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"This Is About as Frivolous a Motion to Seal as I Have Seen" [UPDATE: Response from Lawyer Added]

"Defendants are ORDERED to identify the lawyer responsible for this motion. The lawyer, by January 3, 2023, is ORDERED to submit an explanation of why the lawyer thought this was a justified motion. When I see the explanation, I will consider whether subsequent proceedings are appropriate."


From Robocast v. Youtube, LLC, handed down Friday by Judge Richard Andrews (D. Del.):

The motion for leave to file under seal (D.I. 20) is DENIED.

This is about as frivolous a motion to seal as I have seen. Defendants submitted a declaration of Phil Harnish in support of their motion to transfer the case to the Northern District of California. The motion is based on the purported need to avoid disclosing "sensitive personal information about employees that, if revealed, would harm those employees," and "commercially sensitive information that, if revealed, would aid Defendants' competitors and harm Defendants." (Id. at 2).

The sensitive personal information seems to be that Mr. Harnish works at YouTube's headquarters in San Bruno, California. There is a second employee whose name (Ben Hulse) and office location (also San Bruno) are both redacted, as though he were a confidential source for the CIA. I put "Phil Harnish" into the Google search engine; the first thing that comes up is his "Linked In" page, which has a picture, the job title of Senior Staff UX Engineer, and a link to his personal website and his personal email address. I put "Ben Hulse" into the Google search. It's a more common name than I would have guessed, but when I added "YouTube," up came his Linked In page, with his job description—Senior Staff Software Engineer—but no picture. There are no social security numbers, bank accounts, home addresses, or anything similar in the Harnish declaration. If the sensitive personal information is by whom they are employed, where they work, and the nature of their work, the Linked In pages seem to refute that as being sensitive.

The commercially sensitive information is which teams Mr. Harnish and Mr. Hulse lead, the size of the teams, and which products the teams work on. I am certainly unpersuaded by an unsworn motion that revealing this information is likely to work a defined and concrete harm to Google or YouTube.

Defendants are ORDERED to identify the lawyer responsible for this motion. The lawyer, by January 3, 2023, is ORDERED to submit an explanation of why the lawyer thought this was a justified motion. When I see the explanation, I will consider whether subsequent proceedings are appropriate.

Here's the motion:

Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure and Rule 5.1.3 of the Local Rules for the District of Delaware, Defendants YouTube, LLC and Google LLC (together, "Defendants") respectfully request that the Court enter an Order permitting them (a) to file under seal the Declaration of Phil Harnish in Support of Defendants' Motion to Transfer Venue (the "Declaration"), filed contemporaneously herewith; and (b) to file a public redacted version of the Declaration within seven days pursuant to Section G of the Court's Administrative Procedures Governing Filing and Service by Electronic Means and after consulting with Plaintiff Robocast, Inc. ("Robocast") regarding any designation of confidential information in the Declaration. In support of their motion, Defendants state as follows:

[1.] "[A] common law right of access attaches to judicial proceedings and records." In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (internal quotation marks and citation omitted). "The party seeking to overcome the presumption of access bears the burden of showing that the interest in secrecy outweighs the presumption." Id. (internal quotation marks and citation omitted). "A court applies a 'good cause' standard to justify sealing

… judicial records, which requires a 'balancing process, in which courts weigh the harm of disclosing information against the importance of disclosure to the public.'" Kaleo, Inc. v. Adamis Pharms. Corp., 2019 WL 11680196, at *1 (D. Del. July 16, 2019) (quoting Mosaid Techs. Inc. v. LSI Corp., 878 F. Supp. 2d 503, 507–08 (D. Del. 2012).

[2.] Here, good cause exists to seal the Declaration because the Declaration contains both (1) sensitive personal information about employees that, if revealed, would harm those employees and (2) commercially sensitive information that, if revealed, would aid Defendants' competitors and harm Defendants.

[3.] First, the Declaration contains details sufficient to identify and track down specific employees of Defendants. For example, it reveals the locations where several of Defendants' employees live and work. Such information has no bearing on this case and no public importance, yet its disclosure would violate the privacy interests of the employees. Privacy interests are a well- recognized basis to keep information out of the public view. See, e.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) ("One interest which should be recognized in the balancing process is an interest in privacy."); id. ("It is appropriate for courts to order confidentiality to prevent the infliction of unnecessary or serious pain on parties who the court reasonably finds are entitled to such protection.").

