DESMARAIS. www.desmaraisllp.com NEw YORK SAN FRANCISCO The motion to seal is GRANTED. The Clerk of Court is respectfully WASHINGTON, DC directed to maintain Dkt. Nos. 172 and 180 under seal, with acces limited to the parties listed in the Appendix at Dkt. No. 178, and t Via Electronic Filing close the motions at Dkt. Nos. 172, 175 and 178. Honorable Lorna G. Schofield United States District Court Dated: February 28, 2022 ; “fs J. □ -T Southern District of New York New York, New York Lora G. SCHOFIEL: 500 Pearl Street UNITED STATES DISTRICT JUDGE New York, New York 10007 Re: Kewazinga Corp. v. Google LLC, No. 1:20-cv-1106-LGS (S.D.N.Y.) Request to Seal and for Permission Redact Filings Related to Kewazinga’s Pre-Motion Letter and Google’s Responsive Letter Dear Honorable Judge Schofield: Google LLC respectfully requests permission to redact versions of its Response to Kewazinga’s Pre-Motion Letter (Dkt. 180) and Kewazinga’s Pre-Motion Letter (Dkt. 172)! (collectively “Letters”), with unredacted versions to be filed under seal. Google makes this request pursuant to the Local Rules of the Southern District of New York, The Notice Regarding Privacy and Public Access to Electronic Civil and Criminal Case Files of the Southern District of New York, and Your Honor’s Individual Rule I(D)(3). The Letters, and underlying documents, include highly confidential business information, third-party confidential information, personally identifying information, and information designated by Google as Confidential or Highly Confidential — Attorneys’ Eyes Only pursuant to the Protective Order in this case. (Dkt. 42.) Although “[t]he common law right of public access to judicial documents is firmly rooted in our nation’s history,” this right is not absolute, and courts “must balance competing considerations against” the presumption of access. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (internal quotation marks omitted); see also Nixon v. Warner Commce’ns., Inc., 435 U.S. 589, 599 (1978) (“[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”). Consistent with the Court’s decision to seal portions of the filings related to Google’s motion for summary judgment, filing the below-referenced documents under seal or in redacted form is necessary to prevent the unauthorized dissemination of the parties’ confidential business information. See Dkt. No. 70. In accordance with the Court’s Individual Rule I(D)(3), material that Google seeks to seal ishighlighted in yellow
' Although the Court granted Kewazinga’s Letter Motion to Seal (Dkt. 170) in its February 22, 2022 Order (Dkt. 176), Google has included Kewazinga’s Pre-Motion Letter in its request here for the sake of completeness.
February 25, 2022 Page 2
The Court Should Permit Google’s Narrowly-Tailored Redaction Requests The Second Circuit applies a three-step analysis to determine whether to place a document under seal. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 114 (2d Cir. 2006). First, the court determines whether the document at issue is a “judicial document” to which a presumption of access attaches. Lugosch, 435 F.3d at 119. Second, the court determines the weight of the presumption by considering “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. Third, the court balances the weight of the presumption against countervailing factors such as “the privacy interests of those resisting disclosure.” Id. at 120. Google does not dispute that the Letters submitted by the parties are judicial documents entitled to a rebuttable presumption of access. Google thus focuses on the second and third steps, i.e., balancing the weight of the presumption against Google’s countervailing interests in preventing competitive harm from public disclosure of its highly confidential business information and other privacy information. Google has strong countervailing interests in preventing competitive and other harms from public disclosure of its highly confidential business information and other private matters. See, e.g., Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 2008 WL 199537, at *7 (S.D.N.Y. Jan. 22, 2008) (“competitive injury to the defendants is . . . a sufficient basis to grant defendants’ motion to seal” (omission in original)); Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 154-55 (S.D.N.Y. 2015) (“countervailing factors include . . . business information that might harm a litigant’s competitive standing”). “[C]ategories of information requiring caution” under the Southern District of New York’s ECF Privacy Policy include “proprietary or trade secret information” as well as other privacy matters such as “personal identifying number[s].” Indeed, the Second Circuit has held that disclosure of sensitive information that would cause a