Rowe v. Google LLC

USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K

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:

ULKU ROWE, :

Plaintiff :

: 19 Civ. 8655 (LGS)

-against- :

: ORDER

GOOGLE LLC, :

Defendant. :

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LORNA G. SCHOFIELD, District Judge:

WHEREAS, Defendant Google LLC has filed five motions to seal documents submitted

in connection with the parties’ cross-motions for summary judgment. Plaintiff Ulku Rowe has

filed responses opposing portions of these motions to seal. Because the motions present similar

issues and the Memoranda of Law submitted in connection with the motions present similar

arguments, they are addressed jointly below.

WHEREAS, a three-part inquiry determines whether to seal a document. See Olson v.

Major League Baseball, 29 F.4th 59, 87-88 (2d Cir. 2022); Lugosch v. Pyramid Co. of

Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). The first question is whether the document is “a

judicial document subject to the [presumed] right of public access,” meaning that the document is

“relevant to the performance of the judicial function and useful in the judicial process.” Lugosch,

435 F.3d at 119 (internal quotation marks omitted). The second step, if the presumption attaches,

is to determine the weight of the presumption by assessing “the role of the material at issue in the

exercise of Article III judicial power and the resultant value of such information to those

monitoring the federal courts.” Id. (internal quotation marks omitted). The third step is to

balance against the presumption any “competing considerations” such as “impairing law

enforcement[,] judicial efficiency” and “the privacy interests of those resisting disclosure.” Id. at

120 (internal quotation marks omitted). In weighing the presumption against competing

considerations, a court can seal documents only “if specific, on the record findings are made

demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve

that interest.” Id. (internal quotation marks omitted).

WHEREAS, the presumption of public access applies to the documents at issue. The

pending motions seek to seal documents and portions of the briefing submitted in support of the

parties’ cross-motions for summary judgment. “It is well-settled that ‘documents submitted to a

court for its consideration in a summary judgment motion are -- as a matter of law -- judicial

documents to which a strong presumption of access attaches.’” Brown v. Maxwell, 929 F.3d 41,

47 (2d Cir. 2019) (quoting Lugosch, 435 F.3d at 121).

WHEREAS, the documents at issue are subject to a strong presumption of access, as they

were submitted in connection with a summary judgment motion. See Olson, 29 F.4th at 90 (“[A]

strong presumption attaches to materials filed in connection with dispositive motions, such as a

motion to dismiss or a summary judgment motion.”); Maxwell, 929 F.3d at 53 (“Materials

submitted in connection with a motion for summary judgment are subject to a strong presumption

of public access.”). Such documents “should not remain under seal absent the most compelling

reasons.” Lugosch, 435 F.3d at 121 (internal quotation marks omitted).

WHEREAS, for each document, the party seeking to file under seal must show that

competing considerations override the public right of access. See id. at 120. Defendant’s

motions to file under seal are addressed according to the type of information sought to be

protected and the considerations offered in support.

Identity of Clients and Strategic Initiatives

WHEREAS, Defendant argues that disclosure of the identities of customers, clients,

strategic business initiatives, and other sensitive commercial information (unrelated to

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compensation, which is discussed below) contained in certain documents would result in

competitive harm to the company. Preventing competitive harm is a countervailing interest that

can override the public right of access. See United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir.

1995) (“Commercial competitors seeking an advantage over rivals need not be indulged in the

name of monitoring the courts . . . .”); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F.

Supp. 3d 485, 511 (S.D.N.Y. 2015) (allowing for the redaction of “specific business information

and strategies, which if revealed, may provide valuable insights . . . that a competitor would seek

to exploit” (internal quotation marks omitted)). Defendant argues that disclosure of the identities

of certain clients, individuals who are in contact with Defendant’s employees and strategies for

cultivating business could put it at competitive disadvantage. To avoid potential competitive

harm, Defendant proposes redactions of specific information, satisfying the requirement that a

sealing order be “narrowly tailored.” Lugosch, 435 F.3d at 124. Because this information is

unnecessary to adjudicate Plaintiff’s claims and the parties’ summary judgment arguments, the

risk of competitive harm outweighs the public right of access.

It is therefore ORDERED that, to the extent the sealing motions seek to protect the

identities of clients or strategic business initiatives, they are GRANTED.

Individual Compensation Information

WHEREAS, Defendant moves to file under seal documents containing information

related to the compensation of individual employees. This information concerns individuals who

are not parties to this lawsuit, and whose privacy interests must factor into the sealing analysis.

See Amodeo, 71 F.3d at 1050-51 (“[T]he privacy interests of innocent third parties . . . should

weigh heavily in a court’s balancing equation.”). Individuals’ financial information, including

their compensation, is considered private and can override even a strong presumption in favor of

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public access. See Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 156 (S.D.N.Y.

2015) (allowing the redaction of compensation as “sensitive personal information”); Statoil

(Nigeria) Ltd. v. Nigerian Nat’l Petroleum Corp., No. 18 Civ. 2392, 2020 WL 3170566, at *2

(S.D.N.Y. June 15, 2020) (approving request to redact employee salary information). But see In

re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570, 2019 WL 3296959, at *7

(S.D.N.Y. July 22, 2019) (denying request to redact individual salary information).

