LUCY H. KOH
ORDER RE: ADMINISTRATIVE
MOTIONS TO SEAL
On August 28, 2012, Plaintiff Keith Dunbar ("Plaintiff") filed his Motion for Leave to File His Third Amended Class Action Complaint ("Motion for Leave to Amend"). ECF No. 205. In connection with Plaintiff's Motion for Leave to Amend, Plaintiff filed an Administrative Motion to Conditionally File Under Seal Portions of Plaintiff's Motion for Leave to Amend. ECF No. 204 ("Motion to Seal the Motion for Leave to Amend"). Defendant Google, Inc. ("Google") filed a response in support of Plaintiff's Motion to Seal the Motion for Leave to Amend on September 4, 2012. ECF No. 208 ("Response to Motion to Seal the Motion for Leave to Amend").
On July 18, 2012, Google filed its Opposition to Plaintiff's Motion for Leave to Amend ("Opposition"). In connection with Google's Opposition, Google filed an Administrative Motion to File Under Seal Portions of Google, Inc.'s Opposition and the Declaration of Whitty Somvicihian. ECF No. 210 ("Google's Motion to Seal").
Finally, on October 2, 2012, Plaintiff filed his Reply in Support of his Motion for Leave to Amend. In connection with the Reply, Plaintiff filed an Administrative Motion to Conditionally File Under Seal Portions of Plaintiff's Reply. ECF No. 213 ("Plaintiff's Motion to Seal the Reply"). On October 9, 2012, Google filed a response in support of Plaintiff's Motion to Seal the Reply. ECF No. 214 ("Response to Motion to Seal the Reply").
In the instant Order, the Court addresses the parties' administrative motions to seal. For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Seal the Motion for Leave to Amend. The Court DENIES Google's Motion to Seal its Opposition. The Court also DENIES Plaintiff's Motion to Seal the Reply.
I. LEGAL STANDARD
Courts have recognized a "general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (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 justifications for sealing that outweigh the public policies favoring disclosure. See id. at 1178-79. Because the public's interest in non-dispositive motions is relatively low, a party seeking to seal a document attached to a non-dispositive motion need only demonstrate "good cause." Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (applying "good cause" standard to all non-dispositive motions, because such motions "'are often unrelated, or only tangentially related, to the underlying cause of action'" (citing Kamakana, 447 F.3d at 1179)).
Conversely, "the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the 'public's understanding of the judicial process and of significant public events.'" Kamakana, 447 F.3d at 1179 (quoting Valley Broadcasting Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)). Thus, a party seeking to seal a judicial record attached to a dispositive motion or presented at trial must articulate "compelling reasons" in favor of sealing. See id. at 1178. "In general, 'compelling reasons' . . . exist when such 'court files might have become a vehicle for improper purposes,' such as the use of records to . . . release trade secrets." Id. at 1179 (citing Nixon, 435 U.S. at 598). The Ninth Circuit has adopted the Restatement's definition of "trade secret" for purposes of sealing, 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." In re Electronic Arts, 298 Fed. App'x 568, 569-70 (9th Cir. 2008) (quoting Restatement of Torts § 757, cmt. b). Additionally, "compelling reasons" may exist if sealing is required to prevent judicial documents from being used "'as sources of business information that might harm a litigant's competitive standing.'" Id. at 569 (9th Cir. 2008) (citing Nixon, 435 U.S. at 598).
Here, the parties seek to seal portions of the Plaintiff's Motion for Leave to Amend, Google's Opposition thereto, and various declarations and exhibits offered in support of those documents. Plaintiff's Motion for Leave to Amend is a 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).
