In re Google Assistant Privacy Litigation

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION ASIF KUMANDAN, et al., Case No. 19-cv-04286-BLF 8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE 10 GOOGLE LLC, et al., DOCUMENTS UNDER SEAL 11 Defendants. [Re: ECF No. 223] 13 Before the Court is Plaintiffs’ administrative motion seeking to seal documents submitted with Plaintiffs’ Motion for Class Certification. See ECF No. 223. Defendants Google LLC and Alphabet Inc. (together “Google”) submitted a statement in support. See ECF No. 226. Plaintiffs did not respond to Defendants’ statement. For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.

18 I. LEGAL STANDARD 19 “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Consequently, filings 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.

26 “Under the compelling reasons standard, a district court must weigh relevant factors, base its decision on a compelling reason, and articulate the factual basis for its ruling, without relying on 2010) (internal quotation marks omitted). “In general, compelling reasons sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such court files might . . . become a vehicle for improper purposes, such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Algarin v. Maybelline, LLC, No. 12CV3000 AJB DHB, 2014 WL 690410, at *2 (S.D. Cal. Feb. 21, 2014) (internal quotation marks omitted). “The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179. Courts have found that a party has demonstrated compelling reasons warranting sealing where “confidential business material, marketing strategies, product development plans could result in improper use by business competitors seeking to replicate [the company's] business practices and circumvent the time and resources necessary in developing their own practices and strategies.” Algarin, 2014 WL 690410, at *3.

14 Sealing motions filed in this district also must be “narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d).” Civil L.R. 79-5(b). Under Civil Local Rule 79-6(d), the submitting party must attach a “proposed order that is narrowly tailored to seal only the sealable material” which “lists in table format each document or portion thereof that is sought to be sealed.” In addition, 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).

20 “Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Id. Where the moving party requests sealing of documents because they have been designated confidential by another party or a non-party under a protective order, the burden of establishing adequate reasons for sealing is placed on the designating party or non-party. Civ. L.R. 79-5(e). The moving party must file a proof of service showing that the designating party or non-party has been given notice of the motion to seal. Id. “Within 4 days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file a declaration . . . establishing that all of the responsive declaration . . . and the Administrative Motion to File Under Seal is denied, the Submitting Party may file the document in the public record no earlier than 4 days, and no later than 10 days, after the motion is denied.” Civ. L.R. 79-5(e)(2).

4 II. DISCUSSION 5 This Court follows numerous other district courts within the Ninth Circuit in concluding that the compelling reasons standard applies to motions to seal documents relating to class certification.

7 See, e.g., Yan Mei Zheng v. Toyota Motor Corp., No. 17-CV-06591-BLF, 2019 WL 6841324, at *1 (N.D. Cal. Dec. 16, 2019); Wetzel v. CertainTeed Corp., No. C16-1160JLR, 2019 WL 1236859, at *3 (W.D. Wash. Mar. 18, 2019) (“[S]ince Chrysler, district courts that have addressed the issue have regularly found that the compelling reasons standard applies to motions to seal exhibits attached to motions for class certification.”); McCurley v. Royal Seas Cruises, Inc., No. 17-CV-00986-BAS- AGS, 2018 WL 3629945, at *2 (S.D. Cal. July 31, 2018) (“[C]ourts apply the compelling reasons standard to a motion to seal a document filed in connection with a motion for class certification.”); In re Seagate Tech. LLC, 326 F.R.D. 223, 246 (N.D. Cal. 2018) (applying compelling reasons standard to documents relating to class certification); Weisberg v. Takeda Pharm. U.S.A., Inc., No. CV 18-784 PA (JCX), 2018 WL 6252458, at *2 (C.D. Cal. July 3, 2018) (“Because the Motion for Class Certification is more than tangentially related to the merits of the case, the compelling reasons standard applies in determining whether to grant the Application to Seal.”).

