Bumpus v. Realogy Holdings Corp.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA SARAH BUMPUS, et al., Case No. 3:19-cv-03309-JD 8 Plaintiffs, ORDER RE MOTIONS TO SEAL v. Re: Dkt. Nos. 154, 166, 174, 184, 189 10 REALOGY BROKERAGE GROUP LLC (F/K/A NRT LLC), et al., Defendants.

13 The Court has addressed the standards for sealing requests in conjunction with case filings, see In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165, (N.D. Cal. Aug. 25, 2021), and that decision is incorporated here. In pertinent summary, “judicial records are public documents almost by definition, and the public is entitled to access by default.” Id. at *1 (quoting Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); see also Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (when considering a request to seal, “we start with a strong presumption in favor of access to court records.”) (quotation omitted). The party seeking to seal a document bears the burden of articulating “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure.” Id. (quotation and citation omitted).

23 General assertions of potential competitive or commercial harm are not enough to establish good cause for sealing court records, and the “fact that the parties may have designated a document as confidential under a stipulated protective order is also not enough to justify sealing.” Id. (citation omitted).

27 Plaintiffs have filed three sealing motions in connection with their class certification defendants Mojo and Realogy and by third parties WAVV Communications and PhoneBurner.

2 Realogy also filed two sealing motions in connection with its opposition to class certification.

3 Dkt. Nos. 166 and 188. The documents Realogy proposes for sealing were produced by plaintiffs, Realogy, and third parties Verizon Services, PhoneBurner, and WAVV Communications. As required by Civil Local Rule 79-5, plaintiffs and Realogy filed the initial notice of sealing for documents obtained during discovery that had been designated as confidential under the protective order entered in this case. See Dkt. No. 154 at 1-3; Dkt. No. 166 at 1-4; Dkt. No. 174 at 1-2; Dkt.

8 No. 184 at 2; Dkt. No. 189 at 1-2. Civil Local Rule 79-5 required the parties that produced the documents to state why they should be sealed, and propose ways of tailoring sealing to the narrowest possible scope.

11 Realogy and defendant Mojo filed declarations to state why the documents they produced should be sealed. Dkt. Nos. 156, 157, 177, and 191. Plaintiffs and third parties WAVV Communications, PhoneBurner, and Verizon Services did not file declarations stating why the documents they produced should be sealed. Consequently, the only reason proffered for sealing those documents is that they were labeled as confidential during document production. This falls far short of carrying the burden of establishing grounds for sealing. For its part, Realogy says that each of its documents contains “commercially sensitive information.” See, e.g., Dkt. No. 156 at ¶¶ 3-12. This conclusory showing is generally insufficient to carry the burden to establish grounds for sealing. Mojo also says only that the documents it produced contain confidential business information that would result in irreparable harm if disclosed, see Dkt. No. 157-1 at ¶¶ 7-8.

21 The parties have met their burdens for a small subset of the sealing requests. The Court’s rulings are stated in the attached chart. See Ex. A. The Court grants sealing for documents containing the names and addresses of Realogy’s contractors, who are not parties to this suit and whose private, personal information is contained in the documents. The Court declines to seal Realogy’s training materials, because Realogy fails to demonstrate a plausible risk to its business from disclosure of the documents. The Court further declines to seal the documents that were merely designated as “Confidential” with no further explanation of why they should be sealed.

1 The “default posture of public access prevails” for the documents that the Court declines to seal. In re Google Play Store Antitrust Litigation, --- F. Supp. 3d ---, 2021 WL 4190165 at *3 (quoting Kamakana, 447 F.3d at 1182). Plaintiffs and Realogy are directed to file unredacted || versions of the documents on ECF within 7 days of this order. Civil L.R. 79-5(f).

5 IT IS SO ORDERED.

6 Dated: March 18, 2022 JAMES MONATO 9 United Ptates District Judge

= 17 Z 18 1 Exhibit A to Order re Motions to Seal Document Information sought Proffered Reason for Ruling to be sealed Sealing MOTION FOR CLASS CERTIFICATION Plaintiffs’ Page 3/Lines 14, 15, Describes and quotes Denied.

