Free Range Content, Inc. v. Google Inc.

Filing 192

ORDER RE 185 DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL. Signed by Judge Beth Labson Freeman on 5/3/2017. (blflc2S, COURT STAFF) (Filed on 5/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FREE RANGE CONTENT, INC., ET AL.,
Plaintiffs,

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v.

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Case No. 14-cv-02329-BLF

GOOGLE INC.,
Defendant.

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ORDER RE DEFENDANT'S
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
[Re: ECF 185]

United States District Court
Northern District of California

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Before the Court is an administrative motion to seal in their entirety or redact certain

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documents filed with its opposition to Plaintiffs’ motion for class certification (“Opposition”).

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Def.’s Admin. Mot. to File Documents Under Seal (“Mot.”), ECF 185. For the reasons discussed

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below, the motion is GRANTED IN PART AND DENIED IN PART.

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I.

LEGAL STANDARD
“Historically, courts have recognized a ‘general right to inspect and copy public records

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and documents, including judicial records and documents.’” Kamakana v. City & Cty. of

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

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U.S. 589, 597 & n. 7 (1978)). Accordingly, when considering a sealing request, “a ‘strong

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presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto.

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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to

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motions that are “more than tangentially related to the underlying cause of action” bear the burden

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of overcoming the presumption with “compelling reasons” that outweigh the general history of

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access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d

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1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79.

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However, “while protecting the public’s interest in access to the courts, we must remain

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mindful of the parties’ right to access those same courts upon terms which will not unduly harm

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their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed.

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Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the

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merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto

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Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need

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for access to court records attached only to non-dispositive motions because those documents are

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often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving

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to seal the documents attached to such motions must meet the lower “good cause” standard of

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Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This

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standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the
information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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United States District Court
Northern District of California

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1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated

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by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins.

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Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during

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discovery may reflect the court’s previous determination that good cause exists to keep the

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documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows

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the parties to designate confidential documents does not provide sufficient judicial scrutiny to

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determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A)

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(“Reference to a stipulation or protective order that allows a party to designate certain documents

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as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”).

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In addition to making particularized showings of good cause, parties moving to seal documents

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must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 79-5(b), a

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sealing order is appropriate only upon a request that establishes the document is “sealable,” or

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“privileged or protectable as a trade secret or otherwise entitled to protection under the law.” “The

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request must be narrowly tailored to seek sealing only of sealable material, and must conform with

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Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the submitting party to

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attach a “proposed order that is narrowly tailored to seal only the sealable material” which “lists in

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table format each document or portion thereof that is sought to be sealed,” Civ. L.R. 79-5(d)(1)(b),

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and an “unredacted version of the document” that indicates “by highlighting or other clear method,
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the portions of the document that have been omitted from the redacted version.” Civ. L.R. 79-

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5(d)(1)(d). “Within 4 days of the filing of the Administrative Motion to File Under Seal, the

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Designating Party must file a declaration as required by subsection 79-5(d)(1)(A) establishing that

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all of the designated material is sealable.” Civ. L.R. 79-5(e)(1).

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II.

DISCUSSION

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Although Defendant Google Inc. (“Google”) argues that this motion should be resolved

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under the less stringent good cause standards, see Mot. 3 n.1, the Court disagrees. As the Court

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noted in its prior order, “[s]ince the Ninth Circuit’s decision in Center for Auto Safety v. Chrysler

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Group, most district courts to consider the question have found that a motion for class certification
is ‘more than tangentially related to the underlying cause of action’ and therefore merits

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United States District Court
Northern District of California

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application of the ‘compelling reasons’ standard.” Philips v. Ford Motor Co., No. 14-cv-2989,

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2016 WL 7374214, at *2 (N.D. Cal. Dec. 20, 2016) (collecting cases). Accordingly, the Court

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will resolve the sealing motion under the compelling reasons standard. With this standard in

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mind, the Court rules on the instant motion as follows:

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ECF
Document to
No.
be Sealed
176-50 Google’s
Opposition to
Pl.’s Mot. for
Class Cert.

