1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WARREN GROSS, DEBORAH LEVIN, Case No.: 20cv894-LL-JLB SHELBY COOPER, and EDWARD 12 BUCHANNAN, on behalf of themselves ORDER ON MOTIONS TO FILE 13 and all others similarly situated, DOCUMENTS UNDER SEAL
14 Plaintiffs, [ECF Nos. 77, 85, 93, 98] 15 v. 16 VILORE FOODS COMPANY, INC., ARIZONA CANNING COMPANY, 17 LLC, 18 Defendants. 19
20 21 Before the Court are four motions to file documents under seal. ECF Nos. 77, 85, 22 93, 98. The motions relate to documents filed in support of and in opposition to Plaintiffs’ 23 previously filed motion to certify class and appoint class counsel [ECF No. 75], and 24 Defendant Vilore Foods Company, Inc.’s (“Vilore”) motion to exclude expert reports [ECF 25 No. 97]. For the below reasons, the motions are DENIED. 26 I. Legal Standard 27 “When discovery material is filed with the court . . . . its status changes.” Foltz v. 28 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). “[T]he public policy 1 reasons behind a presumption of access to judicial documents (judicial accountability, 2 education about the judicial process etc.) apply.” Id. (internal citation omitted). Both the 3 common law and the Constitution afford the public a qualified right of access to judicial 4 records and proceedings. Times Mirror Co. v. U.S., 873. F.2d 1210, 1211 n.1 (9th Cir. 5 1989); Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). 6 In the Ninth Circuit, there is a strong presumption in favor of access to court records. 7 See Foltz, 331 F.3d at 1135-36. A party must show compelling reasons to file materials 8 under seal as part of a non-discovery motion, even if they were produced subject to a 9 discovery protective order. See id. Once filed, “they lose their status of being raw fruits of 10 discovery” and no longer enjoy protected status without some overriding interests in favor 11 of keeping the material sealed. Id. at 1136. The party seeking to file under seal must 12 provide articulable facts showing a compelling reason to limit public access to court 13 filings. Id. A court’s decision to seal material must be based on a compelling reason, and 14 the order allowing a filing under seal must articulate the factual basis for its ruling without 15 relying on hypothesis or conjecture. Pintos, 605 F.3d at 679. “A ‘good cause’ showing will 16 not suffice to fulfill the ‘compelling reasons’ standard that a party must meet to rebut the 17 presumption of access to dispositive pleadings and attachments.” Id. (citing Kamakana, 18 447 F.3d at 1180). However, “sources of business information that might harm a litigant’s 19 competitive standing” may be properly sealed. See Nixon v. Warner Comms., Inc., 435 U.S. 20 589, 598 (1978). 21 II. Plaintiffs’ Motions to Seal [ECF Nos. 77, 93] 22 Plaintiffs move to seal Exhibits 1, 5, 6, 9, and 10 attached to the Declaration of 23 Ronald A. Marron, and portions of Plaintiffs’ memorandum of points and authorities 24 (“P&A”) that discuss Exhibits 5, 6, and 10. ECF No. 77. 25 Exhibit 1 contains designs of Kern’s products’ labels, including the nutrition 26 information. Exhibits 5 and 6 contain numerous lists of sales data, including, apparently, 27 sales to particular customers and sales by state. Exhibits 9 and 10 are a report and 28 supplemental report by Plaintiffs’ expert Charlene Podlipna, which discuss information 1 contained in Exhibits 5 and 6. 2 Plaintiffs’ only purported reason for moving to seal these documents is that 3 “Defendants have designated the documents and information as either ‘Confidential’ or 4 ‘Confidential-For Counsel Only’ under the Protective Order, [so] Plaintiffs are obligated 5 to file such documents under seal.” Id. This is not a compelling reason for sealing the 6 information. See Boy v. Admin. Comm. for Zimmer Biomet Holdings, Inc., No. 16-CV-197- 7 CAB-BLM, 2017 WL 2868415, at *1 (S.D. Cal. Feb. 21, 2017) (“That Defendants 8 designated a document as confidential in discovery is irrelevant to the determination of 9 whether compelling reasons justify sealing the document in connection with the instant 10 dispositive motion.”). 