6 Memorandum 16, 24–25 other documents of Points and Page 4/Lines 8, 16, identified for sealing.

7 Authorities in 17–18, 20–21 (See Dkt. No. 156 at Support of Page 5/Lines 10–12, ¶ 12) Motion for 13, 14, 15, 16–17 Class Page 6/Lines 7, 8, 13, Certification 22 10 Dkt. No. 155 Page 7/Lines 6–7 Page 17/Lines 26–27, 11 28 Page 18/Line 1 Plaintiffs’ Entire document Contains Granted. The document Memorandum commercially sensitive contains the names and 14 of Points and information including addresses of several Authorities in details regarding the Realogy agents who are not 15 Support of affiliation of parties to this suit, and Motion for independent contract whose personal information 16 Class salespersons, including and privacy should not be Certification their names, addresses, disclosed.

Dkt. No. 155 dates of affiliation, and 18 (Exhibit 1) type of affiliation.

Would be valuable to 19 competitors for recruiting activities. (See Dkt. No. 156 at 21 ¶ 3) 22 Plaintiffs’ Entire document Contains Denied.

Memorandum commercially sensitive 23 of Points and information regarding Authorities in training materials, 24 Support of which would allow Motion for competitors an unfair Class advantage by not 26 Certification having to prepare their Dkt. No. 155 own training materials.

27 (Exhibit 2) (See Dkt. No. 156 at 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Entire document Contains Denied.

3 Memorandum commercially sensitive of Points and information regarding Authorities in Realogy’s Do Not Support of Contact Policy and Motion for contractor onboarding Class process, which would Certification allow competitors an Dkt. No. 155 unfair advantage by (Exhibit 3) not having to prepare their own policies and 9 processes. (See Dkt.

No. 156 at ¶ 5) Plaintiffs’ Entire document Contains Denied.

11 Memorandum commercially sensitive of Points and information regarding 12 Authorities in Realogy’s Do Not Support of Contact Policy and Motion for contractor onboarding 14 Class process, which would Certification allow competitors an 15 Dkt. No. 155 unfair advantage by (Exhibit 4) not having to prepare 16 their own policies and processes. (See Dkt.

No. 156 at ¶ 5) Plaintiffs’ Entire document Contains Denied.

19 Memorandum commercially sensitive of Points and information regarding 20 Authorities in Realogy’s Do Not Support of Contact Policy and Motion for contractor onboarding 22 Class process, which would Certification allow competitors an 23 Dkt. No. 155 unfair advantage by (Exhibit 5) not having to prepare 24 their own policies and processes. (See Dkt.

No. 156 at ¶ 5) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Entire document Contains Denied.

3 Memorandum commercially sensitive of Points and information about the Authorities in affiliation or Support of onboarding process, Motion for which would give Class competitors an unfair Certification advantage by not Dkt. No. 155 having to prepare their (Exhibit 6) own onboarding process. (See Dkt. No. 9 156 at ¶ 6) 10 Plaintiffs’ Entire document Contains Denied.

Memorandum commercially sensitive 11 of Points and information about the Authorities in affiliation or 12 Support of onboarding process, Motion for which would give Class competitors an unfair 14 Certification advantage by not Dkt. No. 155 having to prepare their 15 (Exhibit 7) own onboarding process. (See Dkt. No. 16 156 at ¶ 7) Plaintiffs’ Entire document Contains confidential Denied.

18 Memorandum business information of Points and of Mojo, the disclosure 19 Authorities in of which would cause Support of irreparable harm to 20 Motion for Mojo. (See Dkt. No. Class 157-1 at ¶ 7-9) Certification 22 Dkt. No. 155 (Exhibit 8) Plaintiffs’ Entire document Contains confidential Denied.

24 Memorandum business information of Points and of Mojo, the disclosure 25 Authorities in of which would cause Support of irreparable harm to Motion for Mojo. (See Dkt. No. 27 Class 157-1 at ¶ 7-9) Certification 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Dkt. No. 155 (Exhibit 9) Plaintiffs’ Entire document Contains Denied.

Memorandum commercially sensitive of Points and information about Authorities in training, tools, and Support of resources available to Motion for independent contractor Class salespersons, which Certification would give Dkt. No. 155 competitors an unfair (Exhibit 10) advantage by not 10 having to create their own materials. (See 11 Dkt. No. 156 at ¶ 8) 12 Plaintiffs’ Entire document Contains Denied.

Memorandum commercially sensitive 13 of Points and information about Authorities in independent contractor Support of salesperson 15 Motion for onboarding and Class affiliation processes, 16 Certification which would give Dkt. No. 155 competitors an unfair (Exhibit 11) advantage by not 18 having to create their own materials. (See 19 Dkt. No. 156 at ¶ 9) 20 Plaintiffs’ Entire document Contains Denied.

