In re Google Assistant Privacy Litigation ( 2023 )

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 IN PART AND 9 v. DENYING IN PART MOTIONS TO SEAL 10 GOOGLE LLC, et al., [Re: ECF Nos. 304, 345 358, 369] 11 Defendants. 12 13 14 15 Before the Court are several motions to seal materials submitted with the parties’ briefing 16 on Plaintiff’s motion for class certification. See ECF Nos. 304, 345 358. The parties also 17 submitted a request to seal portions of the Court’s order on Plaintiffs’ motion for class 18 certification. See ECF No. 369. For the reasons stated below, the motion at ECF No. 304 is 19 GRANTED IN PART AND DENIED IN PART without prejudice and the motions at ECF Nos. 20 345, 358, and 369 are GRANTED. 21 I. LEGAL STANDARD 22 “Historically, courts have recognized a ‘general right to inspect and copy public records 23 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. Of 24 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 25 U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are 26 “more than tangentially related to the merits of a case” may be sealed only upon a showing of 27 “compelling reasons” for sealing. Ctr. For Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1 upon a lesser showing of “good cause.” Id. at 1097. 2 In addition, in this district, all parties requesting sealing must comply with Civil Local 3 Rule 79-5. That rule requires that the moving party to provide “the reasons for keeping a 4 document under seal, including an explanation of: (i) the legitimate private or public interests that 5 warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive 6 alternative to sealing is not sufficient.” Civ. L.R. 79-5©(1)(i). The rule also requires the moving 7 party to provide “evidentiary support from declarations where necessary.” Civ. L.R. 79-5©(1)(ii). 8 II. DISCUSSION 9 This Court previously determined “that the compelling reasons standard applies to motions 10 to seal documents relating to class certification.” Adtrader, Inc. v. Google LLC, No. 17-CV- 11 07082-BLF, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 2020). 12 A. Plaintiffs’ Motion to Seal and to Consider Whether Another Party’s Material Should be Sealed (ECF No. 304) 13 Plaintiffs submitted a motion to seal materials submitted with their Reply Brief in Support 14 of Motion for Class Certification (“Reply”). See ECF No. 304. The motion requests to seal 15 materials that both Plaintiffs and Google have designated confidential. Google submitted a 16 statement in support. ECF No. 307. 17 1. Plaintiffs’ Requests 18 Plaintiffs request to seal two documents: (1) a document that is Bates stamped 19 SPURR000023 and (2) excerpts of the deposition of plaintiff Lourdes Galvan, dated August 4, 20 2022. See ECF No. 304 ¶¶ 6-7. Plaintiffs request is not narrowly tailored. However, Plaintiffs 21 submitted a more narrowly tailored request regarding these documents at ECF Nos. 358-1 and 22 358-6. As discussed below, in § II.C, the Court is granting that more narrowly tailored request. 23 The Court therefore grants Plaintiffs’ request in part. Specifically, the Court GRANTS to the 24 extent it is limited to the narrowly tailored redactions submitted at ECF Nos. 358-1 and 358-6. 25 2. Google’s Requests 26 Google declares that the materials it seeks to seal contain “confidential and highly sensitive 27 proprietary and commercial information about (1) the operation of Google Assistant; (2) 1 competitively sensitive business opportunities and risks; and (3) details of Google’s understanding 2 of the profits or losses associated with Google Assistant.” Crowel Decl. Supp. Admin. Mot. to 3 Consider Whether Defs.’ Material Should be Sealed ¶ 5, ECF No. 307-1. Google further declares 4 that disclosure of the information would cause Google competitive harm by giving competitors 5 insight into the development and operation of Google Assistant. Id. 6 Courts in this district have found that compelling reasons exist to seal the information 7 Google requests to seal. See Finjan, Inc. v. Proofpoint, Inc., No. 13-CV-05808-HSG, 2016 WL 8 7911651, at *1 (N.D. Cal. Apr. 6, 2016) (finding “technical operation of [defendant’s] products” 9 sealable under “compelling reasons” standard); Exeltis USA Inc. v. First Databank, Inc., No. 17- 10 CV-04810-HSG, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020) (noting that courts have found 11 “confidential business information” in the form of “business strategies” sealable under the 12 compelling reasons standard.); Brown v. Brown, No. CV 13-03318 SI, 2013 WL 12400041, at *1 13 (N.D. Cal. Dec. 30, 2013) (finding compelling reasons to seal information about “profits, losses, 14 income, investments, and expenses” when disclosure would harm party’s competitive standing). 15 The Court agrees that such information is sealable and finds that Google has mostly narrowly 16 tailored its request to such information. There are some instances in which Google has not 17 narrowly tailored its requests, however. The Court therefore GRANTS IN PART and DENIES IN 18 PART Google’s request to seal. The Court has set forth its rulings on specific documents in the 19 table below. 20 * * * 21 ECF No. Document Requested Ruling 22 Portions to 23 Seal 304-3 Plaintiffs’ Reply to Highlighted GRANTED, as confidential and 24 Google’s Motion for portions on highly sensitive proprietary and Class Certification pages 2-6, 12- commercial information about 25 13 (1) the operation of Google [Public redacted version Assistant; (2) business 26 at ECF No. 303] opportunities and risks; and (3) 27 details of Google’s understanding of the profits or losses associated 1 No further action necessary, as a 2 public redacted version of this document is filed at 303. 3 304-4 Excerpts of deposition Entirety GRANTED. Sealed under this transcript of Terry Tai, Court’s Order at ECF No. 282, at 4 dated June 30, 2020 7:28-8:3. Excerpt contains confidential and highly sensitive 5 proprietary and commercial 6 information about the operation of Google Assistant. 7 No further action necessary. 8 304-5 SPURR00023-28 Entirety GRANTED IN PART. The Court grants the request to the 9 extent it is limited to the 10 redactions proposed in ECF No. 358-1. 11 No further action necessary, as 12 this order directs Plaintiffs to file a public redacted version of ECF 13 No. 358-1. 14 304-6 GOOG-ASST-03034181 Entirety GRANTED. Sealed under this Court’s order at ECF No. 282, at 15 7:28-8:3. Contains confidential and highly sensitive proprietary 16 and commercial information 17 about the operation of Google Assistant. 18 No further action necessary. 19 304-7 GOOG-ASST-00221071 Entirety GRANTED, as confidential and highly sensitive proprietary 20 information about the operation 21 of Google Assistant. 22 No further action necessary. 304-8 GOOG-ASST-03026521 Entirety GRANTED. Sealed under this 23 Court’s order at ECF No. 282, at 7:21-24. Contains confidential 24 and highly sensitive proprietary 25 and commercial information about the operation of Google 26 Assistant. 27 No further action necessary. highly sensitive proprietary 1 information about the operation 2 of Google Assistant. 3 No further action necessary. 304-10 GOOG-ASST-00238568 Entirety GRANTED, as confidential and 4 highly sensitive proprietary information about the operation 5 of Google Assistant. 6 No further action necessary. 7 304-11 GOOG-ASST-00213485 Entirety GRANTED, as confidential and highly sensitive proprietary 8 information about the operation of Google Assistant. 9 10 No further action necessary. 304-12 Excerpts of deposition of Entirety GRANTED IN PART. The Court 11 Lourdes Galvan, dated GRANTS the request to the August 4, 2022 extent it is limited to the 12 redactions proposed in ECF No. 13 358-6. 14 No further action necessary, as this order directs Plaintiffs to file 15 a public redacted version of ECF No. 358-6. 16 304-13 Declaration of F. Torres Highlighted GRANTED. Sealed under this 17 in Support of Plaintiffs’ portion on Court’s Order at ECF No. 282, at Motion for Class pages 9-10, 15, 11:8-3 Highlighted portions 18 Certification 20-21, 26, 30- reflect confidential and highly 36 sensitive proprietary and 19 commercial information about (1) the operation of Google 20 Assistant and (2) details of 21 Google’s understanding of the profits or losses associated with 22 Google Assistant. 