RESPONSE to Motion re [332] MOTION to Seal Doc. 330 & 331 filed by United States of America. (Attachments: # (1) Exhibit 17 (redacted), # (2) Exhibit 18 (redacted), # (3) Exhibit 23 (redacted), # (4) Exhibit 24 (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. 332]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5(C) to seal
certain portions of its reply in support of its motion to compel production of documents and
Exhibits 17-24 attached to that reply, Dkt. Nos. 330 & 331. The basis for sealing is that the
exhibits and quoted portions of those exhibits in the reply contain material designated as
confidential or highly confidential pursuant to the operative protective order in this action. Dkt.
No. 332. The eight exhibits at issue generally consist of privilege logs, deposition transcript
excerpts, and deposition exhibits containing a text-message thread and an email thread. As
outlined below, the United States believes that most of the materials contained in the exhibits and
all the redacted portions of Google’s reply need not remain sealed. To the extent that the United
States believes that portions of the exhibits 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 and telephone numbers for individuals other than those employed by the
Department of Justice remain under seal. The proposed exhibits attached to this response—
exhibits 17, 18, 21, 23 and 24—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 or telephone numbers. See, e.g.,
Krakauer v. Dish Network, LLC, 2015 WL 12750446, at *2 (M.D.N.C. Nov. 18, 2015) (approving
redactions of email addresses and telephone numbers in court filings because of “legitimate
privacy interests”). Page 3 PageID#
The United States seeks limited additional redactions Exhibit 23 (Karpenko Dep. Ex.
34a), 1 and Exhibit 24 (Karpenko Dep. Ex. 35). These two exhibits contain specific 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 no value for
public dissemination.” See Ultra-Mek, Inc. v. United Furniture Indus., Inc., 2021 WL 8533815, at
*5 (M.D.N.C. Mar. 22, 2021). While 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). Disclosure of this information could be used by USPS competitors to
determine where USPS will and will not place advertisements and could be exploited unfairly by
those competitors for counter-programming.
Exhibit 21 is an excerpt of one of the same depositions attached—in its entirety—as
exhibits 1 and 3 to Google’s memorandum in support of its motion for in camera review, Dkt. No.
300-01. The United States previously requested leave to provide proposed redactions to the
entirety of that deposition transcript on the 45-day timeline set forth in the Protective Order for
confidentiality designations of deposition testimony. See Dkt. No. 347, at 1-4. The Court granted
that request by order dated August 30, 2023, and further instructed the United States to file a
supplemental response to Google’s motion to seal on or before September 29, 2023, including
Google’s reply brief never cites Exhibit 23. See Dkt. No. 330. To the extent that this uncited
Exhibit 23 plays no role in the adjudication of Google’s motion, the exhibit “is not a judicial
record and the public has no protectable interest in access to the exhibit.” See Seaman v. Duke
Univ., 2018 WL 10446957, at *1 (M.D.N.C. June 6, 2018) (holding motion to seal moot with
respect to exhibits not cited in accompanying brief); see also In re Application of United States for
an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290-91 (4th Cir. 2013)
(explaining that “documents filed with the court are ‘judicial records’ if they play a role in the
adjudicative process, or adjudicate substantive rights”). Page 4 PageID#
proposed redactions to the transcript and a detailed rationale for any portions the United States is
seeking to maintain under seal. Dkt. No. 355. As Exhibit 21 is part of one of the same transcripts
referenced in the Court’s order at Dkt. No. 355, the United States respectfully requests that Court
permit the United States to respond with respect to Exhibit 21 in the same manner as for the
exhibits referenced in the Court’s order at Dkt. No. 355.
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court grant
Google’s motion to seal in part and maintain under seal the non-DOJ email addresses and
telephone numbers and the highly sensitive business information as reflected in the proposed
redactions to Exhibits 17, 18, 23, and 24. There are no portions of the corresponding brief at Dkt.
No. 330, or Exhibits 19, 20, or 22 that need remain under seal. The United States respectfully
requests leave to file a supplemental response with respect to Exhibit 21 no later than September
29, 2023. Page 5 PageID#
Dated: August 30, Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA Telephone: (703) 299-Facsimile: (703) 299-Email: Gerard.Mene@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 360 Filed 08/30/23 Page 1 of 5 PageID# 5402
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. 332]
Defendant, Google LLC (“Google”), has moved pursuant to Local Civil Rule 5(C) to seal
certain portions of its reply in support of its motion to compel production of documents and
Exhibits 17-24 attached to that reply, Dkt. Nos. 330 & 331. The basis for sealing is that the
exhibits and quoted portions of those exhibits in the reply contain material designated as
confidential or highly confidential pursuant to the operative protective order in this action. Dkt.
