Case 3:17-cv-00939-WHA Document 1918 Filed 10/02/17 Page 1 of 5

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Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com
BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, CO 80202-5596
Phone: (303) 376-2409
Attorneys for Proposed Intervenors Associated Press,
Bloomberg L.P., Buzzfeed, Inc.,
MediaNews Group, Inc., d/b/a Digital First Media,
Dow Jones & Co., The First Amendment Coalition,
Gizmodo Media Group, LLC, The Hearst Corporation,
The New York Times Company, Reuters America LLC
and Vox Media, Inc.
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,
Plaintiff,

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vs.
UBER TECHNOLOGIES, INC.;
OTTOMOTTO, LLC; OTTO TRUCKING
LLC,
Defendants.

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Case No. 3:17-cv-00939-WMA
MEDIA COALITION'S
CERTIFICATIONS OF INTERESTED
ENTITIES OR PERSONS AND
CORPORATE DISCLOSURE
STATEMENTS

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MEDIA COALITION'S CERTIFICATIONS
OF INTERESTED ENTITIES OR PERSONS
AND CORPORATION DISCLOSURE STATEMENTS

CASE NO. 3:17-cv-00939-WHA

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CERTIFICATIONS OF INTERESTED ENTITIES
OR PERSONS PURSUANT TO L.R. 3-15

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Pursuant to Civil L.R. 3-15, and by and through their undersigned counsel, members of
the Media Coalition state that the following listed persons, associations of persons, firms,
partnerships, corporations (including parent corporations) or other entities (i) have a financial
interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a nonfinancial interest in that subject matter or in a party that could be substantially affected by the
outcome of this proceeding:

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The Associated Press: The Associated Press certifies there is no such interest to report.

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BuzzFeed, Inc.: BuzzFeed, Inc. certifies there is no such interest to report.

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Bloomberg L.P.:
• BLP Acquisitions L.P.

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Bloomberg, Inc.

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MediaNews Group, Inc., d/b/a/ Digital First Media: MediaNews Group, Inc. d/b/a

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Digital First Media certifies there is no such interest to report.
Dow Jones & Co., Inc.:

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•

Ruby Newco, LLC

such interest to report.
Gizmodo Media Group, LLC:

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Univision Interactive Media, Inc. d/b/a/ Fusion Media Group

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Univision Communications Inc.

The Hearst Corporation: The Hearst Corporation certifies there is no such interest to

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News Corporation

The First Amendment Coalition: The First Amendment Coalition certifies there is no

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report.

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MEDIA COALITION'S CERTIFICATIONS
OF INTERESTED ENTITIES OR PERSONS
AND CORPORATE DISCLOSURE STATEMENTS

CASE NO. 3:17-cv-00939-WHA

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The New York Times Company: The New York Times Company certifies there is no
such interest to report.
Reuters America LLC:
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Thompson Reuters Corporation

Vox Media, Inc.: Vox Media, Inc. certifies there is no such interest to report.

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FED. R. CIV. P. RULE 7.1 CORPORATE DISCLOSURE STATEMENTS
Pursuant to Federal Rule of Civil Procedure 7.1, and by and through their undersigned
counsel, members of the Media Coalition hereby disclose the following:
The Associated Press: The Associated Press is a not-for-profit news cooperative and no
publicly traded company owns more than 10% of its stock.

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Bloomberg L.P.: Bloomberg L.P. is a limited partnership; its general partner is

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Bloomberg Inc.; and no publicly held corporation owns ten percent or more of Bloomberg L.P.'s

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limited partnership interests.

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BuzzFeed, Inc.: BuzzFeed, Inc. is a privately held corporation and no publicly traded
company owns more than 10% of its stock.
MediaNews Group, Inc., d/b/a/ Digital First Media: MediaNews Group, Inc. d/b/a

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Digital First Media is a privately held corporation and no publicly traded company owns more

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than 10% of its stock.

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Dow Jones & Co, Inc.: News Corporation, a publicly held company, is the indirect

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parent corporation of Dow Jones & Co., Inc. (“Dow Jones”). Ruby Newco, LLC, a subsidiary of

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News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No

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publicly held company directly owns 10% or more of the stock of Dow Jones.

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The First Amendment Coalition: The First Amendment Coalition is a not-for-profit
organization and no publicly traded company owns more than 10% of its stock.
Gizmodo Media Group, LLC: Gizmodo Media Group, LLC is a division of Univision
Interactive Media, Inc. d/b/a Fusion Media Group, which is owned and operated by Univision
MEDIA COALITION'S CERTIFICATIONS
OF INTERESTED ENTITIES OR PERSONS
AND CORPORATE DISCLOSURE STATEMENTS

CASE NO. 3:17-cv-00939-WHA

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Communications Inc. Univision Communications Inc. is a privately held corporation and no

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publicly traded company owns more than 10% of its stock.

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The Hearst Corporation: The Hearst Corporation is a privately held corporation and no
publicly traded company owns more than 10% of its stock.
The New York Times Company: The New York Times Company is a publicly traded

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company that has no parent company. One publicly held corporation, Grupo Financiero Inbursa,

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S.A.B. de C.V., owns more than 10 percent of The New York Times Company’s stock through

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affiliated entities.

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Reuters America LLC: Reuters America LLC is an indirect wholly-owned subsidiary

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of Thomson Reuters Corporation, a publicly held company. No publicly held company owns

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10% or more of the stock of Thomson Reuters Corporation.

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Vox Media, Inc.: Vox Media, Inc. is a non-governmental corporate party and has no

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parent corporation. NBCUniversal Media, LLC a publicly held corporation, owns 10% or more

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of Vox Media Inc.’s stock.

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Respectfully submitted on October 2, 2017
By: s/
Steven D. Zansberg
Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com
BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, CO 80202-5535
Phone: (303) 376-2409
Attorneys for Proposed Intervenors Associated Press,
Bloomberg L.P., Buzzfeed, Inc.,
MediaNews Group, Inc., d/b/a Digital First Media,
Dow Jones & Co., The First Amendment Coalition,
Gizmodo Media Group, LLC, The Hearst Corporation,
The New York Times Company, Reuters America LLC
and Vox Media, Inc.

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MEDIA COALITION'S CERTIFICATIONS
OF INTERESTED ENTITIES OR PERSONS
AND CORPORATE DISCLOSURE STATEMENTS

CASE NO. 3:17-cv-00939-WHA

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CERTIFICATE OF SERVICE

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I hereby certify that I have on this 2nd day of October, 2017, served via the Court’s

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electronic filing system, a true and correct copy of the above and foregoing on all counsel of

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record.

