Campbell et al v. Facebook Inc.

Filing 131

ORDER by Judge Maria-Elena James granting in part and denying in part Administrative Motions to File Under Seal 110 , 111 , 121 , 125 , 127 (mejlc2S, COURT STAFF) (Filed on 10/15/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MATTHEW CAMPBELL, et al., Case No. 13-cv-05996-PJH (MEJ) Plaintiffs, 8 ORDER RE: MOTIONS TO SEAL v. Re: Dkt. Nos. 110, 111, 121, 125, 127 9 10 FACEBOOK INC., Defendant. United States District Court Northern District of California 11 12 13 INTRODUCTION 14 Pending before the Court are the parties‟ five Administrative Motions to Seal various 15 documents filed pursuant to Civil Local Rule 79-5 and the Amended Stipulated Protective Order 16 (Dkt. No. 93). Dkt. Nos. 110, 111, 121, 125, 127. The Motions to Seal are associated with three 17 Discovery Letters and their accompanying exhibits and related declarations. See Dkt. Nos. 112, 18 113, 122, 126, 128. Having considered the parties‟ positions, the documents at issue, and the 19 relevant legal authorities, the Court issues the following Order. 20 LEGAL STANDARD 21 In the Ninth Circuit, two different standards govern motions to seal, depending upon the 22 nature of the proceeding in connection with which the documents are submitted. Pintos v. Pac. 23 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010). For many judicial records, the party 24 seeking to seal the record must demonstrate “compelling reasons” that would overcome the 25 public‟s right to view public records and documents, including judicial records. Id. at 678 (citing 26 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). However, a different 27 standard applies to private documents submitted in connection with non-dispositive motions, since 28 such motions are often unrelated or only tangentially related to the merits of the underlying claims. 1 Kamakana, 447 F.3d at 1179-80. Federal Rule of Civil Procedure 26(c)‟s “good cause” standard 2 applies to documents submitted in connection with non-dispositive motions, such as discovery 3 motions. Pintos, 605 F.3d at 678; In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 4 686 F.3d 1115, 1119 (9th Cir. 2012) (“[A] particularized showing of „good cause‟ under Federal 5 Rule of Civil Procedure 26(c) is sufficient to preserve the secrecy of sealed discovery documents 6 attached to non-dispositive motions.”); see also Fed. R. Civ. P. 26(c) (“The court may, for good 7 cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or 8 undue burden or expense[.]”). Additionally, Civil Local Rule 79-5(b) requires a party‟s request to 9 file a document under seal be “narrowly tailored to seek sealing of only sealable material.” DISCUSSION 10 United States District Court Northern District of California 11 As an initial matter, the parties‟ joint discovery letters are non-dispositive motions, and the 12 “good cause” standard therefore applies. See, e.g., Prolific Software, Inc. v. Veeva Sys. Inc., 2014 13 WL 2527148, at *3 (N.D. Cal. June 4, 2014) (“Because the parties‟ discovery letter is a non- 14 dispositive motion, the „good cause‟ standard applies.”). 15 A. Letter regarding Plaintiffs’ Third Set of Requests for Production 16 Plaintiffs‟ first Motion to Seal (Dkt. No. 110) seeks to protect portions of the Discovery 17 Letter regarding Facebook‟s Responses to Plaintiffs‟ Third Set of Requests for Production (Dkt. 18 No. 112, redacted version of the “RFP Ltr.”). Plaintiffs assert the RFP Letter refers to documents 19 or information that Facebook previously designated as “CONFIDENTIAL” or 20 “CONFIDENTIAL—ATTORNEYS‟ EYES ONLY” pursuant to the Protective Order in this 21 action. See Dkt. No. 110 at 1. Facebook filed a supporting declaration in accordance with Civil 22 Local Rule 79-6(d)(1)(A), stating the RFP Letter “contains non-public, confidential, and 23 proprietary Facebook business information” and that much of the identified “information concerns 24 the processes and functionality of Facebook‟s messages technology and source code that is 25 protectable as a trade secret or otherwise entitled to protection under the law.” Sokol Decl. No. 1 26 at 1-3, Dkt. No. 115. Facebook contends that some information referenced in the letter comes 27 from internal Facebook documents and describes “a Facebook internal discussion of business and 28 engineering decisions regarding Facebook‟s technology that is entitled to protection under the 2 1 2 law.” Id. Having carefully reviewed the information sought to be sealed, the Court finds the 3 following portions contain trade secrets or otherwise protectable information relating to 4 Facebook‟s internal processes and tools that risk particularized harm to Facebook if revealed, and 5 which the public does not at this time have a meaningful interest in obtaining. As such, there is 6 good cause to seal the following portions of the RFP Letter: 7  Alex Himel stated that he” and “In describing that work”; and 8 9 On page 3, the text between “In his June 2015 Declaration, Facebook Engineer  On page 3, the text between “In describing that work, Mr. Himel referenced” and “Such records would be” 10 United States District Court Northern District of California 11 Dkt. No. 110-3 (unredacted version of RFP Letter). Accordingly, the foregoing information shall 12 remain redacted from the RFP Letter. 