WHEREAS, this information is central to Plaintiff’s claims and the parties’ arguments at

summary judgment. To understand the equal-pay issues, the public must understand what

constitutes the compensation of Plaintiff’s proposed comparators and how Defendant determines

it, making the presumption of access particularly strong with respect to this information.

Defendant admits that individual salary information is not confidential and that employees may

share information about their compensation freely, including outside of the company. Defendant

has not carried its burden to overcome the presumption of access with respect to compensation

amounts.

WHEREAS, to accommodate the privacy interests of third-parties, documents may be

filed under seal with the names, but not the compensation amounts, of non-party employees

redacted. Pseudonyms may be used to identify individual comparators. Defendant argues that

such an approach is unworkable and futile, as the identities of comparators could potentially be

deduced from public filings. This argument fails because it assumes the default is non-disclosure.

The presumption -- particularly strong for documents submitted in support of a summary

judgment motion -- is that of public filing, rebuttable only with “specific, on the record findings

. . . that closure is essential to preserve higher values.” Lugosch, 435 F.3d at 120 (internal

quotation marks omitted). Defendant has not offered a sufficient factual basis to make these

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findings.

It is ORDERED that, to the extent the sealing motions propose redactions to names and

other identifying information that could connect specific individuals to compensation amounts,

the motions are GRANTED. The motions are DENIED to the extent they propose redactions to

salary amounts or other information broader than necessary to preserve anonymity.

Compensation Practices Generally

WHEREAS, Defendant seeks to file under seal information about its compensation

practices generally. Defendant argues that disclosure of such information could cause

competitive harm, by allowing competitors to hire talent away from Defendant more efficiently.

This is a countervailing consideration, which in some cases can override the presumption of

disclosure. See, e.g., Oliver Wyman, Inc. v. Eielson, 282 F. Supp. 3d 684, 706-07 (S.D.N.Y.

2017) (allowing the redaction of average and individual salary information from summary

judgment record, due to risk of competitive harm). Defendant also states that its internal

compensation practices are proprietary.

WHEREAS, this information is central to Plaintiff’s equal-pay claims and the parties’

arguments at summary judgment. Unlike individual salary amounts, information about how

Defendant sets compensation in general does not implicate non-parties’ privacy interests. See

Barrett v. Forest Lab’ys, Inc., No. 12 Civ. 5224, 2015 WL 3851860, at *3 (S.D.N.Y. June 11,

2015) (denying motion to seal documents containing descriptions of compensation practices);

Saks Inc. v. Attachmate Corp., No. 14 Civ. 4902, 2015 WL 1841136, at *18-19 (S.D.N.Y. Apr.

17, 2015) (denying motion to seal records related to general business practices, contrasted with

“information about employee compensation as it relate[d] to any particular employee”). To

support its argument in favor of sealing, Defendant offers only conclusory statements and

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speculative predictions of competitive harm resulting from the disclosure of materials about its

internal organization. For example, its supporting documentation states, “[i]t would be damaging

to Google if these documents got into the hands of its competitors,” without elaboration. It also

states that “[i]n designing any written materials regarding compensation, . . . we assume that they

will be kept confidential and not published publicly.” That a fact has not previously been made

public is not enough to override the right of public access, which is particularly strong with

respect to these materials. Instead, Defendant must show, with particularized evidence, that

disclosure would cause some competitive harm. The materials submitted do not permit this Court

to make “specific, on the record findings” that sealing documents is “necessary to preserve higher

values.” Lugosch, 435 F.3d at 120 (internal quotation marks omitted). Compounding the

problem is the breadth of the withholding Defendant requests. For example, it wishes to withhold

entirely the Declaration of Chris Humez, which contains information about the compensation of

Plaintiff and her comparators, as well as information about how Defendant sets compensation

generally, all of which is central to Plaintiff’s claims. Defendant acknowledges that Plaintiff has

disclosed information about her compensation in this suit, but still seeks to file the portions of the

Humez Declaration concerning her compensation under seal. Allowing Defendant to withhold

the entire declaration would run afoul of the requirement that a sealing order be “narrowly

tailored.” Id. at 124.

It is ORDERED that, to the extent the sealing motions seek to protect information about

Defendant’s compensation practices generally, they are DENIED.

Job Descriptions

WHEREAS, Defendant seeks to file under seal various job ladders and job descriptions.

Defendant argues that the job ladders are proprietary and would result in competitive harm if

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disclosed, in the form of competitors’ modelling their internal employee management on

Defendant’s practices. This argument is unpersuasive. Defendant offers no plausible account of

how disclosure of information on job responsibilities would cause competitive harm, beyond

speculation that competitors would model their internal operations on those of Defendant. The

job responsibilities of Defendant’s employees, and whether or not they are comparable, are a

central issue in this case. The job descriptions offer the kind of information that a member of the

public would need to understand the resolution of the parties’ motions for summary judgment.

