Opinion
Case No. 5:18-md-02827-EJD
04-22-2019
IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION
ORDER RE MOTION TO SEAL SECOND AMENDED COMPLAINT AND RE PROCEDURE FOR MOTIONS TO SEAL
Re: Dkt. No. 279, 304, 311
The Court presently considers the parties' Joint Administrative Motion to File Plaintiffs' Second Amended Complaint ("SAC") Under Seal. Dkt. 304. The Court does not consider the substance of the other motions to seal currently pending. Dkt. 279, 311. For the reasons discussed herein, the Court grants in part and denies in part this Motion. The Court also provides instruction to the parties on how they should prepare motions to seal going forward. In light of the new instructions and this Order as to specific portions of the SAC sought to be sealed, the other motions to seal are hereby denied without prejudice. After meeting and conferring in good faith, the parties shall re-rile those motions to seal as described below.
This Motion is the parties' second attempt to seal the SAC. The Court denied without prejudice the previous motion to seal the SAC. Dkt. 243, 290. In the prior order, the Court considered authorities holding that, for documents like the SAC that are more than tangentially related to the underlying action, there exists "strong presumption in favor of access," but courts should still seal where there are "compelling reasons supported by specific factual findings" for doing so. Dkt. 290 at 1-2 (citing Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 (9th Cir. 2016)). The Court denied that motion because it was overly broad. Dkt. 290. The Court declined to examine the proposed redactions, but instead sought to provide guidance to the parties stating that the following categories of redactions were too broad: "general descriptions of how lithium-ion batteries function; titles of sections that do not disclose any confidential information; the existence of other investigations regarding Apple's conduct; and general descriptions of plaintiffs' allegations." Id. at 2. In the Order denying the motion to seal portions of the motion to dismiss, the Court provided further guidance, finding that "Apple seeks to seal generalized allegations regarding its conduct. For example, Apple seeks to seal Plaintiffs' allegation that '[Apple's] representation was plainly intended to convey to consumers that the battery in their Device was designed to continue to function as advertised for approximately 500 days.'" Dkt. 291 at 2.
"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). But, the party seeking to seal materials may show compelling reasons where their disclosure "could be used to 'gratify private spite or promote public scandal,' to circulate 'libelous' statements, or 'as sources of business information that might harm a litigant's competitive standing.'" Lucas v. Breg, Inc., 2016 WL 5464549, at *1 (S.D. Cal. Sept. 28, 2016) (quoting Nixon, 435 U.S. at 598). To make this showing, the moving party must provide "specific factual findings that outweigh the general history of access and the public policies favoring disclosure." Opperman v. Path, Inc., 2017 WL 1036652, at *1 (N.D. Cal. Mar. 17, 2017). Courts applying the compelling reasons standard have upheld the sealing of trade secrets, marketing strategies, product development plans, detailed product-specific financial information, customer information, internal reports and other such materials that could harm a party's competitive standing. See, e.g., In re Elec. Arts, Inc., 298 F. App'x 568, 569 (9th Cir. 2008); Opperman, 2017 WL 1036652; Lucas, 2016 WL 5464549; Rodman v. Safeway Inc., 2015 WL 13673842 (N.D. Cal. Aug. 4, 2015). However, courts should exercise caution not allow these exceptions swallow the strong presumption in favor of disclosure. "There 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." Lucas, 2016 WL 5464549, at *1 (S.D. Cal. Sept. 28, 2016) (quoting Kamakana, 447 F.3d at 1179).
Here, the parties have not agreed how much of the SAC should be sealed and are not close to agreement. Apple has proposed redactions to about 40 paragraphs. Plaintiffs agree that one portion of one paragraph meets the compelling reasons standard and opposes the other redactions. Both parties overreach. Google, again, seeks to seal "generalized allegations regarding its conduct" as well as other material that does not meet the compelling-reasons standard. But Plaintiffs oppose sealing material that would have a negative impact on Google's competitive standing in the market if disclosed.