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s/

Steven D. Zansberg

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MEDIA COALITION'S CERTIFICATIONS
OF INTERESTED ENTITIES OR PERSONS
AND CORPORATE DISCLOSURE STATEMENTS

CASE NO. 3:17-cv-00939-WHA

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 Case 3:17-cv-00939-WHA Document 1917 Filed 10/02/17 Page 1 of 3

1 Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com
2 BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
3 Denver, CO 80202-5596
Phone: (303) 376-2409
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Attorneys for Proposed Intervenors Associated Press,
5 Bloomberg L.P., Buzzfeed, Inc.,
MediaNews Group, Inc., d/b/a Digital First Media,
6 Dow Jones & Co., The First Amendment Coalition,
Gizmodo Media Group, LLC, The Hearst Corporation,
7 The New York Times Company, Reuters America LLC
and Vox Media, Inc.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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WAYMO LLC,
) Case No. 3:17-cv-00939-WMA
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Plaintiff,
) NOTICE OF APPEARANCE OF
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) STEVEN D. ZANSBERG FOR
vs.
) PROPOSED INTERVENORS
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UBER TECHNOLOGIES, INC.;
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14 OTTOMOTTO, LLC; OTTO TRUCKING )
LLC,
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Defendants.
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18 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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I, STEVEN D. ZANSBERG, of Ballard Spahr LLP, hereby enter my appearance as

20 counsel for Proposed Intervenors The Associated Press, Bloomberg L.P., Buzzfeed, Inc.,
21 MediaNews Group, Inc. d/b/a Digital First Media, Dow Jones & Co., The First Amendment
22 Coalition, Gizmodo Media Group, LLC, The Hearst Corporation, The New York Times
23 Company, Reuters America LLC and Vox Media, Inc. in this matter. I am a member of the
24 State Bar of California and am admitted to practice in the Northern District of California.
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My address and telephone number are as follows:

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Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com
Ballard Spahr LLP
1225 Seventeenth St., Suite 2300
Denver, CO 80202-5596
Phone: (303) 376-2409

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NOTICE OF APPEARANCE

CASE NO.: 3:17-cv-00939-WMA

 Case 3:17-cv-00939-WHA Document 1917 Filed 10/02/17 Page 2 of 3

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Please serve said counsel with all pleadings and notices in this action.

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3 DATED: October 2, 2017

Respectfully submitted by:

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s/
Steven D. Zansberg
Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com

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BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, CO 80202-5535
Phone: (303) 376-2409

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Attorneys for Proposed Intervenors Associated Press,
Bloomberg L.P., Buzzfeed, Inc., MediaNews Group, Inc.,
d/b/a Digital First Media, Dow Jones & Co., The First
Amendment Coalition, Gizmodo Media Group, LLC, The
Hearst Corporation, The New York Times Company,
Reuters America LLC and Vox Media, Inc.

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NOTICE OF APPEARANCE

CASE NO.: 3:17-cv-00939-WHA

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CERTIFICATE OF SERVICE

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I hereby certify that I have on this 2nd day of October, 2017, served via the Court’s

3 electronic filing system, a true and correct copy of the above and foregoing on all counsel of
4 record.
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s/

Steven D. Zansberg

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NOTICE OF APPEARANCE

CASE NO.: 3:17-cv-00939-WHA

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 Case 3:17-cv-00939-WHA Document 1919 Filed 10/02/17 Page 1 of 25

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Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com
BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, CO 80202-5596
Phone: (303) 376-2409
Attorneys for Proposed Intervenors Associated Press,
Bloomberg L.P., Buzzfeed, Inc.,
MediaNews Group, Inc., d/b/a Digital First Media,
Dow Jones & Co., The First Amendment Coalition,
Gizmodo Media Group, LLC, The Hearst Corporation,
The New York Times Company, Reuters America LLC
and Vox Media, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WAYMO LLC,

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Plaintiff,
vs.
UBER TECHNOLOGIES, INC.;
OTTOMOTTO, LLC; OTTO TRUCKING
LLC,
Defendants.

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Case No. 3:17-cv-00939-WMA
MEDIA COALITION’S MOTION TO
INTERVENE FOR LIMITED PURPOSE
OF OPPOSING WAYMO’S CLOSURE
MOTION AND VINDICATING THE
RIGHT OF PUBLIC ACCESS TO THIS
PROCEEDING
Date:
Time:
Courtroom:
Judge:

October 3, 2017
8:00 a.m.
8, 19th Floor
Hon. William A. Alsup

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

CASE NO. 3:17-cv-00939-WHA

 Case 3:17-cv-00939-WHA Document 1919 Filed 10/02/17 Page 2 of 25

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2

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ARGUMENT ...................................................................................................................................4

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I.

THE MEDIA COALITION SHOULD BE PERMITTED TO INTERVENE FOR
THE LIMITED PURPOSE OF VINDICATING THE RIGHT OF PUBLIC
ACCESS TO THE TRIAL IN THIS CLOSELY-WATCHED CASE ................................4

II.

THE FIRST AMENDMENT EXTENDS A QUALIFIED RIGHT OF PUBLIC
ACCESS TO THE TRIAL OF THIS LAWSUIT AND THE RELATED
RECORDS ...........................................................................................................................5

III.

THE FIRST AMENDMENT IMPOSES A HEAVY BURDEN ON ANY PARTY
SEEKING TO DENY PUBLIC ACCESS TO A CIVIL TRIAL ........................................7

IV.

WAYMO’S OVERBROAD REQUEST FOR SECRET PROCEEDINGS FAILS
TO SATISFY THE STRICT CONSTITUTIONAL STANDARDS ...................................8

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A.

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Waymo Has Failed to Demonstrate A Substantial Probability Of Harm To A
Compelling Interest................................................................................................. 9

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1.

Invoking the talismanic term “trade secrets” does not automatically justify
closure. ........................................................................................................ 9

2.

Waymo’s other conclusory and speculative claims of harms are equally
insufficient, as a matter of law. ................................................................. 11

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B.

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V.

Waymo Has Also Failed To Demonstrate That No “Less Restrictive Means” Are
Available To Protect Any Truly Compelling Interest........................................... 13

BECAUSE ANY CLOSURE ORDER THE COURT MIGHT ENTER MUST BE
NARROWLY TAILORED, THE COURT SHOULD ORDER THE PROMPT
RELEASE OF A REDACTED TRANSCRIPT OF ANY CLOSED PORTION
OF THE TRIAL .................................................................................................................15

CONCLUSION ..............................................................................................................................18

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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TABLE OF AUTHORITIES

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Page(s)

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ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004)...................................................................................................8, 16

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Apple, Inc. v. Samsung Electronics Co.,
No. 11-CV-01846-LHK, 2012 WL 3283478 (N.D. Cal. Aug. 9, 2012) ..................................15
Applications of Nat’l Broad. Co., Inc., 828 F.2d 340 (6th Cir. 1987) ...........................................14
Associated Press v. U.S. District Court,
705 F.2d 1143 (9th Cir. 1983) ...................................................................................................8
Baltimore Sun Co. v. Goetz,
886 F.2d 60 (4th Cir. 1989) .......................................................................................................7
Barr Laboratories, Inc. v. KOS Pharmaceuticals, Inc.,
362 F. Supp. 2d 421 (S.D.N.Y. 2005)................................................................................10, 14
Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165 (6th Cir. 1983) .............................................................................................6, 12
California ex rel. Lockyer v. Safeway, Inc.,
355 F. Supp. 2d 1111 (C.D. Cal. 2005) .....................................................................................5