13 However, the Court finds Facebook has not met its burden to show there is good cause to 14 seal the portions of the parties‟ Joint Discovery Letter listed below. Facebook makes general 15 assertions that “[p]ublic disclosure of this information would cause competitive harm to Facebook 16 by allowing its competitors to access sensitive information, which they could use to gain unfair 17 advantage against Facebook.” Sokol Decl. No. 1 at 1-3. But unlike the information above, 18 Facebook has not shown how the following content, if revealed, is sensitive information or how 19 such information could actually be used by competitors to harm Facebook: 20  containing” and “(FB000003105)”; 21 22  On page 3, the text between “evidence suggests that this outcome was” and “(RFPs 58, 59)”; 23 24 On page 3, the text between “Indeed, Facebook has published a blog post  On page 3, footnote 4, the text between “a Facebook employee states” and “FB000003335”; 25 26  On page 3, footnote 4, the text between “FB00000699” and “Documents”; 27  On page 3, footnote 4, the text between “Documents discussing this” and “and 28 outcomes thereof”; 3  1 On page 5, footnote 9, the text between “two previously produced documents evidence a” and “or”; and 2  3 On page 5, footnote 9, the text between “or” and “that „[i]ncreasing the Like count‟” (editing in the original). 4 5 Id. Accordingly, the foregoing content shall be unredacted from the RFP Letter. 6 B. 7 Letter regarding Interrogatory No. 8 and Request for Production No. 41 Plaintiffs‟ second Motion seeks to seal (1) portions of the Discovery Letter concerning 8 Plaintiffs‟ Interrogatory No. 8 and RFP 41 (Dkt. No. 113, redacted version of the “Rog/RFP Ltr.”), 9 and (2) an Exhibit accompanying the Rog/RFP Letter (Dkt. No. 113-5, Ex. 1). Dkt. No. 111 at 1. 1. 11 United States District Court Northern District of California 10 Rog/RFP Letter Plaintiffs filed their Administrative Motion to Seal portions of the Rog/RFP Letter because 12 it refers to documents Facebook previously designated as “CONFIDENTIAL” or 13 “CONFIDENTIAL—ATTORNEYS‟ EYES ONLY” pursuant to the Amended Stipulated 14 Protective Order.” Id. Faceboook filed a supporting declaration in accordance with Civil Local 15 Rule 79-6(d)(1)(A), stating the Rog/RFP Letter “contains non-public, confidential, and proprietary 16 Facebook business information” and “references technical information about the processes and 17 functionality of Facebook‟s messages technology that is protectable as a trade secret or otherwise 18 entitled to protection under the law.” Sokol Decl. No. 2 at 1-2, Dkt. No. 116. 19 Having carefully reviewed the information sought to be sealed, the Court finds the 20 following portions contain trade secrets or otherwise protectable information relating to 21 Facebook‟s internal processes and tools that risk particularized harm to Facebook if revealed, and 22 which the public does not at this time have a particular interest in obtaining. As such, there is 23 good cause to seal the following portions of the Rog/RFP Letter: 24  and “Facebook, itself, appears”; 25 26  On page 3, the text between “Facebook, itself, appears to use the document” and “Therefore, this document”; 27 28 On page 3, the text between “As just one example, FB000005827 explains that”  On page 3, footnote 5, the text following “In multiple instances”; 4  1 On page 3, footnote 6, the text between “Additionally, FB000005827 contains several” and “If, as this document suggests”; 2  3 On page 3, footnote 6, the text between “If, as this document suggests” and “Facebook must provide Plaintiffs with this data”; 4  5 On page 4, the text between “In reality, Facebook did not „intercept‟ URLs contained in messages” and “This routine commercial conduct violates no law”; 6  7 On page 4, the text between “Facebook searched for and located 16 of them” and “Facebook also produced other technical information for each message”; and 8  9 On page 4, footnote 9, the text between “Plaintiffs are also in possession of the names of databases storing the” and “which were included in the produced 11 United States District Court Northern District of California 10 documentation.” 