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Result

Reasoning

GRANTED as to:
1:2, 25-26;
2:1-2;
5:3-14, 18-21;
6:3-15, 17-25, 27-28;
7:1-4, 7-8, 10-24;
8:1-3, 5, 7-8;
9:18-20;
10:4-5, 23-24;
11:3-6, 16-20;
14:27-28;
15:1;
16:14, 23-24, 25-26;
19:6, 17-23;
21:9-10, 19-23;
23:1, 4-8, 15;
25:14, 21-22;
26:18, 28;
27:1;
28:6-8;

Contains sensitive information related to
proprietary data, processes, systems, and
policies that Google uses to detect and
prevent invalid activity, and to terminate
non-compliant publishers in order to
ensure the integrity and security of its
AdSense systems, as well as information
about Google’s processes related to
advertiser payment and publisher payment
information. Li Decl. ISO Mot. (“Li
Decl.”) ¶¶ 2–4, ECF 185-1. This
information is non-public and
confidential. Id.
The Court denies the identified portions
because Plaintiffs, the designating party,
do not seek to seal these portions. See
Pl.’s Response to Mot. (Pl.’s Resp.”),
ECF 189; Lopez Decl. ISO Pl.’s Resp.
(“Lopez Decl.”), ECF 189-1.

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ECF
No.

Document to
be Sealed

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191

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United States District Court
Northern District of California

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Declaration of
Ray Liu in
Support of
Google’s
Opposition to
Plaintiffs’
Motion for
Class
Certification

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Result

Reasoning

DENIED as to:
1:24-25;
8:11-24;
9:4-7, 28;
10:1-4, 11-13;
11:1-2, 12-14;
15:9-12, 20;
16:9-11, 20-22.
GRANTED as to:
2:10-15, 19-21;
3:16-17
4:6, 11-28;
5:13-17, 24-28;
6:4-12, 20-24, 27-28;
7:1-4, 20-22;
8:11-19, 22-24;
9:25-28;
10:11-17, 21;
11:21-24;
12:10-13, 23-26;
13:8-23;
14:1-28;
15:1-5;

Contains non-public, confidential,
proprietary information about the
processes and systems Google uses to
detect publisher violations of AdSense’s
policy guidelines, and its practices in
terminating such publishers for policy
violations. Li Decl. ¶ 6.
The Court denies the identified portions
because, Plaintiffs, the designating party,
do not seek to seal these portions. See
Pl.’s Resp.; Lopez Decl.

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187-1
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Loebel-Fried
Declaration

DENIED as to:
9:21-22;
10:2-8, 27-28;
11:1-6, 13-15, 28;
12:2-7, 17-19.
GRANTED as to:
1:19-27;
2:1-26;
3:2-4, 6-9, 13-16;
4:9-12, 18-19, 23;
5:2, 12-27;
6:1-28;
7:1-12, 15-28;
8:1-28;
9:1-26;
10:1-8, 10-13, 18-21;
11:3-12, 18-22;
12:5-10, 21-26;
13:1-14, 17-28;
14:1-8, 19-28;
15:1-28;
16:1-10, 15-28;

Contains non-public, confidential,
proprietary information concerning
Google’s internal data, processes,
systems, and policies used in detecting
spam and terminating publishers who
have invalid activity on their accounts. Li
Decl. ¶ 9.

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ECF
No.

Document to
be Sealed

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Result
17:1-21, 24-25, 27;
18:1-28;
19:4-28;
20:1-23, 26-28;
21:1-9, 11-16, 18-22, 2527;
22:1-2, 4-16.
GRANTED.

176-2

Ex. 1 to
Loebel-Fried
Declaration

176-3

Ex. 2 to
Loebel-Fried
Declaration

GRANTED.

176-4

Ex. 3 to
Loebel-Fried
Declaration

GRANTED.

176-5

Ex. 4 to
Loebel-Fried
Declaration

GRANTED.

176-6

Ex. 5 to
Loebel-Fried
Declaration

GRANTED.

176-7

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Ex. 6 to
Loebel-Fried
Declaration

GRANTED.

