Rivera v. Amazon Web Services Inc

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 AVELARDO RIVERA and YASMINE ROMERO, individually, and on behalf of all 10 others similarly situated, No. 2:22-CV-00269-JHC

11 Plaintiffs, AMAZON WEB SERVICES, INC.’S 12 v. UNOPPOSED MOTION TO FILE UNDER SEAL PROTECTED 13 MATERIAL IN SUPPORT OF ITS OPPOSITION TO PLAINTIFFS’ 14 AMAZON WEB SERVICES, INC., MOTION FOR LEAVE TO SERVE 15 FOUR ADDITIONAL Defendant. INTERROGATORIES AND ORDER 16 NOTED ON MOTION CALENDAR: 17 MARCH 25, 2024

18 19 20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION 2 Pursuant to Local Civil Rule 5(g) and the parties’ Stipulated Protective Order (Dkt. 55), 3 || defendant Amazon Web Services, Inc. (“AWS”) respectfully submits this Unopposed Motion to 4 || File Under Seal protected portions of, and exhibits to, AWS’s Response in Opposition to > || Plaintiffs’ Motion for Leave to Serve Four Additional Interrogatories on Defendant 6 (“Opposition”). 7 . . . AWS seeks to maintain under seal excerpts of its proprietary customer account list and 8 written discovery submitted with AWS’s Opposition that include information AWS has 9 designated as “Highly Confidential — Attorneys’ Eyes Only” under the Protective Order, as well 10 as portions of AWS’s Opposition that quote or refer to these documents. In particular, AWS 11 seeks to maintain under seal unredacted versions of the following documents:

“i 14 ||| Excerpts of a customer account list Declaration of Nicola Menaldo (“Menaldo produced in this case bearing Bates Decl.”), Ex. C 15 ||| identifier AWS 00008372 (“Partial 16 ||| Customer Account List”) 17 AWS’s Third Amended Answers and Menaldo Decl. Ex. F 18 Objections to Plaintiffs’ First Set of 19 Interrogatories (“A WS’s Interrogatory Responses”) 20 Portions of AWS’s Opposition Brief N/A 21 ||| (Opposition Brief”) 22 These documents contain the same types of information that the Court has already 23 |! concluded justify sealing. See Dkts. 112, 121, 169. Specifically, these documents contain 24 | information about customers that use certain Rekognition services and information about the 25 architecture and processes underlying AWS’s Rekognition service. These categories of 26 information are confidential, proprietary, and sensitive business information that, if disclosed to 27 II the public, would cause severe competitive and other harm to AWS’s Rekognition business. 28 MOTION TO FILE UNDER SEAL Perkins Coie LLP (NO. 2:22-CV-00269-JHC) - 2 1201 Third Avenue, Suite 4900 Seattle. Washington 98101-3099

