Federal Judges

Not in Texas, But in Delaware: “This is About as Frivolous a Motion to Seal as I Have Seen” Sayeth Judge

In Texas cases, Google is permitted to keep under seal info regarding no. of employees in different locations as well as roles and duties.

Robocast, Inc. v. Youtube, LLC.


District Court, D. Delaware

MAY 7, 2022 | REPUBLISHED BY LIT: DEC 22, 2022


The motion for leave to file under seal (D.I. 20) is DENIED.

This is about as frivolous a motion to seal as I have seen.

Defendants submitted a declaration of Phil Harnish in support of their motion to transfer the case to the Northern District of California.

The motion is based on the purported need to avoid disclosing “sensitive personal information about employees that, if revealed, would harm those employees,” and “commercially sensitive information that, if revealed, would aid Defendants’ competitors and harm Defendants.”

(Id. at 2).

The sensitive personal information seems to be that Mr. Harnish works at YouTube’s headquarters in San Bruno, California.

There is a second employee whose name (Ben Hulse) and office location (also San Bruno) are both redacted, as though he were a confidential source for the CIA.

I put “Phil Harnish” into the Google search engine; the first thing that comes up is his “Linked In” page, which has a picture, the job title of Senior Staff UX Engineer, and a link to his personal website and his personal email address.

I put “Ben Hulse” into the Google search engine.

It’s a more common name than I would have guessed, but when I added “YouTube,” up came his Linked In page, with his job description – Senior Staff Software Engineer – but no picture.

There are no social security numbers, bank accounts, home addresses, or anything similar in the Harnish declaration.

If the sensitive personal information is by whom they are employed, where they work, and the nature of their work, the Linked In pages seem to refute that as being sensitive.

The commercially sensitive information is which teams Mr. Harnish and Mr. Hulse lead, the size of the teams, and which products the teams work on.

I am certainly unpersuaded by an unsworn motion that revealing this information is likely to work a defined and concrete harm to Google or YouTube.

Defendants are ORDERED to identify the lawyer responsible for this motion.

The lawyer, by January 3, 2023, is ORDERED to submit an explanation of why the lawyer thought this was a justified motion.

When I see the explanation, I will consider whether subsequent proceedings are appropriate.

IT IS SO ORDERED this 16th day of December 2022.

/s/ Richard G. Andrews       

United States District Judge

Frederick L. Cottrell, III

December 19, 2022


The Honorable Richard G. Andrews
U.S. District Court District of Delaware
844 North King Street
Wilmington, DE 19801-3555

Re: Robocast, Inc. v. YouTube, LLC, C.A. No. 22-304-RGA

Dear Judge Andrews:

We are in receipt of the Court’s Order of December 16, 2022, D.I. 38 (the “Order”), denying Defendants YouTube, LLC and Google LLC’s (“Defendants”) Unopposed Motion for Leave to File Under Seal (the “Motion”), D.I. 20. The Motion sought leave to file under seal certain portions of the Declaration of Phil Harnish in Support of Defendants’ Motion to Transfer Venue (the “Declaration”).

Although the drafting of the Motion was a team effort, I am the attorney responsible for the Motion and write to address the portions of the Order requiring an explanation from counsel and to apologize to the Court.

In the course of preparing our supporting papers for the Motion to Transfer, D.I. 21, we prepared a factual declaration containing the names, locations, and responsibilities of certain of Defendants’ employees, and the number of Defendants’ employees on teams that work on certain products at issue.

Defendants and counsel sought to protect the named employee’s privacy in the context of litigation.

Because the parties had not yet negotiated a protective order, counsel for Defendants reached out to counsel for Plaintiff Robocast, Inc. (“Plaintiff”) seeking permission to file the Declaration under seal.

Counsel for Plaintiff did not oppose. Thereafter, Defendants filed the Motion articulating the bases for seeking confidential treatment for portions of the declaration.

Defendants and counsel appreciate that this approach was misplaced under the circumstances.

I believed that the proposed redactions were consistent with efforts to keep similar types of information confidential in other cases in order to protect Defendants’ employees’ privacy in the context of litigation.

For example, I previously represented Google in Virentem Ventures, LLC v. YouTube, LLC. In that matter, Google was permitted to keep under seal information regarding the number of employees in different locations as well as information regarding employees’ roles and responsibilities at Google.

C.A. No. 18-917-MN (D. Del. Oct. 29, 2018), D.I. 28 ¶¶ 3, 6, 8, 11-13, 15-16.11

See also Scramoge Technology Ltd. v. Google LLC, C.A. No. 21-616-ADA (W.D. Tex. Sept. 9, 2021), D.I. 26-5 ¶¶ 3 (numbers of employees); 8-16 (names of employees); id. at 5

In light of this context and the case law cited in Google’s Motion, I believed it was justified to submit the Motion for the Court’s consideration.

I recognize that some information Defendants sought to redact is less private than other information, such as Mr. Hulse’s employment with YouTube, as the Court points out.

However, other information remains non-public and is typically treated by Google as confidential in my experience, including the specific sizes and names of different teams within YouTube or Google.

By mentioning this, Defendants are not asking the Court to revisit its decision. Defendants seek to fully comply with the Court’s Order and any further instruction.

We understand that the full declaration will be unsealed by Chambers after the filing of this letter. We appreciate the Court’s ruling in this matter and will endeavor to treat redactions appropriately in future filings.

I apologize to the Court for having to consider this matter.


/s/ Frederick L. Cottrell, III

Frederick L. Cottrell, III (#2555)

cc:        All Counsel of Record (via email)



District Court, W.D. Texas, Judge Alan D. Albright

JUN 15, 2021 | REPUBLISHED BY LIT: DEC 22, 2022




This Order shall apply in all patent cases pending before the undersigned. As a public forum, the Court has a policy of providing to the public full access to documents filed with the Court.

Nevertheless, parties in patent cases routinely produce and rely on information that is confidential.

Therefore, in all patent cases pending before the undersigned, the Court hereby grants leave for any party to file materials containing confidential information under seal without filing a separate motion seeking leave of the Court to do so.

The filing party shall file a publicly available, redacted version of any motion or pleading filed under seal within seven days. The parties need not file redacted versions of exhibits to such documents.

Exhibits that are nonconfidential in their entirety should not be filed under seal at all.

The parties shall coordinate to make sure that the publicly available version redacts information that any party deems confidential. Redactions should be targeted to redact only that information.

The publicly available version shall be labeled “PUBLIC VERSION.” Cooperating to file the publicly available version shall not be deemed as agreeing that the redacted information is confidential.

When this Court enters an order resolving a motion in which one or more of the parties filed briefing under seal, the Court will enter its order under seal.

The movant shall follow the above protocol and file a publicly available, redacted version of the Court’s sealed order within seven days after the Court enters the sealed order.

SIGNED this 13th day of October, 2021.



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Not in Texas, But in Delaware: “This is About as Frivolous a Motion to Seal as I Have Seen” Sayeth Judge
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