Fishon v. Peloton Interactive, Inc.

Opinion

New York, New York 10020-1401 The motion is GRANTED with _ Tel: +1.212.906.1200 Fax: +1.212.751.4864 one exception: Eric Fishon's www-lw.com name appearing at Defendant's —_FIRM/ AFFILIATE OFFICES Exhibit 29 (filed originally at Dkt. nein vos No. 142-1) shall be unredacted. necton Monon. All other requested redactions —_ Brussels New York January 28, 2022 and requests to file under seal are cree a County approved, Dubai Riyadh Dusseldorf San Diego SO ORDERED, 4 of rrenkt an Francisco am. a PO Pics, Hong Kong Shanghai ee Lewis 7 LIMAN = Houston Silicon Valley VIA ECF United States District Judge London Singapore Los Angeles Tokyo The Honorable Lewis J. Liman 2/1/2022 Madrid Washington, D.C. United States District Court Judge Southern District of New York 500 Pearl Street, Courtroom 15C New York, New York 10007

Re: Fishon v. Peloton Interactive, Inc., Case No. 1:19-cv-11711 (S.D.N.Y.) — Joint Renewed Letter Motion to File Certain Documents Under Seal Dear Judge Liman, The Parties submit this joint letter motion pursuant to Rule 2(G) of the Court’s Individual Practices in Civil Cases and the Court’s January 21, 2022 Order, ECF No. 169 (the “Order’’), to respectfully request permission to seal and file in redacted form certain documents that the Parties previously filed in conjunction with the Declarations of Alex J. Dravillas in Support of Plaintiffs’ Motion for Class Certification, ECF No. 130; in Support of Plaintiffs’ Reply in Support of Class Certification, ECF No. 153; and in Opposition to Defendant’s Motion to Exclude the Testimony of Plaintiffs’ Experts, ECF No. 157; the Declaration of Megan A. Behrman in Support of Peloton Interactive, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification and in support of Peloton’s Motion to Exclude the Testimony of Plaintiffs’ Experts, ECF Nos. 141, 143; and the declarations of the Parties’ experts, ECF Nos. 121, 132, 134, 148, and 159 (collectively, the “Confidential Documents”). ! 1. THE NEWLY PROPOSED REDACTIONS ARE NARROWLY TAILORED TO PROTECT HIGHLY SENSITIVE INFORMATION The presumptive right to access judicial documents is not absolute. See, e.g., Nixon v. Warner Commce’ns, Inc., 435 U.S. 589, 599 (1978). Rather, courts may exercise “discretion in

' Because each Party has filed documents that the other produced in discovery and believes should be kept confidential, the Parties submit this motion jointly to facilitate the Court’s review. Plaintiffs do not object to Peloton’s requests for confidentiality, and Peloton does not object to Plaintiffs’.

determining whether good cause exists to overcome the presumption of open access to documents filed . . . .” Geller v. Branic Int’l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000). In evaluating a party’s request to file under seal, courts balance the competing interests of the presumption of public access to judicial documents against “countervailing factors,” including the “privacy interests of those resisting disclosure.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119- 120 (2d Cir. 2006). Consistent with the principles set forth in Lugosch, the Parties seek to redact or seal documents to protect information for which they believe there is good cause to shield information from public disclosure. Neither Peloton nor Plaintiffs take any position on the other side’s proposals that documents be redacted or remain entirely under seal. A. Peloton’s Request to Redact / Seal Confidential And Proprietary Business Information That, If Made Public, Would Commercially Or Competitively Disadvantage Peloton. Courts regularly find that “documents that contain trade secrets, confidential research and development information, marketing plans, revenue information, pricing information, and the like satisfy the sealing standard.” Kewazinga Corp. v. Microsoft Corp., 2021 WL 1222122, at *3 (S.D.N.Y. Mar. 31, 2021) (citation omitted). Indeed, protecting sensitive business information is among the “‘higher values’ consistently recognized by courts in this Circuit” as a “‘countervailing factor’ that can prevail over the presumption of public access.” CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2021 WL 4135007, at *4 (S.D.N.Y. Sept. 10, 2021); see also GoSmile, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50 (S.D.N.Y. 2011) (sealing documents containing proprietary material concerning the party’s marketing strategies, product development, costs and budgeting). The Court has already permitted the redaction of portions of the Parties’ submissions that reflect Peloton’s sensitive and proprietary business information. See Order at 1 (permitting certain redactions of ECF Nos. 119, 136, and 151). Consistent with the Court’s Order, Peloton proposes limited, narrowly tailored redactions of the following documents to protect the same kinds of highly sensitive business information: Peloton’s Proposed Redactions Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions2 Confidential consumer & market 13-14, 47, 53, 56-57, research; sensitive financial and Def.’s Declaration of Bruce A 62-65, 79-80, 82-85, 91- business data, including pricing Strombom, PhD (ECF No. 132 93, 96-100, 103, 105, and budgeting, and competitor & 148) 107-08 analysis

