American Airlines Inc v. Travelport Limited et al

Filing 492

Appendix in Support filed by Travelport Limited, Travelport, LP re #491 MOTION Unopposed Motion to Permanently Seal Documents Containing Confidential Travelport Information (Pentz, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

AMERICAN AIRLINES, INC.,
Plaintiff,
vs.
TRAVELPORT LIMITED, et al.,
Defendants

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) Case No. 4:11-cv-00244-Y
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APPENDIX TO TRAVELPORT’S UNOPPOSED MOTION TO PERMANENTLY SEAL
DOCUMENTS CONTAINING CONFIDENTIAL TRAVELPORT INFORMATION
Travelport
Appendix Exhibit

Description

Page(s)

1

List of documents that Travelport is requesting be permanently
sealed

1-4

2

Oldendorff Carriers GmbH & Co., KG v. Grand China Shipping
Co., Ltd., 2013 WL 1867604 (S.D. Tex. Apr. 22, 2013)

5-9

3

Gate Guard Servs. L.P. v. Solis, 2012 WL 4625679
(S.D. Tex. Sept. 30, 2012)

9-12

4

In re High-Tech Emp. Antitrust Litig., 2013 WL 163779
(N.D. Cal. Jan. 15, 2013)

13-35

5

Declaration of Thomas DeMay

36-37

Dated: October 14, 2013

Respectfully submitted,
/s/ Michael L. Weiner
Michael L. Weiner
[e-mail]
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036-6797
212.698.3608
212.698.3599 (Fax)

_____

Mike Cowie
[e-mail]
Craig G. Falls
[e-mail]
DECHERT LLP
1775 I Street, NW
Washington, D.C. 20006-2401
202.261.3300
202.261.3333 (Fax)
Carolyn M. Hazard
[e-mail]
Justin N. Pentz
[e-mail]
DECHERT LLP
2929 Arch Street
Philadelphia, PA 19104
215.994.4000
215.994.2222 (Fax)
Walker C. Friedman
State Bar No. 07472500
[e-mail]
Christian D. Tucker
State Bar No. 00795690
[e-mail]
FRIEDMAN, SUDER & COOKE, P.C.
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
817.334.0400
817.334.0401 (Fax)
ATTORNEYS FOR DEFENDANTS
TRAVELPORT LIMITED and
TRAVELPORT, LP

-2-

CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of October, 2013, I electronically filed the foregoing
document with the clerk of the court for the U.S. District Court, Northern District of Texas, Fort
Worth Division, using the electronic case filing system of the court. The electronic case filing
system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in
writing to accept this Notice as service of this document by electronic means.

/s/ Justin N. Pentz
Justin N. Pentz

EXHIBIT 1
Date Filed

Document
No.

6/1/2011

52

6/6/2011

57

6/8/2011

66

6/9/2011
10/20/2011

70
148

12/5/2011
12/22/2011

159
170

12/22/2011

171

12/22/2011

172

12/28/2011

175

1/9/2012

182

1/9/2012

183

1/10/2012

184

1/10/2012

185

1/19/2012

201

1/23/2012

203

2/2/2012

216

Description
American Airlines Inc.’s Motion for Leave to File Under Seal
Attaching First Amended Complaint
American Airlines Inc.’s Motion for Leave to File Under Seal
attaching Opposition to Travelport’s FRCP 12(b)(3) and 28 U.S.C.
§ 1406(a) Motion to Dismiss or Transfer AA’s Complaint
American Airlines Inc.’s Unopposed Motion for Leave to File Under
Seal attaching Opposition to Travelport’s FRCP 12(b)(3) and 28
U.S.C. § 1406(a) Motion to Dismiss or Transfer AA’s Complaint
First Amended Complaint
American Airlines Inc.’s Motion for Leave to File Second Amended
Complaint and Brief in Support
Second Amended Complaint
Memorandum in Support of Travelport’s Rule 12(b)(6) Motion to
Dismiss the Third through Sixth Claims for Relief in Plaintiff’s
Second Amended Complaint
Appendix of Exhibits to Memorandum in Support of Travelport’s
Rule 12(b)(6) Motion to Dismiss the Third through Sixth Claims for
Relief in Plaintiff’s Second Amended Complaint
Partial Answer, Affirmative Defenses, and Counterclaims by
Travelport
Appendix of Exhibits to Travelport’s Opposition to Plaintiff
American Airlines Inc.’s Motion for Protective Order with Respect to
Travelport’s Requests for Admission and Interrogatories
Travelport’s Response in Opposition to Plaintiff American Airlines
Inc.’s Motion for Reconsideration
Appendix in Support of Travelport’s Response in Opposition to
Plaintiff American Airlines Inc.’s Motion for Reconsideration
Travelport’s Response in Opposition to Plaintiff American Airlines
Inc.’s Motion to Extend Scheduling Order Deadlines
Appendix in Support of Travelport’s Response in Opposition to
Plaintiff American Airline Inc.’s Motion to Extend Scheduling Order
Deadlines
American Airlines Inc.’s Opposition to Defendant Travelport’s
Motion to Dismiss the Third through Sixth Claims in American’s
Second Amended Complaint
Appendix in Support of American Airlines Inc.’s Reply to
Travelport’s Response in Opposition to American’s Motion for
Reconsideration of the Court’s November 21, 2011 Order
Defendant Orbitz Worldwide, LLC’s Reply in Support of its Motion
to Dismiss Plaintiff’s Second Amended Complaint

R

Date Filed

Document
No.

2/2/2012

217

2/2/2012

218

2/6/2012

222

2/7/2012

223

2/9/2012

224

2/9/2012

225

2/14/2012

231

3/9/2012

256

3/9/2012

257

3/13/2012

258

3/19/2012
3/30/2012

265
278

3/30/2012

279

4/2/2012

280

4/2/2012

281

4/5/2012

288

4/6/2012

290

Description
Appendix in Support of Defendant Orbitz Worldwide, LLC’s Reply
in Support of its Motion to Dismiss Plaintiff’s Second Amended
Complaint
Reply in Further Support of Travelport’s Rule 12(b)(6) Motion to
Dismiss the Third through Sixth Claims for Relief in Plaintiff’s
Second Amended Complaint
Travelport’s Opposed Motion for Leave to File Surreply in
Opposition to American Airlines, Inc.’s Motion for Reconsideration
Travelport’s Response to Plaintiff’s Motion to File Supplemental
Brief in Support of its Motion to Extend Scheduling Order Deadlines
Motion for an Order to Permitting Defendant Orbitz Worldwide,
LLC to Share Certain Documents with In-House Counsel Pursuant to
the Protective Order
Appendix in Support of Orbitz’s Motion for Order Permitting it to
Share Certain Documents
Appendix in Support of Motion by the Travelport Defendants to
Compel Discovery and for Sanctions
American Airlines Inc.’s Motion to Compel Travelport Defendants
and Memorandum in Support Thereof
Appendix in Support of American Airlines Inc.’s Motion to Compel
Travelport Defendants and Memorandum in Support Thereof
Travelport’s Brief in Opposition to Plaintiff American Airlines, Inc.’s
Rule 12(b)(6) Motion to Dismiss Travelport’s Counterclaims
Supplement to Second Amended Complaint
Response in Opposition to American Airlines Inc.’s Motion to
Compel Travelport Defendants
Appendix in Support of Response in Opposition to American
Airlines Inc.’s Motion to Compel Travelport Defendants
American Airlines Inc.’s Motion to Compel Travelport Production of
Documents in Response to American Airlines Inc.’s Third, Fourth,
and Fifth Requests for Production of Documents and Memorandum
in Support Thereof
Appendix in Support of American Airlines Inc.’s Motion to Compel
Travelport Production of Documents in Response to American
Airlines Inc.’s Third, Fourth, and Fifth Requests for Production of
Documents and Memorandum in Support Thereof
Brief in Support of Travelport’s Supplemental Rule 12(b)(6) Motion
to Dismiss Plaintiff American Airlines, Inc.’s Supplement to Second
Amended Complaint
American Airlines Inc.’s Motion to Compel Production of
Documents Wrongfully Withheld Under the Guise of Privilege by the
Travelport Defendants and Memorandum in Support Thereof

-2S

Date Filed

Document
No.

4/6/2012

291

4/13/2012

297

4/13/2012

298

4/26/2012

307

4/26/2012

308

5/7/2012

316

5/7/2012

317

5/10/2012

319

5/14/2012

320

5/14/2012

321

5/16/2012

327

Description
Appendix in Support of American Airlines Inc.’s Motion to Compel
Production of Documents Wrongfully Withheld Under the Guise of
Privilege by the Travelport Defendants and Memorandum in Support
Thereof
American Airlines Inc.’s Reply in Support of its Motion to Compel
Travelport Defendants
Appendix in Support of American Airlines Inc.’s Reply in Support of
its Motion to Compel Travelport Defendants
Plaintiff American Airlines Inc.’s Supplemental Brief in Opposition
to Travelport’s Motion to Dismiss the Second Amended Complaint
Appendix in Support of Plaintiff American Airlines Inc.’s
Supplemental Brief in Opposition to Travelport’s Motion to Dismiss
the Second Amended Complaint
American Airlines Inc.’s Combined (I) Amended Motion to Compel
Production of Documents Wrongfully Withheld Under the Guise of
Privilege by the Travelport Defendants, and (II) Motion for Leave to
File Supplemental Amended Motion and Memorandum in Support
Thereof
Appendix in Support of American Airlines Inc.’s Combined (I)
Amended Motion to Compel Production of Documents Wrongfully
Withheld Under the Guise of Privilege by the Travelport Defendants,
and (II) Motion for Leave to File Supplemental Amended Motion and
Memorandum in Support Thereof
Reply in Support of Travelport’s Supplemental Rule 12(b)(6) Motion
to Dismiss Plaintiff American Airlines Inc.’s Supplement to Second
Amended Complaint
Response in Opposition to American Airlines Inc.’s Combined
(I) Amended Motion to Compel Production of Documents
Wrongfully Withheld Under the Guise of Privilege by the Travelport
Defendants, and (II) Motion for Leave to File Supplemental
Amended Motion and Memorandum in Support Thereof
Appendix in Support of Response in Opposition to American
Airlines Inc.’s Combined (I) Amended Motion to Compel Production
of Documents Wrongfully Withheld Under the Guise of Privilege by
the Travelport Defendants, and (II) Motion for Leave to File
Supplemental Amended Motion and Memorandum in Support
Thereof
Appendix to Motion by Defendants Travelport and Orbitz (A) for
Leave to Take up to Twenty-Five Fact Depositions and (B) for
Expedited Treatment

-3T

Date Filed

Document
No.

5/18/2012

328

6/4/2012

344

6/13/2012

346

6/13/2012

347

8/21/2012
1/29/2013

388
425

1/29/2013

426

2/25/2013

455

2/25/2013

456

Description
American Airlines Inc.’s Reply in Support of its Combined
(I) Amended Motion to Compel Production of Documents
Wrongfully Withheld Under the Guise of Privilege by the Travelport
Defendants, and (II) Motion for Leave to File Supplemental
Amended Motion and Memorandum in Support Thereof
Appendix in Support of Plaintiff American Airlines Inc.’s Reply
Brief in Support of its Cross Motion for Expansion of Deposition
Limit, Enlargement of Time, and for Expedited Treatment
American Airlines Inc.’s Supplement Brief in Support of its Cross
Motion for Expansion of Deposition Limit, Enlargement of Time,
and for Expedited Treatment
Appendix in Support of American Airlines Inc.’s Supplement Brief
in Support of its Cross Motion for Expansion of Deposition Limit,
Enlargement of Time, and for Expedited Treatment
Travelport’s Consolidated Answer and Affirmative Defenses
American Airlines Inc.’s Motion to Compel production of
Documents Improperly Clawed Back by Orbitz under Claim of
Privilege and Memorandum in Support Thereof
Appendix in Support of American Airlines Inc.’s Motion to Compel
production of Documents Improperly Clawed Back by Orbitz under
Claim of Privilege and Memorandum in Support Thereof
Brief in Support of Plaintiff American Airlines’ Motion to Authorize
Deposit into Court Registry and for Expedited Trial
Appendix in Support of Brief in Support of Plaintiff American
Airlines’ Motion to Authorize Deposit into Court Registry and for
Expedited Trial

-4U

Oldendorff Carriers GmbH & Co., KG v. Grand China Shipping..., Slip Copy (2013)

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20, 2010. Id. Pursuant to the sub-charter, Oldendorff then
instructed the vessel to proceed to Narvik, Norway on
February 9, 2011 in order to fulfill a freighting contract with
a Saudi corporation. Id.

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Attorneys and Law Firms
Briton P. Sparkman, George A. Gaitas, Chalos and Co. PC,
Houston, TX, Dabney Welsh Pettus, Welder Leshin LLP,
Corpus Christi, TX, George M. Chalos, Chalos and Co.,
Oyster Bay, NY, for Plaintiff.
John “Jack” C. Partridge, Royston Rayzor et al., Corpus
Christi, TX, Richard Anthony Branca, Royston Rayzor
Vickery & Williams LLP, Houston, TX, for Defendants.
Opinion

MEMORANDUM AND RECOMMENDATION
TO UNSEAL DOCUMENTS
BRIAN L. OWSLEY, United States Magistrate Judge.
*1 This is an admiralty action filed pursuant to
Supplemental Rule B of the Federal Rules of Civil Procedure
and the Federal Arbitration Act, 9 U.S.C. §§ 4, 8 in aid of
maritime arbitration by plaintiff Oldendorff Carriers GMBH
& Co., KG (“Oldendorff”). (D.E.1). Pending is an advisory
to the Court regarding documents that should remain under
seal submitted by defendants Offshore Heavy Transport AS
(“OHT”) and OHT Eagle AS (“OHT Eagle”). (D.E.64). For
the following reasons, it is respectfully recommended that the
documents identified by defendants remain under seal but that
all other sealed documents be unsealed, and that a modified
confidentiality order be entered.

