Zellmer v. Facebook, Inc.

• Court: District Court, N.D. California
• Decided: March 31, 2022
• Docket: 3:18-cv-01880
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 CLAYTON P. ZELLMER, Case No. 3:18-cv-01880-JD

6 Plaintiff, ORDER RE MOTIONS TO SEAL v. 7 Re: Dkt. Nos. 66, 70, 75, 79 8 FACEBOOK, INC., Defendant. 9

10 11 The Court has addressed the standards for sealing requests in conjunction with case filings, 12 see In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165, (N.D. Cal. 13 Aug. 25, 2021), and that decision is incorporated here. In pertinent summary, “judicial records are 14 public documents almost by definition, and the public is entitled to access by default.” Id. at *1 15 (quoting Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); see also 16 Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (when 17 considering a request to seal, “we start with a strong presumption in favor of access to court 18 records.”) (quotation omitted). The party seeking to seal a document bears the burden of 19 articulating “compelling reasons supported by specific factual findings that outweigh the general 20 history of access and the public policies favoring disclosure.” Id. (quotation and citation omitted). 21 General assertions of potential competitive or commercial harm are not enough to establish good 22 cause for sealing court records, and the “fact that the parties may have designated a document as 23 confidential under a stipulated protective order is also not enough to justify sealing.” Id. (citation 24 omitted). 25 The documents proposed for sealing were produced by Facebook, and used by both parties 26 in conjunction with their briefing on Facebook’s motion for summary judgment. See Dkt. Nos. 27 67, 71, and 76. As required by Civil Local Rule 79-5, Facebook filed the initial notice of sealing 1 sealing for documents submitted with his briefing. Because all of the documents the parties seek 2 || to seal were produced by Facebook, or contain references to materials Facebook produced, 3 Facebook bears the burden of stating why the documents should be sealed under Civil Local Rule 4 |} 79-5. 5 The Court’s sealing determinations are stated in the attached chart. See Ex. A. On the 6 || whole, Facebook’s motions to seal requested to seal entire documents, and did not propose ways 7 of tailoring sealing to the narrowest possible scope, as required by Civil Local Rule 79-5. The 8 || requests also made conclusory statements about the competitive harm that Facebook will suffer as 9 a result of the documents’ disclosure. Additionally, Facebook publicly announced that it would be 10 suspending use of its facial recognition system, so it is unclear how Facebook could be 11 competitively harmed by the disclosure of documents relating to a system that it no longer uses. 12 See Torsten Kracht, Lisa Sotto, & Bennett Sooy, Facebook Pivots from Facial Recognition System 5 13 Following Biometric Privacy Suit, REUTERS (Jan. 26, 2022), 14 || https://www.reuters.com/legal/legalindustry/facebook-pivots-facial-recognition-system-following- 3 15 biometric-privacy-suit-2022-01-26/. Consequently, the majority of the sealing requests are a 16 || denied. The Hashimi report, which undertakes analysis of Facebook’s source code and contains 3 17 explicit references to and excerpts of the source code, may be sealed. 18 The “default posture of public access prevails” for the documents that the Court declines to 19 seal. In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165 at *3 20 (quoting Kamakana, 447 F.3d at 1182). The parties are directed to file unredacted versions of the 21 documents on ECF within 7 days of this order. Civil L.R. 79-5(f). 22 IT IS SO ORDERED. 23 Dated: March 31, 2022 24 25 6 JAMES#/ONATO United ftates District Judge 27 28

