In re Google Assistant Privacy Litigation ( 2022 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ASIF KUMANDAN, et al., Case No. 19-cv-04286-BLF 8 Plaintiffs, ORDER GRANTING PLAINTIFF'S 9 v. ADMINISTRATIVE MOTION TO CONSIDER WHETHER ANOTHER 10 GOOGLE LLC, et al., PARTY'S MATERIAL SHOULD BE SEALED 11 Defendants. [Re: ECF No. 291] 12 13 Plaintiffs filed a motion to seal portions of their Opposition to Defendants’ Motion for 14 Reconsideration of Order Vacating Trial and Terminating Motion for Summary Judgment. Mot. 15 ECF No. 291. The motion requests to seal portions of the Opposition that contain information 16 Defendants Google LLC and Alphabet Inc. (together “Google”) designated confidential under the 17 court-approved protective order in this case. Id. at 1. Google filed a statement in support of 18 Plaintiffs’ request. Google Statement, ECF No. 302. For the reasons stated below, the Court 19 GRANTS the motion. 20 I. LEGAL STANDARD 21 “Historically, courts have recognized a ‘general right to inspect and copy public records 22 and documents, including judicial records and documents.’” Kamakana v. City & Cty. of 23 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 24 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong 25 presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. 26 Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to 27 motions that are “more than tangentially related to the underlying cause of action” bear the burden 1 of overcoming the presumption with “compelling reasons” that outweigh the general history of 2 access and the public policies favoring disclosure. Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 3 1092, 1099 (9th Cir. 2016); Kamakana, 447 F.3d at 1178–79. 4 However, “while protecting the public’s interest in access to the courts, we must remain 5 mindful of the parties' right to access those same courts upon terms which will not unduly harm 6 their competitive interest.” Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1228–29 (Fed. 7 Cir. 2013). Records attached to motions that are “not related, or only tangentially related, to the 8 merits of a case” therefore are not subject to the strong presumption of access. Ctr. for Auto 9 Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179 (“[T]he public has less of a need 10 for access to court records attached only to non-dispositive motions because those documents are 11 often unrelated, or only tangentially related, to the underlying cause of action.”). Parties moving 12 to seal the documents attached to such motions must meet the lower “good cause” standard of 13 Rule 26(c). Kamakana, 447 F.3d at 1179 (internal quotations and citations omitted). This 14 standard requires a “particularized showing,” id., that “specific prejudice or harm will result” if the 15 information is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 16 1210–11 (9th Cir. 2002); see Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated 17 by specific examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. 18 Co., 966 F.2d 470, 476 (9th Cir. 1992). A protective order sealing the documents during 19 discovery may reflect the court’s previous determination that good cause exists to keep the 20 documents sealed, see Kamakana, 447 F.3d at 1179–80, but a blanket protective order that allows 21 the parties to designate confidential documents does not provide sufficient judicial scrutiny to 22 determine whether each particular document should remain sealed. See Civ. L.R. 79-5(d)(1)(A) 23 (“Reference to a stipulation or protective order that allows a party to designate certain documents 24 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.”). 25 In addition to making particularized showings of good cause, parties moving to seal 26 documents must comply with the procedures established by Civ. L.R. 79-5. Pursuant to Civ. L.R. 27 79-5(b), a sealing order is appropriate only upon a request that establishes the document is 1 the law.” “The request must be narrowly tailored to seek sealing only of sealable material, and 2 must conform with Civil L.R. 79-5(d).” Civ. L.R. 79-5(b). In part, Civ. L.R. 79-5(d) requires the 3 submitting party to attach a “proposed order that is narrowly tailored to seal only the sealable 4 material” which “lists in table format each document or portion thereof that is sought to be 5 sealed,” Civ. L.R. 79-5(d)(1)(b), and an “unredacted version of the document” that indicates “by 6 highlighting or other clear method, the portions of the document that have been omitted from the 7 redacted version.” Civ. L.R. 79-5(d)(1)(d). “Within 4 days of the filing of the Administrative 8 Motion to File Under Seal, the Designating Party must file a declaration as required by subsection 9 79-5(d)(1)(A) establishing that all of the designated material is sealable.” Civ. L.R. 79-5(e)(1). 10 II. DISCUSSION 11 The “good cause” standard governs Plaintiffs’ motion to seal. The motion concerns 12 Plaintiffs’ Opposition to Google’s Motion for Reconsideration of Order Vacating Trial and 13 Terminating Motion for Summary Judgment. See Mot. 1. Google’s motion for reconsideration is 14 “not related, or only tangentially related, to the merits of a case,” and therefore a request to seal 15 documents concerning that motion need only meet the lower “good cause” standard of Rule 26(c). 16 See Kamakana, 447 F.3d at 1179. 17 Google has shown that good cause exists to seal the requested portions of Plaintiffs’ 18 Opposition to its Motion for Reconsideration. Google explains with a supporting declaration that 19 the materials it seeks to seal contain highly sensitive proprietary and commercial information 20 about the operation of Google Assistant; that disclosure of the material would result in competitive 21 harm to Google; and that disclosure of the information would harm Google by presenting an 22 incomplete and misleading picture of Google’s practices and capabilities. Google Statement 2; see 23 also Decl. of Nino Tasca [“Tasca Decl.”], ECF No. 302-1. Upon review of the proposed 24 redactions and Google’s declaration, the Court is persuaded that Google has provided good cause 25 to seal the materials and that the proposed redactions are narrowly tailored. Accordingly, the 26 Court rules on the instant motion as follows: 27 // 1 / > ECF No. Document Portions Sought to Disposition Be Sealed 3 291-3 Plaintiffs’ Opposition | Highlighted portions | GRANTED as the to Defendants’ on pages | and 3-4. proposed redacted 4 Motion for portions contain Reconsideration highly sensitive 5 proprietary and 6 technical information about the operation of 7 Google Assistant. See Tasca Decl. 45. 8 Il. ORDER 9 For the foregoing reasons, Plaintiffs’ motion at ECF 291 is GRANTED. Plaintiffs shall 10 file a redacted version of their Opposition submitted ECF No. 291-3 by no later than January 13, 11 2023. 12 13 || Dated: December 20, 2022 BETH LABSON FREEMAN 15 United States District Judge 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28