I. BACKGROUND
On August 5, 2008, defendant Grand China Shipping (Hong
Kong) Co., LTD (“GCS”) entered into an agreement with
Korea Line Corporation (“KLC”) to time charter the vessel

Before the Daphne was able to execute Oldendorff's orders,
however, KLC determined that GCS breached their charter
contract by failing to make hire payments. Id. On February
23, 2011, KLC withdrew the Daphne from GCS's service
and Oldendorff was no longer able to use the vessel. Id.
As a consequence, Oldendorff was forced to arrange for
a replacement vessel to complete the cargo shipping order
at a cost of $1,044,503.00. Id. at 4. At that time, GCS
owed Oldendorff an additional $1,665,916.04 for other nonreimbursed expenses and charges. Id.
On July 6, 2011, Oldendorff commenced an arbitration
proceeding against GCS in London pursuant to the terms
of their sub-charter contract. Id. at 5. In order to obtain
security for that proceeding, Oldendorff instituted this action
against GCS on March 7, 2012, pursuant to Supplemental
Rule B of the Federal Rules of Civil Procedure as well as the
Federal Arbitration Act, 9 U.S.C. §§ 4, 8, in aid of maritime
arbitration. Id. Oldendorff claims that GCS breached their
sub-charter contract by failing to meet its contractual
obligations to KLC. Id. at 4, 17. After including interest and
attorney fees, the complaint asserted a recoverable amount
totaling $3,470,551.95. Id. at 5, 14. Oldendorff also sought
to hold Grand China Logistics Holding (Group) Company
Limited (“GCL”), OHT, and OHT Eagle liable for GCS's
breach on the basis that an alter ego relationship existed
between each of these corporations. Id. at 10–12.
Simultaneously, Oldendorff submitted a motion to seize the
OHT Eagle, which was then within the territorial jurisdiction
of this Court. (D.E.3). This motion was granted on March 8,
2012 and the OHT Eagle was seized. (D.E.7). OHT posted
bond on March 15, 2012, (D.E.16), and plaintiff consented to
the release of the vessel. (D.E.17).
*2 On April 19, 2012, OHT and OHT Eagle filed an
unopposed motion for a confidentiality order regarding
certain proprietary information, (D.E.25), which was granted
on April 20, 2012. (D.E.26). At a hearing held on March
19, 2013, this Court ordered defendants to file an advisory
regarding which documents should remain under seal. OHT

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and OHT Eagle filed their advisory on March 29, 2013.
(D.E.64).

II. DISCUSSION
Defendants concede that they are “not opposed to unsealing
most of the documents” that have been filed as sealed
throughout this litigation. (D.E. 64, at 2). However, they have
identified several documents that they contend should be kept
sealed, including the following:
(1) the Shareholders' Agreement, (D.E. 27–1, at 8–82; D.E.
51, at 6–79; D.E. 56–1, at 8–82; D.E. 56–2, at 7–34);
(2) the Declaration of Adherence, (D.E. 27–1, at 83; D.E.
56–1, at 83; D.E. 56–2, at 111);
(3) the Declaration of Erik Ostbye, (D.E.40–1);
(4) the Arbitration Demand Letter, (D.E. 40–2; D.E. 56–2,
at 130–32);
(5) an email from Tom E. Jebsen, (D.E. 51–3, at 31–34);
(6) OHT Board Minutes, (D.E. 51–4, at 85–86; D.E. 51–
5, at 8–12);
(7) the Security Agreement, (D.E. 51–5, at 1–6; D.E. 56–
2, at 127–29);
(8) the Pledge Agreement, (D.E. 51–5, at 13–24; D.E. 56–
2, at 115–125);
(9) the Share Purchase Agreement, (D.E. 51–5, at 25–35;
D.E. 56–2, at 7–34);
(10) the Deposition Testimony of Arne Blystad, (D.E. 56–
3; D.E. 58–1, at 5–129);
(11) a letter from Jon Christian Syvertsen, (D.E. 58–1, at
138–41); and
(12) a letter on behalf of Credit Agricole Corporate and
Investment Bank, (D.E.62–1).
Pursuant to Rule 26(c)(1) of the Federal Rules of Civil
Procedure, upon motion of a party “[t]he court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense” by specifying and limiting the terms of disclosure. “
‘[T]he burden is upon [the party seeking the protective order]

to show the necessity of its issuance, which contemplates a
particular and specific demonstration of fact as distinguished
from stereotyped and conclusory statements.’ ” M–I LLC
v. Stelly, 733 F.Supp.2d 759, 801 (S.D.Tex.2010) (quoting
Sanchez v. Property & Cas., No. H–09–1736, 2010 WL
107606, at *1 (S.D.Tex. Jan.7, 2010) (unpublished)); accord
In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998) (per
curiam).
Here, the parties were granted a confidentiality order limiting
disclosure of information they deem confidential. They
have taken full advantage of this order, filing all pleadings
related to dispositive motions under seal. A review of these
pleadings as well as the attached documents suggests that
they have designated information as confidential where it is
inappropriate or unnecessary. At this juncture, it is unclear
why such a broad order continues to be necessary.
A court retains discretion to modify a protective order once it
has been entered. United Nuclear Corp. v. Cranford Ins. Co.,
905 F.2d 1424, 1427 (10th Cir.1990) (citation omitted); In re
United States' Motion to Modify Sealing Orders, No. 5:03–
MC–2, 2004 WL 5584146, at *2 (E.D.Tex. June 8, 2004)
(unpublished) (quoting Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)).
Four factors should guide its consideration of whether a
modification is appropriate, including: “(1) the nature of the
protective order, (2) the foreseeability, at the time of issuance
of the order, of the modification requested, (3) the parties'
reliance on the order; and most significantly (4) whether
good cause exists for the modification.” Murata Mfg. Co. v.
Bel Fuse, Inc., 234 F.R.D. 175, 179 (N.D.Ill.2006) (citation
omitted); accord In re Enron Corp. Secs., Derivative &
ERISA Litig., No. MDL–1446, 2009 WL 3247432, at *3
(S.D.Tex. Sep.29, 2009) (unpublished); Bayer AG and Miles,
Inc. v. Barr Labs., Inc., 162 F.R.D. 456, 458 (S.D.N.Y.1995).
A careful application of these factors reveals that while most
of the specific documents identified by defendants warrant
confidentiality, the remaining sealed documents do not.

A. The Nature Of The Confidentiality Order.
*3 First, relevant to the nature of a confidentiality order is “
‘its scope and whether it was court imposed or stipulated to by
the parties.’ ” Murata, 234 F.R.D. at 179 (quoting Bayer, 162
F.R.D. at 465) (citation omitted). Generally, courts should be
more hesitant to modify narrowly defined orders that pertain
to “a specific type of identified information,” as opposed to
blanket confidentiality orders. Id.

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Here, the scope of the protective order is quite broad
based on the parties' request. Specifically, pursuant to
the unopposed motion, the order limits disclosure of
“Confidential Information,” which it defines as:
[A]ll information, whether or not
embodied in a document or
other physical medium, which the
Producing Party believes in good
faith is confidential, private or
personal information relating to,
among other things, any one of the
Parties, their business or activities,
or employees or former employees
of one of the Parties, which the
Producing Party would not normally
reveal to third parties except in
confidence, or has undertaken to
maintain in confidence.
(D.E. 26, at 2). Based on this broad definition, the parties
have found it appropriate to seal all dispositive motions and
corresponding pleadings. In essence, the confidentiality order
has permitted the parties to litigate in secret. Accordingly, its
sweeping scope weighs toward modification.

B. Foreseeability Of Modification.
Second, regarding the foreseeability factor, the relevant
inquiry is “ ‘whether the need for modification of the order
was foreseeable at the time the parties negotiated the original
stipulated protective order.’ ” Murata, 234 F.R.D. at 180
(quoting Bayer, 162 F.R.D. at 466). “ ‘[A] party's oversight in
not negotiating a provision in a protective order considering
a matter which should have been reasonably foreseeable at
the time of the agreement has been held not to constitute
good cause for relief from the protective order.’ ” Id. (quoting
Jochims v. Isuzu Motors Ltd., 145 F.R.D. 499, 502 (S.D.Iowa
1992)). Here, this factor has little bearing on the modification
analysis because no party seeks modification. However, as
a practical matter, it should be foreseeable that an overlyliberal interpretation of a confidentiality order that results in
excessive and unnecessary sealing may result in modification
of that order.

C. The Parties' Reliance On The Confidentiality Order.
Third, in evaluating the reliance factor, the court should
consider “ ‘the extent to which a party resisting modification
relied on the protective order in affording access to discovered

materials.’ ” Id. (quoting Bayer, 162 F.R.D. at 467). It
is “ ‘presumptively unfair ... to modify protective orders
which assure confidentiality and upon which the parties have
reasonably relied.’ ” AT & T Corp. v. Sprint Corp., 407 F.3d
560, 562 (2d Cir.2005) (quoting S.E.C. v. TheStreet.com,
273 F.3d 222, 230 (2d Cir.2001)). Specifically pertaining
to reliance, defendants argue that Mr. Blystad's deposition
testimony, in particular, should remain sealed because “the
parties relied upon the confidentiality of the deposition when
participating and answering questions posited by opposing
counsel.” (D.E. 64, at 7). In addition, they indicate that
the parties relied on the confidentiality order in proceeding
with litigation. (D.E. 64, at 2 n. 2). Accordingly, this
reliance weighs against unsealing the documents identified
by defendants in their advisory, including, in particular, Mr.
Blystad's deposition testimony.

D. Good Cause For Modification.
*4 Fourth, in evaluating whether good cause for
modification exists, “the court must weigh [the] need for
modification against [the] need for protection, and ought
to factor in the availability of alternatives to better achieve
both ... goals.” Murata, 234 F.R.D. at 180 (citations omitted).
In the case of a blanket confidentiality order, “ ‘the burden
of showing good cause is on the party seeking continued
confidentiality protection.’ ” In re Enron Corp., 2009 WL
3247432, at *3 (quoting Holland v. Summit Autonomous, Inc.,
No. Civ. A. 00–2313, 2001 WL 930879, at *2–3 (E.D.La.
Aug.14, 2001) (unpublished)).
Here, the need for modification is apparent in light of
the parties' tendency to seal documents that do not appear
to contain confidential information. This practice flies in
the face of the common law right to access and inspect
judicial records. See Macias v. Aaron Rents, Inc., 288 F.
App'x 913, 915 (5th Cir.2008) (unpublished); S.E.C. v.
Van Waeyenberghe, 990 F.2d 845, 849–50 (5th Cir.1993)
(“ ‘Public access [to judicial records] serves to promote
trustworthiness of the judicial process, to curb judicial
abuses, and to provide the public with a more complete
understanding of the judicial system, including a better
perception of its fairness.’ ”) (citations omitted). Defendants
concede that many of the materials they have filed could be
unsealed. However, they contend that there is good cause
to maintain the confidentiality of certain documents that fall
into four different categories: (1) confidential and proprietary
financial agreements; (2) confidential board minutes and
board communications; (3) documents related to exercise

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of financial options; and (4) deposition testimony regarding
OHT's operations.
First, defendants argue that materials consisting of
confidential and proprietary financial agreements should
remain sealed because several of the documents are
agreements that contain specific confidentiality clauses upon
which OHT, as well as third parties, relied when entering
into them. In addition, release of the exhibits, which contain
information relating to “company ownership, exercise of
financial options, business plans, corporate decision guides,
and corporate governance policies,” would place OHT at
a disadvantage to its competitors in the highly competitive
international shipping industry. (D.E. 64, at 5–6). Although
defendants reference various “documents” that fall within
this category, it only specifically identifies the Shareholders
Agreement. Id. Presumably, it meant to include in this
category the Share Purchase Agreement, which also contains
a confidentiality clause, as well as the Declaration of
Adherence to the Shareholders Agreement; the Security
Agreement, the Pledge Agreement, and the Share Purchase
Agreement. (D.E. 56–2, at 26). Given OHT's reliance on
the confidential nature of these agreements, as well as
the possibility that disclosure would potentially harm its
competitive standing in the shipping industry, defendants
have established good cause to maintain seal over the
documents. See Nixon, 435 U.S. at 598 (noting that courts
have denied access to court records when they might be
used “as sources of business information that might harm a
litigant's competitive standing”) (citations omitted).
*5 Second, defendants submit that documents related to
its confidential board minutes and board communications
should remain under seal because they contain “confidential,
attorney-client and trade secret information,” including
discussions regarding “various financial plans, corporate
strategies, potential implications stemming from those
decisions, strategies on handling ongoing legal matters,
and further information related to internal, corporate
operations.” (D.E. 64, at 6). Presumably included in this
category are the Arbitration Demand Letter; the OHT
Board Minutes; the letter from Mr. Syvertsen; and the
letter on behalf of Credit Agricole Bank. In addition
to these documents, defendants specifically urge that
confidentiality be maintained for three related exhibits:
(1) Mr. Blystad's deposition testimony; (2) a subpoena to
testify at a deposition or to produce documents served
upon defendant GCL in January 2013; and (3) Mr. Jebsen's
email regarding OHT's financial circumstances between

its board of directors from May 2012. (D.E.58–1). Of
these three exhibits, it is unclear why the subpoena is
included. 1 Although it seeks disclosure of documents
related to transactions described in various declarations and
deposition, (D.E. 58–1, at 135–37), it contains little specific
information revealing financial arrangements or strategies.
To the extent it does refer to specific information, these
details are publicly available through the memorandum
and recommendations that have been issued by this Court.
Accordingly, defendants have failed to show good cause for
continued sealing of the subpoena. However, the minutes
from board meetings, Mr. Blystad's deposition testimony, and
the communications between OHT board members do contain
sensitive information that, if revealed to competitors, could be
disadvantageous to OHT's business. Therefore, there is good
cause to keep these exhibits sealed.
Third, defendants contend that documents related to the
exercise of financial options outlined in the Shareholder
Agreement and other agreements should remain sealed
because they reveal sensitive information contained in
the Shareholders Agreement and “represent significant and
confidential financial dealings involving [OHT].” (D.E. 64,
at 7). In addition, they explain that “at least one of these
exhibits”-although it does not reveal which one-“implicate
[s] confidential information regarding loan agreements” to
which it was a party. Id. Presumably, defendants include
in this category the Pledge Agreement, the Arbitration
Demand Letter, the Share Purchase Agreement, the letter
from Mr. Syvertsen, and the letter from Credit Agricole
Bank. (D.E. 51; D.E. 56). Because these documents relate
to confidential information contained in the Shareholders'
Agreement, the disclosure of which could potentially place
OHT at a disadvantage to its competitors, defendants have
shown good cause to maintain these documents under seal.
Lastly, defendants seek to maintain seal of the deposition
testimony by Mr. Blystad because it contains information
regarding confidential documents as well as OHT's internal
operations and financial status. They argue that this
information is the type sought by competitors seeking to gain
an advantage in the international shipping industry, and that
the parties conducted the deposition under the impression
that it would remain confidential. Given the possibility that
Mr. Blystad's deposition could place OHT at a disadvantage
to its competitors, as well as the fact that the parties relied
on its confidentiality, defendants have shown good cause to
maintain these records under seal.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

