Gurminder Singh v. Google LLC

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 11 party has demonstrated compelling reasons warranting sealing where “confidential business 12 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 17 sealable material, and must conform with Civil L.R. 79-5(d).” Civil L.R. 79-5(b).1 Under Civil 18 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 23 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Id. 24 Where the moving party requests sealing of documents because they have been designated 25 26 1 The discussion of Civil L.R. 79-5 refers to the version of that rule that was in effect at the time 27 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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