SiteLock LLC v. GoDaddy.com LLC ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 SiteLock LLC, No. CV-19-02746-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 GoDaddy.com LLC, 13 Defendant. 14 15 In an order issued earlier this year, the Court observed that “[t]his case has been 16 marred by a seemingly endless series of discovery disputes” and then proceeded to resolve 17 the parties’ latest batch of squabbles. (Doc. 247 at 1.) Here we go again. Pending before 18 the Court are two more discovery-related motions: (1) GoDaddy’s motion for a protective 19 order (Doc. 251) and (2) SiteLock’s motion to compel (Doc. 255). Also pending are 20 GoDaddy’s five motions to seal. (Docs. 262, 265, 270, 274, 284.)1 21 I. GoDaddy’s Motion For Protective Order 22 A. Background 23 Because the many discovery disputes in this case have been recounted in earlier 24 orders, it is unnecessary to summarize them here. The current dispute concerns SiteLock’s 25 attempt to conduct a Rule 30(b)(6) deposition of GoDaddy. 26 On November 6, 2020, SiteLock served its original Rule 30(b)(6) deposition notice 27 1 After reviewing the seven pending motions, the Court issued a tentative ruling (Doc. 28 287) and then held oral argument (Doc. 290), which was useful in clarifying some of the technical issues related to motion to compel. 1 on GoDaddy, which included 19 topics. (Doc. 253-1 at 55-68.) This notice did not set a 2 firm date for the deposition and invited GoDaddy to meet and confer about scheduling. 3 (Id. at 55-56.) The parties have enclosed correspondence confirming that they did, indeed, 4 engage in extensive meet-and-confer efforts of the course of the next two months, which 5 concerned both the date of the deposition and GoDaddy’s objections to the 19 noticed 6 topics. (Id. at 132-52 [GoDaddy’s letter of Nov. 30, 2020]; id. at 154-186 [SiteLock’s 7 letter of Dec. 23, 2020]; id. at 188-210 [GoDaddy’s letter of Jan. 8, 2021]; id. at 212-14 8 [GoDaddy’s email of Jan. 11, 2021]; id. at 216-20 [GoDaddy’s email of Jan. 15, 2021]; id. 9 at 222-28 [SiteLock’s email of Jan. 16, 2021]; id. at 230-38 [SiteLock’s email of Jan. 22, 10 2021].) 11 On January 24, 2021, SiteLock served an amended deposition notice on GoDaddy. 12 (Id. at 240-52.) This notice set forth the same 19 topics but now identified a specific date 13 for the deposition of February 5, 2021. (Id.) At the time, this was the deadline for the 14 completion of fact discovery set forth in the scheduling order. (Doc. 247.) 15 On January 31, 2021, GoDaddy sent a letter to SiteLock concerning the amended 16 deposition notice. (Doc. 253-1 at 330-31.) In this letter, GoDaddy confirmed that, “[i]n 17 the interest of finality, and in order to ensure the efficient completion of discovery,” it 18 “intend[ed] to provide testimony in response to” nearly all of the 19 topics identified in the 19 amended notice. (Id.) Specifically, GoDaddy stated that it would provide testimony “as 20 noticed” in response to 11 of the topics (Topic Nos. 2, 3, 4, 5, 7, 8, 9, 12, 14, 15, and 16) 21 and would provide testimony “as limited by agreement” in response to five of the topics 22 (Topic Nos. 1, 10, 11, 17, and 18). (Id.) As for the remaining three topics, the areas of 23 continued disagreement were as follows: (1) as for Topic 6, GoDaddy stated it would 24 address this topic “as noticed, with the exception of” subdivision h; (2) as for Topic 13, 25 GoDaddy stated it would address this topic “as noticed, with the exception” that it would 26 only agree to provide information “as to the timeframe from March 22, 2017 through June 27 1, 2018”; and (3) as for Topic 19, GoDaddy stated that it “considers the parties at an 28 impasse.” (Id.) 1 On February 3, 2021—two days before the scheduled deposition date—the parties 2 filed a joint notice in which they, among other things, requested an extension of the fact 3 discovery deadline until February 26, 2021 so GoDaddy’s Rule 30(b)(6) deposition could 4 be postponed. (Doc. 249.) This request was granted. (Doc. 250.)2 5 On February 10, 2021, SiteLock served a second amended deposition notice on 6 GoDaddy. (Doc. 253-1 at 408-24.) It stated that the deposition would begin on February 7 24, 2021. (Id.) It also differed substantively from the previous version in two respects: 8 first, it changed the definitions of certain terms, including the terms “GoDaddy,” “Order,” 9 “Signup,” “Customer,” “Subscription.” “Type,” “Level,” and “Sale”; and second, it added 10 three new topics. (Doc. 258-2 at 22-38 [redline version of second amended notice, showing 11 changes]; id. at 40-47 [chart summarizing changes].) In a cover email, SiteLock explained 12 that it had changed the definitions “to reflect the parties’ discussions and compromises over 13 the last few weeks” and had added the new topics, which largely addressed GoDaddy’s set- 14 off defense, in light of a January 6, 2021 ruling (issued after service of the original notice) 15 that authorized GoDaddy to pursue such a defense. (Doc. 258-2 at 65.) 16 On February 18, 2021, GoDaddy wrote a letter to SiteLock concerning the second 17 amended notice. (Doc. 253-1 at 426-30.) In this letter, GoDaddy objected to the timing of 18 the notice, the changed definitions, the addition of the new topics, and SiteLock’s failure 19 to incorporate some of the limitations on other topics to which the parties had previously 20 agreed. (Id.) The letter stated that, if SiteLock did not address these issues by the next day 21 at 5:00 pm, GoDaddy “will have no choice but to proceed with seeking relief from the 22 Court.” (Id.) 23 On February 19, 2021—the next day—GoDaddy filed the pending motion for 24 protective order. (Docs. 252, 253.) 25 On February 22, 2021, SiteLock sent a letter to GoDaddy. (Doc. 258-2 at 64-67.) 26 2 In their briefs, each side accuses the other of gamesmanship and bad faith and argues 27 that the other should be deemed responsible for the failure to go forward with the Rule 30(b)(6) deposition on the originally scheduled date of February 5, 2021. (Doc. 252 at 3- 28 4 & n.1; Doc. 258 at 3-4.) The details of these counter-accusations are tedious and unnecessary to recount here. 1 Among other things, this letter stated that GoDaddy’s motion was premature (because it 2 had been filed “without awaiting a response from SiteLock, and without conducting any 3 telephonic meet and confer”), advised that SiteLock intended to go forward with the 4 deposition on February 24 as scheduled, and agreed to modify the second amended notice 5 to account for some (but not all) of GoDaddy’s objections. (Id.)3 6 On February 23, 2021, GoDaddy wrote a response letter. (Id. at 69-70.) In this 7 letter, GoDaddy stated that it would be producing witnesses on the scheduled dates but 8 those witnesses’ testimony would be limited to certain topics and were “not being offered 9 to provide corporate testimony on GoDaddy’s behalf in accordance with the definitions set 10 forth in the Second Amended Notice, nor with respect to the newly added, modified or 11 expanded topics set forth therein, to the extent same differ from those set forth in the 12 Amended Notice.” (Id.) 13 That same day, SiteLock wrote its own response letter. (Id. at 72-73.) Among other 14 things, SiteLock stated that “GoDaddy’s intention to limit its testimony to the topics set 15 forth in [the first amended notice] is unacceptable” and threatened to “seek appropriate 16 relief from the Court” if GoDaddy proceeded in this fashion. (Id.) 17 On February 24-26, 2021, the 30(b)(6) deposition of GoDaddy took place. (Doc. 18 261 ¶¶ 6-10.) 19 On March 5, 2021, SiteLock filed its response to GoDaddy’s motion for protective 20 order. (Doc. 258.) 21 On March 12, 2021, GoDaddy filed a reply. (Doc. 260.) 