United States et al v. Google LLC Document 248: Memorandum In Support

Virginia Eastern District Court
Case No. 1:23-cv-00108-LMB-JFA
Filed June 2, 2023

Memorandum in Support re [247] MOTION to Seal re Doc. 245 & 246 filed by Google LLC. (Reilly, Craig)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
vs.
No: 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT GOOGLE LLC’S MOTION TO SEAL
Pursuant to Local Civil Rule 5(C), Defendant Google LLC (“Google”) submits this
Memorandum in Support of its Motion to Seal. Google seeks leave to file a redacted Opposition
to Plaintiffs’ Motion for In Camera Inspection and to Compel Production of Documents
Withheld As Privileged, and certain sealed exhibits submitted in support thereof. For the reasons
stated below, Google respectfully requests that the Court grant the Motion.
LEGAL STANDARD
Before allowing documents to be filed under seal, the Court must “(1) provide public
notice of the request to seal and allow interested parties a reasonable opportunity to object, (2)
consider less drastic alternatives to sealing the documents, and (3) provide specific reasons and
factual findings supporting its decision to seal the documents and for rejecting the alternatives.”
Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
Civil discovery materials may be shielded from public disclosure under Rule 26(c) for
“good cause.” That rule specifically identifies “confidential . . . commercial information” as
information that may be shielded for good cause. Fed. R. Civ. P. 26(c)(1)(G). The rule also
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extends to the protection of privacy rights. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.(1984) (“Although [Rule 26(c)] contains no specific reference to privacy or to other rights or
interests that may be implicated, such matters are implicit in the broad purpose and language of
the Rule.”). When a discovery motion is filed, courts apply the same “good cause” standard,
which allows courts to seal confidential discovery materials that are filed by the parties in
support of, or in opposition to, a discovery motion upon a simple showing of “good cause.”
Separately, under the common-law standard, a trial court may “seal documents if the
public’s right of access is outweighed by competing interests.”
In re Knight Publ’g Co.,
F.2d 231, 235 (4th Cir. 1984).
ARGUMENT
Google respectfully requests that the Court grant Google’s Motion to Seal because all
three requirements from Ashcraft are satisfied here and sealing is appropriate both under the
“good cause” and common-law standards.
I.
Google Has Satisfied Ashcraft’s Procedural Requirements for Sealing.
First, Google has provided public notice of its request to seal, and interested parties will
have an opportunity to object. Pursuant to Local Civil Rule 5(C), Google has publicly filed a
Notice of Motion to Seal. Entry of that Notice and the supporting documents onto the Court’s
public docket will notify any interested parties of Google’s sealing motion and provide interested
persons with “an opportunity to object.” Knight Publ’g, 743 F.2d at 234.
Second, Google has limited its sealing request to confidential material referenced in its
Opposition and attached exhibits. The proposed redactions will still provide the public access to
Google’s Opposition, and legal arguments in support, while protecting Google’s confidential and
commercially sensitive business information and the privacy of its employees. United States ex
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rel. Carter v. Halliburton Co., 2011 WL 8204612, *3 (E.D. Va. Nov. 29, 2011) (limited redaction
approved as opposed to “sealing the brief in toto”). Google’s proposal to place certain exhibits
completely under seal is necessary and appropriate because those exhibits are almost entirely
focused on Google’s sensitive confidential business information. See E.W., LLC v. Rahman,
2012 WL 3841401, at *3 (E.D. Va. Sept. 4, 2012) (granting motion to place exhibits completely
under seal where they “focused almost entirely on [] highly sensitive business information”).
Accordingly, Google has proposed the least drastic method to protect its confidential information
and the public’s right of access.
Third, as detailed in Section II, Google has provided the specific reasons supporting its
sealing request. In accordance with Local Civil Rule 5(C), Google has provided a proposed
order containing the required findings.
II.
Google’s Confidential Information that Should Be Protected from
Public Disclosure.
“Confidential information acquired or compiled by a corporation in the course and
conduct of its business is a species of property to which the corporation has the exclusive right
and benefit, and which a court of equity will protect through the injunctive process or other
appropriate remedy.” Carpenter v. United States, 484 U.S. 19, 26 (1987) (citation omitted). The
owner of confidential business information realizes value through “keeping confidential and
making exclusive use” of that information.
Id.
Because public disclosure of confidential
business information would deprive that owner of his exclusive use of it, the Court may protect
that information through an “appropriate remedy”—here, sealing.
