OPPOSITION/RESPONSE (re 169 Administrative Motion to Consider… — Brooks v. Thomson Reuters Corporation (Dkt. 173)

Summary

Document 173, filed 03/16/23 in Case 3:21-cv-01418-EMC (Brooks v. Thomson Reuters Corporation, N.D. Cal.), is Thomson Reuters' Statement in Response to Plaintiffs' Administrative Motion to Consider Whether Another Party's Materials Should Be Sealed (Doc. 169), filed by Perkins Coie LLP. Thomson Reuters seeks to seal a subset of the materials Plaintiffs designated. It argues that the lesser good cause standard applies because the material is tied to Plaintiffs' reply on class certification, and relies on a Third Sealing Declaration of Kevin Appold. The statement says Table 1 covers reply text about a type of data that Plaintiffs falsely contend was available through CLEAR, and that Table 2 covers portions of the deposition of Eric Gerhard on February 22, 2023, including internal communications it says were presented with little context.

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     Case 3:21-cv-01418-EMC          Document 173     Filed 03/16/23    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
                                                        Telephone: 214.965.7700
 9   Attorneys for Defendant                            Facsimile: 214.965.7799
     Thomson Reuters Corporation
10

11                              UNITED STATES DISTRICT COURT
                              NORTHERN DISTRICT OF CALIFORNIA
12                                 SAN FRANCISCO DIVISION

13   CAT BROOKS and RASHEED                         Case No. 3:21-cv-01418-EMC
     SHABAZZ, individually and on behalf of
14   all others similarly situated,                 THOMSON REUTERS’ STATEMENT IN
                                                    RESPONSE TO PLAINTIFFS’
15
                           Plaintiffs,              ADMINISTRATIVE MOTION TO
16                                                  CONSIDER WHETHER ANOTHER
            v.                                      PARTY’S MATERIALS SHOULD BE
17                                                  SEALED (DOC. 169)
     THOMSON REUTERS CORPORATION,
18                                                  Judge: Hon. Edward M. Chen
                           Defendant.
19

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     Case No. 3:21-cv-01418-EMC                          THOMSON REUTERS’ SEALING STATEMENT
     Case 3:21-cv-01418-EMC            Document 173         Filed 03/16/23      Page 2 of 6



 1          Thomson Reuters submits this Statement pursuant to Civil Local Rules 7-11 and 79-5 and

 2   in response to Plaintiffs’ Administrative Motion to Consider Whether Another Party’s Materials

 3   Should be Sealed (“Motion”) (Doc. 169). Through this Statement, Thomson Reuters seeks an

 4   order to file under seal a subset of the materials originally designated in Plaintiffs’ Motion. This

 5   Statement is supported by the contemporaneously filed Third Sealing Declaration of Kevin

 6   Appold (“Third Sealing Declaration), the Stipulated Protective Order entered in this action,

 7   Doc. 70, and all pleadings and papers on file.

 8                                          LEGAL STANDARD

 9          There is a “strong presumption in favor of access” to court records, but “access to judicial

10   records is not absolute.” Kamanaka v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th

11   Cir. 2006) (quoting Foltz v. State Farm Mut. Ins., 331 F.3d 1122, 1135 (9th Cir. 2003)). The legal

12   standard applicable to whether a document should be sealed depends on whether the document is

13   attached to a dispositive motion or a non-dispositive motion. See id. at 1179-80. Documents

14   attached to dispositive motions—like motions for summary judgment—may be sealed only when

15   the proponent establishes “compelling reasons” for doing so. Id. But documents attached to non-

16   dispositive motions that relate to the merits only tangentially—like motions for class

17   certification—may be sealed upon a lesser showing of good cause. Id. at 1180; see also In re

18   High-Tech Emp. Antitrust Litig., No. 11-cv-02509, 2013 WL 163779, at *2 n.1 (N.D. Cal. Jan.

19   15, 2013) (noting that the “vast majority” of the courts within this district generally treat class

20   certification motions as non-dispositive); see also Ehret v. Uber Techs., Inc., No. 14-cv-00113,

21   2015 WL 12977024, at *1 (N.D. Cal. Dec. 2, 2015) (Chen, J.) (applying good cause standard to

22   documents attached to class certification motion).

