8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 ANDREA M WILLIAMS, et al., Case No. 19-CV-04700-LHK
13 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART 14 v. ADMINISTRATIVE MOTIONS TO FILE CLASS CERTIFICATION 15 APPLE, INC., DOCUMENTS UNDER SEAL 16 Defendant. Re: Dkt. Nos. 76, 78, 81, 91, 94, 95, 98, 100, 103 17 18 Before the Court are the parties’ motions to file under seal documents related to the 19 parties’ class certification briefing. ECF Nos. 76, 78, 81, 91, 95, 98, 100, 103. For the following 20 reasons, the Court GRANTS IN PART and DENIES IN PART the parties’ administrative motions 21 to file class certification documents under seal. 22 I. LEGAL STANDARD 23 “Historically, courts have recognized a ‘general right to inspect and copy public records 24 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 25 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 26 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, a “strong presumption in 27 1 1 favor of access is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 2 1122, 1135 (9th Cir. 2003)). In the Ninth Circuit, documents that are more than “tangentially 3 related . . . to the underlying cause of action” are not sealable unless the Court agrees that 4 “compelling reasons” exist to overcome the presumption of access. See id. at 1179. 5 Here, the documents that the parties seek to seal are related to a motion for class 6 certification. “A class certification motion ‘generally involves considerations that are enmeshed in 7 the factual and legal issues comprising plaintiff’s cause of action,’ which require a district court to 8 engage in a ‘rigorous analysis’ that ‘entail[s] some overlap with the merits of the plaintiff’s 9 underlying claims.’” McCurley v. Royal Seas Cruises, Inc., 2018 WL 3629945, at *2 (S.D. Cal. 10 July 31, 2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 352 (2011)). Indeed, 11 most district courts to consider the question have found that motions for class certification are 12 “more than tangentially related to the underlying cause of action” and therefore apply the 13 “compelling reasons” standard. Philips v. Ford Motor Co., 2016 WL 7374214, at *2 (N.D. Cal. 14 Dec. 20, 2016) (collecting cases). Accordingly, the compelling reasons standard applies to the 15 parties’ sealing motions. See, e.g., Hadley v. Kellogg Sales Co., No. 16-CV-04955-LHK, 2018 WL 16 7814785, at *2 (N.D. Cal. Sept. 5, 2018) (applying compelling reasons standard). 17 Compelling reasons justifying the sealing of court records generally exist “when such 18 ‘court files might have become a vehicle for improper purposes,’ such as the use of records to 19 gratify private spite, promote public scandal, circulate libelous statements, or release trade 20 secrets.” Id. (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the production of 21 records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 22 not, without more, compel the court to seal its records.” Id. 23 In addition, parties moving to seal documents must comply with the procedures established 24 by Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request 25 that establishes the document is “sealable,” or “privileged, protectable as a trade secret or 26 otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). “The request must be narrowly 27 2 1 tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Id. 2 Civil Local Rule 79-5(d), in turn, requires the submitting party to attach a “declaration 3 establishing that the document sought to be filed under seal, or portions thereof, are sealable,” a 4 “proposed order that is narrowly tailored to seal only the sealable material,” and a proposed order 5 that “lists in table format each document or portion thereof that is sought to be sealed,” as well as 6 an “unredacted version of the document” that “indicate[s], by highlighting or other clear method, 7 the portions of the document that have been omitted from the redacted version.” Id. 8 II. DISCUSSION 9 The parties move to file under seal documents related to the parties’ class certification 10 briefing. Specifically, the parties move to seal documents designated confidential by Apple, which 11 relate to (1) Plaintiffs’ motion for class certification; (2) Apple’s opposition; (3) Plaintiffs’ reply; 12 (4) Apple’s sur-reply; and (5) Plaintiffs’ response to Apple’s sur-reply. Where the brief and 13 supporting exhibits at issue are Plaintiffs’, both parties filed a sealing motion. That is, Plaintiffs 14 first filed a broad sealing motion accompanying their brief, and then Apple (as designating party) 15 filed its own motion narrowing the request for sealing. By contrast, where the brief and supporting 16 exhibits at issue is Apple’s, only Apple filed a motion to seal. Below, the Court analyzes the five 17 categories of sealing requests in turn. 18 A. Sealing Plaintiffs’ Motion for Class Certification and Supporting Exhibits, ECF Nos. 76 and 78 19 For their motion for class certification, Plaintiffs seek to seal five documents that Apple 20 has designated confidential. ECF No. 76. Apple narrows the sealing request by (1) proposing more 21 tailored redactions for two documents Plaintiffs identified; and (2) acquiescing to the public filing 22 of the fifth document, Exhibit 19 to Roy A. Katriel’s Declaration in Support of Plaintiffs’ Motion 23 for Class Certification (“Katriel Decl.,” ECF No. 77-1). ECF No. 78 at 2. Thus, the Court 24 considers only Apple’s four sealing requests. 