1 Exhibit A to Order re Motions to Seal

2 Document Information sought Proffered Reason for Ruling 3 to be sealed Sealing 4 MOTION FOR SUMMARY JUDGMENT 5 Facebook’s Page 1/Line 8 Discusses confidential Denied. Memorandum Page 2/Lines 4-5 and sensitive 6 of Points and Page 5/Lines 1-3, 8- information that 7 Authorities in 11, 15-17, 21-26 Facebook also seeks to Support of Page 6/Lines 1, 5-11, seal. (See Dkt. No. 66 8 Motion for 21-22, 25-27 a 3-4) Summary Page 9/Lines 23-24, 9 Judgment 26-27 Dkt. No. 67 Page 10/Lines 27-28 10 Page 11/Lines 19-23 11 Page 12/Lines 4-5 Page 15/Lines 5, 23-26 12 Page 16/Lines 11-12 Page 18/Line 8 13 Page 20/Lines 7-8 14 Declaration of Paragraphs 2-12 and Designated Denied. The declaration 15 Gary McCoy, 16 confidential or highly portions that Facebook Dkt. No. 67-2 confidential and seeks to seal provide highly 16 contains trade secrets general explanations of about how Facebook Facebook’s face- 17 designs computer recognition software. systems and These general, high-level 18 proprietary face- descriptions are not trade- 19 recognition secrets, and Facebook’s technology. (See Dtk. counsel has already 20 No. 66 at 2; Dkt. No. discussed them at length 66-1 at ¶¶ 7-8) with the Court in public 21 hearings. 22 Excerpted Entire Document Contains confidential Denied. The deposition Deposition of details of Facebook’s portions that Facebook 23 Gary McCoy, network architecture, seeks to seal provide highly 24 Dkt. No. 67-5 face-recognition general explanations of technology, and Facebook’s face- 25 computer systems, the recognition software. disclosure of which These general, high-level 26 would result in descriptions are not trade- competitive harm to secrets, and Facebook’s 27 Facebook. (See Dkt. counsel has already 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing 2 No. 66 at 3; Dkt. No. with the Court in public 3 66-1 at ¶¶ 10-11) hearings. 4 Excerpted Entire Document Contains confidential Denied. The request is Deposition of details of Facebook’s overbroad, and is not 5 Yaniv network architecture, narrowly tailored. It 6 Taigman, Dkt. face-recognition includes background No. 67-4 technology, and information about the 7 computer systems, the deponent that is clearly not disclosure of which confidential, as well as 8 would result in including high level competitive harm to discussions of Facebook’s 9 Facebook. (See Dkt. technology. 10 No. 66 at 3; Dkt. No. 66-1 at ¶¶ 10-11) 11 Excerpted Entire Document Contains confidential Denied. The deposition 12 Deposition of details of Facebook’s portions that Facebook Omry Yadan, network architecture, seeks to seal provide highly 13 Dkt. No. 67-6 face-recognition general explanations of technology, and Facebook’s face- 14 computer systems, the recognition software. 15 disclosure of which These general, high-level would result in descriptions are not trade- 16 competitive harm to secrets, and Facebook’s Facebook. (See Dkt. counsel has already 17 No. 66 at 3; Dkt. No. discussed them at length 18 66-1 at ¶¶ 10-11) with the Court in public hearings. 19 OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 20 Zellmer’s Page 1/Lines 10-16, 20 Discusses documents Granted in part. The 21 Opposition to Page 2/Lines 1-8, 16- and materials that have request is granted for the Motion for 19, 23-26 been designated as following pages and lines: 22 Summary Page 3/Lines 1-23 confidential. (See Dkt. Judgment, Page 4/Lines 1-9 No. 70-1 at ¶ 4c) Page 2/Lines 16-19 23 Dkt. No. 71 Page 5/Lines 5-20, 23- Page 3/Lines 1-23 24 26 Page 4/Lines 1-9 Page 6/Lines 1-4, 7-14 Page 15/Lines 4-14 25 Page 7/Lines 17-20 Page 8/Lines 6, 24-27 These portions cite to the 26 Page 14/Lines 6-13 Hashimi Report, for which Page 15/Lines 4-14 Facebook has made a 27 showing of compelling 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing 2 Exhibit 1 to Entire Document Designated Denied. No further 3 Opposition confidential by showing was made by Facebook during Facebook to demonstrate 4 discovery. (See Dkt. why this document should 5 No. 70-1 at ¶ 4b) be sealed, and the document contains a public 6 post on Facebook about tagging. 7 Excerpted Entire Document Designated Denied. No further 8 Deposition of confidential by showing was made by Robert Facebook during Facebook to demonstrate 9 Sherman, discovery. (See Dkt. why this document should 10 Exhibit 2 to No. 70-1 at ¶ 4b) be sealed. Opposition 11 Excerpted Entire Document Contains proprietary Denied. The excerpts 12 Deposition of and confidential discuss Facebook’s face Yaniv information about recognition technology at a 13 Taigman, Facebook’s face high level that does not Exhibit 3 to recognition disclose information that 14 Opposition technology, the would put Facebook at a 15 disclosure of which competitive disadvantage. would put Facebook at 16 competitive disadvantage. (See 17 Dkt. No. 79 at 4-5) 18 Exhibit 4 to Entire Document Contains proprietary Denied. The document 19 Opposition and confidential discusses the face information about recognition technology at a 20 Facebook’s face high level that does not recognition disclose information that 21 technology, the would put Facebook at a disclosure of which competitive disadvantage. 