Meta Platforms, Inc. v. BrandTotal Ltd.

Background

The court had provisionally placed an earlier order under seal and asked the parties to explain why it should not be filed publicly. BrandTotal requested that two passages remain sealed. Facebook did not file a response.

The First Passage

The first passage concerned legal advice BrandTotal received from its Israeli counsel before the litigation began. The court had previously determined that BrandTotal waived its attorney-client privilege, meaning BrandTotal could no longer use that privilege to keep the information confidential.

BrandTotal argued that the information had previously been treated as confidential and sealed, and that the passage appeared only in the earlier order’s background section. The court rejected that argument. It explained that the earlier order applied a more relaxed “good cause” standard to exhibits filed with a discovery motion. That standard did not apply to sealing an order addressing a motion to dismiss. For that type of court order, BrandTotal had to show “compelling reasons” for continued sealing.

The Second Passage

The second passage described the declining functionality of an earlier version of BrandTotal’s product after Google removed it from its web store. BrandTotal argued that public disclosure would give competitors insight into its flagship product.

The court was not persuaded that publishing slightly more specific information about a product that was entirely defunct would cause meaningful competitive harm. The court also noted that the parties had already discussed the product’s declining functionality in public filings. In addition, the product’s source code had been made publicly available, and its operation had previously been described in publicly filed documents.

Ruling

The court denied BrandTotal’s request to keep portions of the earlier order under seal and stated that it would file the order unredacted in the public record. Judge Joseph C. Spero signed the order.