The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
6
7 GURMINDER SINGH, Case No. 16-cv-03734-BLF
8 Plaintiff,
ORDER REGARDING
9 v. ADMINISTRATIVE MOTIONS TO
FILE UNDER SEAL
10 GOOGLE LLC,
[Re: ECF Nos. 135, 137, 140, 149]
11 Defendant.
12
13 Before the Court are administrative motions to file under seal filed by both Plaintiff
14 Gurminder Singh (“Plaintiff”), ECF No. 135 (“PMTS”), and Defendant Google LLC (“Google”),
15 ECF No. 140 (“GMTS”). Each Party has filed a declaration in support of the other’s
16 administrative motion. ECF Nos. 137, 149. For the reasons stated below, each of the Parties’
17 administrative motion to file under seal is GRANTED IN PART and DENIED IN PART.
18 I. LEGAL STANDARD
19 “Historically, courts have recognized a ‘general right to inspect and copy public records
20 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of
21 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435
22 U.S. 589, 597 & n.7 (1978)). Consequently, filings that are “more than tangentially related to the
23 merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing. Ctr. for
24 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02 (9th Cir. 2016). Filings that are only
25 tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at
26 1097. This standard applies to motions for class certification. See, e.g., Adtrader, Inc. v. Google
27 LLC, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 2020) (citing cases).
1 “Under the compelling reasons standard, a district court must weigh relevant factors, base
2 its decision on a compelling reason, and articulate the factual basis for its ruling, without relying
3 on hypothesis or conjecture.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010)
4 (internal quotation marks omitted). “In general, compelling reasons sufficient to outweigh the
public’s interest in disclosure and justify sealing court records exist when such court files might
5
. . . become a vehicle for improper purposes, such as the use of records to gratify private spite,
6
promote public scandal, circulate libelous statements, or release trade secrets.” Algarin v.
7
Maybelline, LLC, No. 12CV3000 AJB DHB, 2014 WL 690410, at *2 (S.D. Cal. Feb. 21, 2014)
8
(internal quotation marks omitted). “The mere fact that the production of records may lead to a
9
litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more,
10
compel the court to seal its records.” Kamakana, 447 F.3d at 1179. Courts have found that a
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party has demonstrated compelling reasons warranting sealing where “confidential business
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material, marketing strategies, product development plans could result in improper use by business
13
competitors seeking to replicate [the company’s] business practices and circumvent the time and
14
resources necessary in developing their own practices and strategies.” Algarin, 2014 WL 690410,
15
at *3.
16
Sealing motions filed in this district also must be “narrowly tailored to seek sealing only of
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sealable material, and must conform with Civil L.R. 79-5(d).” Civil L.R. 79-5(b).1 Under Civil
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Local Rule 79-6(d), the submitting party must attach a “proposed order that is narrowly tailored to
19
seal only the sealable material” which “lists in table format each document or portion thereof that
20
is sought to be sealed.” In addition, a party moving to seal a document in whole or in part must
21
file a declaration establishing that the identified material is “sealable.” Civ. L.R. 79-5(d)(1)(A).
22
“Reference to a stipulation or protective order that allows a party to designate certain documents
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as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Id.
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Where the moving party requests sealing of documents because they have been designated
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1 The discussion of Civil L.R. 79-5 refers to the version of that rule that was in effect at the time
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the Parties filed these administrative motions. Civil L.R. 79-5 has since been amended. See Civil
1 confidential by another party or a non-party under a protective order, the burden of establishing
2 adequate reasons for sealing is placed on the designating party or non-party. Civ. L.R. 79-5(e).
3 The moving party must file a proof of service showing that the designating party or non-party has
4 been given notice of the motion to seal. Id. “Within 4 days of the filing of the Administrative
5 Motion to File Under Seal, the Designating Party must file a declaration . . . establishing that all of
6 the designated material is sealable.” Civ. L.R. 79-5(e)(1). “If the Designating Party does not file a
7 responsive declaration . . . and the Administrative Motion to File Under Seal is denied, the
8 Submitting Party may file the document in the public record no earlier than 4 days, and no later
9 than 10 days, after the motion is denied.” Civ. L.R. 79-5(e)(2).