2 References are to PDF page numbers. Peloton’s Proposed Redactions Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions2 Confidential consumer & market research; sensitive financial and Def.’s Decl. of Rebecca Kirk 11, 35-37 business data, including pricing Fair (ECF No. 134) and budgeting Sensitive financial and business data, including pricing and Def.’s Ex. 3 (ECF No. 141-1) 2 budgeting, competitor analysis, and product development Confidential consumer & market 7-8, 10, 17-18, 20, 28, research; confidential brand 33, 35-39, 41, 44, 49-52, strategy & marketing plans; Def.’s Ex. 6 (ECF No. 141-2) 55-58, 60, 64, 67-74, 76, Sensitive financial and business 78, 82, 89-95, 97-105, data, including financial 108, 110-12, 119-21 projections Sensitive financial and business data, including pricing and Def.’s Ex. 12 (ECF No. 141-6) 17-18 budgeting, competitor analysis, and product development Sensitive financial and business data, including pricing and Def.’s Ex. 14 (ECF No. 141-7) 2 budgeting, competitor analysis, and product development Confidential brand strategy & Defs’ Ex. 15 (ECF No. 141-8) 2 marketing plans Confidential consumer & market 5-7, 9-15, 17-29, 31-33, Def.’s Ex. 28 (ECF No. 141-16) research 35-41, 43-48, 50-69 Confidential consumer & market 5, 8-11, 13, 16-24, 26, Def.’s Ex. 40 (ECF No. 143-4) research 29-33, 35-41 Confidential consumer & market Pls.’ Declaration of Colin B. 4-5 research Weir (ECF No. 121) Peloton’s Proposed Redactions Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions2 Confidential consumer & market Pls.’ Reply Declaration of Colin research; sensitive financial and 25, 177-78, 183-84 B. Weir (ECF No. 159) business data Confidential consumer & market Pls.’ Ex. 2 (ECF Nos. 126-2; 8-9 research 130-2) Sensitive business data (website Pls.’ Ex. 14 (ECF Nos. 126-14; 2 code) 130-15) Confidential consumer & market Pls.’ Ex. 15 (ECF Nos. 126-15; 7-8 research 130-16) 5, 8, 10-13, 15, 17-18, Confidential consumer & market Pls.’ Ex. 16 (ECF Nos. 126-16; 20-22, 24-25, 27-30, 33- research 130-17) 48, 50-55 Confidential consumer & market Pls.’ Ex. 17 (ECF Nos. 126-17; 5, 8-11, 13,16-31, 33, research 130-18) 36-40, 42-49 Pls.’ Ex. 18 (ECF Nos. 126-18; Sensitive branding data 3 130-19) Sensitive financial and business data, including pricing and Pls.’ Ex. 23 (ECF Nos. 126-23; 1 budgeting, competitor analysis, 130-24) and product development Sensitive marketing information, Pls.’ Ex. 25 (ECF Nos. 126-25; 5-6, 8-19, 21-23, 25-36, including results from surveys. 130-26) 38-39 Sensitive marketing information, specifically discussing segments Pls.’ Ex. 29 (ECF Nos. 126-29; of targeted market; sensitive 3-5 130-30) business information regarding terms of a contract. Confidential consumer & market research; confidential brand Pls.’ Ex. 1 (ECF No. 153-1) 4-5, 12 strategy & marketing plans Peloton’s Proposed Redactions Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions2 Confidential consumer & market Pls.’ Ex. 2 (ECF No. 153-2) 4-5 research Sensitive business data (website Pls.’ Ex. 3 (ECF No. 153-3) 2 code) Confidential consumer & market research; sensitive financial and Pls.’ Ex. 6 (ECF No. 153-6) 3-4, 7-8 business data Confidential consumer & market Pls.’ Ex. 3 (ECF No. 157-3) 4-5 research Confidential consumer & market Pls.’ Ex. 4 (ECF No. 157-4) 4-5 research