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Courthouse News Service v. Planet,
750 F.3d 776 (9th Cir. 2014) .....................................................................................................6
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ...................................................................................................................6
Daily Press, Inc. v. Commonwealth of Virginia,
739 S.E.2d 636 (Va. 2013).......................................................................................................17
Doe v. Public Citizen,
749 F.3d 246 (4th Cir. 2014) ...................................................................................................17
DVD Copy Control Association Inc. v. Bunner,
116 Cal. App. 4th 241 (Cal. App. 2004) ..................................................................................10
EEOC v. National Children’s Center, Inc.,
146 F.3d 1042 (D.C. Cir. 1998) .................................................................................................4
Gambale v. Deutsche Bank AG,
377 F.3d 133 (2d Cir. 2004).....................................................................................................10
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ...............................................................................................................4, 5
Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie,
2007 WL 922255 (D. Vt. Mar 23, 2007) .............................................................................9, 10
Grove Fresh Distributors, Inc. v. Everfresh Juice Co.,
24 F.3d 893 (7th Cir. 1994) .....................................................................................................17
Hagestad v. Tragesser,
49 F.3d 1430 (9th Cir. 1995) .....................................................................................................6
Hill Holiday Connors Cosmopulos, Inc. v. Greenfield,
2010 WL 890067 (Mar. 8, 2010) .............................................................................................10
Huminski v. Corsones,
396 F.3d 53 (2d Cir. 2005).........................................................................................................9
In re C.R. Bard, Inc., Pelvic Repair Systems Products Liability Litigation,
2013 WL 2156599 (S.D. W. Va. May 17, 2013) .....................................................................10
In re Continental Illinois Securities Litigation,
732 F.2d 1302 (7th Cir. 1984) ...................................................................................................6
In re Guantanamo Bay Detainee Litigation,
630 F. Supp. 2d 1 (D.D.C. 2009) ...............................................................................................5
In re Iowa Freedom of Information Council,
724 F.2d 658 (8th Cir.1983) ....................................................................................................10

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In re Knight Publishingg Co.,
743 F.2d 231 (4th Cir. 1984) ...................................................................................................14
In re N.Y. Times Co.,
834 F.2d 1152 (2d Cir. 1987)...................................................................................................18
Joy v. North,
692 F.2d 880 (2d Cir. 1982).......................................................................................................9
Kamakana v. City & County of Honolulu,
447 F.3d 1172 (9th Cir. 2006) .......................................................................................4, 12, 13
Kasza v. Whitman,
325 F.3d 1178 (9th Cir. 2003) .................................................................................................16
Main & Associatess, Inc. v. Blue Cross and Blue Shield of Alabama,
2010 WL 2025375 (M.D. Ala. May 20, 2010) ........................................................................10
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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Mendez v. City of Gardena,
222 F. Supp. 3d 782 (C.D. Cal. 2015) .......................................................................................6
Nebraska Press Association v. Stuart,
427 U.S. 539 (1976) .................................................................................................................17
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) ...............................................................................................................5, 6
Oliner v. Kontrabecki,
745 F.3d 1024 (9th Cir. 2014) .................................................................................................12
Oregonian Publishing Co. v. U.S. District Court,
920 F.2d 1462 (9th Cir. 1990) .........................................................................................4, 7, 13
Phoenix Newspapers, Inc. v. U.S. District Court,
156 F.3d 940 (9th Cir. 1998) .......................................................................................4, 5, 7, 13
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) .................................................................................................................16
Press-Enterprise Co. v. Superior Court,
478 U.S.1 (1986) ..................................................................................................................8, 13
Publicker Industries, Inc. v. Cohen,
733 F.2d 1059 (3d Cir. 1984)...................................................................................6, 12, 14, 16
Religious Technology Center v. F.A.C.T.NET, Inc.,
901 F. Supp. 1519 (D. Colo. 1995) ..........................................................................................10

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Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .........................................................................................................6, 7, 13
Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249 (4th Cir. 1988) .................................................................................................6, 7
San Jose Mercury News, Inc. v. U.S. District Court,
187 F.3d 1096 (9th Cir. 1999) ...................................................................................................4
Society of Professional Journalists v. United States Secretary of Labor,
616 F. Supp. 569 (D. Utah 1985) .............................................................................................16
U.S. v. Rosen,
487 F. Supp. 2d 703 (E.D. Va. 2007) ......................................................................................11
U.S. v. Zhang,
590 F. App’x 663 (9th Cir. 2014) ............................................................................................14
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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Union Oil Co. of California v. Leavell,
220 F.3d 562 (7th Cir. 2000) ...................................................................................................12
United States v. Antar,
38 F.3d 1348 (3d Cir. 1994).....................................................................................................16
United States v. Aref,
533 F.3d 72 (2d Cir. 2008).......................................................................................................15
United States v. Business of Custer Battlefield Museum & Store Located at Interstate 90,
Exit 514, South of Billings, Montana,
658 F.3d 1188 (9th Cir. 2011) ...................................................................................................7
United States v. Edwards,
672 F.2d 1289 (7th Cir. 1982) .................................................................................................13
United States v. General Motors Corp.,
99 F.R.D. 610 (D.D.C. 1983).....................................................................................................8
United States v. Pickard,
733 F.3d 1297 (10th Cir. 2013) ...............................................................................................17
United States v. Wecht,
537 F.3d 222 (3d Cir. 2008).....................................................................................................17
US Investigations Services, LLC v. Callihan,
2011 WL 1157256 (W.D. Pa. Mar. 29, 2011) ...................................................................11, 14

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Westmoreland v. Columbia Broadcasting Systems, Inc.,
752 F.2d 16 (2d Cir. 1984).........................................................................................................6

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Rules

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FED. R. CIV. P. 24 .............................................................................................................................5

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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INTRODUCTION
Through this motion, eleven news organizations (collectively, the “Media Coalition”)
seek permission to intervene to enforce the public’s right of access to judicial proceedings.
Specifically, they seek to oppose the motion by Plaintiff Waymo LLC (“Waymo”) to close large
portions of the trial in this case. See Motion to Close Courtroom ("Mot."), Sept. 26, 2017, Doc.
No. 1822.
The Media Coalition is comprised of news organizations that have been covering this

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hotly-disputed lawsuit. They have reported on prior hearings conducted in open court and intend

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to cover the trial, presently scheduled to begin October 10, 2017. Given the nature of the claims

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at issue, affecting the future of an industry and technology capable of revolutionizing how

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humans travel by car, the trial will undoubtedly address issues of significant and legitimate

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public concern.