The Court now ORDERS as follows as to the particular portions of the SAC that Apple seeks to seal:
| Paragraph, Page, andLine Numbers | Ruling |
|---|---|
| ¶3, 1:15, 17, 18 | GRANTED. It is appropriate to seal material pertaining toongoing investigations. See In re Hewlett-Packard Co. S'holderDerivative Litig., 2015 WL 8570883, at *6 (N.D. Cal. Nov. 18,2015). |
| ¶4, 2:1-2 | DENIED. This material relates to the Plaintiffs' generalallegations against Apple. |
| ¶5, 2:4-8 | DENIED as to the first sentence. The first sentence relates toPlaintiffs' general allegations against Apple. GRANTED as tothe remainder of the paragraph. The rest of the paragraph relatesto specific information concerning Apple's internal andconfidential procedures and engineering details. |
| ¶6, 2:9-13 | DENIED. This material relates to the Plaintiffs' generalallegations against Apple. |
| ¶9, 2:20-23 | DENIED. This material concerns external communications andrelates to Plaintiffs' general allegations against Apple andexternal communications. |
| ¶10, 2:24-27, 3:1-2 | GRANTED as to the first sentence. This sentence relates toApple's internal procedures and decision making. DENIED as tothe second sentence. The second sentence relates to Plaintiffs'general allegations against Apple. |
| ¶12, 3:6 | DENIED. This material relates to Plaintiffs' general allegationsagainst Apple. |
| Paragraph, Page, andLine Numbers | Ruling |
|---|---|
| ¶14, 3:16 | GRANTED. This material relates to Apple's internal researchand development information. |
| ¶369, 126:7-12 | DENIED as to the first sentence. The first sentence relates toPlaintiffs' general allegations against Apple. GRANTED as tothe rest of the paragraph. This material relates to Apple's internalresearch and development information. |
| ¶371, 126:17-19 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶373, 127:1-3 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶374, 127:7-8 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶375, 127:10-14 | DENIED. This material concerns external communications andrelates to Plaintiffs' general allegations against Apple andexternal communications. |
| ¶376, 127:15-21 | GRANTED. This material concerns Apple's internal proceduresand business strategy decisions. |
| ¶377, 127:22-26 | GRANTED. This material concerns Apple's internal proceduresand business strategy decisions. |
| 128:28 (n.39) | GRANTED. This material concerns specific and confidentialengineering and technical information. |
| ¶383, 130:4-7 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶384, 130:9-11 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶385, 130:12-16 | DENIED. This material relates to the Plaintiffs' generalallegations against Apple. |
| ¶386, 130:17-20 | GRANTED. This material concerns Apple's confidentialcommercial information and strategy decisions. |
| ¶387, 130:21-27 | DENIED as to the first sentence. The first sentence concernsexternal communications. GRANTED as to the second sentence.The second sentence concerns Apple's internal research anddevelopment. |
| ¶388, 131:3-7 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| Paragraph, Page, andLine Numbers | Ruling |
|---|---|
| ¶389, 131:8-14 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶390, 131:15-24 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| 131:28 (n.46) | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶391, 132:1-6 | GRANTED. This material concerns Apple's internal researchand development. |
| ¶392, 132:7-12 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶393, 132:14-15 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶394, 132:16-18 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶395, 132:19-21 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| 132:25-28 (n.47) | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶396, 133:1-4 | GRANTED. This material concerns Apple's internal researchand development, its engineering and technical information, andits internal strategy decisions. |
| ¶397, 133:5-12 | GRANTED. This material concerns Apple's internal researchand development. |
| ¶398, 133:13-15 | GRANTED. This material concerns Apple's internal researchand development. |
| ¶399, 133:16-18 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶400, 133:19-22 | DENIED. This material concerns external communications andrelates to Plaintiffs' general allegations against Apple andexternal communications. |
| ¶401, 133:26, 134:1-2 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶403, 134:11-13 | GRANTED. This material concerns Apple's internalcommercial, research and development information. |
| Paragraph, Page, andLine Numbers | Ruling |
|---|---|
| ¶404, 134:15-20, 135:1-11 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶405, 135:12-13 | GRANTED. This material concerns Apple's internal researchand development information. |
| ¶406, 135:17-19 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶407, 135:20-26 | GRANTED. This material concerns Apple's internal researchand development, and its engineering and technical information. |
| ¶408, 136:1 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
| ¶409, 136:9-11 | DENIED. This material relates to the general factual allegationsunderlying Plaintiffs' claims. |
The Court further ORDERS that pursuant to with Civil Local Rule 79-5(f), Plaintiffs shall file a revised redacted version of the SAC that complies with this Order within seven days.
The Court further ORDERS that the parties are to comply with the following procedural instructions for all future motions to seal. The standards for sealing laid down in case law, the law of the case, and the Civil Local Rules still apply. The parties shall:
1. First, meet and confer in good faith as to whether to seal each specific portion of a document at issue.
2. If the parties cannot come to an agreement as to one or more specific portions of a document, they shall prepare a Joint Motion Regarding Sealing.
a. Each party may include limited general argument in this body of Joint Motion, such as which standard the Court should apply.
b. The Joint Motion shall include a table setting out the following for each portion sought to be sealed: the ECF number of the document in which it appears, the pincite, the supporting party's argument for that specific portion, and the opposing party's argument, if any, for that specific portion.
i. For each specific portion, the supporting party shall cite particular facts
from the Civil Local Rule 79-5(d)(1)(A) declaration or elsewhere in the record, case law, the Civil Local Rules, and the law of the case to support its argument. The opposing party may do so as well, or simply argue that the moving party has not met its burden.
ii. The table shall have the following format:
| ECF Number and Pincite ofSpecific Portion | Supporting Party'sArgument | Opposing Party's Argument |
|---|---|---|
3. Absent good cause, the Court will not consider any filings beyond the Joint Motion in connection with sealing a particular portion of a document.
4. The provisions of Civil Local Rule 79-5, including 79-5(d)(1)(A)-(D), shall otherwise apply to each Joint Motion Regarding Sealing.
The Court further ORDERS that the other motions to seal currently pending (dkt. 279, 311) are denied without prejudice. In light of the Court's ruling as to specific portions of the SAC, the parties are to meet and confer as to the sealing of Plaintiffs' Opposition to the Motion to Dismiss the Second Amended Complaint and of the transcript of the March 7, 2019 hearing. Within 10 days of the date of this Order, the parties shall file separate Joint Motions Regarding Sealing for each of those documents.
IT IS SO ORDERED. Dated: April 22, 2019
/s/_________
EDWARD J. DAVILA
United States District Judge