10 II. PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL
11 Plaintiff filed an administrative motion to file under seal parts of its opening brief and 7
12 exhibits attached to the brief. See PMTS at 2-5. Google had designated the materials in the brief
13 and exhibits as “Highly Confidential—Attorneys’ Eyes Only” under the Parties’ protective order.
14 See id. In accordance with Civil L.R. 79-5, Google filed a declaration in support of sealing some
15 of those materials. ECF No. 137-1 (“GDecl.”). Google says that that its narrowed sealing request
16 is required to prevent public release of its proprietary methods for filtering invalid clicks on
17 Google platforms. Id. ¶¶ 4-8. Google says that some of the other material contains sensitive and
18 confidential revenue data that could jeopardize Google’s competitive standing. Id. ¶ 9.
19 The Court finds that Google has narrowed Plaintiff’s sealing request to only material for
20 which there are compelling reasons for sealing. Accordingly, Plaintiff’s administrative motion to
21 file under seal is GRANTED IN PART and DENIED IN PART. The following documents and
22 portions of documents related to Plaintiff’s motion for class certification SHALL remain under
23 seal:
ECF Document Portions Reason
24
134 Plaintiff’s Motion for 2:14-16, These portions of the Memorandum of
25 Class Certification 4:22-28, Points and Authorities contain highly
5:1-6, 5:16- sensitive and detailed technical
26 28, 6:1-4, information relating to the design,
6:9-12, evaluation, and maintenance of Google’s
27 6:21, 10:8, invalid click filters. These portions also
13:15-21 reference internal, sensitive revenue data.
ECF Document Portions Reason
1
business information would allow
2 Google’s competitors unwarranted insight
into Google’s systems and filtering of
3 invalid activity, thus enabling them to
unfairly compete with Google. The
4 disclosure of this information would also
compromise Google’s filters, allowing
5 those who benefit from invalid activity to
evade Google’s invalid click detection
6 systems, causing irreparable competitive
and reputational harm to Google.
7
134-4 Tang Decl. Ex. 3 2:13-24, These portions of the transcript of the
65:1-25, deposition of Google’s 30(b)(6) witness,
8
73:17-25, Per Bjorke, contain highly sensitive and
100:10, detailed technical information relating to
9
100:16-21, the design, evaluation, and maintenance
100:24- of Google’s invalid click filters, including
10
101:25, the confidential names of those systems.
134:4- Public disclosure of this highly sensitive
11
135:9. business information would allow
135:19-25, Google’s competitors unwarranted insight
12
137:1-25, into Google’s systems and filtering of
158:1-5, invalid activity, thus enabling them to
13
160:12-16, unfairly compete with Google. The
160:18-25 disclosure of this information would also
14
compromise Google’s filters, allowing
those who benefit from invalid activity to
15
evade Google’s invalid click detection
systems, causing irreparable competitive
16
and reputational harm to Google.
17 134-5 Tang Decl. Ex. 4 Highlighted The highlighted portions of the Letter
portions of contain reference to a highly sensitive
18 pages 1 & 2 metric used in monitoring invalid clicks
on Google’s platform. Public disclosure
19 of this highly sensitive business
information would allow Google’s
20 competitors unwarranted insight into
Google’s systems and filtering of invalid
21 activity, thus enabling them to unfairly
compete with Google. The disclosure of
22 this information would also compromise
Google’s filters, allowing those who
23 benefit from invalid activity to evade
Google’s invalid click detection systems,
24 causing irreparable competitive and
reputational harm to Google.
25
134-6 Tang Decl. Ex. 5 Entire The report contains highly sensitive and
document detailed technical information relating to
26
an investigation into invalid click activity
using Google’s proprietary systems and
27
tools. Public disclosure of this highly
ECF Document Portions Reason
1
allow Google’s competitors unwarranted
2 insight into Google’s systems and
filtering of invalid activity, thus enabling
3 them to unfairly compete with Google.
The disclosure of this information would
4 also compromise Google’s filters,
allowing those who benefit from invalid
5 activity to evade Google’s invalid click
detection systems, causing irreparable
6 competitive and reputational harm to
Google.
