SARAH BUMPUS, et al., Case No. 3:19-cv-03309-JD
Plaintiffs, ORDER RE MOTIONS TO SEAL v.
(F/K/A NRT LLC), et al., Defendants.
The Court has addressed the standards for sealing requests in conjunction with case filings, see In re Google Play Store Antitrust Litigation, 556 F. Supp. 3d 1106 (N.D. Cal. 2021), and that decision is incorporated here. In pertinent summary, “judicial records are public documents almost by definition, and the public is entitled to access by default.” Id. at 1107 (quoting Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); see also Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (when considering a request to seal, “we start with a strong presumption in favor of access to court records.”) (quotation omitted)). The party seeking to seal a document bears the burden of articulating “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure.” Id. (quotation and citation omitted). General assertions of potential competitive or commercial harm are not enough to establish good cause for sealing court records, and the “fact that the parties may have designated a document as confidential under a stipulated protective order is also not enough to justify sealing.” Id. (citation omitted). Plaintiffs filed a sealing motion in connection with their summary judgment motion. Dkt. Mojo, and third parties WAVV Communications and PhoneBurner. Realogy filed two sealing motions in connection with its summary judgment motion and Daubert motions. Dkt. Nos. 207, 208. Realogy’s first motion was unopposed and proposes sealing documents that were produced by Realogy itself. See Dkt. No. 207. Realogy’s second motion proposes sealing documents produced by plaintiffs, Mojo, WAVV, and PhoneBurner. As required by Civil Local Rule 79-5, plaintiffs and Realogy filed the initial notice of sealing for documents obtained during discovery that had been designated as confidential under the protective order entered in this case. See Dkt. No. 200-1; Dkt. No. 208-1. Civil Local Rule 79-5 required the parties that produced the documents to state why they should be sealed, and propose ways of tailoring sealing to the narrowest possible scope. Plaintiffs and Realogy filed declarations to state why the documents they produced should be sealed. Dkt. Nos. 214, 215. Mojo filed a declaration to state why the documents in plaintiffs’ motion to seal, Dkt. No. 200, should be sealed, but failed to file a declaration to state why the documents in Realogy’s motion to seal, Dkt. No. 208, should be sealed. See Dkt. No. 213. WAVV Communications and PhoneBurner did not file declarations stating why the documents they produced should be sealed. Consequently, the only reason proffered for sealing WAVV and PhoneBurner’s documents, and some of Mojo’s documents, is that they were labeled as confidential during document production. This does not carry the burden of establishing grounds for sealing. In re Google Play Store Antitrust Litigation, 556 F. Supp. 3d at 1107. For the documents in plaintiffs’ motion to seal, Mojo said only that the documents it produced contained commercially sensitive information. See, e.g., Dkt. No. 213 ¶ 4. This wholly conclusory characterization also is not enough to warrant sealing. For its part, Realogy says that its documents are commercially sensitive and disclosure of the documents would provide competitors with an unfair advantage. Dkt. No. 214. The Court finds that Realogy has met its burden for a small subset of the sealing requests, and the Court’s rulings are stated in the attached chart. See Ex. A. The Court grants sealing for documents containing the names and addresses of Realogy’s contractors, who are not parties to this suit and 1 for Realogy’s independent contractor agreements, which include information about compensation 2 structure and other details of Realogy’s relationship with its independent contractors. The Court 3 declines to seal Realogy’s training materials and Do Not Call Policies, because Realogy fails to 4 demonstrate a plausible risk to its business from disclosure of those documents. 5 As for plaintiffs, they adequately showed that their documents contained sensitive personal 6 information and call records. Dkt. No. 215-1 □□ 7-8. Plaintiffs also demonstrated that one of their 7 documents contained confidential business information of Class Experts Group, the company 8 owned by plaintiffs’ expert witness, that included information about the company’s relationship 9 with LexisNexis. 10 The “default posture of public access prevails” for the documents that the Court declines to 11 seal. In re Google Play Store Antitrust Litigation, 556 F. Supp. 3d at 1107 (quoting Kamakana, 12 447 F.3d at 1182). Plaintiffs and Realogy are directed to file unredacted versions of the 13 documents on ECF within 7 days of this order. Civil L.R. 79-5(f). IT IS SO ORDERED. 3 15 Dated: August 22, 2022 16