II. DISCUSSION
1. Plaintiffs Motion to Seal the Motion for Leave to Amend
In Plaintiff's Motion to Seal the Motion for Leave to Amend, Plaintiff seeks to seal: (1) portions of Plaintiff's Motion for Leave to Amend, (2) portions of Plaintiff's Proposed Third Amended Complaint ("TAC"), which is attached as Exhibit A to the Declaration of F. Jerome Tapley in Support of Plaintiff's Motion for Leave to Amend ("Tapley Declaration" or "Tapley Decl."), and (3) Exhibits D, E, F, G, and I to the Tapley Declaration. See Motion to Seal the Motion for Leave to Amend at 2. Plaintiffs seek to seal this information on the grounds that Google has designated the information "Confidential" or "Confidential Attorneys' Eyes Only" pursuant to the parties' stipulated Protective Order in this case. See id.
Specifically, Plaintiff seeks to seal the following pages: 4:1-9, 5:6-12, 5:15-22, 7:4-5, 7:8-22, 7:24-26, 8:2-3, 8:5-9, 8:11-12, 8:14-15, 8:17-19, 8:21-22, 9:7-11, 9:13-26, 10:20-22, 10:24-26, 11:3-7, 11:10-13, 11:23, 13:24-25, 14:3-6, 14:27-28, 17:6-7, 17:10-11, 19:1-2, and 19:7.
Specifically, Plaintiff seeks to seal the following pages: 6:14-15, 7:4-5, 12:21-23, 13:8-10, and 23:16-17.
In Google's response in support of Plaintiff's Motion to Seal the Motion for Leave to Amend, Google requests that a subset of the items identified by Plaintiff be sealed. See Response to Motion to Seal the Motion for Leave to Amend at 2. Google also requests that the Court seal several lines of Plaintiff's Motion for Leave to Amend and TAC not identified in Plaintiff's motion to seal. See id. The items Google seeks to seal include the following:
1. Motion for Leave to Amend pages 5:6-12, 5:15-22, 10:15-17, 10:20-22, 10:24-26, 11:3-7, 11:10-13, 11:23, 14:3-6, 14:21-22, 14:27-28, and 17:10-11;
2. TAC pages 6:14-15, 6:18-19, 7:4-5, 7:24-27, 8:4-5, 9:5-6, 12:21-23, and 13:8-10; and 3. Exhibits F, G, and I to the Tapley Declaration
See Declaration of Deepak Jindal in Support of Google's Response to Motion to Seal the Motion for Leave to Amend, ECF No. 209 ("Jindal Declaration" or "Jindal Decl.") ¶¶ 4-5.
Because Google does not seek to seal: (1) Motion for Leave to Amend pages 4:1-9, 7:4-5, 7:8-22, 7:24-26, 8:2-3, 8:5-9, 8:11-12, 8:14-15, 8:17-19, 8:21-22, 9:7-11, 9:13-26, 13:24-25, 17:6-7, 19:1-2, or 19:7; (2) TAC page 23:16-17; or (3) Exhibits D or E, Plaintiff's request to seal these items is DENIED with prejudice. The Court proceeds to those items Google does seek to seal.
Google contends that there is good cause to seal those portions of the Motion for Leave to Amend identified above because the relevant pages include information that "describes how Google scans for, uses, and stores data in connection with its Gmail system, including for the delivery of personalized advertising." Jindal Decl. ¶ 4. Google contends that "[t]hese methods are proprietary procedures that Google designed and implemented at substantial cost for its own business purposes...." Id. Google further contends that "[t]he information reflected in the Motion reveals confidential information on [inter alia]: (i) the types of data that Google scans for in connection with emails sent to and from the Gmail system, (ii) the data scanned for specifically in connection with the emails of Cable One users, [and] (iii) when the processes related to personalized advertisements allegedly occur in relation to other steps in the email delivery process...." Id. Google states that it guards against disclosure of this "confidential and proprietary... information through a number of means, including requiring Google employees to sign nondisclosure agreements as part of their employment." Id.
Google contends that disclosing this information would allow Google's competitors to "examin[e] the mechanisms that Google designed for its own proprietary use," thereby providing Google's competitors with "an unfair advantage in designing their own systems...." Id. Google also states that disclosure of the information could give "hackers and spammers insight into how the Gmail system works." Id. Accordingly, Google contends that there is good cause to seal the portions of the Motion for Leave to Amend identified above. See Response to Motion to Seal the Motion for Leave to Amend at 1-2.
