Case Name: Patricia Spain v. Marissa Mayer, et al.
Case No.: 17-CV-307054

Before the Court are several motions by nominal defendant Yahoo! Inc. to seal materials lodged in connection with plaintiff Patricia Spain’s motion for a preliminary injunction, which was heard on June 6, 2017. In its order following that hearing, the Court directed Yahoo! to narrow the scope of its sealing requests by submitting more judiciously redacted public versions of the subject documents. In compliance with the Court’s order, Yahoo! filed these materials on July 3.

Plaintiff opposes Yahoo!’s motions to the extent they pertain to material beyond the “detailed technical information” the parties agreed would not be discussed at the hearing on the preliminary injunction. While plaintiff’s opposition is untimely based on the original June 6th hearing date for certain motions to seal, the Court will exercise its discretion to consider it as to all motions, considering the time constraints associated with the injunction proceedings. (Cal. Rules of Court, rule 3.1300(d).) By the same token, the Court will consider Yahoo!’s beleated request to seal portions of plaintiff’s supplemental reply brief.

I. Legal Standard

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).)

“Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3.) In addition, confidential matters relating to the business operations of a party may be sealed where public revelation of the information would interfere with the party’s ability to effectively compete in the marketplace. (See Universal City Studios, Inc. v. Superior Court (Unity Pictures Corp.) (2003) 110 Cal.App.4th 1273, 1285-1286.)

Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate both the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian, supra, 96 Cal.App.4th at p. 309.)

II. Analysis

As an initial matter, Yahoo! indicates that it is withdrawing its sealing request as to all materials that are not listed in its July 3rd filing. The Court will therefore deny Yahoo!’s motions as to these materials.

The remainder of the documents at issue reflect a range of information that Yahoo! contends is sensitive and confidential. As urged by plaintiff, it is difficult—particularly considering the volume of documents involved—to determine which redactions correspond to which of the several categories of information Yahoo! maintains should be sealed, because Yahoo! does not take a line-by-line approach to addressing this issue as it should. (See In re Providian, supra, 96 Cal.App.4th at p. 309.) Plaintiff, too, takes a generalized approach in her opposition. The Court will accordingly address the parties’ disputes on a general level insofar as it can, but will require further briefing to fully resolve the pending motions.

The primary argument raised by plaintiff in opposition to the motions to seal is that Yahoo! has waived its right to request sealing of materials other than the “detailed technical information” the parties agreed not to discuss at the public hearing on the preliminary injunction. Plaintiff cites Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, where it was held that the moving party had waived its right to request sealing in the appellate record of documents that had been publicly filed with the trial court. (At pp. 598-601; see also Universal City Studios, Inc. v. Superior Court, supra, 110 Cal.App.4th at pp. 1285-1286 [request to seal denied because financial information was publicly filed in another case].) This argument has merit insofar as information was actually shown or discussed at the preliminary injunction hearing; however, there is no support for the conclusion that Yahoo!’s willingness to stipulate to the use of certain materials at the hearing should be applied against it as to information not reflected in those materials. Accordingly, materials used at the hearing and other materials reflecting information that was discussed at the hearing or in the Court’s order on the motion for preliminary injunction shall be publicly filed, but Yahoo! has not waived any arguments to seal other materials. The Court is unpersuaded by Yahoo!’s argument that the discussion of information at a public hearing does not constitute a waiver where the information was not also filed publicly.

Turning to the merits of Yahoo!’s sealing requests, Yahoo! indicates in its various motions that the information it has redacted pertains to: (1) data breaches, security measures, and “corporate computer networks,” (2) “internal business” communications and documents, (3) personal information of Yahoo! users, (4) Yahoo!’s involvement and communications with agencies of the United States government, (5) internal discussions of a strategic agreement with an outside party, (6) user engagement trend data and other user metrics, (7) discussions regarding Yahoo!’s Alibaba investment, (8) the identity of a third party that submitted a competitive bid as part of a sale of Yahoo!’s operating business, (9) compensation and personnel decisions, (10) financial information, and (11) personal information such as non-public phone numbers and email addresses.

The parties appear to agree that the information in category 1 is appropriately filed under seal. In addition, categories 3, 6, 8, and 11 implicate privacy and competitive interests that routinely support sealing and would seem to uncontrovertially support sealing here. The Court intends to grant Yahoo!’s motions as to these categories. With respect to the remaining categories, it requires further information from the parties to fully understand the nature of the information at issue and determine which specific redactions are in dispute.

The Court intends to maintain under seal all electronic video clips of depositions, since redacted deposition transcripts will be publicly filed.

III. Conclusion and Order

Yahoo!’s motions are again CONTINUED TO SEPTEMBER 29, 2017 at 9:00 a.m. in Department 1. BY AUGUST 25, 2017, Yahoo! shall file and serve a supplemental brief supporting its motions, not to exceed 10 pages, providing specific argument to support the sealing of each category of information identified by the Court above. Yahoo! shall also file a chart (1) listing the materials and information that it no longer seeks to file under seal, (2) indicating which materials and information were made public in connection with the preliminary injunction hearing, and (3) categorizing the remaining materials and information using the eleven categories above.

The parties shall meet and confer after these supplemental materials are served in order to identify their specific remaining areas of dispute. By SEPTEMBER 11, 2017, plaintiff shall file and serve a supplemental brief, also not to exceed 10 pages, addressing the merits of Yahoo!’s remaining requests, along with a chart responsive to Yahoo!’s that indicates whether the sealing of the information listed is disputed or undisputed. The parties’ charts are to include page and line citations where needed to identify different categories of information reflected in a single document.

The Court will prepare the order.