Robert Heath v. Google Inc.

Filing 412

ORDER GRANTING IN PART AND DENYING IN PART 406 , 409 UNOPPOSED ADMINISTRATIVE MOTIONS TO SEAL WITHOUT PREJUDICE. Signed by Judge Beth Labson Freeman on 12/7/2018. (blflc2S, COURT STAFF) (Filed on 12/7/2018)

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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
ORDER GRANTING IN PART AND
DENYING IN PART UNOPPOSED
ADMINISTRATIVE MOTIONS TO
SEAL WITHOUT PREJUDICE
[Re: ECF 406, 409]

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

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Defendant’s summary judgment motion and Plaintiff’s opposition thereto. ECF 406, 409. For the

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reasons stated below, the motion at ECF 406 is GRANTED IN PART AND DENIED IN PART,

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and the motion at ECF 409 is GRANTED.

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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 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 Plaintiff’s 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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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.

United States District Court
Northern District of California

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A.
ECF
No.
406-4
(407)

ECF 406
Document to be
Sealed:
Portions of Google’s
Motion for Summary
Judgment

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Reasoning

GRANTED as
to redacted
portions,
except those
citing Heath
deposition.

All redacted portions except those citing the
Heath deposition reference sealable material
in the below exhibits and are thus sealable.

DENIED as to
redacted
portions citing
the Heath
deposition.

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Result

The request is denied as to the redacted
portions citing the Heath deposition because
Plaintiff, the designating party, has not filed
a declaration in support of the sealing. Civ.
L.R. 79-5(e).

GRANTED as
to redacted
portions.

Google is ORDERED to file a version of this
document with the Heath deposition cites
unredacted in the public record no earlier
than 4 days and no later than 10 days from
the date of this order.
There are compelling reasons to seal the
redacted portions because they contain
highly confidential and sensitive information
relating to Google’s strategies and techniques
for interviewing candidates, the release of
which could harm Google. Mot. at 3, ECF
406; Ong. Decl. ¶¶ 4, 7, ECF 406-1; see ECF
105; ECF 198; ECF 253; ECF 298.

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406-6
(407-1)

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

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Because the redacted portions of the
document may be sealed, no further action is
required.

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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406-6
(407-1)

Ong Decl. Ex. 1
(gHire dossier)

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GRANTED as
to entire
document.

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406-8
(407-2)

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406-8
(407-2)

United States District Court
Northern District of California

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Portions of
Declaration of
Elizabeth Falcone In
Support of Google’s
Motion for Summary
Judgment (“Falcone
Decl.”)
Falcone Decl. Ex. 1
(Heath deposition
excerpts)

Because the entirety of the document may be
sealed, no further action is required.
Google includes this document in its
proposed order, but the document contains
no redactions.

DENIED.

Because the entirety of the document was
filed in the public record, no further action is
required.
The request is denied because Plaintiff, the
designating party, has not filed a declaration
in support of the sealing. Civ. L.R. 79-5(e).

DENIED.

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406-8
(407-2)

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Falcone Decl. Ex. 2
(Ong deposition
excerpts)

GRANTED as
to entire
document.

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406-8
(407-2)

Falcone Decl. Ex. 3
(Chun deposition
excerpts)

There are compelling reasons to seal the
gHire dossier because it contains
competitively sensitive information, and
disclosure of the dossier could compromise
the objectivity of interviewers’ assessments.
Ong. Decl. ¶ 4. Similar documents were
previously filed under seal pursuant to Court
order. ECF 253.

GRANTED as
to entire
document.

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Google is ORDERED to file a version of this
document in the public record no earlier than
4 days and no later than 10 days from the
date of this order.
There are compelling reasons to seal the
entire excerpt because it contains highly
confidential and sensitive information
relating to Google’s strategies and techniques
for training interviewers and interviewing
candidates, the release of which could harm
Google. Mot. at 3; Ong. Decl. ¶¶ 3(c), 5–7.
Because the entirety of the document may be
sealed, no further action is required.
There are compelling reasons to seal the
entire excerpt because it contains highly
confidential and sensitive information
relating to Google’s strategies and techniques
for interviewing candidates, as well as
confidential gHire dossier documents, the
release of which could harm Google. Mot. at
3; Ong. Decl. ¶¶ 3(a), 5–7.
Because the entirety of the document may be
sealed, no further action is required.

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4

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406-8
(407-2)

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Falcone Decl. Ex. 4
(Tang deposition
excerpts)

GRANTED as
to entire
document.

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There are compelling reasons to seal the
entire excerpt because it contains highly
confidential and sensitive information
relating to Google’s strategies and techniques
for interviewing candidates, as well as
confidential gHire dossier documents, the
release of which could harm Google. Mot. at
3; Ong. Decl. ¶¶ 3(b), 5–7.
Because the entirety of the document may be
sealed, no further action is required.

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B.

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ECF
No.
409-3
(408)

United States District Court
Northern District of California

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ECF 409
Document to be
Sealed:
Plaintiff’s Opposition
to Motion for
Summary Judgment

Result

Reasoning

GRANTED as
to redacted
portions.

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409-5
(408-3)

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Exhibit A to
Declaration of Dow
W. Patten
(Frank Tang
Deposition Excerpts)

GRANTED as
to entire
document.

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409-6
(408-4)

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Exhibit B to
Declaration of Dow
W. Patten
(Documents Produced
by Google)

GRANTED as
to entire
documents.

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409-7
(408-7)

Exhibit E to
Declaration of Dow
W. Patten
(Ong 30(b)(6)
Deposition Excerpts)

GRANTED as
to entire
document.

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References sealable material in below
exhibits.
Because the redacted portions of the
document may be sealed, no further action is
required.
There are compelling reasons to seal the
entire excerpt because it contains highly
confidential and sensitive information
relating to Google’s strategies and techniques
for interviewing candidates, release of which
could harm Google. Ong Decl. ISO Pl. Mot.
¶¶ 3(a), 5–6, ECF 410.
Because the entirety of the document may be
sealed, no further action is required.
There are compelling reasons to seal the
documents because they contain highly
confidential and sensitive information
relating to Google’s strategies and techniques
for interviewing candidates, release of which
could harm Google. Ong Pl. Decl. ¶¶ 3(b),
5–6.
Because the entirety of the documents may
be sealed, no further action is required.
There are compelling reasons to seal the
entire excerpt because it contains highly
confidential and sensitive information
relating to Google’s strategies and techniques
for training interviewers and interviewing
candidates, the release of which could harm
Google. Ong. Pl. Decl. ¶¶ 3(c), 5–6.
Because the entirety of the document may be
sealed, no further action is required.

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III.

ORDER
For the foregoing reasons, the sealing motion at ECF 406 is GRANTED IN PART AND

DENIED IN PART, and the sealing motion at ECF 409 is GRANTED.

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Google must file redacted versions of its summary judgment motion and the Heath

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Declaration into the public record no earlier than 4 days and no later than 10 days from the filing

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of this order.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: December 7, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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