11 With respect to Exhibit 10, Plaintiffs state that “Plaintiffs’ counsel was informed that 12 this retail pricing and sales information constitutes a trade secret for [Information 13 Resources, Inc. (“IRI”)] and public disclosure of this information would place IRI – a non- 14 party to this action – at a competitive disadvantage.” Id. However, no party explains how 15 the public disclosure of this information would put IRI at a competitive disadvantage. See 16 Nixon, 435 U.S. at 598 (finding that business information that might harm a “litigant’s” 17 competitive standing may be sealed). 18 Finally, the only redacted portions of Plaintiffs’ P&A that rely on the sales figures 19 are (1) on page six, a brief and broad reference to the number of times Defendants’ products 20 were sold in the United States during the class period, and (2) on page twenty, the total 21 sum of restitution estimated by Plaintiffs’ expert and by IRI, a company that collects and 22 aggregates retail sales data provided by retailers. This information is relevant to Plaintiffs’ 23 alleged damages, and neither party has demonstrated a compelling reason as to why it 24 should be redacted from the P&A and filed under seal. 25 Based on the above, Plaintiffs’ motion to file Exhibits 1, 5, 6, 9, and 10, as well as 26 portions of their P&A, under seal [ECF No. 77] is DENIED. On or before February 18, 27 2022, Plaintiffs shall file publicly on the docket an unredacted version of their P&A in 28 support of their motion to certify class and appoint class counsel (currently at ECF No. 75) 1 that includes complete and unredacted versions of Exhibits 1, 9, and 10. If desired, 2 Defendants may, on or before February 18, 2022, file supplemental briefing as to why 3 compelling reasons exist to file Exhibits 5 and 6 under seal. If no supplemental briefing is 4 filed, Exhibits 5 and 6 will be publicly filed on the docket. 5 In a separate filing, Plaintiffs move to file Exhibit 2 attached to the Marron 6 Declaration under seal for the same reason stated above, i.e. because Defendant Arizona 7 Canning Company, Inc. (“ACC”) marked it as “Confidential.” ECF No. 93. Exhibit 2 8 contains excerpts from the transcript of Michael Weber’s deposition. ECF No. 95-3. The 9 redacted portion briefly touches upon the merger history of ACC. However, neither party 10 has demonstrated a compelling reason for filing this information under seal. 11 Therefore, for the same reasons discussed above, Plaintiffs’ motion to file Exhibit 2 12 under seal [ECF No. 93] is DENIED. However, before Exhibit 2 is publicly filed, 13 Defendants have until February 18, 2022 to file supplemental briefing as to why 14 compelling reasons exist to file the unredacted version of Exhibit 2 under seal. 15 III. Defendant Vilore’s Motions to Seal [ECF Nos. 85, 98] 16 Vilore moves to seal (1) Exhibits A, B, and J to the Declaration of Allison M. Scott; 17 (2) portions of Vilore’s P&A, filed in support of its opposition, that discuss Exhibits A, B, 18 and J; and (3) a declaration by Vilore’s expert Benjamin S. Wilner. ECF No. 85. Vilore 19 argues that Exhibits A, B, and J “plainly constitute confidential business information that 20 is basic to Vilore’s operations.” Id. at 4. 21 Exhibits A and B appear to be the exact same as Exhibit 1 discussed above, i.e. 22 designs of Kern’s products’ labels, including the nutrition information. Vilore argues that 23 “Exhibit A and B include documents concerning the Kern’s Guava and Peach nectar flavors 24 formulation and labeling.” Id. at 4.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WARREN GROSS, DEBORAH LEVIN, Case No.: 20cv894-LL-JLB SHELBY COOPER, and EDWARD 12 BUCHANNAN, on behalf of themselves ORDER ON MOTIONS TO FILE 13 and all others similarly situated, DOCUMENTS UNDER SEAL
14 Plaintiffs, [ECF Nos. 77, 85, 93, 98] 15 v. 16 VILORE FOODS COMPANY, INC., ARIZONA CANNING COMPANY, 17 LLC, 18 Defendants. 19
20 21 Before the Court are four motions to file documents under seal. ECF Nos. 77, 85, 22 93, 98. The motions relate to documents filed in support of and in opposition to Plaintiffs’ 23 previously filed motion to certify class and appoint class counsel [ECF No. 75], and 24 Defendant Vilore Foods Company, Inc.’s (“Vilore”) motion to exclude expert reports [ECF 25 No. 97]. For the below reasons, the motions are DENIED. 