23 No further action necessary, as a public redacted version is filed at 24 303-30. 25 304-14 Excerpts of deposition of Entirety GRANTED, as confidential and Fernando Torres, dated highly sensitive proprietary 26 September 7, 2022 information about details of Google’s understanding of the 27 profits or losses associated with 1 No further action necessary. 2 304-15 Excerpts of deposition of Entirety GRANTED, as confidential and Hailey Crowel, dated July highly sensitive proprietary 3 21, 2022 information about details of Google’s understanding of the 4 profits or losses associated with Google Assistant. 5 6 No further action necessary. 304-16 GOOG-ASST-03045589 Entirety GRANTED, as confidential and 7 highly sensitive proprietary information about details of 8 Google’s understanding of the profits or losses associated with 9 Google Assistant. 10 No further action necessary. 11 304-17 GOOG-ASST03045632 Entirety GRANTED. Sealed under this Court’s order at ECF No. 282, 12 6:4-7. Contains confidential and 13 highly sensitive proprietary and commercial information about 14 the profits or losses of Google Assistant. 15 No further action necessary. 16 304-18 Reply Report to the Entirety DENIED without prejudice, as 17 Expert Report of Jesse the request is not narrowly David PhD by Fernando tailored. 18 Torres Google shall file either a further 19 motion to seal this document with more narrowly tailored 20 redactions or a public unredacted 21 version of this document by no later than March 3, 2023. 22 304-19 GOOG-ASST-03026959 Entirety GRANTED. Sealed under this Court’s order at ECF No. 318, at 23 3:22-26. Contains confidential and highly sensitive proprietary 24 and commercial information 25 about the operation of Google Assistant. 26 No further action necessary. 27 304-20 GOOG-ASST-03029199 Entirety GRANTED. Sealed under this 3:27-4:3. Contains confidential 1 and highly sensitive proprietary 2 and commercial information about the operation of Google 3 Assistant. 4 No further action necessary. 304-21 GOOG-ASST-03029199 Entirety GRANTED. Sealed under this 5 Court’s order at ECF No. 318, at 6 4:4-9. Contains confidential and highly sensitive proprietary and 7 commercial information about the operation of Google 8 Assistant. 9 No further action necessary. 10 304-22 Expert Reply Report of Entirety DENIED without prejudice. Rebecca Reed-Arthurs Plaintiffs move to seal based on 11 Ph.D. purported inclusion of material Google designated highly 12 confidential, but Google does not request to seal any portion of this 13 document. 14 Google shall file either a further 15 motion to seal this document with narrowly tailored redactions 16 or a public unredacted version of 17 this document by no later than March 3, 2023. 18 304-23 Opening Expert Report of Entirety GRANTED. Sealed under this Rebecca Reed-Arthurs, Court’s order at ECF No. 282, at 19 Ph.D. 11:14-20. Document reflects confidential and highly sensitive 20 proprietary and commercial 21 information about (1) the operation of Google Assistant (2) 22 business opportunities and risks; and (3) details of Google’s 23 understanding of the profits or losses associated with Google 24 Assistant. 25 No further action necessary. 26 B. Google’s Further Administrative Motion to Seal (ECF No. 345) 27 On October 17, 2022, the Court denied in part without prejudice Google’s request to seal 1 certain documents submitted with its opposition to Plaintiffs’ motion for class certification 2 because some of the requests were not narrowly tailored. See ECF No. 318. Google submitted a 3 further administrative motion to seal portions of these documents. See ECF No. 345. The Court 4 now considers this request. 