1 II. CERTIFICATION PURSUANT TO LOCAL RULE 5(g)(3)(A) 2 Pursuant to Local Civil Rule 5(g)(3)(A), counsel for AWS, Justin Potesta and Mylan 3 Traylor, met and conferred with counsel for plaintiffs, Schuyler Ufkes of Edelson PC and Max S. 4 Roberts of Bursor & Fisher, P.A., via web conference on March 25, 2024, regarding the need to 5 file the above-referenced documents under seal, ways to minimize the content to be filed under 6 seal, and other alternatives to filing under seal. Plaintiffs do not oppose AWS’s motion to seal. 7 III. BACKGROUND AND SEALED MATERIALS 8 This case involves claims under the Illinois Biometric Information Privacy Act (“BIPA”) 9 in connection with AWS’s Rekognition technology. See Dkt. 88. Recognizing that confidential 10 and commercially sensitive information would likely be at issue in this case, the parties 11 submitted an agreed Protective Order, which permits the parties to designate certain documents, 12 testimony, and other discovery materials as “Confidential” and/or “Highly Confidential – 13 Attorneys’ Eyes Only,” and the Court entered it. See Dkt. 55. The Protective Order provides that 14 15 documents marked as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” shall not 16 be disclosed, with the exception of disclosure to a limited group of individuals. See id. at § 5. 17 AWS seeks to seal portions of documents that reveal two categories of proprietary and 18 sensitive information. 19 First, AWS seeks to seal a list of customer accounts that reflects various customers that 20 used certain Rekognition Application Programming Interface (“API”) functions. While AWS 21 publicly discloses the names of some of its customers, it does not disclose the names of all 22 customers, much less the precise Rekognition functions that each customer might use. Indeed, 23 AWS keeps this information secret, including through technical controls. See Simmons Decl. ¶ 4. 24 Disclosing this information could cause competitive harm to AWS. See id. This information is 25 included in the Partial Customer Account List and AWS’s Opposition Brief. 26 Second, AWS seeks to seal portions of documents that disclose information about the 27 architecture and processes underlying the Rekognition service. Disclosure of this non-public 28 1 information would reveal how the Rekognition service, including Compare Faces and Index 2 Faces, is structured and operates, as well as how AWS tests certain aspects of Rekognition. 3 Simmons Decl. ¶ 5. Disclosure of this information would cause AWS significant competitive 4 harm, as AWS competitors who gleaned insight into the non-public details of Rekognition’s 5 architecture and processes could potentially improve their own, competing services, and it could 6 provide bad actors with information that could assist them in circumventing AWS’s security 7 measures. Id. This category of information is included in the AWS’s Interrogatory Responses 8 and AWS’s Opposition Brief. 9 IV. LEGAL STANDARD 10 Although “[t]here is a strong presumption of public access to the court’s files,” Local 11 Civil Rule 5(g), that presumption may be overcome where, as here, the moving party has 12 “compelling reasons” to seal a document appended to a motion, In re Microsoft Xbox 360 13 Scratched Disc Litig., No. C07-1121-JCC, 2009 WL 481325, at *1 (W.D. Wash. Feb. 24, 2009); 14 15 Karpenski v. Am. Gen. Life Companies, LLC, No. C12- 1569RSM, 2013 WL 3191878, at *5 16 (W.D. Wash. June 20, 2013) (“[A] party seeking to seal a judicial record attached to a dispositive 17 motion or presented at trial must articulate ‘compelling reasons’ in favor of sealing.”). 18 Compelling reasons exist where “sealing is required to prevent judicial documents from 19 being used as sources of business information that might harm a litigant’s competitive standing.” 20 Karpenski, 2013 WL 3191878, at * 6 (internal quotations omitted); see also In re Elec. Arts, Inc., 21 298 F. App’x 568, 569 (9th Cir. 2008) (“[T]he common-law right of inspection has bowed before 22 the power of a court to insure that its records are not used . . . as sources of business information 23 that might harm a litigant’s competitive standing.” (quoting Nixon v. Warner Commc’ns, Inc., 24 435 U.S. 589, 598 (1978)); In re Microsoft XBox 360 Scratched Disc Litig., 2009 WL 481325, at 25 *1 (finding “compelling reasons” to seal “confidential business information” because “these 26 materials contain proprietary information that would cause Defendant competitive harm if 27 disclosed”). Sealing is particularly appropriate where sealed exhibits contain “confidential 28 1 business information regarding ... technical specifications and other attributes” that “would cause 2 Defendant competitive harm if disclosed.” In re Microsoft XBox 360 Scratched Disc Litig., 2009 3 WL 481325, at *1. And sealing is also appropriate where documents reveal customer names and 4 related information. See, e.g., Silver Fern Chem., Inc. v. Lyons, No. 2:23-CV-00775-TL, 2023 5 WL 4624477, at *2 (W.D. Wash. July 19, 2023) (permitting sealing of “customer identities and 6 their associated needs and transactions”); Johnstech Int’l Corp. v. JF Microtechnology SDN 7 BHD, No. 14-CV-02864-JD, 2016 WL 4091388, at *3 (N.D. Cal. Aug. 2, 2016) (permitting 8 redaction of “specific customer names”). 