Federal courts have long protected a party’s property interest in confidential business
information that has been produced under compulsion. Nixon v. Warner Commc’ns, Inc., U.S. 589, 598 (1978) (court files may be sealed to prevent them from becoming “sources of
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business information that might harm a litigant’s competitive standing”); Knight Publ’g, F.2d at 235 (judicial records may be sealed to prevent others from “gaining a business
advantage” from materials filed with court). As set forth below, Google seeks to seal and redact
(i) sensitive confidential business information that would not have been disclosed but for the
Department of Justice’s (“DOJ’s”) Civil Investigative Demands (“CIDs”)1 and the
commencement of this lawsuit and (ii) the identity of its employees in order to protect their
privacy:
● Exhibit A is a declaration from a Google in-house attorney submitted in support
of Google’s Opposition. The declaration reveals sensitive non-public information
about Google’s evaluation of possible remedies for potential settlement of active
government investigations and in anticipation of litigation.
● Exhibits B and C, designated “Highly Confidential,” consist of one transcript
and excerpts of another transcript from depositions of Google employees
conducted in connection with DOJ’s CIDs, which were issued under the Antitrust
Civil Process Act, 15 U.S.C. 1311 et seq. (“ACPA”). The transcripts reveal
sensitive non-public information about Google’s competitive strategy, proprietary
product features and potential changes thereto, internal processes and operations,
and proprietary technology. Exhibit B, the transcript of a Google 30(b)(6)
Deposition, also reveals strategic responses to ongoing regulatory investigations.
Public disclosure of the sensitive confidential business information contained in the
depositions and declaration would harm Google, potentially placing it at a competitive
disadvantage.
Accordingly, sealing Exhibits A, B, and C is appropriate. E.g., In re Zetia
(Ezetimibe) Antitrust Litig., 2020 WL 1558123, at *1 (E.D. Va. Feb. 7, 2020) (granting motion to
seal “confidential communications and information that are not generally known,” the disclosure
of which “would cause competitive harm” and place party “at a competitive disadvantage”);
The CID disclosure processes are conducted like civil discovery. See 15 U.S.C. §
1312(c)(1)(B) (“No [CID] shall require the production of any documentary material, the
submission of any answers to written interrogatories, or the giving of any oral testimony, if such
material, answers, or testimony would be protected from disclosure under . . . the standards
applicable to discovery requests under the Federal Rules of Civil Procedure, to the extent that the
application of such standards to any such demand is appropriate and consistent with the
provisions and purposes of this chapter.”).
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Halozyme, Inc. v. Matal, 2017 WL 8772044, at *1 (E.D. Va. Oct. 10, 2017) (granting motion to
seal documents “appear[ing] to contain confidential and commercially sensitive information”).
As to the Opposition itself, Google only requests sealing employees’ names in order to
protect their privacy. The Supreme Court has long recognized that “discovery also may seriously
implicate privacy interests of litigants and third parties” and permit “litigants to
obtain—incidentally or purposefully—information that not only is irrelevant but if publicly
released could be damaging to reputation and privacy.” Seattle Times, 467 U.S. at 35. Due to
the irrelevance of the names of employees and the potential harm posed by disclosure, courts
typically grant similarly limited requests to seal. E.g., Mondragon v. Scott Farms, Inc., 2019 WL
489117, at *13 (E.D.N.C. Feb. 7, 2019) (finding sealed filing that “redacts only the names of
employees who are not parties to this action” “adequately balances the public’s right to access
judicial records and the privacy of employees”).
Sealing the names of Google employees is also consistent with Judge Castel’s sealing
practice in the MDL litigation in the Southern District of New York. See Order at 9, In re
Google Digit. Advert. Litig., 1:21-md-03010-PKC (S.D.N.Y. Oct. 15, 2021), ECF No. (granting motion to seal names of Google employees because “[n]on-parties to an action may
have ‘significant privacy interests’ that favor redaction of identifying information. . . . The names
and contact information of these employees have no apparent bearing on any issue in this
dispute. The privacy interests of these Google employees outweighs the strong presumption of
public access.”) (citation omitted). This Court previously indicated that it would also be inclined
to continue to seal the names of Google employees to be consistent with Judge Castel’s sealing
orders. See Tr. of Mot. Transfer & Mot. Seal at 27, ECF No. 59 (explaining that Judge Castel
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grants motions to seal employee names and ruling that “I’m going to go with what he’s already
done to reduce this problem with inefficiencies and with inconsistent rulings”).
III.
Sealing is Justified Under Both the Good Cause and Common-Law
Standards
Prior to sealing a document filed with the Court, the Court must determine which sealing
standard applies. There are three different standards: (i) First Amendment, (ii) common-law, and
(iii) good cause. The first two, the First Amendment and common-law rights of access, apply
only to “judicial records.” Non-judicial records, like the discovery documents at issue here, are
governed by Rule 26’s “good cause” standard. See, e.g., Smithkline Beecham Corp. v. Abbott
Labs., 2017 WL 11552659, at *3-4 (M.D.N.C. Mar. 7, 2017). Discovery materials only become
“judicial records” prior to trial only if they are filed in support of, or in opposition to, a
dispositive motion.
