ORDER - This matter is before the court on three motions to seal (Docket nos. 217, 247, 258) relating to the pleadings filed concerning plaintiffs' motion for in camera inspection and to compel production of documents wrongfully withheld as privileged (Docket no. 214 ). As the court indicated during the hearing on June 15, 2023, it appears that defendant needs to revisit the materials that it is seeking to file under seal. The court is issuing this order to provide defendant with some guidance for its review concerning these motions and any additional filings. Signed by Magistrate Judge John F. Anderson on 07/03/2023. SEE ORDER FOR FURTHER DETAILS. (wgar, )
Page 1 PageID#
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
GOOGLELLC,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 1:23cv0108 (LMB/JFA)
ORDER
This matter is before the court on three motions to seal (Docket nos. 217, 247, 258)
relating to the pleadings filed concerning plaintiffs' motion for in camera inspection and to
compel production of documents wrongfully withheld as privileged (Docket no. 214 ). As the
court indicated during the hearing on June 15, 2023, it appears that defendant needs to revisit the
materials that it is seeking to file under seal. The court is issuing this order to provide defendant
with some guidance for its review concerning these motions and any additional filings.
First, the parties have complied with all the notice and procedural requirements set forth
Local Civil Rule 5 and the protective order entered in this case. While no objection has been
filed to any of the motions to seal and the seven-day period for filing objections has expired, the
court has the responsibility to review the motions to seal to see if they are appropriate. The first
and third motion to seal (Docket nos. 217 and 258) were filed by plaintiffs as required by Local
Civil Rule 5 since the material subject to those motions to seal was designated as confidential by
defendant. 1 Plaintiffs indicate that they do not believe that the information referenced in those
Plaintiffs have indicated that defendant designated as highly confidential all documents
produced in response to the civil investigative demands. (Docket no. 221 at 1, emphasis added).Page 2 PageID#
pleadings or exhibits is of a type that outweighs the presumption in favor of public access. As
required by Local Rule 5, defendant has filed a response to plaintiffs' motions to seal stating that
all the information that is the subject of plaintiffs' motions to seal should remain under seal.
Defendant's response to the first motion to seal included a declaration of Dan Taylor indicating
that he has reviewed the redacted portions of plaintiffs' memorandum in support of their motion
and states that the requested relief (allowing those redactions to remain under seal) "is narrowly
tailored and seeks to seal only information that would harm Google if publicly disclosed."
(Docket no. 236-1 at 3). Defendant makes the same broad statement that the third motion to seal
should be granted to protect defendant's interests.
Curiously, information that defendant argues should be sealed in plaintiffs' memorandum
and reply was filed in the public record in defendant's opposition to the motion. (Docket no.
245). A clear example of this inconsistency is the names of the various "Remedy Projects" in the
briefs. Plaintiffs redacted all those names in their supporting memorandum and reply (which
defendant claims should remain under seal in its two memoranda in support of plaintiffs'
motions to seal) but in its opposition, defendant provides those very same names in the public
record. In addition, substantive information that plaintiffs felt compelled to redact in their
pleadings given defendant's wholesale designation of documents as highly confidential was also
filed in the public record by defendant in its opposition. In filing a memorandum in support of a
motion to seal, the party designating the material must provide the court with a statement why
sealing is necessary as to the specific material that it is seeking to have remain under seal. In this
instance, defendant's memorandum and sworn declaration stating that information redacted by
plaintiffs in their pleading should remain under seal when defendant has filed that information in
the public record is difficult understand. By designating highly confidential every one of the Page 3 PageID#
millions of documents produced in response to the United States' civil investigative demands,
defendant has set the stage for plaintiffs having to file substantially redacted briefs and
documents in this case. By doing so, defendant has the obligation to review closely each
redaction and document that plaintiffs file under seal based on defendant's designation of that
specific information as confidential. Clearly defendant has failed to do so concerning its
memoranda in support of plaintiffs' motions to seal.