No. 332. The eight exhibits at issue generally consist of privilege logs, deposition transcript
excerpts, and deposition exhibits containing a text-message thread and an email thread. As
outlined below, the United States believes that most of the materials contained in the exhibits and
all the redacted portions of Google’s reply need not remain sealed. To the extent that the United
States believes that portions of the exhibits 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 360 Filed 08/30/23 Page 2 of 5 PageID# 5403
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 and telephone numbers for individuals other than those employed by the
Department of Justice remain under seal. The proposed exhibits attached to this response—
exhibits 17, 18, 21, 23 and 24—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 or telephone numbers. See, e.g.,
Krakauer v. Dish Network, LLC, 2015 WL 12750446, at *2 (M.D.N.C. Nov. 18, 2015) (approving
redactions of email addresses and telephone numbers in court filings because of “legitimate
privacy interests”).
2
PDF Page 4
Case 1:23-cv-00108-LMB-JFA Document 360 Filed 08/30/23 Page 3 of 5 PageID# 5404
The United States seeks limited additional redactions Exhibit 23 (Karpenko Dep. Ex.
34a), 1 and Exhibit 24 (Karpenko Dep. Ex. 35). These two exhibits contain specific 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 no value for
public dissemination.” See Ultra-Mek, Inc. v. United Furniture Indus., Inc., 2021 WL 8533815, at
*5 (M.D.N.C. Mar. 22, 2021). While 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). Disclosure of this information could be used by USPS competitors to
determine where USPS will and will not place advertisements and could be exploited unfairly by
those competitors for counter-programming.
Exhibit 21 is an excerpt of one of the same depositions attached—in its entirety—as
exhibits 1 and 3 to Google’s memorandum in support of its motion for in camera review, Dkt. No.
300-01. The United States previously requested leave to provide proposed redactions to the
entirety of that deposition transcript on the 45-day timeline set forth in the Protective Order for
confidentiality designations of deposition testimony. See Dkt. No. 347, at 1-4. The Court granted
that request by order dated August 30, 2023, and further instructed the United States to file a
supplemental response to Google’s motion to seal on or before September 29, 2023, including
1
Google’s reply brief never cites Exhibit 23. See Dkt. No. 330. To the extent that this uncited
Exhibit 23 plays no role in the adjudication of Google’s motion, the exhibit “is not a judicial
record and the public has no protectable interest in access to the exhibit.” See Seaman v. Duke
Univ., 2018 WL 10446957, at *1 (M.D.N.C. June 6, 2018) (holding motion to seal moot with
respect to exhibits not cited in accompanying brief); see also In re Application of United States for
an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290-91 (4th Cir. 2013)
(explaining that “documents filed with the court are ‘judicial records’ if they play a role in the
adjudicative process, or adjudicate substantive rights”).
3
PDF Page 5
Case 1:23-cv-00108-LMB-JFA Document 360 Filed 08/30/23 Page 4 of 5 PageID# 5405
proposed redactions to the transcript and a detailed rationale for any portions the United States is
seeking to maintain under seal. Dkt. No. 355. As Exhibit 21 is part of one of the same transcripts
referenced in the Court’s order at Dkt. No. 355, the United States respectfully requests that Court
permit the United States to respond with respect to Exhibit 21 in the same manner as for the
exhibits referenced in the Court’s order at Dkt. No. 355.
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court grant
Google’s motion to seal in part and maintain under seal the non-DOJ email addresses and
telephone numbers and the highly sensitive business information as reflected in the proposed
redactions to Exhibits 17, 18, 23, and 24. There are no portions of the corresponding brief at Dkt.
No. 330, or Exhibits 19, 20, or 22 that need remain under seal. The United States respectfully
requests leave to file a supplemental response with respect to Exhibit 21 no later than September
29, 2023.
4
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Case 1:23-cv-00108-LMB-JFA Document 360 Filed 08/30/23 Page 5 of 5 PageID# 5406
Dated: August 30, 2023
Respectfully submitted,
JESSICA D. ABER
United States Attorney
/s/ Gerard Mene
GERARD MENE
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
Telephone: (703) 299-3777
Facsimile: (703) 299-3983
Email: Gerard.Mene@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
5
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