In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 97

REPLY (re #92 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO FILE PORTIONS OF SECOND AMENDED CONSOLIDATED COMPLAINT UNDER SEAL CORRECTION OF DOCKET #90 , #90 Administrative Motion to File Under Seal PLAINTIFFS ADMINISTRATIVE MOTION TO FILE PORTIONS OF SECOND AMENDED CONSOLIDATED COMPLAINT UNDER SEAL ) PLAINTIFFS REPLY TO DEFENDANT FACEBOOK INC.S RESPONSE TO ADMINISTRATIVE MOTION TO FILE UNDER SEAL filed byPerrin Aikens Davis. (Kiesel, Paul) (Filed on 12/8/2015)

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Stephen G. Grygiel (admitted pro hac vice)
SILVERMAN THOMPSON
SLUTKIN WHITE LLC
201 N. Charles Street, 26TH Floor
Baltimore, MD 21201
Tel.: [phone]
Fax: [phone]
[e-mail]

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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.: [phone]
Fax: [phone]
[e-mail]
Laurence D. King (206423)
Mario Choi (243409)
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
[e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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No. 5:12-md-02314-EJD
IN RE: FACEBOOK, INC. INTERNET
TRACKING LITIGATION

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PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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Next Hearing Date: January 14, 2016

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Judge: The Honorable Edward J. Davila

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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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I.

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INTRODUCTION
In September 2011 the public learned that Facebook had been secretly tracking its subscribers’

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web browsing without consent by failing to delete certain cookies upon logout. This privacy class

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action followed. During discovery, class counsel obtained documents shedding important light on this

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practice, and providing additional support for the claims.

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Facebook contends that information about these practices – constituting the basis for this action –

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must remain shrouded in secrecy. Indeed, because Facebook has designated most of the information

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“Highly Confidential,” class counsel cannot even fully inform the named plaintiffs of the full basis for

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their claims. However, it is Facebook’s burden to make the particularized showing of compelling

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reasons to overcome the strong presumption in favor of public access. Facebook has not come close to

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meeting this burden. Facebook’s request to keep the information under seal should be denied.

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II.

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PROCEDURAL HISTORY
Plaintiffs filed their public redacted Second Amended Complaint (the “SAC”) on November 30,

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2015. [ECF No. 93]. Pursuant to Local Rules 7-11 and 79-5, on the same day plaintiffs filed an

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administrative motion to file under seal certain documents attached to the SAC that Facebook had

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designated “Highly Confidential.” [ECF No. 92]. These documents included the full unredacted SAC

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(together, the “Documents”). Plaintiffs filed the Documents under seal to comply with obligations under

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the Stipulated Protective Order dated April 11, 2014 [ECF No. 75] (the “Protective Order”). In the

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sealing motion, plaintiffs took no position regarding the confidentiality of the Documents, waiting to see

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Facebook’s response. Facebook filed a response to the motion to seal on December 4, 2015 in

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accordance with Local Rule 79-5(e)(1) [ECF No. 94] (“Facebook Response”). Having reviewed the

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Facebook Response and justifications for sealing the Documents, plaintiffs file this reply to address

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Facebook’s failure to make the required particularized showing for sealing the Documents.

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III.

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LEGAL STANDARD
Public policy favors public access to court records. See Foltz v. State Farm Mutual Auto

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Insurance Co., 331 F.3d 1124, 1134 (9th Cir. 2003); see also Nixon v. Warner Communications, Inc.,

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435 U.S. 589, 597 (1978) (recognizing a “general right to inspect and copy public records and

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documents, including judicial records and documents.”). “Unless a particular court record is one
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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v.

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City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz, 331 F.3d at 1135). “In

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order to overcome this strong presumption, a party seeking to seal a judicial record must articulate

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justifications for sealing that outweigh the public policies favoring disclosure.” Dunbar v. Google, Inc.,

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No. 5:12-cv-003305-LHK, 2012 WL 6202719, at *1 (N.D. Cal. Dec. 12, 2012); see also Foltz, 331 F.3d

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at 1130 (party seeking to seal records bears the burden).

