AdTrader, Inc. v. Google LLC
Filing
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ORDER DENYING 75 DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL. Signed by Judge Beth Labson Freeman on 10/26/2018. (blflc3S, COURT STAFF) (Filed on 10/26/2018)
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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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ADTRADER, INC., et al.,
Plaintiffs,
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v.
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GOOGLE LLC,
Defendant.
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United States District Court
Northern District of California
Case No. 17-cv-07082-BLF
ORDER DENYING DEFENDANT’S
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
[Re: ECF 75]
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Before the Court is Defendant Google LLC’s (“Defendant” or “Google”) Administrative
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Motion to File Google’s Responses to Plaintiffs’ Interrogatories and Other Documents Under Seal
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(“Motion”). Motion, ECF 75. Plaintiffs oppose Defendant’s motion. Opp’n, ECF 77. For the
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reasons stated below, Defendant’s motion at ECF 75 is DENIED.
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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 Google’s sealing motion and the declaration of the designating
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party submitted in support thereof (ECF 75 and ECF 75-1, respectively) as well as Plaintiffs’
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Opposition (ECF 77). The Court finds that Google has not articulated a compelling reason to seal
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any portion of the submitted documents. The Court’s ruling on the sealing requests are set forth in
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United States District Court
Northern District of California
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the table below.
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ECF
No.
ECF
75-4
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Document to be Sealed:
Joint Discovery Letter
Brief re: AdTrader
Interrogatory No. 5.
Result
DENIED.
Google has not provided sufficient
reasons for sealing.
As noted by Plaintiffs, see Opp’n
at 3, Google’s Motion is based on
sealing information already in the
public record, which Google
concedes, see Joint Discovery
Letter at 2–3, ECF 75-4.
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ECF
75-6
Attachment to Joint
Discovery Letter Brief
re: AdTrader
Interrogatory No. 5.
DENIED.
Google has not provided sufficient
reasons for sealing.
As noted by Plaintiffs, see Opp’n
at 3, Google’s Motion is based on
sealing information already in the
public record, which Google
concedes, see Joint Discovery
Letter at 2–3, ECF 75-4.
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Reasoning
Google’s argument that sealing is nonetheless appropriate because the public may not be
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aware of Google’s knowledge of or reliance on what is already in the public record, see Motion at
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favoring disclosures, see Ctr. for Auto Safety, 809 F.3d at 1099; Kamakana, 447 F.3d at 1178–79.
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III.
CONCLUSION
For the foregoing reasons, Google’s motion at ECF 75 is DENIED. Google shall file the
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unredacted documents into the public record, as a separate docket entry, no earlier than 4 days and
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no later than 10 days from the filing of this order.
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IT IS SO ORDERED.
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Dated: October 26, 2018
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______________________________________
BETH LABSON FREEMAN
United States District Judge
United States District Court
Northern District of California
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