23          The lesser, good cause standard applies here because the relevant materials are associated

24   with Plaintiffs’ reply brief in support of their motion for class certification. But even if the higher,

25   compelling reasons, standard applied, that standard is also met for the same reasons discussed

26   below and in the Third Sealing Declaration.1

27   1
       One possible exception to the majority approach of applying the lesser, good cause standard to
28   materials attached to a class certification motion is when “a denial of class status means that the
     stakes are too low for the named plaintiffs to continue the matter.” In re High-Tech Emp.
     Case No. 3:21-cv-01418-EMC                       -1-      THOMSON REUTERS’ SEALING STATEMENT
     Case 3:21-cv-01418-EMC             Document 173          Filed 03/16/23     Page 3 of 6



 1                                               ARGUMENT

 2          Thomson Reuters does not seek to seal any information provisionally filed under seal by

 3   Plaintiffs except for the information described in Tables 1 and 2 below.

 4          The redactions proposed in Table 1 are narrowly tailored to target text in Plaintiffs’ reply

 5   to their motion for class certification that discusses a type of data that Plaintiffs falsely contend

 6   was available through CLEAR “for at least a limited time.” Doc. 169-3 at 1. In reality, “Thomson

 7   Reuters briefly explored adding that type of data to CLEAR, [but] that data was never integrated

 8   into CLEAR or made available to CLEAR customers.” Third Sealing Decl. ¶ 2.

 9                                                   Table 1

10
                   Cite                                     Portion(s) to Seal
11
        Doc. 169-3                Page 1, line 12 (after “CLEAR had” and before “—which”)
12      Pls. Reply (1:12)
13      Doc. 169-3                Page 1, line 12 (after “potentially” and before “and”)
14      Pls. Reply (1:12)

15      Doc. 169-3                Page 1, line 13 (beginning of line and before “information that”)
        Pls. Reply (1:13)
16
            The redactions proposed in Table 2 are narrowly tailored to target text in transcript
17
     excerpts from the deposition of Eric Gerhard on February 22, 2023. Specifically, these excerpts
18
     include dialogue between Mr. Gerhard and Plaintiffs’ counsel about the type of data discussed
19
     above, as well as quotes from and discussions about internal communications among Thomson
20
     Reuters employees that were presented with little or no context by Plaintiffs’ counsel during the
21
     deposition.
22

23

24

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     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
27
     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.
     Case No. 3:21-cv-01418-EMC                       -2-        THOMSON REUTERS’ SEALING STATEMENT
     Case 3:21-cv-01418-EMC             Document 173        Filed 03/16/23      Page 4 of 6



 1                                                   Table 2

 2

 3
        Doc. 169-4                Gerhard Dep. at 255:6 (after “Subject is” to end of line 6)
 4      Mura Decl. Ex. 1
 5      Doc. 169-4                Gerhard Dep. at 255:8-10 (after “The attachment, which is
 6      Mura Decl. Ex. 1          forwarded,” to end of line 10)

 7      Doc. 169-4                Gerhard Dep. at 255:13-17 (after “Okay. And it reads,” to end of
        Mura Decl. Ex. 1          line 17)
 8
        Doc. 169-4                Gerhard Dep. at 257:5-7 (after “So he forwards you this” to end
 9      Mura Decl. Ex. 1          of line 7)

10      Doc. 169-4                Gerhard Dep. at 257:9-10 (after “Do you have an understanding
        Mura Decl. Ex. 1          of what a” and before “based on this communication from”)
11
        Doc. 169-4                Gerhard Dep. at 257:13-16 (after “this is regarding a” to end of
12      Mura Decl. Ex. 1          line 16)
13      Doc. 169-4                Gerhard Dep. at 257:18-19 (after “How often does Thomson
        Mura Decl. Ex. 1          Reuters” to end of line 19)
14
        Doc. 169-4                Gerhard Dep. at 257:24-25 (entire lines)
15      Mura Decl. Ex. 1
16      Doc. 169-4                Gerhard Dep. at 258:2 (after “particular vendor,” to end of line
17      Mura Decl. Ex. 1          2)

18      Doc. 169-4                Gerhard Dep. at 258:14 (beginning of line and before
        Mura Decl. Ex. 1          “considered to be proprietary?”)
19
        Doc. 169-4                Gerhard Dep. at 258:24 (after “Is data from a” and before
20      Mura Decl. Ex. 1          “proprietary?”)

21      Doc. 169-4                Gerhard Dep. at 261:25 (after “Subject is” and before “is that
        Mura Decl. Ex. 1          right?”)
22
        Doc. 169-4                Gerhard Dep. at 262:2-18 (after “And it reads,” to end of line 18)
23      Mura Decl. Ex. 1
24      Doc. 169-4                Gerhard Dep. at 263:11-12 (after “And it says here,” to end of
        Mura Decl. Ex. 1          line 12)
25
        Doc. 169-4                Gerhard Dep. at 263:13-15 (after “What is” to end of line 15)
26      Mura Decl. Ex. 1
27      Doc. 169-4                Gerhard Dep. at 263:18-22 (after “we did meet with” to end of
        Mura Decl. Ex. 1          line 22)
28
     Case No. 3:21-cv-01418-EMC                       -3-      THOMSON REUTERS’ SEALING STATEMENT
     Case 3:21-cv-01418-EMC             Document 173        Filed 03/16/23      Page 5 of 6