19 Plaintiffs move to file documents or portions of documents under seal as part of its motion for class certification because Google has designated these documents as “Confidential” or “Highly Confidential” pursuant to the parties’ protective order. See ECF No. 223 ¶¶ 5-7. Plaintiffs also state that one of the documents contains proprietary analysis and study design.” Id. ¶ 6.

23 Google argues that compelling reasons exist for sealing portions of the submitted materials.

24 ECF No. 226, at 8. Google argues that portions of documents containing (1) information about the operation of Google Assistant are sealable because, if disclosed, could be a source of non-public technical and business information that competitors could use to harm Google’s competitive standing; (2) details of business opportunities and risks are sealable because they contain technical and provide an unfair advantage to competitors; and (3) information concerning the profits and losses associated with Google Assistant are sealable because they contain sensitive, confidential financial information that, if disclosed, could cause Google competitive harm. Id. at 8-9. Google further argues that the portions of the documents Google seeks to seal are sealable because their disclosure without context could cause harm to Google by providing an incomplete and misleading picture of Google’s practices and capabilities. Id. at 9.

7 The Court finds that Google has demonstrated compelling reasons for sealing the portions of documents as set forth below.

ECF No. Document Portions to Seal Result and Reasoning ECF No. 223-3 Plaintiffs’ Highlighted GRANTED. These portions of 11 Memorandum of Law portions on pages the document contain ISO Motion for Class i, 2, 4-13, 15, 17- confidential and commercial 12 Certification 22 information about (1) the operation of Google Assistant; 13 (2) business opportunities and risk; and (3) details of Google’s understanding of the 15 profits or losses associated with Google assistant. Decl. of 16 Nino Tasca (“Tasca Decl.”)

¶¶ 3, 5, ECF No. 226-1.

17 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and Exhibit 2 (GOOG- highly sensitive proprietary 19 ASST-00232470) and commercial information about the operation of Google 20 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 22 Exhibit 3 (GOOG- highly sensitive proprietary ASST-03004766) and commercial information 23 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

24 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and Exhibit 4 (GOOG- highly sensitive proprietary 26 ASST-00236429) and commercial information about the operation of Google 27 Assistant. Tasca Decl. ¶¶ 3, 5.

Exhibit 5 (GOOG- highly sensitive proprietary ASST-00245866) and commercial information 2 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

3 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 4 Exhibit 6 (GOOG- highly sensitive proprietary ASST-00245987) and commercial information about the operation of Google 6 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 7 Margaret MacLean, contains confidential and Exhibit 7 (GOOG- highly sensitive proprietary 8 ASST-00256229) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

10 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 11 Exhibit 8 (GOOG- highly sensitive proprietary ASST-02981998) and commercial information about the operation of Google 13 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 14 Margaret MacLean, contains confidential and Exhibit 9 (GOOG- highly sensitive proprietary 15 ASST-00221881) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

17 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 18 Exhibit 10 (GOOG- highly sensitive proprietary ASST-00001303) and commercial information 19 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 21 Margaret MacLean, contains confidential and Exhibit 11 (GOOG- highly sensitive proprietary 22 ASST-00257457) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

24 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 25 Exhibit 12 (GOOG- highly sensitive proprietary ASST-00228874) information about business 26 opportunities and risks. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document Exhibit 13 (GOOG- highly sensitive proprietary ASST-03045622) and commercial information 2 about the profits or losses of Google Assistant. Tasca Decl.

3 ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 4 Margaret MacLean, contains confidential and Exhibit 14 (GOOG- highly sensitive proprietary ASST-03045632) and commercial information 6 about the profits or losses of Google Assistant. Tasca Decl.

7 ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 8 Margaret MacLean, contains confidential and Exhibit 15 (GOOG- highly sensitive proprietary ASST-00233284) and commercial information 10 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

11 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and Exhibit 16 (GOOG- highly sensitive proprietary 13 ASST-00244130) and commercial information about the operation of Google 14 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 15 Margaret MacLean, contains confidential and Exhibit 17 (GOOG- highly sensitive proprietary ASST-03026660) and commercial information 17 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

18 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 19 Exhibit 18 (GOOG- highly sensitive proprietary ASST-00231206) and commercial information about the operation of Google 21 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of DENIED. Google did not 22 Margaret MacLean, request the sealing of this Exhibit 19 (GOOG- document.