25 Apple seeks to seal (1) portions of Plaintiffs’ class certification briefing; (2) Exhibit 7 to 26 the Katriel Declaration; (3) Exhibit 12 to the Katriel Declaration; and (4) portions of the expert 27 3 1 report of Russell W. Mangum III, Ph.D. (Exhibit 20 to the Katriel Declaration). Each request is 2 supported by Apple’s declarant Ahmed Bashir, who is Apple’s Director of Engineering and 3 “oversee[s] iCloud operations.” Bashir Decl. for Class Cert. Mot. ¶ 1, ECF No. 78-1 (“Bashir 4 Decl. for Mot.”). Bashir avers, with varying levels of specificity, how each sealing request would 5 prevent the disclosure of confidential business information. First, the portions of briefing at issue 6 relate to “the number of Apple’s iCloud paying users, associated revenue, and data storage 7 practices.” Id. ¶ 6. Second, Exhibit 7 contains “confidential commercial information related to the 8 number of U.S. iCloud paying subscribers.” Id. ¶ 9. Third, Exhibit 12 contains internal 9 communications regarding Apple’s “privacy and security approach for health records.” Id. ¶ 10. 10 Lastly, portions of Mangum’s report (Exhibit 20) contain “the U.S. iCloud userbase, including the 11 number of paying subscribers, [] associated revenue . . . iCloud data storage practices” and iCloud 12 pricing. Id. ¶ 13. 13 As the Ninth Circuit has explained, “business information that might harm a litigant’s 14 competitive standing [if disclosed]” meets the compelling reasons standard for sealing. In re Elec. 15 Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (quoting Nixon, 435 U.S. at 598); see also, e.g., 16 In re Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK, 2017 WL 9614789, at *2 (N.D. 17 Cal. Aug. 25, 2017) (sealing information on same grounds). However, “[t]he mere fact that the 18 production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further 19 litigation will not, without more, compel the court to seal its records.” Kamakana v. City & Cty. of 20 Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006).
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 ANDREA M WILLIAMS, et al., Case No. 19-CV-04700-LHK
13 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART 14 v. ADMINISTRATIVE MOTIONS TO FILE CLASS CERTIFICATION 15 APPLE, INC., DOCUMENTS UNDER SEAL 16 Defendant. Re: Dkt. Nos. 76, 78, 81, 91, 94, 95, 98, 100, 103 17 18 Before the Court are the parties’ motions to file under seal documents related to the 19 parties’ class certification briefing. ECF Nos. 76, 78, 81, 91, 95, 98, 100, 103. For the following 20 reasons, the Court GRANTS IN PART and DENIES IN PART the parties’ administrative motions 21 to file class certification documents under seal. 22 I. LEGAL STANDARD 23 “Historically, courts have recognized a ‘general right to inspect and copy public records 24 and documents, including judicial records and documents.’” Kamakana v. City & Cty. Of 25 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 26 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, a “strong presumption in 27 1 1 favor of access is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 2 1122, 1135 (9th Cir. 2003)). In the Ninth Circuit, documents that are more than “tangentially 3 related . . . to the underlying cause of action” are not sealable unless the Court agrees that 4 “compelling reasons” exist to overcome the presumption of access. See id. at 1179. 5 Here, the documents that the parties seek to seal are related to a motion for class 6 certification. “A class certification motion ‘generally involves considerations that are enmeshed in 7 the factual and legal issues comprising plaintiff’s cause of action,’ which require a district court to 8 engage in a ‘rigorous analysis’ that ‘entail[s] some overlap with the merits of the plaintiff’s 9 underlying claims.’” McCurley v. Royal Seas Cruises, Inc., 2018 WL 3629945, at *2 (S.D. Cal. 10 July 31, 2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 352 (2011)). Indeed, 11 most district courts to consider the question have found that motions for class certification are 12 “more than tangentially related to the underlying cause of action” and therefore apply the 13 “compelling reasons” standard. Philips v. Ford Motor Co., 2016 WL 7374214, at *2 (N.D. Cal. 14 Dec. 20, 2016) (collecting cases). Accordingly, the compelling reasons standard applies to the 15 parties’ sealing motions. See, e.g., Hadley v. Kellogg Sales Co., No. 16-CV-04955-LHK, 2018 WL 16 7814785, at *2 (N.D. Cal. Sept. 5, 2018) (applying compelling reasons standard). 