22 B. The Parties’ Arguments 23 GoDaddy requests “a protective order that prohibits SiteLock from taking a 30(b)(6) 24 25 3 Specifically, SiteLock stated: “We believe certain aspects of GoDaddy’s motion can be resolved—and in some cases have already been resolved—without the need for Court 26 intervention. For example, SiteLock had already agreed to limit the time frame of Topic 16 to April 1, 2013 through July 11, 2016. SiteLock had also agreed to limit Topics 11(c) 27 and (d) to the ‘Reseller Agreement and its addenda.’ And in the interests of compromise, SiteLock will also agree to limit the definition of ‘GoDaddy,’ ‘You,’ and ‘Your’ to exclude 28 ‘GoDaddy, Inc.’ We intend to proceed with GoDaddy’s depositions this week with these understandings.” (Doc. 258-2 at 67.) 1 deposition of GoDaddy pursuant to the deficient definitions and topics set forth in the 2 Second Amended Notice.” (Doc. 252 at 17.) GoDaddy contends it is entitled to this relief 3 under Rule 26(b)(2) for the following reasons: (1) SiteLock served the second amended 4 notice only 14 days before the Rule 30(b)(6) deposition was scheduled to begin, with 5 knowledge that GoDaddy and GoDaddy’s counsel would be tied up with other matters 6 during the intervening period, and thus failed to provide “reasonable notice” (id. at 2-5); 7 (2) the new definition of “GoDaddy” is overbroad because it “would sweep in GoDaddy’s 8 attorneys and countless unnamed entities and third parties” (id. at 5-7); (3) the new 9 definitions of “order,” “signup,” and “customer” are overbroad, and “directly contradict 10 the positions that SiteLock has taken throughout this case,” because they would encompass 11 instances in which a GoDaddy customer received a SiteLock subscription for free (id. at 7- 12 9); (4) the new definitions of “subscription,” type,” and “level” are invalid for the same 13 reasons, and vague to boot (id. at 9-10); (5) the new definition of “sale” is improper for the 14 same reasons (id. at 10-11); (6) Topics 11(c) and 11(d) are improper because SiteLock did 15 not incorporate, in the second amended notice, the parties’ previous agreement that these 16 topics would be limited to the reseller agreement and its addenda (id. at 11); (7) Topics 17 13(j) and 13(k) are overbroad and irrelevant because SiteLock has not limited them to the 18 relevant “temporal scope” (id. at 11-12); (8) Topic 16 also has an overbroad temporal scope 19 (id. at 12-13); (9) Topics 19, 20(b)-(e), and 21(b)-(c) are improper because they are 20 contention interrogatories designed as deposition topics, call for the production of work 21 product, are overbroad, unduly burdensome, and not reasonably particular, and seek 22 information on topics that the Court previously ruled irrelevant (id. at 13-16); and (10) 23 Topic 20 is improper because it lacks reasonable particularity and invades the attorney- 24 client privilege and work-product doctrine (id. at 16-17). 25 SiteLock opposes GoDaddy’s motion. (Doc. 258.) As an initial matter, SiteLock 26 argues the motion should be denied because GoDaddy failed to meet and confer before 27 filing it. (Id. at 2, 13-14.) Alternatively, SiteLock argues that GoDaddy’s complaints lack 28 merit because (1) as for “reasonable notice,” the second amended notice was served 14 1 days before the deposition date, courts have held that 14 days is a presumptively reasonable 2 notice period, the vast majority of the second amended notice was unchanged from the 3 original notice, which was served in November 2020 (more than four months before the 4 deposition), and the few changes had been the subject of discussion during the parties’ 5 meet-and-confer sessions (id. at 12-13); (2) as for changed definitions, the changes are 6 necessary to capture instances where GoDaddy gave away SiteLock subscriptions for free 7 or included SiteLock subscriptions in bundles (which has long been an issue in this case) 8 and GoDaddy’s motion makes clear that GoDaddy understands what the new definitions 9 are calling for (which undermines any complaint based on particularity) (id. at 8-9); (3) as 10 for new topics related to GoDaddy’s affirmative defenses, courts have ruled that such 11 questions are permissible in a Rule 30(b)(6) deposition and GoDaddy included similar 12 questions in its Rule 30(b)(6) deposition notice to SiteLock (id. at 9-10); (4) as for new 13 topics related to GoDaddy’s affirmative claims, SiteLock is willing to withdraw those 14 questions now that GoDaddy has confirmed it won’t be pursuing those claims (id. at 14); 15 (5) as for new topics related to document retention policies, GoDaddy’s particularity 16 challenge fails because GoDaddy included a nearly identical question in its Rule 30(b)(6) 17 notice to SiteLock (id. at 10 n.5); and (6) as for temporal limits, GoDaddy’s post-June 2018 18 revenues from Sucuri are relevant in calculating the future value of SiteLock’s damages 19 arising from the “failure to promote” claim (id. at 10-11). Finally, SiteLock asserts that 20 GoDaddy’s Rule 30(b)(6) witnesses were not prepared to testify on all of the noticed topics 21 during their depositions (id. at 7) and thus makes an affirmative request for the Court to 22 order them to “reappear” at a future deposition (id. at 11-12). 23 In reply (Doc. 260), GoDaddy argues that it engaged in sufficient meet-and-confer 24 efforts before seeking relief (id. at 10-11), provides further argument concerning the merits 25 of some of its original objections (id. at 2-3, 7-10), disputes SiteLock’s assertion that its 26 witnesses were unprepared (id. at 1, 3-6), and objects to SiteLock’s affirmative request to 27 reopen the deposition, characterizing it as an untimely “attempt to hijack GoDaddy’s 28 motion to argue an impromptu motion to compel” (id. at 1, 3-4). 1 C. Analysis 2 What a mess. Each side’s affirmative requests for relief are denied. 3 As for GoDaddy, its specific request for relief—the issuance of a protective order 4 to prohibit SiteLock from pursuing a Rule 30(b)(6) deposition based on the second 5 amended deposition notice—is moot. Although GoDaddy filed its motion on February 19, 6 2021, five days before the deposition was scheduled to begin, it didn’t request expedited 7 consideration of its motion. (Doc. 12 at 4 [Court’s preliminary order: “Any party desiring 8 expedited consideration of a motion or other matter pending before the Court may make 9 such a request by filing a separate Notice for Expedited Consideration. This notice should 10 set forth the grounds warranting accelerated resolution and identify the dates of the 11 imminent events pertinent to the request.”].) Nor did GoDaddy seek a stay of the 12 deposition pending the resolution of its motion. As a result, the deposition proceeded as 13 scheduled. GoDaddy does not explain how the issuance of a protective order now, more 14 than a month after the deposition ended, would accomplish anything. See generally Pioche 15 Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964) (“[The prior version of 16 Rule 26(b)] places the burden on the proposed deponent to get an order, not just to make a 17 motion. And if there is not time to have his motion heard, the least that he can be expected 18 to do is to get an order postponing the time of the deposition until his motion can be 19 heard.”); Nationstar Mortgage, LLC v. Flamingo Trails No. 7 Landscape Maintenance 20 Ass’n, 316 F.R.D. 327, 336 (D. Nev. 2016) (party seeking protective order in relation to 21 deposition must “obtain[] either a protective order or an order staying the deposition 22 pending resolution of the motion for protective order”). This renders the motion moot.4 23 4 See, e.g., Murphy v. Perez, 2007 WL 1500841, *1 (N.D. Cal. 2007) (“On February 24 20, 2007, Plaintiff filed an emergency motion for a protecti[ve] order, requesting that the Court protect his witness inmate Darrell Wright from being deposed by Defendant’s 25 counsel on February 20, 2007 . . . . Because