Court filing
OPPOSITION/RESPONSE (re 88 MOTION for Protective Order by Non-Party… — Brooks v. Thomson Reuters Corporation (Dkt. 90)
No. 3:21-cv-01418-EMC · Doc. 90 · Docket on CourtListener
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Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 1 of 8
1 Eric H. Gibbs (SBN 178658) Jennifer D. Bennett (SBN 296726)
Andre M. Mura (SBN 298541) Neil K. Sawhney (SBN 300130)
2 David Stein (SBN 257465) GUPTA WESSLER PLLC
Jeffrey B. Kosbie (SBN 305424) 100 Pine Street, Suite 1250
3 Ezekiel S. Wald (SBN 341490) San Francisco, CA 94111
4 GIBBS LAW GROUP LLP Telephone: (415) 573-0336
505 14th Street, Suite 1110 jennifer@guptawessler.com
5 Oakland, California 94612 neil@guptawessler.com
(510) 350-9700 (tel.)
6 (510) 350-9701 (fax)
ehg@classlawgroup.com
7 amm@classlawgroup.com
ds@classlawgroup.com
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jbk@classlawgroup.com
9 zsw@classlawgroup.com
10 Attorneys for Plaintiffs and the Proposed Class
11 [Additional counsel on signature page]
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UNITED STATES DISTRICT COURT FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
15 SAN FRANCISCO DIVISION
16
CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-1418-EMC
17 individually and on behalf of all others similarly
situated,
18 PLAINTIFFS’ OPPOSITION TO
19 Plaintiffs, MOTION FOR PROTECTIVE ORDER
v. (ECF NO. 88)
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THOMSON REUTERS CORPORATION,
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Defendant.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR LIMITED INTERVENTION AND FOR
PROTECTIVE ORDER, Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 2 of 8
1 INTRODUCTION
2 For months, Thomson Reuters refused to produce its data-licensing agreements for CLEAR with
3 third parties—arguing that confidentiality provisions in these agreements shielded them from
4 discovery. The Court overruled Thomson Reuters’ objection and ordered the company to produce all
5 such agreements. Order Re Parties’ Joint Disc. Letter Br. of March 24, 2022 1-2, ECF No. 82
6 (“Order”). Thomson Reuters did so—with one exception.
7 Thomson Reuters did not produce its data-licensing agreement for CLEAR with File &
8 ServeXpress (“FSX”) because this company, which compiles and sells publicly filed court documents,
9 objected to the disclosure. FSX then moved to intervene in this litigation to block the requested
10 discovery, arguing that its data-licensing agreement is irrelevant to the claims and defenses in this
11 litigation, and that the confidential and proprietary nature of the agreement is such that it should not
12 be disclosed to Plaintiffs under any circumstances. See Mot. for Protective Order by Non-Party File &
13 ServeXpress, LLC, ECF No. 88 (“Mot.”).
14 Consistent with this Court’s recent Order, the Court should overrule FSX’s objections to
15 disclosure.1 First, FSX’s data-licensing agreement with Thomson Reuters is no less relevant than
16 Thomson Reuters’ other agreements. Indeed, Thomson Reuters itself does not dispute the relevancy
17 of this (or any) such data-licensing agreement. See Order at 1. FSX nevertheless contends that because,
18 in this instance, it sells only Delaware court data, its agreement has no bearing on the Californians in
19 Thomson Reuters’ database. But FSX makes no showing that its court data in fact has no connection
20 to Californians. It would strain credulity to suggest that only Delaware residents litigate in Delaware
21 courts.
22 Second, FSX has not established good cause to block the requested discovery. It makes no
23 particularized showing of harm or prejudice that will result from disclosing its licensing agreement
24 pursuant to the parties’ agreed-upon protective order, which this Court already determined protects
25 confidentiality. Order at 2. Even assuming a particularized harm, the public and private interests at
26 stake, on balance, do not support blocking the requested discovery.
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Plaintiffs do not contest FSX’s request to intervene for the limited purpose of requesting a
28 protective order.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 3 of 8
1 For these reasons and more, the Court should deny FSX’s request to block Thomson Reuters
2 from producing its data-licensing agreement.