Defendant’s arguments in favor of sealing fall short of what is needed to make “specific, on the

record findings . . . that closure is essential to preserve higher values and is narrowly tailored to

serve that interest.” Id. at 120 (internal quotation marks omitted).

It is therefore ORDERED that, to the extent the sealing motions concern job ladders and

job descriptions, they are DENIED.

Recruiting Information

WHEREAS, Defendant seeks to file under seal information disclosing the identity of

candidates under consideration for executive roles. Defendant argues that this information is

private and, if disclosed, could harm those individuals because candidates typically do not

disclose to their current employer or manager that they are seeking another role. The identity of

individuals seeking executive positions is unrelated to the claims at issue or the parties’ summary

judgment briefing. The risk that disclosure of their identities could cause them harm outweighs

the presumption of public access. For most of the relevant documents, Defendant seeks to

withhold only the names of candidates, satisfying the requirement that a sealing order be

“narrowly tailored.” Id. (internal quotation marks omitted). However, for others, Defendant

seeks to withhold large portions of a candidate’s resume or information on their professional

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background. The nature of Plaintiff’s claims makes the credentials of job candidates, including

their prior experience, important context for understanding the adjudication of the parties’

motions. Any imposition on candidates’ privacy by disclosure of this information, particularly

when candidates’ names are redacted, does not outweigh the right of public access.

It is ORDERED that, to the extent the motions to file under seal seek to protect the

identities of candidates for positions with Defendant, they are GRANTED. The motions are

DENIED to the extent they propose redactions to other information broader than necessary to

preserve anonymity.

Other Personal Information

WHEREAS, Defendant seeks to file under seal personal information about non-parties to

this lawsuit, unrelated to their compensation, qualifications, job history, or other characteristics

relevant to Plaintiff’s claims. Such information consists of personal telephone numbers, email

addresses and home addresses. This information is unrelated to the resolution of this case and

implicates the privacy interests of non-parties. See Amodeo, 71 F.3d at 1050-51. These

countervailing privacy interests overcome the presumption against public access.

WHEREAS, Defendant seeks leave to file under seal the identity of a non-party female

employee who sought advice from Will Grannis, the Managing Director for the Office of the

CTO within Defendant’s Cloud organization, regarding compensation. Plaintiff opposes this

portion of the motion, arguing that this person’s seeking advice is relevant evidence to infer

discrimination and accordingly, its probative value outweighs any imposition on privacy

interests. This argument ignores that Defendant seeks only to redact the identity of the employee,

leaving the surrounding contents of the email and thereby preserving its probative value. These

redactions are “narrowly tailored” to protect the non-party’s privacy interest. Lugosch, 435 F.3d

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at 120 (internal quotation marks omitted).

It is ORDERED that to the extent the motions to file under seal seek to protect private

personal information unrelated to compensation, qualifications, job or educational history, and

other characteristics relevant to Plaintiff’s claims, they are GRANTED.

Summary

It is hereby ORDERED that Defendant’s motions to file under seal are GRANTED IN

PART, DENIED IN PART. Some of the relevant documents may be filed under seal in the

form requested by Defendant, as the proposed redactions comply with the guidelines given above.

The motions are GRANTED with respect to the following documents, which may be filed under

seal in the form requested by Defendant: Declaration of Sara B. Tomezsko in Support of

Defendant Google LLC’s Motion for Summary Judgment, Exhibits 21, 22, 23, 24, 34, 35, 38, and

40 (Dkt. 143); Declaration of Maya S. Jumper, Exhibits 25, 59, and 95 (Dkt. 160); and

Supplemental Declaration of Sara B. Tomezsko in Further Support of Google’s Motion for

Summary Judgment and Opposition to Plaintiff’s Cross-Motion for Summary Judgment and

Exhibits 3, 4, 10, and 14 thereto (Dkt. 187). The motions to file under seal are DENIED with

respect to all other documents.

The motions are denied without prejudice to renew. Defendant may propose redactions

consistent with the guidelines in this Order on documents it sought to file entirely under seal or

more narrowly tailored redactions to documents it sought to file in redacted form. All documents

currently filed under seal shall remain under seal at this time. If Defendant does not file a

renewed motion with respect to a document within thirty days of the issuance of this order, the

party originally filing the document shall refile it consistent with this Order.

The parties are reminded that this Order covers only the sealing or redaction of

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information submitted in connection with the parties’ motions for summary judgment. That

information may be filed under seal in connection with those motions does not mean it may be

filed under seal at trial. See Amodeo, 71 F.3d at 1049 (“[T]he public has an especially strong

right of access to evidence introduced in trials.” (internal quotation marks omitted)).

The Clerk of Court is respectfully directed to close the motions at Dkt. 144, Dkt. 161,

Dkt. 171, Dkt. 188, Dkt. 198, and Dkt. 211.

Dated: September 26, 2022

New York, New York

UNITED STATES DISTRICT JUDGE

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