Memorandum commercially sensitive 21 of Points and information about Authorities in training available to Support of independent contractor 23 Motion for salespersons, which Class would give 24 Certification competitors an unfair Dkt. No. 155 advantage by not 25 (Exhibit 12) having to create their own materials. (See Dkt. No. 156 at ¶ 10) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Entire document Contains Denied.

3 Memorandum commercially sensitive of Points and information about Authorities in training and materials Support of available to Motion for independent contractor Class salespersons, which Certification would give Dkt. No. 155 competitors an unfair (Exhibit 13) advantage by not having to create their 9 own materials. (See Dkt. No. 156 at ¶ 11) Plaintiffs’ Entire document Contains confidential Denied.

11 Memorandum business information of Points and of Mojo, the disclosure 12 Authorities in of which would cause Support of irreparable harm to Motion for Mojo. (See Dkt. No. 14 Class 157-1 at ¶ 7-9) Certification 15 Dkt. No. 155 (Exhibit 14) Plaintiffs’ Entire document Contains confidential Denied.

Memorandum business information 18 of Points and of Mojo, the disclosure Authorities in of which would cause 19 Support of irreparable harm to Motion for Mojo. (See Dkt. No. 20 Class 157-1 at ¶ 7-9) Certification Dkt. No. 155 22 (Exhibit 17) 23 Plaintiffs’ Entire document Designated Denied.

Memorandum confidential by non- 24 of Points and party WAVV Authorities in Communications LLC.

25 Support of (See Dkt. No. 154 at 3) Motion for Class 27 Certification 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Dkt. No. 155 (Exhibit 19) Plaintiffs’ Entire document Designated Denied.

Memorandum confidential by non- of Points and party PhoneBurner, Authorities in Inc. (See Dkt. No. 154 Support of at 3) Motion for Class Certification Dkt. No. 155 (Exhibit 20) REALOGY’S OPPOSITION TO THE MOTION FOR CLASS CERTIFICATION Realogy’s Entire document Designated as Denied.

12 Opposition to confidential by the Motion for plaintiffs. (See Dkt.

13 Class No. 166 at ¶ 4) Certification (Exhibit 10) Realogy’s Entire document Designated as Denied.

16 Opposition to confidential by the Motion for plaintiffs. (See Dkt.

17 Class No. 166 at ¶ 5) Certification 18 (Exhibit 11) 19 Realogy’s Entire document Designated as Denied.

Opposition to confidential by the Motion for plaintiffs. (See Dkt.

21 Class No. 166 at ¶ 6) Certification 22 (Exhibit 12) 23 Realogy’s Entire document Designated as Denied.

Opposition to confidential by the Motion for plaintiffs. (See Dkt.

25 Class No. 166 at ¶ 7) Certification 26 (Exhibit 13) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Realogy’s Entire document Designated as Denied.

3 Opposition to confidential by the Motion for plaintiffs. (See Dkt.

Class No. 166 at ¶ 8) Certification (Exhibit 14) Realogy’s Entire document Designated as Denied.

7 Opposition to confidential by the Motion for plaintiffs. (See Dkt.

8 Class No. 166 at ¶ 9) Certification (Exhibit 15) Realogy’s Entire document Designated as Denied.

11 Opposition to confidential by the Motion for plaintiffs. (See Dkt.

12 Class No. 166 at ¶ 10) Certification 13 (Exhibit 16) Realogy’s Entire document Designated as Denied.

15 Opposition to confidential by the Motion for plaintiffs and third- 16 Class party Verizon Services Certification Corp. (See Dkt. No. 17 (Exhibit 18) 166 at ¶ 11) 18 Realogy’s Entire document Designated as Denied.

Opposition to confidential by the Motion for plaintiffs and third- 20 Class party Verizon Services Certification Corp. (See Dkt. No. 21 (Exhibit 19) 166 at ¶ 12) 22 Realogy’s Entire document Designated as Denied.

Opposition to confidential by third- the Motion for party PhoneBurner, 24 Class Inc. (See Dkt. No. 166 Certification at ¶ 13) 25 (Exhibit 22) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Realogy’s Entire document Designated as Denied.