176-8

Ex. 7 to
Loebel-Fried
Declaration

GRANTED.

176-9

Ex. 8 to
Loebel-Fried
Declaration

GRANTED.

176-10 Ex. 9 to
Loebel-Fried
Declaration

GRANTED.

176-11 Ex. 10 to
Loebel-Fried
Declaration

GRANTED.

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Reasoning

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United States District Court
Northern District of California

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Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li

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ECF
No.

Document to
be Sealed

Result

Reasoning

176-12 Ex. 11 to
Loebel-Fried
Declaration

GRANTED.

176-13 Ex. 12 to
Loebel-Fried
Declaration

GRANTED.

176-17 Tuzhilin
Declaration

GRANTED as to;
3:8-9;
9:5-28;
10:1-28;
13:21-28;
14:1-28;
15:1-28;
16:1, 4-15, 17-28;
17:1-28;
18:1-10, 16-28;
19:1-28;
20:1-13, 16-28;
21:1-28;
22:1-12, 14-19, 21-28;
23:1-2
GRANTED.

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United States District Court
Northern District of California

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176-18 Ex. 2 to
Tuzhilin
Declaration

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176-19 Ex. 1 to Wong GRANTED.
Declaration

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176-20 Ex. 2 to Wong GRANTED.
Declaration

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Decl. ¶ 11.
Contains sensitive information about the
data, processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 11.
Contains internal sample sets of
information related to publishers whose
accounts have been terminated, as well as
internal account notes related to their
accounts’ terminations. Li Decl. ¶ 13.
This information is sensitive, non-public,
confidential, proprietary business
information. Id. ¶ 14.
Contains an in-depth analysis of Google’s
data, systems, processes, and policies
used in detecting invalid activity. Li
Decl. ¶ 15. This information is nonpublic, confidential, proprietary business
information. Id.

Collection of internal graphs and reports
that contain sensitive, non-public,
confidential information about the data,
processes, systems, and policies that
Google uses to detect invalid activity. Li
Decl. ¶ 17.
Excerpts from Google’s Answers and
Supplementary Answers to Plaintiffs’
First Set of Interrogatories that contain
sensitive, confidential information
regarding Google’s AdSense spam and
publisher quality termination policy and
practices. Li Decl. ¶ 19.
Excerpts from Google’s Answers and
Supplementary Answers to Plaintiffs’
First Set of Interrogatories that contain
sensitive, confidential information
regarding Google’s AdSense spam and

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ECF
No.

Document to
be Sealed

Result

Reasoning

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176-21 Ex. 3 to Wong DENIED.
Declaration
176-22 Ex. 4 to Wong GRANTED as to portions
Declaration
identified in ECF 189-3.
176-23 Ex. 5 to Wong DENIED.
Declaration

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176-25 Ex. 6 to Wong GRANTED as to
Declaration
highlighted portions
(Portions of page GOOGFRNG-00005892).

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United States District Court
Northern District of California

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176-26 Ex. 7 to Wong DENIED.
Declaration
176-28 Ex. 8 to Wong GRANTED as to
Declaration
highlighted portions
(Portions of pages GOOGFRNG-00005934-GOOGFRNG-00005935).
186-1 Ex. 9 to Wong GRANTED as to
Declaration
highlighted portions
(Portions of pages GOOGFRNG-00005928-GOOGFRNG-00005929).
176-30 Ex. 10 to
GRANTED as to
Wong
highlighted portions
Declaration
(Portions of pages GOOGFRNG-00007478-GOOGFRNG-00007489).
176-31 Ex. 11 to
GRANTED.
Wong
Declaration

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176-32 Ex. 12 to
Wong
Declaration
176-33 Ex. 17 to
Wong
Declaration
176-34 Ex. 18 to

DENIED.

DENIED.