4

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Oldendorff Carriers GmbH & Co., KG v. Grand China Shipping..., Slip Copy (2013)

III. RECOMMENDATION
*6 In light of the foregoing, it is respectfully recommended
that the documents identified in defendants' advisory, with
the exception of the subpoena duces tecum, remain sealed
going forward in this litigation. However, in the interest of
promoting access to judicial records and absent any other
overriding interest, it is respectfully recommended that the
remaining documents that have been filed under seal be
unsealed.
It is respectfully recommended that defendants have
established good cause to maintain seal over the following
documents:
(1) the Shareholders' Agreement, (D.E. 27–1, at 8–82; D.E.
51, at 6–79; D.E. 56–1, at 8–82; D.E. 56–2, at 7–34);
(2) the Declaration of Adherence, (D.E. 27–1, at 83; D.E.
56–1, at 83; D.E. 56–2, at 111);
(3) the Declaration of Erik Ostbye, (D.E.40–1);
(4) the Arbitration Demand Letter, (D.E. 40–2; D.E. 56–2,
at 130–32);

(5) an email from Tom E. Jebsen, (D.E. 51–3, at 31–34);
(6) OHT Board Minutes, (D.E. 51–4, at 85–86; D.E. 51–
5, at 8–12);
(7) the Security Agreement, (D.E. 51–5, at 1–6; D.E. 56–
2, at 127–29);
(8) the Pledge Agreement, (D.E. 51–5, at 13–24; D.E. 56–
2, at 115–125);
(9) the Share Purchase Agreement, (D.E. 51–5, at 25–35;
D.E. 56–2, at 7–34);
(10) the Deposition Testimony of Arne Blystad, (D.E. 56–
3; D.E. 58–1, at 5–129);
(11) a letter from Jon Christian Syvertsen, (D.E. 58–1, at
138–41); and
(12) a letter on behalf of Credit Agricole Corporate and
Investment Bank, (D.E.62–1).
In addition, it is respectfully recommended that all other
documents that have been filed under seal be unsealed going
forward in this litigation.

Footnotes

1

Indeed, defendants did not identify the subpoena as an exhibit they seek to maintain as sealed elsewhere in their brief. (D.E. 64, at 3).

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

5

Z

Gate Guard Services L.P. v. Solis, Not Reported in F.Supp.2d (2012)

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Gate Guard is in the business of providing gate attendant
services to oil companies. After the Secretary issued
a determination that Gate Guard's gate attendants are
employees rather than independent contractors and that Gate
Guard is therefore subject to the minimum wage and overtime
requirements of the Fair Labor Standards Act (FLSA), Gate
Guard filed the present action seeking a declaratory judgment
that it is in compliance with the FLSA.

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Attorneys and Law Firms
Annette A. Idalski, Chamberlain Hrdlicka et al, Atlanta,
GA, Daniel Douglas Pipitone, Chamberlain Hrdlicka et al,
Houston, TX, Kelly E. Campanella, Chamberlain Hrdlicka
White Williams Martin, Atlanta, GA, for Plaintiffs/Counter–
Defendants.
Colleen Backus Nabhan, Richard M. Moyed, U.S.
Department of Labor, Jennifer J. Johnson, The United States
Department of Labor, Dallas, TX, John Albert Smith, III,
Lawrence McKinley Ludka, Office of the U.S. Attorney,
Corpus Christi, TX, for Defendant/Counter–Plaintiff.
Opinion
MEMORANDUM OPINION AND ORDER
JOHN D. RAINEY, Senior District Judge.
*1 Pending before the Court is Plaintiff/Counter–Defendant
Gate Guard Services, L.P.'s (“Gate Guard”) Amended Motion
to Seal Portions of the Deposition Transcripts of Bert
Steindorf and Sidney L. Smith and Motion for Protective
Order (Dkt. No. 96), to which Defendant/Counter–Plaintiff
Hilda Solis, Secretary of Labor, United States Department of
Labor (“the Secretary”) has responded (Dkt. No. 98) and Gate
Guard has replied (Dkt. No. 106, Ex. A). 1 Having considered
the motion, response, reply, record, and applicable law, the
Court is of the opinion that Gate Guard's motion should be
GRANTED in part and DENIED in part.

I. Background

On October 20, 2011, counsel for the Secretary took
the deposition of Gate Guard's owner, Bert Steindorf
(“Steindorf”). During that deposition, Steindorf testified
in response to questioning concerning what Gate Guard
characterizes as confidential business information and trade
secrets, including confidential information about customer
identities, client development methods, and marketing
strategies. The following day, counsel for the Secretary
took the deposition of Gate Guard manager Sidney L.
Smith (“Smith”). Like Steindorf, Smith testified regarding
what Gate Guard characterizes as confidential company
information and trade secrets, including marketing practices.
In its motion to seal and for protective order, Gate Guard
now seeks two forms of relief: (1) an order sealing specific
portions of the deposition transcripts and exhibits that will
be filed with the Court; and (2) a protective order preserving
the confidentiality of the deposition transcripts and exhibits
throughout discovery. Gate Guard's original motion argued
that 156 pages of Steindorf's deposition, 65 pages of Smith's
deposition, and 11 deposition exhibits should be filed under
seal and treated as confidential. Gate Guard has since limited
its request to 15 pages of Steindorf' s deposition, 1 page of
Smith's deposition, and 1 exhibit. Specifically, Gate Guard
now requests to seal: Steindorf Deposition pages 75–78,
138–39, 165, 185–86, 203–04, 265–66, and 347–48; Smith
Deposition page 63; and Exhibit 8 to Steindorf's Deposition.
These documents discuss Gate Guard's client identities
and marketing strategies, which Gate Guard argues are
confidential “trade secrets,” as both are used for competitive
advantage and are kept “secret” so that they are not readily
ascertainable by the public.

II. Legal Standard
When a deposition transcript or other piece of evidence is
filed with the court, it is considered a “judicial record.” Our
courts have recognized that the public has a common law
right to inspect and copy judicial records. Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306,
55 L.Ed.2d 570 (1978); Belo Broadcasting Corp. v. Clark,

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Gate Guard Services L.P. v. Solis, Not Reported in F.Supp.2d (2012)

654 F.2d 423, 429 (5th Cir.1981). The public's common law
right, however, is not absolute and access may be denied
“where court files might have become a vehicle for improper
purposes.” Nixon, 435 U.S. at 598; see Belo, 654 F.2d at 430.
Even though not absolute, the public's common law right of
access to judicial papers establishes a presumption in favor
of open records. Belo, 654 F.2d at 434; see also Littlejohn v.
BIC Corp., 851 F.2d 673, 678 (3rd Cir.1988). Accordingly,
“the district court's discretion to seal the record of judicial
proceedings is to be exercised charily.” Federal Savings and
Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir.1987).
*2 In addition to ordering that certain portions of the
judicial record be filed under seal, courts may also enter
protective orders “restrict[ing] use of discovery materials
to the [opposing party], their representatives, their counsel,
and their experts or consultants” under a showing of “good
cause.” Scott v. Monsanto Co., 868 F.2d 786, 792 (5th
Cir.1989). Under Rule 26, a court:
may, for good cause, issue an
order to protect a party or person
from annoyance, embarrassment,
oppression, or undue burden or
expense, including ... requiring that
a trade secret or other confidential
research, development, or commercial
information not be revealed or be
revealed only in a specified way.
FED. R. CIV. P. 26(c)(1)(G).
Under Texas law, “a trade secret is ‘any formula, pattern,
device or compilation of information which is used in one's
business and presents an opportunity to obtain an advantage
over competitors who do not know or use it.’ ” In re Bass,
113 S.W.3d 735, 739 (Tex.2003) (quoting Computer Assocs.
Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996)).
).
Customer lists, client information, and marketing strategies
have been recognized as trade secrets by Texas courts.
See Global Water Group, Inc. v. Atchley, 244 S.W.3d
924, 928 (Tex.App.-Dallas 2008, pet. denied) (citing T–N–
T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965
S.W.2d 18, 22 (Tex.App.-Houston [1st Dist.] 1998, no pet.)).
).

III. Analysis
A. Client Identities

With respect to its client identities, Gate Guard has offered
evidence that it has taken affirmative steps to keep its
client list confidential. Specifically, Gate Guard: does not
publicize its client list; does not divulge to outside parties any
information pertaining to the parties' contractual relationship
or Gate Guard's performance of services; maintains its
Master Service Agreements (MSAs) with clients in a locked
room; and password protects the MSAs on its computer's
server. Gate Guard has submitted further evidence that it has
represented to its clients that it will not publicly disclose their
names or information concerning the work it performs for
them.
The Court finds that the identities of Gate Guard's clients have
no bearing on the central issue in this case, which is whether
Gate Guard's gate attendants are employees or independent
contractors. The Court further finds that Gate Guard has made
a sufficient showing that the interests favoring nondisclosure
outweigh the public's common law right of access with
respect to its client list. Thus, if Gate Guard had moved to seal
a copy of its client list, the Court would grant such a request.
See Hal Wagner Studios v. Elliott, 2009 WL 854676, at *3
(S.D.Ill. Mar.30, 2009) (granting motion to seal customer
lists); U.S. ex rel. Greg Westfall v. Axiom Worldwide, Inc.,
2008 WL 5341140, at *4 (M.D.Fla. Dec.19, 2008) (holding
that sealing customer lists attached to the complaint was
necessary to “protect confidential information about innocent
third parties”).
*3 However, that does not mean that every document in this
case that contains the name of a Gate Guard client must be
filed under seal. 2 Instead, the Court finds that the identities of
Gate Guard's clients can be sufficiently protected by merely
redacting this information from any exhibits before filing
them with the Court.

2. Marketing Strategy
A review of Steindorf and Smith's deposition transcripts
shows that both individuals testified in some detail as to two
specific “marketing tools” that Gate Guard uses in order to
attract new clients. Although it is not clear how valuable these
marketing strategies may be to Gate Guard's competitors, how
much it cost Gate Guard to develop them, or how much it
would cost Gate Guard's competitors to acquire or duplicate
them, many Texas courts recognize that marketing strategies
and tools are generally protected as trade secrets. See Bayco
Prods., Inc. v. Lynch, 2011 WL 1602571, *4 (N.D.Tex.
Apr.28, 2011) (citing Tex. Integrated Conveyor Sys., Inc. v.

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Gate Guard Services L.P. v. Solis, Not Reported in F.Supp.2d (2012)

Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 367
(Tex.App.2009, pet.denied); Global Water Grp., 244 S.W.3d
at 928 (Tex.App.2008, pet.denied); T–N–T Motorsports, 965
S.W.2d at 22; Grand Time Corp. v. Watch Factory, Inc., 2010
WL 92319, at *4 (N.D.Tex. Jan.6, 2010) (Kinkeade, J.).
The Court finds that Gate Guard has “plausibly pleaded that
the marketing ‘know-how’ on which it relies qualifies as a
trade secret under Texas law.” Bayco, 2011 WL 1602571, at
*4.
*4 Because the Fifth Circuit has held that using or disclosing
even one trade secret may create a substantial threat of
irreparable injury, Union Carbide Corp. v. UGI Corp., 731
F.2d 1186, 1191–92 (5th Cir.1984), good cause exists for
sealing any deposition testimony that discusses Gate Guard's
marketing strategies and issuing a protective order limiting
the disclosure of the same. See Thermotek, Inc. v. WMI Ents.,
LLC, 2011 WL 1485421, at * 9 (N.D.Tex. Apr.19, 2011)
(granting motion to seal exhibits containing trade secrets).

IV. Conclusion
For the aforementioned reasons, it is hereby ORDERED
that Gate Guard's Amended Motion to Seal Portions of the
Deposition Transcripts of Bert Steindorf and Sidney L. Smith

and Motion for Protective Order (Dkt. No. 96) is GRANTED
in part and DENIED in part, as follows:
(1) Gate Guard's motion to seal Exhibit 8 to Steindorf's
Deposition is DENIED;
(2) The Parties shall REDACT the names of any Gate Guard
clients from all filings in this case;
(3) To the extent that any of the following documents
discussing Gate Guard's marketing strategies are filed as
evidence in this case, the Parties are directed to file these
Protected Materials UNDER SEAL: Steindorf Dep. pages
75–78, 138–39, 165, 185–86, 202, 265–66, 347–48; and
Smith Dep. page 63; and
(4) The aforementioned Protected Materials shall be
RESTRICTED to: counsel for Gate Guard and the Secretary,
Court staff, retained expert witnesses, trial witnesses, jury
members, copy services and graphic consultants used to
duplicate documents and create demonstrative exhibits,
persons engaged by the Parties for the purpose of alternative
dispute resolution, and officers and employees of the Parties,
on a need-to-know basis.

