In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 94

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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1 7 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 8 Attorneys for Defendant FACEBOOK, INC. 2 3 4 5 6 9 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 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 16 17 18 JUDGE: COURTROOM: TRIAL DATE: 19 Edward J. Davila 4 Not Yet Set 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 124812649 FACEBOOK, INC.’S RESPONSE TO MOTION TO SEAL CASE NO. 12-MD-02314 EJD 1 Pursuant to Civil Local Rules 7-11 and 79-5, Defendant Facebook, Inc. (“Facebook”) 2 submits this response (“Response”) to Plaintiffs’ Administrative Motion to File Portions of 3 Second Amended Consolidated Complaint Under Seal, filed on November 30, 2015 (Dkt. No. 90) 4 and Plaintiffs’ Corrected Administrative Motion to File Portions of Second Amended 5 Consolidated Complaint Under Seal, filed on December 1, 2015 (Dkt. No. 92) (together, 6 “Plaintiffs’ Administrative Motion”).1 7 Plaintiffs’ Administrative Motion seeks to seal various documents submitted in 8 connection with their Second Amended Consolidated Class Action Complaint (Dkt. No. 91) and 9 Corrected Second Amended Consolidated Class Action Complaint (Dkt. No. 93) (together, 10 “Amended Complaint”) and portions of the Amended Complaint itself that contain information 11 that has been designated “Highly Confidential” by Facebook pursuant to the terms of the parties’ 12 Stipulated Protective Order for Litigation Involving Confidential Information and Trade Secrets 13 entered by the Court on April 11, 2014 (Dkt. 75) (the “Protective Order”). As set forth below, 14 Facebook confirms the confidentiality of certain documents included in Plaintiffs’ Administrative 15 Motion. 16 17 Pursuant to Civil Local Rule 79-5(e), Facebook’s Response is supported by the Declaration of Natalie Naugle (“Naugle Declaration”), filed herewith. 18 A. 19 The Ninth Circuit has recognized that the public’s “access to judicial records is not 20 absolute.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). In 21 defining this right, courts in the Northern District have applied a “compelling reasons” test for 22 sealing information filed in or with a complaint. In re Google Inc. Gmail Litig., No. 13-MD- 23 02430-LHK, 2013 WL 5366963, at *2 (N.D. Cal. Sept. 25, 2013). Accordingly, Facebook seeks 24 to redact only information it has compelling reasons to protect from public disclosure. Legal Standard 25 Courts find compelling reasons to seal information where “court files might have become 26 a vehicle for improper purposes, such as the use of records to . . . release trade secrets.” In re 27 28 1 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 1 Elec. Arts, 298 F. App’x 568, 569-70 (9th Cir. 2008). The Ninth Circuit has adopted the 2 Restatement’s definition of “trade secret” for purposes of sealing, such that a “trade secret may 3 consist of any formula, pattern, device or compilation of information which is used in one’s 4 business, and which gives him an opportunity to obtain an advantage over competitors who do 5 not know or use it.” Id. (quoting Restatement of Torts § 757, cmt. B)). Compelling reasons may 6 also exist if sealing is required “to prevent judicial documents from being used ‘as sources of 7 business information that might harm a litigant’s competitive standing.’” Id. (citing Nixon v. 8 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). 9 B. 10 Sealing of Documents Containing Facebook’s Highly Confidential Information. 11 Plaintiffs ask the Court to seal various documents and portions of the Amended Complaint 12 containing Facebook’s confidential, proprietary, non-public information and designated “Highly 13 Confidential” by Facebook pursuant to the terms of the parties’ Stipulated Protective Order. 14 Facebook confirms that Exhibit 2 (which consists of Exhibits M through Y and AA to the 15 Amended Complaint) and Exhibit 3 (the Amended Complaint) to the Declaration of David A. 16 Straite in Support of Plaintiffs’ Administrative Motion and Corrected Declaration of David A. 17 Straite in Support of Plaintiffs’ Administrative Motion (together, “Straite Declaration”) contain 18 Facebook’s Highly Confidential information. (Naugle Decl. ¶¶ 2-6.) Compelling reasons exist to 19 seal Facebook’s Highly Confidential information in the Amended Complaint and in Exhibits M 20 through Q, S through Y, and AA thereto because, for the reasons set forth in the Naugle 21 Declaration, Facebook would suffer competitive harm if this information were publicly disclosed. 22 See In re Google Inc., 2013 WL 5366963, at *2-3 (granting motion to seal documents filed with 23 complaint describing how company’s technology operates); Elec. Arts, 298 F. App’x at 569-70. 24 Finally, Facebook submits that Exhibit R to the Amended Complaint (part of Exhibit 2 to 25 the Straite Declaration) does not contain sealable information and Plaintiffs’ Administrative 26 Motion should be denied with respect to that exhibit. (Naugle Decl. ¶ 7.) 27 For all of the reasons set forth herein and in the Naugle Declaration, Facebook 28 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 1 Highly Confidential information, the public disclosure of which would cause competitive harm to 2 Facebook, as limited herein. 3 Dated: December 4, 2015 COOLEY LLP 4 5 /s/ Jeffrey M. Gutkin Jeffrey M. Gutkin Attorneys for Defendant Facebook, Inc. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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