Robert Heath v. Google Inc.

Filing 377

OMNIBUS ORDER GRANTING IN PART AND DENYING IN PART 350 UNOPPOSED ADMINISTRATIVE MOTION TO SEAL WITHOUT PREJUDICE; GRANTING 353 , 359 UNOPPOSED ADMINISTRATIVE MOTIONS TO SEAL. Signed by Judge Beth Labson Freeman on 9/20/2018. (blflc2S, COURT STAFF) (Filed on 9/20/2018)

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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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ROBERT HEATH, ET AL.,
Plaintiffs,

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v.

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GOOGLE LLC,
Defendant.

United States District Court
Northern District of California

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Case No. 15-cv-01824-BLF
OMNIBUS ORDER GRANTING IN
PART AND DENYING IN PART
UNOPPOSED ADMINISTRATIVE
MOTIONS TO SEAL WITHOUT
PREJUDICE
[Re: ECF 350, 353, 359]

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Before the Court are several unopposed administrative motions to file under seal portions

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of Defendant’s summary judgment motion, Defendant’s motion for leave to seek reconsideration,

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and Plaintiffs’ opposition to Defendant’s motion for leave to seek reconsideration, respectively.

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ECF 350, 353, 359. For the reasons stated below, the motions at ECF 353 and 359 are

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GRANTED, and the motion at ECF 350 is GRANTED IN PART AND DENIED IN PART

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without prejudice.

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

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United States District Court
Northern District of California

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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

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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 by

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

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

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

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

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to designate confidential documents does not provide sufficient judicial scrutiny to determine

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

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to a stipulation or protective order that allows a party to designate certain documents as

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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

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documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R.

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79-5(b), a sealing order is appropriate only upon a request that establishes the document is

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“sealable,” or “privileged or protectable as a trade secret or otherwise entitled to protection under

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the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and

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must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the
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submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable

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material” which “lists in table format each document or portion thereof that is sought to be

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sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by

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highlighting or other clear method, the portions of the document that have been omitted from the

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redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the filing of the Administrative

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Motion to File Under Seal, the Designating Party must file a declaration as required by subsection

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

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II.

DISCUSSION
The Court has reviewed Defendant’s and Plaintiffs’ sealing motions and the declarations of

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the designating parties submitted in support. The Court finds that the parties have articulated

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United States District Court
Northern District of California

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compelling reasons to seal certain portions of the submitted documents. The Court’s rulings on

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the sealing requests are set forth in the tables below.

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A.
ECF
No.
350-3
(352)

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ECF 350
Document to be
Sealed:
Portions of Google’s
Motion for Summary
Judgment

Result

Reasoning

GRANTED as
to redacted
portions.

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350-5
(352-1)

Portions of
Declaration of Brian
D. Berry In Support of
Google’s Motion to
for Summary
Judgment (“Berry
Decl.”)

GRANTED as
to redacted
portions.

References sealable material in below
exhibits.
Because the redacted portions of the
document may be sealed, no further action is
required.
Page 6, line 3 contains highly confidential
and sensitive information relating to
Google’s strategies and techniques for
interviewing candidates, the release of which
could harm Google. Mot. at 2; Ong. Decl. ¶¶
4, 12–13, ECF 375; see ECF 105; ECF 198;
ECF 253; ECF 298.
In the remainder, Google seeks to redact the
names of certain opt-in plaintiffs, which
Plaintiffs have designated confidential. Ong.
Decl. ¶ 10. Though Plaintiffs did not file the
required declaration in support of sealing, the
Court finds compelling reasons to seal these
names, as it has in prior orders. See ECF
256, 298, 323, 325, 333.

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Because Google has filed a redacted version
of this document on the docket, no further
action is required.

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3

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350-7
through
350-21
(352-3
and
352-4)

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Berry Decl. Ex. 2
(Declaration of Brian
Ong in Support of
Google, LLC’s
Motion to Decertify
Collective Action,
signed on April 30,
2018 and Exhibits
thereto)

GRANTED as
to entire
documents.

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The exhibits to the Class Certification Ong
Declaration also contain competitively
sensitive information from Google’s gHire
system, access to which is limited to
authorized Google employees. The Court
finds that there are compelling reasons to
seal the entire gHire dossiers because they
contain competitively sensitive information,
and disclosure of the dossiers could
compromise the objectivity of interviewers’
assessments. Ong. Decl. ¶¶ 4–5. These
documents were previously filed under seal
pursuant to Court order. ECF 253.

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United States District Court
Northern District of California

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The Class Certification Ong Declaration
contains detailed information about the
stages in Google’s hiring process, a
description of how gHire is used to record
and display information about candidates,
information about the criteria Google uses to
evaluate candidates for SWE, SRE, and
SysEng positions, a description of certain
revisions Google has made to its interview
feedback system, a description of how Hiring
Committees operate, and excerpts from
gHire dossiers. Ong. Decl. ¶¶ 4–5. This
document was previously filed under seal
pursuant to Court order. ECF 253.

351
(352-5)

Berry Decl. Ex. 3
GRANTED as
(Excerpts from
to entire
deposition of Google’s document.
Rule 30(b)(6) witness)

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Because the entirety of the documents may
be sealed, no further action is required.
The document contains detailed
commercially sensitive information about the
stages in Google’s hiring process,
descriptions of how gHire is used to record
and display information about candidates,
information about the criteria Google uses to
evaluate candidates, and revisions to
Google’s interview feedback system. Ong.
Decl. ¶ 6. Significant portions of this
document were previously filed under seal
pursuant to Court order. ECF 253.
Because the entirety of the document may be
sealed, no further action is required.