competitive disadvantage can overcome the presumption of access. Standard Inv. Chartered, Inc. v. Fin. Indus. Regulatory Auth., Ind., 347 Fed. App’x. 615, 617 (2d Cir. 2009) (upholding a party’s “interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access”); see also Bergen Brunswig Corp. v. Ivax Corp., No. 97 CIV. 2003 (PKL), 1998 WL 113976, at *3 (S.D.N.Y. Mar. 12, 1998) (finding that courts have found good cause for permitting filing under seal where public filing would disclose commercially sensitive and confidential information); Lodging Sols. v. Miller, 19-cv- 10806-AJN, Dkt. 60 at 4 (S.D.N.Y. Jan. 16, 2019) (applying Lugosch and finding that the risk of competitive disadvantage and damage to privacy interests was of a higher value than the value to the public such that sealing was necessary). February 25, 2022 Page 3
Google’s Redaction Requests of References to Highly Confidential Information Google’s confidential financial, operational, and technical information describing its internal systems and technical details of Google Street View should remain non-public because it is part of Google’s core highly confidential business information. Likewise, references to such highly-confidential business information, and associated documents, in the Letters should be redacted. This Court recognizes that internal documents and unpublished drafts that contain non- public strategies and financial information constitute “confidential commercial information” under Federal Rule 26(c)(1)(g), particularly where the disclosing company is engaged in a highly competitive industry and deliberately has shielded such information from its competitors. New York v. Actavis, PLC, No. 14 CIV. 7473, 2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014) (citing Fox News Network v. U.S. Dep’t of Treas., 739 F. Supp. 2d 515, 571 (S.D.N.Y. 2010) (withholding draft containing proposed financial and risk reporting strategy); Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 415–416 (M.D.N.C.
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DESMARAIS. www.desmaraisllp.com NEw YORK SAN FRANCISCO The motion to seal is GRANTED. The Clerk of Court is respectfully WASHINGTON, DC directed to maintain Dkt. Nos. 172 and 180 under seal, with acces limited to the parties listed in the Appendix at Dkt. No. 178, and t Via Electronic Filing close the motions at Dkt. Nos. 172, 175 and 178. Honorable Lorna G. Schofield United States District Court Dated: February 28, 2022 ; “fs J. □ -T Southern District of New York New York, New York Lora G. SCHOFIEL: 500 Pearl Street UNITED STATES DISTRICT JUDGE New York, New York 10007 Re: Kewazinga Corp. v. Google LLC, No. 1:20-cv-1106-LGS (S.D.N.Y.) Request to Seal and for Permission Redact Filings Related to Kewazinga’s Pre-Motion Letter and Google’s Responsive Letter Dear Honorable Judge Schofield: Google LLC respectfully requests permission to redact versions of its Response to Kewazinga’s Pre-Motion Letter (Dkt. 180) and Kewazinga’s Pre-Motion Letter (Dkt. 172)! (collectively “Letters”), with unredacted versions to be filed under seal. Google makes this request pursuant to the Local Rules of the Southern District of New York, The Notice Regarding Privacy and Public Access to Electronic Civil and Criminal Case Files of the Southern District of New York, and Your Honor’s Individual Rule I(D)(3). The Letters, and underlying documents, include highly confidential business information, third-party confidential information, personally identifying information, and information designated by Google as Confidential or Highly Confidential — Attorneys’ Eyes Only pursuant to the Protective Order in this case. (Dkt. 42.) Although “[t]he common law right of public access to judicial documents is firmly rooted in our nation’s history,” this right is not absolute, and courts “must balance competing considerations against” the presumption of access. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (internal quotation marks omitted); see also Nixon v. Warner Commce’ns., Inc., 435 U.S. 589, 599 (1978) (“[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”). Consistent with the Court’s decision to seal portions of the filings related to Google’s motion for summary judgment, filing the below-referenced documents under seal or in redacted form is necessary to prevent the unauthorized dissemination of the parties’ confidential business information. See Dkt. No. 70. In accordance with the Court’s Individual Rule I(D)(3), material that Google seeks to seal ishighlighted in yellow
' Although the Court granted Kewazinga’s Letter Motion to Seal (Dkt. 170) in its February 22, 2022 Order (Dkt. 176), Google has included Kewazinga’s Pre-Motion Letter in its request here for the sake of completeness.