ASST-00003331) 24 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 25 Exhibit 20 (GOOG- highly sensitive proprietary ASST-00031411) and commercial information 26 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document Exhibit 21 (GOOG- highly sensitive proprietary ASST-03026477) and commercial information 2 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

3 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 4 Exhibit 22 (GOOG- highly sensitive proprietary ASST-03026503) and commercial information about the operation of Google 6 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 7 Margaret MacLean, contains confidential and Exhibit 23 (GOOG- highly sensitive proprietary 8 ASST-03026518) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

10 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 11 Exhibit 24 (GOOG- highly sensitive proprietary ASST-00003555) and commercial information about the operation of Google 13 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document DENIED. Google states that 14 Margaret MacLean, the document “[c]ontains Exhibit 28 (GOOG- information considered 15 ASST-03036619) confidential by Plaintiffs Melissa Spurr.” ECF No. 226, at 4. Plaintiffs state that the 17 document was “[d]esignated by Google as ‘Confidential’ 18 pursuant to the Protective Order.” ECF No. 223, at 3.

19 Neither statement provides adequate justification to seal the document.

21 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 22 Exhibit 29 (GOOG- highly sensitive proprietary ASST-03026521) and commercial information 23 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 25 Margaret MacLean, contains confidential and Exhibit 30 (GOOG- highly sensitive proprietary 26 ASST-03026522) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

Margaret MacLean, contains confidential and Exhibit 31 (GOOG- highly sensitive proprietary 2 ASST-03034181) and commercial information about the operation of Google 3 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 4 Margaret MacLean, contains confidential and Exhibit 32 (GOOG- highly sensitive proprietary ASST-03037485) and commercial information 6 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

7 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 8 Exhibit 33 (GOOG- highly sensitive proprietary ASST-00001403) and commercial information about the operation of Google 10 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 11 Margaret MacLean, contains confidential and Exhibit 34 (GOOG- highly sensitive proprietary ASST-00217138) and commercial information 13 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

14 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 15 Exhibit 35 (GOOG- highly sensitive proprietary ASST-03030779) and commercial information about the operation of Google 17 Assistant and contains personally identifiable 18 information of Plaintiff Robert Spurr. Tasca Decl. ¶¶ 3, 5.

19 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and Exhibit 36 (GOOG- highly sensitive proprietary 21 ASST-00023627) and commercial information about the operation of Google 22 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document DENIED. Google states that Margaret MacLean, the document “[c]ontains 24 Exhibit 37 (GOOG- information considered ASST-03030863) confidential by Plaintiff Steven 25 Robert Spurr.” ECF No. 226, at 5. Plaintiffs state that the 26 document was “[d]esignated by Google as ‘Confidential’ pursuant to the Protective Neither statement provides adequate justification to seal 2 the document.

ECF No. 223-4 Declaration of Document DENIED. Google states that 3 Margaret MacLean, the document “[c]ontains Exhibit 38 (GOOG- information considered 4 ASST-03030950) confidential by Plaintiff Steven Robert Spurr.” ECF No. 226, at 5. Plaintiffs state that the 6 document was “[d]esignated by Google as ‘Confidential’ 7 pursuant to the Protective Order.” ECF No. 223, at 4.

8 Neither statement provides adequate justification to seal the document.

10 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 11 Exhibit 39 (GOOG- highly sensitive proprietary ASST-00232904) and commercial information about business opportunities and risks. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 14 Margaret MacLean, contains confidential and Exhibit 40 (GOOG- highly sensitive proprietary 15 ASST-00025679) and commercial information about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

17 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 18 Exhibit 41 (GOOG- highly sensitive proprietary ASST-00022753) and commercial information 19 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 21 Margaret MacLean, contains confidential and Exhibit 43 (GOOG- highly sensitive proprietary 22 ASST-00217177) information about business opportunities and risks. Tasca 23 Decl. ¶¶ 3, 5.