12 Dkt. No. 111-3 (unredacted version of Rog/RFP Ltr.). Accordingly, the foregoing information 13 shall remain redacted from the Rog/RFP Letter. 14 2. Exhibit 1 15 Plaintiffs also request the Court seal Exhibit 1 of Exhibit E to the Rog/RFP Letter. Dkt. 16 No. 111 at 1-2. Plaintiffs have designated Exhibit 1 as “HIGHLY CONFIDENTIAL— 17 ATTORNEYS‟ EYES ONLY” and argue “the document contains personally identifiable 18 information related to private messages sent and received by the Plaintiffs and third parties.” Id. at 19 1. Facebook does not challenge the sealing of this information. 20 Exhibit 1 contains a table that provides identifying information about the senders and 21 recipients of 19 private messages. Dkt. No. 111-5, Ex. E. It also lists the time and date of the 22 messages, the URL contained in the message, and the production numbers of those documents. Id. 23 The exposure of such information risks subjecting the persons identified in this document to 24 annoyance, embarrassment, or other significant harm, and the public has no meaningful need to 25 obtain this information at this time. As such, the Court finds there is good cause to seal the 26 information in the columns showing (1) the names and Facebook identifications of the messages‟ 27 senders and recipients, (2) the date and time of the communication, and (3) the URL content of the 28 communication. See Dkt. No. 111-5. The Court does not, however, find there is good cause to 5 1 seal the table‟s headings or the production numbers, as such information does not risk the 2 possibility of releasing identifying information of those named. 3 C. 4 Letter regarding Plaintiffs’ Notice of 30(b)(6) Deposition Plaintiffs‟ third Motion seeks to seal Exhibits A through D to the Discovery Letter 5 concerning Plaintiffs‟ 30(b)(6) Deposition Notice (Dkt. No. 122, redacted version of the “Dep. 6 Ltr.” or “Deposition Letter”), as well as the portions of the Letter that reference those exhibits. 7 Dkt. No. 121 at 1. Exhibits A through D contain documents Facebook designated as “HIGHLY 8 CONFIDENTIAL—ATTORNEYS‟ EYES ONLY.” Id. Facebook filed a supporting declaration 9 in accordance with Civil Local Rule 79-6(d)(1)(A), stating the Deposition Letter and the accompanying Exhibits A through D “contain non-public, confidential, and proprietary Facebook 11 United States District Court Northern District of California 10 business information” and that each Exhibit contains information that “concerns the processes and 12 functionality of Facebooks‟ messages technology that is protectable as a trade secret or otherwise 13 entitled to protection under the law.” Sokol Decl. No. 3 at 1-3, Dkt. No. 124. Facebook contends 14 “[p]ublic disclosure of this information would cause competitive harm to Facebook” and “could 15 also be used by individuals or companies that might seek to compromise the security of 16 Facebook‟s messages technology.” Id. The parties have redacted Exhibits A-D in their entirety. 17 1. Exhibit A 18 Exhibit A is Plaintiffs‟ Notice of Deposition pursuant to Federal Rule of Civil Procedure 19 30(b)(6). Dkt. No. 122-1 (redacted version). Having carefully reviewed the information sought to 20 be sealed, the Court finds that portions of Exhibit A contain potential trade secrets or otherwise 21 protectable information relating to Facebook‟s internal processes and tools that risk particularized 22 harm to Facebook if revealed, and which the public does not at this time have a particular interest 23 in obtaining. As such, there is good cause to seal those portions; however, there are other portions 24 of Exhibit A, listed below, that do not contain information protectable as a trade secret or that 25 could cause any sort of harm to Facebook. These portions simply contain generic information 26 about the Notice and when and how the deposition will take place or describe information both 27 parties have already made public without any interest in sealing that information. To seal the 28 entirety of the document would not comply with Civil Local Rule 79-5(b), which requires a 6 1 2 request to seal be “narrowly tailored to seek sealing of only sealable material.” Accordingly, the following portions of Exhibit A shall be unredacted: 3  All text on the cover page; 4  On page 2, the text in paragraph 1 including “PLEASE TAKE NOTICE” through “the following characterizations”; 5  6 On page 5, the text in paragraph 2 including “The identification of Facebook source code” through “including but not limited to the following characterizations”; 7  8 On page 7, the text in paragraph 3 including “The creation and use of Objects and Associations” through “otherwise related to private messages, including:”; 9  10 On page 7, the text in paragraph 4 including “The identification of all documents United States District Court Northern District of California 11 and ESI” through page 8, paragraph 6, “processes effectuating access to such 12 information”; and  13 On page 8, the text including “The deposition will commence” through “Plaintiffs 14 reserve the right to use the videotape deposition at trial” and the following 15 signature page. 16 Ex. A, Dkt. No. 121-2 (unredacted version). The remainder of Exhibit A shall be sealed. 