As to defendant's motion to seal, the issues are not as significant. Defendant's motion to
seal seeks to redact the names of individuals employed by defendant that were deposed or
otherwise related to issues in this action. While the court in the New York action has allowed
these names to be sealed in its proceedings, and our court has indicated an initial acquiescence to
maintaining that approach, the parties need to understand that maintaining that information under
seal throughout this litigation is unlikely. This is especially true with individuals who are
submitting affidavits or declarations to the court. In this regard, defendant needs to review
closely exhibit A to its opposition and either file an unsealed version of that declaration or a
redacted version providing an explanation as to why that specific information should be under
seal. Substantial portions of that declaration are included in the public version of the
memorandum in opposition to plaintiffs' motion.
Defendant's memoranda argue there are three standards that should be considered in
deciding a motion to seal. The first being a "good cause" standard for exhibits filed with a
discovery motion. The second being significant countervailing interests that heavily outweigh
the presumption of access under the common law right to access. The final being the First
Amendment requirement of a compelling governmental interest to support filing materials under
seal relating to a dispositive motion. This court intends to follow the guidance from the Fourth Page 4 PageID#
Circuit in Va. Dept. o_f"State Police v. The Wash. Post, 386 F.3d 567 (4th Cir. 2004), in making
its rulings on motions to seal and require a showing of significant countervailing interests that
outweigh the presumption of access.
Defendant sha ll have fourteen days from the issuance of this order to complete its review
of the materials that are the subject of these motions to seal and to provide the court w ith a
memorandum detailing the results of its review. To the extent defendant proposes a less redacted
version of plaintiffs' memoranda, it shall file the less redacted version a long w ith its
memorandum explaining w hy any redacted material sho uld remain under seal. In addition,
defendant should consider w hether the correspondence between counsel attached to plaintiffs'
memorandum in support of its first m otion as exhibits 1, 2, 11 , 12 (with defendant employee's
names redacted), 13, 15, 16, 17, and 29 (with defendant employee's names redacted), should be
fil ed in the public record.
-
_____ /s/ ___-=----
Entered this 3rd day of July, 2023 .
Jolln F. Anderson
United States Magistrate Judge
Jo hn F. A nderson
U nited States Magistrate Judge
Alexandria, Virginia
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-00108-LMB-JFA Document 280 Filed 07/03/23 Page 1 of 4 PageID# 2675
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
GOOGLELLC,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 1:23cv0108 (LMB/JFA)
ORDER
This matter is before the court on three motions to seal (Docket nos. 217, 247, 258)
relating to the pleadings filed concerning plaintiffs' motion for in camera inspection and to
compel production of documents wrongfully withheld as privileged (Docket no. 214 ). As the
court indicated during the hearing on June 15, 2023, it appears that defendant needs to revisit the
materials that it is seeking to file under seal. The court is issuing this order to provide defendant
with some guidance for its review concerning these motions and any additional filings.
First, the parties have complied with all the notice and procedural requirements set forth
Local Civil Rule 5 and the protective order entered in this case. While no objection has been
filed to any of the motions to seal and the seven-day period for filing objections has expired, the
court has the responsibility to review the motions to seal to see if they are appropriate. The first
and third motion to seal (Docket nos. 217 and 258) were filed by plaintiffs as required by Local
Civil Rule 5 since the material subject to those motions to seal was designated as confidential by
defendant. 1 Plaintiffs indicate that they do not believe that the information referenced in those
1
Plaintiffs have indicated that defendant designated as highly confidential all documents
produced in response to the civil investigative demands. (Docket no. 221 at 1, emphasis added).
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 280 Filed 07/03/23 Page 2 of 4 PageID# 2676
pleadings or exhibits is of a type that outweighs the presumption in favor of public access. As
required by Local Rule 5, defendant has filed a response to plaintiffs' motions to seal stating that
all the information that is the subject of plaintiffs' motions to seal should remain under seal.
Defendant's response to the first motion to seal included a declaration of Dan Taylor indicating
that he has reviewed the redacted portions of plaintiffs' memorandum in support of their motion
and states that the requested relief (allowing those redactions to remain under seal) "is narrowly
tailored and seeks to seal only information that would harm Google if publicly disclosed."