Footnotes

1

2

On December 20, 2011, Gate Guard filed a Motion for Leave to File Reply in Support of Its Amended Motion to Seal Deposition
Transcripts (Dkt. No. 106). The motion is GRANTED as unopposed because the submission date has passed, and the Secretary has not
filed a response. See S.D. TEX. LOCAL R. 7.3, 7.4 (providing that opposed motions will be submitted to the judge for ruling 21 days
from filing, responses must be filed by the submission date, and failure to respond will be taken as a representation of no opposition).
The deadline for the Secretary's response was January 10, 2012. To date, the Secretary has not responded to Gate Guard's motion.
Exhibit 8, for example, is relevant to Gate Guard's exercise of control over the gate attendants and the gate attendants' duties and
responsibilities, both of which are relevant to the issue of whether the gate attendants are employees or independent contractors.

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

3

RS

In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

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Opinion
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS TO SEAL
LUCY H. KOH, District Judge.
*1 Before the Court are numerous administrative motions to
seal related to Plaintiffs' Motion for Class Certification. See
ECF Nos. 186, 211, 246, 252, and 254 (“Sealing Motions”).
For the reasons stated herein, the Court GRANTS in part and
DENIES in part the parties' administrative motions to seal.

I. Legal Standard
Historically, courts have recognized a “general right to
inspect and copy public records and documents, including
judicial records.” Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597 & n. 7, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).
“Unless a particular court record is one ‘traditionally kept
secret,’ a ‘strong presumption in favor of access' is the starting
point.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d
1172, 1178 (9th Cir.2006) (quoting Foltz v. State Farm Mut.
Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.2003)).
In order to overcome this strong presumption, a party seeking
to seal a judicial record must articulate “compelling reasons
supported by specific factual findings that outweigh the
general history of access and the public policies favoring
disclosure.” Id. at 1178–79 (internal quotation marks and
citations omitted). “In general, ‘compelling reasons' ... exist
when such ‘court files might have become a vehicle for
improper purposes,’ such as the use of records to gratify
private spite, promote public scandal, circulate libelous
statements, or release trade secrets.” Id. at 1179 (citing Nixon,
435 U.S. at 598). “The mere fact that the production of records
may lead to a litigant's embarrassment, incrimination, or
exposure to further litigation will not, without more, compel

the court to seal its records.” Id. (citing Foltz, 331 F.3d at
1136).
However, the Ninth Circuit has “carved out an exception
to the presumption of access to judicial records ... [that is]
expressly limited to judicial records filed under seal when
attached to a non-dispositive motion.” In re Midland Nat. Life
Ins. Co. Annuity Sales Practices Litigation, 686 F.3d 1115,
1119 (9th Cir.2012) (per curiam) (internal quotation marks
and citation omitted) (emphasis in original); see also Pintos
v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir.2010)
(applying a “good cause” standard to all non-dispositive
motions because such motions “are often unrelated, or only
tangentially related, to the underlying cause of action”)
(internal quotation marks and citation omitted). Pursuant
to Rule 26(c) of the Federal Rules of Civil Procedure, a
trial court has broad discretion to permit sealing of court
documents for, inter alia, the protection of “a trade secret
or other confidential research, development, or commercial
information.” Fed.R.Civ.P. 26(c)(1)(G). The Ninth Circuit
has adopted the definition of “trade secrets” set forth in
the Restatement of Torts, holding that “[a] trade secret may
consist of any formula, pattern, device or compilation of
information which is used in one's business, and which gives
him an opportunity to obtain an advantage over competitors
who do not know or use it.” Clark v. Bunker, 453 F.2d
1006, 1009 (9th Cir.1972) (quoting Restatement of Torts
§ 757, cmt. b). “Generally it relates to the production of
goods.... It may, however, relate to the sale of goods or
to other operations in the business....” Id. In addition, the
Supreme Court has recognized that sealing may be justified
to prevent judicial documents from being used “as sources of
business information that might harm a litigant's competitive
standing.” Nixon, 435 U.S. at 598.
*2 Even under the “good cause” standard of Rule 26(c),
however, a party must make a “particularized showing”
with respect to any individual document in order to justify
sealing the relevant document. Kamakana, 447 F.3d at 1180;
San Jose Mercury News, Inc. v. U.S. Dist. Court, N. Dist.,
187 F.3d 1096, 1103 (9th Cir.1999). “Broad allegations of
harm, unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test.” Beckman Indus.,
Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir.1992) (internal
quotation marks and citation omitted).

II. Litigants' Administrative Motions to Seal
Here, the parties seek to seal portions of: (1) Plaintiffs'
Motion for Class Certification, see ECF No. 187 (“Motion for

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

Class Certification” or “Mot.”); (2) Defendants' Opposition
to Plaintiffs' Motion for Class Certification, see ECF No.
209 (“Opposition” or “Opp'n”); (3) Defendants' Motion
to Strike the Report of Dr. Edward E. Leamer, see ECF
No. 210 (“Motion to Strike” or “Mot. to Strike”); (4)
Plaintiffs' Consolidated Reply in Support of Motion for Class
Certification and Opposition to Defendants' Motion to Strike
the Report of Dr. Edward E. Leamer, see ECF No. 247
(“Reply”); and (5) a letter regarding a correction to the Reply,
see ECF No. 253 (“Glackin Letter”), as well as various
declarations, reports, and exhibits offered in support of these
documents. Plaintiffs' Motion for Class Certification is a
1

non-dispositive motion. Therefore, the parties need only
demonstrate “good cause” in order to support their requests to
seal. Pintos, 605 F.3d at 678 (applying “good cause” standard
to all non-dispositive motions). The Court will address its
ruling with respect to each motion to seal below.

A. Plaintiffs' Administrative Motion to Seal Documents
Related to its Motion for Class Certification
On October 1, 2012, Plaintiffs filed an administrative motion
for a sealing order, ECF No. 186, pursuant to Northern
District Civil Local Rule 79–5(d), and lodged under seal
certain information contained in: (a) Plaintiffs' Motion for
Class Certification; (b) Exhibits 1–5, 11–55, 58–68, and 70
to the Declaration of Anne B. Shaver in Support of Plaintiffs'
Motion for Class Certification, see ECF No. 188 (“Shaver
Decl.”); (c) the Declaration of Edward T. Col ligan and
Exhibits A and B thereto, ECF No. 189 (“Colligan Decl.”);
and (d) the Expert Report of Edward R. Leamer, Ph. D.,
see ECF No. 190 (“Leamer Report”). 2 Plaintiffs also filed
redacted versions of these documents. See ECF Nos. 187, 188,
189, 190.
For the reasons stated below, the Court DENIES Plaintiffs'
request to file portions of the Colligan Declaration and the
two exhibits attached to this declaration under seal. The Court
GRANTS in part, and DENIES in part, the request to file
under seal portions of the Motion for Class Certification and
exhibits in support thereof that Defendants designated either
“Confidential” or “Confidential—Attorneys' Eyes Only”
under the Stipulated Protective Order, as modified by the
Court, at ECF No. 107.

1. Plaintiffs' Request to Maintain the Confidentiality of
Certain Third–Party Materials

*3 In support of Plaintiffs' motion to seal portions of the
Col ligan Declaration and the two attached exhibits, Plaintiffs
filed redacted versions of the declaration and exhibits, see
ECF No. 189 (redacting part of the first sentence in paragraph
5, all of paragraphs 6 through 8, and all of Exhibits A and
B), as well as a Declaration from Robert H. Booth, the
Chief Litigation Counsel of non-party Palm, I nc., explaining
why Palm, Inc. seeks to maintain the confidentiality of the
information contained within these documents, see ECF No.
192 (“Booth Decl.”).
According to Mr. Booth, “[t]he documents attached to the
declaration of Mr. Colligan consist of, cite to, and/or identify
confidential, nonpublic, and proprietary business information
of Palm, including information regarding Palm's intellectual
property portfolio and competitive position.” Booth Decl.
¶ 5. In addition, the Colligan Declaration “references and
describes the same documents.” Id. Booth also declares
that “Palm has taken reasonable steps to preserve the
confidentiality of information of the type contained in the
exhibits to Mr. Colligan's declaration and the redacted portion
of Mr. Colligan's declaration,” Id. ¶ 6, and that “[p]ublic
disclosure of this information presents a risk of placing Palm
at a competitive disadvantage.” Id. ¶ 5.
The Court finds that Plaintiffs' have not made a particularized
showing with respect to these documents. See Kamakana,
447 F.3d at 1180; San Jose Mercury News, Inc., 187 F.3d at
1103. Plaintiffs do not explain why the information contained
in these documents is “confidential” given that the materials
relate to communications between the former Chief Executive
Office of Palm and Steve Jobs of Apple. If Palm and Apple
had a non-disclosure agreement, then Palm's declaration
in support of sealing should so state. Moreover, only a
small portion of these communications referenced “Palm's
intellectual property portfolio and competitive position.”
Booth Decl. ¶ 5. Furthermore, Palm has not explained
how “[p]ublic disclosure of th[e] information” contained in
the relevant documents “presents a risk of placing Palm
at a competitive disadvantage” given that Hewlett Packard
acquired Palm in 2011, and these documents were created in
2007, nearly six years ago. Accordingly, the Court DENIES
Plaintiffs' motion to seal portions of the Colligan Declaration
and Exhibits A and B attached thereto.

2. Defendants' Request to Maintain the Confidentiality
of Certain Defendant–Related Company Materials
As part of Plaintiffs' administrative motion, Plaintiffs
also submitted under seal portions of the Motion for

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

Class Certification and exhibits in support thereof that
Defendants designated either “Confidential” or “Confidential
—Attorneys' Eyes Only” under the modified Stipulated
Protective Order. Civil Local Rule 79–5(d) governs motions
to seal documents designated as confidential by another party.
This rule requires “the designating party ... [to] file with the
Court and serve a declaration establishing that the designated
information is sealable” within seven days of the motion.
N.D. Cal. Civ. L.R. 79–5(d).
*4 Here, in compliance with Civil Local Rule 79–5(d),
Defendants submitted timely declarations on behalf of each
Defendant in support of Plaintiffs' motion to seal various
portions of Plaintiffs' Motion for Class Certification and the
exhibits filed in support thereof:
(1) Defendant Adobe Systems, Inc. filed a Declaration of
Donna Morris, ECF No. 196 (“Morris Decl.”);
(2) Defendant Intuit Inc. filed a Declaration of Lisa
Borgeson, ECF No. 197 (“Borgeson Decl.”);
(3) Defendant Lucasfilm Ltd. filed a Declaration of David
Anderman, ECF No. 199 (“Anderman Decl.”);
);
(4) Defendant Google, Inc. filed a Declaration of Alan
Eustace, ECF No. 200 (“Eustace Decl.”);
(5) Defendant Google, Inc. filed a Declaration of Frank
Wagner, ECF No. 201 (“Wagner Decl.”);
(6) Defendant Pixar filed a Declaration of James M.
Kennedy, ECF No. 202 (“Kennedy Decl.”);
(7) Defendant Intel Corp. filed a Declaration of Tine M.
Evangelista, ECF No. 203 (“Evangelista Decl.”);
(8) Defendant Apple Inc. filed a Declaration of Mark
Bentley, ECF No. 204 (“Bentley Decl.”).
In addition, Defendants filed a Joint Response to Plaintiffs'
Administrative Motion to Seal in which Defendants explained
their justification for seeking to maintain the confidentiality
of certain exhibits and portions of the Motion for
Class Certification. See ECF No. 195 (“Joint Response”).
Specifically, Defendants contend that the materials that
they seek to preserve under seal “contain confidential
and commercially sensitive information about employee
compensation, including Defendants' compensation data,”
in addition to “information that reflects certain Defendants'
internal decision-making regarding their business strategies

related to compensation and internal assessments of their and
other employers' competitive position in the labor market.”
Joint Response at 3. “Defendants also seek to keep under
seal those materials that reflect compensation practices,
strategies, and policies; recruiting and hiring data, practices,
strategies, and policies; and personal identifying information
of employees or candidates.” Id.
Defendants maintain that they “keep the sealed information
confidential and the public disclosure of this information
would cause each Defendant harm by giving third-parties
(including individuals responsible for competitive decisionmaking) insights into confidential and sensitive aspects of
each of the Defendants' strategies, competitive positions,
and business operations, allowing these third-parties to
potentially gain an unfair advantage in dealings with and
against each of the Defendants.” Joint Response at 3. The
declarations filed by representatives from each Defendant
also explain why each individual Defendant seeks to maintain
the confidentiality of specific information contained in
particular exhibits and portions of the motion under seal, as
well as the harm that would flow to the company from public
disclosure.
*5 In light of Defendants' joint and separate declarations,
the Court finds that Defendants have made a particularized
showing with respect to sealing the following portions of the
Motion for Class Certification: page 17, lines 16–17; page
18, lines 1–3 and 8–10; page 18, line 21, to page 19, line
2; page 19, lines 13–14; page 20, lines 20–23; page 20, line
24, to page 21, line 5; page 21, lines 13–28; and page 22,
lines 1–3. In addition, the Court finds that Defendants have
made a particularized showing with respect to sealing the
following exhibits to the Shaver Declaration in their entirety:
Exhibit 15, Exhibits 43–49, Exhibit 54, and Exhibit 59. The
Court also finds that Defendants have made a particularized
showing with respect to the redacted portions of the following
exhibits to the Shaver Declaration: Exhibit 4, Exhibit 21,
Exhibit 24, Exhibit 25, Exhibit 29, Exhibit 32, Exhibit 34,
Exhibit 37, Exhibit 39, Exhibit 40, Exhibit 42, Exhibits 62–
63, and Exhibits 67–68.
The Court finds that the portions of the Motion for
Class Certification and the exhibits identified above include
confidential information regarding Defendants' compensation
and recruiting strategies, policies, and procedures, including
quantitative data concerning those topics, and that the
disclosure of this information could cause Defendants'
competitive harm. Additionally, some of the materials include

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personal information of non-parties. The Court also finds that
Defendants' requests are sufficiently specific as to the sealed
materials and that Defendants have plausibly articulated the
need for maintaining their confidentiality given the potential
harm that may come from public disclosure. Consequently,
the Court finds good cause to GRANT the motion to maintain
these documents under seal.
However, the Court finds that Defendants have not made
a particularized showing of good cause for sealing with
respect to the following portions of Plaintiffs' Motion for
Class Certification: page 2, line 4; page 3, lines 10–12 and
25–26; page 8, lines 20–25; page 13, lines 26–27; page 14,
line 11, to page 15, line 3; page 17, lines 10–16; page 18,
lines 5–8, 14–15; page 19, lines 5–8; and page 24, lines 20–
21. In addition, the Court finds that Defendants have not
made a particularized showing of good cause for sealing

the following exhibits to the Shaver Declaration: Exhibit
14, Exhibit 22, Exhibits 60–61, and Exhibit 70. As to these
exhibits and portions of the Motion, the Court finds that
Defendants have not made a particularized showing that these
materials contain confidential information. Furthermore, to
the extent Defendants contend that disclosure of these
materials would cause Defendants' competitive harm, the
Court finds that Defendants have not supported their
assertions with sufficiently particularized facts. Therefore,
the Court DENIES these requests without prejudice.

