Campbell et al v. Facebook Inc.

Filing 127

Administrative Motion to File Under Seal re Plaintiffs' Response to Declaration of Dale Harrison filed by Matthew Campbell, Michael Hurley. (Attachments: # 1 Declaration of Melissa Gardner, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order, # 7 Certificate/Proof of Service)(Gardner, Melissa) (Filed on 10/8/2015)

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,

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Plaintiff,
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Case No. C 13-05996 PJH (MEJ)
PLAINTIFFS’ ADMINISTRATIVE
MOTION TO FILE UNDER SEAL RE
PLAINTIFFS’ RESPONSE TO
DECLARATION OF DALE HARRISON

v.
Judge: Honorable Maria-Elena James

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FACEBOOK, INC.,
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Defendant.
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PLAINTIFFS’ ADMIN. MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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Pursuant to Civil Local Rule 7-11 and 79-5(c) and (d), Plaintiffs respectfully request an

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order from the Court authorizing the filing under seal of (1) designated portions of Plaintiffs’

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Response to Declaration of Dale Harrison on Behalf of Defendant Facebook, Inc. (“Response”),

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and (2) Exhibits 1 and 2 to the Response.

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A complete, unredacted version of the Response is attached as Exhibit A to the

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Declaration of Melissa Gardner (“Gardner Declaration”) submitted herewith, and contains yellow

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highlighting to indicate where redactions are proposed. A redacted version of the Response is

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attached as Exhibit B. Exhibits 1 and 2 to the Response are attached as Exhibits C, and D,

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respectively.

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Plaintiffs propose to redact the following text within the Response because such text

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contains information that Defendant (the designating party) has designated HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY:

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Page

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1

Text
Between “…asserts that only the” and “concerning
the incremental increase…”

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Between “The” and “Plaintiffs seek are
essential…”

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Between “…limit its production to the” and
“associated with the Like counter.”

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Between “…basis for why other” and “beyond
those concerning incrementing the Like counter…”

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Between “Facebook’s declarant states that it” and
“Declaration at ¶ 19.”

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Between “Mr. Harrison further states that he” and
“Id. Put another way”

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Between “…he cannot identify or produce…” and
“This is simply a restatement….”

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Between “…his statements are always conditional:”
and “Declaration at ¶ 19.”

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3

Between “…and the purportedly” and “Plaintiffs
are not asking….”

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3-4

Between “The Declaration does not” and
“Facebook nonetheless...”

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Between “Further, Facebook’s methodology in
identifying” and “Id. at ¶ 19.”

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1276349.1

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PLAINTIFFS’ ADMIN. MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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Text
Between “… Mr. Harrison does not say that” and
“Id. at ¶ 18.”

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Between “identify and produce” and “In contrast
to…”

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Between “Plaintiffs are entitled to receive the
following items of information:” and “Each of the
above-described documents...”

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Between “Each of these documents contains
content related to how…” and “In response,….”

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Between “In response, Facebook contends that ”
and “As Plaintiffs seek injunctive relief...”

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Between “depth and breadth of” and
“Moreover,…”

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Between “Moreover,” and “If other documents
purport...”

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Between “…clear that the content of …” and
“Refusal to produce...”

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Between “…should be produced” and “…created
from private messages.”

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Between “In terms of identifying how” and “Id. at ¶
20.”

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Between “…purpose of each” and “thus far
produced.”

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Between “…allow Plaintiffs to” and “Id. at ¶ 6.”

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Between “Identification of” and “The Declaration
makes reference to...”

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Between “The Declaration makes reference to” and
“Such clarification...”

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Between “…burden from identifying” and “it
should be compelled...”

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3, fn 1

Between “Harrison states that it would be” and the
end of the footnote.

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Page

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Plaintiffs take no position on whether the text designated above satisfies the requirements
for sealing, and specifically reserve the right to challenge any “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” designation under the Amended Stipulated Protective Order, as
well as the sealability of these documents under Civil Local Rule 79-5.
Additionally, Plaintiffs request that the Court seal Exhibits 1 and 2 to the Response
(Gardner Decl., Exs. C-D) because those documents have been designated by Defendant as
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PLAINTIFFS’ ADMIN. MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under the Amended Stipulated

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Protective Order (Dkt. No. 93). Except as stated in the following paragraph, Plaintiffs take no

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position on whether these documents satisfy the requirements for sealing, and specifically reserve

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the right to challenge any “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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designation under the Amended Stipulated Protective Order, or on the sealability of these

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documents under Civil Local Rule 79-5.

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Plaintiffs support the sealing of Exhibits 1 and 2 to the Response (Gardner Decl. Exs. C-

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D) to the extent that these documents contain personally identifiable information related to

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Plaintiffs and/or third parties. Such personal information is entitled to protection under the law,

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and compelling reasons exist to keep it confidential to protect Plaintiffs’ and third parties’ privacy

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interests, and to prevent exposure to harm or identity theft. See e.g., Brewer v. Gen. Nutrition

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Corp., No. 11-3587, 2014 U.S. Dist. LEXIS 159378, *6 (N.D. Cal. Nov. 12, 2014); Nursing

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Home Pension Fund v. Oracle Corp., No. 01-988, 2007 U.S. Dist. LEXIS 84000, *9-10 (N.D.

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Cal. Oct. 31, 2007). The Ninth Circuit has “carved out an exception to the presumption of access

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to judicial records for a sealed discovery document [attached] to a nondispositive motion,” where

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the requesting party shows good cause exists to keep the records under seal. Navarro v. Eskanos

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& Adler, No. 06-2231, 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing

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Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); see also Pintos v.

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Pac. Creditors Assoc., 565 F.3d 1106, 1115 (9th Cir. 2009) (“In light of the weaker public

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interest in nondispositive materials, we apply the ‘good cause’ standard when parties wish to keep

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them under seal.”). As discussed above, Plaintiffs’ and third parties’ privacy interests are

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implicated by the personally identifiable information contained in these documents, and therefore

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Plaintiffs have satisfied the “good cause” standard for sealing the personally identifiable

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information contained within these documents. See Brewer, 2014 U.S. Dist. LEXIS 159378, *6;

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Nursing Home Pension Fund, 2007 U.S. Dist. LEXIS 84000, *9-10.

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Defendant must show good cause for sealing the documents it has placed a confidentiality

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designation upon by submitting a declaration within four days after the lodging of the designated

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documents. See Civil Local Rule 79-5(e).
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PLAINTIFFS’ ADMIN. MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)

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Dated: October 8, 2015

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

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By:
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/s/ Melissa Gardner
Melissa Gardner

Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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CARNEY BATES & PULLIAM, PLLC

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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PLAINTIFFS’ ADMIN. MOTION TO SEAL
CASE NO. 13-CV-05996-PJH (MEJ)