17 Compelling reasons justifying the sealing of court records generally exist “when such 18 ‘court files might have become a vehicle for improper purposes,’ such as the use of records to 19 gratify private spite, promote public scandal, circulate libelous statements, or release trade 20 secrets.” Id. (quoting Nixon, 435 U.S. at 598). However, “[t]he mere fact that the production of 21 records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will 22 not, without more, compel the court to seal its records.” Id. 23 In addition, parties moving to seal documents must comply with the procedures established 24 by Civil Local Rule 79-5. Pursuant to that rule, a sealing order is appropriate only upon a request 25 that establishes the document is “sealable,” or “privileged, protectable as a trade secret or 26 otherwise entitled to protection under the law.” Civ. L.R. 79-5(b). “The request must be narrowly 27 2 1 tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Id. 2 Civil Local Rule 79-5(d), in turn, requires the submitting party to attach a “declaration 3 establishing that the document sought to be filed under seal, or portions thereof, are sealable,” a 4 “proposed order that is narrowly tailored to seal only the sealable material,” and a proposed order 5 that “lists in table format each document or portion thereof that is sought to be sealed,” as well as 6 an “unredacted version of the document” that “indicate[s], by highlighting or other clear method, 7 the portions of the document that have been omitted from the redacted version.” Id. 8 II. DISCUSSION 9 The parties move to file under seal documents related to the parties’ class certification 10 briefing. Specifically, the parties move to seal documents designated confidential by Apple, which 11 relate to (1) Plaintiffs’ motion for class certification; (2) Apple’s opposition; (3) Plaintiffs’ reply; 12 (4) Apple’s sur-reply; and (5) Plaintiffs’ response to Apple’s sur-reply. Where the brief and 13 supporting exhibits at issue are Plaintiffs’, both parties filed a sealing motion. That is, Plaintiffs 14 first filed a broad sealing motion accompanying their brief, and then Apple (as designating party) 15 filed its own motion narrowing the request for sealing. By contrast, where the brief and supporting 16 exhibits at issue is Apple’s, only Apple filed a motion to seal. Below, the Court analyzes the five 17 categories of sealing requests in turn. 18 A. Sealing Plaintiffs’ Motion for Class Certification and Supporting Exhibits, ECF Nos. 76 and 78 19 For their motion for class certification, Plaintiffs seek to seal five documents that Apple 20 has designated confidential. ECF No. 76. Apple narrows the sealing request by (1) proposing more 21 tailored redactions for two documents Plaintiffs identified; and (2) acquiescing to the public filing 22 of the fifth document, Exhibit 19 to Roy A. Katriel’s Declaration in Support of Plaintiffs’ Motion 23 for Class Certification (“Katriel Decl.,” ECF No. 77-1). ECF No. 78 at 2. Thus, the Court 24 considers only Apple’s four sealing requests. 25 Apple seeks to seal (1) portions of Plaintiffs’ class certification briefing; (2) Exhibit 7 to 26 the Katriel Declaration; (3) Exhibit 12 to the Katriel Declaration; and (4) portions of the expert 27 3 1 report of Russell W. Mangum III, Ph.D. (Exhibit 20 to the Katriel Declaration). Each request is 2 supported by Apple’s declarant Ahmed Bashir, who is Apple’s Director of Engineering and 3 “oversee[s] iCloud operations.” Bashir Decl. for Class Cert. Mot. ¶ 1, ECF No. 78-1 (“Bashir 4 Decl. for Mot.”). Bashir avers, with varying levels of specificity, how each sealing request would 5 prevent the disclosure of confidential business information. First, the portions of briefing at issue 6 relate to “the number of Apple’s iCloud paying users, associated revenue, and data storage 7 practices.” Id. ¶ 6. Second, Exhibit 7 contains “confidential commercial information related to the 8 number of U.S. iCloud paying subscribers.” Id. ¶ 9. Third, Exhibit 12 contains internal 9 communications regarding Apple’s “privacy and security approach for health records.” Id. ¶ 10. 10 Lastly, portions of Mangum’s report (Exhibit 20) contain “the U.S. iCloud userbase, including the 11 number of paying subscribers, [] associated revenue . . . iCloud data storage practices” and iCloud 12 pricing. Id. ¶ 13. 13 As the Ninth Circuit has explained, “business information that might harm a litigant’s 14 competitive standing [if disclosed]” meets the compelling reasons standard for sealing. In re Elec. 15 Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (quoting Nixon, 435 U.S. at 598); see also, e.g., 16 In re Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK, 2017 WL 9614789, at *2 (N.D. 17 Cal. Aug. 25, 2017) (sealing information on same grounds). However, “[t]he mere fact that the 18 production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further 19 litigation will not, without more, compel the court to seal its records.” Kamakana v. City & Cty. of 20 Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Moreover, the Court’s interest in ensuring the 21 “public’s understanding of the judicial process” supports unsealing information that underpins a 22 merits ruling. Id. (quoting Valley Broad. Co. v. U.S. Dist. Ct. for Dist. of Nevada, 798 F.2d 1289, 23 1294 (9th Cir. 1986)). This interest “is justified by the interest of citizens in ‘keep[ing] a watchful 24 eye on the workings of public agencies.’” Id. at 1178 (quoting Nixon v. Warner Commc’ns, Inc., 25 435 U.S. 589, 597 & n.7 (1978)). 