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As demonstrated below, the First Amendment extends a qualified right of public access

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to civil trials. It is well settled that the news media, acting as “surrogates” for the broader public,

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have standing to be heard in opposition to any motion seeking to limit this public access right. It

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is equally well-settled that the constitutional access right can be abridged only on an evidentiary
showing that closure is essential to protect a governmental interest “of the highest order” and no
“less restrictive means” are available to adequately protect that compelling interest. When such
a showing is made, any closure order must be narrowly tailored and must be effective in
protecting the threatened interest.
While sealing could conceivably be justified under these standards for some limited

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portion of the trial in this case, given the allegations of trade secret theft, Waymo’s recitation of

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speculative and largely generic harms falls woefully short of satisfying its burden. No closure is

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proper unless and until Waymo demonstrates a substantial probability of harm to a compelling

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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interest that cannot adequately be protected by anything less than a limited denial of the public’s
right to attend the trial.

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BACKGROUND

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The Media Coalition consists of eleven media organizations that disseminate news over

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multiple communications platforms to a large and diverse audience within the United States and

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around the world, including investors keenly interested in the companies involved in this

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lawsuit. 1 Members of the Media Coalition have reported extensively on this lawsuit, which pits

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two Silicon Valley corporate behemoths against each other in a dispute that carries a potential
verdict exceeding $2.5 billion. 2 Beyond the high-profile names and the significant financial
interests at stake, this case has been closely monitored because it carries significant implications
for the future of driverless car technology, which many expect to transform our society in
important ways. 3
1

Specifically, the Media Coalition is comprised of the following entities: Associated
Press, Bloomberg L.P., Buzzfeed, Inc., NewsMedia Group, Inc. d/b/a Digital First Media, Dow
Jones & Company, The First Amendment Coalition, Gizmodo Media Group, LLC, The Hearst
Corporation, The New York Times Company, Reuters America LLC and Vox Media, Inc.
2
Entering the terms “Waymo & Uber &‘trade secrets’” into the online search engine
Google yields over 92,000 results. See, e.g., Marissa Kendall, The $2.6 billion trade secret:
Hearing offers peek at what Uber stands to lose in Waymo trial, THE MERCURY NEWS, (Sept. 20,
2017) http://www.mercurynews.com/2017/09/20/the-2-6-billion-trade-secret-hearing-offerspeek-what-uber-stands-lose-waymo-trial/; Daisuke Wakabayashi, Waymo Drops 3 Claims in suit
Against Uber on Driverless Cars, N.Y. TIMES, July 8, 2017, at B5; Joel Rosenblatt, Waymo and
Uber Head for a Self-Driving Car Crash in Court, BLOOMBERG (Sept. 7, 2017, 1:07 PM),
https://www.bloomberg.com/news/articles/2017-09-07/waymo-and-uber-head-for-a-self-drivingcar-crash-in-court; Tim Higgins and Jack Nicas, Alphabet’s Waymo asks court to halt Uber’s
self-driving car effort, MARKETWATCH, (Mar. 10, 2017, 4:37 PM)
http://www.marketwatch.com/story/alphabets-waymo-asks-court-to-halt-ubers-self-driving-careffort-2017-03-10-161033733; Michael Liedtke, Google-bred company accuses Uber of selfdriving car theft, THE ASSOCIATED PRESS (Feb. 24, 2017),
https://apnews.com/5feede63a96945eab413352f0363bb99; Ryan Felton, The Self-Driving Car
Wars Have Begun: Waymo Sues Uber For Stealing Design Of LiDAR System, JALOPNIK (Feb.
23, 2017, 6:24 PM), https://jalopnik.com/the-self-driving-car-wars-have-begun-waymo-suesuber-f-1792694851; Mike Isaac, Allies Turned Rivals in the Race to Build a Better Driverless
Car, N.Y. TIMES, May 17, 2017, at A1.
3
Dan Neil, Could Self-Driving Cars Spell the End of Ownership?, WALL ST. J., (Dec. 1,
20150 https://www.wsj.com/articles/could-self-driving-cars-spell-the-end-of-ownershipMEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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On September 26, 2017, Waymo filed the instant motion, which asks that the courtroom
be closed during the trial whenever its “extraordinarily sensitive” or “valuable confidential
business information” is discussed. See Mot. at 2. Waymo specifically contends that the
courtroom should be closed whenever any of the following broad categories of information are
discussed: (1) its alleged trade secrets, (2) any non-public information pertaining to its business
transactions or partnerships; (3) all of its internal financial data, projections and business plans,

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and (4) any employment information, including all information relating to executive

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compensation and bonus payments.

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This Court has previously expressed appropriate skepticism at the need for secrecy

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asserted by the parties (and third parties) to this action. For example, it flatly rejected the notion

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that Uber’s supplier list is a trade secret that cannot be publicly disclosed, Tr. of Mar. 29, 2017

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Hrg. at 7:7-10, 17:1-2, Doc. No. 293, available at , available at

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https://www.documentcloud.org/documents/3533784-Waymo-Uber-3-29-17.html#document/,

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and castigated counsel for requesting an in camera hearing to discuss Uber’s motion to compel

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arbitration:

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MR. GONZÁLEZ:

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Well, your Honor, at least [Mr. Levandowsky’s deposition
testimony is] not in the public where it’s going to be on the front
page of The New York Times the next day. . . .
...

THE COURT:

[Y]ou shouldn’t have asked for in camera on this. This [entire
hearing] could have all been done in the open. . . .

MR. GONZÁLEZ: Your Honor, the reason why we wanted it in chambers is because of
the adverse impact that we think it would have on our client [Uber
Technologies]. If there's a headline tomorrow saying this guy [Mr.
Levandowski] is asserting the Fifth Amendment –

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1448986572; Kevin Roose, Cars of Future? Lawmakers (Gasp!) Agree, N.Y. TIMES, July 22,
2017, at B1; Jim Dalrymple II, Self-Driving Cars Will Transform Cities, But Could They Make
Things Worse?, BUZZFEED, (May 30, 2014) https://www.buzzfeed.com/jimdalrympleii/selfdriving-cars-will-transform-cities-but-they-could-make?utm_term=.fx8nGmDpW#.cvAQK4oPN
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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THE COURT:

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Listen, please don’t do this to me again. There’s going to be a lot of
adverse headlines in this case on both sides. And I can’t stop that. . .
. [T]he public has a right -- in fact, this whole transcript, I'm going
to make it public.

Id. at 15: 11-24 and 18: 1-14.
Last Wednesday, this Court invited the news organizations covering this case and others

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to respond to Waymo’s motion to close trial proceedings, which is scheduled to be heard on

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October 3, 2017. This motion to intervene and oppose accepts that invitation.

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ARGUMENT
I.

THE MEDIA COALITION SHOULD BE PERMITTED TO INTERVENE FOR
THE LIMITED PURPOSE OF VINDICATING THE RIGHT OF PUBLIC
ACCESS TO THE TRIAL IN THIS CLOSELY-WATCHED CASE
It is well-established that members of the news media have standing to enforce the right

of public access to judicial proceedings, and must therefore be afforded an opportunity to be
heard before a proceeding is closed. E.g., Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 609
n.25 (1982) (press and public “must be given an opportunity to be heard” on questions relating to

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access to a criminal proceeding) (citation and internal quotation marks omitted); Phoenix

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Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 949 (9th Cir. 1998) (press must be afforded an

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opportunity to object to closure of court proceedings); Oregonian Publ'g Co. v. U.S. Dist. Ct.,

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920 F.2d 1462, 1465 (9th Cir. 1990) (same). Given this precedent, and the significant public

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access right at stake, this Court invited news media representatives to submit in writing, at their

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earliest opportunity, any objection to Waymo’s request to conduct in secret significant portions

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of the trial.

