Free Range Content, Inc. v. Google Inc.

Filing 208

ORDER RE 198 PLAINTIFFS ADMINISTRATIVE MOTION TO FILE UNDER SEAL. Signed by Judge Beth Labson Freeman on 6/12/2017. (blflc2S, COURT STAFF) (Filed on 6/12/2017)

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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 PLAINTIFFS’
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
[Re: ECF 198]

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 designated as “Confidential” by Defendant Google Inc. (“Google”) filed with

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Plaintiffs’ reply in support of their motion for class certification (“Reply”). Pl.’s Admin. Mot. to

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File Documents Under Seal (“Mot.”), ECF 198. For the reasons discussed below, the motion is

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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
standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the

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United States District Court
Northern District of California

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information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,

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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
Although Google argues that this motion should be resolved under the less stringent good

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cause standards, see Resp. to Mot. 3 n.1, ECF 205, the Court disagrees. As the Court noted in its

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

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most district courts to consider the question have found that a motion for class certification is

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United States District Court
Northern District of California

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‘more than tangentially related to the underlying cause of action’ and therefore merits application

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of the ‘compelling reasons’ standard.” Philips v. Ford Motor Co., No. 14-cv-2989, 2016 WL

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

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the sealing motion under the compelling reasons standard. With this standard in mind, the Court

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rules on the instant motion as follows:

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ECF
Document to
No.
be Sealed
198-15 Plaintiffs’
Reply in
Support of
Plaintiffs’
Motion for
Class
Certification

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Result

Reasoning

GRANTED as to:
4:6–8, 10–14, 16, 18;
7:10–11;
8:14;
10:11–15;
12:25;
13:7, 13–15;
15:17.

Includes information related to processes
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. Li Decl. ¶ 2,
ECF 205-1. The data and policies
referenced contain valuable information
related to the practices, processes, and
policies Google uses to ensure system
health and integrity, and public disclosure
would cause competitive harm to Google.
Id. Also contains information about
Google’s processes related to advertiser
payment and publisher payment
information, public disclosure of which
could cause competitive harm to Google.
Id. ¶ 3.

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ECF
No.
198-3

Document to
be Sealed
Ex. 1 to
Berman Decl.

Result

198-4

Ex. 2 to
Berman Decl.

GRANTED.

198-6

Ex. 3 to
Berman Decl.

GRANTED as to:
3:2, 4–13, 15–25.

198-7

Ex. 4 to
Berman Decl.

DENIED.

198-8

Ex. 5 to
Berman Decl.

DENIED.

198-9

Ex. 6 to
Berman Decl.

Reasoning

DENIED.

GRANTED.

Contains internal Google information
related to administration of its AdSense
programs and systems, sensitive publisher
financial data, or internal Google policy
and program design descriptions, public
disclosure of which could cause
competitive harm to Google. Li Decl. ¶ 5.
Internal e-mails that contain conversations
between Google employees discussing
strategy, policy, and practices related to
AdSense. Li Decl. ¶ 6. Public disclosure
of this information could cause
competitive harm to Google. Id.
Excerpt from the deposition of Zachary
Loebel-Fried that contains information
regarding Google’s invalid activity
detection processes and spam termination
policy. Li Decl. ¶ 7. Public disclosure of
this information could cause competitive
harm to Google. Id.
Defendants, as the designating party, do
not seek to seal this document. Li Decl. ¶
10.
Defendants, as the designating party, do
not seek to seal this document. Li Decl. ¶
10.
Defendants, as the designating party, do
not seek to seal this document. Li Decl. ¶
10.
Contains internal Google information
related to administration of its AdSense
programs and systems, sensitive publisher
financial data, or internal Google policy
and program design descriptions, public
disclosure of which would cause
competitive harm to Google. Li Decl. ¶ 5.
Internal e-mails that contain conversations
between Google employees discussing
strategy, policy, and practices related to
AdSense. Li Decl. ¶ 6. Public disclosure
of this information would cause
competitive harm to Google. Id.
Contains internal Google information
related to administration of its AdSense
programs and systems, sensitive publisher
financial data, or internal Google policy

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United States District Court
Northern District of California

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198-10 Ex. 7 to
Berman Decl.

GRANTED.

198-11 Ex. 8 to
Berman Decl.

GRANTED.

198-12 Ex. 9 to
Berman Decl.

GRANTED.

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ECF
No.

Document to
be Sealed

Result

Reasoning
and program design descriptions, public
disclosure of which would cause
competitive harm to Google. Li Decl. ¶ 5.
Internal Google help page that contains
information regarding Google’s invalid
activity detection process and spam
termination policy, and public disclosure
of this information could cause
competitive harm to Google. Li Decl. ¶ 9.

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198-13 Ex. 10 to
Berman Decl.

GRANTED.

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III.
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United States District Court
Northern District of California

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ORDER
For the foregoing reasons, the sealing motion at ECF 198 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 Plaintiffs refile the public
version, i.e., redacted version, of their reply 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: June 12, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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