26 Here, most of Apple’s sealing requests are appropriate. Specifically, Bashir explains 27 4 1 persuasively and with specificity that public disclosure of key metrics—such as “iCloud userbase, 2 costs, revenues, gross margins, and market research data” over time—would harm Apple’s 3 competitive standing. E.g., Bashir Decl. for Mot. ¶ 3. Disclosure of information that “might harm 4 a litigant’s competitive standing” generally meet the compelling reasons standard for sealing. In 5 re. Elec. Arts, 298 F. App’x at 569. 6 However, some of Apple’s sealing requests lack merit. These requests appear calculated 7 merely to avoid “embarrassment, incrimination, or exposure to further litigation.” Kamakana, 447 8 F.3d at 1179. For instance, Apple asks to seal a January 2019 email from an Apple executive—and 9 Plaintiffs’ analysis of that email—on the ground that disclosure would “incompletely and 10 inaccurately reveal[] Apple’s corporate decision-making strategy.” Bashir. Decl. for Mot. ¶ 7; see 11 Pls’ Mot. for Class Certification (“Mot.”) at 16–18, ECF No. 76-4 (quoting email). Yet the email 12 largely discusses information about Amazon servers that has already been publicly filed in an 13 expert report and reported in the press. See, e.g., Mangum Report ¶ 27 (discussing how “user’s 14 data is broken into chunks” and stored on Amazon S3, Windows Azure, and Google Cloud); 15 Jordan Novet, Apple spends more than $30 million on Amazon’s cloud every month, CNBC (Apr. 16 22, 2019), https://www.cnbc.com/2019/04/22/apple-spends-more-than-30-million-on-amazon- 17 web-services-a-month.html (discussing iCloud’s use of Amazon servers). 18 In sum, as set forth in the table below, the Court GRANTS IN PART AND DENIES IN 19 PART Apple’s administrative motion to file documents under seal, ECF No. 78, and DENIES AS 20 MOOT Plaintiffs’ administrative motion to file documents under seal, ECF No. 76. 21 Document Paragraph, Ruling 22 Page/Line, or 23 Footnote Portions of Plaintiffs’ Section II.D.1.c. GRANTED as to the following: 4:3–4; 24 Notice of Motion, Motion, heading in the Table 4:24–25; 15:18; 25:9. DENIED WITH 25 and Memorandum in of Contents PREJUDICE as to the remainder. Support of Plaintiffs’ 3:20-23; 4:3-4; 26 Motion for Class 4:24-25; 15:18; 27 5 Certification 16:6; 16:10-13; 1 16:18-27; 17:1-11; 2 17:25-26; 18:1-2; 18:7-10; 18:17-26; 3 25:9 4 Exhibit 7 to the Entire Document GRANTED. Declaration of Roy A. 5 Katriel in Support of 6 Plaintiffs’ Motion for Class Certification 7 (“Katriel Declaration”) 8 Exhibit 12 to the Katriel Entire Document GRANTED as to pages 2–5 and all email Declaration addresses, which may be redacted as 9 personal identifiable information. DENIED 10 WITH PREJUDICE as to page 1 (APL- ICSTORAGE_00021698), excluding email 11 addresses. 12 Portions of the Expert ¶¶ 24, 25, 27, 55 GRANTED. Report of Russell W. Footnotes 35, 66 13 Mangum III, Ph.D. in Exhibits 2, 3, 8, 8.1, 14 Support of Plaintiffs’ 8.2, 9, 9.1, 9.2, 10, Motion for Class 11 to Appendix C 15 Certification (Exhibit 20 to 16 the Katriel Declaration) 17 18 B. Sealing Apple’s Opposition and Supporting Exhibits, ECF No. 81 19 For its opposition brief to class certification, Apple seeks to seal six sets of documents. 20 Specifically, Apple asks to seal (1) portions of its Opposition brief; (2) portions of the expert 21 report of Professor Lorin Hitt; (3) the declaration of Dane Aconfora, Apple’s Director of Service 22 Forecasting and Efficiency; (4) portions of the declaration of Evan Krasts, a Product Marketing 23 Manager for iCloud; (5) portions of the declaration of Monica Sarkar, a Writer/Editor with 24 AppleCare Digital Content Services; and (6) exhibits that comprise internal Apple documents on 25 iCloud’s development and technical metrics. Apple again supports each request with a declaration 26 by Ahmed Bashir, Apple’s Director of Engineering. Bashir Decl. for Apple’s Class Cert. Opp’n, 27 6 1 ECF No. 81-8 (“Bashir Decl. for Opp’n”). 2 Similarly, as with the sealing requests analyzed above in Section II-A, Apple’s sealing 3 requests are somewhat overbroad. Two examples illustrate this overbreadth. First, Apple asks to 4 seal the fact that an algorithm determines where iCloud data is stored. Apple’s Opp’n to Class 5 Cert. at 4, ECF No. 81-2 (“Opp’n”). Yet Apple’s only reason for sealing this statement is the vague 6 assertion that the statistics “regard[s] Apple’s iCloud data storage practices.” Bashir Decl. for 7 Opp’n ¶ 9. The press has already reported on “iCloud data storage practices” in greater depth, 8 including iCloud’s use of third-party servers to store data in several data centers. See, e.g., Glenn 9 Fleishman, How to find out where Apple stores your iCloud data, Macworld (May 21, 2018), 10 https://www.macworld.com/article/231380/where-does-apple-stores-your-icloud-data.html 11 (detailing data centers and third-party servers); Samuel Axon, Your Apple iCloud data is now 12 stored on Google servers, Ars Technica (Feb. 26, 2018), 13 https://arstechnica.com/gadgets/2018/02/your-apple-icloud-data-is-now-stored-on-google-servers- 14 surprised/ (quoting Apple’s disclosures of third-party storage). 