AdTrader, Inc. v. Google LLC

Filing 126

ORDER GRANTING PLAINTIFFS' ADMINISTRATIVE MOTION TO SEAL AT ECF 119 . Signed by Judge Beth Labson Freeman on 3/5/2019. (blflc3S, COURT STAFF) (Filed on 3/5/2019)

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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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ADTRADER, INC., et al.,
Plaintiffs,

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v.

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GOOGLE LLC,
Defendant.

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ORDER GRANTING PLAINTIFFS’
ADMINISTRATIVE MOTION TO
SEAL AT ECF 119
[Re: ECF 119]

Before the Court is Plaintiffs’ administrative motion to file under seal portions of

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United States District Court
Northern District of California

Case No. 17-cv-07082-BLF

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Plaintiffs’ motion for leave to file sur-reply, proposed sur-reply, and a supporting declaration.

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ECF 119. For the reasons stated below, Plaintiffs’ motion to seal 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

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

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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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United States District Court
Northern District of California

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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

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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 Plaintiffs’ sealing motion and the declaration submitted by the

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designating party in support thereof. Plaintiffs sealing request was made “solely because Google

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has designated information in these documents ‘Attorney’s Eyes Only’ pursuant to the parties’

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stipulated protective order.” See Motion at 1 (emphasis removed). Plaintiffs maintain that “none

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of this information should be sealed because compelling reasons do not exist to maintain its

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confidentiality.” Id. Google, on the other hand, argues that these “documents contain highly
sensitive non-public, confidential, and proprietary information regarding Google’s processes for

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United States District Court
Northern District of California

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detecting and addressing invalid activity, its strategic business and financial decisions, and

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information about its customers.” See Response at 1, ECF 124.

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The Court finds that Google, the designating party, has articulated compelling reasons to

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seal certain portions of the submitted documents and the proposed redactions are narrowly

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tailored. The Court notes that Plaintiffs originally filed a similar motion to seal that was

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terminated when Plaintiffs withdrew the accompanying substantive motion. See ECF 116. Prior

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to termination of the original motion to seal, Google had requested to seal narrower and more

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targeted portions of those documents. See ECF 115, 115-2 to 115-7. Plaintiffs’ current proposed

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redactions are only those narrower and more targeted portions previously identified by Google,

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and thus reflect Google’s proposed, narrowly tailored redactions.

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The Court’s rulings on the sealing requests are set forth in the table below:
ECF
No.
119-4

Document to be Sealed:
Plaintiffs’ Motion for
Leave to File Sur-Reply

Result
GRANTED as to the
highlighted portions.

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Reasoning
The portions that Defendant seeks
to seal contain confidential
discussions of the capabilities of
Google’s systems, Google’s
financial details, internal strategic
decisions by Google, and trade
secret methods of detecting invalid
activity from potential violators.

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ECF
No.

Document to be Sealed:

Result

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See, e.g., Fauconnier-Bank Decl.
¶¶ 23–29, ECF 124-1.

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Public disclosure of this
information could cause
competitive harm to Google by
releasing its customers’ financial
and strategic spending
information, and by alerting noncompliant publishers to
information about Google’s
abilities to detect invalid activity.
See, e.g., id. ¶¶ 26, 28.

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119-6

Plaintiffs’ proposed
Sur-Reply

GRANTED as to the
highlighted portions.

United States District Court
Northern District of California

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The portions that Defendant seeks
to seal contain confidential
discussions of the capabilities of
Google’s systems, Google’s
financial processes, and trade
secret methods of detecting invalid
activity and associated payment
processes from potential violators.
See, e.g., Fauconnier-Bank Decl.
¶¶ 4–14, ECF 124-1.
Public disclosure of this
information could cause
competitive harm to Google by
allowing competitors to view
Google’s internal decision-making
processes and financial details,
and by alerting non-compliant
publishers to information about
Google’s abilities to detect invalid
activity. See, e.g., id. ¶¶ 16, 18.

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Reasoning

119-8

Song Declaration in
support of Plaintiffs’
Motion for Leave to File
Sur-Reply

GRANTED as to the
highlighted portions.

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The portions that Defendant seeks
to seal contain confidential
discussions of the capabilities of
Google’s systems, Google’s
financial processes, and trade
secret methods of detecting invalid
activity and associated payment
processes from potential violators.
See Fauconnier-Bank Decl. ¶¶ 30–
32, ECF 124-1.

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ECF
No.

Document to be Sealed:

Result

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Public disclosure of this
information could cause
significant competitive harm to
Google by revealing confidential
strategic discussions about why
Google’s customers choose to
work with Google. Id. ¶ 32.

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Reasoning

III.

ORDER
For the foregoing reasons, Plaintiffs’ sealing motion at ECF 119 is GRANTED. No

further action is required as Plaintiffs have already publicly filed the redacted version of each
document. See ECF 119-3, 122-1, 122-2.

United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 5, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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