DENIED.
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publisher quality termination policy and
practices. Li Decl. ¶ 19.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Contains the personal e-mail address of a
non-party. Lopez Decl. ¶ 2.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Contain information related to the policies
and practices Google uses in its
termination of the accounts of AdSense
publishers who violated AdSense policy.
Li Decl. ¶ 21.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Contain information related to the policies
and practices Google uses in its
termination of the accounts of AdSense
publishers who violated AdSense policy.
Li Decl. ¶ 21.
Contain information related to the policies
and practices Google uses in its
termination of the accounts of AdSense
publishers who violated AdSense policy.
Li Decl. ¶ 21.
Contains sensitive financial information
related to Google and the Plaintiffs. Li
Decl. ¶ 23.

Internal Google Account Inspector Notes
containing non-public, confidential,
proprietary business information related
to internal AdSense policy, design, data
systems, and programs. Li Decl. ¶¶ 25–
26.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Plaintiffs, as the designating party, do not

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ECF
No.

Document to
be Sealed
Wong
Declaration
176-36 Ex. 20 to
Wong
Declaration
176-37 Ex. 22 to
Wong
Declaration

Result

Reasoning

GRANTED as to
highlighted portions
(Portions of page GOOGFRNG-00007570).
GRANTED.

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United States District Court
Northern District of California

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176-38 Ex. 23 to
Wong
Declaration
176-39 Ex. 25 to
Wong
Declaration
176-40 Ex. 26 to
Wong Decl.

DENIED.

176-41 Ex. 27 to
Wong
Declaration

GRANTED.

176-43 Ex. 30 to
Wong
Declaration

GRANTED as to:
45:5-9;
79:3-8, 12-19, 22-25.

176-45 Ex. 31 to
Wong
Declaration

GRANTED as to:
168:10-12, 17-23;
169:1-4, 6-7, 11-19, 21-25

176-47 Ex. 32 to
Wong
Declaration

GRANTED as to
highlighted portions
(Portions of pages GOOGFRNG-00005787-GOOGFRNG-00005788).
GRANTED.

DENIED.

DENIED.

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176-48 Ex. 33 to

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seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Contains sensitive financial information
related to Google and the Plaintiffs. Li
Decl. ¶ 23.
Internal Google Account Inspector Notes
containing non-public, confidential,
proprietary business information related
to internal AdSense policy, design, data
systems, and programs. Li Decl. ¶¶ 25–
26.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Plaintiffs, as the designating party, do not
seek to seal this document. See Pl.’s
Resp.; Lopez Decl.
Internal Google Account Inspector Notes
containing non-public, confidential,
proprietary business information related
to internal AdSense policy, design, data
systems, and programs. Li Decl. ¶¶ 25–
26.
Collection of excerpts from the deposition
of Plaintiffs’ damages expert, Stephen
Kiraly. Li Decl. ¶ 27. The identified
portions consist of discussion and analysis
of internal Google data related to
Google’s detection of invalid activity and
the calculation of earnings for publishers.
Id.
Excerpt from the deposition of Zachary
Loebel-Fried that consists of discussion
and analysis of internal Google data
related to Google’s detection of invalid
activity. Li Decl. ¶ 29.
Contain information related to the policies
and practices Google uses in its
termination of the accounts of AdSense
publishers who violated AdSense policy.
Li Decl. ¶ 21.
Excerpts from Google’s Answers and

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ECF
No.

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Document to
be Sealed
Wong
Declaration

Result

Reasoning
Supplementary Answers to Plaintiffs’
First Set of Interrogatories that contain
sensitive, confidential information
regarding Google’s AdSense spam and
publisher quality termination policy and
practices. Li Decl. ¶ 19.

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United States District Court
Northern District of California

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III.

ORDER
For the foregoing reasons, the sealing motion at ECF 185 is GRANTED IN PART and

DENIED IN PART. Under Civil Local Rule 79-5(e)(2), for any request that has been denied
because the party designating a document as confidential or subject to a protective order has not
provided sufficient reasons to seal, the submitting party must file the unredacted (or lesser
redacted) documents into the public record no earlier than 4 days and no later than 10 days from
the filing of this order. To simplify the docket, the Court requests that Defendant refile the public
version, i.e., redacted version, of their opposition to the motion for class certification and the
related declarations and exhibits to replace the currently filed public versions thereof.

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Dated: May 3, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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