3 Opposition to confidential by third- the Motion for party WAVV Class Communications, Certification LLC. (See Dkt. No. (Exhibit 23) 166 at ¶ 14) Realogy’s Entire document Designated as Denied.

7 Opposition to confidential by the Motion for Realogy because it Class was based on records Certification produced by WAVV (Exhibit 33) Communications LLC, 10 PhoneBurner, Inc., and Mojo, which were 11 designated confidential. (See Dkt.

12 No. 166 at ¶ 15) 13 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Plaintiffs’ Page 6, lines 21-23 Describes and quotes Denied.

15 Reply in Page 7, lines 6-7 other documents support of Page 12, lines 9, 10 identified for sealing.

16 Motion for (See Dkt. No. 174-1 at Class ¶ 6) 17 Certification 18 Plaintiffs’ Entire Document Designated as highly Denied.

Reply in confidential by support of WAVV 20 Motion for Communications LLC.

Class (See Dkt. No. 174-1 at 21 Certification ¶ 8) (Exhibit 4) Plaintiffs’ Entire Document Designated as highly Denied.

Reply in confidential by support of WAVV Motion for Communications LLC.

25 Class (See Dkt. No. 174-1 at Certification ¶ 9) 26 (Exhibit 5) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Entire Document Contains Granted. The document Reply in commercially sensitive contains the names and support of information regarding addresses of several Motion for the names of Realogy agents who are Class independent contractor not parties to this suit, and Certification salespersons, whose personal (Exhibit 6) addresses, dates of information and privacy affiliation, and type of should not be disclosed.

7 affiliation, which would put competitors at an unfair advantage 9 for recruiting purposes. (See Dkt.

10 No. 177 at ¶¶ 3-4) 11 Plaintiffs’ Entire Document Designated as Denied.

Reply in confidential by 12 support of PhoneBurner, Inc. Motion for (See Dkt. No. 174-1 at Class ¶ 11) 14 Certification (Exhibit 9) Plaintiffs’ Entire Document Designated as Denied.

16 Reply in confidential by support of PhoneBurner, Inc. Motion for (See Dkt. No. 174-1 at 18 Class ¶ 12) Certification 19 (Exhibit 10) 20 REALOGY’S AMENDED OPPOSITION TO THE MOTION FOR CLASS CERTIFICATION Realogy’s Entire Document Designated as Denied.

22 Amended confidential by third- Opposition to party Verizon Services the Motion for Corp. (See Dkt. No. 24 Class 184-1 at ¶ 3) Certification 25 (Exhibit 44) 26 PLAINTIFFS’ AMENDED REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Page 6, lines 21-23 Describes and quotes Denied.

3 Amended Page 7, lines 6-7 other documents Reply in Page 12, lines 10, 11 identified for sealing.

Support of (See Dkt. No. 189-1 at Motion for ¶ 5) Class Certification Plaintiffs’ Entire Document Designated as highly Denied.

Amended confidential by Reply in WAVV Support of Communications LLC.

Motion for (See Dkt. No. 189-1 at 10 Class ¶ 7) Certification 11 (Exhibit 4) 12 Plaintiffs’ Entire Document Designated as highly Denied.

Amended confidential by 13 Reply in WAVV Support of Communications LLC.

Motion for (See Dkt. No. 189-1 at 15 Class ¶ 8) Certification 16 (Exhibit 5) 17 Plaintiffs’ Entire Document Contains Granted. The document Amended commercially sensitive contains the names and Reply in information regarding addresses of several 19 Support of the names of Realogy agents who are Motion for independent contractor not parties to this suit, and 20 Class salespersons, whose personal Certification addresses, dates of information and privacy 21 (Exhibit 6) affiliation, and type of should not be disclosed. affiliation, which would put competitors 23 at an unfair advantage for recruiting 24 purposes. (See Dkt.

No. 191 at ¶ 3) 1 Document Information sought Proffered Reason for Ruling to be sealed Sealing Plaintiffs’ Entire Document Designated as Denied.

3 Amended confidential by Reply in PhoneBurner, Inc. Support of (See Dkt. No. 189-1 at Motion for ¶ 10) Class Certification (Exhibit 9) Plaintiffs’ Entire Document Designated as Denied.

8 Amended confidential by Reply in PhoneBurner, Inc. Support of (See Dkt. No. 189-1 at 10 Motion for ¶ 11) Class 11 Certification (Exhibit 10)