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Intervention is the appropriate procedural vehicle for journalists to vindicate public
access rights. See, e.g., Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1176 (9th Cir.
2006); San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1101 (9th Cir. 1999)
(vacating trial court’s order denying newspaper’s motion to intervene); accord EEOC v. Nat’l
Children’s Ctr., Inc., 146 F.3d 1042, 1045-46 (D.C. Cir. 1998) (allowing intervention “for the
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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limited purpose of seeking access to materials that have been shielded from public view either by
seal or by a protective order”); In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 5
(D.D.C. 2009) (allowing press applicants to intervene to oppose sealing motion). Press
participation in motions to close courtrooms is vital because the press serves as “surrogates for
the public” when it seeks to protect the public’s right to follow the workings of the judicial
system. As the court observed in California ex rel. Lockyer v. Safeway, Inc., 355 F. Supp. 2d

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1111, 1124 (C.D. Cal. 2005) in unsealing documents at the request of an intervening newspaper,

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“the press has historically served as a monitor of both the State and the courts, and it plays a vital

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role in informing the citizenry on the actions of its government institutions.” Indeed, in cases

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where, as here, the First Amendment right of access is at issue, intervention is constitutionally

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required. See Globe Newspaper Co., 457 U.S. at 609 n.25; Phoenix Newspapers, Inc., 156 F.3d

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at 949.

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Because the Media Coalition’s right to attend and report on the civil trial in this case

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would be materially impaired by a ruling granting Waymo’s Motion, and because their interests

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and the interests of the general public are not necessarily aligned with those of the parties, the

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Media Coalition’s motion for leave to intervene for the limited purpose of vindicating the right
of public access to this case should be granted. See FED. R. CIV. P. 24(a) and (b).

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II.

THE FIRST AMENDMENT EXTENDS A QUALIFIED RIGHT OF PUBLIC
ACCESS TO THE TRIAL OF THIS LAWSUIT AND THE RELATED RECORDS

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Waymo’s motion to close large swaths of the trial rests on a fundamentally incorrect

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statement of the law. Waymo wrongly contends that there is no constitutional right of access to

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civil trial proceedings. See Mot. at 5 (“While there is a common law right of public access to

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judicial proceedings, that right is not a constitutional right”). 4 This is patently incorrect.

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4

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In advancing this erroneous proposition, Waymo mischaracterizes Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978) and relies on inapposite cases dealing with access to
court records, not to trial proceedings. Nixon was decided two years before the Supreme Court
articulated the constitutional right in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 57273 (1980), and addressed only the common law “right to inspect and copy judicial
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FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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In Courthouse News Service v. Planet, 750 F.3d 776 (9th Cir. 2014), the Ninth Circuit
squarely held that the First Amendment right of access “extends to civil proceedings and
associated records and documents.” Id. at 786-87. As the Court of Appeals observed, allowing
the press to enforce the constitutional access right in civil proceedings “is essential not only to its
own free expression, but also to the public’s.” Id. at 786. As it explained, “‘[w]ith respect to
judicial proceedings in particular’” the press “‘bring[s] to bear the beneficial effects of public

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scrutiny upon the administration of justice.’” Id. (quoting Cox Broad. Corp. v. Cohn, 420 U.S.

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469, 491–92 (1975)). See also Mendez v. City of Gardena, 222 F. Supp. 3d 782, 789-92 (C.D.

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Cal. 2015) (citing Courthouse News Service and granting media intervenor’s motion to unseal

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records in civil lawsuit).

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This holding was neither novel or unexpected. Since the Supreme Court first recognized

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a constitutional access right to attend a criminal trial in Richmond Newspapers v. Virginia nearly

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forty years ago, every Circuit to have addressed the issue has similarly concluded that the First

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Amendment access right applies to civil trials as well. 5 In Richmond Newspapers Chief Justice

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Burger went out of his way to endorse this very conclusion:

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[W]hether the public has a right to attend trials of civil cases is a
question not raised by this case, but we note that historically both
civil and criminal trials have been presumptively open.
448 U.S. at 580 n.17; see also, id. at 599 (constitutional right extends to trials, “civil as well as
criminal”) (Stewart, J., concurring).

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records,”(emphasis added), finding that right to be “not absolute.” 435 U.S. at 598. Waymo’s
reliance on Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 n.6 (9th Cir. 1995) is similarly
misplaced, as that case explicitly declined to reach the issue of whether there was a First
Amendment right of access.
5
See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988);
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984); Westmoreland v.
Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984); In re Cont’l Ill. Sec. Litig., 732 F.2d
1302, 1308 (7th Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 117879 (6th Cir. 1983).
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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Accordingly, to prevail on its motion to close any portion of this trial, Waymo must
satisfy the demanding standards of the constitutional access right, something its motion does not
even purport to do.
III.

THE FIRST AMENDMENT IMPOSES A HEAVY BURDEN ON ANY PARTY
SEEKING TO DENY PUBLIC ACCESS TO A CIVIL TRIAL
That the public’s right of access to this trial is protected by the First Amendment—and

not solely the common law—is not merely a matter of semantics. The First Amendment
provides “a stronger right of access than the common law.” United States v. Bus. of Custer
Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d
1188, 1197 n.7 (9th Cir. 2011) (emphasis added); see also Baltimore Sun Co. v. Goetz, 886 F.2d
60, 64 (4th Cir. 1989) (distinction between rights afforded by the First Amendment and the
common law “is significant”); Rushford, 846 F.2d at 253 (same).
While the First Amendment right of access is a qualified right, and not an absolute one,

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any party seeking to abridge the access right must meet a heavy constitutional burden. To obtain

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closure of any portion of the trial, Waymo must establish, and the Court must expressly find, that

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“‘(1) closure serves a compelling interest; (2) there is a substantial probability that, in the

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absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to

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closure that would adequately protect the compelling interest.’” Phoenix Newspapers, Inc., 156

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F.3d at 949 (citation omitted).