26 I. Legal Standard 27 “When discovery material is filed with the court . . . . its status changes.” Foltz v. 28 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). “[T]he public policy 1 reasons behind a presumption of access to judicial documents (judicial accountability, 2 education about the judicial process etc.) apply.” Id. (internal citation omitted). Both the 3 common law and the Constitution afford the public a qualified right of access to judicial 4 records and proceedings. Times Mirror Co. v. U.S., 873. F.2d 1210, 1211 n.1 (9th Cir. 5 1989); Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). 6 In the Ninth Circuit, there is a strong presumption in favor of access to court records. 7 See Foltz, 331 F.3d at 1135-36. A party must show compelling reasons to file materials 8 under seal as part of a non-discovery motion, even if they were produced subject to a 9 discovery protective order. See id. Once filed, “they lose their status of being raw fruits of 10 discovery” and no longer enjoy protected status without some overriding interests in favor 11 of keeping the material sealed. Id. at 1136. The party seeking to file under seal must 12 provide articulable facts showing a compelling reason to limit public access to court 13 filings. Id. A court’s decision to seal material must be based on a compelling reason, and 14 the order allowing a filing under seal must articulate the factual basis for its ruling without 15 relying on hypothesis or conjecture. Pintos, 605 F.3d at 679. “A ‘good cause’ showing will 16 not suffice to fulfill the ‘compelling reasons’ standard that a party must meet to rebut the 17 presumption of access to dispositive pleadings and attachments.” Id. (citing Kamakana, 18 447 F.3d at 1180). However, “sources of business information that might harm a litigant’s 19 competitive standing” may be properly sealed. See Nixon v. Warner Comms., Inc., 435 U.S. 20 589, 598 (1978). 21 II. Plaintiffs’ Motions to Seal [ECF Nos. 77, 93] 22 Plaintiffs move to seal Exhibits 1, 5, 6, 9, and 10 attached to the Declaration of 23 Ronald A. Marron, and portions of Plaintiffs’ memorandum of points and authorities 24 (“P&A”) that discuss Exhibits 5, 6, and 10. ECF No. 77. 25 Exhibit 1 contains designs of Kern’s products’ labels, including the nutrition 26 information. Exhibits 5 and 6 contain numerous lists of sales data, including, apparently, 27 sales to particular customers and sales by state. Exhibits 9 and 10 are a report and 28 supplemental report by Plaintiffs’ expert Charlene Podlipna, which discuss information 1 contained in Exhibits 5 and 6. 2 Plaintiffs’ only purported reason for moving to seal these documents is that 3 “Defendants have designated the documents and information as either ‘Confidential’ or 4 ‘Confidential-For Counsel Only’ under the Protective Order, [so] Plaintiffs are obligated 5 to file such documents under seal.” Id. This is not a compelling reason for sealing the 6 information. See Boy v. Admin. Comm. for Zimmer Biomet Holdings, Inc., No. 16-CV-197- 7 CAB-BLM, 2017 WL 2868415, at *1 (S.D. Cal. Feb. 21, 2017) (“That Defendants 8 designated a document as confidential in discovery is irrelevant to the determination of 9 whether compelling reasons justify sealing the document in connection with the instant 10 dispositive motion.”). 11 With respect to Exhibit 10, Plaintiffs state that “Plaintiffs’ counsel was informed that 12 this retail pricing and sales information constitutes a trade secret for [Information 13 Resources, Inc. (“IRI”)] and public disclosure of this information would place IRI – a non- 14 party to this action – at a competitive disadvantage.” Id. However, no party explains how 15 the public disclosure of this information would put IRI at a competitive disadvantage. See 16 Nixon, 435 U.S. at 598 (finding that business information that might harm a “litigant’s” 17 competitive standing may be sealed). 18 Finally, the only redacted portions of Plaintiffs’ P&A that rely on the sales figures 19 are (1) on page six, a brief and broad reference to the number of times Defendants’ products 20 were sold in the United States during the class period, and (2) on page twenty, the total 21 sum of restitution estimated by Plaintiffs’ expert and by IRI, a company that collects and 22 aggregates retail sales data provided by retailers. This information is relevant to Plaintiffs’ 23 alleged damages, and neither party has demonstrated a compelling reason as to why it 24 should be redacted from the P&A and filed under seal. 25 Based on the above, Plaintiffs’ motion to file Exhibits 1, 5, 6, 9, and 10, as well as 26 portions of their P&A, under seal [ECF No. 77] is DENIED. On or before February 18, 27 2022, Plaintiffs shall file publicly on the docket an unredacted version of their P&A in 28 support of their motion to certify class and appoint class counsel (currently at ECF No. 75) 1 that includes complete and unredacted versions of Exhibits 1, 9, and 10. If desired, 2 Defendants may, on or before February 18, 2022, file supplemental briefing as to why 3 compelling reasons exist to file Exhibits 5 and 6 under seal. If no supplemental briefing is 4 filed, Exhibits 5 and 6 will be publicly filed on the docket. 