Factory Direct Wholesale, LLC v. Office Kick, Inc.

District Court, S.D. Georgia·Decided August 13, 2024·No. 4:21-cv-00368·Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION FACTORY DIRECT ) WHOLESALE, LLC, ) ) Plaintiff, ) ) v. ) ) OFFICE KICK, INC., and ) CKNAPP SALES, INC. ) ) Defendants. ) CV421-368

OFFICE KICK, INC., and ) CKNAPP SALES, INC., ) ) Counterclaim Plaintiffs, ) ) v. ) ) FACTORY DIRECT ) WHOLESALE, LLC, DEFU USA, ) LLC, and HANPING LIU, ) ) Counterclaim Defendants. )

ORDER The parties jointly move to file certain exhibits connected to their respective motions to exclude expert opinions and motions for summary judgment under seal. Doc. 175. In particular, Plaintiff Factory Direct Wholesale, along with its counterclaim co-defendants Defu USA, LLC and Hanping Liu (collectively “FDW”), and Defendants Office Kick, Inc. and CKNAPP Sales, Inc. (collectively “OKI”) seek to seal the following exhibits:

e February 20, 2024 Expert Report of Lisa Miller, doc. 145-2 (“Exhibit B” to OKI’s Motion to Strike Certain Opinions, doc. 145)

e March 11, 2024 Expert Report of Lisa Miller, doc. 145-4 (“Exhibit D” to OKI’s Motion to Strike Certain Opinions, doc. 145)

e Transcript of Deposition of Expert Mark Benden, doc. 146-3 (“Exhibit 3” of FDW’s Motion to Exclude Certain Expert Opinions, doc. 146) & doc. 149-18 (“Exhibit L” of FDW’s Motion for Summary Judgment, doc. 149)

e February 20, 2024 Expert Report of David R. Duski, doc. 146-4 (“Exhibit 4” to FDW’s Motion to Exclude Certain Expert Opinions, doc. 146) & doc. 149-40 (“Exhibit AA” to FDW’s Motion for Summary Judgment, doc. 149)

e March 25, 2025 Expert Report of David R. Duski, doc. 158-1 (“Exhibit 10” to FDW’s Opposition to OKI’s Motion to Strike Certain Opinions, doc. 158)

e Transcript of Deposition of Expert David R. Duski, doc. 146-5 (“Exhibit 5” of FDW’s Motion to Exclude Certain Expert Opinions, doc. 146)

e Transcript of Deposition of Chance Knapp, doc. 149-38 (“Exhibit Y” of FDW’s Motion for Summary Judgment, doc. 149)

e FDW’s Financial Spreadsheets, doc. 162-12 (“Exhibit L” to OKT’s Opposition to FDW’s Motion for Summary Judgment, doc. 162)

e Transcript of Deposition of Hanping Liu, doc. 162-13 (“Exhibit M”

to OKI’s Opposition to FDW’s Motion for Summary Judgment, doc. 162) See generally doc. 175-1. The Eleventh Circuit has explained that “[t]he operations of the

courts and the judicial conduct of judges are matters of utmost public

concern... and the common-law right of access to judicial proceedings,

an essential component of our system of justice, is instrumental in securing the integrity of the process.” Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007) Gnternal quotation marks omitted) (quoting Landmark Comme'ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978), and Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1804, 1311

(11th Cir. 2001)). “[T]he common-law right of access includes the right to inspect and copy public records and documents.” Chi. Tribune Co., 263

F.3d at 1311 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (referencing specifically the right to inspect and copy “judicial records and documents.”)). “Material filed in connection with any

substantive pretrial motion, unrelated to discovery, is subject to the common law right of access.” Romero, 480 F.3d at 1245. The Eleventh

Circuit reaffirmed this standard, finding that the public right of access is presumed for “judicial records,” which include “documents filed with pretrial motions that require judicial resolution of the merits of an

action.” Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1363 (11th Cir. 2021) (internal citation and quotations omitted). A party can overcome the common-law right of access by a showing

of good cause. Callahan, 17 F.4th at 1363. A good cause determination “requires balancing the asserted right of access against the other party’s interest in keeping the information confidential.” Romero, 480 F.3d at

1246 (internal quotation marks and alterations omitted). In weighing these competing interests, the Court considers “a number of important questions,” which the Eleventh Circuit discussed in Callahan: [W]hether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents. Concerns about trade secrets or other proprietary information, for example, can overcome the public interest in access to judicial documents. Indeed, a court should consider whether the records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage.

Callahan, 17 F.4th at 1363 (internal quotation marks and citations omitted). The decision of whether good cause exists rests with the sound discretion of the district court, is based on the “nature and character of the information in question,” and “should be informed by a sensitive appreciation of the circumstances that led to the production of the particular document in question.” Chi. Tribune Co., 263 F.3d at 1311 (quoting Nixon, 435 U.S. at 603) (internal quotation marks and alterations omitted), 1315. The Court will conduct a good cause analysis for each document the parties seek to seal. 1. February 20, 2024 Expert Report of Lisa Miller Both parties move to seal the February 20, 2024 Expert Report of Lisa Miller, doc. 145-2. See doc. 175-1 at 6-7, 18. Miller’s February 20, 2024 report contains sensitive financial and business information, including but not limited to sales figures, profit and loss statements, and

projected growth rates. The parties argue that exposing this information would harm their business operations and give their competitors an advantage. See id. at 6, 18. They propose redacting the report to hide

this specific information. See doc. 175-2 (Proposed Redacted Version of the February 20, 2024 Expert Report of Lisa Miller). Documents that

contain detailed information about a company’s finances or business structure are often good candidates for sealing. See, e.g., USI Insur. Servs., LLC v. Tillman, 2024 WL 812021, at *2-*3 (S.D. Ga. Feb. 27, 2024)

(sealing “confidential and sensitive business information” concerning the dollar amount of a company’s new business and their client’s identities); Holiday Hosp. Franchising, LLC v. J&W Lodging, LLC, 2019 WL

3334614, at *10-*11 (N.D. Ga. Mar. 7, 2019) (sealing documents that showed detailed revenue data and royalties, fees, and credits); see generally My 24Hour News.com, Inc. v. AT&T Corp., 2019 WL 3521951,

at *9 n.7 (N.D. Ga. Jan. 10, 2019) (sealing materials “which contain confidential and proprietary business information of a commercially- sensitive nature”). Accordingly, the parties have shown good cause to seal Lisa Miller’s February 20, 2024 Expert Report. See Callahan, 17 F.4th at 1363. The

parties’ motion to seal this exhibit is GRANTED. Doc. 175, in part. The Clerk is DIRECTED to maintain the February 20, 2024 Expert Report of Lisa Miller, doc. 145-2, UNDER SEAL for ten years. The Clerk is also

DIRECTED to docket the Proposed Redacted Version of the February 20, 2024 Expert Report of Lisa Miller, doc. 175-2, as an exhibit to OKI’s

Motion to Strike Certain Expert Opinions, doc. 145. 2.

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Related

Juan Aquas Romero v. Drummond Co. Inc.
480 F.3d 1234 (Eleventh Circuit, 2007)
Nixon v. Warner Communications, Inc.
435 U.S. 589 (Supreme Court, 1978)
Landmark Communications, Inc. v. Virginia
435 U.S. 829 (Supreme Court, 1978)
Randall Callahan v. United Network for Organ Sharing
17 F.4th 1356 (Eleventh Circuit, 2021)