[4.] Second, the Declaration reveals details about the structure of one of Defendants' software engineering teams and the responsibilities of the Declarant, who serves as a Technical Lead for that team. Such information would supply Defendants' "competitors with information regarding [Defendants'] knowledge, operations, capabilities, and strategies," allowing them to position their own teams competitively against Defendants'. Genentech, Inc. v. Amgen, Inc., 2020 WL 9432700, at *5 (D. Del. Sept. 2, 2020), report and recommendation adopted, 2020 WL 9432702 (D. Del. Oct. 1, 2020). Such confidential business information "is precisely the type of material most likely to successfully rebut the presumption favoring access." Id. at *4; accord Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 166 (3d Cir. 1993) ("Documents containing … confidential business information may be protected from disclosure."); Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)) ("Despite the presumption, courts may deny access to judicial records, for example, where they are sources of business information that might harm a litigant's competitive standing.").

[5.] Pursuant to Rule 7.1.1 of the Local Rules for the District of Delaware, counsel for Defendants state that they have conferred with counsel for Robocast. Counsel for Robocast has advised counsel for Defendants that Robocast does not oppose the relief requested in the Motion, reserving the right to challenge any confidentiality designations made by Defendants.

[6.] For the foregoing reasons, Defendants respectfully request that the Court enter the attached Order permitting them to file the Declaration under seal.

I will post the response to the judge's order when it's filed.

UPDATE: I missed the response on the docket (thanks to commenter John F. Carr for the pointer):

Although the drafting of the Motion was a team effort, I am the attorney responsible for the Motion and write to address the portions of the Order requiring an explanation from counsel and to apologize to the Court.

In the course of preparing our supporting papers for the Motion to Transfer, we prepared a factual declaration containing the names, locations, and responsibilities of certain of Defendants' employees, and the number of Defendants' employees on teams that work on certain products at issue. Defendants and counsel sought to protect the named employee's privacy in the context of litigation. Because the parties had not yet negotiated a protective order, counsel for Defendants reached out to counsel for Plaintiff Robocast, Inc. ("Plaintiff") seeking permission to file the Declaration under seal. Counsel for Plaintiff did not oppose. Thereafter, Defendants filed the Motion articulating the bases for seeking confidential treatment for portions of the declaration. Defendants and counsel appreciate that this approach was misplaced under the circumstances.

I believed that the proposed redactions were consistent with efforts to keep similar types of information confidential in other cases in order to protect Defendants' employees' privacy in the context of litigation. For example, I previously represented Google in Virentem Ventures, LLC v. YouTube, LLC. In that matter, Google was permitted to keep under seal information regarding the number of employees in different locations as well as information regarding employees' roles and responsibilities at Google. C.A. No. 18-917-MN (D. Del. Oct. 29, 2018), D.I. 28 ¶¶ 3, 6, 8, 11-13, 15-16. {See also Scramoge Technology Ltd. v. Google LLC, C.A. No. 21-616-ADA (W.D. Tex. Sept. 9, 2021), D.I. 26-5 ¶¶ 3 (numbers of employees); 8-16 (names of employees); id. at 5 (DocuSign rather than written signature); see also id. D.I. 72 at 11-12 (employee names redacted in Court's Order).}

In light of this context and the case law cited in Google's Motion, I believed it was justified to submit the Motion for the Court's consideration. I recognize that some information Defendants sought to redact is less private than other information, such as Mr. Hulse's employment with YouTube, as the Court points out. However, other information remains non-public and is typically treated by Google as confidential in my experience, including the specific sizes and names of different teams within YouTube or Google. By mentioning this, Defendants are not asking the Court to revisit its decision. Defendants seek to fully comply with the Court's Order and any further instruction.

We understand that the full declaration will be unsealed by Chambers after the filing of this letter. We appreciate the Court's ruling in this matter and will endeavor to treat redactions appropriately in future filings. I apologize to the Court for having to consider this matter.