COOLEY LLP

ATTORNEYS AT LAW
SAN FRANCI SCO
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GOOGLE INC.S RESPONSE TO MEDIA
INTERVENORS NOTICE OF PENDING MOTION
CASE NO. 5:13-MD-02430 LHK (PSG)

COOLEY LLP
MICHAEL G. RHODES (116127)
(rhodesmg@cooley.com)
WHITTY SOMVICHIAN (194463)
(wsomvichian@cooley.com)
KYLE C. WONG (224021)
(kwong@cooley.com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone: (415) 693-2000
Facsimile: (415) 693-2222
Attorneys for Defendant
GOOGLE INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN J OSE DIVISION
IN RE GOOGLE INC. GMAIL
LITIGATION
Case No. 5:13-md-02430 LHK (PSG)
GOOGLE INC.S RESPONSE TO
MEDIA INTERVENORS NOTICE OF
PENDING MOTION
Dept.: Courtroom 8 - 4th Floor
J udge: Hon. Lucy H. Koh

The Court should decline to consider the self-styled Media Intervenors Notice of Pending
Motion (Notice) because the Local Rules are clear that [o]nce a reply is filed, no additional
memoranda, papers or letters may be filed without prior Court approval . . . . Local Rule 7-3(d).
The Media Intervenors Notice is unsolicited and unapproved and therefore, inappropriate
supplementary briefing in support of the Media Intervenors Motion to Intervene and Opposition
to Parties Motion to Seal, filed in violation of Local Rule 7-3(d). Accordingly, the Court should
decline to consider the authorities and arguments therein. See Kryzanowski v. Orkin
Exterminating Co., Inc., No. C 07-05362 SBA, 2009 WL 4050674, at *7 (N.D. Cal. Nov. 20,
2009) (finding that unauthorized supplemental briefing was not properly before the court); Hogan
v. PMI Mortg. Ins. Co., No. C 05-3851 PJ H, 2006 WL 1310461, at *13 (N.D. Cal. May 12, 2006)
Case5:13-md-02430-LHK Document179 Filed07/24/14 Page1 of 3
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2.
GOOGLE INC.S RESPONSE TO MEDIA
INTERVENORS NOTICE OF PENDING MOTION
CASE NO. 5:13-MD-02430 LHK (PSG)

(declining to consider supplemental authorities and arguments filed in violation of Local Rule 7-
3(d)).
Even if the Court were to consider the Notice, the Media Intervenors perceived need for
public access to the information sought to be sealed is significantly diminished by the Courts
denial of class certification with prejudice. The Media Intervenors opposed the Motions to Seal
on the basis that the public interest . . . cannot be overstated, in part, because [t]his case has
the potential to . . . affect the rights of the millions of class members. (ECF No. 136 at 3.) Now
that the Court has denied class certification with prejudice and each of the representative
plaintiffs cases has been dismissed the need for the millions of class members to have access
to Googles confidential information is necessarily diminished. Cf. In re Cendant Corp., 260
F.3d 183, 193 (3d Cir. 2001) (the right of public access to confidential information is more
compelling where members of the public are potential plaintiffs in the class action). Moreover,
the Court on its own initiative redacted its order on class certification, strongly implying that
the underlying documents on which that order relied contain sensitive confidential information
that should be sealed.
1

For all of the reasons discussed herein and in Googles Response to the Media
Intervenors Motion to Intervene and Opposition to Parties Motion to Seal, Google respectfully
requests that the Court decline to consider the Media Intervenors Notice of Pending Motion and
grant Googles pending sealing motions notwithstanding the Media Intervenors objections.



1
The cases cited by the Media Intervenors do not support unsealing. Phillips v. General Motors
Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) and Ford v. City of Huntsville, 242 F.3d 235, 238-39
(5th Cir. 2001) deal with confidentiality of settlement information; these cases do not deal with
issues related to the publics access to sensitive, competitive, and proprietary business
information of the type that Google seeks to seal. Rosado v. Bridgeport Roman Catholic Church,
276 Conn. 168, 231 (2005), on the other hand, concerned public access to evidence related to
allegations of widespread sexual abuse, which is similarly information unrelated to any trade
secrets or other confidential research, development, or commercial information. Notably, the
Rosado court did not allow access to this information, but found that the lower court had
improperly applied the relevant standard and remanded to the trial court for a determination of
whether to vacate the protective orders at issue. Id. Moreover, Rosado has no precedential value
in the instant case.
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3.
GOOGLE INC.S RESPONSE TO MEDIA
INTERVENORS NOTICE OF PENDING MOTION
CASE NO. 5:13-MD-02430 LHK (PSG)

Dated: J uly 24, 2014

COOLEY LLP
MICHAEL G. RHODES (116127)
WHITTY SOMVICHIAN (194463)
KYLE C. WONG (224921)
/s/ Whitty Somvichian
Whitty Somvichian (194463)
Attorneys for Defendant
GOOGLE INC.
Case5:13-md-02430-LHK Document179 Filed07/24/14 Page3 of 3