MY JAMES JPONATO Z 18 United ftates District Judge 19 20 21 22 23 24 25 26 27 28
Document Information sought Proffered Reason for Ruling to be sealed Sealing MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST REAOLOGY Plaintiffs’ Page 3/Lines 10-11, Describes and quotes Denied. Motion for 20-21, 25, 26 other documents Partial Page 4/Lines 3, 6-7, identified for sealing. Summary 13, 14, 17, 18-19, 21- Judgment 22 Against the Page 5/Lines 12-13, Realogy 21-23, 24-26 Defendants, Page 6/Lines 4, 5-6, 6- Dkt. No. 198 7, 16-17, 18-20, 21-23, 24, 25-27 Page 7/ Lines 2, 3, 4, 6, 10-11, 11-12, 12-13, 13-14, 22, 23-24 Page 8/ Lines 3, 4-5, 5- 6, 6-7, 7-8, 8-9, 9-10, 11, 12-13, 19-21, 23 Page 9/Lines 5, 6, 11, 22, 27-28 Page 10/Lines 7-8 Page 11/Line 4 Page 15/Lines 18, 19- 20, 24 Page 16/Lines 2, 3, 4, 6 Page 17/Lines 12, 13, 18, 19-20, 22-24 Page 19/Lines 21, 22, 26 Page 20/Lines 7-9, 9- 12, 12-14 Page 21/Lines 18-20, 20-22, 27-28 Page 22/Lines 4-5 Document Information sought Proffered Reason for Ruling to be sealed Sealing Excerpts of Entire document Despite Realogy Denied. June 10, 2021 designating the deposition of document as Wendy Crane, confidential, Realogy Dkt. No. does not believe any 198-3 portion should be sealed. (See Dkt. No. 214 at 3) Excerpts of Entire document Contains Granted. The document RBG005013A commercially sensitive contains the names and Dkt. No. information, including addresses of several 198-4 details regarding the Realogy agents who are not affiliation of parties to this suit, and independent contractor whose personal information salespersons, including and privacy should not be names, addresses, disclosed. dates of affiliation, and type of affiliation. Would be valuable to competitors for recruiting activities. (See Dkt. No. 214 at 5) Excerpts of Plaintiffs designated Discusses Denied. April 6, 2021 the entire document commercially sensitive Deposition of for sealing, but information about Cathleen Realogy says that only Realogy’s business, Livingstone, the following portions particularly their Dkt. No. should be redacted: affiliation processes, 198-7 205:7-18, 208:22- relationships with 209:1, 214:15-215:1, sales associates, and 223:1-8 Do Not Call policy. (See Dkt. No. 214 at 8- 10) Words that Plaintiffs designated Contains Denied. Work, Dkt. the entire document, commercially sensitive No. 198-8 but Realogy says that information regarding only the attachment, Realogy’s educational not the accompanying and training materials, email should be sealed which would allow competitors an unfair advantage by not having to prepare their Document Information sought Proffered Reason for Ruling to be sealed Sealing own materials. (See Dkt. No. 214 at 10) Form Entire document Contains Granted. The document Contracts, commercially sensitive contains sensitive Dkt. No. information, including information about 198-9 information regarding Realogy’s contracts with the affiliation of their sales associates, independent contractor including compensation salespersons, and form and terms of the agreements used in independent contractor connection with the relationship. onboarding process, compensation, commissions, and legal assistance. Disclosure would allow competitors an unfair advantage with respect to their relationships with independent contractors. (See Dkt. No. 214 at 11) DNC policy Entire document Contains Denied. updated commercially sensitive March 2015, information about the Dkt. No. Do Not Call policy 198-12 that would provide competitors an unfair advantage by not having to prepare their own policy. (See Dkt. No. 214 at 12) Do Not Entire document Contains Denied. Contact policy commercially sensitive updated 2018, information about the Dkt. No. Do Not Call policy 198-13 that would provide competitors an unfair Document Information sought Proffered Reason for Ruling to be sealed Sealing having to prepare their own policy. (See Dkt. No. 214 at 12) Do Not Entire document Contains Denied. Contact commercially sensitive Policy information about the updated April Do Not Call policy 2019, Dkt. that would provide No. 198-14 competitors an unfair advantage by not having to prepare their own policy. (See Dkt. No. 214 at 13) Excerpts of Plaintiffs designated Contains