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Before granting a motion to limit access, the Court must “make specific factual findings”
that “satisfy all three substantive requirements for closure.” Id. at 950; see also Oregonian
Publ'g Co., 920 F.2d at 1466 (“[a]n order of closure should include a discussion of the interests
at stake, the applicable constitutional principles and the reasons for rejecting alternatives, if any,
to closure.”) (emphasis added) (citations omitted). Where such findings are made, moreover,
any closure ordered by the court must be narrowly tailored in time and scope, and must be
effective in protecting the compelling interest at stake. See Press-Enterprise Co. v. Super. Ct.,
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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478 U.S.1, 14 (1986)(requiring “on the record findings . . . demonstrating that ‘closure is . . .
narrowly tailored to serve [the compelling] interest,’” and that “that closure would prevent” the
harm asserted) (emphasis added) (citation omitted); Associated Press v. U.S. Dist. Ct., 705 F.2d
1143, 1146 (9th Cir. 1983) (“there must be ‘a substantial probability that closure will be effective
in protecting against the perceived harm’”) (emphasis added) (citation omitted).
Although these standards apply to all civil lawsuits, they should be applied with

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particular care to Waymo’s motion. As noted above, this intensely fought lawsuit is the focus of

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legitimate and widespread public interest and concern, both throughout the nation and, indeed,

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internationally. See supra nn. 2, 3. The “greater the public’s interest in the case the less

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acceptable are restraints on the public’s access to the proceedings.” United States v. General

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Motors Corp., 99 F.R.D. 610, 612 (D.D.C. 1983). As expressed in ABC, Inc. v. Stewart, 360

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F.3d 90, 102 (2d Cir. 2004), the fact that a suit “has been the subject of intense media coverage”

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is not itself sufficient to justify closure—“[t]o hold otherwise would render the First Amendment

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right of access meaningless; the very demand for openness would paradoxically defeat its

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availability.”

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IV.

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WAYMO’S OVERBROAD REQUEST FOR SECRET PROCEEDINGS FAILS TO
SATISFY THE STRICT CONSTITUTIONAL STANDARDS

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In support of its Motion, Waymo has submitted two sworn Declarations from its

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corporate executives. Waymo’s showing does not come close to satisfying its burden of proof

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under the First Amendment.

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A.

Waymo Has Failed to Demonstrate A Substantial Probability Of Harm To A
Compelling Interest

Waymo fails to satisfy the first two prongs of the tri-partite test for closure, which

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demand a substantial probability of harm to a compelling interest, and does not even attempt to

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address the third prong, which requires a showing that no “less restrictive means” are available to

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its proposed closure.

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FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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1.

Invoking the talismanic term “trade secrets” does not automatically
justify closure.

Waymo initially asserts that the courtroom should be closed whenever information it
claims to be a trade secret is discussed. See Mot. at 11. Because the heart of Waymo’s case is
that defendants misappropriated trade secrets, accepting such a broad and undefined claim could

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result in the closure of a large portion of the trial, and this concomitantly raises Waymo’s burden

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to justify a limitation of the access right. See, e.g., Huminski v. Corsones, 396 F.3d 53, 86 (2d

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Cir. 2005) (“The quantum of prejudice that the movant must show increases the more extensive

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the closure sought would be.”) (citations omitted); Joy v. North, 692 F.2d 880, 894 (2d Cir.

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1982) (rejecting a motion to seal a report containing alleged trade secrets, and observing that

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because the report was “the basis for the adjudication, only the most compelling reasons can

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justify the total foreclosure of public and professional scrutiny”); Green Mountain Chrysler

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Plymouth Dodge Jeep v. Crombie, 2007 WL 922255, at *7 (D. Vt. Mar 23, 2007) (in deciding

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motion to close courtroom, courts should consider “the extent to which the Plaintiffs intend to
prove their case by relying on [information] they seek to withhold from public scrutiny”).
While the need to disclose in court the substance of an actual trade secret can, in
appropriate circumstances, justify a limited closure, the proponent of such measures must
establish both that the information at issue is in fact a true trade secret and that the disclosure of
the trade secret in the judicial proceeding is necessary. The former requires that the information

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truly be secret 6 and that its disclosure provides a competitive advantage; the latter requires a
justification as to why the matter cannot fairly be tried without the disclosure. 7
These evidentiary showings must be made in specific terms. See Hill Holiday Connors
Cosmopulos, Inc. v. Greenfield, 2010 WL 890067, *4 (Mar. 8, 2010) (denying motion to seal
where movant claimed “documents contain[ed] trade secrets, but [] never explain[ed] which
specific documents contain what type of trade secrets”). And once the showings are made, the

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proponent of closure must still satisfy the rigorous standard for closing a courtroom to the

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public—the existence of trade secret evidence does not per se justify a denial of public access.

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See, e.g., Crombie, 2007 WL 922255, at *5 (holding “there is no absolute right to protect trade

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secrets from disclosure”); In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir.1983)

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(rejecting blanket rule that would require closure of the courtroom in every case involving trade

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secrets).

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Rather, the proponent of closure must demonstrate that the harm that will be suffered

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from disclosure outweighs the public’s significant interest and constitutional right to observe the

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trial proceedings and that less restrictive alternatives are not available. See, e.g., Main & Assocs.,

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Inc. v. Blue Cross and Blue Shield of Alabama, 2010 WL 2025375, at *2 (M.D. Ala. May 20,
2010) (denying motion to seal court filings alleged to contain trade secrets where movant failed

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It is axiomatic that information that has previously been publicly disclosed does not
constitute a “trade secret.” See DVD Copy Control Ass’n Inc. v. Bunner, 116 Cal. App. 4th 241,
255 (Cal. App. 2004) (information “in the public domain cannot be removed . . . under the guise
of trade secret protection.”) (citation omitted); Religious Tech. Ctr. v. F.A.C.T.NET, Inc., 901
F. Supp. 1519, 1526 (D. Colo. 1995) (holding that where claimed trade secrets have been
disseminated over the internet, they do not qualify as “trade secrets” any longer). Nor does the
First Amendment allow for closure or sealing of information that has previously been disclosed.
See Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) (“The genie is out of the
bottle . . . . We have not the means to put the genie back.”).
7
See In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., 2013 WL 2156599, at
*4 (S.D. W. Va. May 17, 2013) (denying motion to seal where movant “[did] not elaborate and
has not provided sufficient justification as to why the identity of its supplier and ‘arrangements’
it made for obtaining the raw polypropylene resin are trade secrets”); Barr Labs., Inc. v. KOS
Pharms., Inc., 362 F.Supp.2d 421, 424 (S.D.N.Y. 2005) (denying motion to close courtroom
where it was not apparent that trade secrets would be disclosed).
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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to demonstrate sufficient good cause for overcoming the First Amendment right of access); US
Investigations Services, LLC v. Callihan, 2011 WL 1157256, at *1 (W.D. Pa. Mar. 29, 2011)
(closure of courtroom during legal proceedings not justified where less restrictive means were
available); cf. U.S. v. Rosen, 487 F. Supp. 2d 703, 720 (E.D. Va. 2007) (holding that need to
present properly classified information, implicating national security, does not absolve court of
ensuring the First Amendment standard for closure is satisfied).
2.

Waymo’s other conclusory and speculative claims of harms are
equally insufficient, as a matter of law.

Waymo describes in conclusory terms other alleged harms it may “potentially” suffer

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from the disclosure at trial of non-public financial information, employee compensation

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information or the terms of various deals, whether consummated or merely contemplated. These

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arguments, too, fall far short of demonstrating the substantial probability of harm to a compelling

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interest that the First Amendment requires.

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For example, the Declaration of Gerard Dwyer ("Dwyer Decl."), Sept. 26, 2017, Doc. No.