5 Google seeks to seal portions of deposition transcripts. Google’s request is now narrowly 6 tailored to seal only the portions of these transcripts containing confidential and highly sensitive 7 proprietary and commercial information about (1) the operation of Google Assistant; (2) 8 competitively sensitive business opportunities and risks; and (3) details of Google’s understanding 9 of the profits or losses associated with Google Assistant. See Decl. of Hailey Crowel Supp. Defs.’ 10 Further Admin. Mot to File Under Seal ¶ 5, ECF No. 345-1. And Google has explained how 11 disclosure of the information would cause Google competitive harm. See id. Courts in this 12 district have found that compelling reasons exist to seal such information. See Finjan, 2016 WL 13 7911651, at *1 (finding “technical operation of [defendant’s] products” sealable under 14 “compelling reasons” standard); Exeltis, 2020 WL 2838812, at *1 (“Courts have found that 15 confidential business information in the form of . . . business strategies satisfies the compelling 16 reasons standard.” (internal quotation marks omitted)); Brown, 2013 WL 12400041, at *1 (finding 17 compelling reasons to seal information about “profits, losses, income, investments, and expenses” 18 when disclosure would harm party’s competitive standing). 19 Accordingly, the Court GRANTS Google’s motion to seal at ECF No. 345 as set forth in 20 the following table. 21 ECF No. Document Requested Ruling 22 Portions to 23 Seal 345-3 Excerpts of Transcript of Highlighted GRANTED, as confidential and 24 Deposition of Francoise Portions highly sensitive proprietary and Beaufays, dated April 12, commercial information about 25 2022 the operation of Google Assistant. 26 27 Google SHALL file a public redacted version of this document 345-4 Excerpts of Transcript of Highlighted GRANTED, as confidential and 1 Deposition of Francoise Portions highly sensitive proprietary and 2 Beaufays, dated April 22, commercial information about 2022 the operation of Google 3 Assistant. 4 Google SHALL file a public redacted version of this document 5 by no later than March 3, 2023. 6 345-5 Excerpts of Transcript of Highlighted GRANTED, as confidential and Deposition of Yair Portions highly sensitive proprietary and 7 Cohen, dated July 15, commercial information about 2022 (1) the operation of Google 8 Assistant and (2) business opportunities and risks. 9 10 Google SHALL file a public redacted version of this document 11 by no later than March 3, 2023. 345-6 Excerpts of Transcript of Highlighted GRANTED, as confidential and 12 Deposition of Alex Portions highly sensitive proprietary and Gruenstein, dated May commercial information about 13 24, 2022 the operation of Google 14 Assistant. 15 Google SHALL file a public redacted version of this document 16 by no later than March 3, 2023. 17 345-7 Excerpts of Transcript of Highlighted GRANTED, as confidential and Deposition of Hailey Portions highly sensitive proprietary and 18 Crowel, dated July 21, commercial information about 2022 (1) business opportunities and 19 risks and (2) details of Google’s understanding of the profits or 20 losses associated with Google 21 Assistant. 22 Google SHALL file a public redacted version of this document 23 by no later than March 3, 2023. 345-8 Excerpts of Transcript of Highlighted GRANTED, as confidential and 24 Deposition of Hailey Portions highly sensitive proprietary and 25 Crowel, dated August 10, commercial information about 2022 (1) business opportunities and 26 risks and (2) details of Google’s understanding of the profits or 27 losses associated with Google 1 Google SHALL file a public 2 redacted version of this document by no later than March 3, 2023. 3 345-9 Excerpts of Transcript of Highlighted GRANTED, as confidential and Deposition of Brian Portions highly sensitive proprietary and 4 Horling, dated June 13, commercial information about 2022 (1) the operation of Google 5 Assistant and (2) business 6 opportunities and risks. 7 Google SHALL file a public redacted version of this document 8 by no later than March 3, 2023. 345-10 Excerpts of Transcript of Highlighted GRANTED, as confidential and 9 Deposition of Caroline Portions highly sensitive proprietary and 10 Kenny, dated April 14, commercial information about 2022 the operation of Google 11 Assistant. 12 Google SHALL file a public redacted version of this document 13 by no later than March 3, 2023. 