Civil discovery generally is “conducted in private as a matter of modern practice,” Seattle
Times, 467 U.S. at 33, and discovery materials are not filed as a matter of course, Fed. R. Civ. P.
5(d)(1)(A). Therefore, discovery proceedings are “not public components of a civil trial.” See
Seattle Times, 467 U.S. at 33.
The sealed exhibits and the corresponding redacted text in
Google’s Opposition either relate to or are the fruits of the compulsory CID process, which is
akin to civil discovery, and thus are not inherently “judicial records.”
Cf. 15 U.S.C.
§ 1312(c)(1)(B) (providing that “the standards applicable to discovery requests under the Federal
Rules of Civil Procedure” apply to CIDs).
For documents filed with discovery motions, there is no common-law right of access.
See Smithkline, 2017 WL 11552659, at *4 (concluding that “no public access right attaches to the
documents at issue” because the documents “related to a discovery motion”); Leucadia, Inc. v.
Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993) (“[W]e hold there is a
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presumptive right to public access to all material filed in connection with nondiscovery pretrial
motions, whether these motions are case dispositive or not, but no such right as to discovery
motions and their supporting documents.”); accord Chi. Trib. Co. v. Bridgestone/Firestone, Inc.,
263 F.3d 1304, 1312 (11th Cir. 2001) (“material filed with discovery motions is not subject to the
common-law right of access”); Anderson v. Cryovac, Inc., 805 F.2d 1, 11 (1st Cir. 1986)
(“[T]here is no right of public access to documents considered in civil discovery motions.”).
Therefore, the sealing standard for exhibits filed with a discovery motion is the “good
cause” standard set forth in Rule 26(c).
A.
Sealing for “Good Cause” is Appropriate.
Under the “good cause” standard, the Court may enter an order “requiring that a trade
secret or other confidential research, development, or commercial information not be revealed.”
Fed. R. Civ. P. 26(c)(1)(G). To establish “good cause” under the Rule 26(c) standard, a party
“must establish that the information sought is covered by the rule and that it will be harmed by
disclosure.” In re Wilson, 149 F.3d 249, 252 (4th Cir. 1998). As shown above, the information
contained in Exhibits B and C constitutes Google’s confidential business information, the public
disclosure of which would cause harm to Google. Furthermore, Google only seeks to redact
limited information in the Opposition implicating the privacy rights of its employees,
information that is not relevant and could be damaging to the employees’ privacy if publicly
disclosed. Thus, Google has satisfied the “good cause” standard, and the Court can—and
should—protect this information by sealing the redacted portions of Plaintiffs’ brief and the
accompanying exhibits.
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B.
Sealing Under the Common-Law Right of Access is Also Appropriate.
The Court should still seal Google’s confidential materials even if it determines Google’s
documents qualify as judicial records. The First Amendment right of access does not extend to
civil, non-dispositive motions. See Va. Dep’t State Police v. The Washington Post, 386 F.3d 567,
576 (4th Cir. 2004). At most, then, the common-law right of access would apply. See Stone v.
Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir. 1988).
Under the common-law right of access, a court may “seal documents if the public’s right
of access is outweighed by competing interests.” Knight Publ’g, 743 F.2d at 235. Protecting
confidential business information has long been recognized as a significant private interest that
overcomes the common-law right of access and justifies sealing of judicial records. See Warner
Commc’ns, 435 U.S. at 598; Knight Publ’g, 743 F.2d at 235.
Thus, to overcome the
common-law right of access and maintain the sealing or redaction of documents, a litigant may
show that the right of access is “outweighed by competing interests,” including that the materials
contain confidential business information, the disclosure of which would be harmful. Knight
Publ’g, 743 F.2d at 235.
As shown in Section II above, Google seeks to seal its confidential business information,
the value of which would be eroded or extinguished by disclosure in the public judicial record.
Disclosure would cause competitive harm by disincentivizing innovation and by giving unearned
advantages to competitors and potential partners. Google also requests limited sealing to redact
the names of three of its employees, information that is not relevant here and could be damaging
to the employees’ privacy if publicly disclosed. Accordingly, Google has made the necessary
showing to warrant keeping the exhibits and redacted information under seal under the
common-law right of access standard.
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CONCLUSION
For the reasons argued above, the Court should grant the motion to seal. A proposed
order is submitted herewith.
Dated: June 2,
Respectfully submitted,
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street
Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Bradley Justus (VSB # 80533)
Koren Wong-Ervin (pro hac vice)
AXINN, VELTROP & HARKRIDER LLP
1901 L Street, NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-Telephone: (202) 223-Facsimile (202) 223-kdunn@paulweiss.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearnborn@paulweiss.com
Counsel for Defendant Google LLC
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