9 V. ARGUMENT 10 Compelling reasons exist to maintain under seal the confidential and proprietary 11 information contained in the documents described above. As referenced above, AWS does not 12 publicly disclose the relevant information regarding its customers or Rekognition’s underlying 13 architecture and processes. Indeed, AWS takes extensive measures to keep this information 14 secret, which include limiting employee access to much of this information via technical and 15 other controls. 16 Public disclosure of this information could cause significant harm to AWS in a variety of 17 ways. Allowing the public access to information about AWS’s customers that use certain 18 services and functionalities could “harm [AWS’s] competitive standing.” Continental Auto. Sys., 19 Inc. v. Avanci, LLC, 2019 WL 6612012, at *4 (N.D. Cal. Dec. 5, 2019) (citation omitted); see, 20 21 e.g., Johnstech Int’l Corp. v. JF Microtechnology SDN BHD, No. 14-CV-02864-JD, 2016 WL 22 4091388, at *3 (N.D. Cal. Aug. 2, 2016); see also Simmons Decl. ¶¶ 4-5. Disclosure of technical 23 information about Rekognition’s design and operation would cause AWS significant competitive 24 harm, as AWS competitors who gleaned insight into the non-public details of Rekognition’s 25 architecture and processes could potentially improve their own, competing services, and it could 26 provide bad actors with information that could assist them in circumventing AWS’s security 27 measures. Simmons Decl. ¶ 5. 28 1 AWS has sought to minimize the amount of material to be sealed in its Opposition and 2 supporting materials, and less restrictive means are not available. While some documents are entirely 3 confidential, AWS has, where appropriate, sought only to redact material that reflects proprietary and 4 commercially sensitive information, which goes beyond what would aid the public in understanding 5 the parties’ positions and the judicial process. See Coloplast A/S v. Generic Med. Devices, Inc., No. 6 10-0227, 2012 WL 3629037, at *1–2 (W.D. Wash. Aug. 22, 2012) (granting a motion to seal a 7 motion, provided that the party submit a version that redacts any portion referencing the confidential 8 exhibits); see generally Richardson v. Mylan, Inc., No. 09-CV-1041-JM (WVG), 2011 WL 837148, 9 at *2 (S.D. Cal. Mar. 9, 2011) (finding sealable information of comparatively little value to the 10 general public in terms of enhancing its understanding of the judicial process). 11 Furthermore, this information provides little-to-no value in terms of aiding the public in 12 understanding the parties’ positions on the Motion for Leave and the judicial process in this case. 13 No other public interest reasons justify disclosure of this information. For example, the 14 15 information does not affect public health and safety and does not concern any public entities or 16 officials. The confidential information concerns only business and technical information that 17 would cause competitive harm to AWS if it was made public. See Simmons Decl. ¶ 4-5. 18 VI. CONCLUSION 19 For the foregoing reasons, AWS respectfully requests an order allowing it to file under seal 20 unredacted versions of the documents described above. 21 I certify that this memorandum contains 1,485 words, in compliance with the Local Civil Rules 22 23 24 25 26 27 28 1 2 Dated: March 25, 2024 By: /s/ Ryan Spear Ryan Spear, Bar No. 39974 3 Perkins Coie LLP 4 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 5 Telephone: +1.206.359.8000 Facsimile: +1.206.359.9000 6 RSpear@perkinscoie.com

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | ORDER Having reviewed the Defendant’s Motion to Seal, the Court GRANTS the Motion (Dkt. # 3 172) and ORDERS that the unredacted copies of the following documents be maintained under 4 seal: 5 7 ||) Excerpts of a customer account list Declaration of Nicola Menaldo (“Menaldo produced in this case bearing Bates Decl.”), Ex. C 8 identifier AWS_00008372 (“Partial 9 ||| Customer Account List”) 10 AWS’s Third Amended Answers and Menaldo Decl. Ex. F Objections to Plaintiffs’ First Set of 12 ||| Interrogatories (“AWS’s Interrogatory Responses”’) 13 = □ Portions of AWS’s Opposition Brief N/A 14 ||| (Opposition Brief’) 15 16 17 IT IS SO ORDERED. Chae 19 || Dated: March 26, 2024 By: : John H. Chun 20 United States District Judge 21 22 23 24 25 26 27 28 ORDER (No. 2:22-cv-00269-JHC) — 8