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1822-2, states that disclosure of “bonus payments and other compensation information” has “the

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potential to negatively impact employee morale” and could “potentially cause Waymo financial

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harm” by undercutting “Waymo’s bargaining power in compensation negotiations with other
employees,” Dwyer Decl. at 2-3 ¶¶ 11, 12 (emphasis added). Waymo presents similarly
nebulous and speculative claims of harm that it says could conceivably result from the public
disclosure of its negotiations and consummated business transactions with third parties. See
Declaration of Anil Patel ("Patel Decl.") at 1 ¶¶ 5, 6, Sept. 26, 2017, Doc. No. 1822-1 (asserting
the potential use of proprietary information by others in the industry to Google’s detriment).
This is entirely insufficient.

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As a threshold matter, the potential of a negative impact on “employee morale,” on

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Waymo’s bargaining position with employees, its reputation or “standing” in the high-tech

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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community, 8 and other rationales for secrecy offered up by Waymo are not sufficiently weighty
governmental interests to justify a limitation on the public’s constitutional right to attend the
trial. As the Seventh Circuit explained in Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 567
(7th Cir. 2000), “Many a litigant would prefer that the subject of the case—how much it agreed
to pay for the construction of a pipeline, how many tons of coal its plant uses per day, and so
on—be kept from the curious (including its business rivals and customers), but the tradition that
litigation is open to the public is of very long standing.”

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Or as this Court previously instructed Waymo’s counsel, “[t]he public’s right to know

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what goes on in the federal courts is more important than the newspapers beating up on you[r

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client] in the press.” Tr. of Mar. 29, 2017 at 38:1-3. See also Oliner v. Kontrabecki, 745 F.3d

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1024, 1026 (9th Cir. 2014) (holding that avoiding embarrassment preventing “an undue burden

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on his professional endeavors” are not compelling); Publicker Indus., Inc., 733 F.2d at 1074

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(“The presumption of openness plus the policy interest in protecting unsuspecting people from

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investing in Publicker in light of its bad business practices are not overcome by the proprietary

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interest of present stockholders not losing value or the interest of upper-level management in

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escaping embarrassment.”).
Not only are the claimed harms insufficiently weighty, they are also—by Waymo's own
admission—only potential harms. In deciding whether the proponent of courtroom closure has
met its First Amendment burden, a court cannot rely upon conclusory assertions, speculation, or
conjectural predictions of potential harm. See, e.g., Press-Enterprise Co., 478 U.S. at 15
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Reputational concerns, of course, provide no proper justification for closure under any
standard. See, e.g., Brown & Williamson Tobacco Corp., 710 F.2d at 1177-79 (“Simply
showing that the information would harm the company’s reputation is not sufficient to overcome
the strong common law presumption in favor of public access to court proceedings and
records”); Id. at 1180 (“Common sense tells us that the greater the motivation a corporation has
to shield its operations, the greater the public’s need to know.”); Kamakana, 447 F.3d at 1179
(“The mere fact that the production of records may lead to a litigant’s embarrassment,
incrimination, or exposure to further litigation will not, without more, compel the court to seal its
records”).
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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(holding that “[t]he First Amendment right of access cannot be overcome by the conclusory
assertion that publicity might deprive the defendant of [his fair trial] rights”); Oregonian Publ’g
Co., 920 F.2d at 1466 (“[t]he court must not base its decision on conclusory assertions alone”);
United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982) (court may not deny access “on
the basis of hypothesis or conjecture”); cf. Kamakana, 447 F.3d at 1182 (“A review of the record
points up the inadequacy of the City’s declarations, which largely make conclusory statements

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about the content of the documents—that they are confidential and that, in general, their

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production would, amongst other things, hinder CIU’s future operations with other agencies,

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endanger informants’ lives, and cast HPD officers in a false light. These conclusory offerings do

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not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public access to the

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documents.”).

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B.

Waymo Has Also Failed To Demonstrate That No “Less
Restrictive Means” Are Available To Protect Any Truly
Compelling Interest

Even assuming that Waymo had met is burden of demonstrating a substantial probability

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of harm to a compelling interest (which, to date, it has not), it has failed to meet its further

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burden of demonstrating that any such interest cannot be protected by means less restrictive than

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the drastic measure of closing the courtroom. Richmond Newspapers, Inc., 448 U.S. at 580-81

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(holding that order closing a courtroom violated the First Amendment where “no inquiry was

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made as to whether alternative solutions would have met the need to ensure fairness”); Press-

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Enterprise Co., 478 U.S. at 14 (holding that trial court had committed constitutional error

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because it “failed to consider whether alternatives short of complete closure would have

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protected the interests of the accused”); Phoenix Newspapers, Inc., 156 F.3d at 949 (proponent of

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sealing must demonstrate that “there are no alternatives to closure that would adequately protect
the compelling interest”).

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FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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Accordingly, courts must treat closure as a last resort – one they can employ only after
engaging in a thorough analysis of reasonable alternatives and concluding that none of those
alternatives would be sufficient to protect the compelling interest at stake. See, e.g., Applications
of Nat'l Broad. Co., Inc., 828 F.2d 340, 346 (6th Cir. 1987) (vacating order sealing pleadings and
exhibits, and remanding for more adequate findings and consideration of less restrictive
alternatives); In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984) (trial court erred in

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sealing courtroom where it failed to consider less restrictive alternatives); Publicker Indus., Inc.,

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733 F.2d at 1074 (district court abused discretion where it “failed to consider less restrictive

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means to keep this information from the public”).
This holds true even where a party argues that closure is required to protect its trade

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secrets. See, e.g., Barr Labs., Inc., 362 F. Supp. 2d at 424 (denying motion to close courtroom

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where “issues presented in this hearing may be argued adequately without disclosure of trade

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secrets”); US Investigations Servs., LLC, 2011 WL 1157256, at *1 (closure of courtroom not

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constitutionally permissible where “it may not be necessary to discuss the detail of each

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document” alleged to contain trade secrets); see also U.S. v. Zhang, 590 F. App'x 663, 667 (9th

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Cir. 2014) (closure of courtroom to protect trade secrets permissible only where “court had
previously adopted alternative measures to protect the trade secrets, including turning the
courtroom televisions away from the courtroom audience”).
Waymo, for example, does not explain why the examining attorneys cannot structure
their questions in a way that would avoid the disclosure of confidential business information or
financial data. Nor does it explain why it would be infeasible to display documents containing

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true trade secrets to the jury while concealing them from the courtroom audience, or why the

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parties could not adopt a stipulated nomenclature to refer to certain claimed trade secrets by

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number or other truncated name, without disclosing the actual alleged trade secret. These are

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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offered merely as illustrative examples of the ways in which the parties can protect their asserted
interests without trammeling the public’s First Amendment right of access.

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An example of the ability of sophisticated and accomplished trial counsel, such as those
handling this case, to litigate matters that touch on trade secrets claims without depriving the
public of their constitutional right to attend judicial proceedings, comes from this very Court.
One of the most expensive and high-profile tech industry cases litigated to date, Apple v.

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Samsung, was tried in this courthouse with no portion of the trial closed to the public. See Apple,

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Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2012 WL 3283478, at *11 (N.D. Cal. Aug.