24 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 25 Exhibit 44 (GOOG- highly sensitive proprietary ASST-02989251) and commercial information 26 about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document Exhibit 45 (GOOG- highly sensitive proprietary ASST-00256167) information about business 2 opportunities and risks. Tasca Decl. ¶¶ 3, 5.

3 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 4 Exhibit 46 (GOOG- highly sensitive proprietary ASST-00244117) and commercial information about the operation of Google 6 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 7 Margaret MacLean, contains confidential and Exhibit 47 (Excerpts highly sensitive proprietary 8 from the deposition and commercial information of Francoise about the operation of Google Beaufays dated April Assistant. Tasca Decl. ¶¶ 3, 5.

10 22, 2022) ECF No. 223-4 Declaration of Document GRANTED. This document 11 Margaret MacLean, contains confidential and Exhibit 48 (Excerpts highly sensitive proprietary from the deposition and commercial information 13 of Francoise about the operation of Google Beaufays dated April Assistant. Tasca Decl. ¶¶ 3, 5.

14 12, 2022) ECF No. 223-4 Declaration of Document GRANTED. This document 15 Margaret MacLean, contains confidential and Exhibit 49 (Excerpts highly sensitive proprietary from the deposition and commercial information 17 of Francoise about the operation of Google Beaufays dated April Assistant. Tasca Decl. ¶¶ 3, 5.

18 22, 2022) ECF No. 223-4 Declaration of Document GRANTED. This document 19 Margaret MacLean, contains confidential and Exhibit 50 (Excerpts highly sensitive proprietary from the deposition and commercial information 21 of Brian Horling) about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

22 ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and Exhibit 51 (Excerpts highly sensitive proprietary 24 from the deposition and commercial information of Caroline Kenny) about the operation of Google 25 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 26 Margaret MacLean, contains confidential and Exhibit 52 (Excerpts highly sensitive proprietary from the deposition and commercial information Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document 2 Margaret MacLean, contains confidential and Exhibit 53 (Excerpts highly sensitive proprietary 3 from the deposition and commercial information of Mary Ioannidis) about the operation of Google 4 Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Document GRANTED. This document Margaret MacLean, contains confidential and 6 Exhibit 54 (Excerpts highly sensitive proprietary from the deposition and commercial information 7 of Nino Tasca) about the operation of Google Assistant. Tasca Decl. ¶¶ 3, 5.

ECF No. 223-4 Declaration of Highlighted GRANTED. This highlighted Margaret MacLean, portion on pages portions reflect confidential Exhibit 57 9-10, 15, 20-21, and highly sensitive 10 (Declaration of F. 26, 30-36 proprietary and commercial Torres in Support of information about (1) the 11 Plaintiffs’ Motion for operation of Google Assistant’ Class Certification) and (2) details of Google’s understanding of the profits or 13 losses associated with Google Assistant. Tasca Decl. ¶¶ 3, 5.

14 ECF No. 223-4 Declaration of Document GRANTED. This highlighted Margaret MacLean, portions reflect confidential 15 Exhibit 58 and highly sensitive (Declaration of proprietary and commercial Rebecca Reed- information about (1) the 17 Arthurs in Support of operation of Google Assistant’ Plaintiffs’ Motion for (2) business opportunities and 18 Class Certification) risks; and (3) details of Google’s understanding of the 19 profits or losses associated with Google Assistant. Tasca Decl. ¶¶ 3, 5.

21 /// /// /// /// /// /// /// /// /// I. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s Administrative Motion to Seal (ECF No. 223). Within ten (10) days of this order, Plaintiffs SHALL file public, non-redacted versions of Exhibits 19, 28, 37, and 38 to the Declaration of Margaret MacLean filed at ECF No. 223-4, except that Plaintiffs SHALL redact information consistent with Federal Rule of Civil Procedure 5.2.

IT IS SO ORDERED.

Dated: September 16, 2022 én) kom Ly homme 10 BETH LABSON FREEMAN United States District Judge a 12

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