the deposition of inmate witness Wright took place on February 20, 2007, Plaintiff’s motion for a protective order . . . is DENIED as 26 moot.”); Fletcher v. Brown County, 2007 WL 3124540, *3 (D. Neb. 2007) (“Nebraska Health and Human Services’ motion for protective order . . . is denied as moot. It appears 27 that Ms. Anderson’s deposition occurred.”); Calgene, Inc. v. Enzo Biochem, Inc., 1993 WL 645999, *12 (E.D. Cal. 1993) (“In its motion for protective order defendant sought to 28 prevent the deposition of Dr. Masayori Inouye . . . . [S]ince the deposition was scheduled to take place on September 16, 1993, and has presumably occurred, the issue of whether 1 GoDaddy’s motion is also denied for the separate reason that GoDaddy failed to 2 meet and confer in good faith with SiteLock before seeking judicial intervention. Under 3 LRCiv 7.2(j), “[n]o discovery motion will be considered or decided unless a statement of 4 moving counsel is attached thereto certifying that after personal consultation and sincere 5 efforts to do so, counsel have been unable to satisfactorily resolve the matter. Any 6 discovery motion brought before the Court without prior personal consultation with the 7 other party and a sincere effort to resolve the matter, may result in sanctions.” Here, the 8 relevant chronology is that GoDaddy received SiteLock’s original deposition notice in 9 November 2020, then spent the next few months actively negotiating with SiteLock over 10 tweaks and limitations to the 19 proposed topics. By late January 2021, the parties were 11 largely in agreement. Finally, on February 10, 2021, SiteLock served its second amended 12 notice, which sought to change the definitions of some of the defined terms and to add a 13 handful of new topics. In a cover email, SiteLock explained why it was making these 14 changes and noted that some of the changes were simply meant to memorialize the parties’ 15 previous discussions. 16 What happened next? GoDaddy took no action for eight days, then wrote a letter to 17 SiteLock on February 18, 2021 that unilaterally set a one-day deadline for SiteLock to 18 eliminate all of the changes reflected in the second amended notice, and then filed its 19 motion for a protective order immediately after SiteLock failed to meet this unilateral 20 deadline. It is difficult to understand how this could be considered “personal consultation” 21 and a “sincere effort” to resolve the parties’ dispute over the permissibility of the changes 22 at issue. Although it is true, as GoDaddy’s counsel states in her certificate of conferral, 23 that “[t]he parties exchanged extensive written correspondence regarding SiteLock’s Rule 24 30(b)(6) notices” (Doc. 254 at 2), that correspondence related to how to modify the 25 wording of SiteLock’s original notice. GoDaddy’s motion for protective order, however, 26 focuses primarily on the changes that SiteLock sought to make in the second amended 27 notice. There was no personal, sincere attempt to meet and confer about those changes— 28 the Magistrate Judge erred in denying defendant’s request for a protective order is moot.”). 1 a letter with a 24-hour deadline, unaccompanied by a phone call, doesn’t cut it. 2 This leaves SiteLock’s affirmative request for relief. SiteLock asserts that 3 GoDaddy’s witnesses were unprepared to discuss certain topics during the deposition and 4 thus argues that “GoDaddy’s 30(b)(6) witnesses should be ordered to reappear.” (Doc. 258 5 at 11, capitalization omitted.) This request fails for three related but distinct reasons. First, 6 “[a] request for a court order must be made by motion.” See Fed. R. Civ. P. 7(b)(1). As a 7 result, “a request for affirmative relief is not proper when raised for the first time in an 8 opposition.” Smith v. Premiere Valet Servs., Inc., 2020 WL 7034346, *14 (C.D. Cal. 9 2020). Second, in addition to being raised in a procedurally improper way, SiteLock’s 10 request is untimely. The deposition concluded on February 26, 2021. That was the final 11 day of the fact discovery period. Under the scheduling order in this case, “[a]bsent 12 extraordinary circumstances, the Court will not entertain fact discovery disputes after the 13 deadline for completion of fact discovery . . . . Delay in presenting discovery disputes for 14 resolution is not a basis for extending discovery deadlines.” (Doc. 22 at 5.) Thus, if 15 SiteLock felt that GoDaddy’s answers during the Rule 30(b)(6) deposition were deficient 16 for some reason, it was incumbent on SiteLock to raise the issue immediately. Instead, 17 SiteLock waited a week and then tucked its request for relief—which is effectively a 18 request to extend the fact discovery period—into a response brief. This approach did not 19 comply with the scheduling order. Third, and finally, largely because it chose to raise its 20 request for relief in a somewhat offhand manner in a response brief, SiteLock failed to 21 develop an adequate record demonstrating that the answers of GoDaddy’s witnesses during 22 the deposition were, in fact, deficient. 23 II. SiteLock’s Motion To Compel 24 A. Background 25 The other pending discovery motion is a request by SiteLock to compel GoDaddy 26 to produce certain financial records and update certain interrogatory responses. Because 27 this request is intertwined with a previous discovery dispute, which was resolved in January 28 2021 (Doc. 248), it is helpful to begin there. 1 The essential facts of this case are that “SiteLock and GoDaddy entered into a 2 contract under which GoDaddy agreed to market and sell SiteLock’s website security 3 services. When a GoDaddy customer would purchase a SiteLock subscription and then 4 take the additional step of activating that subscription, GoDaddy would remit a portion of 5 the sale proceeds to SiteLock. When a GoDaddy customer would purchase a SiteLock 6 subscription but then fail to activate it, GoDaddy would not remit any of the sale proceeds 7 to SiteLock. One of the disputed issues in this case is whether GoDaddy was required by 8 the parties’ contract to remit payment to SiteLock in this latter circumstance—SiteLock 9 says yes, GoDaddy says no.” (Id. at 4.) 10 During the discovery process, SiteLock propounded various requests to GoDaddy 11 seeking “information that was related, in one way or another, to the total number of times 12 GoDaddy sold a SiteLock subscription.” (Id.) Eventually, in August 2020, “GoDaddy 13 produced a 7,156-page PDF document that purports to summarize, on a transaction-level 14 basis, GoDaddy’s sales of SiteLock’s subscriptions.” (Id. at 5.) 15 In October 2020, SiteLock filed a motion to compel GoDaddy to produce additional 16 records on this topic. (Id. at 6 [discussing Doc. 181].) SiteLock argued it had reason to 17 believe, based on discrepancies in other records provided by GoDaddy, that GoDaddy’s 18 summary charts were underinclusive, that it shouldn’t have to accept the summary charts 19 given this uncertainty, and that it was entitled to the underlying business records on which 20 the charts were purportedly based. (Id.) SiteLock then identified four specific categories 21 of business records that GoDaddy should be required to produce. (Id.) 22 GoDaddy opposed the motion by, inter alia, defending the accuracy of its summary 23 charts and arguing that the alleged discrepancies could be explained by the fact that it 24 “routinely gave away SiteLock subscriptions to its customers for free (meaning that, in 25 cases where the customer subsequently activated the subscription, SiteLock would receive 26 payment even though there was no original sale).” (Id. at 6-7.) In an accompanying 27 declaration, GoDaddy’s counsel explained that “[d]ocuments created contemporaneously 28 with GoDaddy’s migration of customers off of the SiteLock platform . . . show that at least 1 165 GoDaddy product offerings . . . had at some point included a free SiteLock product.” 