1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 JAMES BYRON, 9 Plaintiff, Case No. 2:18-CV-01415-RSL 10 v. ORDER GRANTING IN PART 11 INSTITUTE FOR ENVIRONMENTAL DEFENDANT’S FIRST MOTION HEALTH, INC., TO SEAL 12 Defendant. 13 14 15 16 This matter comes before the Court on Defendant Institute for Environmental 17 Health, Inc.’s Motion to Seal Confidential Documents in Support of its Motion for 18 Summary Judgment. Dkt. #32. After plaintiff James Byron opposed defendant’s motion, 19 the parties met and conferred regarding the need to file documents under seal. Dkt. #52 at 20 2. Defendants agreed to narrow their claims of confidentiality regarding certain exhibits 21 and have since filed redacted versions of those exhibits. Dkt. #52-1. At this point, 22 defendant seeks permission to seal Exhibits K, Y, Z, AA, DD, GG, LL to the 23 Declaration of Sarah Bouchard (“Bouchard Declaration”) (Dkt. #31) in their entirety and 24 to file unredacted versions of Exhibits B, C, D, G, J, L, M, N, R, S, T, W, EE, and HH 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 1 1 under seal. Dkt. #32. Despite a number of statements indicating that defendant has filed 2 sealed, unredacted versions of these documents for the Court’s review and/or that 3 defendant would like to “maintain” the seal, the record as it currently stands does not 4 contain any of the information defendants seek to seal. Rather, one-page placeholders 5 have been submitted for Exhibits K, Y, Z, AA, DD, GG, LL and the available versions 6 of the motion for summary judgment (Dkt. #3) and Exhibits B, C, D, G, J, L, M, N, R, 7 S, T, W, EE, and HH (Dkt. #52-1) contain significant redactions. No unredacted copies 8 have been provided. 9 “There is a strong presumption of public access to the court’s files.” LCR 5(g). In 10 the Ninth Circuit, the presumption is particularly strong for documents attached to 11 dispositive motions. Kamakana v,. City and Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th 12 Cir. 2006). In order to override the common law right of the public to inspect and copy 13 court documents, “a party seeking to seal judicial records must show that compelling 14 reasons supported by specific factual findings outweigh the general history of access and 15 the public policies favoring disclosure.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 16 678 (9th Cir. 2010) (internal quotation marks and alterations omitted). Ultimately, 17 “[w]hat constitutes a compelling reason is best left to the sound discretion of the trial 18 court.” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 19 2016) (internal quotations omitted). The Ninth Circuit has found, however, that protecting 20 trade secrets is one such legitimate private interest that outweighs the public’s interest in 21 disclosure. Kamakana, 447 F.3d at 1179. A trade secret “may consist of any formula, 22 pattern, device, or compilation of information which is used in one’s business, and which 23 gives him an opportunity to obtain an advantage over competitors who do not know or 24 use it.” In re Electronic Arts, Inc., 298 Fed. Appx. 568, 569 (9th Cir. 2008), quoting 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 2 1 Restatement of Torts § 757 cmt. b. 2 The Local Civil Rules of this district provide two avenues through which a party 3 may obtain permission to file a document under the seal. The first method is to file a 4 motion or stipulated motion to seal at the same time that the document is filed under seal. 5 This method allows the Court to review the purportedly confidential material when 6 determining whether a seal is appropriate. If the Court grants the motion to seal, the 7 document will remain sealed. If the Court denies the motion, the document will be 8 unsealed unless the party relying on the sealed document withdraws it from consideration. 9 LCR 5(g)(6). The second method is to file a motion to seal before the document is filed. 10 Defendant has chosen to utilize that method here, but there is a significant downside: the 11 Court cannot review the actual document and must determine whether the moving party 12 has made a compelling showing based solely on counsel’s argument and supporting 13 declarations. 14 It is defendant’s burden to show that a seal is warranted by specifying the public 15 and private interests that favor a seal, the injury that would occur if a seal were not 16 granted, and why a less restrictive alternative - such as redaction - would not be 17 sufficient. LCR 5(g)(3)(B). Vague and conclusory assertions regarding the 18 competitiveness of defendant’s industry and/or the confidential nature of a document that 19 has not been provided for review (see Dkt. #52-2) do not satisfy this burden, especially in 20 the absence of the documents themselves. The Court has carefully considered the 21 submissions of the parties, but has been unable to determine the content of certain 22 documents. Where the parties dispute the content of a document and the remainder of the 23 record does not resolve the issue, the dispute has been decided in plaintiff’s favor. 