3. The Court's Ruling on Plaintiffs' Administrative
Motion to Seal Documents Related to Plaintiffs' Motion
for Class Certification
*6 In summary, for the Motion for Class Certification, the
Court rules as follows:

Pages/Lines to be sealed

Ruling

Page 2, line 4

DENIED. Pixar states that the information
contained in this excerpt is “confidential
and competitively sensitive” and relates
to “business strategy of [The Walt Disney
Company] and its subsidiaries.” See
Kennedy ¶ 5(a). This excerpt quotes portions
of Exhibit 61, which as set forth above,
the Court has declined to seal. Having
reviewed this excerpt, the Court finds that
Pixar has not made a particularized showing
that the information contained therein is
“confidential.” Id.

Page 3, lines 10–12 and 25–26

DENIED. Pixar states that the information
contained in these excerpts is “confidential
and competitively sensitive” and relates
to “business strategy of [The Walt Disney
Company] and its subsidiaries.” See
Kennedy ¶ 5(a). These excerpts quote
portions of Exhibit 61, which as set forth
above the Court has declined to seal. Having
reviewed these excerpts, the Court finds that
Pixar has not made a particularized showing
that the information contained therein is
“confidential.” Id.

Page 8, lines 20–25

DENIED. Pixar states that the information
contained in this excerpt is “confidential
and competitively sensitive” and relates
to “business strategy of [The Walt Disney
Company] and its subsidiaries.” See
Kennedy ¶ 5(a). This excerpt quote portions
of Exhibit 61, which as set forth above
the Court has declined to seal. Having
reviewed this excerpt, the Court finds that

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Pixar has not made a particularized showing
that the information contained therein is
“confidential.” Id.
Page 13, lines 26–27

DENIED. Pixar states that this excerpt
“contains confidential and competitively
sensitive information regarding Pixar's
practices and strategy with respect to
compensation, benefits, and [Pixar's] longterm incentive program.” See Kennedy
¶ 5(c). This excerpt quotes portions of
Exhibit 70, which as set forth above the
Court has declined to seal. Having reviewed
this excerpt, the Court finds that Pixar
has not made a particularized showing
that the information contained therein is
“confidential.” Id.

Page 14, line

DENIED. This excerpt references and quotes
portions of the Colligan

11, to Page 15, line 3

Declaration and the exhibits to the Colligan
Declaration. Palm's request to seal this
excerpt is denied for the same reasons
as set forth above in connection with the
Colligan Declaration. See Booth Decl. ¶¶ 3–
6.

Page 17, lines 10–16

GRANTED as to lines 16–17.
DENIED as to lines 10–16. This excerpt
references and quotes portions of Exhibit
14. Adobe states that Exhibit 14 “contains
confidential information regarding recruiting
and hiring data, practices, strategies, and
policies....” See Morris Decl. ¶¶ 3–7. As set
forth above, the Court has found that Adobe
has not made a particularized showing
as to why Exhibit 14 should be sealed in
its entirety. Accordingly, the Court denies
Adobe's request to seal the portions of that
exhibit quoted on Page 17.

Page 18, lines 1–3, 5–10, and 14–15

GRANTED as to lines 1–3, 8–10. See
Wagner Decl. ¶ 10; Evangelista Decl. ¶¶ 7–
9; Kennedy Decl. ¶ 5(a).
DENIED as to lines 5–8, 14–15. Pixar states
that the information contained in these
excerpts is “confidential and competitively
sensitive” and relates to “business strategy
of [The Walt Disney Company] and its
subsidiaries.” See Kennedy ¶ 5(a). These
excerpts quote portions of Exhibit 61, which
as set forth above the Court has declined
to seal. Having reviewed these excerpts,
the Court finds that Pixar has not made a

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particularized showing that the information
contained therein is “confidential.” Id.
Page 18, line 21, to page 19, line 2

GRANTED. See Wagner Decl. ¶ 10; Morris
Decl. ¶¶ 3–7.

Page 19, lines 5–8 and 13–14

GRANTED as to lines 13–14. See Wagner
Decl. ¶ 10.
DENIED as to lines 5–8. Google contends
that this excerpt “quotes and references
Exhibits 46, 48, and 49, which Google [also
seeks] ... to seal.” See Wagner Decl. ¶
10. Google further states that “this excerpt
contains confidential and highly sensitive
details about Google's compensation
of its employees and its compensation
philosophy.” See Wagner Decl. ¶ 10. While
the Court has sealed Exhibits 46, 48, and
49, the particular fact disclosed in this
excerpt does not appear to be confidential.
Accordingly, the Court finds that Google has
not made a particularized showing why this
excerpt should be sealed.

...........................................................................
Page 20, lines 20–23

GRANTED. See Wagner Decl. ¶ 10; Morris
Dec. ¶¶ 3–7.

Page 20, line 24, to page 21, line 5

GRANTED. See Wagner Decl. ¶ 10; Morris
Dec. ¶¶ 3–7.

Page 21, lines 13–28

GRANTED. See Wagner Decl. ¶ 10.

Page 22, lines 1–3, lines 10–12

GRANTED as to lines 1–3. See Wagner
Decl. ¶ 10; Morris Dec. ¶¶ 3–7.
DENIED as to lines 10–12. Dr. Leamer's
findings may be derived in part from
confidential information. However, the
particular finding reflected in this this
portion of the Motion does not reveal any
confidential information about any particular
Defendant. Defendants have not explained
how disclosure of this particular finding would
reveal confidential and sensitive information
regarding Defendants' compensation
strategy.

Page 24, lines 20–21

DENIED. Pixar states that the information
contained in this excerpt is “confidential
and competitively sensitive” and relates
to “business strategy of [The Walt Disney
Company] and its subsidiaries.” See
Kennedy ¶ 5(a). This excerpt quotes portions
of Exhibit 61, which as set forth above

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the Court has declined to seal. Having
reviewed this excerpt, the Court finds that
Pixar has not made a particularized showing
that the information contained therein is
“confidential.” Id.
*7 Regarding the proposed redactions for the Exhibits to the
Declaration of Ann B. Shaver, the Court rules as follows:

Exhibits

Ruling

4

GRANTED as to the redacted portions identified by Defendants.
See Morris Decl. ¶¶ 3–7.

14

DENIED. See Morris Decl. ¶¶ 3–7. Adobe states that this
document, which is a presentation regarding Adobe's recruiting
strategies, “contains confidential information regarding recruiting
and hiring data, practices, strategies, and policies....” While
portions of this document may be sealable, the Court finds that
Adobe has not made a particularized showing as to why the
entire document should be sealed.

15

GRANTED. See Morris Decl. ¶¶ 3–7.

21

GRANTED as to the redacted portions identified by Defendants.
See Bentley Decl. ¶ 6.

22

DENIED. Apple states that this document contains “confidential
and competitively sensitive information regarding Apple's
business and recruiting strategies.” See Bentley Decl. ¶ 5. Having
reviewed this document, the Court is not persuaded that the
information contained therein is confidential.

24

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

25

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

29

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

32

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

34

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 7–8.

37

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

39

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

40

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 9.

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

42

GRANTED as to the redacted portions identified by Defendants.
See Wagner Decl. ¶ 7–8.

43

GRANTED. See Wagner Decl. ¶¶ 5–6.

44

GRANTED. See Wagner Decl. ¶¶ 5–6.

45

GRANTED. See Wagner Decl. ¶¶ 5–6.

46

GRANTED. See Wagner Decl. ¶¶ 5–6.

47–48

GRANTED. See Wagner Decl. ¶¶ 5–6.

49

GRANTED. See Wagner Decl. ¶¶ 5–6.

54

GRANTED. See Evangelista Dec. ¶¶ 3–6.

59

GRANTED. See Eustace ¶¶ 3–5; Borgeson ¶ 6.

60

DENIED. Lucasfilm states that this document contains
information regarding Lucasfilm's “confidential business practices,
particularly [Lucasfilm's] recruiting practices.” See Anderman ¶¶
5–6. Lucasfilm states that disclosure of this information might
provide Lucasfilm's competitors with an “unfair advantage” by
providing Lucasfilm's competitors with “information regarding
the specific manner in which Lucasfilm recruits potential
employees and makes employment offers.” Id. Having reviewed
this document, the Court finds that Lucasfilm has not made a
particularized showing that the information contained therein is
“confidential” or that disclosure of this information would provide
Lucasfilm's competitors with an unfair advantage. Id.

61

DENIED. Pixar states that the information contained in this
document is “confidential and competitively sensitive” and
relates to “business strategy of [The Walt Disney Company]
and its subsidiaries.” See Kennedy ¶ 5(a). Having reviewed
this document, the Court finds that Pixar has not made a
particularized showing that the information contained therein is
“confidential.” Id.

62–63

GRANTED as to the redacted portions identified by Defendants.
See Kennedy ¶ 5(b).

67–68

GRANTED as to the redacted portions identified by Defendants.
See Kennedy ¶ 5(b).

70

DENIED. Pixar states that this document “contains confidential
and competitively sensitive information regarding Pixar's
practices and strategy with respect to compensation, benefits,
and [Pixar's] long-term incentive program.” See Kennedy ¶ 5(c).
Having reviewed this document, the Court finds that Pixar has
not made a particularized showing that the information contained
therein is “confidential.” Id.

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B. Defendants' Motion to Seal Documents Related to its
Opposition to Plaintiffs' Motion for Class Certification
*8 In connection with Defendants' Opposition to Plaintiffs'
Motion for Class Certification, Defendants seek to file under
seal: (1) portions of Defendants' Opposition; (2) all or
portions of Exhibits 1–6, 8–23, 25–27 to the Declaration of
Christina Brown filed in support of Defendants' Opposition,
see ECF No. 215 (“Brown Decl. Supp. Opp'n”); (3)
Defendants' Motion to Strike the Report of Dr. Edward E.
Leamer, ECF No. 210; (4) Exhibits A–H to the Declaration
of Susan Welch in Support of Defendants' Motion to Strike,
see ECF No. 210; and (5) portions of the Expert Report
of Kevin Murphy, see ECF No. 230. 3 Defendants note
that the information contained in these documents has been
designated “Confidential” or “Attorneys–Eyes Only” under
the modified Stipulated Protective Order. Defendants also
filed declarations on behalf of each Defendant in support of
their respective sealing requests. See ECF Nos. 214, 217–222.
In addition, Defendants seek to seal certain portions of the
Opposition; Exhibits 2–6 and 9–13 to the Brown Declaration
in Support of Defendants' Opposition; and Exhibits B, C,
and D to the Welch Declaration, each of which reflect
portions of deposition transcripts of Plaintiffs and their expert
that Plaintiffs designated “Confidential” or “Attorneys' Eyes
Only” under the modified Stipulated Protective Order.

1. Plaintiffs' Request to Maintain the Confidentiality of
Certain Plaintiff–Specific Job Information
In compliance with Civil Local Rule 79–5, Plaintiffs filed
a timely declaration in support of maintaining portions
of the Opposition, exhibits to the Brown Declaration in
Support of Defendants' Opposition, and exhibits to Welch
Declaration under seal. See Declaration of Joseph P. Forderer
In Support of Defendants' Joint Administrative Motion to Seal
as to Information Designated by Plaintiffs, ECF. No. 240
(“Forderer Decl.”).
After having reviewed all of the material from the Opposition
for Class Certification that Plaintiffs seek to seal, the Court
finds that good cause exists to seal the following pages and
lines of the Opposition: page 8, line 28; page 9, lines 1–3 and
11–12; page 10, lines 6–7; and page 14, lines 3–5. In addition,
the Court finds that Plaintiffs have made a particularized
showing with respect to sealing portions of Exhibits 2–6 and
9–13 to the Brown Declaration. Finally, the Court finds that
Defendants have made a particularized showing with respect

to redacted portions of Exhibits B, C, and D, which were filed
in connection with the Welch Declaration.
The Court finds that good cause exists to file the requested
material under seal because some of the excerpts contain
“Plaintiffs' confidential compensation information such as
salaries, stock options, and other benefits.” See Forderer Decl.
¶ 6. In addition, some of the materials “contain Plaintiffs'
confidential information regarding job applications to nonDefendants, including the identities of associated non-parties
such as individuals who acted as Plaintiffs' references.” Id. ¶
7. Accordingly, the Court GRANTS the motion to seal these
documents.
*9 However, the Court does not find that Plaintiffs have set
forth good cause to maintain under seal page 9, lines 9–10,
of the Opposition. See Forderer Decl. ¶ 7. Although Plaintiffs
allege that the information contained within this sentence
includes Mr. Marshall's “confidential information regarding
job applications to non-Defendants, including the identities
of associated non-parties such as individuals who acted as
Plaintiff[']s references,” the information Plaintiffs propose to
seal does not actually appear to involve any information of
this nature. Therefore, Plaintiffs have not established why this
information is confidential. Accordingly, the Court DENIES
the request to maintain this sentence under seal.