2 (Doc. 193 ¶ 10.) Counsel summarized these instances of product bundling in a chart and 3 stated that the chart was based on “contemporaneously-created documents” and “hits from 4 the transaction receipts.” (Id.) GoDaddy also submitted a declaration from Michael 5 Althoff (“Althoff”), its senior director of finance, who avowed that GoDaddy had already 6 “produced the most granular transaction data available for customer transaction-related 7 financial records of SiteLock products made by GoDaddy and its reseller partners” and 8 thus “even if GoDaddy was compelled to produce customer transaction-related financial 9 records of SiteLock products, it could not do so because no additional records occurred.” 10 (Doc. 191 ¶ 3.) 11 In reply, SiteLock argued that GoDaddy’s admission that it hadn’t included “free” 12 subscriptions in its summary charts was damning because those subscriptions weren’t 13 really free and should have been included. (Doc. 248 at 7.) 14 On January 6, 2021, the Court issued an order granting SiteLock’s motion to compel 15 in part. (Id. at 9-11.) On the one hand, the Court held that SiteLock was entitled to 16 documents showing the total number of times that GoDaddy included a SiteLock 17 subscription in a bundle of products because one of SiteLock’s discovery requests 18 encompassed “information about each SiteLock subscription ‘that was ordered, purchased 19 or otherwise acquired from or through GoDaddy or any of GoDaddy’s platforms.’” (Id. at 20 9-10, citation omitted.) The Court also expressed skepticism toward GoDaddy’s avowal 21 that its summary charts were comprehensive, noting that (1) “this avowal is difficult to 22 square with GoDaddy’s apparent acknowledgement, in a different declaration, that 23 information associated with 36,486 ‘unique common names’ was omitted from its 24 disclosures” and (2) “it is not readily apparent from the parties’ submissions whether 25 GoDaddy ever sold SiteLock subscriptions as part of a package of products (as opposed to 26 giving away SiteLock subscriptions for free) and if so, whether those transactions were 27 included in the summary documents.” (Id. at 10.) On the other hand, the Court stated that 28 it was “not convinced that the appropriate way to remedy these potential shortcomings is 1 to order GoDaddy to produce” the four specific categories of documents sought by 2 SiteLock because “GoDaddy is in the best position to understand its internal recordkeeping 3 systems and has avowed, through the declaration of M. Althoff, that such steps would be 4 fruitless.” (Id.) Thus, subject to exceptions not applicable here, the Court concluded that 5 “SiteLock may pursue its concerns over the comprehensiveness of GoDaddy’s summary 6 documents by deposing GoDaddy’s Rule 30(b)(6) representative.” (Id. at 11.) 7 On January 22, 2021, SiteLock took the deposition of Althoff in his personal 8 capacity. During this deposition, Althoff acknowledged that GoDaddy’s summary charts 9 do not include transactions in which a customer purchased a bundle of products that 10 included a “free” SiteLock subscription. (Doc. 257-1 at 68.) Althoff further acknowledged 11 that the classification of a SiteLock subscription as a “free” component of a bundle was 12 “subjective.” (Id. at 92-93.) Finally, Althoff acknowledged that records of such 13 transactions are contained in GoDaddy’s financial record system but clarified that the 14 financial record would only reflect the sale of the “primary product.” (Id. at 95; Doc. 272- 15 1 at 15.) 16 On February 12, 2021, SiteLock wrote a letter to GoDaddy “to request that 17 GoDaddy immediately produce all transaction records concerning its sales of bundles that 18 included SiteLock subscriptions (including ‘free’ subscriptions).” (Doc. 255-3 at 1.) This 19 letter stated that “[t]he recent testimony of . . . Althoff (as well as GoDaddy’s recent 20 production of receipts) have demonstrated beyond doubt that GoDaddy maintains relevant 21 records regarding these bundled transactions that GoDaddy has not produced.” (Id.) 22 On February 19, 2021, GoDaddy wrote a response letter. (Id. at 14-24.) Although 23 the single-spaced letter is 10 pages long, GoDaddy’s essential argument was that it had no 24 obligation to produce the records in question because “SiteLock has specifically excluded 25 this category of documents from the bounds of relevance.” (Id. at 16.) 26 On February 24-26, 2021, as discussed above, GoDaddy’s Rule 30(b)(6) deposition 27 took place. Althoff served as one of GoDaddy’s Rule 30(b)(6) representatives. During his 28 testimony in this capacity, Althoff acknowledged that the summary charts GoDaddy had 1 produced during discovery did not include instances where a SiteLock subscription was 2 bundled, for “free,” with another GoDaddy product offering. (Id. at 10-11.) 3 On February 26, 2021, SiteLock met and conferred with GoDaddy concerning 4 SiteLock’s request for more information regarding these bundled transactions. (Doc. 255- 5 2 ¶ 17.) During this session, “GoDaddy’s counsel took the position that sales of product 6 bundles that included SiteLock subscriptions were ‘irrelevant’ to SiteLock’s claims. 7 GoDaddy’s counsel also asserted that it would take ‘weeks’ to produce records concerning 8 these transactions.” (Id.) 9 On February 27, 2021, SiteLock filed the pending motion to compel. (Doc. 255.) 10 On March 15, 2021, GoDaddy filed a response. (Doc. 268.) 11 On March 22, 2021, SiteLock filed a reply. (Doc. 279.) 12 B. The Parties’ Arguments 13 SiteLock “moves to compel [GoDaddy] to produce records showing GoDaddy’s 14 sales of all product bundles that included SiteLock subscriptions.” (Doc. 255 at 1.) 15 SiteLock contends these records are relevant to its claim for damages, which 16 “encompass[es] all SiteLock orders that GoDaddy did not report or pay for, including 17 orders of product bundles that included SiteLock,” and are responsive to at least some of 18 its requests for production. (Id. at 11-14.) SiteLock acknowledges that its previous request 19 to compel the production of related records was denied in January 2021 but argues the 20 denial was predicated on GoDaddy’s avowal that the records weren’t readily available 21 (and, thus, the concept of bundled sales could only be explored through witness testimony 22 during a Rule 30(b)(6) deposition). (Id. at 1-3, 6-7.) SiteLock contends this premise is no 23 longer valid because Althoff and other GoDaddy witnesses subsequently admitted, during 24 depositions, that the records at issue do exist and would be simple to gather and produce. 25 (Id. at 7-11, 14.) 26 GoDaddy opposes SiteLock’s motion. (Doc. 268.) As an initial matter, GoDaddy 27 argues the motion should be denied because it is an “ill-disguised” request for 28 reconsideration of the January 2021 order yet makes no effort to satisfy the procedural and 1 substantive requirements applicable to motions for reconsideration. (Id. at 1, 3-11.) 2 Alternatively, GoDaddy argues that, even if SiteLock’s motion is treated as a motion to 3 compel, it should be denied because (1) it was filed after the close of fact discovery and is 4 thus untimely under the scheduling order (id. at 11-13); and (2) “GoDaddy has no more 5 responsive documents to produce” and SiteLock’s arguments to the contrary are based on 6 mischaracterizations of Althoff’s and the other GoDaddy witnesses’ deposition testimony 7 (id. at 13-14). Finally, GoDaddy contends that SiteLock failed to properly authenticate or 8 otherwise lay a foundation for the evidence attached to its motion (id. at 14-16) and that 9 many of the factual assertions in SiteLock’s motion are unsupported (id. at 16-17). 