United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER
SEAL [Re: ECF 158]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
has filed an administrative motion to seal in part her
Memorandum in Support of Motion for Class Certification and
to seal in whole or in part documents submitted in support of
her motion for class certification. The motion is GRANTED IN
PART AND DENIED IN PART for the reasons set forth below.
initial matter, Plaintiff states that she has submitted the
sealing motion to comply with the protective order entered in
this case and that she does not necessarily believe that the
documents in question should be sealed in light of the
"compelling reasons" test set forth in Kamakana
v. City and Cnty. of Hololulu, 447 F.3d 1172 (9th Cir.
2006). See Pl.'s Admin. Motion at ¶ 6, ECF
158. Kamakana recognizes a "general right to
inspect and copy public records and documents, including
judicial records and documents." Id. at 1178.
Consequently, access to motions and their attachments that
are "more than tangentially related to the merits of a
case" may be sealed only upon a showing of
"compelling reasons" for sealing. Ctr. for Auto
Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02
(9th Cir. 2016). Filings that are only tangentially related
to the merits may be sealed upon a lesser showing of
"good cause." Id. at 1097. The Court
concludes that Plaintiff's motion for class certification
is more than tangentially related to the merits and thus
agrees with Plaintiff that the "compelling reasons"
addition to satisfying the "compelling reasons"
test, sealing motions filed in this district must be
"narrowly tailored to seek sealing only of sealable
material." Civil L.R. 79-5(b). A party moving to seal a
document in whole or in part must file a declaration
establishing that the identified material is
"sealable." Civ. L.R. 79-5(d)(1)(A). Where the
moving party requests sealing of documents because they have
been designated confidential by another party under a
protective order, the burden of articulating compelling
reasons for sealing is placed on the designating party. Civ.
L.R. 79-5(e). Because Plaintiff states that she moves to seal
in order to comply with the protective order in this case,
the burden falls to Defendants to establish compelling
reasons for sealing. Defendants have submitted the
declaration of their attorney, Charles C. Sipos, who
articulates Defendants' reasons for sealing the documents
in question. See Sipos Decl., ECF 160.
Documents that Plaintiff Moves to Seal in their
moves to seal the following documents in their entirety:
Exhibits 1-3 through 1-6, 1-9 through 1-12, 1-14 through
1-33, 1-35, 1-46, and 1-48 through 1-51 to the Declaration of
Rafey S. Balabanian in Support of Plaintiff's Motion for
Class Certification. See Balabanian Decl., ECF
158-1. These documents fall into three general categories:
deposition transcripts, emails, and documents containing
technical and/or customer data.
counsel, Mr. Sipos, states in his declaration that all of
these documents, with the exception of Exhibit 1-48, disclose
confidential, sensitive, and proprietary information
regarding Defendants' business matters, including Google
Wallet and Google Play. Sipos Decl. ¶¶ 3-7. He
states that the information has not been publicly disclosed
and that disclosure of the information would provide insight
into Defendants' confidential business matters and cause
it to suffer competitive harm. Id. ¶¶ 6-7.
Plaintiff's request as to these documents is narrowly
tailored. The deposition transcripts are limited to excerpts
in which confidential or proprietary information is
discussed. The emails discuss Defendants' internal
business affairs, and the remaining documents containing
technical and/or customer data. Accordingly, the motion to
seal is GRANTED as to Exhibits 1-3 through 1-6, 1-9 through
1-12, 1-14 through 1-33, 1-35, 1-46, and 1-49 through 1-51 to
the Declaration of Rafey S. Balabanian.
respect to Exhibit 1-48, which is an excerpt of
Plaintiff's deposition, Mr. Sipos states only that
Plaintiff designated her testimony as confidential under the
protective order and that Defendants do not object to the
sealing of Plaintiff's testimony. Mr. Balabanian's
declaration submitted in support of Plaintiff's sealing
motion states only that Plaintiff has designated her
deposition transcript as confidential. The fact that
Plaintiff previously designated her deposition testimony as
confidential is insufficient to justify sealing. The
compelling reasons standard must be met even as to documents
that were previously filed under seal or protective order.
Kamakana, 447 F.3d at 1179. Neither Plaintiff nor
Defendants have shown the requisite compelling reasons with
respect to Plaintiff's deposition testimony. The motion
to seal is DENIED as to Exhibit 1-48.
Documents that Plaintiff Moves to Seal in Part
moves to seal the following documents in part: Exhibits 1-13,
1-36, and 1-47 to the Declaration of Rafey S. Balabanian.
See Balabanian Decl., ECF 158-1. Plaintiff also
moves to seal portions of her Memorandum in Support of Motion
for Class Certification. See id.
addressing the substance of these sealing requests, the Court
notes that Plaintiff has not complied with this Court's
Civil Local Rules, which require that the unredacted version
of the document as to which sealing is sought "must
indicate, by highlighting or other clear method, the portions
of the document that have been omitted from the redacted
version." Civ. L.R. 79-5(d)(1)(D). While Plaintiff has
submitted both redacted and unredacted versions of Exhibits
1-13, 1-36, and 1-47, as well as her Memorandum, the
unredacted versions do not indicate which portions of the
document have been omitted from the redacted versions. For
the sake of judicial efficiency, and because Plaintiff seeks
redaction as to only four documents, the Court on this
one occasion has conducted a side-by-side comparison
of the redacted and unredacted versions of the documents to
identify the material as to which sealing is requested. The
Court will not undertake such an exercise again in this case.
Any sealing request that does not comply with Civil Local
Rule 79-5(d)(1)(D) will be denied without substantive review.
1-13 and 1-36 are Defendants' discovery responses.
Exhibit 1-47 is the report of Plaintiff's expert, Dr.
Henry Fishkind. Defendants' counsel, Mr. Sipos, states in
his declaration that the proposed redacted portions of these
documents contain confidential, sensitive, and proprietary
information regarding Defendants' business matters. Sipos
Decl. ¶¶ 5-6. Mr. Sipos also states that the
information has not been publicly disclosed and that
disclosure would cause Defendants competitive harm.
Id. ¶ 6. The proposed redactions appear to be
narrowly tailored. The motion to seal is GRANTED as to the
proposed redactions of Exhibits 1-13, 1-36, and 1-47 to the
Declaration of Rafey S. Balabanian.
respect to Plaintiffs Memorandum in Support of Motion for
Class Certification, the proposed redactions discuss the
sealable portions of the documents referenced above. The
proposed redactions are narrowly tailored. Accordingly, the
motion to seal is GRANTED as to the proposed redactions of
Plaintiff s Memorandum in Support of Motion for Class