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When evaluating whether an effort to seal a judicial record overcomes the presumption of public

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access, courts employ either a “good cause” standard or a stricter “compelling reasons” standard. The

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“good cause” standard only applies to non-dispositive motions or other documents that “are often

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unrelated, or only tangentially related, to the underlying cause of action.” Pintos v. Pac. Creditors

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Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). A request to seal information in a complaint, on the other

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hand, is evaluated under the “compelling reasons” standard “because a complaint is the foundation of a

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lawsuit.” In re: Google Inc. Gmail Litig., 13-MD-2430, 2013 WL 5366963 at *2 (N.D. Cal. 2013) (“In

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re: Google Gmail”). Facebook agrees that the stricter “compelling reasons” standard applies here. See

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Facebook Response at 1 (citing In re Google Gmail). Either standard requires a “particularized

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showing” that can “warrant preserving the secrecy of sealed discovery material.” Kamakana, 447 F.3d

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at 1180. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,” are

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insufficient. In re High-Tech, 2013 WL 163799, at *2 (quoting Beckman Industries, Inc. v. Int’l

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Insurance Co., 966 F.2d 470, 476 (9th Cir. 1992)).

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IV.

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ARGUMENT
A.

Facebook Has Failed to Make a Particularized Showing to Warrant the Sealing of
Any of the Documents

Facebook has failed to make any showing – let alone a particularized showing of compelling

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reasons – to justify its conclusory contention that “compelling reasons exist.” See ECF No. 94 at 2.

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Facebook simply refers the Court to an accompanying two-page declaration of Natalie Naugle [ECF No.

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94-1]. The only support for sealing the SAC is set forth in paragraph 2 of the Naugle Declaration, a

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generalized allegation of harm apparently applicable to each and every one of the redactions in the SAC.

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Paragraph 5 applies to eleven different exhibits, and simply refers back to paragraph 2 of the declaration.
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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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Comparison to a request for sealing in an unrelated data privacy case in this district shows why

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Facebook’s generalized “it’s all confidential” approach fails. In Dunbar v. Google, Inc., the predecessor

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to In re: Google Gmail, defendant Google sought to seal portions of three documents (an amended

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complaint and two exhibits). Like Facebook in the case at bar, Google failed to articulate in Dunbar

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how it would be harmed if the information were not sealed. Such lack of specificity was held

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insufficient to satisfy the particularized showing needed to overcome the presumption of public access.

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See Dunbar, 2012 WL 6202719, at *4-6, 7, 8. In fact, Google’s declaration was far more detailed than

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the Facebook declaration (despite describing fewer documents), contending that the documents “include

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information ‘that describes how Google scans for, uses, and stores data in connection with its Gmail

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system, including of the delivery of personalized advertising.’” Id. at *3. Google argued that its

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processes were proprietary and developed by Google “at substantial cost,” and the information could be

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used by competitors to design their own systems and could allow hackers and spammers to gain “insight

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into how the Gmail system works.” Id. Despite these contentions, the Court held that Google had failed

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to explain “how this information could be used by a competitor in developing its own process or by a

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hacker or spammer ‘to circumvent Google’s spam and virus protections.’” Id. at *6.

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At the end of this brief is a side-by-side comparison of the contentions made by Google in

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Dunbar to justify sealing three documents and the contentions made by Facebook to justify sealing 12

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documents. See Attachment A. Google’s contentions were more detailed than Facebook’s contentions,

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yet were still insufficient for sealing because they failed to address how disclosure of the information

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would cause competitive harm. Because Facebook’s “[b]road allegations of harm” are “unsubstantiated

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by specific examples or articulated reasoning,” Beckman, 966 F.2d at 476, Facebook has failed to meet

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its burden of demonstrating compelling reasons.

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B.

