Case 3:20-cv-07182-JCS Document 157 Filed 06/09/21 Page 1 of 2
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FACEBOOK, INC.,
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`Plaintiff,
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`v.
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`BRANDTOTAL LTD., et al.,
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`Defendants.
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`Case No. 20-cv-07182-JCS
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`ORDER DENYING REQUEST FOR
`REDACTIONS TO PREVIOUS ORDER
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`Re: Dkt. No. 152, 153, 155
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`On June 3, 202, the Court filed an order provisionally under seal and ordered the parties to
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`show cause why it should not be filed in the public record. See dkts. 152, 153. BrandTotal filed a
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`response seeking sealing of two passages of the order. Response (dkt. 155). Facebook did not file
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`a response. Generally, subject to exceptions not applicable here, a party must show “compelling
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`reasons” to maintain documents in the record of a civil action under seal. Ctr. for Auto Safety v.
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`Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016).
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`The first passage at issue, appearing at page 4 of the Court’s order, concerns legal advice
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`BrandTotal received from its Israeli counsel, for which the Court previously determined
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`BrandTotal waived its attorney-client privilege. BrandTotal presents the following argument for
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`sealing that portion of the order:
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`This information concerns legal advice BrandTotal requested prior to
`the commencement of this litigation. This information was addressed
`in the Court’s February 24, 2021, Order, where the Court recognized
`the information was confidential and sealed this same information.
`ECF No. 111 at 3; see also ECF No. 101-1 (explaining why
`information is confidential and, if published would cause imminent
`harm to BrandTotal). Moreover, these lines appear only in the
`“Background” section of the Court’s order and are, at best,
`tangentially related to the Court’s holdings.
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`Response at 1. The previous order on which BrandTotal relies in fact held that BrandTotal’s now-
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`waived privilege was not a basis for sealing and sealed only unrelated information based on other
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`Case 3:20-cv-07182-JCS Document 157 Filed 06/09/21 Page 2 of 2
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`confidentiality concerns, applying a relaxed standard of “good cause” for sealing exhibits
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`submitted in support of a discovery motion, which is not applicable here to sealing an order of the
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`Court addressing a motion to dismiss. See dkt. 111.1
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`The second passage at issue, at page 5 of the Court’s order, addresses the declining
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`functionality of a previous version of BrandTotal’s product after it was removed from Google’s
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`web store. BrandTotal asserts that publishing “this information would harm BrandTotal by
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`providing BrandTotal’s competitors insight into BrandTotal’s flagship product.” Response at 1.
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`The parties have addressed at least in general terms the declining functionality of that product in
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`the public record. The Court is not persuaded that BrandTotal is likely to suffer any meaningful
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`competitive harm if slightly more specific information about a product version that is now entirely
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`defunct is included in the public record.
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`Accordingly, BrandTotal’s request to maintain portions of the Court’s order under seal is
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`DENIED, and the Court will file the order unredacted in the public record.
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`IT IS SO ORDERED.
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`Dated: June 9, 2021
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`______________________________________
`JOSEPH C. SPERO
`Chief Magistrate Judge
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`1 To the extent BrandTotal is concerned that the passage describes operation of BrandTotal’s
`products, rather than that it reveals legal advice, BrandTotal has not shown compelling reasons to
`seal a description of product functionality it no longer uses, particularly when the source code for
`the product had been made publicly available and its operation was previously described in
`documents filed publicly in this case. See Order to Show Cause (dkt. 59) (noting these
`shortcomings with respect to a previous motion to file under seal).
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