RESPONSE to Motion re [314] MOTION to Seal re Doc. 305 & 307 filed by United States of America. (Attachments: # (1) Exhibit 4 (redacted), # (2) Exhibit 11 (redacted), # (3) Exhibit 12 (redacted), # (4) Exhibit 13 (redacted))(Teitelbaum, Aaron)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
RESPONSE TO DEFENDANT’S MOTION TO SEAL [ECF NO. 314]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5(C) to seal
Exhibits 2-5 and 11-15 attached to its memorandum in support of its motion to compel, Dkt. Nos.
305, 307, 314. The basis for sealing is that the exhibits contain material designated as confidential
or highly confidential pursuant to the operative protective order in this action. Dkt. No. 314. The
nine exhibits at issue generally consist of correspondence, discovery responses, and deposition
transcript excerpts. As outlined below, the United States believes that the majority of the materials
contained in the exhibits as well as the portions of Google’s pleadings referencing the contents of
those exhibits need not remain sealed. To the extent that the United States believes that portions of
the exhibits (and any related references in Google’s pleadings) should remain sealed, those
portions have been redacted in the attached proposed revised exhibits for the Court’s
consideration. Accordingly, the United States requests that the Court grant Google’s motion to
seal in part.
ARGUMENT
Public access to judicial records is “protected both by the common law and the First
Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The
common law presumes a right of the public to inspect and copy ‘all judicial records andPage 2 PageID#
documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The
common law presumption in favor of public access can be overcome only by a showing that a
litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a
document, a district 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 document[], and (3) provide specific reasons and factual findings supporting its decision to
seal the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288,
302 (4th Cir. 2000); see also Local Civ. R. 5(C).
The United States recognizes that the standard for sealing under Local Rule 5 and Fourth
Circuit Precedent is stringent and reflects a strong presumption in favor of public court
proceedings and court filings. As an initial matter, the United States respectfully requests that
email addresses for individuals other than those employed by the Department of Justice remain
under seal. The proposed exhibits attached to this response—exhibits 4, 11, 12, and 13—include
those proposed redactions. The United States submits that these redactions are appropriate to
protect the privacy of such persons, and that such protection outweighs the public interest in these
individuals’ email addresses. See, e.g., Krakauer v. Dish Network, LLC, 2015 WL 12750446, at *(M.D.N.C. Nov. 18, 2015).
The only additional proposed redaction relates to Exhibit 11, which is the United States’
response to certain interrogatories. Contained in that response is detailed information related to the
United States Postal Service’s strategy for purchasing digital advertising. This is sensitive business
information not normally available to the public, and with “little to not value for public
dissemination.” See Ultra-Mek, Inc. v. United Furniture Indus., Inc., 2021 WL 8533815. While Page 3 PageID#
the fact that USPS purchases display advertising, as well as its general process for doing so may
be of public interest, the details of its strategy may remain under seal. See Bayer CropScience Inc.
v. Syngenta Crop Protection, LLC, 979 F. Supp. 2d 653, 656-57 (M.D.N.C. 2013).
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court grant
Google’s motion to seal in part, and maintain non-DOJ email addresses, as well as the proposed
redactions to Exhibit 11 under seal. There are no portions of the corresponding brief at Dkt. No.
307 that need remain under seal. Page 4 PageID#
Dated: August 25, Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Dennis C. Barghaan, Jr.
DENNIS C. BARGHAAN, JR.
Deputy Chief, Civil Division
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: dennis.barghaan@usdoj.gov
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite Washington, DC Telephone: (202) 894-Fax: (202) 616-Email: Aaron.Teitelbaum@usdoj.gov
Attorneys for the United States
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 348 Filed 08/25/23 Page 1 of 4 PageID# 5152
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
)
)
)
)
)
)
)
)
No. 1:23-cv-00108-LMB-JFA
RESPONSE TO DEFENDANT’S MOTION TO SEAL [ECF NO. 314]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5(C) to seal
Exhibits 2-5 and 11-15 attached to its memorandum in support of its motion to compel, Dkt. Nos.
305, 307, 314. The basis for sealing is that the exhibits contain material designated as confidential
or highly confidential pursuant to the operative protective order in this action. Dkt. No. 314. The
nine exhibits at issue generally consist of correspondence, discovery responses, and deposition
transcript excerpts. As outlined below, the United States believes that the majority of the materials
contained in the exhibits as well as the portions of Google’s pleadings referencing the contents of
those exhibits need not remain sealed. To the extent that the United States believes that portions of
the exhibits (and any related references in Google’s pleadings) should remain sealed, those
portions have been redacted in the attached proposed revised exhibits for the Court’s
consideration. Accordingly, the United States requests that the Court grant Google’s motion to
seal in part.
ARGUMENT
Public access to judicial records is “protected both by the common law and the First
Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The
common law presumes a right of the public to inspect and copy ‘all judicial records and
PDF Page 3
Case 1:23-cv-00108-LMB-JFA Document 348 Filed 08/25/23 Page 2 of 4 PageID# 5153
documents.’” Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The
common law presumption in favor of public access can be overcome only by a showing that a
litigant has “some significant interest that outweighs the presumption.” Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Accordingly, before ordering the sealing of a
document, a district 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 document[], and (3) provide specific reasons and factual findings supporting its decision to
seal the document[] and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288,
302 (4th Cir. 2000); see also Local Civ. R. 5(C).
The United States recognizes that the standard for sealing under Local Rule 5 and Fourth
Circuit Precedent is stringent and reflects a strong presumption in favor of public court
proceedings and court filings. As an initial matter, the United States respectfully requests that
email addresses for individuals other than those employed by the Department of Justice remain
under seal. The proposed exhibits attached to this response—exhibits 4, 11, 12, and 13—include
those proposed redactions. The United States submits that these redactions are appropriate to
protect the privacy of such persons, and that such protection outweighs the public interest in these
individuals’ email addresses. See, e.g., Krakauer v. Dish Network, LLC, 2015 WL 12750446, at *2
(M.D.N.C. Nov. 18, 2015).
The only additional proposed redaction relates to Exhibit 11, which is the United States’
response to certain interrogatories. Contained in that response is detailed information related to the
United States Postal Service’s strategy for purchasing digital advertising. This is sensitive business
information not normally available to the public, and with “little to not value for public
dissemination.” See Ultra-Mek, Inc. v. United Furniture Indus., Inc., 2021 WL 8533815. While
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 348 Filed 08/25/23 Page 3 of 4 PageID# 5154
the fact that USPS purchases display advertising, as well as its general process for doing so may
be of public interest, the details of its strategy may remain under seal. See Bayer CropScience Inc.
v. Syngenta Crop Protection, LLC, 979 F. Supp. 2d 653, 656-57 (M.D.N.C. 2013).
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court grant
Google’s motion to seal in part, and maintain non-DOJ email addresses, as well as the proposed
redactions to Exhibit 11 under seal. There are no portions of the corresponding brief at Dkt. No.
307 that need remain under seal.
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 348 Filed 08/25/23 Page 4 of 4 PageID# 5155
Dated: August 25, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Dennis C. Barghaan, Jr.
DENNIS C. BARGHAAN, JR.
Deputy Chief, Civil Division
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3891
Facsimile: (703) 299-3983
Email: dennis.barghaan@usdoj.gov
/s/ Aaron M. Teitelbaum
AARON M. TEITELBAUM
United States Department of Justice
Antitrust Division
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 894-4266
Fax: (202) 616-8544
Email: Aaron.Teitelbaum@usdoj.gov
Attorneys for the United States
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