7
134-7 Tang Decl. Ex. 6 Entire The presentation contains highly sensitive
document and detailed technical information
8
relating to the design, evaluation, and
maintenance of Google’s invalid click
9
filters, including the confidential names
of those systems and metrics. Public
10
disclosure of this highly sensitive
business information would allow
11
Google’s competitors unwarranted insight
into Google’s systems and filtering of
12
invalid activity, thus enabling them to
unfairly compete with Google. The
13
disclosure of this information would also
compromise Google’s filters, allowing
14
those who benefit from invalid activity to
evade Google’s invalid click detection
15
systems, causing irreparable competitive
and reputational harm to Google.
16
134-8 Tang Decl. Ex. 7 Entire The report contains highly sensitive and
17 document detailed technical information relating to
the design, evaluation, and maintenance
18 of one of Google’s metrics used to
combat invalid activity. Public disclosure
19 of this highly sensitive business
information would allow Google’s
20 competitors unwarranted insight into
Google’s systems and filtering of invalid
21 activity, thus enabling them to unfairly
compete with Google. The disclosure of
22 this information would also compromise
Google’s filters, allowing those who
23 benefit from invalid activity to evade
Google’s invalid click detection systems,
24 causing irreparable competitive and
reputational harm to Google.
25
134-11 Tang Decl. Ex. 10 Entire The chart contains highly sensitive and
document confidential revenue data and customer
26
data pulled for the purpose of Per
Bjorke’s deposition. This information is
27
not in the public record. Public disclosure
ECF Document Portions Reason
1
information would jeopardize Google’s
2 competitive standing.
3 Plaintiff SHALL file on the public docket Tang Decl. Ex. 8 (ECF No. 134-9), as no Party supports
4 its sealing. Google SHALL file on the public docket the more narrowly redacted copies of ECF
5 Nos. 134 and 134-4 that conform to this order. Google SHALL send highlighted, unredacted
6 courtesy copies of those documents to the Court no later than November 18, 2021.
7 III. GOOGLE’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL
8 Google filed an administrative motion to file under seal parts of its opposition brief, two
9 declarations, and 14 exhibits attached to the brief. See GMTS. Those materials were a mix of
10 material Google sought to seal and material that Plaintiff designated as “Highly Confidential—
11 Attorneys’ Eyes Only” under the Parties’ protective order. See id. In accordance with Civil L.R.
12 79-5, Plaintiff filed a declaration in support of sealing a narrowed set of designated materials.
13 ECF No. 149 (“PDecl.”). Google advances the same reasons as supported its narrowed sealing
14 request for materials submitted in connection with Plaintiff’s motion for class certification. See
15 generally GMTS. Plaintiff states that the designated materials contain his marketing and business
16 strategies, budget, and expenses which may result in competitive disadvantage for Plaintiff.
17 PDecl. ¶¶ 4-5.
18 The Court finds that Google has established compelling reasons for sealing the materials it
19 seeks to seal and that Plaintiff has narrowed his designated material such that there are compelling
20 reasons for sealing that material too. Accordingly, Google’s administrative motion to file under
21 seal is GRANTED IN PART and DENIED IN PART. The following documents and portions of
22 documents related to Google’s opposition to Plaintiff’s motion for class certification SHALL
23 remain under seal:
ECF Document Portions Reason
24
142 Google’s Opposition to 4:19-20; These portions of the brief contain highly
25 Plaintiff’s Motion for 5:4-5; 6:9- sensitive and detailed technical
Class Certification 10; 7:25- information relating to the design,
26 8:5; 8:8-19; evaluation, and maintenance of Google’s
8:24-27; invalid click filters. These portions also
27 9:2-6; 9:10- reference internal, sensitive revenue data.
17; 11:27- Public disclosure of this highly sensitive
ECF Document Portions Reason
1
12:8-12; Google’s competitors unwarranted insight
2 12:21-22; into Google’s systems and filtering of
14:6-7; invalid activity, thus enabling them to
3 14:9-12; unfairly compete with Google. The
15:14-21; disclosure of this information would also
4 17:17-21; compromise Google’s filters, allowing
18:11-13; those who benefit from invalid activity to
5 18:22-28; evade Google’s invalid click detection
23:25-28 systems, causing irreparable competitive
6 and reputational harm to Google. These
portions also contain detailed figures
7 regarding Plaintiff’s marketing and
business strategies, budget, and expenses,
8 and Plaintiff’s testimony regarding such
strategies, budget, and expenses, which
9 would provide no benefit to the public
interest if publicized through the court
10 records but may result in harm to
Plaintiff.