24 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 3 1 Having reviewed the submissions of the parties, the Court finds as follows: 2 Exhibits DD and GG to the Bouchard Declaration contain the communications 3 between the parties that form the basis of plaintiff’s retaliation claim. Dkt. #52 at 4. The 4 parties agree that plaintiff’s questions about defendant’s research protocols are already in 5 the public record. Dkt. #52 at 4; Dkt. #42 at 7. Defendant cannot file under seal 6 information that is already within the public domain. Defendant argues, however, that the 7 documents also contain “internal deliberations regarding [defendant’s] testing methods 8 and the specific information regarding how [defendant] prepared this study” that are not 9 part of the public record. Dkt. #52 at 4. That information could give defendant’s 10 competitors an unfair advantage if disclosed by affording insight into defendant’s 11 proprietary testing methods. The Court finds that sealing Exhibits DD and GG in their 12 entirety is unwarranted, but that defendant may file these documents under seal if and 13 only if it provides publicly-available redacted versions that protect only the information 14 regarding defendant’s testing methods and how it prepared the study. 15 According to defendant, Exhibit K to the Bouchard Declaration contains detailed 16 information about revenue generated from certain clients. Dkt. #52 at 7. Plaintiff 17 acknowledges that Exhibit K contains information about sales to specific customers but 18 disputes that the remainder of the information is confidential or proprietary. Dkt. #42 at 5. 19 The Court has not been able to review the document and, without it, defendant has not 20 met its burden to support a seal of Exhibit K in its entirety. Defendant may file this 21 document under seal only if it provides a publicly-available redacted version protecting 22 only the identity of its clients. 23 According to defendant, Exhibit Y to the Bouchard Declaration contains “detailed 24 information regarding IEH’s confidential and proprietary testing methods” from a 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 4 1 confidential presentation to a potential client. Dkt. #52 at 3. Plaintiff asserts that the 2 information is available on defendant’s website. Dkt. #42 at 6. Defendant does not dispute 3 that the information is already in the public domain, and the Court has no way of 4 determining otherwise. Defendant’s motion to seal Exhibit Y is DENIED.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 JAMES BYRON, 9 Plaintiff, Case No. 2:18-CV-01415-RSL 10 v. ORDER GRANTING IN PART 11 INSTITUTE FOR ENVIRONMENTAL DEFENDANT’S FIRST MOTION HEALTH, INC., TO SEAL 12 Defendant. 13 14 15 16 This matter comes before the Court on Defendant Institute for Environmental 17 Health, Inc.’s Motion to Seal Confidential Documents in Support of its Motion for 18 Summary Judgment. Dkt. #32. After plaintiff James Byron opposed defendant’s motion, 19 the parties met and conferred regarding the need to file documents under seal. Dkt. #52 at 20 2. Defendants agreed to narrow their claims of confidentiality regarding certain exhibits 21 and have since filed redacted versions of those exhibits. Dkt. #52-1. At this point, 22 defendant seeks permission to seal Exhibits K, Y, Z, AA, DD, GG, LL to the 23 Declaration of Sarah Bouchard (“Bouchard Declaration”) (Dkt. #31) in their entirety and 24 to file unredacted versions of Exhibits B, C, D, G, J, L, M, N, R, S, T, W, EE, and HH 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 1 1 under seal. Dkt. #32. Despite a number of statements indicating that defendant has filed 2 sealed, unredacted versions of these documents for the Court’s review and/or that 3 defendant would like to “maintain” the seal, the record as it currently stands does not 4 contain any of the information defendants seek to seal. Rather, one-page placeholders 5 have been submitted for Exhibits K, Y, Z, AA, DD, GG, LL and the available versions 6 of the motion for summary judgment (Dkt. #3) and Exhibits B, C, D, G, J, L, M, N, R, 7 S, T, W, EE, and HH (Dkt. #52-1) contain significant redactions. No unredacted copies 8 have been provided. 9 “There is a strong presumption of public access to the court’s files.” LCR 5(g). In 10 the Ninth Circuit, the presumption is particularly strong for documents attached to 11 dispositive motions. Kamakana v,. City and Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th 12 Cir. 2006). In order to override the common law right of the public to inspect and copy 13 court documents, “a party seeking to seal judicial records must show that compelling 14 reasons supported by specific factual findings outweigh the general history of access and 15 the public policies favoring disclosure.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 16 678 (9th Cir. 2010) (internal quotation marks and alterations omitted). Ultimately, 17 “[w]hat constitutes a compelling reason is best left to the sound discretion of the trial 18 court.” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 19 2016) (internal quotations omitted). The Ninth Circuit has found, however, that protecting 20 trade secrets is one such legitimate private interest that outweighs the public’s interest in 21 disclosure. Kamakana, 447 F.3d at 1179. A trade secret “may consist of any formula, 22 pattern, device, or compilation of information which is used in one’s business, and which 23 gives him an opportunity to obtain an advantage over competitors who do not know or 24 use it.” In re Electronic Arts, Inc., 298 Fed. Appx. 568, 569 (9th Cir. 2008), quoting 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 2 1 Restatement of Torts § 757 cmt. b. 2 The Local Civil Rules of this district provide two avenues through which a party 3 may obtain permission to file a document under the seal. The first method is to file a 4 motion or stipulated motion to seal at the same time that the document is filed under seal. 5 This method allows the Court to review the purportedly confidential material when 6 determining whether a seal is appropriate. If the Court grants the motion to seal, the 7 document will remain sealed. If the Court denies the motion, the document will be 8 unsealed unless the party relying on the sealed document withdraws it from consideration. 9 LCR 5(g)(6). The second method is to file a motion to seal before the document is filed. 10 Defendant has chosen to utilize that method here, but there is a significant downside: the 11 Court cannot review the actual document and must determine whether the moving party 12 has made a compelling showing based solely on counsel’s argument and supporting 13 declarations. 14 It is defendant’s burden to show that a seal is warranted by specifying the public 15 and private interests that favor a seal, the injury that would occur if a seal were not 16 granted, and why a less restrictive alternative - such as redaction - would not be 17 sufficient. LCR 5(g)(3)(B). Vague and conclusory assertions regarding the 18 competitiveness of defendant’s industry and/or the confidential nature of a document that 19 has not been provided for review (see Dkt. #52-2) do not satisfy this burden, especially in 20 the absence of the documents themselves. The Court has carefully considered the 21 submissions of the parties, but has been unable to determine the content of certain 22 documents. Where the parties dispute the content of a document and the remainder of the 23 record does not resolve the issue, the dispute has been decided in plaintiff’s favor. 24 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 3 1 Having reviewed the submissions of the parties, the Court finds as follows: 2 Exhibits DD and GG to the Bouchard Declaration contain the communications 3 between the parties that form the basis of plaintiff’s retaliation claim. Dkt. #52 at 4. The 4 parties agree that plaintiff’s questions about defendant’s research protocols are already in 5 the public record. Dkt. #52 at 4; Dkt. #42 at 7. Defendant cannot file under seal 6 information that is already within the public domain. Defendant argues, however, that the 7 documents also contain “internal deliberations regarding [defendant’s] testing methods 8 and the specific information regarding how [defendant] prepared this study” that are not 9 part of the public record. Dkt. #52 at 4. That information could give defendant’s 10 competitors an unfair advantage if disclosed by affording insight into defendant’s 11 proprietary testing methods. The Court finds that sealing Exhibits DD and GG in their 12 entirety is unwarranted, but that defendant may file these documents under seal if and 13 only if it provides publicly-available redacted versions that protect only the information 14 regarding defendant’s testing methods and how it prepared the study. 15 According to defendant, Exhibit K to the Bouchard Declaration contains detailed 16 information about revenue generated from certain clients. Dkt. #52 at 7. Plaintiff 17 acknowledges that Exhibit K contains information about sales to specific customers but 18 disputes that the remainder of the information is confidential or proprietary. Dkt. #42 at 5. 19 The Court has not been able to review the document and, without it, defendant has not 20 met its burden to support a seal of Exhibit K in its entirety. Defendant may file this 21 document under seal only if it provides a publicly-available redacted version protecting 22 only the identity of its clients. 23 According to defendant, Exhibit Y to the Bouchard Declaration contains “detailed 24 information regarding IEH’s confidential and proprietary testing methods” from a 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 4 1 confidential presentation to a potential client. Dkt. #52 at 3. Plaintiff asserts that the 2 information is available on defendant’s website. Dkt. #42 at 6. Defendant does not dispute 3 that the information is already in the public domain, and the Court has no way of 4 determining otherwise. Defendant’s motion to seal Exhibit Y is DENIED. 5 Defendant seeks permission to file Exhibit Z to the Bouchard Declaration under 6 seal because the document “cites to” a proprietary testing method and contains 7 information related to defendant’s business and marketing strategy. Dkt. #52 at 4. 8 Defendant argues that an industry competitor could use the information to unfairly 9 compete with defendant. Id. Plaintiff asserts that the exhibit is a letter that contains no 10 confidential information. Dkt. #42 at 6. Because the Court has no way of resolving the 11 parties’ disagreement regarding the contents of the document, the dispute is resolved in 12 plaintiff’s favor, and defendant’s motion to seal Exhibit Z is DENIED. 