2. Defendants' Request to Maintain the Confidentiality
of Certain Defendant–Related Company Materials
In support of Defendants' request to seal, Defendants filed a
joint administrative motion, see ECF No. 211 (“Joint Mot.
to Seal Opp'n”), as well as declarations on behalf of each
Defendant:
(1) Defendant Intuit Inc. filed a Declaration of Catherine
T. Zeng, ECF No. 214 (“Zeng Opp'n Decl.”);
(2) Defendant Adobe Systems, Inc. filed a Declaration of
Lin Kahn, ECF No. 217 (“Kahn Opp'n Decl.”);
(3) Defendant Pixar filed a Declaration of James M.
Kennedy, ECF No. 218 (“Kennedy Opp'n Decl.”);
(4) Defendant Lucasfilm Ltd. filed a Declaration of Justina
Sessions, ECF No. 219 (“Sessions Opp'n Decl.”);
(5) Defendant Intel Corp. filed a Declaration of Frank
Busch, ECF No. 220 (“Busch Opp'n Decl.”);

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(6) Defendant Google, Inc. filed a Declaration of Frank
Wagner, ECF No. 221 (“Wagner Opp'n Decl.”);
(7) Defendant Apple Inc. filed a Declaration of Christina
Brown, ECF No. 222 (“Brown Opp'n Decl.”).
As with Defendants' requests in connection with the
Motion for Class Certification, Defendants contend that
the redacted portions of the Opposition; Exhibits 1, 8,
14–23, and 25–27 to the Brown Declaration; portions
of the Motion to Strike; and the declarations filed
in support of these documents contain “confidential
and commercially sensitive information about employee
compensation, including Defendants' compensation data,”
as well as “information that reflects certain Defendants'
compensation data as well as information that reflects
certain Defendants' internal decision-making regarding their
business strategies related to compensation and internal
assessments of their and other employers' competitive
position in the labor market.” Joint Mot. to Seal Opp'n
at 3. “Defendants also seek to keep under seal those
materials that reflect compensation practices, strategies and
policies; recruiting and hiring data, practices, strategies and
policies; and personal identifying information of employees
or candidates.” Id.
Defendants raise concerns that “public disclosure of this
information,” which the Defendants keep confidential,
“would cause each Defendant harm by giving thirdparties (including individuals responsible for competitive
decisionmarking) insights into confidential and sensitive
aspects of each of the Defendants' strategies, competitive
positions, and business operations, allowing these thirdparties to potentially gain an unfair advantage in dealings
with and against each of the Defendants.” Id. After reviewing
Defendants' joint and separate declarations, the relevant case
l aw, and each of the documents that Defendants seek to
maintain under seal, the Court finds that Defendants have
made a particularized showing with respect to sealing the
following portions of the Opposition to the Class Certification
Motion: page 6, lines 22–23; page 6, footnote 2; page 7, line
1; page 7, lines 5–7, 8–9, 9–10, and 12–15; page 7, lines 18–
20; page 7, lines 20–21; page 7, lines 22–23; page 7, lines
23–25; page 7, lines 25–26; page 7, line 26 though page 8,
line 1; page 8, lines 6–8; page 8, lines 9–14; page 8, lines 20–
22; page 18, lines 3–10; page 18, lines 23–24; and page 19,
lines 1–5. The Court is persuaded that Defendants' requests
are sufficiently specific and that Defendants have plausibly
articulated the need for maintaining the confidentiality of this

information given the potential harm that may come from
public disclosure.
*10 In addition, the Court finds that Defendants have made
a particularized showing with respect to sealing the following
exhibits and portions of exhibits to the Brown Declaration in
Support of Defendants' Opposition:
• Exhibit 1: page 60, lines 23–25; page 79, lines 19–21;
page 80, lines 7–23; page 92, line 20, through page 93,
line 24; page 163, lines 3–6, 10, and 13–24; page 456,
lines 3–17; page 460, lines 19–22; page 467, lines 5–10,
and page 467, line 21 through page 469; page 470, lines
7–21.
• Exhibit 17: paragraphs 3–16 and Exhibits A–F;
• Exhibit 18: paragraphs 3–5 and 7–10, as well as Exhibits
F, G, and H; and
• Exhibit 23: page 2, lines 4–8, 11–17, 20–24, and 26–27,
and page 4, lines 6–7, as well as Exhibit 1.
The Court finds that Defendants' requests to seal these
exhibits and portions thereof are sufficiently specific and
that Defendants have plausibly articulated the need for
maintaining their confidentiality given the potential harm that
may come from public disclosure.
Finally, the Court finds that Defendants have made a
particularized showing with respect to sealing the following
portions of Defendants' Motion to Strike: page 7, lines 4–
7; page 11, lines 1–2; page 15, lines 1–2; page 17, footnote
13, lines 2–3; page 19, footnote 16; pages 20–21, Figure 16;
and page 21, lines 9–10. In addition, the Court finds that
Defendants have set forth good cause to file under seal the
following exhibits to the Welch Declaration in support of
Defendants' Motion to Strike: Exhibit A (as to page 76, lines
2–25; page 90, lines 19–23; page 106, lines 18–23; page 163,
lines 3–6, 10, 13–24; page 261, lines 14–23; page 262, line
3, through page 263, line 25; page 400, lines 11–13, 16; page
435, lines 4–5; and page 468, line 5, through page 469, line
25); and Exhibit B (page 65, lines 5–21). Consequently, the
Court finds good cause to GRANT the motion to maintain
these documents under seal.
However, the Court is not convinced that Defendants have
set forth good cause to maintain under seal page 18, lines
20, to page 20, line 12, of the Opposition, as requested by
Defendant Google, or lines 21–23 of page 19, as requested by
Defendant Pixar. In addition, the Court finds that Defendants

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have not made a particularized showing with respect to
sealing the following exhibits to the Brown Declaration:
Exhibits 14–16; Exhibits 19–22; and Exhibit 25. Finally, the
Court finds that Defendants have failed to sufficiently justify
the need to maintain under seal lines 2 through 4 of page
13 of Defendants' Motion to Strike. Accordingly, the Court
DENIES without prejudice Defendants' request to maintain
these materials under seal.

3. The Court's Ruling on Defendants' Administrative
Motion to Seal Documents Related to its Opposition to
the Motion for Class Certification
In summary, for the Opposition to the Class Certification
Motion, the Court rules as follows:

Pages/Lines to be Sealed

Ruling

Page 6, lines 22–23

GRANTED. Zeng Opp'n Decl. ¶ 7; Brown
Decl. ¶ 3; Kahn Opp'n Decl. ¶ 7(b).

Page 6, footnote 2

GRANTED. See Sessions Opp'n Decl. ¶ 3(i);
Brown Opp'n Decl. ¶ 3; Wagner Opp'n Decl.
¶ 2(a); Busch Opp'n Decl. ¶ 8; Zeng Opp'n
Decl. ¶ 7; Kahn Opp'n Decl. ¶ 7(a).

...........................................................................
Page 7, line 1

GRANTED. See Brown Opp'n Decl. ¶ 3.

Page 7, lines 5–7, 8–9, 9–10, 12–15

GRANTED. See Zeng Opp'n Decl. ¶ 7; Kahn
Opp'n Decl. ¶ 7(c); Brown Opp'n Decl. ¶ 3.

...........................................................................
Page 7, lines 18–20

GRANTED. See Kennedy Opp'n Decl. ¶ 5(a).

...........................................................................
Page 7, lines 20–21

GRANTED. See Busch Opp'n Decl. ¶ 8.

Page 7, lines 22–23

GRANTED. See Brown Opp'n Decl. ¶ 3.

Page 7, lines 23–25

GRANTED. See Wagner Opp'n Decl. ¶ 2(b).

Page 7, lines 25–26

GRANTED. See Kahn Opp'n Decl. ¶ 7(d).

Page 7, line 26, through page 8, line 1

GRANTED. See Zeng Opp'n Decl. ¶ 7.

Page 8, lines 6–8

GRANTED. See Wagner Opp'n Decl. ¶ 2(c).

Page 8, lines 9–14

GRANTED. See Zeng Opp'n Decl. ¶ 7; see
also Kahn Opp'n Decl. ¶ 7(e); Busch Opp'n
Decl. ¶ 8.

...........................................................................
Page 8, lines 20–22

GRANTED. See Sessions Opp'n Decl. ¶ 3.

Page 8, line 28

GRANTED. See Forderer Decl. ¶ 7.

Page 9, lines 1–3, 9–10, 11–12

GRANTED as to lines 1–3 and 11–12. See
Forderer Decl. ¶ 7.

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DENIED as to lines 9–10. See Forderer
Decl. ¶ 7. Although Plaintiffs allege that the
information contained within this sentence
includes Mr. Marshall's “confidential
information regarding job applications to
non-Defendants, including the identities of
associated non-parties such as individuals
who acted as Plaintiff[']s references,” the
information Plaintiffs propose to maintain
under seal does not actually appear to
involve information of this nature. Therefore,
Plaintiffs have not established why this
information is confidential, and the Court
declines to find good cause to grant Plaintiffs'
request to maintain this sentence under seal.
...........................................................................
Page 10, lines 6–7

GRANTED. See Forderer Decl. ¶ 7.

Page 14, lines 3–5

GRANTED. See Forderer Decl. ¶ 7.

Page 18, lines 3–10

GRANTED. See Brown Opp'n Decl. ¶ 3;
Sessions Opp'n Decl. ¶ 3; Zeng Opp'n Decl.
¶ 8; Kahn Opp'n Decl. ¶ 7(f).

Page 18, lines 23–24

GRANTED. See Zeng Opp'n Decl. ¶ 7.

Page 19, Lines 1–5

GRANTED. See Busch Opp'n Decl. ¶ 8.

Page 19, Lines 21–23

DENIED. Defendant Pixar contends that
“[t]hese portions of Defendants' Opposition
refer to and quote from a Pixar document
that has been designated confidential.
The document contains confidential and
competitively sensitive information regarding
business strategy and internal compensation
and recruiting practices of the Walt Disney
Company, Pixar, and ImageMovers Digital.”
See Kennedy Opp'n Decl. ¶ 5(c). These
excerpts quote portions of Exhibit 61 of
the Shaver Declaration, which as set forth
above the Court has declined to seal. Having
reviewed these excerpts, the Court finds that
Pixar has not sufficiently alleged good cause
to keep this sentence under seal.

...........................................................................
Page 18, line 20, to page 20, line 12

DENIED. See Wagner Opp'n Decl. ¶ 2(d).
Defendant Google seeks to seal portions of
Defendants' Opposition because it “quotes
and references documents that contain
confidential and highly sensitive details about
Google's compensation of its employees and
its compensation philosophy.” Wagner Decl.

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¶ 2(d). The Court does not find Defendant
Google's request to be particularized.
Consequently, the Court declines to find that
Defendant Google has sufficiently set forth
good cause to maintain all of the proposed
redactions within these two pages under
seal.
*11 Regarding the proposed redactions to the Exhibits to the
Brown Declaration in Support of Defendants' Opposition, the
Court rules as follows:

Exhibits

Ruling

1

GRANTED as to page 60, lines 23–25; page 79, lines 19–21;
page 80, lines 7–23; page 92, line 20 through page 93, line 24;
page 163, lines 3–6, 10, and 13–24; page 456, lines 3–17; page
460, lines 19–22; page 467, lines 5–10, and line 21 through page
469, line 25; page 470, line 7–21. See Kahn Opp'n Decl. ¶ 7(u);
Busch Opp'n Decl. ¶ 8; Brown Decl. Opp'n ¶ 4.

2

GRANTED as to page 97, lines 22–24; page 98, lines 24–25;
page 132, lines 24–25; page 135, lines 20–25; page 136, lines 1–
12; page 137, lines 21, 23–24; page 142, lines 203. See Forderer
Decl. ¶ 7.

3

GRANTED as to page 125, lines 16–17; page 126, lines 11–12;
page 197, lines 1–2, 7. See Forderer Decl. ¶ 7.

4

GRANTED as to page 80, lines 1–12; page 80, lines 13–25; page
81, lines 1–25; page 82, lines 1–23; page 87, lines 8–9, 13, 21–
22; page 88, lines 2–7, 13–15; page 90, lines 7–25; page 91,
lines 1–25; page 125: lines 22–23; page 138, lines 1–2, 11–12;
page 175, lines 22–25. See Forderer Decl. ¶ 7.

...........................................
5

GRANTED as to page 138, lines 3–6; page 155, lines 9–25; 156,
lines 1–25; 157, lines 1–25; 182, lines 3, 16–25; 183, lines 1–25;
184, lines 1–25; 202, lines 1–25; 203, lines1–25; 204, lines 1–4;
page 204, lines 12–25; page 337, lines 4–8. See Forderer Decl. ¶
7.

...........................................
6

GRANTED as to pages 105, lines 1–25; 106, lines 24–25; 107,
lines 1–25; 108, lines 1–25; 113, lines 1–25; page 220, line 25.
See Forderer Decl. ¶ 7

9

GRANTED as to page 5, lines 10, 14, 19–20, 25; page 6, lines 1,
5–6, 10, 14–15, 20, 27–28; page 7, lines 1, 6, 10, 14–15, 20, 27–
28; page 8, lines 8–9, 12–13; page 9, lines 14–16. See Forderer
Decl. ¶ 7.