Additionally, because the confidential information reflected on certain documents cannot be redacted in such a way as to leave anything meaningful available to the public, Peloton respectfully requests that the following submissions remain fully under seal. Peloton’s Proposed Documents to Remain Under Seal Protected Information Exhibit No. (ECF No. of Prior Filing) Proprietary business data (website code) Pls.’ Ex. 4 (ECF Nos. 126-4; 130-4; 130-5) Proprietary business data (website code) Pls.’ Ex. 5 (ECF Nos. 126-5; 130-6) Proprietary business data (website code) Pls.’ Ex. 7 (ECF Nos. 126-7; 130-8) Proprietary business data (website code) Pls.’ Ex. 8 (ECF Nos. 126-8; 130-9) Confidential brand strategy and marketing Pls.’ Ex. 13 (ECF Nos. 126-13; 130-14) plans Sensitive financial and business data, including pricing and budgeting, competitor Pls.’ Ex. 26 (ECF Nos. 126-26; 130-27) analysis, and product development Peloton submits that the proposed redactions and sealing requests are appropriate, consistent with the Court’s directive, and necessary to protect Peloton’s commercially sensitive business information, the public disclosure of which would be damaging to Peloton’s competitive position. B. Peloton’s and Plaintiffs’ Proposed Redactions of the Non-Relevant Private Information of Individuals. Courts within this Circuit regularly permit the redaction of an individual’s personal information, such as medical information, personal e-mail address, home address, phone number, and other similar personal identifiable information that is irrelevant to the underlying dispute. See, e.g., Cohen v. Gerson Lehrman Grp., Inc., 2011 WL 4336679, at *2 (S.D.N.Y. Sept. 15, 2011) (permitting the redaction of individuals’ e-mail addresses, home addresses, and phone numbers); Online Payment Sols. Inc. v. Svenska Handelsbanken AB, 638 F. Supp. 2d 375, 384 n.4 (S.D.N.Y. 2009) (deeming it “improper to file publicly names, e-mail addresses, phone numbers, and the IP addresses of individuals who are not parties to this suit and who did not give permission for such public filing”); see also Palomo v. DeMaio, 2018 WL 5113133, at *2 (N.D.N.Y. Oct. 19, 2018) (ordering redaction of “personal identifying information, email addresses, mailing addresses, and phone numbers not already public”). Consistent with this case law and to protect the privacy interests of certain party and non- party individuals, the Parties propose the following limited redactions: PELOTON’S PROPOSED REDACTIONS Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions3 Medical information pertaining to the child of a former Peloton Def.’s Ex. 42 (ECF No. 143-6) 7 employee

PLAINTIFFS’ PROPOSED REDACTIONS Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions4 2-4, 7-10, 13-14, 16-17, 19-20, 25, 30, 34, 38, Named Plaintiffs’ personal Def.’s Ex. 33 (ECF No. 143-1) 40-41, 43-45, 48-50, identifiable information 52-53, 55, 58, 66, 68- 70, 72, 74, 75-76

3 References are to PDF page numbers. 4 References are to PDF page numbers. PLAINTIFFS’ PROPOSED REDACTIONS Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions4 Non-parties’ personal Def.’s Ex. 37 (ECF No. 143-2) 2-3. identifiable information Non-parties’ personal Def.’s Ex. 42 (ECF No. 143-6) 2-5, 7, 12-13, 15, 25-33 identifiable information Non-parties’ personal Def.’s Ex. 43 (ECF No. 143-7) 2 identifiable information Non-parties’ personal Def.’s Ex. 44 (ECF No. 143-8) 2-4 identifiable information Named Plaintiffs’ personal Def.’s Ex. 46 (ECF No. 143-9) 2-3 identifiable information Named Plaintiffs’ personal Def.’s Ex. 47 (ECF No. 143-10) 2-4 identifiable information Named Plaintiffs’ personal identifiable information; non- Def.’s Ex. 48 (ECF No. 143-11) 3, 6-7 parties’ personal identifiable information Named Plaintiffs’ personal Def.’s Ex. 49 (ECF No. 143-12) 2-3 identifiable information Named Plaintiffs’ personal Def.’s Ex. 50 (ECF No. 143-13) 2-3 identifiable information Named Plaintiffs’ personal identifiable information; Non- Def.’s Ex. 51 (ECF No. 143-14) 3, 8-9 parties’ personal identifiable information

Plaintiffs also request that two documents previously filed publicly now be redacted, because such documents contain a Named Plaintiffs’ personal email address (ECF Nos. 142-1, 142-3, Def.s’ Exs. 29, 31). The Parties contacted the ECF Help Desk on January 28, 2022 regarding these documents, and the clerk has temporarily sealed them. Plaintiffs now propose limited redactions of protected information therein: PLAINTIFFS’ PROPOSED REDACTIONS Exhibit No. (ECF No. of Prior Location of Proposed Protected Information Filing) Redactions5 Named Plaintiffs’ personal Def.’s Ex. 29 (ECF No. 142-1) 2 identifiable information Named Plaintiffs’ personal Def.’s Ex. 29 (ECF No. 142-3) 2-3 identifiable information