17 2. Exhibit B 18 Exhibit B to the Deposition Letter contains Facebook‟s Responses and Objections to 19 Plaintiffs‟ Notice of Deposition. Dkt. No. 122-2 (redacted version). Having carefully reviewed 20 the information sought to be sealed, the Court finds that portions of Exhibit B contain potential 21 trade secrets or otherwise protectable information relating to Facebook‟s internal processes and 22 tools that risk particularized harm to Facebook if revealed, and which the public does not at this 23 time have a particular interest in obtaining. As such, there is good cause to seal those portions; 24 however, there are other portions of Exhibit B, listed below, that do not contain information that is 25 protectable as a trade secret or could cause any sort of harm to Facebook. Much of this document 26 again contains generic language responding in general terms to the Deposition Notice and 27 providing no specific details relating to Facebook‟s business or information that could cause it 28 harm. Again, this does not comply with Civil Local Rule 79-5(b)‟s narrow tailoring requirement. 7 Accordingly, the following portions of Exhibit B shall be unredacted: 1 2  All text on the cover page; 3  On page 1, the text including “Pursuant to Rules 26 and 30” through page 3, “including but not limited to the following characterizations”; 4  5 On page 7, the text including “RESPONSES AND OBJECTIONS TO TOPIC NO. 1” through page 8, “including but not limited to the following characterizations:”; 6  7 On page 10, the text including “RESPONSES AND OBJECTIONS TO TOPIC NO. 2:” through page 15, “TOPIC NO. 7:”;1 8  9 On page 15, the text including “RESPONSES AND OBJECTIONS TO DEPOSITION REQUEST NO. 7” through page 16, “Facebook will designate a 11 United States District Court Northern District of California 10 witness to provide testimony regarding”; and  12 Rogers” e-signature. 13 14 On page 16, the text including “DATED” through page 17, with the “Ashley M. Ex. B, Dkt. No. 121-3 (unredacted version). The remainder of Exhibit B shall be sealed. 15 3. Exhibit C 16 Exhibit C to the parties‟ Deposition Letter contains Facebook‟s Responses and Objections 17 to Plaintiffs‟ First Set of Interrogatories. Ex. C, Dkt. No. 122-3 (redacted version). Having 18 carefully reviewed the information sought to be sealed, the Court finds that portions of Exhibit C 19 contain potential trade secrets or otherwise protectable information relating to Facebook‟s internal 20 processes and tools that risk particularized harm to Facebook if revealed, and which the public 21 does not at this time have a particular interest in obtaining. As such, there is good cause to seal 22 those portions; however, there are other portions of Exhibit C, listed below, that do not contain 23 information that is protectable as a trade secret or could cause any sort of harm to Facebook. 24 Again, much of Facebook‟s Responses and Objections in this document use generalized terms that 25 do not reveal any particular information about it or its business practices. Facebook has not shown 26 27 28 1 The Court notes that this portion includes Topic No. 3, which is virtually identical to Plaintiff‟s Interrogatory No. 8. As the parties did not request to seal Interrogatory No. 8, the Court finds no basis for sealing it now. 8 1 how this information may harm it, or why the Court should ignore Civil Local Rule 79-5‟s narrow 2 tailoring requirement. 3 Accordingly, the following portions of Exhibit C shall be unredacted: 4  All text on the cover page; 5  On page 1, the text including “Defendant Facebook, Inc.” through page 3, paragraph 1, “the undefined term, „Social Plugin.