13 According to defendant, Exhibit AA is a letter containing “a description of IEH’s 14 market research on pricing for testing services, and financial information specifically 15 prepared for a potential client.” Dkt. #52 at 3. Defendant claims that disclosure would 16 allow IEH’s competitors to undercut its client-specific prices. Id. Plaintiff asserts that the 17 letter lacks “IEH pricing data, test methods or specific business strategy,” but 18 acknowledges that it contains a market survey and a summary of microbiological tests. 19 Dkt. #42 at 6. The Court finds that defendant has an interest in protecting its market 20 research but has not met its burden to support a seal of Exhibit AA in its entirety. 21 Defendant may file this document under seal only if it provides a publicly-available 22 redacted version protecting only its market research. 23 Exhibit LL to the Bouchard Declaration is, according to defendant, an internal 24 document containing data and results of a study for a potential client, including 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 5 1 “sensitive, non-public confidential and proprietary information” regarding study designs 2 and results. Dkt. #52 at 5. Plaintiff asserts that the document’s confidentiality is not 3 obvious from its content, but does not dispute that it contains proprietary information 4 regarding defendant’s studies. Dkt. #42 at 7. Because the parties do not dispute the 5 sensitive and proprietary content of the document, defendant’s motion to seal Exhibit LL 6 is GRANTED. 7 As discussed above, defendant has filed redacted versions of Exhibits B, C, D, G, 8 J, L, M, N, R, S, T, W, EE, and HH. See Dkt. #52-1. Per the Local Rules, the Court has 9 discretion to determine whether the information will remain redacted. LCR 5(g)(2)(B). 10 According to defendant, the redacted portions of those exhibits contain information 11 regarding its clients, business and pricing strategies, and revenue from clients. Dkt. #52 at 12 7-8; see generally Dkt. #52-2. 13 Exhibit B contains excerpts of a deposition from the underlying administrative 14 proceedings. Dkt. #52-2 at 1, 6-25; Dkt. #42 at 3. Defendant acquiesced to many of 15 plaintiff’s objections regarding the scope of the confidentiality designations within this 16 exhibit, and has withdrawn the designations except as to testing methods and information 17 regarding clients. See generally Dkt. #52 at 5; #52-2 at 6-25. Plaintiff challenges the 18 redactions on pages 50-52 on the grounds that the information is already in the public 19 record and that none of the testimony on those pages reveals confidential information. 20 Dkt. #42 at 3. Defendant does not refute plaintiff’s assertions that the matters discussed 21 on pages 50-52 are already a matter of public record and/or are not confidential. Id. 22 Because defendant has not provided a compelling reason to redact those portions of 23 Exhibit B, further disclosures are required. 24 According to plaintiff, Exhibit N is a summary of plaintiff’s work performance 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 6 1 from his employment with defendant: he disputes defendant’s assertion that the document 2 contains information regarding defendant’s clients, business strategy, or revenue 3 generated from clients. Dkt. #42 at 7. Defendant has redacted large sections of the 4 document, including a section entitled “2010 Highlights.” Dkt. #52-2 at 86-87. Because 5 defendant has not satisfactorily demonstrated that a compelling reason exists to redact this 6 portion of plaintiff’s performance review, defendant’s motion to seal that section of 7 Exhibit N is DENIED. 8 Defendant has given sufficiently compelling reasons for its redactions in Exhibits 9 C, D, G, J, L, M, R, S, T, W, EE, and HH. Defendant’s may file unredacted versions of 10 those exhibits under seal. 11 CONCLUSION 12 Defendant’s motion to seal is GRANTED in part and DENIED in part. Defendant 13 may, within seven days of the date of this Order: 14 ! file Exhibit LL under seal; 15 ! file unredacted versions of its motion for summary judgment and Exhibits C, D, 16 G, J, L, M, R, S, T, W, EE, and HH under seal; 17 ! file publicly available versions of Exhibits Y and Z; 18 19 ! file Exhibit K under seal only if it also files a publicly-available redacted 20 version of the exhibit protecting only the identity of its clients; 21 ! file Exhibit AA under seal only if it also files a publicly-available redacted 22 version of the exhibit protecting only its market research; 23 ! file Exhibits DD and GG under seal only if it also files publicly-available 24 redacted versions of the exhibits protecting only its testing methods and study 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 7 1 preparation; 2 ! file Exhibit B under seal only if it files a publicly-available redacted version of 3 the exhibit that does not obscure the information on pages 50-52; 4 ! file Exhibit N under seal only if it files a publicly-available redacted version of 5 the exhibit that does not obscure the information on pages 86-87. 6 7 The underlying motion for summary judgment will be considered ripe for consideration 8 9 seven days from the date of this Order. If defendant chooses not to file unredacted 10 versions of the motion and supporting exhibits as set forth above, the redacted 11 information will be deemed withdrawn and the Court will rule on the motion based on the 12 existing partial record. 13 14 Dated this 21st day of November, 2019. 15 16 A 17 Robert S. Lasnik 18 United States District Judge 19 20 21 22 23 24 25 ORDER GRANTING IN PART DEFENDANT’S 26 FIRST MOTION TO SEAL - 8