3 FACTS
4 This Court entered its Order on March 24, 2022, compelling Thomson Reuters to produce its
5 data-licensing agreements to Plaintiffs within 21 days. Order at 3. In its Order, the Court found
6 (among other things) that the parties’ agreed-upon protective order would protect confidentiality. Id.
7 at 2 (citing In Re: Vizio, Inc., Consumer Privacy Litig., No. 8:16-ML-02693, Dkt. 260 at 14 (C.D. Cal. Feb
8 5. 2018)); see Stipulated Protective Order, ECF No. 70.
9 Thomson Reuters identified the FSX agreement as an agreement that it intended to produce
10 pursuant to the Court’s order. FSX, however, chose to move to intervene to request a protective order.
11 To facilitate the orderly consideration of FSX’s position, Plaintiffs agreed to a short extension of time
12 to allow FSX to file its motion.
13 From what Plaintiffs can tell at this stage, Thomson Reuters has otherwise timely produced all
14 other data-licensing agreements and has designated them as “highly confidential” under the parties’
15 protective order.
16 LEGAL STANDARD
17 To obtain a particularized protective order addressing a specific document, a party must show that
18 “specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of Byrd v.
19 Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002) (citations omitted); see Fed. R. Civ. P.
20 26(c)(1). “[B]road allegations of harm, unsubstantiated by specific examples or articulated reasoning,
21 do not satisfy the Rule 26(c) test.” In re Roman Cath. Archbishop of Portland Oregon, 661 F.3d 417, 424
22 (9th Cir. 2011) (citation omitted).
23 Upon a showing of particularized harm, the Court must balance the public and private interests at
24 stake using the following factors:
25 (1) whether disclosure will violate any privacy interests; (2) whether the information is
26 being sought for a legitimate purpose or for an improper purpose; (3) whether
27 disclosure of the information will cause a party embarrassment; (4) whether
28 confidentiality is being sought over information important to public health and safety;
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 4 of 8
1 (5) whether the sharing of information among litigants will promote fairness and
2 efficiency; (6) whether a party benefitting from the order of confidentiality is a public
3 entity or official; and (7) whether the case involves issues important to the public.
4 Id. at 424 n.5 (citation omitted).
5 ARGUMENT
6 I. Thomson Reuters’ agreement to acquire data from FSX for CLEAR is relevant.
7 Thomson Reuters has not disputed the relevancy of its CLEAR data-licensing agreements. Order
8 at 1. And for good reason. These contracts are what enable Thomson Reuters to create its 360-degree
9 view of Californians. As such, the agreements are critical sources of information about what data
10 Thomson Reuters collects, shares, or sells, with whom, and under what terms—and thus are highly
11 relevant to the claims and defenses in this case. Compl., ECF No. 1-1; e.g., Answer, ECF No. 60 ¶¶ 1-
12 4.
13 FSX likewise does not disagree, as a general matter, that such licensing agreements are relevant to
14 this litigation. It argues instead that this particular agreement is irrelevant because it only covers data
15 from Delaware courts, and this lawsuit is brought on behalf of Californians.
16 But FSX fails to show that its agreement “does not relate to California at all.” Mot. at 4 (emphasis
17 added) (citing “see” Carter Decl., ¶ 7.). Carter’s Declaration does not go that far. It says only that the
18 agreement “does not address, contemplate, or apply to any material that originates in the State of
19 California or its court system,” Carter Decl., ¶ 7 (emphasis added)—a caveat that, even if true, does
20 not prove that its agreement is irrelevant to the claims or defenses in this litigation.
21 Ultimately, FSX’s claim that its agreement does not “at all” relate to California is unsupported and
22 cannot be credited. Cf. V5 Technologies v. Switch, Ltd., 334 F.R.D. 306, 310 (D. Nev. 2019) (“[T]he party
23 opposing discovery bears the burden of showing the disputed discovery is not relevant, a burden that
24 is met by specifically detailing the reasons why each request is irrelevant”) (citations omitted). 2 FSX
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2
This case is nothing like the “burdensome” discovery sought in Nugget Hydroelectric, L.P. v. Pac.