‟”; 6  7 On page 3, the text in paragraph 2 including “Facebook objects to Plaintiffs‟ 8 definition” through page 5, paragraph 11, “materials that are not relevant to the 9 claims and defenses in this action”;  10 definition” through page 8, paragraph (D), “Facebook responds as follows:”; United States District Court Northern District of California 11  12 On page 8, the text including “Facebook reserves the right” through page 9, paragraph (E), “Facebook responds as follows:”; 13  14 On page 13, the text including “INTERROGATORY NO. 3” through page 14, “Facebook responds as follows:”; 15  16 On page 17, the text including “INTERROGATORY NO. 4” through page 18, “Facebook responds as follows:”; 17  18 On page 20, the text including “INTERROGATORY NO. 5” through page 21, “Facebook responds as follows”; 19  20 On page 22, the text including “INTERROGATORY NO. 6” through page 23, “Facebook responds as follows”; 21  22 On page 24, the text including “INTERROGATORY NO. 7” through page 25, “Facebook responds as follows”; and 23  24 25 On page 5, the text in paragraph 12 including “12. Facebook objects to Plaintiffs‟ On page 25, the text including “DATED” through the remainder of the document. Ex. C, Dkt. No. 121-4 (unredacted version). The remainder of Exhibit C shall be sealed. 26 4. 27 Exhibit D contains Facebook‟s Supplemental Responses and Objections to Plaintiffs‟ First 28 Exhibit D Set of Interrogatories. Ex. D, Dkt. No. 121-5. Again, having carefully reviewed the information 9 1 sought to be sealed, the Court finds that portions of Exhibit D contain potential trade secrets or 2 otherwise protectable information relating to Facebook‟s internal processes and tools that risk 3 particularized harm to Facebook if revealed, and which the public does not at this time have a 4 particular interest in obtaining. As such, there is good cause to seal those portions; however, there 5 are other portions of Exhibit D, listed below, that do not contain information that is protectable as 6 a trade secret or could cause any sort of harm to Facebook, for the same reasons noted for Exhibits 7 B & C. 8 Accordingly, the following portions of Exhibit D shall be unredacted: 9  All text on the cover page; 10  On page 1, the text including “Defendant Facebook, Inc.” through page 3, paragraph 1, “the undefined term, „Social Plugin.‟”; United States District Court Northern District of California 11 12  On page 3, the text in paragraph 2 including “2. Facebook objects to Plaintiffs‟ 13 definition” through page 5, paragraph 11, “materials that are not relevant to the 14 claims and defenses in this action”; 15  definition” through page 8, paragraph (D), “Facebook responds as follows:”; 16 17      28 On page 25, the text including “SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3” through page 26, “Facebook responds as follows”; 26 27 On page 20, the text including “INTERROGATORY NO. 3” through page 21, “Facebook responds as follows”; 24 25 On page 16, the text including “SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2” through page 17, “Facebook responds as follows”; 22 23 On page 11, the text including “Facebook reserves the right” through page 12, “Facebook responds as follows”; 20 21 On page 9, the text including “SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1” through “Facebook responds as follows”; 18 19 On page 6, the text in paragraph 12 including “12. Facebook objects to Plaintiffs‟  On page 29, the text including “INTERROGATORY NO. 4” through page 30, “Facebook responds as follows”; 10  1 INTERROGATORY NO. 4” through “Facebook responds as follows”; 2  3  5 On page 38, the text including “SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 5” through page 39, “Facebook responds as follows”; 6  7 On page 40, the text including “INTERROGATORY NO. 6” through page 41, “Facebook responds as follows”; 8  9 On page 42, the text including “SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 6” through page 43, “Facebook responds as follows”; 10  11 United States District Court Northern District of California On page 36, the text including “INTERROGATORY NO. 5” through page 37, “Facebook responds as follows”; 4 On page 44, the text including “INTERROGATORY NO. 7” through page 45, “Facebook responds as follows”; 12  13 On page 45, the text including “SUPPLEMENTAL RESPONSE TO INTERROGTORY NO. 7” through page 46, “Facebook responds as follows”; and 14  15 16 On page 33, the text including “SUPPLEMENTAL RESPONSE TO On page 46, the text including “DATED” through the remainder of the document. Ex. D, Dkt. No. 121-5 (unredacted version). The remainder of Exhibit D shall be sealed. 17 5. The Deposition Letter 18 Having reviewed the parties‟ Deposition Letter, and in light of the Court‟s foregoing 19 findings concerning Exhibit C and the other Exhibits, the Court finds the content included in the 20 Deposition Letter shall remain redacted and sealed as Facebook has shown good cause that this 21 information relates to potential trade secrets or other sensitive data and the public has no 22 meaningful interest in this information at this time. 23 D. 24 Harrison Declaration Facebook seeks to seal portions of Dale Harrison‟s Declaration, which it submitted to 25 demonstrate its burden in responding to one of Plaintiffs‟ discovery requests. Mot. to Seal Decl., 26 Dkt. No. 125; see Dkt. No. 126-1 (redacted version of Harrison Decl.). Facebook argues that 27 specific parts of Harrison‟s Declaration “contain information that is privileged, protectable as a 28 trade secret or otherwise entitled to protection under the law . . . and concerns the processes and 11 1 functionality of Facebook‟s messages technology.” Mot. to Seal Decl. at 1. Facebook contends 2 that if this information were to be made public, it could “cause competitive harm to Facebook and 3 compromise the security of Facebook‟s messages technology, causing harm to Facebook and users 4 of Facebook‟s products.” Id. Plaintiffs did not file an opposition to Facebook‟s Motion. 