The Court is not persuaded. The Ninth Circuit has explained that the "good cause" standard, while not as stringent as the "compelling reasons" standard, still requires a "particularized showing" that can "warrant preserving the secrecy of sealed discovery material attached to non-dispositive motions." Kamakana, 447 F.3d at 1180. Here, Google has not made the required particularized showing with respect to each of the pages it has designated for sealing.
For example, Google seeks to seal page 5, lines 6-13, which discusses Google's scanning of emails received by Plaintiff on his Cable One email account. Motion for Leave to Amend at 5. The relevant paragraph states that Google scans Plaintiff's email to acquire meaning and content (notwithstanding the fact that Plaintiff does not receive advertising from Google). Id. Google has failed to explain how disclosure of the mere fact that Google scans Cable One accounts for meaning and content will provide Google's competitors with insight into Google's "mechanisms" for scanning email such that those competitors will have "an unfair advantage in designing their own systems." Jindal Decl. ¶ 4. Google also does not explain how "hackers and spammers" will be able to use this information to circumvent Google's virus and spam prevention procedures. Id. Indeed, the Court notes that, at the November 29, 2012 hearing on Plaintiff's Motion for Leave to Amend, Google indicated that it is well known that Cable One users' emails are scanned and that those users consent to such scanning. See Transcript of November 29, 2012 Hearing at 45:19-24 (Google arguing that users could have learned the details of Google's scanning of users' emails from a variety of sources including Google's terms of service, tutorials, disclosures, press coverage of the issue, and "their own personal practices with respect to e-mail"); id. at 49:21-23 (Google arguing that "there is explicit consent by virtue of agreeing to the terms, and there's implied consent from the overall factors"). Google fails to explain what undisclosed information is contained on page 5 in lines 6-13.
Google's designation of page 5 lines 15-22 fails for similar reasons. This portion of the Motion for Leave to Amend contains information concerning: (1) the point in the email data flow at which Google scans Cable One users' messages to acquire meaning and content, and (2) Google's use of the data it acquires. See Motion for Leave to Amend at 5. The Court notes that Plaintiff's description of the timing of Google's scanning activities is fairly general and uses phrases such as "front-end" and "back-end." Id. Google fails to explain how knowledge of this information will provide either an unfair advantage to competitors or dangerous information regarding Google's processes to hackers and spammers. Accordingly, Google's request to seal this portion of the Motion for Leave to Amend is denied without prejudice.
Google's other sealing requests with respect to the Motion for Leave to Amend fail for similar reasons. The relevant pages provide information regarding certain aspects of Google's process for scanning emails, including the point at which certain scans occur, the nature of the information gathered, and how Google uses that information. See Motion for Leave to Amend at 10:15-17, 10:20-22, 10:24-26, 11:3-7, 11:10-13, 11:23, 14:3-6, 14:21-22, 14:27-28. Additionally, page 17:10-11 states the number of Cable One customers whose email accounts are serviced by Google. See id. at 17:10-11. Google fails to explain how disclosure of this information would provide an unfair advantage to competitors or enable hackers and spammers to carry out attacks on Google's customers. Google has failed to provide sufficient information for the Court to conclude that there is good cause to seal the aforementioned pages of the Motion for Leave to Amend. Accordingly, Google's motion to seal is denied without prejudice as to the Motion for Leave to Amend.
Google's request to seal portions of the TAC also fails. As set forth above, Google seeks to seal pages 6:14-15, 6:18-19, 7:4-5, 7:24-27, 8:4-5, 9:5-6, 12:21-23, and 13:8-10 of the TAC. For the most part, the relevant portions of the TAC describe: (1) when certain scanning processes occur, and (2) Google's use and retention of the information acquired from its scanning. Google contends that disclosure of this information would "cause Google competitive harm" for the reasons set forth in connection with Google's request to seal portions of the Motion for Leave to Amend. See Jindal Decl. ¶ 6. However, as discussed above, Google has failed to explain how disclosure of the sealed information would provide its competitors with an "unfair advantage." Id. ¶ 4. Accordingly, Google's requests with respect to the TAC are denied without prejudice.