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9, 2012), rev'd and remanded on other grounds, 727 F.3d 1214 (Fed. Cir. 2013).

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Waymo’s motion, in short, fails to meet its burden with respect to each prong of the

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constitutional test—it does not articulate sufficiently compelling interests, does not show a

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substantial probability of harm to the identified interests from open proceedings, and does not

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establish that no alternatives to closure can adequately avoid the harm. 9

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V.

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BECAUSE ANY CLOSURE ORDER THE COURT MIGHT ENTER MUST BE
NARROWLY TAILORED, THE COURT SHOULD ORDER THE PROMPT
RELEASE OF A REDACTED TRANSCRIPT OF ANY CLOSED PORTION OF
THE TRIAL

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To the extent that Waymo could supplement the record to satisfy its heavy burden, any

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order to limit access that results must necessarily be limited in scope and time. This means that

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the courtroom should be closed for only those specific portions of testimony that satisfy the high

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constitutional standard, and that a redacted transcript should promptly be made available,

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withholding only the properly protected testimony. United States v. Aref, 533 F.3d 72, 82 (2d

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Cir. 2008) (“it is the responsibility of the district court to ensure that sealing documents to which

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the public has a First Amendment right is no broader than necessary”); cf. Kasza v. Whitman,

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Even if binding precedent did not require Waymo to overcome the public's First
Amendment right of access to these proceedings, the motion should still be denied because
Waymo has also failed to satisfy the more lenient standard under the common law right of
access.
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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325 F.3d 1178, 1181 (9th Cir. 2003) (where release of court records poses risk to national
security, “[p]ublic release of redacted material is an appropriate response”).
The Supreme Court has held that
When limited closure [of a trial] is ordered, the constitutional values
sought to be protected by holding open proceedings may be satisfied later
by making a transcript of the closed proceedings available within a
reasonable time, if the judge determines that disclosure can be
accomplished while safeguarding [the compelling state] interests [at
stake].

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Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 512 (1984) (emphasis added). 10 The First
Amendment right of public access “encompasses equally the live proceedings and the transcripts
which document those proceedings.” Antar, 38 F.3d at 1359 (emphasis added); see also Press
Enterprise Co., 464 U.S. at 513 (holding that trial court’s “total suppression of the transcript”
violated the First Amendment).
Moreover, the redacted transcript of any closed portion of the trial must be prepared and

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made publicly available promptly, so the public (and its surrogates, the press) are not deprived of

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their right to observe contemporaneously the judicial proceedings herein. See, e.g., Nebraska

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Press Ass'n v. Stuart, 427 U.S. 539, 560-61 (1976) (recognizing that “[d]elays imposed by

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governmental authority” are inconsistent with the press’s “traditional function of bringing news

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Release of a redacted transcript is a necessary component of any order that closes a
judicial proceeding upon entry of the requisite findings. Release of a transcript, however, is
decidedly not a constitutionally acceptable substitute for actual public observation of judicial
proceedings. See, e.g., Stewart, 360 F.3d at 99-100 (“The provision of a transcript, however,
does not somehow allow for a more lenient balancing test [with regards to closing a judicial
proceeding].”); United States v. Antar, 38 F.3d 1348, 1360 n.13 (3d Cir. 1994) (“[W]here a right
of access exists, a court may not deny access to a live proceeding solely on the grounds that a
transcript may later be made available.”); Publicker Indus., Inc., 733 F.2d at 1072 (same); Soc'y
of Prof'l Journalists v. United States Sec'y of Labor, 616 F. Supp. 569, 578 (D. Utah 1985)
(same).

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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to the public promptly.”); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (“public and
press generally have a contemporaneous right of access to court documents and proceedings”);
United States v. Wecht, 537 F.3d 222, 229 (3d Cir. 2008) (the “value of the right of access” is
seriously undermined if not contemporaneous); Grove Fresh Distribs., Inc. v. Everfresh Juice
Co., 24 F.3d 893, 897 (7th Cir. 1994) (“[t]he newsworthiness of a particular story is often
fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have
the same result as complete suppression.”).
As the Virginia Supreme Court has explained:
[T]o work effectively, public access must be contemporaneous—the public
must be able to scrutinize the judicial process as it takes place. . . . [The
press provides] immediate descriptions of events as they unfold. . . . To
delay or postpone disclosure undermines the benefits of public scrutiny
and may have the same result as complete suppression.

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Daily Press, Inc. v. Commonwealth of Virginia, 739 S.E.2d 636, 640 (Va. 2013) (emphasis

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added). This Court itself has previously recognized this principle and ordered the prompt release

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of transcripts of proceedings that were closed to the public. See Tr. of Mar. 29, 2017 at 39:5 -

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40:18 (ordering the court reporter to publicly release entire transcript of in camera hearing within

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24 hours if no objections are received prior to that time).

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Any order the Court may enter closing any portion of the trial in this case should include

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a similar component of contemporaneous public access to a redacted transcript. The proponent

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for sealing should be required to demonstrate the need for each of the specific redactions

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proposed from the public transcript. See United States v. Pickard, 733 F.3d 1297, 1304-05 (10th

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Cir. 2013) (reversing trial court’s blanket sealing order because “the district court did not
consider whether selectively redacting just the still sensitive, and previously undisclosed,
information from the [records] . . . would adequately serve the government’s interest”); In re
N.Y. Times Co., 834 F.2d 1152, 1154 (2d Cir. 1987) (approving of requirement “to minimize
redaction in view of First Amendment considerations.”).
MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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CONCLUSION
For the reasons stated above, the Media Coalition respectfully asks this Court to grant
their motion to intervene for the limited purpose of vindicating the public’s First Amendment
right of access to this proceeding, and to deny Waymo’s motion to close portions of the trial
unless and until Waymo demonstrates, and the Court finds, that the strict standards imposed by
the First Amendment to close a civil trial have been satisfied herein.

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Respectfully submitted on October 3, 2017
By:

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BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, CO 80202-5535
Phone: (303) 376-2409

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s/Steven D. Zansberg
Steven D. Zansberg (No. 177528)
e-mail: zansbergs@ballardspahr.com

Attorneys for Proposed Intervenors Associated
Press, Bloomberg L.P., Buzzfeed, Inc.,
MediaNews Group, Inc., d/b/a Digital First Media,
Dow Jones & Co., The First Amendment Coalition,
Gizmodo Media Group, LLC, The Hearst
Corporation, The New York Times Company,
Reuters America LLC and Vox Media, Inc.

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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CERTIFICATE OF SERVICE

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I hereby certify that I have on this 2nd day of October, 2017, served via the Court’s

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electronic filing system, a true and correct copy of the above and foregoing on all counsel of
record.

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s/

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Steven D. Zansberg

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MEDIA COALITION’S MOTION TO INTERVENE
FOR LIMITED PURPOSES OF OPPOSING PLAINTIFF
WAYMO LLC’S MOTION TO CLOSE COURTROOM

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CASE NO. 3:17-cv-00939-WHA