5 Having carefully reviewed Harrison‟s Declaration, the Court finds the following portions 6 contain potential trade secrets or otherwise protectable information which the public has no 7 meaningful information in obtaining at this point. As such, there is good cause to seal the 8 following: 9  and paragraph 6, “which would be responsive to Plaintiffs‟ request”; 10 United States District Court Northern District of California 11 On page 2, the text in paragraph 5 between “The information I extracted included”  On page 3, the text in paragraph 7 between “The Objects identified, extracted, and 12 already produced to Plaintiffs—” and “—are the only Objects created in connection 13 with sharing URLs in messages”; 14  I located”; 15 16       On page 5, the text from the beginning of paragraph 15 up until “Using this process”; 27 28 On page 4, the text in paragraph 14 between “Plaintiffs were unable to provide” and “Without this data, I could not locate the message”; 25 26 On page 4, the text in paragraph 13 between “referred to as” and “was produced to Plaintiffs”; 23 24 On page 4, the text in paragraph 13 between “I was required to write new software code using” and “to find information”; 21 22 On page 3, the text in paragraph 10 between “billions of pieces of data per day” and page 4, paragraph 11, “„Associations‟ refer to relationships”; 19 20 On page 3, the text in paragraph 9 between “in connection with these 16 messages” and “Similarly, I am not aware”; 17 18 On page 3, the text in paragraph 8 between “specifically” and “for the 16 messages  On page 5, the text in paragraph 15 between “referred to as” and “was produced to 12 Plaintiffs”; 1 2  and paragraph 16, “Using this process”; 3 4     United States District Court Northern District of California    19 20 21 On page 7, the text in paragraph 22 between “Plaintiffs have also asked Facebook to produce” and “for the 16 historical messages I extracted”; and 17 18 On page 7, the text in paragraph 21 between “that Facebook has already produced to Plaintiffs” and “This information should help Plaintiffs”; 15 16 On page 7, the text in paragraph 21 between “The” and “documentation that Facebook has already produced”; 13 14 On page 5, the text in paragraph 17 between “referred to as” and “was produced to Plaintiffs”; 11 12 On page 5, the text in paragraph 17 between “in connection with each message” and “This was a message-by-message process”; 9 10 On page 5, the text in paragraph 16 between “referred to as” and “was produced to Plaintiffs”; 7 8 On page 5, the text in paragraph 16 between “relating to the 9 URLs in the 9” and “I understand that this information”; 5 6 On page 5, the text in paragraph 15 between “7 of the 16 messages did not have a”  On page 7, the text in paragraph 22 between “16 historical messages I extracted” and “I declare under penalty of perjury.” Dkt. No. 125-2 (unredacted version of the Harrison Decl.). However, the Court does not find that Facebook has demonstrated good cause for sealing 22 other portions of Harrison‟s Declaration, which it has not shown contain either potential trade 23 secrets or sensitive information that could cause harm to Facebook. In particular, the Court notes 24 Facebook seeks to seal portions of Harrison‟s Declaration which indicate that Facebook‟s source 25 code provides the information Plaintiffs seek. See id. ¶ 20. The Court does not see why it should 26 seal such statements when Facebook itself has repeatedly publicly emphasized the same point. 27 See, e.g., Rog/RFP Ltr. at 5 (arguing that Plaintiffs did not need responses to Interrogatory 8 and 28 RFP 41 as “Facebook already gave Plaintiffs direct access to all the relevant source code” 13 1 (emphasis in original)); Dep. Ltr. at 4-5 (arguing that, having produced the source code, “Plaintiffs 2 thus have had—for many months—all of the data they need”); Dkt. No. 95 at 4 (Joint Discovery 3 Letter re: RFP No. 30) (“Facebook has agreed to make the relevant source code in the U.S. 4 available for Plaintiffs‟ inspection . . .; thus, by their own admission, Plaintiffs now have access to 5 the „black box‟ that shows them how the challenged conduct operated.” (citation omitted)). 