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Statement In Response to Plaintiffs' Administrative Motion to… — Brooks v. Thomson Reuters Corporation (Dkt. 146)
No. 3:21-cv-01418-EMC · Doc. 146 · Docket on CourtListener
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Case 3:21-cv-01418-EMC Document 146 Filed 12/07/22 Page 1 of 6
1 Susan D. Fahringer, Bar No. 21567 Gabriella Gallego, Bar No. 324226
SFahringer@perkinscoie.com GGallego@perkinscoie.com
2 Nicola C. Menaldo, pro hac vice PERKINS COIE LLP
3 NMenaldo@perkinscoie.com 3150 Porter Drive
Erin K. Earl, pro hac vice Palo Alto, CA 94304-1212
4 EEarl@perkinscoie.com Telephone: 650.838.4300
Anna M. Thompson, pro hac vice Facsimile: 650.838.4350
5 AnnaThompson@perkinscoie.com
PERKINS COIE LLP Hayden M. Schottlaender, pro hac vice
6 1201 Third Avenue, Suite 4900 HSchottlaender@perkinscoie.com
7 Seattle, WA 98101-3099 PERKINS COIE LLP
Telephone: 206.359.8000 500 N. Akard Street, Suite 3300
8 Facsimile: 206.359.9000 Dallas, TX 75201-3347
Attorneys for Defendant Telephone: 214.965.7700
9 Thomson Reuters Corporation Facsimile: 214.965.7799
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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CAT BROOKS and RASHEED Case No. 3:21-cv-01418-EMC
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SHABAZZ, individually and on behalf of
16 all others similarly situated, DEFENDANT THOMSON REUTERS’
STATEMENT IN RESPONSE TO
17 Plaintiffs, PLAINTIFFS’ ADMINISTRATIVE
MOTION TO CONSIDER WHETHER
18 v. ANOTHER PARTY’S MATERIALS
SHOULD BE SEALED
19 THOMSON REUTERS CORPORATION,
20 Defendant.
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Case No. 3:21-cv-01418-EMC THOMSON REUTERS’ SEALING STATEMENT
Case 3:21-cv-01418-EMC Document 146 Filed 12/07/22 Page 2 of 6
1 When Plaintiffs filed their class certification motion, they attached 74 exhibits, including
2 dozens of Thomson Reuters’ internal documents—most of which have little or nothing to do with
3 whether a class should be certified in this case. Given the high level of generality at which
4 Plaintiffs’ motion is drafted and the tenuous connection between the motion and the documents
5 they submitted, many of the redactions to Plaintiffs’ motion and attachments are unnecessary, and
6 several documents can be unsealed. There are also many documents, however, that could reveal
7 trade secrets, harm Thomson Reuters’ competitive standing, give a false and out-of-context
8 impression of Thomson Reuters’ business practices and unnecessarily implicate interests of third
9 parties not involved with this case.
10 Thomson Reuters submits this Statement pursuant to Civil Local Rules 7-11 and 79-5 and
11 in response to Plaintiffs’ Administrative Motion to Consider Whether Another Party’s Materials
12 Should be Sealed (“Motion”). Dkt. 124. Through this Statement, Thomson Reuters seeks an order
13 to file under seal a subset of the materials originally designated in Plaintiffs’ Motion (the
14 “Designated Materials”). This Statement and its exhibits are supported by the Declaration of
15 Kevin Appold (“Appold Decl.”), filed concurrently.
16 LEGAL STANDARD
17 There is a “strong presumption in favor of access” to court records, but “access to judicial
18 records is not absolute.” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
19 2006) (citation omitted). The legal standard applicable to whether a document should be sealed
20 depends on whether the document is attached to a dispositive motion or a non-dispositive motion.
21 See id. at 1179–80. Documents attached to dispositive motions—like motions for summary
22 judgment—may be sealed only when the proponent establishes “compelling reasons” for doing
23 so. Id. at 1179. But documents attached to non-dispositive motions that relate to the merits only
24 tangentially—like motions for class certification—may be sealed upon a lesser showing of good
25 cause. Id. at 1180; see also In re High-Tech Emp. Antitrust Litig., No. 11-cv-02509, 2013 WL
26 163779, at *2 n.1 (N.D. Cal. Jan. 15, 2013) (noting that the “vast majority” of the courts within
27 this district generally treat class certification motions as non-dispositive); see also Ehret v. Uber
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Case No. 3:21-cv-01418-EMC -1- THOMSON REUTERS’ SEALING STATEMENT
Case 3:21-cv-01418-EMC Document 146 Filed 12/07/22 Page 3 of 6
1 Techs., Inc., No. 14-cv-00113, 2015 WL 12977024, at *1 (N.D. Cal. Dec. 2, 2015) (Chen, J.)
2 (applying good cause standard to documents attached to class certification motion).