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In addition to Facebook failing to demonstrate compelling reasons for sealing the Documents,

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Public Interest Would be Served if the Documents Were Not Sealed

public policy would be served if the Documents were made public, with the exceptions noted below.
1. Additional Proof Regarding Tracking of Logged Out Users
The First Amended Complaint filed in 2012 (“FAC”) alleged that Facebook had been tracking
the internet browsing of users post-logout, based on publicly available information confirming that
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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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Facebook failed to delete certain cookies upon logout. [ECF No. 35]. Discovery has revealed

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substantially more detailed information that form an additional basis for these claims. Class counsel

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were only aware of the new facts from confidential discovery material and therefore redacted them from

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the SAC. See paragraphs 70, 72-77 and 104. Plaintiffs also attached five representative documents

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obtained in discovery to support the new allegations, and filed them under seal as well. See Exhibits S

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through W. In its response, Facebook confirms that these new facts are “confidential.” Facebook is,

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therefore, admitting that the proposed class is not aware of a new basis for the claims.

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2. LU Cookie
The “last user” or “LU” cookie contains the user ID of the last Facebook subscriber to use a

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browser. Only through discovery have class counsel learned additional information about this cookie

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relevant to the claims in this action. The new facts appear in paragraphs 59, 78 and 107 of the SAC, and

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are supported by Exhibits V, Y and AA. In its Response, Facebook confirms that these new facts are

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“confidential.” Again, Facebook is admitting that the public is unaware of these new facts, yet the

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undisclosed nature of these new facts is precisely what the public has a right to know.

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3. Presence Cookie
The Facebook “presence” cookie describes the user’s “chat state.” Through discovery, class

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counsel learned additional information about this cookie relevant to the claims in this action. This new

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information was included in paragraphs 66 and 67 of the SAC, and supported by Exhibit M. In its

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Response, Facebook confirms that these new facts are “confidential,” which is yet another Facebook

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admission that the public is generally unaware of Facebook’s doings. The proposed class and the public

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at large have a right to know these previously undisclosed facts about this cookie.

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4. Facebook’s Knowledge
In the FAC, Lead Plaintiffs alleged that Facebook knowingly failed to delete cookies upon

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logout that could be used to track Internet browsing. This allegation was based on publicly available

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information from independent researcher Nick Cubrilovic who disclosed that he notified Facebook of

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the problem three times over the course of ten months. Discovery has revealed additional facts related

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to this allegation, set forth in paragraphs 4, 103 and 105 of the SAC. In its Response, Facebook

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confirms that these new facts are “confidential.” Again, this is another Facebook admission that the
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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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public is generally unaware of facts related to the core allegations in this action. The proposed class and

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the public at large have a right to know the extent of Facebook’s knowledge of the post-logout tracking.

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5. Percentage of Users Who Log Out When They Leave Facebook

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Paragraph 68 of the SAC cites certain data learned in discovery regarding the percentage of

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Facebook subscribers who affirmatively logged out of their accounts when leaving the website during

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the proposed class period. Paragraph 69 cites to a document providing certain important context for this

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data. Exhibits N, O and P are attached to the SAC to support these allegations. The proposed class and

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the public at large have a right to know these facts.

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6. Communications With (and Identity of) Facebook Partners

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Facebook seeks to seal documents containing conversations with (and disclosing the identify of)

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certain Facebook partners. See Exhibits Q, X and AA, and paragraphs 45, 77 and 107 of the SAC.

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While Facebook has failed to articulate any “compelling reasons” for sealing this information, Plaintiffs

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agree for now, reserving their rights to challenge later, that this information should be sealed.

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7. The Name of an Internal Facebook Database

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In paragraphs 48 and 49, the SAC discloses the internal name of a database maintained by

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Facebook. In its Response, Facebook claims this information is “confidential.” Reserving their rights to

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make a later challenge, Plaintiffs take no position now as to whether this information should be sealed.

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8. Communication with CNET reporter Chris Matyszczyk

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Exhibit R contains an email from a reporter to Facebook at the beginning of the class period.

