Meta Platforms, Inc. v. BrandTotal Ltd.

Nature of the order

The court addressed nine administrative motions to file materials under seal. A request to file under seal asks the court to keep documents or portions of documents from public view. Because the materials were connected to counterclaims, a request for a preliminary injunction, and motions to dismiss, the court required the parties to show “compelling reasons” for sealing. The requests also had to be narrowly tailored, meaning they could seek protection only for material that warranted it, often through redactions rather than sealing an entire document.

The court stated at the outset that the motions were granted in part and denied in part. Some denials were without prejudice, allowing renewed motions proposing narrower redactions. The court directed the parties to confer and file public versions of documents no earlier than October 8 and no later than October 15, 2021, except for documents covered by renewed sealing motions. Renewed motions had to be filed by October 15.

BrandTotal’s March 5 motion (Dkt. 119)

The court granted the motion as to Exhibits D and E and as to proposed redactions in Exhibit L, with one limitation: redactions to paragraphs 9, 17, 18, and 21 of Exhibit L had to be limited to the names of third parties. The court denied the motion as to BrandTotal’s first amended counterclaim and Exhibit G.

BrandTotal’s March 12 motion (Dkt. 125)

The court granted in part the request concerning Alon Leibovich’s declaration to the same extent as in the March 5 motion. It granted the requested redactions in paragraph 4 and the specific percentage in paragraph 13 of Oren Dor’s declaration, but denied the remainder of the proposed redaction in paragraph 13.

The court granted the motion as to Exhibits A through I, S, and T. It denied the request as to Exhibit N without prejudice because the exhibit was largely already disclosed and any sealing would need to be limited to a narrow portion. The court also denied without prejudice the request to seal Exhibits X, Z, and EE in their entirety because targeted redactions to deposition testimony were feasible. The court denied the request as to the exhibit concerning the pre-litigation publication of BrandTotal’s product source code because the same exhibit was already publicly filed.

Based on Facebook’s responsive declaration, the court granted the motion as to Exhibits J, K, M, and DD. It denied without prejudice the requests concerning Exhibits W, Y, and AA because Facebook had not proposed narrowly tailored redactions. It denied the requests concerning Exhibits O, P, HH, and II because Facebook did not seek to seal those exhibits.

For the renewed preliminary-injunction motion, the court granted sealing only for specified passages, a specific percentage, and certain dollar values and third-party names. It denied all other proposed redactions. For Robert Sherwood’s expert report, the court granted sealing only for the proposed redactions in paragraphs 61 and 133 and denied all other proposed redactions.

Facebook’s March 26 motion (Dkt. 131)

Facebook sought to seal passages in its motion to dismiss based on its procedures for detecting and investigating unauthorized use of its platform, and also relied on BrandTotal’s confidentiality designations for other passages. The court denied this motion in its entirety. It concluded that the passages concerning Facebook’s own interests described conclusions rather than confidential methods, and BrandTotal had not filed the required responsive declaration supporting its confidentiality designations.

Facebook’s April 9 motion (Dkt. 133)

The court granted the motion as to Exhibits A, B, D, G, I, and EE. It granted sealing for only the proposed redactions at lines 4 and 5 of page 23 of the opposition brief and denied all other proposed redactions to that brief. It also denied the requests concerning the listed Exhibits F, H, J, K, L, M, O, P, Q, R, S, T, U, V, W, X, CC, and DD, as well as portions of the brief that Facebook sought to seal based on BrandTotal’s designations, because BrandTotal had not filed the required responsive declaration.

BrandTotal’s first April 16 motion (Dkt. 137)

The court granted specified redactions in BrandTotal’s reply brief and granted all proposed redactions to Alon Leibovich’s accompanying declaration. It denied without prejudice the request concerning Exhibit OO because the request did not propose narrowly tailored redactions to deposition testimony. The court denied all other proposed redactions to the reply brief.

BrandTotal’s second April 16 motion (Dkt. 139)

The court denied this motion in its entirety as to both the opposition brief and Exhibit A. Facebook had sought sealing of only two passages in the brief, but the court was not satisfied that compelling reasons required sealing them.

Facebook’s April 30 motion (Dkt. 141)

The court denied this motion in its entirety. It found that a passage about how Facebook detects, investigates, and evaluates unauthorized use revealed a conclusion rather than confidential methods. BrandTotal also stated that it did not oppose filing the other passages in the public record.

BrandTotal’s June 25 motion (Dkt. 162)

The court denied the request as to BrandTotal’s second amended counterclaim. It denied without prejudice the request concerning Exhibit M because the proposed redactions were not narrowly tailored. It granted the request as to Exhibits D and E and granted in part the request as to Exhibit L, limited to the same extent described for the March 5 motion.

BrandTotal’s July 28 motion (Dkt. 171)

The court denied this motion in its entirety because BrandTotal relied on Facebook’s confidentiality designation, but Facebook did not file the required responsive declaration.

Disposition and effect

Judge Joseph C. Spero’s order resolved only the administrative requests to keep particular materials confidential. It did not decide the merits of the counterclaims, the request for a preliminary injunction, or the motions to dismiss. The parties had to file public versions of materials for which sealing was denied in whole or in part, unless those materials were covered by timely renewed motions.