specific Denied. April 12, 2021 the entire document, questions about the Do deposition of but Realogy says only Not Call policies that Lynn 45:6-25 and 49:14-23 Realogy seeks to have Murtagh, Dkt. should be sealed. sealed, and affiliation No. 198-15 related materials. Disclosure would give competitors an unfair advantage by not having to prepare their own policies and processes. (See Dkt. No. 214 at 14-15) DC Policy Entire document Contains Granted. The document Manual, Dkt. commercially sensitive contains sensitive No. 198-16 information about the information about affiliation process for Realogy’s contracts with independent contractor their sales associates, sales associates, including compensation compensation, and terms of the commissions, and independent contractor legal assistance. relationship. Disclosure would allow competitors an unfair advantage with respect to their relationships with independent Document Information sought Proffered Reason for Ruling to be sealed Sealing contractors. (See Dkt. No. 214 at 15-16) Get NEW Entire document Contains Denied. Business commercially sensitive NOW, Dkt. information about No. 198-17 educational and training information. Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 16) Excerpts of Entire document Despite Realogy Denied. April 19, 2021 designating the Deposition of document as Charles confidential, Realogy Cusson, Dkt. does not believe any No. 198-18 portion should be sealed. Dkt. No. 214 at 17. Coldwell Entire document Contains Denied. Banker commercially sensitive Listing information about Presentation educational and Guide, Dkt. training information. No. 198-19 Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 17) Get Ready, Entire document Contains Denied. Dkt. No. commercially sensitive 198-20 information about educational and training information. Disclosure would give competitors an unfair Document Information sought Proffered Reason for Ruling to be sealed Sealing having to prepare their own training materials. (See Dkt. No. 214 at 17-18) CB_New Entire document Contains Denied. Agent commercially sensitive Orientation_2 information about 020, Dkt. No. educational and 198-21 training information. Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 18) Dialogue Entire document Contains Denied. Daze, Dkt. commercially sensitive No. 198-22 information about educational and training information. Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 18-19) Building Your Entire document Contains Denied. Business, Dkt. commercially sensitive No. 198-23 information about educational and training information. Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 19) Getting Ready Entire document Contains Denied. Document Information sought Proffered Reason for Ruling to be sealed Sealing Build your information about Business! educational and Prospecting training information. Worksheet, Disclosure would give Dkt. No. competitors an unfair 198-24 advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 19-20) Lead Entire document Contains Denied. Generation commercially sensitive 2015, Dkt. information about No. 198-25 educational and training information. Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 20) Mojo Sales Entire document Contains sensitive Denied. Team information about Training Mojo’s operations, Manual, Dkt. procedures, policies, No. 198-26 products, and business decisions, including profits, employee training, and customer interaction strategies. Disclosure would provide competitors an unfair advantage by copying Mojo’s practices. (See Dkt. No. 213 ¶ 4) Excerpts of Entire document Contains sensitive Denied. March 17, information about 2021 Mojo’s operations, Deposition of procedures, policies, Davis products, and business Document Information sought Proffered Reason for Ruling to be sealed Sealing Mangold, Dkt. decisions, including No. 198-27 profits, employee training, and customer interaction strategies. Disclosure would provide competitors an unfair advantage by copying Mojo’s practices. (See Dkt. No. 213 ¶ 4) Mojo Data Entire document Contains sensitive Denied. Layout 2019, information about Dkt. No. Mojo’s operations, 198-28 procedures, policies, products, and business decisions, including profits, employee training, and customer interaction strategies. Disclosure would provide competitors an unfair advantage by copying Mojo’s practices. (See Dkt. No. 213 ¶ 4) Declaration of Entire document WAVV Denied. Spencer Communications did Harman, Dkt. not provide any reason No. 198-32 why the documents should be sealed. Declaration of Entire document PhoneBurner, Inc. did Denied. Paul Rydell, not provide any reason Dkt. No. why the documents 198-33 should be sealed. Excerpts of Plaintiffs designated Contains sensitive Denied. April 15, 2021 the entire document information about the deposition of for sealing, but Do Not Call Policy David Metten, Realogy says only and affiliation related Dkt. No. 173:7-25 should be form materials. 