11
142-1 Sangal Declaration ¶¶ 11, 21-23 These portions of the declaration contain
highly sensitive and detailed technical
12
information relating to the design,
evaluation, and maintenance of Google’s
13
invalid click filters. These portions also
reference internal, sensitive revenue data.
14
Public disclosure of this highly sensitive
business information would allow
15
Google’s competitors unwarranted insight
into Google’s systems and filtering of
16
invalid activity, thus enabling them to
unfairly compete with Google. The
17
disclosure of this information would also
compromise Google’s filters, allowing
18
those who benefit from invalid activity to
evade Google’s invalid click detection
19
systems, causing irreparable competitive
and reputational harm to Google.
20
142-2 Bjorke Declaration ¶¶ 10, 14, These portions of the declaration contain
21 15, 17, 20- highly sensitive and detailed technical
23, 25-29 information relating to the design,
22 evaluation, and maintenance of Google’s
invalid click filters. These portions also
23 reference internal, sensitive revenue data.
Public disclosure of this highly sensitive
24 business information would allow
Google’s competitors unwarranted insight
25 into Google’s systems and filtering of
invalid activity, thus enabling them to
26 unfairly compete with Google. The
disclosure of this information would also
27 compromise Google’s filters, allowing
those who benefit from invalid activity to
ECF Document Portions Reason
1
systems, causing irreparable competitive
2 and reputational harm to Google.
142-3 Bjorke Decl. Ex. 1 Entire This exhibit contains highly sensitive and
3
document detailed technical information relating to
the design, evaluation, and maintenance
4
of Google’s invalid click filters. It also
references internal, sensitive revenue
5
data. Public disclosure of this highly
sensitive business information would
6
allow Google’s competitors unwarranted
insight into Google’s systems and
7
filtering of invalid activity, thus enabling
them to unfairly compete with Google.
8
The disclosure of this information would
also compromise Google’s filters,
9
allowing those who benefit from invalid
activity to evade Google’s invalid click
10
detection systems, causing irreparable
competitive and reputational harm to
11
Google.
12 142-4 Bjorke Decl. Ex. 2 Entire This exhibit contains highly sensitive and
document detailed technical information relating to
13 the design, evaluation, and maintenance
of Google’s invalid click filters. It also
14 references internal, sensitive revenue
data. Public disclosure of this highly
15 sensitive business information would
allow Google’s competitors unwarranted
16 insight into Google’s systems and
filtering of invalid activity, thus enabling
17 them to unfairly compete with Google.
The disclosure of this information would
18 also compromise Google’s filters,
allowing those who benefit from invalid
19 activity to evade Google’s invalid click
detection systems, causing irreparable
20 competitive and reputational harm to
Google.
21
142-6 Nelson Decl. Ex. A Entire The document contains detailed figures
document regarding Plaintiff’s marketing and
22
business strategies, budget, and expenses,
and Plaintiff’s testimony regarding such
23
strategies, budget, and expenses, which
would provide no benefit to the public
24
interest if publicized through the court
records but may result in harm to
25
Plaintiff.
26 142-8 Nelson Decl. Ex. C Entire The document contains detailed figures
document regarding Plaintiff’s marketing and
27 business strategies, budget, and expenses,
and Plaintiff’s testimony regarding such
ECF Document Portions Reason
1
would provide no benefit to the public
2 interest if publicized through the court
records but may result in harm to
3 Plaintiff.
142-14 Nelson Decl. Ex. I Highlighted This exhibit contains highly sensitive and
4
portions detailed technical information relating to
the design, evaluation, and maintenance
5
of Google’s invalid click filters. It also
references internal, sensitive revenue
6
data. Public disclosure of this highly
sensitive business information would
7
allow Google’s competitors unwarranted
insight into Google’s systems and
8
filtering of invalid activity, thus enabling
them to unfairly compete with Google.