6 Accordingly, there is no good cause to seal the following portions of Harrison‟s Declaration, and 7 they shall be unredacted: 8  through paragraph 12, “In my experience”; 9  10 On page 5, the text in paragraph 17 including “after providing the above information, I” through “in connection with each message”; 11 United States District Court Northern District of California On page 4, the text in paragraph 11 including “„Associations‟ refer to relationships”  12 On page 6, the text in paragraph 19 including “If ordered to do so” through “it could take hundreds of man hours”; and 13  14 On page 6, the text in paragraph 20 including “Objects and Associations for each of these messages” through “However, the abstract hypothetical question”. 15 16 Dkt. No. 125-2. 17 E. 18 Plaintiffs’ Response to the Harrison Declaration and Related Exhibits Plaintiffs‟ final Motion seeks to seal portions of their Response to the Harrison Declaration 19 (“Response”), as well as Exhibits 1 and 2 to the Response, as they refer to documents that 20 Facebook has designated “HIGHLY CONFIDENTIAL—ATTORNEYS‟ EYES ONLY.” Mot. to 21 Seal Resp., Dkt. No. 127; see Dkt. No. 128 (redacted version of Pls.‟ Resp.), 128-1 (redacted 22 version of Exhibit 1), 128-2 (redacted version of Exhibit 2). Additionally, Plaintiffs contend that 23 Exhibits 1 and 2 “contain personally identifiable information related to Plaintiffs and/or third 24 parties,” which should be kept “confidential to protect Plaintiffs‟ and third parties‟ privacy 25 interests[] and to prevent exposure to harm or identity theft.” Mot. to Seal Resp. at 3. Facebook 26 filed a supporting declaration pursuant to Civil Local Rule 79-6(d)(1)(A), in which it argues the 27 Response and Exhibits 1 and 2 contain “non-public, confidential, and proprietary Facebook 28 business information,” the public disclosure of which could harm Facebook. Sokol Decl. No. 4, 14 1 ¶¶ 2-5, Dkt. No. 129. Specifically, Exhibits 1 and 2 contain information about “the processes and 2 functionality of Facebook‟s messages technology that is protectable as a trade secret or otherwise 3 entitled to protection under the law.” Id. at ¶¶ 3-4. Facebook further contends that Exhibits 1 and 4 2 contain Facebook User IDs, which “could be used to identify people who use Facebook‟s 5 services.” Id. Plaintiffs‟ Response 6 1. 7 Having carefully reviewed Plaintiffs‟ Response, the Court finds the following portions 8 contain potential trade secrets or otherwise protectable information which the public has no 9 meaningful interest in obtaining at this point. As such, there is good cause to seal following: 10  “associated with the Like counter”; United States District Court Northern District of California 11 12   17 18 19 On page 5, the text between “As discussed previously with the Court” and “contain explanatory text”; 15 16 On page 5, the text between “documents relating to” and “As discussed previously with the Court”; 13 14 On page 1, the text between “Facebook seeks to limit its production to the” and  On page 5, the text between “stating in pertinent part:” and “Similarly, the same document”;  On page 5, the text between “For example, hyperlinks exist that allow the viewer to” and “Each of the above-described documents”;  On page 6, the text between “In response, Facebook contends that” and “[footnote 20 2] As Plaintiffs seek injunctive relief”; 21  22 23 On page 6, the text between “these documents purport to describe” and “that Facebook has always maintained”;  24 On page 7, the text between “Accordingly, the above-described documents, and any prior versions thereof, should be produced” and “created from private messages”; 25  On page 7, the text between “In terms of identifying how” and “Id. at ¶ 20”; 26  On page 7, the text between “Facebook should provide an explanation of the 27 28 purpose of each” and “thus far produced”;  On page 7, the text between “Doing so would, in Facebook‟s words, allow 15 Plaintiffs to” and “Id. at ¶ 6”; 1 2  reference to”; 3 4   9 10 On page 8, the text between “whether they have any additional purpose beyond” and “identified by Mr. Harrison”. 