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Facebook designated it as “highly confidential” in discovery. Plaintiffs filed this document under seal

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and redacted portions of paragraph 71 of the SAC that quote from the email. Facebook has withdrawn

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the designation, see Facebook Response at 2, and does not request sealing of the information.

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V.

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CONCLUSION
Because Facebook has failed to make a particularized showing of compelling reasons to

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overcome the presumption of public access, the Court should deny the sealing motion with the exception

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of the redacted material paragraphs 45 and 77 of the SAC, the name of the Facebook partner in

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paragraph 107 of the SAC, and Exhibits Q and X. Plaintiffs take no position on Facebook’s request to

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seal the name of the database in paragraphs 48 and 49 of the SAC.
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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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Dated: December 8, 2015

KIESEL LAW LLP

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By:
/s/ Paul R. Kiesel
Paul R. Kiesel (SBN 119854)
8648 Wilshire Blvd.
Beverly Hills, CA 90211-2910
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Interim Liaison Counsel

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SILVERMAN, THOMPSON, SLUTKIN &
WHITE LLC

KAPLAN, FOX & KILSHEIMER LLP

By: /s/ Stephen G. Grygiel
Stephen G. Grygiel (admitted pro hac vice)
201 N. Charles St., #2600
Baltimore, MD 21201
Telephone [phone]
Facsimile: [phone]
[e-mail]

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: [phone]
Facsimile: [phone]
[e-mail]

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Interim Co-Lead Counsel

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Laurence D. King (206423)
Mario Choi (243409)
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
[e-mail]

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Interim Co-Lead Counsel

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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

ATTACHMENT A

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COMPARISON OF FACEBOOK SEALING REQUEST
TO GOOGLE SEALING REQUEST

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Google Contentions – Request to Seal
Amended Complaint Plus 2 Exhibits

Facebook Contentions – Request to Seal
Amended Complaint Plus 11 Exhibits

REJECTED BY COURT AS INSUFFICIENT
Declaration of Deepak Jindal
dated Sept. 4, 2012 (ECF No. 209)
Dunbar v. Google, Inc.
12-CV-3305-LHK (N.D. Cal.)

Declaration of Natalie Naugle
dated Dec. 4, 2015 (ECF No. 94-1)
In re Facebook Internet Tracking Litig.
12-MD-2314 (N.D. Cal.)

Paragraph 4:

Paragraph 2:

“the Motion contains information that Google
designated ‘CONFIDENTIAL’ or ‘CONFIDENTIAL –
ATTORNEYS’ EYES ONLY’ because it describes how
Google scans for, uses, and stores data in connection
with its Gmail system, including for the delivery of
personalized advertising. These methods are
proprietary procedures that Google designed and
implemented at substantial cost for its own business
purposes to enable it to deliver benefits to Gmail users
and advertisers. The information reflected in the
Motion reveals confidential information on: (i) the types
of data that Google scans for in connection with emails
sent to and from the Gmail system, (ii) the data
scanned for specifically in connection with the emails
of Cable One users, (iii) when the processes related to
personalized advertisements allegedly occur
in relation to other steps in the email delivery process,
(iv) the types of users and the categories of emails
that these processes are applied to, and (v) how the
data is used. This information is highly confidential and
proprietary. Given its sensitivity, Google guards
against disclosure of this information through a
number of means, including requiring Google
employees to sign nondisclosure agreements as part
of their employment. Public disclosure of this
information would harm Google by, among other
things, giving Google’s competitors an unfair
advantage in designing their own systems by
examining the mechanisms that Google designed for
its own proprietary use. It would also harm Google
users, by, among other things, giving potential hackers
and spammers insight into how the Gmail system
works. Disclosure of this proprietary
and confidential information would therefore cause
significant economic harm to Google, its users, and its

“Plaintiffs’ Amended Complaint contains non-public,
confidential, propriety Facebook business information
that Facebook designated Highly Confidential . . .
Specifically, Plaintiffs’ Amended Complaint (at
paragraphs 4, 45, 48, 49, 59, 66-69, 72-78, 103-105)
includes information regarding Facebook’s internal
discussions regarding Facebook’s use of cookies.
Facebook has spent significant time and resources
developing the operation of its website, including its
use of cookies, which are used to deliver, secure, and
understand products, services and ads, on and off
Facebook’s website. The Amended Complaint
contains information regarding Facebook’s strategic
decisions with respect to how it uses cookies. Public
disclosure of the identified information would cause
competitive harm to Facebook by allowing its
competitors access to sensitive information, which
could be used to gain an unfair advantage against
Facebook.”