26 Gas & Elec. Co., 981 F.2d 429, 438–39 (9th Cir. 1992), on which FSX relies. Mot. at 6. There, the
plaintiff “demanded millions of pages of documents” about the defendant’s relationships with its
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“private power suppliers, only a fraction of which could be deemed relevant” to the plaintiff’s claim.
28 Id. at 438. Here, on the other hand, FSX asks this Court to prevent Plaintiffs from discovering a single
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 5 of 8
1 fails to offer evidence, for example, that Delaware court records concern only non-Californians. Nor
2 does FSX attempt to show—more specifically—that CLEAR’s Delaware court records pertain only
3 to non-Californians. FSX simply cannot find any evidence to support the notion that Delaware court
4 records are per se irrelevant to CLEAR’s impact on Californians.
5 FSX’s position also strains belief. Californians, of course, litigate in Delaware state courts. See, e.g.,
6 Schmidt v. Washington Newspaper Publ’g Co., No. CV N19C-03-262 CLS, 2019 WL 4785560 (Del. Super.
7 Ct. Sept. 30, 2019), amended on reconsideration, No. CV N19C-03-262 CLS, 2019 WL 7000039 (Del.
8 Super. Ct. Dec. 20, 2019) (defamation suit of California resident against business entity); Focus Fin.
9 Partners, LLC v. Holsopple, 241 A.3d 784, 807 (Del. Ch. 2020); Ascension Ins. Holdings, LLC v. Underwood,
10 No. CV 9897-VCG, 2015 WL 356002, at *3 (Del. Ch. Jan. 28, 2015). And given that this case pertains
11 to several years of CLEAR operations, it’s worth remembering that Delawareans move to California,
12 and vice-versa. Stacker, Where people in Delaware are moving to most (May 9, 2022),
13 https://tinyurl.com/msdyv455 (reporting, based on data from the U.S. Census Bureau, that in 2019,
14 5.8% of residents (1,655 people) moved from Delaware to California). As such, the agreement
15 between Thomson Reuters and FSX, like Thomson Reuters’ other licensing agreements, sheds light
16 on the data Thomson Reuters buys—and therefore sells—on Californians and what its costs are in
17 doing so.
18 Finally, FSX also claims its agreement may be irrelevant because it is with West Publishing
19 Corporation and doesn’t mention the word “CLEAR.” These breadcrumbs do not lead to the
20 conclusion that FSX’s agreement is irrelevant. West Publishing Corporation is a subsidiary of
21 Thomson Reuters Corporation. See Thomson Reuters Website, Company History,
22 https://tinyurl.com/bd6caz7e.3 And other licensing agreements produced to date do not explicitly
23 mention CLEAR. More importantly, Thomson Reuters itself identified FSX’s agreement as a data-
24 licensing agreement for CLEAR. There is no good reason to conclude otherwise.
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27 document that’s directly relevant to their claims.
3
28 As such, FSX’s claim (at 5) that its agreement “does not involve any of the parties to this
litigation” creates a misimpression.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 6 of 8
1 II. The existing stipulated protective order provides FSX adequate protection.
2 FSX’s other argument for barring production of its agreement is that it is confidential and
3 proprietary to FSX’s business model. Mot. at 6-7. But this does not distinguish FSX’s agreement from
4 every single other licensing agreement produced to date. Each has been produced with the designation
5 “highly confidential,” and no other business has asserted that the parties’ agreed-upon protective order
6 is insufficiently protective of confidentiality or proprietary business interests.
7 Doubtless, that is because the protective order already protects those interests. See Order at 2. FSX
8 may disagree—claiming “the only way to safeguard” its agreement is to prevent its disclosure to
9 anyone—but it makes no particularized showing that harm will result from the disclosure of its
10 agreement to a limited set of individuals involved in this litigation. See Mot. at 6 (mentioning experts,
11 court staff, and others—all of whom must sign the protective order in order to receive documents
12 designated as “highly confidential”).