Google also seeks to seal Exhibits F, G, and I to the Tapley Declaration. See Jindal Decl. ¶¶ 7-9. Exhibit F to the Tapley Declaration is an example of data that Google acquired by scanning messages in Plaintiff's inbox. This data is in the form of text in what appears to be a computer language. Google contends that Exhibit F "shows the specific type of data that Google scans for and uses in connection with the proprietary processes described above and further shows how Google stores that information." Id. ¶ 7. Google further states that: (1) this "information is generated based on Google's internal proprietary processes"; (2) the information "is highly detailed"; and (3) the information "is not publicly available." Id. Google states that access to this information "would provide Google's competitors with substantial insight into Google's internal operations." Id.
The Court is not persuaded that this information should be sealed. While the information does appear to be technical in nature, Google has not articulated how a competitor would use this information to obtain an unfair advantage, or how this information could be used by a hacker or spammer to take advantage of a vulnerability in Google's system. Accordingly, Google's request is denied without prejudice with respect to Exhibit F.
Exhibit G to the Tapley Declaration is a flow chart describing the sequence of Google's processes relating to the scanning of incoming emails. Google contends that the chart provides "details [regarding] Google's processes related to identifying 'spam' email, protecting users from viruses, and scanning for data for use in personalized advertising." See Jindal Decl. ¶ 8. Google contends that disclosure of the information in Exhibit G "would provide Google's competitors with substantial insight into how Google conducts its operations"; thereby allowing competitors to "obtain a competitive advantage." Id. Google further contends that "someone armed with this proprietary information could potentially use it in an attempt to circumvent Google's spam and virus protections.. " Id.
The Court is not persuaded that this document should be sealed. Google fails to explain how this information could be used by a competitor in developing its own process or by a hacker or spammer "to circumvent Google's spam and virus protections." Id. Accordingly, the Court denies Google's request to seal Exhibit G without prejudice.
Exhibit I is a copy of a contract between Google and Cable One, Inc. Google contends that good cause exists to seal this exhibit because "the terms of Google's agreement with Cable One are confidential and contain sensitive information regarding the pricing and other terms Google negotiated with Cable One." See Id. ¶ 9. Google contends that disclosure of the terms of Google's agreement with Cable One could cause Google competitive harm by "giving other Google Apps partners unfair insight into" the terms of Google's agreement with Cable One. Id. The Court agrees that Exhibit I contains confidential information including the price per user Google charges Cable One, the number of Google-serviced email accounts that Cable One is authorized to maintain, the payment schedule between the parties, and bank account information. Disclosure of this information could cause Google competitive harm. The Court therefore agrees that good cause exists to seal the relevant terms. Moreover, because these terms constitute the vast majority of the excerpted contract page, the Court will not require Google to submit a redacted copy of the exhibit (although Google is advised that, in the future, Google should submit a copy of contracts such as this one with only the sealable terms redacted). See Judge Koh's Standing Order Regarding Filing Documents Under Seal.
For the reasons set forth above, the Court GRANTS the parties' request to seal Exhibit I. The Court DENIES each of the parties' other requests. Within 7 days, Google may file a renewed motion to seal any of the items that the Court has declined to seal without prejudice.
2. Google's Motion to Seal
In Google's Motion to Seal, Google seeks to seal: (1) portions of Google's Opposition to Plaintiff's Motion for Leave to Amend ("Opposition"), and (2) Exhibit A to the Declaration of Whitty Somvichian in Support of Google's Opposition ("Somvichian Declaration" or "Somvichian Decl.") (ECF No 210-4). See Google's Motion to Seal at 2. The Court considers each of these requests in turn.