198-35 redacted. Disclosure would give competitors an unfair Document Information sought Proffered Reason for Ruling to be sealed Sealing having to prepare their own policies and processes. (See Dkt. No. 214 at 20-21) CB Bootcamp Entire document Contains Denied. Lead commercially sensitive Generation: information about Farming & educational and Expireds, Dkt. training information. No. 198-36 Disclosure would give competitors an unfair advantage by not having to prepare their own training materials. (See Dkt. No. 214 at 21-22) MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST MOJO Plaintiffs’ Page 2/Lines 5-6, 8- Describes and quotes Denied. Motion for 11, 11-13, 14-17, 25-27 other documents Partial Page 3/Lines 1-2, 17- identified for sealing. Summary 19, 21-24, 28 Judgment Page 4/Lines 1-5, 6-8, Against Mojo, 12-16, 18-19, 21-22 Dkt. No. 201 Page 6/Lines 15-16, 18-20, 25-26, 26-28 Page 7/Lines 1-2, 3-4, 5-8, 8-9, 10-12, 12-13, 13-16, 17-18 Page 11/Lines 11-14, 19-20, 21, 22, 23-25, 25-26 Page 12/Lines 7-9, 18, 27-28 Page 13/Lines 1, 5-8, 9-10, 11-13, 13-14, 15- 17, 17-19 Excerpts from Entire documents Contains sensitive Denied. Not narrowly March 17, information about tailored redactions. 2021 Davis Mojo’s operations, Mangold procedures, policies, Deposition products, and business Document Information sought Proffered Reason for Ruling to be sealed Sealing to Deposition, profits, employee Dkt. Nos. training, and customer 200-33 interaction strategies. through 200- Disclosure would 47 provide competitors an unfair advantage by copying Mojo’s practices. (See Dkt. No. 213 ¶ 4) REALOGY’S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT Exhibit A to Entire Document Contains Granted. The document Exhibit 1 of commercially sensitive contains sensitive Declaration in information about the information about support of affiliation process for Realogy’s contracts with Realogy’s independent contractor their sales associates, Motion for sales associates, including compensation Summary compensation, and terms of the Judgment, commissions, and independent contractor Dkt. No. 205- legal assistance. relationship. 1 at ECF 17 Disclosure would allow competitors an unfair advantage with respect to their relationships with independent contractors. (See Dkt. No. 207-1 ¶ 3) Exhibit B to Entire Document Contains Granted. The document Exhibit 1 of commercially sensitive contains sensitive Declaration in information about the information about support of affiliation process for Realogy’s contracts with Realogy’s independent contractor their sales associates, Motion for sales associates, including compensation Summary compensation, and terms of the Judgment, commissions, and independent contractor Dkt. No. 205- legal assistance. relationship. 1 at ECF 17 Disclosure would allow competitors an unfair advantage with respect to their relationships with Document Information sought Proffered Reason for Ruling to be sealed Sealing independent contractors. (See Dkt. No. 207-1 ¶ 4) Exhibit C to Entire Document Contains Granted. The document Exhibit 1 of commercially sensitive contains sensitive Declaration in information about the information about support of affiliation process for Realogy’s contracts with Realogy’s independent contractor their sales associates, Motion for sales associates, including compensation Summary compensation, and terms of the Judgment, commissions, and independent contractor Dkt. No. 205- legal assistance. relationship. 