10 In reply, SiteLock argues that its motion is not properly characterized as a motion 11 for reconsideration because it is not arguing that the January 2021 order is wrong and is 12 seeking “relief that differs substantially from the relief sought by its [previous] motion.” 13 (Doc. 279 at 7-9.) SiteLock also contends that its motion is not untimely because it took 14 great pains to get the motion on file “roughly 12 hours after GoDaddy’s last 30(b)(6) 15 deposition and the parties’ meet-and-confer conference regarding this motion.” (Id. at 9- 16 11.) On the merits, SiteLock contends it is entitled to relief because, despite GoDaddy’s 17 “attempts to muddy the waters” and “procedural gamesmanship,” GoDaddy fundamentally 18 “does not dispute the most salient points in SiteLock’s Motion to Compel. GoDaddy 19 admits that it maintains—but has not produced—transaction records concerning 20 GoDaddy’s sales of products that ‘included’ a SiteLock subscription as a ‘feature’ of the 21 product (what GoDaddy incorrectly calls ‘free’ SiteLock subscriptions).” (Id. at 1.) 22 C. Legal Standard 23 Rule 37(a)(3)(B) of the Federal Rules of Civil Procedure provides that “[a] party 24 seeking discovery may move for an order compelling an answer, designation, production, 25 or inspection” when the non-moving party “fails to answer an interrogatory submitted 26 under Rule 33” or “fails to produce documents . . . as requested under Rule 34.” 27 Rule 26(b), in turn, defines the “Scope and Limits” of discovery. Under Rule 28 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is 1 relevant to any party’s claim or defense and proportional to the needs of the case, 2 considering the importance of the issues at stake in the action, the amount in controversy, 3 the parties’ relative access to relevant information, the parties’ resources, the importance 4 of the discovery in resolving the issues, and whether the burden or expense of the proposed 5 discovery outweighs its likely benefit.”5 Under Rule 26(b)(1), “[i]nformation . . . need not 6 be admissible in evidence to be discoverable.” 7 As for the burden of proof, “the party seeking to compel discovery has the initial 8 burden of establishing that its request satisfies the relevancy requirements of Rule 26(b).” 9 Doe v. Swift Transp. Co., 2015 WL 4307800, *1 (D. Ariz. 2015). This “is a relatively low 10 bar.” Continental Circuits LLC v. Intel Corp., 435 F. Supp. 3d 1014, 1018 (D. Ariz. 2020). 11 See generally 1 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 12 26, at 801-02 (2021) (“For discovery purposes, courts define relevance broadly, stating that 13 information is relevant if it bears on or might reasonably lead to information that bears on 14 any material fact or issue in the action. . . . [C]ourts are quick to point out that discovery 15 is concerned with relevant information—not relevant evidence—and that as a result the 16 scope of relevance for discovery purposes is necessarily broader than trial relevance.”) 17 (footnotes and internal quotation marks omitted). If the movant meets its burden of 18 establishing relevancy, “the party opposing discovery has the burden to demonstrate that 19 discovery should not be allowed due to burden or cost and must explain and support its 20 objections with competent evidence.” Doe, 2015 WL 4307800 at *1. 21 … 22 23 5 The current version of Rule 26(b)(1) was enacted in 2015. An earlier version provided that the requested material had to be “relevant to the subject matter involved in 24 the pending action,” and the Ninth Circuit has recognized that the change in 2015 (under which “the ‘subject matter’ reference [was] eliminated from the rule, and the matter sought 25 must [now] be ‘relevant to any party’s claim or defense’”) “was intended to restrict, not broaden, the scope of discovery.” In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th 26 Cir. 2020). See also Fed. R. Civ. P. 26, advisory committee’s note to 2015 amendment (noting that Rule 26(b)(1) was amended in 1983 in part “to encourage judges to be more 27 aggressive in identifying and discouraging discovery overuse,” that the “clear focus of the 1983 provisions may have been softened, although inadvertently, by [subsequent] 28 amendments,” and that the 2015 amendment was intended in part to “restore[] the proportionality factors to their original place in defining the scope of discovery”). 1 D. Analysis 2 As an initial matter, GoDaddy’s attempt to recharacterize SiteLock’s motion to 3 compel as a motion for reconsideration of the January 2021 order is misplaced. Although 4 SiteLock’s earlier motion and the current motion both touch upon the same general subject 5 matter—the discoverability of records related to bundled product sales—they seek 6 different relief. The last motion sought to compel the production of four specific categories 7 of documents: “(1) contemporaneous transaction-level accounting records showing all of 8 GoDaddy’s sales of SiteLock subscriptions, (2) spreadsheets created by [GoDaddy 9 employee] Lily Liang showing SiteLock’s sales (and the data underlying them), (3) other 10 internal reports, presentations, or communications showing GoDaddy’s sales, and (4) 11 customer receipts and invoices for all of GoDaddy’s sales of SiteLock subscriptions.” 12 (Doc. 248 at 6.) The current motion, in contrast, asks that GoDaddy be ordered to update 13 its summary charts—which are responsive not only to SiteLock’s previous requests for 14 production, but also to SiteLock’s Interrogatory No. 56—to include the bundled 15 transactions at issue and to produce records associated with those particular transactions. 16 SiteLock’s motion is also timely. In the January 2021 order, the Court stated that 17 SiteLock should be able to obtain more information about bundled transactions through 18 GoDaddy’s upcoming depositions. Sure enough, during a deposition later that month, 19 Althoff acknowledged that GoDaddy’s summary charts don’t include the bundled 20 transactions at issue and suggested that records of those transactions (albeit without details 21 as to the contents of the bundles) exist in GoDaddy’s financial record system. Afterward, 22 23 6 Interrogatory No. 5 provides as follows: “Describe all SiteLock services, products, or subscriptions that were ordered, purchased or otherwise acquired from or through 24 GoDaddy or any of GoDaddy’s platforms (including renewals), including (1) the type and level of product, service, or subscription (e.g., ‘SiteLock Scan Basic’), (2) the date of each 25 such order, purchase, or acquisition, (3) all amounts charged in connection with each such order, purchase, or acquisition; (4) all amounts paid to any person (including but not limited 26 to GoDaddy, SiteLock, or any Customer) in connection with each such order, purchase, or acquisition (including any refunds), (5) the date(s) of any activation of that product, 27 service, or subscription, if any, and any amounts paid to any person in connection with each such activation, and (6) the date(s) of any cancellation of that product, service, or 28 subscription, if any, and any amounts paid to any person in connection with each such cancellation.” (Doc. 181-2 ¶ 24.) 1 SiteLock wrote a letter to GoDaddy asking for the records that Althoff had mentioned 2 during his deposition, but GoDaddy denied this request in a letter dated February 19, 2021. 3 This was one week before the fact discovery cutoff of February 26, 2021. The following 4 week, GoDaddy’s Rule 30(b)(6) deposition took place, and it included more statements 5 suggesting that the records and transactions sought by SiteLock were discoverable. 6 Immediately after the deposition ended, SiteLock met and conferred with GoDaddy in 7 another attempt to obtain this information, only to be denied once again. SiteLock then 8 scrambled to get its motion to compel on file but was unable to do so by midnight on the 9 26th (i.e., the fact discovery cutoff), ultimately filing it around 2:00 am on February 27. 