15 Second, Apple asks to seal the entirety of Aconfora’s declaration. The declaration cites four 16 discrete statistics from 2016 through 2018, which the Court relied on in denying class certification 17 for some of the class period. See Williams v. Apple, Inc., No. 19-CV-04700-LHK, --- F.R.D. ----, 18 2021 WL 2186223, at *8–9 (N.D. Cal. May 28, 2021) (denying certification for the period 19 spanning February 1, 2016 to October 31, 2018). The statistics show that “during much of the 20 class period, the majority of U.S. iCloud data (between 57% and 99%) was being uploaded to 21 Apple servers.” Opp’n at 7 (citing Aconfora Decl. ¶¶ 4–10). Citing these statistics, the Court held 22 that Plaintiffs failed to present common proof that class members’ iCloud data was stored on third- 23 party servers from February 1, 2016 to October 31, 2018. Williams, 2021 WL 2186223, at *8. 24 Apple’s request to seal all of Aconfora’s declaration is not only insufficiently supported, 25 but also is especially damaging to the “public’s understanding of the judicial process and of 26 significant public events.” Kamakana, 447 F.3d at 1179 (quoting Valley Broad. Co., 798 F.2d at 27 7 1 1294). As to insufficient support, Apple’s only reason for sealing storage statistics is Bashir’s 2 vague assertion that the statistics “regard Apple’s iCloud data storage practices.” Bashir Decl. for 3 Opp’n ¶ 9. Yet Bashir does not explain why statistics from 2018 or before would harm Apple’s 4 competitive standing today. See, e.g., In re High-Tech Emp. Antitrust Litig., No. 11-CV-02509- 5 LHK, 2013 WL 163779, at *3 (N.D. Cal. Jan. 15, 2013) (declining to seal documents on similar 6 ground); Delashaw v. Seattle Times Co., No. 18-CV-00537-JLR, 2020 WL 6818720, at *3 (W.D. 7 Wash. May 28, 2020) (same). As for the “public’s understanding of the judicial process,” 8 Kamakana, 447 F.3d at 1179, the storage statistics explain why Plaintiffs fail to show 9 predominance for a subset of their proposed Damages Class. See Williams, 2021 WL 2186223, at 10 *5–11 (analyzing predominance). Thus, sealing the storage statistics would prevent the public 11 from understanding why the Court did not grant Plaintiffs’ motion for class certification in its 12 entirety. 13 Even so, most of Apple’s sealing requests satisfy the “compelling reasons” standard. 14 Kamakana, 447 F.3d at 1178. For instance, Apple seeks to seal exhibits that comprise internal 15 Apple documents on iCloud’s development and technical metrics. Bashir explains that these 16 documents contain “data storage practices, business plans and projects, and trade secrets” that 17 “would provide competitors with insight that they could use to unfairly compete with Apple.” 18 Bashir Decl. for Opp’n ¶ 18. The Court’s review of these documents shows that they contain 19 “business information that might harm a litigant’s competitive standing” if disclosed. In re Elec. 20 Arts, Inc., 298 F. App’x at 569. In sum, as set forth in the table below, the Court GRANTS IN 21 PART AND DENIES IN PART Apple’s administrative motion to file documents under seal, ECF 22 No. 81. 23 Document Paragraph or Page/Line Ruling 24 Apple’s Opposition to 1:3; 1:11-16; 4:7-8; 4:14- GRANTED as to the following: 1:3; 25 Plaintiffs’ Motion for 21; 4:24-5:16; 5:25; 4:14–21; 7:14–16 (i.e., first two bullet Class Certification 7:14-21; 7:24-28; 9:3; points), 7:24–28; 9:3, 13:19–20; 14:1– 26 (“Apple’s Opposition”) 13:19-20; 14:1–6; 24:22; 6; 24:22; and footnote 6. DENIED 27 8 and footnote 6 WITH PREJUDICE as to the 1 remainder. 2 Expert Report of Dr. ¶¶ 15, 46, 71, 74, 81, 83, GRANTED. Lorin Hitt in Support of 90-91, 97, and 99; 3 Apple’s Opposition Figures 3 and 5; and 4 footnotes 67-68, 101, 122, 136, and 147 5 Declaration of Dane Entire Document GRANTED as to the following: ¶¶ 4, 6 Aconfora in Support of 7–10; and Exhibits A through D. Apple’s Opposition DENIED WITH PREJUDICE as to the 7 remainder. 8 Declaration of Ahmed Entire Document GRANTED.1 Bashir in Support of 9 Apple’s Opposition 10 Declaration of Evan ¶¶ 9-10 GRANTED. Krasts in Support of 11 Apple’s Opposition 12 Declaration of Monica ¶¶ 4-6, 10 GRANTED. Sarkar in Support of 13 Apple’s Opposition 14 Exhibit A to the Entire Document GRANTED. Declaration of Kyle C. 15 Wong in Support of 16 Apple’s Opposition (“Wong Declaration”) 17 Exhibit B to the Wong Entire Document GRANTED. 18 Declaration Exhibit C to the Wong Entire Document GRANTED. 19 Declaration 20 Exhibit D to the Wong Entire Document GRANTED. Declaration 21 Exhibit E to the Wong Entire Document GRANTED. 22 Declaration Exhibit V to the Wong 175:6; 175:8; 176:19; GRANTED. 