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Paragraph 5:
“Exhibits M through P, S through W, Y and AA all
include non-public, confidential, proprietary information
designated as Highly Confidential pursuant to the
Protective Order regarding its use of cookies, as
discussed above in paragraph 2. The public
disclosure of this information would cause competitive
harm to Facebook for the same reasons identified in
paragraph 2.”

No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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advertisers.”
Paragraph 5:

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“Exhibits A, F, G, and I to the Tapley Decl. also
contain documents and information that Google
designated ‘CONFIDENTIAL’ or ‘CONFIDENTIAL –
ATTORNEYS’ EYES ONLY’ under the Protective
Order in this matter. These Exhibits contain
confidential and sensitive business information that
would cause competitive harm to Google and its
business partners if disclosed.”

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Paragraph 6:

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“Exhibit A to the Tapley Decl. is the Proposed Third
Amended Complaint. The Proposed Third Amended
Complaint contains the same types of confidential
information described above in connection with
Plaintiff’s Motion, including (i) the types of data that
Google scans for in connection with emails sent to and
from the Gmail system, (ii) the data scanned for
specifically in connection with the emails of Cable One
users, (iii) when the processes related to personalized
advertisements allegedly occur in relation to other
steps in the email delivery process, (iv) the types of
users and the categories of emails that these
processes are applied to, and (v) how the data is
used.”

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Paragraph 7:

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“Exhibit F is an example of the specific data that
Google scanned for related to certain email messages
in Plaintiff Keith Dunbar’s inbox. This document shows
the specific types of data that Google scans for and
uses in connection with the proprietary processes
described above and further shows how Google stores
that information. The information is generated based
on Google’s internal proprietary processes and is not
publicly available.”

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Paragraph 8:

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“Exhibit G is a schematic illustrating and explaining
Google’s proprietary processes in handling email sent
to Google-powered email accounts (Gmail and email
systems powered by Google Apps). It details Google’s
processes related to identifying ‘spam’ email,
protecting users from viruses, and scanning for data
for use in personalized advertising. Exhibit G and the
information contained therein are not publicly
available. Pursuant to the Protective Order, Google
designated this information ‘CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.’ The information
contained in Exhibit G is highly specific and would

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PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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provide Google’s competitors with substantial insight
into how Google conducts its operations, potentially
allowing them to use Google’s proprietary internal
information to obtain a competitive advantage against
Google. In addition, someone armed with this
proprietary information could potentially use it in an
attempt to circumvent Google’s spam and virus
protections for Gmail users.”

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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL

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CERTIFICATE OF SERVICE

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I hereby certify that on December 8, 2015, I caused the foregoing to be electronically filed with

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the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail

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addresses denoted on the Electronic Mail Notice List, and I hereby certify that I caused the foregoing

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document or paper to be mailed via the United States Postal Service to the non-CM/ECF participants

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indicated on the Manual Notice List.
I certify under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on December 8, 2015.

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DATED: December 8, 2015

Respectfully Submitted,
KIESEL LAW LLP

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By:

/s/ Paul R. Kiesel
Paul R. Kiesel
[e-mail]
8648 Wilshire Boulevard
Beverly Hills, California 90211
Tel.: [phone]
Fax: [phone]

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No. 5:12-md-02314-EJD
PLAINTIFFS’ REPLY TO DEFENDANT
FACEBOOK INC.’S RESPONSE TO
ADMINISTRATIVE MOTION TO SEAL