IN RE: GOOGLE PLAY STORE ANTITRUST LITIGATION (2021)

ORDER RE MOTION TO STAY AND RENEWED APPLICATION TO SEAL

In a prior order, the Court denied the Google defendants’ request to seal portions of the four complaints, which would have limited the public's right of access to the court proceedings in this high-profile multidistrict antitrust litigation. Dkt. No. 79. The reasons for the denial were straightforward. “[J]udicial records are public documents almost by definition, and the public is entitled to access by default.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (citation omitted); see also Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (when considering a request to seal, “we start with a strong presumption in favor of access to court records.”) (quotation omitted). As the party seeking to seal the complaints, Google had “the burden of overcoming this strong presumption by meeting the ‘compelling reasons’ standard.” Kamakana, 447 F.3d at 1178 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)); see also Center for Auto Safety, 809 F.3d at 1098 (our precedent presumes that the “ ‘compelling reasons’ standard applies to most judicial records.”) (quoting Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 677-78 (9th Cir. 2009)) (emphasis added in Center for Auto Safety).

To seal portions of the complaints -- the documents that are the heart of this, and every, lawsuit -- Google was required to “articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 1178-79 (cleaned up); see also Pintos, 605 F.3d at 678-79 (same); Johnstech Int'l Corp. v. JF Microtechnology SDN BHD, No. 14-cv-02864-JD, 2016 WL 4091388, at *1 (N.D. Cal. Aug. 2, 2016) (party must provide “specific, individualized reasons for the sealing”). Conclusory statements by a party about potential harm from public disclosure, or mere hypothesis or conjecture, will not do. Kamakana, 447 F.3d at 1179; Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). The fact that the parties may have designated a document as confidential under a stipulated protective order is also not enough to justify sealing. “Such blanket orders” are inherently overbroad and do not provide the “particularized showing” required to seal any individual court record. See San Jose Mercury News, Inc. v. United States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999). In addition, different interests are at stake with the right of access to court records than with the production of documents during discovery. See Kamakana, 447 F.3d at 1180.

Google had an ample opportunity to demonstrate a compelling reason for sealing, and squandered it. The governing standards summarized here have been well-established for many years, and our District's local rules clearly state the procedures for Google to follow in making its case. See Civil L.R. 79-5. Even so, Google presented nothing but generic and boilerplate statements for its sealing requests. It gestured at its internal confidentiality practices as a ground for sealing, which was nothing more than an ipse dixit rationale. See Dkt. No. 79 at 2. It mentioned the protective orders entered in the litigation as a basis, but that carried little weight. See id. and supra. The “factual showing” it proffered was a declaration by a “Senior Legal Project Manager” at Google stating that the disclosure of “non-public information” could, “[i]f revealed to competitors and potential business counterparties, ․ disadvantage Google in marketing and in negotiations.” Dkt. No. 74-1. This was literally all Google said with respect to meeting the requirement of a specific factual demonstration of a compelling reason, and it repeated the same statement over 140 times in the declaration, without any further commentary or evidence. Id. Overall, Google made no showing whatsoever that might have favored keeping portions of the complaints secret, and its “failure to meet that burden means that the default posture of public access prevails.” Kamakana, 447 F.3d at 1182.

Consequently, Google's sealing requests were denied. Dkt. No. 79. Pursuant to Civil Local Rule 79-5(f), the Court directed the plaintiff groups to file unredacted versions of their respective complaints on ECF within 7 days of the order, namely by August 25, 2021. Id. at 3. Epic beat that deadline and filed its unredacted complaint on August 19, 2021. Dkt. Nos. 81, 82. The other three plaintiff groups apparently agreed to hold off on filing their unredacted complaints at Google's request. Dkt. No. 84-1 ¶¶ 8-11. On August 20, 2021, Google filed an “Emergency Motion to Stay the Court's August 18, 2021 Order,” Dkt. No. 83, as well as a “Renewed Application to Seal,” Dkt. No. 85.

Google's request for a do-over is misdirected in several respects. To start, Google cannot credibly claim surprise or lack of a fair chance to address the sealing standards. The salient case law and local rules have been on the books for a good while, and Google is represented here by two top-tier law firms with ample resources to get a proper sealing request on file. In addition, the Court expressly cautioned at a status conference that any requests to keep complaint allegations sealed from the public would be closely scrutinized. See Dkt. No. 67 (“Google is advised that for any portions of the complaints for which Google requests sealing, it will need to make a persuasive showing that sealing is appropriate under the governing standards. Complaints are foundational case documents to which the public has a strong right of access, especially in a case such as this one.”). In these circumstances, Google's plea for a break because this was the “first sealing exercise” in the litigation, Dkt. No. 85 at 2, is unpersuasive.

So too for Google's effort to pass the buck for its shortfall to the Court. Google hedged its original requests with the statement that “if the Court believes that Google should support its request with either a supplemental declaration or additional detail in support of its sealing request, Google can provide such additional support and requests leave to do so.” Dkt. No. 161 at 2; Dkt. No. 83-1 ¶ 3; Dkt. No. 84-1 ¶ 3. This fundamentally misunderstands federal motion practice. The Court does not review a party's motion papers and offer coaching pointers for a second round of briefs. The burden is on the party to make its case in the first instance, as it sees fit. That is all the more true in the sealing context, where the “judge need not document compelling reasons to unseal; rather the proponent of sealing bears the burden with respect to sealing.” Kamakana, 447 F.3d at 1182.

Google is also less than forthright in characterizing the present motion as a “renewed” application. There is no basis for that in the federal procedural rules. In effect, Google seeks reconsideration of the prior order without owning up to the standards that govern reconsideration, starting with the requirement that a party must request leave to file such a motion. See Civil L.R. 7-9(a) (“No party may notice a motion for reconsideration without first obtaining leave of Court to file the motion.”). Nor did Google make any effort to demonstrate the existence of new facts or law, or the other circumstances that might warrant reconsideration. See id. 7-9(b).

Altogether, Google has not established any reason to disturb the Court's prior order. Even so, purely in the interest of keeping this litigation on track, the Court has reviewed the “renewed application,” Dkt. No. 85, which is directed to the complaints other than Epic's, which was more circumspect about Google's information. The Court also reviewed the declaration of a Finance Director for Google, LLC, Dkt. No. 85-1. These filings are more detailed in describing the material Google is seeking to seal, and the reasons why Google believes each item should be sealed. Id. None of this is new information, and should have been presented in the original request.

Most of the “renewed” sealing requests are still inappropriate. Google has met its burden only for a small subset of the sealing requests. The Court's rulings are stated in the attached chart. See Ex. A. The Court granted sealing for specific deal terms that might be used against Google in other negotiations and deals. The Court declined to seal information outside this specific category of sensitive information because Google did not demonstrate a plausible risk to its business from publication. For example, Google did not present facts establishing that disclosure of profits and revenues from portions of its business would cause it commercial harm. Google may be uncomfortable that the public will see this data, but “a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179 (citation omitted).

The Consumer Plaintiffs, Developer Plaintiffs, and Plaintiff States are directed to file revised redacted versions of their complaints which comport with this order within 7 days from the date of this order. Civil L.R. 79-5(f)(3).

This resolves Google's renewed application to seal. Dkt. No. 85. Google's motion for a stay, Dkt. No. 83, and the stipulated request for an order shortening time for that motion, Dkt. No. 84, are terminated.

IT IS SO ORDERED.

Exhibit A to Order re Motion to Stay and Renewed Application to Seal

JAMES DONATO, United States District Judge