10 Although it is true, as discussed in Part I above, that the scheduling order in this case 11 provides that “[a]bsent extraordinary circumstances, the Court will not entertain fact 12 discovery disputes after the deadline for completion of fact discovery” (Doc. 22 at 5), the 13 Court has no trouble concluding that SiteLock’s efforts to explore this issue through the 14 meet-and-confer process and then present it for judicial resolution were timely and diligent. 15 On the merits, SiteLock is entitled to the materials in question. SiteLock’s RFP 21 16 seeks information about each SiteLock subscription “that was ordered, purchased or 17 otherwise acquired from or through GoDaddy or any of GoDaddy’s platforms.” Similarly, 18 SiteLock’s Interrogatory No. 5 seeks information about “all SiteLock services, products, 19 or subscriptions that were ordered, purchased or otherwise acquired from or through 20 GoDaddy or any of GoDaddy’s platforms.” The italicized language in each discovery 21 request is broad enough to encompass instances in which GoDaddy included a SiteLock 22 subscription in a bundle of products, irrespective of whether GoDaddy believed it was 23 imposing a distinct charge for the SiteLock component of the bundle. Whether SiteLock 24 is actually entitled to damages for such transactions is not before the Court at this time— 25 the requested information is within the bounds of discoverability. 26 Finally, although GoDaddy made statements and submitted evidence during the 27 previous motion-to-compel process that suggested it lacked the ability to identify these 28 transactions or locate and produce the transactional records associated with them, the recent 1 deposition testimony tells a different story. The Court acknowledges that the process of 2 identifying and producing this information may not be easy.7 Nevertheless, the bottom line 3 is that GoDaddy has the capability to locate and produce additional, responsive 4 information. To its credit, GoDaddy acknowledged such capability during oral argument 5 and stated that, with a few tweaks and some additional time, it could make a supplemental 6 production. This seems like a sensible solution that balances SiteLock’s legitimate need 7 for the underlying information with the practical difficulties of locating and producing it. 8 Accordingly, SiteLock’s motion to compel is granted. GoDaddy must, within four 9 weeks of the date of this order, do the following: (1) supplement its response to SiteLock’s 10 Interrogatory No. 5 by producing a chart that reflects the additional transactions in which 11 a SiteLock service, product, or subscription was otherwise acquired (but this chart need not 12 include all of the fields called for by Interrogatory No. 5, to the extent some fields may be 13 inapplicable); and (2) produce the records associated with those additional transactions. 14 E. Costs 15 Rule 37(a)(5)(A) provides that when a motion to compel is granted, the court “must” 16 require “the party . . . whose conduct necessitated the motion, the party or attorney advising 17 that conduct, or both to pay the movant’s reasonable expenses incurred in making the 18 motion, including attorney’s fees” unless (1) the motion was “premature,” (2) the non- 19 movant’s conduct was “substantially justified,” or (3) “other circumstances make an award 20 of expenses unjust.” 21 Although the Court was tentatively inclined, before oral argument, to enter a cost- 22 shifting award in SiteLock’s favor, the Court has reevaluated this issue with the benefit of 23 oral argument and now concludes that cost-shifting would be inappropriate here. Even 24 though SiteLock has essentially prevailed on its request to compel the production of 25 additional information, the Court now appreciates that GoDaddy’s position was 26 substantially justified. 27 7 The Court’s statements to the contrary in the tentative order were based on a 28 misapprehension of Althoff’s deposition testimony, which the Court now more fully understands with the benefit of GoDaddy’s explanations during oral argument. 1 III. GoDaddy’s Motions To Seal 2 Also pending before the Court are GoDaddy’s five motions to seal: (1) a motion to 3 seal portions of Exhibits E, F, and H8 to its reply in support of its motion for protective 4 order (Doc. 262); (2) a motion to seal portions of SiteLock’s motion to compel, Exhibits 1, 5 2, 3, 4, 7, 11, 12, and 13 thereto in their entirety, and portions of Exhibits 5, 6, and 9 thereto 6 (Doc. 265); (3) a motion to seal portions of GoDaddy’s response to SiteLock’s motion to 7 compel and Exhibits A, B, and C thereto in their entirety (Doc. 270); (4) a motion to seal 8 portions of Exhibit 11 to SiteLock’s response to GoDaddy’s motion for protective order 9 (Doc. 274); and (5) a motion to seal portions of SiteLock’s reply in support of its motion 10 to compel (Doc. 284). 11 A. Background 12 The Court is once again bogged down by the “tedious, time-consuming” task of 13 reviewing motions to seal huge quantities of material due to GoDaddy’s “failure to 14 carefully consider whether each proposed redaction”—or request to seal a document in 15 full—“was, in fact, necessary.” (Doc. 103 at 3.) The parties have repeatedly been 16 admonished that any sealing request must explain “with specificity” why the material in 17 question meets the standard for sealing. (Id. at 3; Doc. 227 at 2.) 18 Furthermore, the Court has repeatedly ordered that any sealing request seeking 19 redactions be accompanied by a version, lodged under seal, in which each proposed 20 redaction is highlighted to facilitate the Court’s review and to obviate the need for side-by- 21 side comparison of drafts to determine what material has been redacted. (Doc. 100 [“IT IS 22 ORDERED that GoDaddy shall lodge under seal an unredacted version of all materials 23 sought to be sealed, with any material sought to be sealed or redacted highlighted to 24 facilitate the Court’s review of the pending stipulation to seal”]; Doc. 129 at 1 [“SiteLock 25 is reminded that, in the future, it must provide an unredacted version of all materials sought 26 8 GoDaddy indicated Exhibit “G” in the motion (Doc. 262), but it appears this 27 designation was in error, as the memorandum in support of the motion refers instead to Exhibit H. (Doc. 263 at 5.) 28 1 to be sealed, with any material sought to be redacted highlighted to facilitate the Court’s 2 review of the motion to seal.”]; Doc. 227 at 2 n.2 [“[T]here is no highlighting in the 3 document lodged under seal . . . to indicate proposed redaction, as the Court has repeatedly 4 ordered.”]; id. at 3-4 [“IT IS FURTHER ORDERED that if the parties file any additional 5 motions to seal for the duration of this action . . . the document lodged under seal must 6 include highlighting of any portions the parties seek to redact.”]). 7 B. Legal Standard 8 The public has a general right to inspect judicial records and documents, such that 9 a party seeking to seal a judicial record must overcome “a strong presumption in favor of 10 access.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). To 11 do so, the party must “articulate compelling reasons supported by specific factual findings 12 that outweigh the general history of access and the public policies favoring 13 disclosure . . . .” Id. at 1178-79 (internal quotation marks and citations omitted). The Court 14 must then “conscientiously balance the competing interests of the public and the party who 15 seeks to keep certain judicial records secret.” Id. at 1179 (internal quotation marks 16 omitted). “After considering these interests, if the court decides to seal certain judicial 17 records, it must base its decision on a compelling reason and articulate the factual basis for 18 its ruling, without relying on hypothesis or conjecture.” Id. (internal quotation marks 19 omitted). 