23 24 25 1 By accident, Apple first filed publicly Bashir’s Declaration in Support of Apple’s Opposition as ECF No. 82-1. Yet Apple then promptly moved to remove ECF No. 82-1 and to file Bashir 26 declaration entirely under seal. ECF No. 94. The Court GRANTS Apple’s motion to remove the 27 incorrectly filed document. 9 Declaration 176:24 1 Exhibit X to the Wong 9:19-20 GRANTED. 2 Declaration 3 4 C. Sealing Plaintiffs’ Reply and Supporting Exhibits, ECF Nos. 91 and 95 5 For their reply in support of their motion for class certification, Plaintiffs seek to seal 6 documents that Apple has designated confidential. ECF No. 91. Apple narrows the sealing request, 7 which the Court analyzes below. ECF No. 95. 8 Apple seeks to seal (1) portions of Plaintiffs’ reply in support of class certification; 9 (2) internal Apple presentations on iCloud’s development and technical metrics (Exhs. 1, 3, and 10 10 to Katriel Reply Decl.); (3) an internal email detailing Apple’s spending on third-party storage and 11 relationship with storage vendors (Exh. 2 to Katriel Reply Decl.); (4) a portion of the deposition 12 transcript for Dane Aconfora, Apple’s Director of Service Forecasting and Efficiency (Exh. 4 to 13 Katriel Reply Decl.); and (5) a portion of the reply expert report of Plaintiffs’ damages expert, 14 Russell W. Mangum III (Exh. 7 to Katriel Reply Decl.). Apple again supports each request with a 15 declaration by Ahmed Bashir, Apple’s Director of Engineering. Bashir Decl. for Plaintiffs’ Class 16 Cert. Reply, ECF No. 95-1 (“Bashir Decl. for Reply”). 17 As with Apple’s other sealing requests, most of Apple’s requests here satisfy the 18 “compelling reasons” standard. For instance, in Mangum’s reply report, Apple asks to seal 19 Apple’s gross and net margins for iCloud—margins not disclosed in Apple’s public financial 20 filings. See Bashir Decl. for Reply ¶¶ 9–10 (describing competitive harm from disclosing “gross 21 and net margins”); Securities & Exchange Commission, Form 10-K for Apple Inc. (filed Nov. 5, 22 2018) (not disclosing iCloud financials). Similarly, in internal documents, Apple seeks to seal its 23 annual spending on Amazon storage, and well as Apple’s internal concerns with third party 24 storage. Id. ¶ 12. Disclosure of this information would “harm [Apple’s] competitive standing” if 25 disclosed. In re Elec. Arts, Inc., 298 F. App’x at 569. 26 However, Apple makes several overbroad requests to seal much of Plaintiffs’ Reply 27 10 1 supporting class certification. As with Apple’s other overbroad requests, some of the requests to 2 seal the Reply are not only insufficiently supported, but also are especially damaging to the 3 “public’s understanding of the judicial process and of significant public events.” Kamakana, 447 4 F.3d at 1179 (quoting Valley Broad. Co., 798 F.2d at 1294). For instance, Apple asks to seal the 5 fact that it launched in-house servers in February 2016 but used third-party servers before then. 6 Reply at 7. The competitive salience of this fact diminished by two considerations. First, Apple 7 has publicly admitted to using third-party servers. See Apple, iCloud Security Overview (Apr. 9, 8 2020), https://support.apple.com/en-us/HT202303 (disclosing third-party storage). Second, the 9 increasing scale of Apple’s in-house servers has been publicly reported. See, e.g., Christian Zibreg, 10 Apple’s new iCloud data center in Viborg is now operational, iDB (Sept. 3, 2020), 11 https://www.idownloadblog.com/2020/09/03/apple-data-center-viborg-operational/; see also 12 Delashaw, 2020 WL 6818720, at *3 (denying sealing of five-year-old information). Yet to support 13 sealing, Bashir conclusorily asserts that Apple’s 2016 product launch is a confidential “business 14 plan[]” and “technology.” Bashir Decl. for Reply ¶ 8. 15 Moreover, sealing the February 2016 launch date would harm the “public’s understanding 16 of the judicial process” because the Court relies on the February 2016 date to split Plaintiffs’ 17 proposed class period. See Williams, 2021 WL 2186223, at *5–11 (analyzing predominance). 18 Before the launch of Apple servers in February 2016, Plaintiffs have common proof that class 19 members’ data was stored on third-party servers. However, after the launch of Apple’s servers in 20 February 2016, Plaintiffs lack such common proof. Id. at *9–11. Thus, the February 2016 launch 21 date is key to understanding why the Court grants in part and denies in part Plaintiffs’ motion for 22 class certification. 23 In sum, as set forth in the table below, the Court GRANTS IN PART AND DENIES IN 24 PART Apple’s administrative motion to file documents under seal, ECF No. 95, and DENIES AS 25 MOOT Plaintiffs’ administrative motion to file documents under seal, ECF No. 91. 26 27 11 1 Document Paragraph or Ruling 2 Page/Line 3 Plaintiffs’ Reply in Support of 7:1-15; 8:5-11; 8:13-20; GRANTED as to the following: Their Motion for Class 8:22–9:27; 10:1–11:11; 8:13-20; and 8:22–9:27. 4 Certification (“Plaintiffs’ Class 14:4-6; 14:16-20; DENIED WITH PREJUDICE 5 Cert Reply”) 15:17-18 as to the remainder. Exhibit 1 to the Declaration of Entire Document GRANTED. 6 Roy A. Katriel in Support of 7 Plaintiffs’ Class Cert Reply (“Katriel Reply Declaration”) 8 Exhibit 2 to the Katriel Reply Entire Document GRANTED. 