Perez v. Bath & Body Works, LLC

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION CARMEN PEREZ, et al., Case No. 21-cv-05606-BLF 8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO SEAL 10 BATH & BODY WORKS, LLC, et al., 11 Defendants.

13 Before the Court is Plaintiff’s Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed. ECF No. 94 (“Mot.”). Plaintiff seeks to seal certain portions of her Second Amended Complaint. See id.; see also ECF No. 95 (“SAC”). Defendant filed a declaration in support of Plaintiff’s motion. ECF No. 97 (“BBW Decl.”). Plaintiff opposes Defendant’s proposed redactions. ECF No. 98 (“Opp.”). The Court has considered the motion and supporting declarations. For the following reasons, the motion to seal is GRANTED IN PART and DENIED IN PART.

20 I. LEGAL STANDARD 21 “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 24 U.S. 589, 597 & n.7 (1978)). 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 1 In addition, in this district, all parties requesting sealing must comply with Civil Local Rule 79-5. That rule requires, inter alia, the moving party to provide “the reasons for keeping a document under seal, including an explanation of: (i) the legitimate private or public interests that warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive alternative to sealing is not sufficient.” Civ. L.R. 79-5(c)(1). Further, Civil Local Rule 79-5 requires the moving party to provide “evidentiary support from declarations where necessary.”

7 Civ. L.R. 79-5(c)(2). And the proposed order must be “narrowly tailored to seal only the sealable material.” Civ. L.R. 79-5(c)(3).

9 Further, when a party seeks to seal a document because it has been designated as confidential by another party, the filing party must file an Administrative Motion to Consider Whether Another Party’s Material Should be Sealed. Civ. L.R. 79-5(f). In that case, the filing party need not satisfy the requirements of subsection (c)(1). Civ. L.R. 79-5(f)(1). Instead, the party who designated the material as confidential must, within seven days of the motion’s filing, file a statement and/or declaration that meets the requirements of subsection (c)(1). Civ. L.R. 79- 5(f)(3). Any party can file a response to that declaration within four days. Civ. L.R. 79-5(f)(4).

16 II. DISCUSSION 17 Because the motion to seal pertains to the complaint, the Court will apply the “compelling reasons” standard. See Ponomarenko v. Shapiro, No. 16-cv-02763-BLF, 2017 WL 3605226, at *2 (N.D. Cal. Aug. 21, 2017) (applying “compelling reasons” standard to complaint).

20 Plaintiff filed an administrative motion to consider whether another party’s material should be sealed in connection with her SAC. See Mot. Plaintiff identified all lines of the SAC that contained information designated as confidential or highly confidential by BBW during discovery.

23 ECF No. 94-1 ¶ 2. BBW filed a declaration from an AVP of Legal at L Brands Service Company, LLC, a subsidiary of BBW, in support of sealing. BBW Decl. BBW proposed redactions that were more limited than those originally proposed by Plaintiff. See id. ¶ 5. BBW asserted that the identified information “could be used by competitors to obtain an unfair advantage over BBW” as they “contain detailed information regarding BBW’s internal processes for market research, testing which BBW considers highly confidential information and/or trade secrets.” Id. 2 Plaintiff filed an opposition, arguing that the information should not be sealed. See Opp.

3 Plaintiff first argues that BBW’s declaration is conclusory and does not satisfy its burden under Local Rule 79-(c)(1). Id. at 4. Plaintiff also goes through BBW’s proposed redactions and asserts why each does not meet the compelling reasons standard for sealing. Id. at 4-6.

6 The “compelling reasons” standard is met for information about product formulas, product development, and testing protocols when release of the information threatens a company’s competitive interests. See Prescott v. Reckitt Benckiser LLC, No. 20-cv-02101-BLF, 2022 WL 9 847309, at *2 (N.D. Cal. Mar. 22, 2022) (finding “compelling reasons” to protect information related to “formulas, product development, and testing protocols”); In re Google Location Hist.

11 Litig., No. 5:18-cv-05062-EJD, 514 F. Supp. 3d 1147, 1162 (N.D. Cal. Jan. 25, 2021) (“Compelling reasons may exist to seal ‘trade secrets, marketing strategies, product development plans, detailed product-specific financial information, customer information, internal reports[.]’”)

14 (quoting In re Apple Inc. Device Performance Litig., No. 5:19-MD-02827-EJD, 2019 WL 15 1767158, at *2 (N.D. Cal. Apr. 22, 2019)). But to justify sealing, “[c]onclusory statements by a party about potential harm from public disclosure, or mere hypothesis or conjecture, will not do.”

17 In re Google Play Store Antitrust Litig., 556 F. Supp. 3d 1106, 1107 (N.D. Cal. 2021).

18 The Court rules as follows on BBW’s proposed redactions: ECF No. Document Portions to Seal Ruling 20 95 Plaintiff’s SAC Page 12, lines 20-28 DENIED, as containing information Page 13, line 1 about the role of the Director of 21 Regulatory Affairs in planning, drafting, and approving label claims, 22 and not including information that could be used by competitors to gain a competitive advantage.

24 95 Plaintiff’s SAC Page 14, lines 8-9 DENIED, as containing information about competitors’ products, and not 25 including information about BBW’s internal processes for market research, 26 product positioning, product research and development, product testing, or claims and safety testing that could be ft competitive advantage, 95 Plaintiffs SAC Page 20, lines 3-13, GRANTED, as containing information 2 15-20 about training that relates to BBW’s internal processes for product 3 positioning and could potentially be used by competitors to gain a 4 competitive advantage.

5 95 Plaintiffs SAC Page 25, lines 4-20 GRANTED, as containing information about BBW’s internal processes for 6 product research and development and product testing that could potentially 7 be used by competitors to gain a competitive advantage.

8 95 Plaintiff's SAC Page 25, lines 22-26 | DENIED, as containing information 9 about competitors’ products, and not including information about BBW’s 10 internal processes for market research, product positioning, product research 11 and development, product testing, or claims and safety testing that could be used by competitors to gain a & 13 competitive advantage.

95 Plaintiff's SAC Page 26, lines 1-14 GRANTED, as containing information 14 about BBW’s internal processes for product research and development and 15 product testing that could potentially A 16 be used by competitors to gain a = competitive advantage.

|| Ti. ORDER 18 For the foregoing reasons, IT IS HEREBY ORDERED that the sealing motion is || GRANTED IN PART and DENIED IN PART.

21 Dated: November 9, 2022 Lh han ty) 22 NM 23 BETH LABSON FREEMAN United States District Judge