February 25, 2022 Page 2
The Court Should Permit Google’s Narrowly-Tailored Redaction Requests The Second Circuit applies a three-step analysis to determine whether to place a document under seal. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 114 (2d Cir. 2006). First, the court determines whether the document at issue is a “judicial document” to which a presumption of access attaches. Lugosch, 435 F.3d at 119. Second, the court determines the weight of the presumption by considering “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. Third, the court balances the weight of the presumption against countervailing factors such as “the privacy interests of those resisting disclosure.” Id. at 120. Google does not dispute that the Letters submitted by the parties are judicial documents entitled to a rebuttable presumption of access. Google thus focuses on the second and third steps, i.e., balancing the weight of the presumption against Google’s countervailing interests in preventing competitive harm from public disclosure of its highly confidential business information and other privacy information. Google has strong countervailing interests in preventing competitive and other harms from public disclosure of its highly confidential business information and other private matters. See, e.g., Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 2008 WL 199537, at *7 (S.D.N.Y. Jan. 22, 2008) (“competitive injury to the defendants is . . . a sufficient basis to grant defendants’ motion to seal” (omission in original)); Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 154-55 (S.D.N.Y. 2015) (“countervailing factors include . . . business information that might harm a litigant’s competitive standing”). “[C]ategories of information requiring caution” under the Southern District of New York’s ECF Privacy Policy include “proprietary or trade secret information” as well as other privacy matters such as “personal identifying number[s].” Indeed, the Second Circuit has held that disclosure of sensitive information that would cause a competitive disadvantage can overcome the presumption of access. Standard Inv. Chartered, Inc. v. Fin. Indus. Regulatory Auth., Ind., 347 Fed. App’x. 615, 617 (2d Cir. 2009) (upholding a party’s “interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access”); see also Bergen Brunswig Corp. v. Ivax Corp., No. 97 CIV. 2003 (PKL), 1998 WL 113976, at *3 (S.D.N.Y. Mar. 12, 1998) (finding that courts have found good cause for permitting filing under seal where public filing would disclose commercially sensitive and confidential information); Lodging Sols. v. Miller, 19-cv- 10806-AJN, Dkt. 60 at 4 (S.D.N.Y. Jan. 16, 2019) (applying Lugosch and finding that the risk of competitive disadvantage and damage to privacy interests was of a higher value than the value to the public such that sealing was necessary). February 25, 2022 Page 3
Google’s Redaction Requests of References to Highly Confidential Information Google’s confidential financial, operational, and technical information describing its internal systems and technical details of Google Street View should remain non-public because it is part of Google’s core highly confidential business information. Likewise, references to such highly-confidential business information, and associated documents, in the Letters should be redacted. This Court recognizes that internal documents and unpublished drafts that contain non- public strategies and financial information constitute “confidential commercial information” under Federal Rule 26(c)(1)(g), particularly where the disclosing company is engaged in a highly competitive industry and deliberately has shielded such information from its competitors. New York v. Actavis, PLC, No. 14 CIV. 7473, 2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014) (citing Fox News Network v. U.S. Dep’t of Treas., 739 F. Supp. 2d 515, 571 (S.D.N.Y. 2010) (withholding draft containing proposed financial and risk reporting strategy); Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 415–416 (M.D.N.C. 1991) (“Such commercial information, which encompasses strategies, techniques, goals and plans, can be the lifeblood of a business [and] may also be particularly deserving of protection if the disclosing corporation is vulnerable to competitors.”).) Particularly in this case, where a direct competitor is being sued by the same plaintiff on a competing product (see Kewazinga Corp. v. Microsoft Corp., Case No. 1:18-cv-04500-GHW (S.D.N.Y.)), the countervailing interests of preventing competitive harm is heightened. 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.”). The Court previously granted Google’s request to redact narrowly-tailored, specific references to Google’s core highly confidential business information and documents. (Dkt. Nos. 70, 137). Google seeks to redact similar, narrowly-tailored references contained in the Letters. As Stafford Marquardt, a Product Manager for Google Street View, attests, certain information contained in the Letters is Google’s highly confidential and competitively-sensitive proprietary information. (2/25/2022 Marquardt Decl. ¶¶ 5–7). Mr. Marquardt explains that both the financial and non-financial details of this document are confidential and sensitive. In addition, he details the many steps Google takes to keep this document confidential, including limiting access within Google, and implementing internal controls at Google. (Id.) Moreover, Mr. Marquardt explains that public disclosure would cause significant competitive harm to Google and place Google at competitive disadvantages, including by allowing competitors and prospective counterparties to access the confidential details of Google’s technology and systems, which they could use to gain an unfair advantage in future negotiations against Google or could leverage in negotiations against others. (Id.) Google requests that the Court redact references to confidential business information in the accompanying filings, as detailed below. February 25, 2022 Page 4
Document Filed Sections Google Seeks to Sections Google Does Not Seek Under Seal Seal/Redact to Seal/Redact Kewazinga’s Pre- Yellow highlighted portions at Yellow highlighted portions at Motion Letter (Dkt. Dkt. No. 172 at 2–3 under the Dkt. No. 172 at 3 under the No. 172) headings: User Metrics, User heading: Source Code Review. Fulfillment, and Street View Value. Google’s Response to Yellow highlighted portions at — Kewazinga’s Pre- Dkt. No. 180 under the headings: Motion Letter (Dkt. Google Search Revenue, API No. 180) Revenue, User Metrics, and User Fulfillment & Street View Value.