 1

 2
        Doc. 169-4                Gerhard Dep. at 263:23-24 (after “The email states that” and
 3      Mura Decl. Ex. 1          before “correct?”)
 4      Doc. 169-4                Gerhard Dep. at 263:25–264:1 (after “Yeah. I guess with” to end
        Mura Decl. Ex. 1          of line 1)
 5
        Doc. 169-4                Gerhard Dep. at 264:18 (after “The subject is” to end of line 18)
 6
        Mura Decl. Ex. 1
 7
        Doc. 169-4                Gerhard Dep. at 264:20 (after “What is” to end of line 20)
 8      Mura Decl. Ex. 1

 9      Doc. 169-4                Gerhard Dep. at 264:21-22 (after “That would be a meeting to
        Mura Decl. Ex. 1          discuss” to end of line 22)
10
        Doc. 169-4                Gerhard Dep. at 265:4-7 (entire lines)
11      Mura Decl. Ex. 1

12      Doc. 169-4                Gerhard Dep. at 265:9-10 (after “And how would” to end of line
        Mura Decl. Ex. 1          10)
13
        Doc. 169-4                Gerhard Dep. at 265:18-22 (after “would be around” to end of
14      Mura Decl. Ex. 1          line 22)
15      Doc. 169-4                Gerhard Dep. at 266:18 (after “The subject is” to end of line 18)
        Mura Decl. Ex. 1
16
        Doc. 169-4                Gerhard Dep. at 266:20 (after “So you attended the” and before
17      Mura Decl. Ex. 1          “webinar that's”)
18      Doc. 169-4                Gerhard Dep. at 266:23 (after “attend the” and before “webinar. I
19      Mura Decl. Ex. 1          -- like I don't have a”)

20      Doc. 169-4                Gerhard Dep. at 267:2-10 (after “The email reads,” to end of line
        Mura Decl. Ex. 1          10)
21
        Doc. 169-4                Gerhard Dep. at 267:12 (entire line)
22      Mura Decl. Ex. 1

23      Doc. 169-4                Gerhard Dep. at 267:15-16 (after “And the first key takeaway
        Mura Decl. Ex. 1          is,” to end of line 16)
24
        Doc. 169-4                Gerhard Dep. at 267:25–268:1 (entire lines)
25      Mura Decl. Ex. 1
26      Doc. 169-4                Gerhard Dep. at 268:6-8 (entire lines)
        Mura Decl. Ex. 1
27

28
     Case No. 3:21-cv-01418-EMC                       -4-      THOMSON REUTERS’ SEALING STATEMENT
     Case 3:21-cv-01418-EMC            Document 173         Filed 03/16/23    Page 6 of 6



 1

 2
        Doc. 169-4                Gerhard Dep. at 269:2-22 (entire lines)
 3      Mura Decl. Ex. 1
 4
            Good cause and compelling reasons exist to seal the text identified in Tables 1 and 2
 5
     above because the text “reveals the type of data that Plaintiffs falsely claim to have been available
 6
     through CLEAR; reveals non-public information about strategic development and positioning of
 7
     CLEAR as Thomson Reuters considered whether to make that type of data available through
 8
     CLEAR; and because it gives an incomplete and misleading picture of Thomson Reuters business
 9
     practices related to CLEAR.” Third Sealing Decl. ¶ 4; see also Nixon v. Warner Commc’ns, Inc.,
10
     435 U.S. 589, 598 (1978) (recognizing that it is proper to seal business information that might
11
     harm a litigant’s competitive standing”); Adtrader, Inc., 2020 WL 6389186, at *2 (sealing
12
     portions of documents that present “information without context [because it could] harm Google
13
     by providing an incomplete and misleading picture of its crediting practices and capabilities”);
14
     Aleksandr Urakhchin v. Allianz Asset Mgmt. of Am., No. 15-cv-1614, 2017 WL 11643350, at *4
15
     (C.D. Cal. Apr. 21, 2017) (sealing portions of emails that competitors could present “to the
16
     marketplace out-of-context and place the investment option in a negative light”).
17
                                                CONCLUSION
18
            Thomson Reuters respectfully requests that the Court issue an order authorizing the
19
     materials described in Tables 1 and 2 above to remain under seal.
20

21

22   Dated: March 16, 2023                             PERKINS COIE LLP

23

24                                                     By: /s/ Anna Mouw Thompson
                                                            Anna Mouw Thompson
25                                                          AnnaThompson@perkinscoie.com
26                                                     Attorneys for Defendant Thomson Reuters
27                                                     Corporation

28
     Case No. 3:21-cv-01418-EMC                       -5-     THOMSON REUTERS’ SEALING STATEMENT


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