9 Declaration Exhibit 3 to the Katriel Reply Entire Document GRANTED. 10 Declaration 11 Exhibit 4 to the Katriel Reply Entire Document GRANTED. Declaration 12 Exhibit 7 to the Katriel Reply ¶¶ 27, 29, 30 GRANTED. 13 Declaration (“Mangum Reply Expert Report”) 14 Exhibit 10 to the Katriel Reply Entire Document GRANTED. 15 Declaration 16 17 D. Sealing Apple’s Sur-Reply and Supporting Exhibits, ECF No. 98 18 For its sur-reply opposing class certification, Apple seeks to seal the following: 19 (1) portions of Apple’s motion for leave to file a sur-reply; (2) portions of Apple’s sur-reply; (3) a 20 portion of the deposition transcript for Aconfora; and (4) an internal email containing technical 21 statistics on iCloud storage. Apple again supports each request with a declaration by Bashir. 22 Bashir Decl. for Plaintiffs’ Class Cert. Reply, ECF No. 98-1 (“Bashir Decl. for Sur-Reply”). 23 Most of Apple’s sealing requests here are warranted. For instance, Aconfora’s deposition 24 details the workings of iCloud’s storage algorithm. Public disclosure of these workings would 25 harm Apple by revealing, for example, the algorithmic parameters that determine the upload 26 priority and regional location of data. Cf. Bashir Decl. for Sur-Reply ¶ 8 (averring that Aconfora’s 27 12 1 deposition contains trade secrets). Similarly, technical statistics on iCloud storage—such as the 2 rate of data transfer—relate to iCloud’s competitive capabilities. Cf. id. ¶ 9 (averring that internal 3 email contains trade secrets). 4 However, Apple’s sealing requests as to the sur-reply briefing are overbroad. Apple 5 attempts to seal briefing on two facts. The first fact is that iCloud launched in 2015 and scaled-out 6 in February 2016. The second fact is that the iCloud storage algorithm is in fact an algorithm, not 7 a random allocator of data. Apple fails to explain how either fact satisfies the “compelling 8 reasons” standard for sealing. Instead, Bashir’s declaration offers a vague, blanket statement that 9 Apple seeks to seal “information related to Apple’s iCloud data storage practices; business plans 10 and projects; and technology and trade secrets, among other things.” Bashir Decl. for Sur-Reply 11 ¶¶ 6–7. 12 This statement is insufficient. As discussed above, the fact that iCloud scaled-out in 13 February 2016 is not only of potentially limited competitive significance today, but also is key to 14 understanding the Court’s class certification ruling. See Section II-C, supra (analyzing sealing 15 requests for Plaintiffs’ Reply). Similarly, the fact that iCloud’s algorithm does not allocate data 16 randomly explains why some of Plaintiffs’ arguments for class certification are meritless. Id.; see 17 Williams, 2021 WL 2186223, at *9 (disagreeing with Plaintiffs’ theory of common proof and 18 explaining that the “disproportionate allocation of storage to Apple servers would itself be 19 improbable under Plaintiffs’ incorrect theory of iCloud storage”). 20 In sum, as set forth in the table below, the Court GRANTS IN PART AND DENIES IN 21 PART Apple’s administrative motion to file documents under seal, ECF No. 98. 22 Document Page/Line or Ruling 23 Footnote 24 Apple’s Administrative Motion for 2:11-13; 2:15-18; DENIED WITH Leave to File a Sur-Reply to Plaintiffs’ 2:26–3:1 PREJUDICE. 25 Reply in Support of Their Motion for 26 Class Certification (“Apple’s Motion for Leave to File Sur-Reply”) 27 13 Exhibit A (“Apple’s Sur-Reply”) to the 2:3-4; 2:6-13; 2:15- GRANTED as to 2:11–13, 1 Declaration of Lauren Pomeroy in 16; 2:23–3:2; 3:4; 3:1–2, 3:17–4:6, 4:12–15, 2 Support of Apple’s Motion for Leave to 3:8-9; 3:11–4:6; 4:8- 4:18–20, footnote 2. DENIED File Sur-Reply (“Pomeroy 16; 4:18-21; 5:2-4; WITH PREJUDICE as to the 3 Declaration”) 5:8 remainder. 4 Footnotes 2 and 4 Exhibit B to the Pomeroy Declaration Entire Document GRANTED. 5 Exhibit C to the Pomeroy Declaration Entire Document GRANTED. 6
7 E. Sealing Plaintiffs’ Response to the Sur-Reply and Supporting Exhibits, ECF Nos. 100 8 and 103 9 For their response to Apple’s sur-reply, Plaintiffs seek to seal documents that Apple has 10 designated confidential. ECF No. 100. Apple narrows the sealing request, which the Court 11 analyzes below. ECF No. 103. 12 Apple asks to seal (1) portions of Plaintiffs’ response to Apple’s sur-reply (“Plaintiffs’ Sur- 13 Reply”); (2) an internal presentation detailing financial metrics and business forecasts; (3) an 14 internal presentation detailing storage requirements and overhead; (4) an internal presentation 15 detailing iCloud usage, capital expenditures, and forecasts; (5) a draft internal presentation on 16 testing iCloud infrastructure; and (6) an internal email on the pricing of Amazon servers; (7) and 17 an excerpt from Aconfora’s deposition that discusses iCloud’s processes for uploading data and 18 internal reporting. Apple again supports each request with a declaration by Bashir. Bashir Decl. 19 for Plaintiffs’ Class Cert. Reply, ECF No. 98-1 (“Bashir Decl. for Pls. Sur-Reply”). 