7 8 On page 7, the text between “The Declaration makes reference to” and “that Mr. Harrison searched”; and 5 6 On page 7, the text between “Identification of” and “The Declaration makes Dkt. No. 127-2 (unredacted version of Response). However, the Court does not find that the following portions of the Response contain potential trade secrets or information that could cause harm to Facebook. As there is no good cause to redact these portions, they shall not be sealed: United States District Court Northern District of California 11  12 13 14 incremental increase”;  On page 1, the text including “The” through “Plaintiffs seek are essential”;  On page 1, the text including “Facebook offers no factual basis for why other” 15 16 On page 1, the text including “It asserts that only the” through “concerning the through “beyond those concerning incrementing the Like counter”;  17 On page 2, the text including “Facebook‟s declarant states that it” through page 3, “Declaration at ¶ 19”; 18  On page 3, the text including “Mr. Harrison further states that he” through “Id.”; 19  On page 3, the text including “Mr. Harrison takes the position that he cannot 20 21 identify or produce” through “This is simply a restatement”;  22 23 through the end of that footnote;   28 On page 3, the text including “Facebook‟s minimal production to date and the purportedly” through “Plaintiffs are not asking the impossible”; 26 27 On page 3, the text including “his statements are always conditional” through “Declaration at ¶ 19”; 24 25 On page 3, the text in footnote 1 including “Mr. Harrison states that it would be”  On page 3, the text including page 4, “The Declaration does not” through “Facebook nonetheless can and should conduct further investigation”; 16 1  through “Id. at ¶ 19”; 2 3    10 United States District Court Northern District of California 11   On page 6, the text including “the depth and breadth of” through “Moreover”;  On page 6, the text including “Moreover” through “If other documents purport to provide additional clarification”;  14 15   22 On page 7, the text including “that Mr. Harrison searched” through page 8, “whether they have any additional purpose beyond”;  20 21 On page 6, the text including “that Facebook has always maintained” through “Refusal to produce relevant documents”; 18 19 On page 6, the text including “it is nonetheless clear that the content of the” through “these documents purport to describe”; 16 17 On page 6, the text including “Each of these documents contains content related to how” through “In response, Facebook contends that”; 12 13 On page 5, the text including “the following items of information” through “documents relating to”; 8 9 On page 4, the text including “Facebook to identify and produce” through “In contrast to the conclusory statements”; 6 7 On page 4, the text including “However Mr. Harrison does not say that” through “Id. at ¶ 18”; 4 5 On page 4, the text including “Further, Facebook‟s methodology in identifying” On page 8, the text including “identified by Mr. Harrison” through “Such clarification”; and  On page 8, the text including “no substantive evidence of burden from identifying” through “it should be compelled to fully respond.” 23 Dkt. No. 127-2 (unredacted version of Response). Again, the Court notes the parties are 24 inconsistent in the information they wish to redact. Plaintiffs now request to seal terms they used 25 publically in their Interrogatory No. 8 and Rog/RFP Letter. See Dkt. No. 113-1 at 9-10, Rog/RPF 26 Ltr. at 1-2. As Plaintiffs did not request to redact the terms in those documents, the Court does not 27 28 17 1 find it appropriate to seal them now.2 Exhibits 1 and 2 to Plaintiffs‟ Response 2 2. 3 The Court finds it appropriate to seal both Exhibits 1 and 2 (redacted versions at Dkt. Nos. 4 128-1 and 128-2; unredacted versions at Dkt. Nos. 127-4 and 127-5), as the entirety of these 5 documents contain potential trade secrets or otherwise proprietary or confidential information that 6 could cause harm to Facebook or the identifiable individuals if such information was exposed. CONCLUSION 7 For the foregoing reasons, Exhibits 1 and 2 to Plaintiffs‟ Response (Dkt. Nos. 128-1 and 8 9 10 United States District Court Northern District of California 11 12 128-2) are SEALED in their entirety, and the redacted portions of the Deposition Letter at Dkt. No. 122 are also SEALED. However, as to the following documents, the appropriate parties shall re-file versions of these documents, with more limited redactions in accordance with this Order by November 16, 2015: 1. 17 Dale Harrison‟s Declaration (Dkt. No. 125); 5. 16 Exhibits A through D to the “Deposition Letter” (Dkt. Nos. 122-(1-4)); 4. 15 The “Rog/RFP Letter” at Dkt. No. 113; 3. 14 The “RFP Letter” at Dkt. No. 112; 2. 13 Plaintiffs‟ Response (Dkt. No. 127-2). IT IS SO ORDERED. 18 19 20 Dated: October 15, 2015 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 21 22 23 24 25 26 27 28 2 In future motions to seal, the Court asks, in the interests of efficiency and consistency, that the parties conduct a careful review of the information they seek to redact to verify that they have not already made such information public. 18

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