(Docket no. 236-1 at 3). Defendant makes the same broad statement that the third motion to seal
should be granted to protect defendant's interests.
Curiously, information that defendant argues should be sealed in plaintiffs' memorandum
and reply was filed in the public record in defendant's opposition to the motion. (Docket no.
245). A clear example of this inconsistency is the names of the various "Remedy Projects" in the
briefs. Plaintiffs redacted all those names in their supporting memorandum and reply (which
defendant claims should remain under seal in its two memoranda in support of plaintiffs'
motions to seal) but in its opposition, defendant provides those very same names in the public
record. In addition, substantive information that plaintiffs felt compelled to redact in their
pleadings given defendant's wholesale designation of documents as highly confidential was also
filed in the public record by defendant in its opposition. In filing a memorandum in support of a
motion to seal, the party designating the material must provide the court with a statement why
sealing is necessary as to the specific material that it is seeking to have remain under seal. In this
instance, defendant's memorandum and sworn declaration stating that information redacted by
plaintiffs in their pleading should remain under seal when defendant has filed that information in
the public record is difficult understand. By designating highly confidential every one of the
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 280 Filed 07/03/23 Page 3 of 4 PageID# 2677
millions of documents produced in response to the United States' civil investigative demands,
defendant has set the stage for plaintiffs having to file substantially redacted briefs and
documents in this case. By doing so, defendant has the obligation to review closely each
redaction and document that plaintiffs file under seal based on defendant's designation of that
specific information as confidential. Clearly defendant has failed to do so concerning its
memoranda in support of plaintiffs' motions to seal.
As to defendant's motion to seal, the issues are not as significant. Defendant's motion to
seal seeks to redact the names of individuals employed by defendant that were deposed or
otherwise related to issues in this action. While the court in the New York action has allowed
these names to be sealed in its proceedings, and our court has indicated an initial acquiescence to
maintaining that approach, the parties need to understand that maintaining that information under
seal throughout this litigation is unlikely. This is especially true with individuals who are
submitting affidavits or declarations to the court. In this regard, defendant needs to review
closely exhibit A to its opposition and either file an unsealed version of that declaration or a
redacted version providing an explanation as to why that specific information should be under
seal. Substantial portions of that declaration are included in the public version of the
memorandum in opposition to plaintiffs' motion.
Defendant's memoranda argue there are three standards that should be considered in
deciding a motion to seal. The first being a "good cause" standard for exhibits filed with a
discovery motion. The second being significant countervailing interests that heavily outweigh
the presumption of access under the common law right to access. The final being the First
Amendment requirement of a compelling governmental interest to support filing materials under
seal relating to a dispositive motion. This court intends to follow the guidance from the Fourth
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 280 Filed 07/03/23 Page 4 of 4 PageID# 2678
Circuit in Va. Dept. o_f"State Police v. The Wash. Post, 386 F.3d 567 (4th Cir. 2004), in making
its rulings on motions to seal and require a showing of significant countervailing interests that
outweigh the presumption of access.
Defendant sha ll have fourteen days from the issuance of this order to complete its review
of the materials that are the subject of these motions to seal and to provide the court w ith a
memorandum detailing the results of its review. To the extent defendant proposes a less redacted
version of plaintiffs' memoranda, it shall file the less redacted version a long w ith its
memorandum explaining w hy any redacted material sho uld remain under seal. In addition,
defendant should consider w hether the correspondence between counsel attached to plaintiffs'
memorandum in support of its first m otion as exhibits 1, 2, 11 , 12 (with defendant employee's
names redacted), 13, 15, 16, 17, and 29 (with defendant employee's names redacted), should be
fil ed in the public record.
-
_____ /s/ ___-=----
Entered this 3rd day of July, 2023 .
Jolln F. Anderson
United States Magistrate Judge
Jo hn F. A nderson
U nited States Magistrate Judge
Alexandria, Virginia
4
Back to 