20 As with Apple’s other sealing requests, most of the sealing requests here meet the 21 “compelling reasons” standard. Kamakana, 447 F.3d at 1178. For instance, the internal 22 presentations at issue discuss “iCloud data storage demand and costs” that, if disclosed, could 23 allow Apple’s competitors to “undercut Apple’s pricing” and “improv[e] their own cloud services 24 at Apple’s expense.” Bashir Decl. for Pls. Sur-Reply ¶ 8. Similarly, the internal email at issue 25 includes Apple’s internal deliberations on a storage vendor and its prices. Disclosure of this 26 confidential information could “harm [Apple]’s competitive standing” if disclosed. In re Elec. 27 14 1 Arts, Inc., 298 F. App’x at 569 (quoting Nixon, 435 U.S. at 598). 2 However, Apple’s requests to seal Plaintiffs’ Sur-Reply are overbroad. Apple asks to seal 3 four relatively non-sensitive facts that inform the Court’s Class Certification Order. Unsealing 4 these facts ensures the “public’s understanding of the judicial process”—a key interest 5 underpinning the “compelling reasons” standard for sealing judicial records. Kamakana, 447 F.3d 6 at 1179 (quoting Valley Broad. Co, 798 F.2d at 1294). 7 The first fact is that iCloud launched in 2015 and scaled-out in February 2016. As 8 discussed above, the fact that iCloud scaled-out in February 2016 is not only of potentially limited 9 competitive significance today, but also is key to understanding the Court’s class certification 10 ruling. See Section II-C, supra. 11 The second fact is that, on several days across the class period, most iCloud data was 12 stored in Apple servers rather than third-party servers. This fact explains why the Court denied in 13 part certification of the Damages Class. Specifically, the high percentage of fully in-house storage 14 defeated predominance because it suggested that “a non-de minimis number of class members had 15 their data stored exclusively on Apple servers.” Williams, 2021 WL 2186223, at *8 (applying 16 Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 792 (9th Cir. 17 2021)). 18 The third fact Apple asks to seal is that the fact that iCloud’s storage algorithm is not 19 random. Yet this fact is necessary to understanding why the Court denied in part certification of 20 the Damages Class. Specifically, the non-random nature of iCloud algorithm rebuts Plaintiffs’ 21 argument that “it is probability-defying for there to have been any U.S. paying iCloud subscribers 22 who never had iCloud content stored on non-Apple servers.” Id. at *9 (quoting Pls. Sur-Reply at 23 5). 24 Lastly, Apple asks to seal portions of Plaintiffs’ Sur-Reply which suggest that Apple’s 25 iCloud records from during the class period are somewhat incomplete. Specifically, Apple asks the 26 Court to seal that (1) Aconfora relied on data that could have been snapshots from four particular 27 15 1 days, rather than a “multiple time series”; and (2) Apple cannot precisely identify iCloud 2 subscribers that had all their iCloud data stored on Apple servers. Pls. Sur-Reply at 4–5. Again, 3 these facts are necessary to the “public’s understanding of the judicial process and of significant 4 public events.” Kamakana, 447 F.3d at 1179 (quoting Valley Broad. Co., 798 F.2d at 1294). 5 Specifically, these facts explain that Apple’s imperfect records do not allow Apple to “‘winnow 6 out’ putative class members whose data was never stored on third-party servers.” Williams, 2021 7 WL 2186223, at *11 (distinguishing Torres v. Mercer Canyons, Inc., 835 F.3d 1125, 1137 (9th 8 Cir. 2016)). Given Apple’s inability to “winnow out” those class members, the Court denied in 9 part class certification. Id. 10 In sum, as set forth in the table below, the Court GRANTS IN PART AND DENIES IN 11 PART Apple’s administrative motion to file documents under seal, ECF No. 103, and DENIES AS 12 MOOT Plaintiffs’ administrative motion to file documents under seal, ECF No. 100. 13 Document Page/Line or Footnote Ruling 14 Plaintiffs’ Response to Apple’s 1:17-24; 2:1-6; 2:8-13; GRANTED as to 1:23–24; 2:1–5; 15 Administrative Motion for Leave 2:15-26; 3:1-17; 3:19; 3:1–12, 3:16–17; 4:1–4:24; and to File a Sur-Reply (“Plaintiffs’ 3:25–4:24; 4:27–5:6; 5:12–13. DENIED WITH 16 Sur-Surreply”) 5:12-13; 5:15-19 PREJUDICE as to the remainder. 17 Footnote 2 Exhibit 1 to the Declaration of Entire Document GRANTED. 18 Roy A. Katriel in Support of 19 Plaintiffs’ Sur-Surreply (“Katriel Sur-Surreply Declaration”) 20 Exhibit 2 to the Katriel Sur- Entire Document GRANTED. 21 Surreply Declaration Exhibit 3 to the Katriel Sur- Entire Document GRANTED. 22 Surreply Declaration 23 Exhibit 4 to the Katriel Sur- Entire Document GRANTED. Surreply Declaration 24 Exhibit 5 to the Katriel Sur- Entire Document GRANTED. 25 Surreply Declaration Exhibit 6 to the Katriel Sur- Entire Document GRANTED. 26 Surreply Declaration 27 16 1 || ITISSO ORDERED. 2 3 Dated: June 17, 2021 Suey H. bop LUCY @. KOH 5 United States District Judge 6 7 8 9 10 11 q 12
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4 18 19 20 21 22 23 24 25 26 27 17 28 Case No. 19-CV-04700-LHK ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO FILE CLASS