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351-1
through
351-4
(352-6
though
352-9)

Berry Decl. Exs. 4–7
(expert reports and
gHire dossiers and
records)

GRANTED as
to entire
documents.

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United States District Court
Northern District of California

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351-6
and
351-7
(352-11
and
352-12)

Berry Decl. Exs. 9-10
(gHire records
including internal
interviewer and Hiring
Committee notes and
evaluations related to
candidates)

GRANTED as
to entire
documents.

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These exhibits contain sensitive records
pertaining to candidates for positions at
Google, and further reflect Google’s
competitively sensitive commercial
information related to its strategies and
techniques for interviewing and evaluating
candidates for SWE, SRE, and SysEng
positions. Ong. Decl. ¶¶ 7, 8. This Court
has previously ordered that the same or
substantially similar materials are sealable
because they disclose confidential
information about Google’s hiring process.
See ECF 105, 253, 298. In particular, the
Court has consistently sealed Google’s gHire
records including gHire committee notes.
ECF 105.
Because the entirety of the documents may
be sealed, no further action is required.
These exhibits contain sensitive records
pertaining to candidates for positions at
Google, including gHire data, and further
reflect Google’s competitively sensitive
commercial information related to its
strategies and techniques for interviewing
and evaluating candidates for SWE, SRE,
and SysEng positions. Ong. Decl. ¶ 7. This
Court has previously ordered that the same or
substantially similar materials are sealable
because they disclose confidential
information about Google’s hiring process.
See ECF 105, 253, 298.
The documents also contain putative date of
birth information that Plaintiffs have
produced as confidential. The Court finds
that compelling reasons exist to protect an
individual’s privacy interest and to prevent
exposure to or harm or identity theft. This
Court has previously sealed the same or
similar information. See ECF 152; ECF 197,
ECF 256.

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Because the entirety of the documents may
be sealed, no further action is required.

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5

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351-8
through
351-25
(352-13
through
352-43)

Berry Decl., Exs. 11–
41 (excerpts and
exhibits from the
depositions of the OptIn Plaintiffs)

GRANTED as
to the names
of opt-in
plaintiffs.
DENIED as to
the remainder.

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Google seeks to redact the names of certain
opt-in plaintiffs, which Plaintiffs have
designated confidential. Ong. Decl. ¶ 10.
Though Plaintiffs did not file the required
declaration in support of sealing, the Court
finds compelling reasons to seal these names,
as it has in prior orders. See ECF 256, 298,
323, 325, 333.
The remainder is denied because Plaintiffs,
the designating party, have not filed a
declaration in support of the sealing. Civ.
L.R. 79-5(e).

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Google is ORDERED to file versions of
these documents in the public record with the
names of the opt-in plaintiffs redacted no
earlier than 4 days and no later than 10 days
from the date of this order.

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United States District Court
Northern District of California

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B.

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ECF
No.
353-3
(355)

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353-4
through
353-7
(355-2
through
355-5)

ECF 353
Document to be
Result
Sealed:
Portions of Motion for GRANTED as
Leave to file Motion
to redacted
for Reconsideration of portions.
Order Denying Motion
for Decertification
Berry Decl. Exs. 1–4
(the Parties’ expert
reports)

GRANTED as
to entire
documents.

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Reasoning
References sealable material in below
exhibits.
Because the redacted portions of the
document may be sealed, no further action is
required.
These exhibits contain sensitive records
pertaining to candidates for positions at
Google, and further reflect Google’s
competitively sensitive commercial
information related to its strategies and
techniques for interviewing and evaluating
candidates for SWE, SRE, and SysEng
positions. Ong. Decl. ¶¶ 3–4, ECF 376. This
Court has previously ordered that the same or
substantially similar materials are sealable
because they disclose confidential
information about Google’s hiring process.
See ECF 105, 253, 298. In particular, the
Court has consistently sealed Google’s gHire
records including gHire committee notes.
ECF 105.
Because the entirety of the documents may
be sealed, no further action is required.

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C.

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ECF 359

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ECF
No.

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359

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Document to be
Sealed:

Result

Reasoning

Portions of Plaintiffs’ GRANTED as
Response in
to redacted
Opposition to
portions.
Defendant Google
LLC’s Motion for
Leave for
Reconsideration of
Order Denying Motion
for Decertification

The Court finds compelling reasons to seal
the redacted portions because they quote,
summarize, or cite the expert reports that this
Court has deemed sealable in this Order. See
supra re ECF 353-4 through 353-7; 351-1
through 351-4; see also Ong Decl. ¶¶ 3–4,
ECF 370.
Because the redacted portions of the
document may be sealed, no further action is
required.

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United States District Court
Northern District of California

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III.

ORDER
For the foregoing reasons, the sealing motions at ECF 353 and 359 are GRANTED, and

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the sealing motion at ECF 350 is GRANTED IN PART AND DENIED IN PART without

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prejudice. In particular, the Court DENIED without prejudice Google’s request to file under seal

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Exhibits 11–41 of the Berry Declaration in support of Google’s Motion for Summary Judgment,

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except as to the names of the opt-in plaintiffs, because Plaintiffs (the designating party) have not

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filed a declaration in support of the sealing. Google must file redacted versions of the documents

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into the public record no earlier than 4 days and no later than 10 days form the filing of this order.

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IT IS SO ORDERED.

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Dated: September 20, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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