For the reasons above, Google respectfully requests that the Court seal and redact the portions of the Letters identified above. February 25, 2022 Page 5
Dated: February 25, 2022 Respectfully submitted, /s/ Ameet Modi John M. Desmarais jdesmarais@desmaraisllp.com Steven M. Balcof sbalcof@desmaraisllp.com Elizabeth Weyl eweyl@desmaraisllp.com Ryan Dowell rdowell@desmaraisllp.com DESMARAIS LLP 230 Park Avenue New York, New York 10169 Tel: (212) 351-3400 Fax: (212) 351-3401 Ameet A. Modi amodi@desmaraisllp.com Yong Wang (pro hac vice) lwang@desmaraisllp.com DESMARAIS LLP 101 California Street San Francisco, California 94111 Tel: (415) 573-1900 Fax: (415) 573-1901 Tuhin Ganguly (pro hac vice) tganguly@desmaraisllp.com DESMARAIS LLP 1701 Pennsylvania Avenue NW, Suite 200 Washington, D.C. 20006 Tel: (202) 451-4900 Fax: (202) 451-4901 Counsel for Defendant Google LLC February 25, 2022 Page 6
APPENDIX Pursuant to Your Honor’s Individual Rule I(D)(3), the parties identify below all parties and attorneys of record who should have access to the sealed documents: Ian G. DiBernardo John M. Desmarais Kenneth L. Stein jdesmarais@desmaraisllp.com Timothy J. Rousseau Steven M. Balcof Jason M. Sobel sbalcof@desmaraisllp.com Haroon Mian Elizabeth Weyl BROWN RUDNICK LLP eweyl@desmaraisllp.com 7 Times Square Ryan Dowell New York, New York 10036 rdowell@desmaraisllp.com Tel: (212) 209-4800 DESMARAIS LLP Fax: (212) 209-4801 230 Park Avenue idibernardo@brownrudnick.com New York, New York 10169 kstein@brownrudnick.com Tel: (212) 351-3400 trousseau@brownrudnick.com Fax: (212) 351-3401 JSobel@brownrudnick.com Ameet A. Modi HMian@brownrudnick.com amodi@desmaraisllp.com Yong Wang (pro hac vice) Timothy K. Gilman lwang@desmaraisllp.com Saunak K. Desai Gregory R. Springsted DESMARAIS LLP 101 California Street STROOCK & STROOCK & LAVAN LLP San Francisco, California 94111 180 Maiden Lane Tel: (415) 573-1900 New York, New York 10038 Fax: (415) 573-1901 Tel: (212) 806-5400 Fax: (212) 806-6006 Tuhin Ganguly (pro hac vice) tgilman@stroock.com tganguly@desmaraisllp.com sdesai@stroock.com DESMARAIS LLP gspringsted@stroock.com 1701 Pennsylvania Avenue NW, Suite 200 Washington, D.C. 20006 Tel: (202) 451-4900 Fax: (202) 451-4901 Counsel for Plaintiff Counsel for Kewazinga Corp. Defendant Google LLC