20 The “stringent” compelling reasons standard applies to all filed motions and their 21 attachments where the motion is “more than tangentially related to the merits of a case.” 22 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096, 1101 (9th Cir. 2016). 23 However, a lower standard applies to “sealed materials attached to a discovery motion 24 unrelated to the merits of a case,” which requires only that a party establish “good cause” 25 for sealing. Id. at 1097. 26 GoDaddy’s motion for a protective order (Doc. 251) and SiteLock’s motion to 27 compel (Doc. 255) are more than tangentially related to the merits of this case—they 28 involve matters that go to the heart of this litigation. Indeed, one of the sentences that 1 GoDaddy seeks to redact from SiteLock’s motion to compel—a sentence that clearly 2 doesn’t meet the sealing standard and will not be redacted—states that “GoDaddy’s 3 unproduced records of its sales of product bundles that included SiteLock,” which is the 4 topic of most of the material sought to be sealed, “are central to SiteLock’s claims.” (Doc. 5 257 at 2.) For these reasons, the Court concludes that the stringent “compelling reasons” 6 standard likely applies here. With that said, the determination of the applicable standard 7 is ultimately irrelevant because GoDaddy’s sealing requests would fail even if evaluated 8 under the lesser “good cause” standard. 9 C. The Motions 10 GoDaddy’s motions fail to follow the Court’s repeated instructions and fail to 11 establish that the standard for sealing is satisfied. 12 1. Doc. 262 13 GoDaddy’s motion to seal portions of Exhibits E, F, and H to its reply in support of 14 its motion for protective order (Doc. 262) is accompanied by unredacted versions of these 15 documents, lodged under seal, without the required, court-ordered highlighting. (Doc. 264, 16 264-1, 264-2.) The motion identifies sixteen large blocks of proposed redactions: pages 17 44-53, 53-55, 59-64, and 66-75 from Exhibit E, pages 18-31, 24-26, 32-42, 61-65, 66-68, 18 103-105, 105-111, 112-114, 120-123, 141-143, and 146-15 [sic] from Exhibit F, and page 19 102 from Exhibit H. (Doc. 262-1 at 2.) Exhibit E is an excerpt from the deposition of Lily 20 Liang (Doc. 264), Exhibit F is an excerpt from the Althoff deposition (Doc. 264-1), and 21 Exhibit H is an excerpt from the deposition of Keith Tice (Doc. 264-2). 22 GoDaddy devotes one paragraph (17 lines of text) of its memorandum to making 23 sweeping generalizations about 28 pages of proposed redactions to Liang’s deposition 24 testimony. GoDaddy broadly asserts that the proposed redactions cover “sensitive business 25 matters, including GoDaddy’s internal proprietary technology and processes and the 26 internal terminology used to describe same” as well as “commercially sensitive information 27 regarding GoDaddy’s strategic approach to marketing and advertising certain products, 28 including both SiteLock and other (non-party) products, and the related product costs.” 1 (Doc. 263 at 3-4.) GoDaddy further asserts that, buried somewhere within the 28 pages of 2 proposed redactions, there are “references to (a) a “CONFIDENTIAL” email chain 3 regarding SiteLock sales revenue (Ex. 195, GD_001019- 001020); and (b) a document this 4 Court previously approved as being filed under seal, see Dkt. No. 193-1, Ex. C (listing 5 GoDaddy product offerings).” (Id.) This is a far cry from the Court’s repeated direction 6 that redaction requests should, “with specificity,” identify what is sensitive about each 7 “particular sentence or phrase” to be redacted. (Doc. 227 at 2.) Instead, GoDaddy places 8 the onus on the Court to review large sections of a deposition transcript to determine 9 whether they are subject to sealing in full. 10 Similarly, GoDaddy devotes one paragraph of its memorandum to making sweeping 11 generalizations about over 56 pages9 of proposed redactions to Althoff’s deposition 12 testimony. Most of the paragraph is copied from the preceding paragraph, with a few 13 changes—the “sensitive business matters” here are “GoDaddy’s billing practices, internal 14 accounting systems, and sales data.” (Id. at 4-5.) 15 As for Exhibit H, GoDaddy seeks to redact one page of Tice’s deposition transcript, 16 and the reason offered is that “[t]he information contained therein is highly sensitive 17 business information regarding the terms of a third-party agreement between SiteLock and 18 a non-party, disclosure of which would result in competitive harm in the marketplace.” (Id. 19 at 5.) 20 2. Doc. 265 21 SiteLock filed a redacted version of its motion to compel (Doc. 255) on the public 22 docket and lodged an unredacted version under seal (Doc. 257). SiteLock also filed a 23 notice (Doc. 256) indicating its belief that various enumerated documents, or portions 24 thereof, contain “confidential and commercially sensitive material,” as do the redactions in 25 its motion to compel, and lodged under seal those documents and the unredacted version 26 of the motion to compel (Docs. 257; 257-1). The documents lodged under seal do not 27 28 9 The page range “146-15” makes no sense, so the Court excluded this range from its page count. 1 contain highlighting to indicate what material has been redacted. Furthermore, the various 2 documents were “lumped together,” not “lodged as separate attachments,” contravening 3 the Court’s December 3, 2020 order. (Doc. 227 at 4.) The materials lodged under seal 4 total 149 pages. (Docs. 257; 257-1.) 5 GoDaddy filed a motion to seal the documents identified in SiteLock’s notice. (Doc. 6 265.) GoDaddy asserts that “SiteLock’s Motion to Compel contains material that is 7 commercially sensitive to GoDaddy,” including “detailed discussions about GoDaddy’s 8 strategic decisions regarding certain product offerings” and descriptions of sensitive 9 deposition testimony. Rather than providing a draft with the redactions highlighted, 10 GoDaddy provided this list of proposed redactions: 1:18-19; 1:23- 28; 2:1-2; 2:5-9; 2:20; 11 2:27-28; 3:1; 3:11-12; 4:24-28; 6:26-28; 7:1-5; 7:26-28; 8:1-8; 8:16-28; 9:1-3; 9:5-6; 9:13- 12 28; 10:1-28; 11:1; 11:7-8; 12:26-27; and 14:8-17. The Court, having been forced to 13 undertake a side-by-side comparison to determine what has been redacted (because the 14 parties ignored the Court’s order to provide highlighted drafts), was surprised to discover 15 that the first proposed redaction clearly does not meet the sealing standard—it simply states 16 that GoDaddy “maintains and could easily produce records” concerning the product 17 bundles at issue. (Doc. 257 at 1:18-19.) The rest of the proposed redactions on the first 18 page of the motion follow suit. On the second page, one of the proposed redactions is 19 merely the phrase “these important records.” (Id. at 2:20.) Sending the Court on a wild 20 goose chase through obviously innocuous redacted text to see if maybe a few of the dozens 21 of proposed redactions might actually meet the sealing standard is unacceptable. 22 As for Exhibits 1, 2, 3, 4, 11, and 12, these are sections of deposition transcripts 23 (Liang, Exhibits 1-2; Althoff, Exhibits 3-4; Wayne Thayer, Exhibit 11; Jennifer Racki, 24 Exhibit 12) that do not meet the standard for sealing. It is possible there might be some 25 sensitive information in some of them that could be the subject of narrow redactions, but it 26 is not the Court’s role to cull through them in an attempt to isolate these sections—that is 27 what GoDaddy should have done, has been repeatedly instructed to do, but did not do. 28 As for Exhibits 5, 6 and 9, if they were lodged under seal in their unredacted form 1 somewhere (with or without the required highlighting), the Court was unable to find them. 2 Thus, the Court has no way of knowing what the redacted material says and whether it is 3 subject to sealing. 