10

GRANTED as to page 5, lines 10, 15–16, 20, 25; page 6, lines
19–22; page 7, lines 1, 18–20; page 8, lines 9–18; page 9, lines
3–6. See Forderer Decl. ¶ 7.

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11

GRANTED as to page 5, lines 13–15, 19, 25–26; page 6, lines 4–
6; page 6, lines 25–28; page 7, lines 1–5. See Forderer Decl. ¶ 7.

12

GRANTED as to page 5, lines 16, 21, 26; page 6, lines 8–9, 14,
17, 21; page 7, lines 5,9, 14–15, 20–23, 26–27; page 9, lines 2–
3. See Forderer Decl. ¶ 7.

13

GRANTED as to page 5, lines 10, 15, 20, 25; page 6, lines 2–3,
19. See Forderer Decl. ¶ 7.

14

DENIED. Defendant Adobe seeks to maintain under seal Exhibit
14, which is a copy of the Declaration of Donna Morris of Adobe
Systems, Inc. in Support of Defendants' Opposition to Plaintiffs'
Motion for Class Certification. See Kahn Opp'n Decl. ¶ 7(v).
Adobe contends that this declaration “establishes that Adobe's
compensation data, practices, strategies and policies, as well
as its recruiting data, practices, strategies and policies are
confidential and commercially sensitive.” Id. ¶ 3. While the Court
finds that Defendant Adobe has established good cause to
maintain much of the substance of this declaration under seal,
the Court is not convinced that Adobe's request-which includes
at least 100 pages worth of power point slides-is sufficiently
particularized. Therefore, the Court DENIES Adobe's request to
seal Ms. Morris's declaration in its entirety, with leave to amend.

...........................................
15

DENIED. Defendant Adobe also seeks to maintain under seal
Exhibit 15, which is a copy of the Declaration of Jeff Vijungco
of Adobe Systems, Inc. in Support of Defendants' Opposition
to Plaintiffs' Motion for Class Certification. See Kahn Opp'n
Decl. ¶ 7(w). Defendant Adobe contends that paragraph 3 of
this declaration “established that Adobe's recruiting and hiring
date, policies and strategies are confidential and that public
dissemination of that information could cause Adobe competitive
harm .” Id. ¶ 6. While the Court finds that Adobe has established
good cause to maintain some of this exhibit under seal, the Court
is not convinced that Defendant Adobe's request is particularized.

...........................................
16

DENIED.

...........................................
Defendant Apple seeks to maintain under seal all of Exhibit
16, which is a copy of the Declaration of Steven Burmeister in
Support of Defendants' Opposition to Plaintiffs' Motion for Class
Certification, as well as attached exhibits B & C. Brown Opp'n
Decl. ¶ 5. Steven Burmeister contends in his declaration, that
“[t]he information contained in this declaration and the attached
Exhibits B and C is extremely sensitive, and Apple considers it
to be, and treats it as, confidential, proprietary, and competitively
sensitive. Public disclosure of this information would give Apple's
competitors insight into its confidential and proprietary employee
compensation practices and strategies, deprive Apple of its

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investment in developing these strategies, and put Apple at
a significant disadvantage with respect to recruiting, hiring,
and compensating its employees.” Burmeister Decl. ¶ 11; see
also Brown Opp'n Decl. ¶ 5 (stating that the information in this
exhibit, as well as the attached exhibits B and C, “contain and
reflect Apple's highly confidential and competitively sensitive
compensation data and strategies.”). While the Court finds
that Defendant Apple has established good cause to maintain
some of this exhibit under seal, the Court is not persuaded that
Defendant Apple's request is particularized.
...........................................
17

GRANTED as to paragraphs 3–16 and Exhibits A–F. See Busch
Opp'n Decl. ¶ 8.

...........................................
18

GRANTED as to paragraphs 3–5 and 7–10, as well as Exhibits F,
G, and H. See Busch Opp'n Decl. ¶ 8.

...........................................
19

DENIED. Defendant Intuit seeks to maintain under seal Exhibit
19, which is a copy of the Declaration of Mason Stubblefield in
Support of Defendants' Opposition to Plaintiffs' Motion for Class
Certification, as well as the attached exhibits. See Zeng Opp'n
Decl. ¶ 5. Zeng's declaration asserts that paragraph 3 of the
Declaration of Mason Stubblefield and accompanying exhibits ...
establishes that Intuit's salary and compensation data and
methodologies is confidential and that public dissemination of that
information could cause Intuit competitive harm.” See Id. ¶¶ 5, 7;
see also Stubblefield Decl. ¶ 3. Having reviewed this document,
the Court finds that Intuit has not made a particularized showing
that all of the information contained therein is “confidential.” Id.

...........................................
20

DENIED. Defendant Intuit also seeks to maintain under seal
Exhibit 20, which is a copy of the Declaration of Chris Galy
in Support of Defendants' Opposition to Plaintiffs' Motion for
Class Certification, as well as the attached exhibits. See Zeng
Opp'n Decl. ¶ 6. Zeng's declaration asserts that paragraph 2
of the Declaration of Chris Galy “establishes that information
pertaining to Intuit's recruiting methods, strategies, practices,
and data is confidential and that public dissemination of that
information could cause Intuit competitive harm.” Id.; see Galy
Decl. ¶ 2. Having reviewed this exhibit, the Court finds that Intuit
has not made a particularized showing that all of the information
contained therein is “confidential.” Id.

21

DENIED. Defendant Google seeks to maintain under seal
Exhibit 21, which is a copy of the Declaration of Frank Wagner
in Support of Defendants' Opposition to Plaintiffs' Motion for
Class Certification, as well as the attached exhibits. See Wagner
Opp'n Decl. ¶ 4. According to Wagner, the information in this
declaration is “confidential and highly sensitive” and “Google

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

derives economic benefit by maintaining its confidentiality.” Id . ¶
6. Attached to this declaration are three exhibits that also “contain
highly confidential information about Google's compensation and
recruiting practices,” Wagner Sealing Decl. ¶ 7, which “Google
does not disclose ... to its competitors, customers or the general
public,” id. ¶ 8. While the Court finds that Defendant Google has
established good cause to maintain some of this exhibit under
seal, the Court is not persuaded that Defendant Google's request
is sufficiently particularized.
...........................................
22

DENIED. Defendant Lucasfilm seeks to maintain under seal
Exhibit 22, which is a copy of the Declaration of Michelle Maupin
in Support of Defendants' Opposition to Plaintiffs' Motion for
Class Certification, as well as attached exhibits. Lucasfilm seeks
to maintain the entire declaration and accompanying exhibits
under seal .” Sessions Opp'n Decl. ¶ 5. Having reviewed this
exhibit and the attachments, the Court finds that Lucsfilm has
not made a particularized showing that all of the information
contained therein is “confidential.”

23

GRANTED as to lines 4–8, 11–17, 20–24, and 26–27 on page 2,
and lines 6–7 on page 4 of the McAdams declaration, as well as
Exhibit 1. See Kennedy Opp'n Decl. ¶ 5(a).

25

DENIED. Defendant Google also seeks to maintain under
seal Exhibit 25, which is a “confidential presentation related
to Google's compensation practices and philosophy.” Wagner
Opp'n Decl. ¶ 10. According to Wagner, this document “contains
highly sensitive and confidential information about Google's
compensation program, including its bonus targets, the disclosure
of which would likely cause competitive harm to Google by giving
third parties (including Google's competitors in the labor market)
direct insight into highly confidential and competitively sensitive
aspects of Google's internal decision-making processes related to
its business operations.” Id. While the Court finds that Defendant
Google has established good cause to maintain some of this
exhibit under seal, the Court is not persuaded that Defendant
Google's request is sufficiently particularized.

*12 For portions of Defendants' Motion to Strike, the Court
rules as follows:

Paragraphs

Ruling

Page 7, lines 4–7

GRANTED. See Busch Opp'n Decl. ¶ 8.

Page 11, lines 1–2

GRANTED. See Kennedy Opp'n Decl. ¶ 5(e).

Page 13

DENIED. Although Defendant Google
appears to contend that lines 2 through 4
of this page “contain[ ] a confidential and
highly sensitive discussion of Google's
compensation data in the context of
analyzing the findings of Professor Leamer,”
Wagner Opp'n Decl. ¶ 9(a), it is unclear

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from either the text of this Motion to Strike
or the referenced deposition testimony of
Professor Leamer how this sentence reveals
anything confidential or potentially harmful to
Defendants.
Page 15, lines 1–2

GRANTED. See Brown Opp'n Decl. ¶ 7.

Page 17, footnote 13, lines 2–3

GRANTED. See Kennedy Opp'n Decl. ¶ 5(e);
Wagner Opp'n Decl. ¶ 9(b).

Page 19, footnote 16

GRANTED. Brown Opp'n Decl. ¶ 7

Pages 20–21, Fig. 16

GRANTED. See Wagner Opp'n Decl. ¶ 9(c).

Page 21, lines 9–10

GRANTED. Brown Opp'n Decl. ¶ 7.

For the Exhibits to the Welch Declaration in support of the
Motion to Strike, the Court rules as follows:

Exhibits

Ruling

A

GRANTED as to page 76, lines 2–25; page 90, lines 19–23; page
106, lines 18–23; page 163, lines 3–6, 10, 13–24; page 261,
lines 14–23; page 262, line 3 through page 263, line 25; page
400, lines 11–13, 16; page 435, lines 4–5; and page 468, line 5,
through page 469, line 25. See Kahn Opp'n Decl. ¶ 7(x); Kennedy
Opp'n Decl. ¶ 5(a); Busch Opp'n Decl. ¶ 8; Brown Opp'n Decl. ¶
8.

B

GRANTED as to page 65, lines 5–21, and page 197, lines 1–2, 7.
See Busch Opp'n Decl. ¶ 8; Forderer Decl. ¶ 7.

C

GRANTED as to page 181, lines 18, 22–25. See Forderer Decl. ¶
7.

D

GRANTED as to page 97, lines 22–25. See Forderer Decl. ¶ 7

C. Plaintiffs' Motion to Seal Documents Related to the
Consolidated Reply in Support of its Motion for Class
Certification and in Opposition to Defendants' Motion to
Strike
Finally, in connection with Plaintiffs' Reply in Support
of its Motion for Class Certification and in Opposition
to Defendants' Motion to Strike, Plaintiffs filed an
administrative motion for a sealing order, ECF No. 246,
and lodged under seal certain information contained in: (a)
Plaintiffs' Reply, see ECF No. 247; (b) Exhibits 1–6, 9–
10, and 12–30 to the Declaration of Dean M. Harvey in
Support of Plaintiffs' Consolidated Reply, see ECF Nos.
248 (“Harvey Decl.”); and (c) the Reply Expert Report of
Edward R. Leamer, Ph.D., see ECF No. 249. 4 In addition,
on December 12, 2012, Plaintiffs filed a letter from Brendan

Glackin regarding a Correction to the Reply, see ECF No.
253, indicating that portions of the letter be filed under seal
because it refers to data that Defendants have designated as
“Confidential—Attorneys' Eyes Only” under the Stipulated
Protective Order. See ECF No. 252.
*13 For the reasons stated herein, the Court GRANTS
the request to file under seal portions of the Reply and
exhibits in support thereof that Defendants designated either
“Confidential” or “Confidential—Attorneys' Eyes Only,”
under the modified Stipulated Protective Order. The Court
also GRANTS the request to file the designated portion of the
Glackin Letter under seal.

1. Defendants' Request to Maintain the Confidentiality
of Certain Defendants–Related Company Materials

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In compliance with Civil Local Rule 79–5(d), Defendants
have submitted timely declarations on behalf of each
Defendant in support of Plaintiffs' Reply and the exhibits filed
in support thereof:
(1) Defendant Intel Corp. filed a Declaration of Susan J.
Welch, see ECF No. 255 (“Welch Reply Decl.”);
(2) Defendant Intuit Inc. filed a Declaration of Catherine
T. Zeng, see ECF No. 256 (“Zeng Reply Decl.”);
(3) Defendant Adobe Systems, Inc. filed a Declaration of
Lin W. Kahn, see ECF No. 257 (“Kahn Reply Decl.”);
(4) Defendant Apple Inc. filed a Declaration of Christina,
see ECF No. 258 (“Brown Reply Decl.”);
(5) Defendant Pixar Filed a Declaration of James M.
Kennedy, see ECF No. 259 (“Kennedy Reply Decl.”);
(6) Defendant Lucasfilm Ltd. filed a Declaration of Justina
K. Sessions, see ECF No. 260 (“Sessions Reply Decl.”);
(7) Defendant Google Inc. filed a Declaration of Frank
Wagner, see ECF No. 261 (“Wagner Reply Decl.”).
Defendants also filed a Joint Administrative Motion to Seal
and Motion to Remove Incorrectly Filed Document. See ECF
No. 254. As with Defendants' prior declarations seeking to
seal documents connected with Plaintiffs' Motion for Class
Certification, Defendants contend that “redacted portions
of the Reply [and] Exhibits 1, 2, 3, 6, 10, 13, 15–17,
19, 20, 22–27, 29, and 30 to the Harvey Declaration ...
contain confidential and commercially sensitive information
about employee compensation, including Defendants'
compensation data,” in addition to “information that reflects
certain Defendants' internal decision-making regarding their
business strategies related to compensation and internal
assessments of their and other employers' competitive
position in the labor market.” ECF No. 254 at 2. Defendants
further assert that they “seek to keep under seal those
materials that reflect compensation practices, strategies and
policies; recruiting and hiring data, practices, strategies
and policies; and personal identifying information of
employees or candidates” which Defendants designated as
“Confidential” or “Attorneys' Eyes Only” under the modified
Stipulated Protective Order. Id.
Defendants assert that “public disclosure of this information,”
which the Defendants keep confidential, “would cause
each Defendant harm by giving third-parties (including

