Action Complaint (Dkt. No. 93) (together,
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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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There were no changes between the original and corrected versions of Plaintiffs’ Administrative
Motion material to Facebook’s response.
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO
124812649
1.
FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD
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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
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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 M through Y and AA to the
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Amended Complaint) and Exhibit 3 (the Amended Complaint) to the Declaration of David A.
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Straite in Support of Plaintiffs’ Administrative Motion and Corrected Declaration of David A.
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Straite in Support of Plaintiffs’ Administrative Motion (together, “Straite Declaration”) contain
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Facebook’s Highly Confidential information. (Naugle Decl. ¶¶ 2-6.) Compelling reasons exist to
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seal Facebook’s Highly Confidential information in the Amended Complaint and in Exhibits M
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through Q, S through Y, and AA thereto because, for the reasons set forth in the Naugle
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Declaration, Facebook would suffer competitive harm if this information were publicly disclosed.
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See In re Google Inc., 2013 WL 5366963, at *2-3 (granting motion to seal documents filed with
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complaint describing how company’s technology operates); Elec. Arts, 298 F. App’x at 569-70.
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Finally, Facebook submits that Exhibit R to the Amended Complaint (part of Exhibit 2 to
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the Straite Declaration) does not contain sealable information and Plaintiffs’ Administrative
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Motion should be denied with respect to that exhibit. (Naugle Decl. ¶ 7.)
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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
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO
124812649
2.
FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD
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Highly Confidential information, the public disclosure of which would cause competitive harm to
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Facebook, as limited herein.
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Dated: December 4, 2015
COOLEY LLP
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/s/ Jeffrey M. Gutkin
Jeffrey M. Gutkin
Attorneys for Defendant Facebook, Inc.
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO
124812649
3.
FACEBOOK, INC.’S RESPONSE TO
MOTION TO SEAL
CASE NO. 12-MD-02314 EJD
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