14 345-11 Excerpts of Transcript of Highlighted GRANTED, as confidential and Deposition of Ashwin Portions highly sensitive proprietary and 15 Sunder, dated May 13, commercial information about 2022 (1) the operation of Google 16 Assistant and (2) business 17 opportunities and risks. 18 Google SHALL file a public redacted version of this document 19 by no later than March 3, 2023. 345-12 Excerpts of Transcript of Highlighted GRANTED, as confidential and 20 Deposition of Terry Tai, Portions highly sensitive proprietary and 21 dated June 22, 2022 commercial information about the operation of Google 22 Assistant. 23 Google SHALL file a public redacted version of this document 24 by no later than March 3, 2023. 25 C. Plaintiffs’ Renewed Request to Seal Documents Submitted with Google’s 26 Opposition to Plaintiffs’ Motion for Class Certification (ECF No. 358) On November 17, 2022, the Court denied without prejudice Plaintiffs’ request to seal 27 1 because the request was not narrowly tailored. See ECF No. 356. Plaintiffs subsequently 2 submitted a renewed request that is more narrowly tailored. See ECF No. 358. The Court now 3 considers this renewed request. 4 Plaintiffs request to seal portions of documents produced in the litigation and interrogatory 5 responses. The portions of the documents Plaintiffs seek to seal include email addresses, home 6 addresses, device identification numbers, and other similar information. Courts in this district 7 have found that compelling reasons exist to seal such material. See Nursing Home Pension Fund 8 v. Oracle Corp., No. C01-00988 MJJ, 2007 WL 3232267, at *2 (N.D. Cal. Nov. 1, 2007) (home 9 address and financial account information); O’Connor v. Uber Techs., Inc., No. C-13-3826 EMC, 10 2015 WL 355496, at *3 (N.D. Cal. Jan. 27, 2015) (email address); Darisse v. Nest Labs, Inc., No. 11 14-CV-01363-BLF, 2016 WL 11474174 (N.D. Cal. June 2, 2016) (device serial number). The 12 Court agrees that such material is sealable under the compelling reasons standard and finds that 13 Plaintiffs have now narrowly tailored their request. Accordingly, the Court GRANTS Plaintiffs’ 14 request to seal at ECF No. 358, as set forth in the following table. 15 The Court notes that its order at ECF No. 356 had also denied without prejudice Plaintiffs’ 16 request to seal portions of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification 17 (“Opposition”). See ECF No. 356, at 3:10-13. Plaintiffs did not seek to seal any portions of the 18 Opposition in their renewed request. The Court interprets this omission to mean that Plaintiffs no 19 longer seek to seal portions of the Opposition. The Court previously granted Google’s request to 20 seal portions of this document but instructed Google not to file a public redacted version until after 21 Plaintiffs had the opportunity to propose their own redactions. See ECF No. 318, at 14:3-7. The 22 Court therefore DIRECTS Google to file a public redacted version of the Opposition with the 23 redactions permitted in the Court’s order at ECF No. 318.1 24 ECF No. Document Requested Ruling 25 Portions to 26 Seal 358-1 SPURR000023 Highlighted GRANTED, as sensitive 27 Portions personally identifying 1 information. 2 Plaintiffs SHALL file a public 3 redacted version of this document by no later than March 3, 2023. 4 358-2 STEVE-SPURR000347 Highlighted GRANTED, as sensitive Portions personally identifying 5 (Exhibit 64 to the information. 6 Declaration of Sunita Bali in support of Defendants’ Plaintiffs SHALL file a public 7 Opposition to Plaintiffs’ redacted version of this document Motion for Class by no later than March 3, 2023. 8 Certification) 358-3 STEVE-SPURR000733 Highlighted GRANTED, as sensitive 9 Portions personally identifying 10 information. 11 Plaintiffs SHALL file a public redacted version of this document 12 by no later than March 3, 2023. 13 358-4 Excerpts of Transcript of Highlighted GRANTED, as sensitive Deposition of Frank Portions personally identifying 14 Aguiar, dated September information. 5, 2022 15 Plaintiffs SHALL file a public redacted version of this document 16 by no later than March 3, 2023. 