9
The disclosure of this information would
also compromise Google’s filters,
10
allowing those who benefit from invalid
activity to evade Google’s invalid click
11
detection systems, causing irreparable
competitive and reputational harm to
12
Google.
13 142-15 Nelson Decl. Ex. J Highlighted This exhibit contains highly sensitive and
portions detailed technical information relating to
14 the design, evaluation, and maintenance
of Google’s invalid click filters. It also
15 references internal, sensitive revenue
data. Public disclosure of this highly
16 sensitive business information would
allow Google’s competitors unwarranted
17 insight into Google’s systems and
filtering of invalid activity, thus enabling
18 them to unfairly compete with Google.
The disclosure of this information would
19 also compromise Google’s filters,
allowing those who benefit from invalid
20 activity to evade Google’s invalid click
detection systems, causing irreparable
21 competitive and reputational harm to
Google.
22
142-16 Nelson Decl. Ex. K Entire The document contains detailed figures
document regarding Plaintiff’s marketing and
23
business strategies, budget, and expenses,
and Plaintiff’s testimony regarding such
24
strategies, budget, and expenses, which
would provide no benefit to the public
25
interest if publicized through the court
records but may result in harm to
26
Plaintiff.
27 142-17 Nelson Decl. Ex. L Entire The document contains detailed figures
document regarding Plaintiff’s marketing and
ECF Document Portions Reason
1
and Plaintiff’s testimony regarding such
2 strategies, budget, and expenses, which
would provide no benefit to the public
3 interest if publicized through the court
records but may result in harm to
4 Plaintiff.
142-21 Nelson Decl. Ex. P Entire The document contains detailed figures
5
document regarding Plaintiff’s marketing and
business strategies, budget, and expenses,
6
and Plaintiff’s testimony regarding such
strategies, budget, and expenses, which
7
would provide no benefit to the public
interest if publicized through the court
8
records but may result in harm to
Plaintiff.
9
142-22 Nelson Decl. Ex. Q Entire The document contains detailed figures
10 document regarding Plaintiff’s marketing and
business strategies, budget, and expenses,
11 and Plaintiff’s testimony regarding such
strategies, budget, and expenses, which
12 would provide no benefit to the public
interest if publicized through the court
13 records but may result in harm to
Plaintiff.
14
142-23 Nelson Decl. Ex. R Entire The document contains detailed figures
document regarding Plaintiff’s marketing and
15
business strategies, budget, and expenses,
and Plaintiff’s testimony regarding such
16
strategies, budget, and expenses, which
would provide no benefit to the public
17
interest if publicized through the court
records but may result in harm to
18
Plaintiff.
19 142-26 Nelson Decl. Ex. U 56:5-24, This exhibit contains highly sensitive and
60:5-25, detailed technical information relating to
20 65:1-25, the design, evaluation, and maintenance
94:1-12, of Google’s invalid click filters. It also
21 94:15-25, references internal, sensitive revenue
113:1-25, data. Public disclosure of this highly
22 163:1-16 sensitive business information would
allow Google’s competitors unwarranted
23 insight into Google’s systems and
filtering of invalid activity, thus enabling
24 them to unfairly compete with Google.
The disclosure of this information would
25 also compromise Google’s filters,
allowing those who benefit from invalid
26 activity to evade Google’s invalid click
detection systems, causing irreparable
27 competitive and reputational harm to
Google.
1 Plaintiff SHALL file on the public docket (1) Nelson Decl. Exs. B and T—as no Party supports
2 || their sealing— and (2) the more narrowly redacted copy of Google’s opposition to Plaintiffs
3 motion for class certification that conforms to this order. Plaintiff SHALL send a highlighted,
4 || unredacted courtesy copy of Google’s opposition brief to the Court no later than November 18,
5 || 2021.
6 || IV. ORDER
7 For the foregoing reasons, IT IS HEREBY ORDERED that the Parties’ administrative
8 || motions to file under seal are GRANTED IN PART and DENIED IN PART in accordance with
9 || the rulings in Sections II and II. Each Party SHALL file new versions of the documents and
10 || provide courtesy copies as outlined in those sections.
11
12 Dated: November 15, 2021 han ty)
Lack Says heen)
BETH LABSON FREEMAN
14 United States District Judge
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