4 Exhibits 7 and 13 are brief emails that meet the sealing standard—but they’ve been 5 impermissibly lumped into one attachment with the remainder of the exhibits, such that the 6 Clerk of Court cannot easily file some of the exhibits, but not others, under seal. SiteLock 7 having lodged the exhibits incorrectly, in was incumbent upon GoDaddy, as the proponent 8 of the motion to seal, to do it correctly. 9 3. Doc. 270 10 GoDaddy has redacted portions of its response to SiteLock’s motion to compel, but 11 the Court’s side-by-side review (necessitated, once again, by the lack of required 12 highlighting) leaves the Court wondering what could possibly justify the proposed 13 redactions. For example, one paragraph in the response contains this sentence, viewable 14 by the public: “Mr. Althoff also explained that the free product given away is not tracked 15 because the free product giveaway has no value.” (Doc. 268 at 14.) The Court struggles 16 to understand how, given that this affirmative statement has been made publicly, the 17 quotations from the record supporting this statement could be subject to sealing. Again, 18 the motion to seal and memorandum in support thereof fail to explain why each proposed 19 redaction is necessary, instead relying on sweeping generalizations. Again, this will not 20 suffice. 21 GoDaddy also seeks to file Exhibits A, B, and C under seal in their entirety. These 22 are excerpts of deposition transcripts (Althoff, A-B, Liang, C), and, as discussed above, 23 they do not meet the standard for sealing in their entirety. 24 4. Doc. 274 25 SiteLock lodged under seal Exhibits 10, 11, and 12 to its response to GoDaddy’s 26 motion for protective order. (Docs. 258, 259.) No party filed a motion seeking permission 27 to file Exhibits 10 or 12 under seal, and GoDaddy indicated that its confidentiality 28 designation is withdrawn. (Doc. 275 at 1.) Thus, no party contests that Exhibit 10 (Doc. 1 259-1) and Exhibit 12 (Doc. 259-3) should be filed in the public record. GoDaddy seeks 2 the redaction of Exhibit 11, lines 8:25-9:6; 34:5-7; 35:14-16; 35:21-36:1; 36:3-4; 36:13- 3 15; 36:19-24; 37:11-15; 57:2-8; 57:12-58:7; 58:10-13; 58:17-22; 59:1-7; 59:10-13; 59:21- 4 23; 60:1-6; 60:10- 15; and 60:19-25. 5 Exhibit 11 is an excerpt of Althoff’s deposition. The paragraph of GoDaddy’s 6 memorandum offering generalized reasons for this litany of proposed redactions to Exhibit 7 11 is insufficient. 8 5. Doc. 284 9 Finally, GoDaddy filed a motion to seal portions of SiteLock’s reply in support of 10 its motion to compel. (Doc. 284.) Most of the proposed redactions do not appear sensitive, 11 and indeed appear to go to the heart of this discovery dispute and the case at large, and 12 GoDaddy has again failed to identify, with any specificity, why these redactions meet the 13 sealing standard. 14 D. Conclusion 15 The parties’ excessive sealing requests have placed an undue burden on the Court’s 16 time and resources. The Court has been asked repeatedly “to decide a sometimes complex 17 issue of sealing or redaction with no adversarial briefing and often, as in this case, with 18 only a perfunctory submission from the party seeking relief.” (Doc. 103 at 3-4.) 19 Additionally, court orders designed to streamline the sealing process have been 20 inexplicably ignored. The unacceptably vague sealing requests, along with the parties’ 21 seemingly endless discovery requests, have bogged down this case. The Court is mindful 22 of the public’s interest in the expeditious resolution of lawsuits and of its inherent power 23 and duty to control its own docket. In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 24 460 F.3d 1217, 1227 (9th Cir. 2006). The Court is authorized to “manage cases so that 25 disposition is expedited, wasteful pretrial activities are discouraged, the quality of the trial 26 is improved, and settlement is facilitated” and to adopt “special procedures for managing 27 potentially difficult or protracted actions.” Id. 28 Generally, when a motion to seal is denied, “the lodged document will not be filed” 1 and the submitting party “may” resubmit the document for filing in the public record. 2 LRCiv 5.6(e). Where the proponent of the motion to seal is also the party that wished to 3 file the document, the Court has often given that party the option to (1) file the document 4 in the public record, (2) make another attempt at an adequate motion to seal, or (3) 5 withdraw the document and revise whatever brief had relied upon that document to omit 6 the relevant citations. 7 But here, the substandard motions to seal and the extensive amount of proposed 8 redactions, many of which common sense indicates are not subject to sealing, threaten to 9 create untenable further delay in this action. The Court will not permit a new round of 10 motions to seal, which would postpone resolution of the discovery disputes. Instead, all of 11 the materials submitted by both parties will be filed in the public record, with the exception 12 of Exhibit H to GoDaddy’s reply in support of its motion for protective order (Doc. 264-2) 13 and Exhibits 7 and 13 of SiteLock’s motion to compel (Doc. 257-1 at 98-99; id. at 127-29), 14 which may be filed under seal. See, e.g., GoDaddy.com LLC v. RPost Comms. Ltd., 2016 15 WL 1158851, *4, *7 (D. Ariz. 2016) (denying certain sealing requests by GoDaddy, noting 16 that “GoDaddy’s explanations for sealing [were] generalized in nature . . . and lack[ed] 17 substantiation,” and ordering the clerk of court to “unseal and file” the lodged documents 18 in lieu of allowing another round of sealing requests); Ruiz v. N.J. Dep’t of Corrections, 19 2020 WL 2111013, *10-11 (D.N.J. 2020) (denying motions to seal, where the parties failed 20 to comply with the court’s procedural requirements related to sealing requests, the parties’ 21 proffered justifications for sealing were unpersuasive, and the materials to be sealed 22 “contain[] information that would be disclosed at trial,” and ordering the clerk of court to 23 “lift the seals currently on the docket” in lieu of allowing the parties to file another round 24 of sealing requests). 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that: 3 (1) GoDaddy’s motion for protective order (Doc. 251) is denied. 4 (2) SiteLock’s motion to compel (Doc. 255) is granted. 5 (3) GoDaddy’s first motion to seal (Doc. 262) is granted in part and denied in part. 6 The Clerk of Court shall file in the public record Exhibits E and F (Docs. 264, 7 264-1), and shall file under seal Exhibit H (Doc. 264-2). 8 (4) GoDaddy’s second motion to seal (Doc. 265) is granted in part and denied in 9 part. The Clerk of Court shall file in the public record the unredacted version of 10 SiteLock’s motion to compel (Doc. 257) and all of the attachments thereto (Doc. 11 257-1), except that the Clerk shall file under seal Exhibits 7 and 13 of SiteLock’s 12 motion to compel (Doc. 257-1 at 98-99; id. at 127-29).!° 13 (5) GoDaddy’s third motion to seal (Doc. 270) is denied. The Clerk of Court shall 14 file the unredacted response (Doc. 272) and the unredacted exhibits thereto (Doc. 15 272-1, -2, -3) in the public record. 16 (6) GoDaddy’s fourth motion to seal (Doc. 274) is denied. The Clerk of Court shall 17 file Exhibits 10-12 (Doc. 259-1, -2, -3) in the public record. 18 (7) GoDaddy’s fifth motion to seal (Doc. 284) is denied. The Clerk of Court shall 19 file the unredacted reply (Doc. 281) in the public record. 20 Dated this 21st day of April, 2021. 21 22 fm ee” 23 f : _o——— Dominic W. Lanza IA United States District Judge 25 26 27|| '° _ This order may present logistical difficulties for the Clerk of Court, due to the || httachment. Ir the Clerk of Courts unable to accomplish this, the Court will sue a follow up order requiring the parties to do it. -27-