individuals responsible for competitive decision-marking)
insights into confidential and sensitive aspects of each of the
Defendants' strategies, competitive positions, and business
operations, allowing these third-parties to potentially gain an
unfair advantage in dealings with and against each of the
Defendants.” Id.
*14 After reviewing Defendants' joint and separate
declarations, the relevant case law, and each of the documents
that Defendants seek to maintain under seal, the Court finds
that Defendants have made a particularized showing with
respect to sealing the following portions of the Reply: i,
Headings II I.B. 1, III. B.2, III.C, and III. D; page 3, lines
18–25; page 11, lines 15–16; page 12, lines 18–21; page
13, line 23, through page 14, line 12; page 14, footnote 10;
page 16, lines 11–12; page 16, lines 18–19; page 17, lines
13–22; page 17, line 27, through page 18, line 11; page
18, lines 14–28; page 19, lines 5–9; page 19, lines 14–16;
page 19, lines 17–27; page 20, lines 3–26; page 21, lines
5–7; page 21, lines 7–13; page 21, lines 13–14; page 21,
footnote 13; page 22, lines 5–7; page 23, footnote 14, second
sentence; page 24, lines 14–21; page 25, lines 1–6. The Court
is persuaded that Defendants' requests are sufficiently specific
and that Defendants have plausibly articulated the need for
maintaining the confidentiality of this information given the
potential harm that may come from public disclosure.
In addition, the Court finds that Defendants have made a
particularized showing with respect to sealing the following
exhibits and portions of exhibits to the Harvey Declaration:
Exhibit 1 (page 57, lines 6, through page 58, line 23; page
73, line 20 through page 74, line 3; page 74, line 18 through
page 76, line 25); Exhibit 2 (page 244, line 1 through page
247, line 25); Exhibit 10 (page 327, line 17 through page 328,
line 25); Exhibit 13 (pages 255–258; page 260, line 11–25,
page 283, lines 7–25, page 284, lines 1–4, 12–20; page 294,
lines 15–25; and page 295, line 22 through page 296, line 5);
Exhibit 15; Exhibit 16; Exhibit 17; Exhibit 18; Exhibit 19;
Exhibit 20; Exhibit 22; Exhibit 23; Exhibit 24; Exhibit 25;
and Exhibit 30. The Court finds that Defendants' requests are
sufficiently specific as to these exhibits and that Defendants
have plausibly articulated the need for maintaining their
confidentiality given the potential harm that may come from
public disclosure. Consequently, the Court finds good cause
to GRANT the motion to maintain these documents under
seal. Finally, the Court GRANTS the request to file portions
of the Glackin letter under seal.

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However, the Court finds that Defendants have not made a
sufficiently particularized showing of good cause with respect
to the following portions of Plaintiffs' Reply: page 13, lines
14–18; page 13, lines 22–23; and page 20, line 26, through
page 21, line 4. In addition, the Court finds that Defendants
have not made a particularized showing with respect to
sealing the following exhibits to the Harvey Declaration:
Exhibit 3, Exhibit 4, Exhibits 6, Exhibit 26, Exhibit 27, and
Exhibit 29. Furthermore, to the extent Defendants contend
that disclosure of these materials would cause Defendants'

competitive harm, the Court finds that Defendants have
not supported their assertions with sufficiently particularized
facts. Therefore, the Court DENIES these requests without
prejudice.

2. The Court's Rulings on Plaintiffs' Administrative
Motion to Seal Documents Related to its Reply
*15 In summary, for the Reply in Support of the Motion for
Class Certification, the Court rules as follows:

Pages/Lines to be Sealed

Ruling

i, Headings III.B.1, III.B.2, III.C, and III.D

GRANTED. See Wagner Reply Decl. ¶ 2(a).

Page 3, lines 18–25

GRANTED. See Wagner Reply Decl. ¶ 2(b).

Page 11, lines 15–16

GRANTED. See Zeng Reply Decl. ¶ 7.

Page 12, lines 18–21

GRANTED. See Kahn Reply Decl. ¶ 7(a).

Page 13, lines 14–18

DENIED. This excerpt references and quotes
portions of the Colligan Declaration and the
exhibits to the Col ligan Declaration. As the
Court has denied Palm's request to seal this
excerpt in connection with Plaintiffs' Motion
for Class Certification, the same reasons
apply to denying the request to seal here.
See Booth Decl. ¶¶ 3–6; Zeng Reply Decl.
10.

Page 13, lines 22–23

DENIED. Pixar contends that good cause
exists to file under seal this specific quotation
from Exhibit 61 to the Shaver Declaration.
See Kennedy Reply Decl. ¶ 5. This excerpt
quotes a portion of Exhibit 61, which as set
forth above the Court has declined to seal.
Having reviewed this excerpt, the Court finds
that Pixar has not made a particularized
showing that the information contained
therein is “confidential.” Id.

Page 13, line 23 through page 14, line 12

GRANTED. See Wagner Reply Decl. ¶ 2(c).

Page 14, Footnote 10

GRANTED. See Welch Reply Decl. ¶ 8;
Kahn Reply Decl. ¶ 7(b); Brown Reply Decl.
¶ 3; Wagner Reply Decl. ¶ 2(d).

...........................................................................
Page 16, lines 11–12

GRANTED. See Wagner Reply Decl. ¶ 2(e).

Page 16, lines 18–19

GRANTED. See Wagner Reply Decl. ¶ 2(f).

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

Page 17, lines 13–22

GRANTED. See Brown Reply Decl. ¶ 3;
Wagner Reply Decl. ¶ 2(g); Welch Reply D
ecl. ¶¶ 8, 9; Sessions Reply Decl. ¶ 4(i).

...........................................................................
Page 17, line 27, through page 18, line 11

GRANTED. See Kahn Reply Decl. ¶ 7(c).

Page 18, lines 14–28

GRANTED. See Brown Reply Decl. ¶ 3;
Wagner Reply Decl. ¶ 2(h); Welch Reply
Decl. ¶¶ 8, 9.

Page 19, lines 5–9

GRANTED. See Zeng Reply Decl. ¶ 7;
Sessions Reply Decl. ¶ 4(i).

Page 19, lines 14–16

GRANTED. See Kahn Reply Decl. ¶ 7(d).

Page 19, lines 17–27

GRANTED. See Kahn Reply Decl. ¶ 7(d).

Page 20, lines 3–26

GRANTED. See Wagner Reply Decl. ¶ 2(i).

Page 20, line 26 through page 21, line 4

DENIED. Pixar contends that good cause
exists to file under seal this specific quotation
from Exhibit 61 to the Shaver Declaration.
See Kennedy Reply Decl. ¶ 5. As set forth
above, the Court has declined to seal Exhibit
61. Thus, having reviewed these excerpts,
the Court finds that Pixar has not made a
particularized showing that the information
contained therein is “confidential.” Id.

Page 21, lines 5–7

GRANTED. See Wagner Reply Decl. ¶ 2(j).

Page 21, lines 7–13

GRANTED. See Brown Reply Decl. ¶ 3.

Page 21, lines 13–14

GRANTED. See Welch Reply Decl. ¶¶ 8, 9;
Zeng Reply Decl. ¶ 7.

Page 21, Footnote 13

GRANTED. See Zeng Reply Decl. ¶ 7;
Sessions Reply Decl. ¶ 4.

Page 22, lines 5–7

GRANTED. See Brown Reply Dec. ¶ 3;
Wagner Reply Decl. ¶ 2(k).

Page 23, footnote 14, second sentence

GRANTED. See Welch Reply Decl. ¶¶ 8, 9.

Page 24, lines 14–21

GRANTED. See Welch Reply Decl. ¶¶ 8, 9.

Page 25, lines 1–6

GRANTED. See Brown Reply Decl. ¶ 3.

*16 Regarding the proposed redactions to the exhibits to
the Harvey Declaration in Support of Plaintiffs' Consolidated
Reply, the Court rules as follows:

Exhibits

Ruling

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1

GRANTED as to page 57, line 6, through page 58, line 23; page
73, line 20, through page 74, line 3; page 74, line 18, through
page 76, line 25. See Kahn Reply Decl. ¶ 7(v).

2

GRANTED as to page 244, line 1 through page 247, line 25. See
Kahn Reply Decl. ¶ 7(w).

3

DENIED. This exhibit involves excerpts from the deposition of
Apple witness Mark Bentley, which allegedly reflect Apple's
confidential recruiting practices and strategies. See Brown Reply
Decl. ¶ 5. Having reviewed this document, the Court finds that
Apple has not made a particularized showing that all of the
information contained therein is “confidential.”

4

DENIED. This exhibit contains “transcript excerpts from the
deposition of Arnon Geshuri, dated August 17, 2012, and reflects
confidential and highly sensitive details about Google's recruiting
strategies and resources with respect to particular types of
candidates.” See Wagner Reply Decl. ¶ 4(a). Having reviewed
this document, the Court finds that Google has not made a
particularized showing that all of the information contained therein
is “confidential.”

6

DENIED. This exhibit contains excerpts from the deposition of
Steven Burmeister which allegedly “reflect Apple's sources of
highly confidential employee compensation data.” See Brown
Reply Decl. ¶ 5. Having reviewed this document, the Court finds
that Apple has not made a particularized showing that all of the
information contained therein is “confidential.”

10

GRANTED as to page 327, line 17 through page 328, line 25.
See Wagner Reply Decl. ¶ 4(b).

13

GRANTED as to pages 255–258; page 260, line 11–25; page
283, lines 7–25; page 284, lines 1–4, 12–20; page 294, lines 15–
25; and page 295, line 22, through page 296, line 5. See Kahn
Reply Decl. ¶ 7(x), Brown Reply Decl. ¶ 5, Wagner Reply Decl. ¶
4(c).

...........................................
15

GRANTED. See Kahn Reply Decl. ¶ 7(y).

16

GRANTED. See Kahn Reply Decl. ¶ 7(z).

17

GRANTED. See Kahn Reply Decl. ¶ 7(aa).

18

GRANTED. See Kahn Reply Decl. ¶ 7(bb).

19

GRANTED. See Brown Reply Decl. ¶ 5.

20

GRANTED. See Brown Reply Decl. ¶ 5.

22

GRANTED. See Wagner Reply Decl. ¶ 4(d).

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23

GRANTED. See Wagner Reply Decl. ¶ 4(e).

24

GRANTED. See Wagner Reply Decl. ¶ 4(f).

25

GRANTED. See Wagner Reply Decl. ¶ 4(g).

26

DENIED. See Welch Decl. ¶ 3. Having reviewed this document,
the Court finds that Intel has not made a particularized showing
that all of the information contained therein is “confidential.”

27

DENIED. See Welch Decl. ¶ 3. Having reviewed this document,
the Court finds that Intel has not made a particularized showing
that all of the information contained therein is “confidential.”

29

DENIED. See Zeng Reply Decl. ¶ 8. Having reviewed
this document, the Court finds that Intuit has not made a
particularized showing that all of the information contained therein
is “confidential.”

30

GRANTED. See Sessions Reply Decl. ¶¶ 4(i); 5.

*17 Finally, for the Glackin Letter, the Court rules as
follows:

Exhibits

Ruling

Glackin Letter

GRANTED. See Welch Decl. ¶ 8.

III. Conclusion
For the foregoing reasons, the Court GRANTS–IN–PART
and DENIES–IN–PART the parties' administrative motions
to seal documents. For each motion and exhibit to a motion
where the Court has denied a request to seal, Plaintiffs shall
re-file that motion and exhibit consistent with this Order and
the Court's Standing Order within seven days. Defendants
shall do the same for any motion and exhibit to a motion for

which its motion to seal has been granted-in-part and deniedin part. In addition, if any portion of the exhibits that the
parties wish to file under seal becomes part of the public
record, such as during the hearing on class certification, the
parties must file that portion publicly within seven days of
public disclosure.

IT IS SO ORDERED.

Footnotes

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2
3

The Court recognizes that there may be circumstances in which a motion for class certification is case dispositive. As the Eleventh
Circuit observed in Prado v. Bush, 221 F.3d 1266, (11th Cir.2000), a motion for class certification might be dispositive if “a denial
of class status means that the stakes are too low for the named plaintiffs to continue the matter.” Id. at 1274. Nevertheless, the
Court applies a “good cause” standard here in accordance with the vast majority of other courts within this circuit. See, e.g., In re
NCAA Student–Athlete Name and Likeness Licensing Litigation, No. 09–01967, 2012 WL 5395039 (N.D.Cal. Nov.5, 2012); Vietnam
Veterans of America v. C.I.A., No. 09–0037, 2012 WL 1094360, *1–2 (N.D.Cal. March 29, 2012); Buchanan v. Homeservices Lending
LLC, No. 11–0922, 2012 WL 5505775, *2 (S.D.Cal. Nov.13, 2012); Davis v. Social Service Coordinators, Inc., No. 10–02372, 2012
WL 2376217 (E.D. Cal. June 22, 2012); Rich v. Hewlett–Packard Co., No. 06–03361, 2009 WL 2168688 (N.D.Cal. Jul.20, 2009).
This Order does not address the parties' request to file under seal portions of the Leamer Report. The Court will address the parties'
request to file portions of this report under seal in a separate order.
This Order does not address the parties' request to file under seal portions of the Murphy Report. The Court will address the parties'
request to file portions of this report under seal in a separate order.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

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In re High-Tech Employee Antitrust Litigation, Slip Copy (2013)

4

This Order does not address the parties' request to file under seal portions of the Leamer Reply Report. Accordingly, this Order also
does not address Defendants' request to remove the reply expert report from the ECF docket due to the report's headings. See ECF
No. 254. The Court will address the parties' requests to file portions of this report under seal in a separate order.

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

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