With respect to the Opposition, Google seeks to seal the following pages: 4:22-24, 4:24-26, 5:1, 5:4-6, 5:8-10, 5:11-13, 5:14, and 17:7-11. See Declaration of Deepak Jindal in Support of Google's Motion to Seal, ECF No. 210-2 ("Jindal Opposition Decl."), Ex. A. Google contends that "[t]he information reflected in the Opposition reveals confidential information [regarding]: (i) the types of data that Google scans for in connection with emails sent to and from the Gmail system, (ii) the data scanned for specifically in connection with the emails of Cable One users, and (iii) how data is used and stored." See id. ¶ 4. Google contends that "[p]ublic disclosure of this information would harm Google by, among other things, giving Google's competitors an unfair advantage in designing their own systems... [and] would [also] harm Google, by, among other things, giving potential hackers and spammers insight into how the Gmail system works." Id.
The Court is not persuaded that good cause exists to seal these documents. Google's description of its scanning process, including the types of data scanned for and how the data is used, is fairly general. Google fails to explain how disclosure of this information would give: (1) Google's competitors an unfair advantage in designing their own system, or (2) hackers and spammers sufficient new insight into how the Google system works such that disclosure would create a security threat. Accordingly, the Court denies Google's request to seal this document without prejudice.
Google also attempts to seal Exhibit A to the Somvichian Declaration. Exhibit A consists of excerpts of the transcript of the deposition of Alex Gawley, Google's Senior Product Manager. Google contends Exhibit A includes the same categories of confidential information (e.g. information regarding the types of data that Google scans for) as the Opposition, and that disclosure of this information could cause Google "competitive harm for the same reasons" set forth in connection with Google's request to seal portions of its Opposition. Id. ¶ 5.
The Court is not persuaded that there is good cause to seal Exhibit A. Again, Google fails to explain how disclosure of the information in Exhibit A would provide competitors with an "unfair advantage in designing their own systems." Id. ¶ 4. Moreover, the Court notes that while Mr. Gawley does go into some detail concerning Google's scanning process, and the associated infrastructure, his entire declaration is not sealable. Thus, Google has, at the very least, over-designated what should be sealed. Accordingly, Google's request to seal Exhibit A is denied without prejudice.
For the reasons set forth above, the Court DENIES without prejudice Google's requests to seal portions of the Opposition and Exhibit A to the Somvichian Declaration. Google may file a renewed motion to seal these items within 7 days.
3. Plaintiff's Motion to Seal the Reply
In Plaintiff's Motion to Seal the Reply, Plaintiff seeks to seal: (1) portions of Plaintiff's Reply in Support of the Motion for Leave to Amend ("Reply"), and (2) Exhibits O, P, and S to the Declaration of Sean F. Rommel in Support of Plaintiff's Motion for Leave to Amend ("Rommel Declaration" or "Rommel Decl."). See Motion to Seal the Reply at 1. Plaintiffs seek to seal this information on the grounds that Google has designated the information "Confidential" or "Confidential Attorneys' Eyes Only" pursuant to the parties' stipulated Protective Order in this case. See id.
Specifically, Plaintiff seeks to seal the following pages of the Reply: 4:3-5, 4:6-8, 4:15-22, 4:26, 5:1-2, 5:8-10, 5:16-19, 7:14-19, 9:25, 10:26-27.
The Court notes that the Motion to Seal the Reply also states that Plaintiff seeks to seal Exhibits D, E, F, G, and I to the Tapley Declaration (mistakenly referred to as the Rommel Declaration). Plaintiff's requests to seal these items have been addressed above in connection with Plaintiff's Motion to Seal the Motion for Leave to Amend.