II. CONCLUSION The Parties respectfully requests that the Court permit the proposed redaction and sealing of the foregoing documents. In accordance with the Court’s Individual Practices in Civil Cases, each Party will file through the ECF system their respective documents with the proposed redactions applied and will simultaneously file under seal a copy of the documents with the proposed redactions highlighted. For completeness, the Parties do not oppose the unsealing of the remaining exhibits the Parties previously sought to file under seal, see ECF Nos. 116, 131, 149, and 160:  Defendant’s Exhibits: o ECF No. 133 – Declaration of Joel H. Steckel o ECF No. 141-3 – Def.’s Ex. 7 o ECF No. 141-4 – Def.’s Ex. 8 o ECF No. 141-5 – Def.’s Ex. 9 o ECF No. 141-9 – Def.’s Ex. 17 o ECF No. 141-10 – Def.’s Ex. 18 o ECF No. 141-11 – Def.’s Ex. 19 o ECF No. 141-12 – Def.’s Ex. 20 o ECF No. 141-13 – Def.’s Ex. 21 o ECF No. 141-14 – Def.’s Ex. 24 o ECF No. 141-15 – Def.’s Ex. 27 o ECF No. 143-3 – Def.’s Ex. 38 o ECF No. 143-5 – Def.’s Ex. 41

5 References are to PDF page numbers.  Plaintiffs’ Exhibits: o ECF No. 120 – Declaration of J. Michael Dennis o ECF No. 158 – Reply Declaration of Michael Dennis o ECF Nos. 126-1; 130-1 – Pls.’ Ex. 1 o ECF Nos. 126-3; 130-3 – Pls.’ Ex. 3 o ECF Nos. 126-6; 130-7 – Pls.’ Ex. 6 o ECF Nos. 126-9; 130-10 – Pls.’ Ex. 9 o ECF Nos. 126-10; 130-11 – Pls.’ Ex. 10 o ECF Nos. 126-11; 130-12 – Pls.’ Ex. 11 o ECF Nos. 126-12 ; 130-13 – Pls.’ Ex. 12 o ECF Nos. 126-19; 130-20 – Pls.’ Ex. 19 o ECF Nos. 126-20; 130-21 – Pls.’ Ex. 20 o ECF Nos. 126-21; 130-22 – Pls.’ Ex. 21 o ECF Nos. 126-22; 130-23 – Pls.’ Ex. 22 o ECF Nos. 126-24; 130-25 – Pls.’ Ex. 24 o ECF Nos. 126-31; 130-32 – Pls.’ Ex. 31 o ECF Nos. 126-32; 130-33 – Pls.’ Ex. 32 o ECF Nos. 126-33; 130-34 – Pls.’ Ex. 33 o ECF Nos. 126-34; 130-35 – Pls.’ Ex. 34 o ECF Nos. 126-36; 130-37 – Pls.’ Ex. 36 o ECF Nos. 126-37; 130-38 – Pls.’ Ex. 37 o ECF No. 153-4 – Pls.’ Ex. 4, o ECF No. 153-5 – Pls.’ Ex. 5 o ECF No. 153-7 – Pls.’ Ex. 8, o ECF No. 153-8 – Pls.’ Ex. 11 o ECF No. 153-9 – Pls.’ Ex. 12 o ECF No. 153-10 – Pls.’ Ex. 13 o ECF No. 153-11 – Pls.’ Ex. 14 o ECF No. 153-12 – Pls.’ Ex. 15 o ECF No. 153-13 – Pls.’ Ex. 18 o ECF No. 153-14 – Pls.’ Ex. 19 o ECF No. 157-1 – Pls.’ Ex. 1 o ECF No. 157-2 – Pls.’ Ex. 2 o ECF No. 157-5 – Pls.’ Ex. 5 Respectfully submitted, /s/ Steven N. Feldman Steven N. Feldman of Latham & Watkins LLP Attorneys for Peloton Interactive, Inc.

/s/ Adam J. Levitt Adam J. Levitt DiCello Levitt Gutzler LLC

Aaron M. Zigler Zigler Law Group, LLC

Benjamin J. Whiting Keller Lenkner LLC

Attorneys for Plaintiffs and the Proposed Class

cc: All Counsel of Record (via ECF)