17 358-5 Excerpts of Transcript of Highlighted GRANTED, as sensitive Deposition of Eleeanna Portions personally identifying 18 Galvan, dated August 5, information. 2022 19 Plaintiffs SHALL file a public redacted version of this document 20 by no later than March 3, 2023. 21 358-6 Excerpts of Transcript of Highlighted GRANTED, as sensitive Deposition of Lourdes Portions personally identifying 22 Galvan, dated August 4, information. 2022 23 Plaintiffs SHALL file a public redacted version of this document 24 by no later than March 3, 2023. 25 358-7 Excerpts of Transcript of Highlighted GRANTED, as sensitive Deposition of Melissa Portions personally identifying 26 Spurr, dated August 15, information. 2022 27 Plaintiffs SHALL file a public by no later than March 3, 2023. 1 358-8 Excerpts of Transcript of Highlighted GRANTED, as sensitive 2 Deposition of Steven Portions personally identifying Spurr, dated September 6, information. 3 2022 Plaintiffs SHALL file a public 4 redacted version of this document by no later than March 3, 2023. 5 6 D. Joint Motion to Seal Portions of Order on Class Certification (ECF No. 369) 7 The parties submitted a Joint Request in Support of Proposed Redactions to Class 8 Certification Order. ECF No. 369. Each party requests to seal certain portions of the Court’s 9 order on Plaintiffs’ Motion for Class Certification. The Court addresses each party’s request in 10 turn. 11 Plaintiffs request to seal Plaintiff Melissa Spurr’s personal email address. The Court finds 12 compelling reasons exist to seal this email address, as it is not relevant to the litigation and the 13 public has no real interest in its disclosure. See, e.g., O’Connor, 2015 WL 355496, at *3 (N.D. 14 Cal. Jan. 27, 2015). 15 Google requests to seal certain excerpts of Class Certification Order that contain technical 16 information about the operation of Google Assistant. The Court finds that Google has met the 17 compelling reasons standard for sealing this technical information because release of the 18 information would threaten Google’s competitive interests. See In re Elec. Arts, Inc., 298 F. 19 App’x 568, 569 (9th Cir. 2008) (ordering sealing where documents could be used “‘as sources of 20 business information that might harm a litigant’s competitive standing’”) (quoting Nixon, 435 U.S. 21 at 598); see also In re Koninklijke Philips Pat. Litig., No. 18-CV-01885-HSG, 2020 WL 1865294 22 (N.D. Cal. Apr. 13, 2020) (compelling reasons exist to seal information concerning “technical 23 product operation”). 24 The Court hereby GRANTS the parties’ joint motion, as the parties have demonstrated 25 compelling reasons to seal the portions of the order they respectively request to seal. A public 26 redacted version of the order has already been filed at ECF No. 369-2. No further action is 27 necessary. 1 / 2 || I. ORDER 3 For the reasons stated above, IT IS HEREBY ORDERED THAT: 4 1. Plaintiffs’ Motion to Seal and to Consider Whether Another Party’s Material Should be 5 Sealed at ECF No. 304 is GRANTED IN PART and DENIED IN PART. Google shall file 6 either a further motion to seal or public unredacted versions of ECF Nos. 304-18 & 304-22 7 consistent with the Court’s direction in the table in § ILA of this order by no later than 8 March 3, 2023. 9 2. Google’s Administrative Motion to Seal at ECF No. 345 is GRANTED. Google shall file 10 public redacted versions of the exhibits consistent with the Court’s direction in the table 11 § IIB of this order by no later than March 3, 2023. 12 3. Plaintiffs’ renewed request to seal at ECF No. 358 is GRANTED. Plaintiffs shall file 5 13 public redacted version of the exhibits consistent with the Court’s direction in the table in 14 § ILC of this order by no later than March 3, 2023. 3 15 4. The parties’ Joint Motion to Seal Portions of Order on Class Certification at ECF No. 369 a 16 is GRANTED. 3 17 5. Google SHALL file a public redacted version of the Opposition, which Google submitted 18 with proposed redactions at ECF No. 271-2, with the redactions permitted in the Court’s 19 order at ECF No. 318. 20 21 Dated: February 22, 2023 BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28