--------
In Google's response in support of Plaintiff's Motion to Seal the Reply, Google states that, notwithstanding its prior designation of certain information as "Confidential" or "Confidential Attorneys' Eyes Only," Google only wishes to seal a limited portion of what Plaintiff has filed under seal. See Response to Motion to Seal the Reply at 2. Specifically, Google seeks to seal:
1. Reply pages 4:3-5, 4:6-8, 4:15-22, 5:1-2, 5:16; and
2. Exhibits O and S to the Rommel Declaration.
See Declaration of Deepak Jindal in Support of Response to Motion to Seal the Reply, ECF No. 214-2 ("Jindal Reply Declaration" or "Jindal Reply Decl.") ¶¶ 4-5, Ex. A.
Because Google does not seek to seal: (1) Motion for Leave to Amend pages 4:26, 5:1-2, 5:8-10, 5:17-19, 7:14-19, 9:25, or 10:26-27, or (2) Exhibit P to the Rommel Declaration, Plaintiff's request to seal these items is DENIED without prejudice. The Court proceeds to those items Google does seek to seal.
With respect to Plaintiff's Reply, Google's grounds for sealing the designated portions of the Reply are the same as Google's grounds for sealing portions of the Motion for Leave to Amend and the Opposition. Specifically, Google states that the Reply "describes how Google scans for data in connection with its Gmail system, including for delivery of personalized advertising." Id. ¶ 4. Google contends that disclosure of this information could provide an advantage to Google's competitors and could further provide hackers and spammers with insight into Google's system. Id. Google's request to seal portions of the Reply fails for the same reasons set forth above in connection with Google's requests to seal portions of the Motion for Leave to Amend and the Opposition. Specifically, Google fails to provide any details as to how the descriptions of Google's scanning processes in the Reply would provide an advantage to Google's competitors or to hackers and spammers. Accordingly, Google's request to seal portions of the Reply is denied without prejudice.
Similarly, Google fails to show there is good cause to seal Exhibit O to the Rommel Declaration. Id. ¶ 5. Like Exhibit A to the Somvichian Declaration, Exhibit O contains excerpts or the deposition testimony of Alex Gawley. Google offers the same justification for sealing Exhibit O as it did for sealing Exhibit A. Id. The Court therefore denies without prejudice Google's request to seal Exhibit O for the reasons set forth above in connection with Exhibit A.
Google also seeks to seal Exhibit S to the Rommel Declaration. Id. ¶ 8. Exhibit S is a portion of Google's Google Apps Partner Edition Agreement with Cable One. This portion of the agreement describes the "[s]ervices" Google will provide as well as Cable One's "[c]ustomer [o]bligations." See Rommel Decl., Ex. S. Google contends that disclosure of this information would provide "other Google Apps partners unfair insight into the types of provisions and specific terms that Google negotiated specifically with Cable One." Jindal Reply Decl. ¶ 8.
The Court is not persuaded that good cause exists to seal this document. As an initial matter, the Court notes that the provisions of Google's Agreement with Cable One reflected in Exhibit S appear to be standard provisions for Google Apps Partners, as opposed to negotiated provisions specifically pertaining to Cable One. Moreover, the excerpted page of the contract does not include any pricing terms or confidential financial information. Accordingly, the Court denies Google's request to seal Exhibit S with prejudice.
III. CONCLUSION
For the reasons set forth above the Court:
1. GRANTS the parties' request to seal Exhibits G and I to the Tapley Declaration;
2. DENIES the parties' requests to seal portions of the Motion for Leave to Amend;
3. DENIES the parties' requests to seal portions of the TAC;
4. DENIES Google's request to seal Exhibits D, E, F, and G to the Tapley Declaration;
5. DENIES Google's requests to seal portions of the Opposition;
6. DENIES Google's request to seal Exhibit A to the Somvichian Declaration;
7. DENIES the parties' requests to seal portions of the Reply; and
8. DENIES the parties' requests to seal Exhibits O, P, and S to the Rommel Declaration.
Google may file a renewed motion to seal any of the items that the Court has declined to seal without prejudice. If Google elects to file a new motion to seal, it must do so within 7 days. IT IS SO ORDERED.
_________________________
LUCY H. KOH
United States District Judge