Campbell et al v. Facebook Inc.

Filing 213

Administrative Motion to File Under Seal Defendant Facebook, Inc.s Administrative Motion to File Documents in Support of Its Oppositions to Plaintiffs Motions to Compel Under Seal 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 Oppositions to Plaintiffs Motions to Compel Under Seal, # 2 [Proposed] Order Authorizing the Filing of Documents Under Seal, # 3 Exhibit 1 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Source Code, # 4 Exhibit 2 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Source Code, # 5 Exhibit 3 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 6 Exhibit 4 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 7 Exhibit 5 (Unredacted) Poole Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 8 Exhibit 6 (Redacted) Poole Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Configuration Tables, # 9 Exhibit 7 (Unredacted) Opposition to Plaintiffs Motion to Compel Production of Documents, # 10 Exhibit 8 (Redacted) Opposition to Plaintiffs Motion to Compel Production of Documents, # 11 Exhibit 9 (Unredacted) Maute Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Documents, # 12 Exhibit 10 (Redacted) Maute Declaration in Support of Facebooks Opposition to Plaintiffs Motion to Compel Production of Documents, # 13 Proof of Service)(Jessen, Joshua) (Filed on 8/19/2016)

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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 (SK)
DEFENDANT FACEBOOK, INC.’S
ADMINISTRATIVE MOTION TO FILE
DOCUMENTS IN SUPPORT OF ITS
OPPOSITIONS TO PLAINTIFFS’
MOTIONS TO COMPEL UNDER SEAL
No Hearing Unless Requested By Court (Dkt.
203)
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 OPPOSITIONS
TO PLAINTIFFS’ MOTIONS TO COMPEL UNDER SEAL
Case No. C 13-05996 PJH (SK)

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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. 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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Oppositions to Plaintiffs’ Motions to Compel (Dkt. 206, 207, and 208). Facebook has identified the

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information that is sealable with particularity in the Declaration of Nikki Stitt Sokol (the “Sokol

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Declaration”), filed herewith. As described in the Sokol Declaration, Facebook respectfully requests

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an order from the Court to authorize the filing under seal of the following:

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(1) designated portions of Facebook’s Opposition to Plaintiffs’ Motion to Compel Production
of Source Code;

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(2) designated portions of Facebook’s Opposition to Plaintiffs’ Motion to Compel Production
of “Configuration Tables”;

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(3) designated portions of the Declaration of Neal Poole in Support of Defendant Facebook,

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Inc.’s Opposition to Plaintiffs’ Motion to Compel Production of “Configuration Tables” (“Poole

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Declaration”);

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(4) designated portions of Facebook’s Opposition to Plaintiffs’ Motion to Compel Production
of Documents; and

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(5) designated portions of the Declaration of Jeana Bisnar Maute in Support of Defendant

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Facebook, Inc.’s Opposition to Plaintiffs’ Motion to Compel Production of Documents (“Maute

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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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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OPPOSITIONS
TO PLAINTIFFS’ MOTIONS TO COMPEL UNDER SEAL
Case No. C 13-05996 PJH (SK)

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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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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”).

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The presumption of access to judicial records does not apply here because the documents at
issue are being filed in connection with non-dispositive discovery motions—and accordingly,

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“‘[g]ood cause’ is the proper standard.” Real Action Paintball, Inc., 2015 WL 1534049, at *2; Pintos

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v. Pac. Creditors Ass’n, 565 F.3d 1106, 1115 (9th Cir. 2009) (“In light of the weaker public interest

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in nondispositive materials, we apply the ‘good cause’ standard . . . .”); Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (“A ‘good cause’ showing will suffice to seal

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documents produced in discovery. Fed. R. Civ. P. 26(c) (stating that if ‘good cause’ is shown in

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discovery, a district court may issue ‘any order which justice requires to protect a party or person from

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annoyance, embarrassment, oppression, or undue burden or expense’).”).

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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; see also Kamakana, 447 F.3d at 1180 (“[A] ‘particularized showing’ under

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the ‘good cause’ standard of Rule 26(c) will ‘suffice[] to warrant preserving the secrecy of sealed

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discovery material attached to non-dispositive motions.’”) (citation omitted). A party shows good

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cause when, for example, public disclosure of the materials would put the party at a competitive

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disadvantage. See, e.g., Oracle USA, Inc. v. SAP AG, No. 07-cv-01658 PJH, 2009 U.S. Dist. LEXIS

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71365, at *4-5 (N.D. Cal. Aug. 12, 2009) (granting motion to seal where moving party “considered

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and treated the information contained in the subject documents as confidential, commercially

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sensitive and proprietary” and where “public disclosure of such information would create a risk of

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significant competitive injury and particularized harm and prejudice”).

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2

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OPPOSITIONS
TO PLAINTIFFS’ MOTIONS TO COMPEL UNDER SEAL
Case No. C 13-05996 PJH (SK)

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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 ¶¶ 4-8. 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 names of and the nature of the content stored in

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Facebook’s internal databases and the internal tables in those databases; the name of one of

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Facebook’s confidential security and anti-abuse systems; and the names and operations of

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Facebook’s internal document repositories, which demonstrate how Facebook’s systems and tools

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work. The public does not at this time have a meaningful interest in obtaining such information, and

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public disclosure of this information would cause particularized harm to Facebook by allowing its

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competitors to access sensitive information, which they could use to gain an unfair advantage against

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Facebook. Such information could also be used by individuals or companies that might seek to

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

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and the people 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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Gibson, Dunn &
Crutcher LLP

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
[Footnote continued on next page]
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DEFENDANT FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS IN SUPPORT OF ITS OPPOSITIONS
TO PLAINTIFFS’ MOTIONS TO COMPEL UNDER SEAL
Case No. C 13-05996 PJH (SK)

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Dated: August 19, 2016

Respectfully submitted,

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Joshua A. Jessen
Joshua A. Jessen

Attorneys for Defendant FACEBOOK, INC.

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[Footnote continued from previous page]
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 OPPOSITIONS
TO PLAINTIFFS’ MOTIONS TO COMPEL UNDER SEAL
Case No. C 13-05996 PJH (SK)