Campbell et al v. Facebook Inc.

Filing 169

Administrative Motion to File Under Seal Documents In Support of Its Objection to and Request to Strike New Evidence and Misstatements of Fact Contained in in Plaintiffs Reply in Support of Their Motion for Class Certification filed by Facebook Inc.. (Attachments: # 1 Declaration of Nikki Stitt Sokol in Support of Defendant Facebook Inc.s Administrative Motion to File Documents In Support of Its Objection to and Request to Strike New Evidence and Misstatements of Fact Contained in Plaintiffs Reply in Support of Their Motion for Class Certification Under Seal, # 2 [Proposed] Order Authorizing the Filing of Documents Under Seal, # 3 Proof of Service, # 4 Exhibit 1 (Unredacted), # 5 Exhibit 2 (Redacted), # 6 Exhibit 3 (Unredacted), # 7 Exhibit 4 (Redacted), # 8 Exhibit 5 (Unredacted), # 9 Exhibit 6 (Redacted))(Chorba, Christopher) (Filed on 2/26/2016)

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
PRIYANKA RAJAGOPALAN, SBN 278504
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
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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OAKLAND DIVISION

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MATTHEW CAMPBELL and MICHAEL
HURLEY,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH
DEFENDANT FACEBOOK, INC.’S
ADMINISTRATIVE MOTION TO FILE
DOCUMENTS IN SUPPORT OF ITS
OBJECTION TO AND REQUEST TO
STRIKE NEW EVIDENCE AND
MISSTATEMENTS OF FACT
CONTAINED IN PLAINTIFFS’ REPLY IN
SUPPORT OF THEIR MOTION FOR
CLASS CERTIFICATION UNDER SEAL
HEARING:
Date:
March 16, 2016
Time:
9:00 a.m.
Location: Courtroom 3, Third Floor
The Honorable Phyllis J. Hamilton

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OBJECTION
TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS OF FACT CONTAINED IN PLAINTIFFS’ REPLY
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION UNDER SEAL- Case No. C 13-05996 PJH

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I.

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INTRODUCTION
Pursuant to Civil Local Rules 7-11 and 79-5(b)-(d), and the Amended Stipulated Protective

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Order that was entered by the Court on July 1, 2015 (Dkt. No. 93), Defendant Facebook, Inc.

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(“Facebook”) files this administrative motion to seal documents submitted in connection with its

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Objection to and Request to Strike New Evidence and Misstatements of Fact in Plaintiffs’ Reply in

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Support Of Their Motion For Class Certification. Facebook has identified the information that is

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sealable with particularity in the Declaration of Nikki Stitt Sokol (the “Sokol Declaration”), filed

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herewith. As described in the Sokol Declaration, Facebook respectfully requests an order from the

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Court to authorize the filing under seal of the following:

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(1) designated portions of Facebook’s Objection to and Request to Strike New Evidence and

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Misstatements of Fact in Plaintiffs’ Reply in Support Of Their Motion For Class Certification;

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(2) designated portions of the Declaration of Alex Himel In Support of Defendant Facebook,

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Inc.’s Objection to and Request to Strike New Evidence and Misstatements of Fact in Plaintiffs’

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Reply in Support Of Their Motion For Class Certification (“Himel Declaration”); and

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(3) designated portions of the Declaration of Dale Harrison In Support of Defendant

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Facebook, Inc.’s Objection to and Request to Strike New Evidence and Misstatements of Fact in

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Plaintiffs’ Reply in Support Of Their Motion For Class Certification (“Harrison Declaration”).

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Because good cause exists to permit filing this confidential information under seal, as is

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described with particularity in the Sokol Declaration, the Court should grant this motion.

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II.

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LEGAL STANDARD
Courts have historically recognized the public’s “general right to inspect and copy public

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records and documents, including judicial records and documents,” which is “premised on the interest

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of citizens in ‘keep[ing] a watchful eye on the workings of public agencies.’” Accenture LLP v.

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Sidhu, No. C10-2977 TEH, 2011 U.S. Dist. LEXIS 140093, at *3 (N.D. Cal. Dec. 6, 2011) (quoting

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Nixon v. Commc’ns, Inc., 435 U.S. 589, 597-98 (1978)). However, the Ninth Circuit has “carved out

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an exception to the presumption of access to judicial records . . . [that is] expressly limited to judicial

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records filed under seal when attached to a non-dispositive motion.” In re Midland Nat. Life Ins. Co.