22 would put Facebook at These general, high-level 23 competitive descriptions have already disadvantage. (See been discussed by 24 Dkt. No. 79 at 4-5) Facebook’s counsel with the Court in public 25 hearings. 26 Exhibit 5 to Entire Document Designated Denied. No further Opposition confidential by showing was made by 27 Facebook during Facebook to demonstrate 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing 2 discovery. (See Dkt. why this document should 3 No. 70-1 at ¶ 4b) be sealed. 4 Expert Report Entire Document Report contains Granted. The report of Dr. Atif detailed analysis of discusses Facebook’s face 5 Hashimi, Facebook’s source recognition in great detail, 6 Exhibit 6 to code and other including with reference to Opposition documents relating to specific portions of 7 Facebook’s face Facebook’s source code. recognition 8 technology, which would put Facebook at 9 a competitive 10 disadvantage if disclosed. (See Dkt. 11 No. 79 at 4) 12 Excerpted Entire Document Contains confidential Denied. The document Deposition of details of sources of discusses data sources and 13 Dan Barak data that Facebook technology at a high level Exhibit 7 to collects, the disclosure that does not disclose 14 Opposition of which would cause information that would put 15 competitive harm to Facebook at a competitive Facebook. (See Dkt. disadvantage. 16 No. 79 at 3) 17 Exhibit 8 to Entire Document Contains proprietary Denied. The document Opposition and confidential contains high level 18 information about discussions of potential 19 Facebook’s face improvements to the face recognition recognition technology. It 20 technology, the does not contain details disclosure of which about how the technology 21 would put Facebook at works or how competitive improvements would be 22 disadvantage. (See implemented. Facebook 23 Dkt. No. 79 at 4-5) has not provided compelling reasons for why 24 the disclosure of this document would cause 25 competitive harm. 26 27 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing 2 Exhibit 9 to Entire Document Designated Denied. No further 3 Opposition confidential by showing was made by Facebook during Facebook to demonstrate 4 discovery. (See Dkt. why this document should 5 No. 70-1 at ¶ 4b) be sealed. 6 Exhibit 10 to Entire Document Contains proprietary Denied. The document is Opposition and confidential an assignment for 7 information about improvements to the face 8 Facebook’s face recognition technology, but recognition does not describe any 9 technology, the details about the disclosure of which technology. Facebook has 10 would put Facebook at not provided compelling competitive reasons for why the 11 disadvantage. (See disclosure of this document 12 Dkt. No. 79 at 4-5) would cause competitive harm. 13 Exhibit 11 to Entire Document Designated Denied. No further 14 Opposition confidential by showing was made by Facebook during Facebook to demonstrate 15 discovery. (See Dkt. why this document should No. 70-1 at ¶ 4b) be sealed, and the 16 document is an issued 17 patent, which is already public. 18 Excerpted Entire Document Contains confidential Denied. The deposition 19 Deposition of details of Facebook’s portions that Facebook Gary McCoy, face-recognition seeks to seal provide only 20 Exhibit 12 to technology, the high level explanations of Opposition disclosure of which Facebook’s face- 21 would result in recognition software. 22 competitive harm to These general, high-level Facebook. (See Dkt. descriptions are not trade- 23 No. 66 at 3; Dkt. No. secrets, and Facebook’s 66-1 at ¶¶ 10-11) counsel has already 24 discussed them at length 25 with the Court in public hearings. 26 27 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing 2 Exhibit 15 to Entire Document Designated Denied. No further 3 Opposition confidential by showing was made by Facebook during Facebook to demonstrate 4 discovery. (See Dkt. why this document should 5 No. 70-1 at ¶ 4b) be sealed. 6 Exhibit 16 to Entire Document Designated Denied. No further Opposition confidential by showing was made by 7 Facebook during Facebook to demonstrate 8 discovery. (See Dkt. why this document should No. 70-1 at ¶ 4b) be sealed. 9 Exhibit 17 to Entire Document Contains proprietary Denied. The document 10 Opposition and confidential discusses face recognition information about at a high level in 11 Facebook’s face connection with product 12 recognition launch. Facebook has not technology, the provided compelling 13 disclosure of which reasons for why the would put Facebook at disclosure of this document 14 competitive would cause competitive 15 disadvantage. (See harm. Dkt. No. 79 at 4-5) 16 REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 17 Facebook’s Page 1/Line 13 Discusses documents Denied. 18 Reply in Page 2/Lines 12-13 and materials that have Support of its Page 3/Line 28 been designated as 19 Motion for Page 4/Lines 5, 11-12, confidential. (See Dkt. Summary 23 No. 79 at 5) 20 Judgment, Page 8/Line 27 21 Dkt. No. 76 Page 9/Lines 18-19, 23-24 22 Page 10/Lines 10-14 23

24 25 26 27