3 The lesser, good cause standard applies here because the Designated Materials have been
4 attached by Plaintiffs to their motion for class certification. But even if the higher, compelling
5 reasons, standard applied, that standard is also met for the same reasons discussed below and in
6 the exhibits and declaration supporting this statement.1
7 What reasons are sufficient to justify sealing documents is generally “left to the sound
8 discretion of the trial court.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th
9 Cir. 2016). Some commonly accepted examples of sealable materials, however, are “trade
10 secrets,” Kamakana, 447 F.3d at 1179, and “business information that might harm a litigant’s
11 competitive standing,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). The
12 Designated Materials that Thomson Reuters seeks to seal fall into those categories and others.
13 ARGUMENT
14 I. Documents to be fully or partially unsealed
15 Several of the documents that are provisionally under seal can be unsealed without harm
16 to Thomson Reuters or third parties. Thomson Reuters therefore does not oppose the full
17 unsealing of the documents listed in Exhibit 1. Thomson Reuters also views the vast majority of
18 the redactions in Plaintiffs’ motion for class certification as unnecessary. The only redactions that
19 are necessary from Thomson Reuters’ perspective are those described in Exhibit 2. Similarly, for
20 the documents listed in Exhibit 3, Thomson Reuters does not seek to seal any information except
21 for the redactions proposed. Those targeted redactions adequately protect the interests of
22 Thomson Reuters and third parties, which are described in more detail in the exhibit and below.
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24 One possible exception to the majority approach of applying the lesser, good cause standard to
materials attached to a class certification motion is when “a denial of class status means that the
25 stakes are too low for the named plaintiffs to continue the matter.” In re High-Tech Emp.
Antitrust Litig., 2013 WL 163779, at *2 n.1 (noting exception but applying good cause standard);
26 see also Circle Click Media LLC v. Regus Mgmt. Grp. LLC, No. 12-cv-04000, 2016 WL
8253802, at *1 (N.D. Cal. Mar. 14, 2016) (Chen, J.) (applying “compelling reasons” standard
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where “individual claims [were] expected to be less than $3,000 each”). But that exception does
28 not apply here because Plaintiffs seek injunctive relief (even if class certification is denied) and
do not merely seek nominal damages. See, e.g., Am. Compl. ¶¶ 82, 92, 130.
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1 II. Documents to be sealed
2 The public disclosure of other documents that Plaintiffs (often unnecessarily) attached to
3 their motion would harm Thomson Reuters and its competitive business interests. And, in many
4 cases, public disclosure would also unnecessarily disclose information about third parties not
5 involved with this litigation. Finally, because the sensitive information is woven throughout these
6 documents, redactions are either impossible or at least impractical. There are thus compelling
7 reasons (and good cause) to seal the Designated Materials listed and described in Exhibit 4.
8 There are compelling reasons to seal many documents because they contain trade secrets.
9 The Ninth Circuit has held that a trade secret may “relate to the sale of goods or to other
10 operations in the business” and “may consist of any formula, pattern, device or compilation of
11 information which is used in one’s business, and which gives him an opportunity to obtain an
12 advantage over competitors who do not know or use it.” Clark v. Bunker, 453 F.2d 1006, 1009
13 (9th Cir. 1972) (quoting RESTATEMENT (FIRST) OF TORTS § 757 cmt. b (AM. L. INST. 1939)).
14 Many of the Designated Materials contain lists of customers and third-party business partners,
15 which are regularly sealed as trade secrets. See, e.g., Snapkeys, Ltd. v. Google LLC, No. 19-cv-
16 02658, 2021 WL 1951250, at *3 (N.D. Cal. May 14, 2021) (“[T]his Court has found compelling
17 reasons to seal confidential information regarding a party’s business partners where the disclosure
18 of that information would harm the party’s competitive standing.”); True Health Chiropractic
19 Inc. v. McKesson Corp., No. 13-cv-02219, 2019 WL 11743580, at *2 (N.D. Cal. Aug. 13, 2019)
20 (“[C]ustomer lists generally constitute trade secrets [and are] sealable under the heightened
21 ‘compelling reasons’ standard.”); Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 1522 (1997)
22 (“[A] customer list can be found to have economic value because its disclosure would allow a
23 competitor to direct its sales efforts to those customers who have already shown a willingness to
24 use a unique type of service or product as opposed to a list of people who only might be
25 interested.”).