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Annuity Sales Practices Litigation, 686 F.3d 1115, 1119 (9th Cir. 2012) (per curiam) (internal
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OBJECTION
TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS OF FACT CONTAINED IN PLAINTIFFS’ REPLY
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION UNDER SEAL- Case No. C 13-05996 PJH

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quotation marks and citation omitted) (emphasis in original); Real Action Paintball, Inc. v. Advanced

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Tactical Ordnance Sys., LLC, No. 14-CV-02435-MEJ, 2015 WL 1534049, at *2 (N.D. Cal. Apr. 2,

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2015) (the presumption of public access to judicial documents in connection with dispositive motions

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“does not apply in the same way to non-dispositive motions”). Because the documents at issue are

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being filed in connection with a non-dispositive motion, “‘[g]ood cause’ is the proper standard.”

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Real Action Paintball, Inc., 2015 WL 1534049, at *2; see also Kamakana v. City & Cty. of Honolulu,

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447 F.3d 1172, 1180 (9th Cir. 2006) (“A ‘good cause’ showing under Rule 26(c) will suffice to keep

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sealed records attached to non-dispositive motions.”).

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“Under the ‘good cause’ standard, the party seeking protection bears the burden of showing

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specific prejudice or harm will result if no protective order is granted.” Real Action Paintball, Inc.,

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2015 WL 1534049, at *2; Pintos v. Pac. Creditors Ass’n, 565 F.3d 1106, 1115 (9th Cir. 2009) (“In

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light of the weaker public interest in nondispositive materials, we apply the ‘good cause’ standard . . .

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.”). A party shows good cause when, for example, public disclosure of the materials would put the

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party at a competitive disadvantage. See, e.g., Oracle USA, Inc. v. SAP AG, No. 07-cv-01658 PJH,

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2009 U.S. Dist. LEXIS 71365, at *4-5 (N.D. Cal. Aug. 12, 2009) (granting motion to seal where

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moving party “considered and treated the information contained in the subject documents as

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confidential, commercially sensitive and proprietary” and where “public disclosure of such

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information would create a risk of significant competitive injury and particularized harm and

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prejudice”).

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III.

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ARGUMENT
Facebook respectfully submits that it has demonstrated “good cause” to permit filing certain

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information under seal through the Sokol Declaration. See Sokol Declaration ¶¶ 3-5. In the Sokol

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Declaration, Facebook has identified each piece of confidential information submitted, and explained

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the specific harm that would come from its disclosure in order to make these issues clear for the

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Court. Id. As set forth in the Sokol Declaration, good cause exists to grant this motion to seal

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because the information Facebook moves to seal contains non-public, confidential, and proprietary

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Facebook business information that is protectable as a trade secret or otherwise entitled to protection

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under the law, including information concerning the processes and functionality of Facebook’s source
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OBJECTION
TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS OF FACT CONTAINED IN PLAINTIFFS’ REPLY
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION UNDER SEAL- Case No. C 13-05996 PJH

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code and messages technology and Facebook’s software and other internal tools. The public does not

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at this time have a meaningful interest in obtaining such information, and public disclosure of this

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information would cause particularized harm to Facebook by allowing its competitors to access

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sensitive information, which they could use to gain an unfair advantage against Facebook. Such

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information could also be used by individuals or companies that might seek to compromise the

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security of Facebook’s messages and other technology, causing harm to Facebook and the people

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who use Facebook’s services.

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IV.

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CONCLUSION
Facebook has attempted to narrow its sealing request as much as possible, and it seeks to

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redact only sensitive information that, if disclosed, would cause harm to Facebook or the individuals

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who use Facebook if revealed publicly. Facebook is willing to supply any additional information as

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requested by the Court, including detailed explanations of its sensitive information in a confidential

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setting. For these reasons, Facebook respectfully requests that the Court grant its administrative

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motion to seal the aforementioned information from the public record. 1

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Dated: February 26, 2016

Respectfully submitted,

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Christopher Chorba
Christopher Chorba

Attorneys for Defendant FACEBOOK, INC.

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Pursuant to Civil Local Rule 79-5(d)(1), the following attachments accompany this motion: (A) a
declaration establishing that the documents sought to be filed under seal, or portions thereof, are
sealable (the Sokol Declaration); (B) a proposed order that is narrowly tailored to seal only the
sealable material identified in the Sokol Declaration, listing in table format each document or portion
thereof sought to be sealed; (C) unredacted versions of documents sought to be filed under seal, with
the sealable portions identified within the text; and (D) redacted versions of documents sought to be
filed under seal. Pursuant to Civil Local Rule 79-5(d)(2), Facebook will provide a courtesy copy of
this filing to the Court.
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OBJECTION
TO AND REQUEST TO STRIKE NEW EVIDENCE AND MISSTATEMENTS OF FACT CONTAINED IN PLAINTIFFS’ REPLY
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION UNDER SEAL- Case No. C 13-05996 PJH