13 Nothing distinguishes FSX’s agreement from the many others already produced under existing
14 protections. For example, the company asserts (at 5-6, 8) that the privacy rights of West Corporation,
15 FSX, and the state of Delaware will somehow be compromised if its contract for selling Delaware
16 court records is disclosed. But it’s not clear what privacy rights West and FSX might have that could
17 possibly be implicated in a business contract—let alone what privacy rights the state of Delaware
18 might have in its court records, which FSX itself admits are public.
19 FSX also asserts that its agreement has not been publicly disclosed. Mot. at 7. But there is no
20 reason to think the other agreements have, either. Even still, that fact hardly demonstrates that a
21 particularized harm will result if an agreement is disclosed pursuant to the existing protective order. 4
22 See Order at 2 (finding the protective order sufficient to protect confidential information).
23 Lastly, FSX claims that a complete bar to production is warranted because otherwise there is the
24 possibility that the agreement may become public as part of a future court filing. That argument
25 ignores that the protective order would allow any licensee to ask this Court to keep its agreement
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Richard v. City and Cnty. of San Francisco, 2021 WL 5298829 (N.D. Cal. 2021), does not help FSX.
The court discussed particularized harm and the balancing of private and public interests in the context
28 of the public’s interest in immediate disclosure of criminal investigatory records. Id. at *1-3.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 7 of 8
1 under seal.5 See Stipulated Protective Order 12-13 (“Filing Protected Material”), ECF No. 70.
2 In sum, FSX has failed to make any particularized showing that harm or prejudice will result even
3 if its agreement is produced as “highly confidential” under the existing protective order, which this
4 Court has already determined sufficiently protects confidentiality. Order at 2. Accordingly, FSX’s
5 request to bar disclosure fails, and there is no need to consider the balancing step of the inquiry. See
6 In re Outlaw Labs., LP Litig., 2021 WL 1102421, at *8 (S.D. Cal. 2021). Even still, the balance of public
7 and private interests does not weigh in favor of total non-disclosure. Rather, the existing protective
8 order already strikes an appropriate balance between Plaintiffs’ right to discover relevant evidence in
9 pursuit of class-action claims for Californians, and FSX’s private interest in confidentiality.
10 CONCLUSION
11 For the foregoing reasons, FSX’s motion for a protective order should be denied.
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14 May 9, 2022 Respectfully submitted,
15 By: /s/ Andre M. Mura
16 Eric H. Gibbs (SBN 178658)
17 Andre M. Mura (SBN 298541)
David Stein (SBN 257465)
18 Jeffrey B. Kosbie (SBN 305424)
Ezekiel S. Wald (SBN 341490)
19 GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
20 Oakland, California 94612
Telephone: (510) 350-9700
21
Facsimile: (510) 350-9701
22 ehg@classlawgroup.com
amm@classlawgroup.com
23 ds@classlawgroup.com
jbk@classlawgroup.com
24 zsw@classlawgroup.com
25
26
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FSX’s argument also proves too much: If a complete bar to disclosure were warranted whenever
27 there exists the possibility of public access, then the default rule would not be that the public is
generally permitted “access to litigation documents and information produced during discovery.”
28 Phillips, 307 F.3d at 1210.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 90 Filed 05/09/22 Page 8 of 8
1 Jennifer D. Bennett (SBN 296726)
Neil K. Sawhney (SBN 300130)
2 GUPTA WESSLER PLLC
100 Pine Street, Suite 1250
3 San Francisco, CA 94111
4 Telephone: (415) 573-0336
jennifer@guptawessler.com
5 neil@guptawessler.com
6 Benjamin Elga (pro hac vice)
Alice Buttrick (pro hac vice)
7 JUSTICE CATALYST LAW INC.
123 William Street, 16th Floor
8
New York, NY 10038
9 Telephone: (518) 732-6703
belga@justicecatalyst.org
10 abuttrick@justicecatalyst.org
11 Albert Fox Cahn (pro hac vice)
David Siffert (pro hac vice)
12 SURVEILLANCE TECHNOLOGY
13 OVERSIGHT PROJECT, INC.
40 Rector Street, 9th Floor
14 New York, NY 10006
albert@stopspying.org
15 david@stopspying.org
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Attorneys for Plaintiffs Cat Brooks and Rasheed
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Shabazz and the Proposed Class
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Case No. 3:21-cv-1418-EMC
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