26 Other documents in the Designated Materials reveal either trade secrets or, at a minimum,
27 “business information that might harm [Thomson Reuters’] competitive standing.” Nixon, 435
28 U.S. at 598. This includes, for example, powerpoints and training materials that address the
Case No. 3:21-cv-01418-EMC -3- THOMSON REUTERS’ SEALING STATEMENT
Case 3:21-cv-01418-EMC Document 146 Filed 12/07/22 Page 5 of 6
1 confidential processes that Thomson Reuters has put in place to prevent misuse and ensure
2 security of CLEAR; confidential information regarding the technical processes and capabilities
3 for importing, organizing, updating, and revising information in CLEAR; and confidential
4 internal strategic discussion and decisions regarding, for instance, internal business proposals,
5 steps taken to improve CLEAR and better position it in the marketplace, and steps to distinguish
6 CLEAR from competing products. See, e.g., In re Anthem, Inc. Data Breach Litig., No. 15-MD-
7 02617, 2018 WL 3092256, at *2 (N.D. Cal. Mar. 16, 2018) (sealing “descriptions of
8 cybersecurity practices and protocols” and “funding levels” because “disclosing specific funding
9 levels could allow Anthem’s competitors to have an advantage over Anthem in providing
10 cybersecurity services”); Opperman v. Path, Inc., No. 13-cv-00453, 2017 WL 1036652, at *7
11 (N.D. Cal. Mar. 17, 2017) (sealing “internal discussions among Apple personnel concerning
12 software engineering and technical design issues that, if disclosed to the public, could make it
13 easier to compromise the security of Apple’s products”); Adtrader, Inc. v. Google LLC, No. 17-
14 cv-0782, 2020 WL 6389186, at *2 (N.D. Cal. Feb. 24, 2020) (sealing information that “could
15 cause competitive harm to Google by providing insight into Google’s strategic business and
16 financial decisions, and the capabilities of Google’s systems related to invalid activity and
17 associated advertiser payments”).
18 Plaintiffs also attached numerous internal emails to their motion. Most of these emails
19 should be sealed for similar reasons as the documents above—they contain sensitive business
20 information. In addition, many of the emails have been presented out of context, such that public
21 disclosure of these emails in the marketplace would create a false impression about CLEAR or
22 Thomson Reuters’ business practices. See Adtrader, Inc., 2020 WL 6389186, at *2 (sealing
23 portions of documents that present “information without context [because it could] harm Google
24 by providing an incomplete and misleading picture of its crediting practices and capabilities”);
25 Aleksandr Urakhchin v. Allianz Asset Mgmt. of Am., No. 15-cv-1614, 2017 WL 11643350, at *4
26 (C.D. Cal. Apr. 21, 2017) (sealing portions of emails that competitors could present “to the
27 marketplace out-of-context and place the investment option in a negative light”). Further, several
28 of these emails contain information related to third parties, such as Thomson Reuters’ business
Case No. 3:21-cv-01418-EMC -4- THOMSON REUTERS’ SEALING STATEMENT
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1 partners. And the fact that most of these documents have little or nothing to do with the class
2 certification motion at hand makes the case for sealing them at this time even more compelling.
3 See, e.g., O’Connor v. Uber Techs., Inc., No. C-13-3826, 2015 WL 355496, at *2 (N.D. Cal. Jan.
4 27, 2015) (Chen, J.) (recognizing that a non-party’s privacy interest in information with ‘little or
5 no relevance to the issues raised by [the] summary judgment motions’ is sufficient to satisfy the
6 compelling reasons standard”) (citation omitted).
7 CONCLUSION
8 For the reasons discussed above and in the exhibits and declaration supporting this
9 Statement, Thomson Reuters respectfully asks the Court to issue an order to seal the Designated
10 Materials.
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12 Dated: December 7, 2022 PERKINS COIE LLP
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14 By: /s/ Susan D. Fahringer
Susan D. Fahringer
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SFahringer@perkinscoie.com
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Attorneys for Defendant Thomson Reuters
17 Corporation
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Case No. 3:21-cv-01418-EMC -5- THOMSON REUTERS’ SEALING STATEMENT
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