1 at ECF 17 Disclosure would allow competitors an unfair advantage with respect to their relationships with independent contractors. (See Dkt. No. 207-1 ¶ 5) Exhibit D to Entire Document Contains Denied. Exhibit 1 of commercially sensitive Declaration in information about the support of Do Not Call Policy, Realogy’s and would give Motion for competitors an unfair Summary advantage in not Judgment, having to prepare their Dkt. No. 205- own policies. (See 1 at ECF 17 Dkt. No. 207-1 ¶ 6) Exhibit E to Entire Document Contains Denied. Exhibit 1 of commercially sensitive Declaration in information about the support of Do Not Call Policy, Realogy’s and would give Motion for competitors an unfair Summary advantage in not Judgment, having to prepare their Dkt. No. 205- own policies. (See 1 at ECF 17 Dkt. No. 207-1 ¶ 7) Exhibit F to Entire Document Contains Denied. Document Information sought Proffered Reason for Ruling to be sealed Sealing Declaration in information about the support of Do Not Call Policy, Realogy’s and would give Motion for competitors an unfair Summary advantage in not Judgment, having to prepare their Dkt. No. 205- own policies. (See 1 at ECF 17 Dkt. No. 207-1 ¶ 8) Exhibit G to Entire Document Contains Denied. Exhibit 1 of commercially sensitive Declaration in information about the support of Do Not Call Policy Realogy’s and affiliation, and Motion for would give Summary competitors an unfair Judgment, advantage in not Dkt. No. 205- having to prepare their 1 at ECF 17 own policies. (See Dkt. No. 207-1 ¶ 9) Exhibit H to Entire Document Contains Denied. Exhibit 1 of commercially sensitive Declaration in information about the support of Do Not Call Policy Realogy’s and affiliation, and Motion for would give Summary competitors an unfair Judgment, advantage in not Dkt. No. 205- having to prepare their 1 at ECF 17 own policies. (See Dkt. No. 207-1 ¶ 10) Exhibit I to Entire Document Contains Denied. Exhibit 1 of commercially sensitive Declaration in information about the support of Do Not Call Policy Realogy’s and affiliation, and Motion for would give Summary competitors an unfair Judgment, advantage in not Dkt. No. 205- having to prepare their 1 at ECF 17 own policies. (See Dkt. No. 207-1 ¶ 11) Document Information sought Proffered Reason for Ruling to be sealed Sealing Exhibit 16 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 234 Exhibit 17 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 235 Exhibit 18 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 236 Exhibit 19 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 237 Exhibit 20 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Document Information sought Proffered Reason for Ruling to be sealed Sealing Judgment, Dkt. No. 205- 1 at ECF 238 Exhibit 21 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 239 Exhibit 22 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 240 Exhibit 32 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 2) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 381 Exhibit 34 of Entire Document Contains sensitive Granted. Contains Declaration in personal information. personal phone records of support of (See Dkt. No. 215-1 at plaintiff suing over privacy Realogy’s 3) interests. Motion for Summary Judgment, Dkt. No. 205- 1 at ECF 420 Exhibit 38 of Entire Document Contains information Denied. Document Information sought Proffered Reason for Ruling to be sealed Sealing support of confidential by third- Realogy’s party PhoneBurner. Motion for (See Dkt. No. 208 Summary ¶ 10) Judgment, Dkt. No. 205- 1 at ECF 427 Exhibit 39 of Entire Document Contains information Denied. Declaration in designated as support of confidential by third- Realogy’s party PhoneBurner. Motion for (See Dkt. No. 208 Summary ¶ 11) Judgment, Dkt. No. 205- 1 at ECF 428 Exhibit 40 of Entire Document Contains information Denied. Declaration in designated as support of confidential by Mojo. Realogy’s (See Dkt. No. 208 Motion for ¶ 12) Summary Judgment, Dkt. No. 205- 1 at ECF 429 REALOGY’S DAUBERT MOTION Exhibit 11 of Entire Document Contains information Denied. Declaration in designated as support of confidential by Mojo Realogy’s and third parties Daubert PhoneBurner and Motion, Dkt. WAVV No. 206-1 at Communications. ECF 306 (See Dkt. No. 208 ¶ 13) Exhibit 15 of Entire Document Contains information Denied. Declaration in designated as support of confidential by third Realogy’s party PhoneBurner. Daubert (See Dkt. No. 208 Document Information sought Proffered Reason for Ruling to be sealed Sealing No. 206-1 at ECF 401 Exhibit 16 of Entire Document Contains information Denied. Declaration in designated as support of confidential by third Realogy’s party WAVV Daubert Communications. Motion, Dkt. (See Dkt. No. 208 No. 206-1 at ¶ 15) ECF 402 Exhibit 25 of Entire Document Contains confidential Granted. The document Declaration in business information contains confidential support of of plaintiffs’ expert information about the Realogy’s witness’s company, relationship between Class Daubert Class Expert Group, Expert Group and Lexis Motion, Dkt. pertaining to the Nexis. No. 206-1 at company’s contractual ECF 570 relationship with Lexis Nexis. (See Dkt. No. 215 ¶ 11)