AdTrader, Inc. v. Google LLC
Filing
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ORDER DENYING SEALING MOTIONS AT ECF 132 AND 142 . Signed by Judge Beth Labson Freeman on 5/8/2019. (blflc3S, COURT STAFF) (Filed on 5/8/2019)
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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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GOOGLE LLC,
[Re: ECF 132, 142]
Defendant.
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United States District Court
Northern District of California
ORDER DENYING SEALING
MOTIONS AT ECF 132 AND 142
v.
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Case No. 17-cv-07082-BLF
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Before the Court are two related administrative motions to seal portions of the briefing and
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exhibits in connection with Plaintiffs’ motion for subsequent case management conference.
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ECF 132, 142. Plaintiffs’ motion at ECF 132 seeks to seal portions of five documents based
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solely on Google’s designations—i.e., Google is the sole designating party. See Plaintiffs’ Motion
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at 1, ECF 132. Plaintiffs argue that neither good cause nor compelling reasons exist to seal any of
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this information. See id. Google’s response (which was filed as a motion) at ECF 142 seeks to
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seal narrowed portions of only three of the five documents. See Google’s Motion at 1, ECF 142.
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For the reasons stated below, both motions to seal are DENIED.
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.
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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United States District Court
Northern District of California
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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 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
United States District Court
Northern District of California
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The instant sealing motions are brought in connection with documents that do not relate to
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the merits of the case, and thus the “good cause” standard applies. Google’s proposed redactions
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are directed to a specific monetary amount that Google apparently is seeking to issue as a credit to
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certain advertisers using Google’s platform. Plaintiffs argue that “the amount of [Google’s]
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proposed refund is not the type of information that courts keep hidden from the public” and that
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Google has not shown good cause to seal the specific amount. See Opp’n at 1, ECF 145.
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The Court agrees that the specific monetary amount and surrounding proposed redactions
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are not subject to sealing. Google’s declaration in support of sealing claims that “[p]ublic
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disclosure of this information would cause significant competitive harm to Google.” See Chang
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Decl. ¶ 4, ECF 142-1. However, the “good cause” standard requires a “particularized showing”—
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that “specific prejudice or harm will result” if the information is disclosed, see Phillips ex rel.
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Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). Here, Google
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asserts only broad allegations of harm tied to the specific monetary amount and surrounding
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proposed redactions, “unsubstantiated by specific examples of articulated reasoning.” See
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Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). Indeed, “[t]he mere fact
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that the [information to be sealed] may lead to a litigant’s embarrassment, incrimination, or
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exposure to further litigation will not, without more, compel the court to seal its records.”
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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Such is the case
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here. The Court’s rulings on the sealing requests are set forth in the table below.
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ECF
No.
Document to be Sealed:
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132-3
142-6
Plaintiffs’ Motion for
Subsequent Case
Management Conference
and Motion for Rule
23(d) Relief
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132-5
142-7
United States District Court
Northern District of California
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Declaration of Randolph DENIED as to the
Gaw in support of
portion identified at
Plaintiffs’ Motion
1:19.
DENIED as to the
remainder.
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Google has failed to show good
cause to seal the identified
portions.
Google, the designating party,
does not seek to seal the remainder
of this document.
Ex. 1 to Gaw Declaration DENIED.
Google, the designating party,
does not seek to seal this
document. See ECF 142 at 1.
132-8
Ex. 2 to Gaw Declaration DENIED.
Google, the designating party,
does not seek to seal this
document. See ECF 142 at 1.
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Google, the designating party,
does not seek to seal the remainder
of this document.
132-6
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Reasoning
DENIED as to the
Google has failed to show good
portions identified at
cause to seal the identified
1:9, 1:15-16, 3:10, 3:24, portions.
5:1.
DENIED as to the
remainder.
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Result
132-10 Ex. 3 to Gaw Declaration DENIED as to the
142-8
portions identified at
86:7, 86:12-15, 86:2122, 86:24, 102:5,
102:17-18, 229:3-15,
229: 9-22, 295:10- 23,
296:2, 296:4, 296:7,
296:9- 22, 302:3-17,
303:1.
DENIED as to the
remainder.
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Google has failed to show good
cause to seal the identified
portions.
Google, the designating party,
does not seek to seal the remainder
of this document.
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For the foregoing reasons, Plaintiffs’ motion at ECF 132 is DENIED, and Google’s motion
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at ECF 142 is DENIED. The submitting party must file the unredacted documents into the public
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record no earlier than 4 days and no later than 10 days from the filing of this order. Civ. L.R. 79-
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5(e)(2).
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IT IS SO ORDERED.
Dated: May 8, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge
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United States District Court
Northern District of California
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