5 In a separate filing, Plaintiffs move to file Exhibit 2 attached to the Marron 6 Declaration under seal for the same reason stated above, i.e. because Defendant Arizona 7 Canning Company, Inc. (“ACC”) marked it as “Confidential.” ECF No. 93. Exhibit 2 8 contains excerpts from the transcript of Michael Weber’s deposition. ECF No. 95-3. The 9 redacted portion briefly touches upon the merger history of ACC. However, neither party 10 has demonstrated a compelling reason for filing this information under seal. 11 Therefore, for the same reasons discussed above, Plaintiffs’ motion to file Exhibit 2 12 under seal [ECF No. 93] is DENIED. However, before Exhibit 2 is publicly filed, 13 Defendants have until February 18, 2022 to file supplemental briefing as to why 14 compelling reasons exist to file the unredacted version of Exhibit 2 under seal. 15 III. Defendant Vilore’s Motions to Seal [ECF Nos. 85, 98] 16 Vilore moves to seal (1) Exhibits A, B, and J to the Declaration of Allison M. Scott; 17 (2) portions of Vilore’s P&A, filed in support of its opposition, that discuss Exhibits A, B, 18 and J; and (3) a declaration by Vilore’s expert Benjamin S. Wilner. ECF No. 85. Vilore 19 argues that Exhibits A, B, and J “plainly constitute confidential business information that 20 is basic to Vilore’s operations.” Id. at 4. 21 Exhibits A and B appear to be the exact same as Exhibit 1 discussed above, i.e. 22 designs of Kern’s products’ labels, including the nutrition information. Vilore argues that 23 “Exhibit A and B include documents concerning the Kern’s Guava and Peach nectar flavors 24 formulation and labeling.” Id. at 4. The particular information Vilore seeks to seal consists 25 of a brief product description, the products’ shelf life and storage conditions, the 26 measurements of the products’ labels, and the font size used on the labels. 27 28 1 Exhibit J is Wilner’s expert rebuttal report. Vilore argues that “Exhibit J includes 2 summaries of Vilore’s wholesale pricing and sales volumes produced to Plaintiffs pursuant 3 to the parties’ protective order.” Id. The particular information Vilore seeks to seal consists 4 of the number of cases Plaintiffs’ expert’s “allegedly knew” were shipped to a particular 5 region, and the number of Safeway Stores in California and Nevada, that Plaintiffs’ expert 6 used to estimate the percentage of cases sold in California. These figures are only briefly 7 referenced in Wilner’s report. See ECF No. 87-12 at 37. 8 With respect to the redacted portions of its P&A, Vilore argues the P&A “discusses 9 information that is contained in Exhibits A, B, [and] J.” The particular information in its 10 P&A that Vilore seeks to seal consists of Plaintiffs’ expert’s estimate of the retail price per 11 can, and sales in California compared to nationwide sales. 12 Finally, Vilore argues a declaration by its expert Wilner should be sealed because it 13 contains “confidential financial information produced by IRI and Vilore pursuant to the 14 Stipulated Protective Order.” ECF No. 85 at 4. The particular information Vilore seeks to 15 seal consists of references to Plaintiffs’ expert’s estimates of prices, and two tables 16 containing Kern’s products sales data in California and nationwide. 17 It is not apparent, and Vilore does not explain, how public disclosure of any of the 18 information discussed above would harm Vilore’s competitive standing. Vilore does not, 19 for example, argue that making the information available on the Court’s docket would give 20 any particular competitor an advantage, or that the information is not available through 21 other means. Additionally, the amount of redaction in Vilore’s opposition is minimal, and 22 it is not clear that the Court will need to rely on the redacted information in deciding 23 Plaintiffs’ motion to certify class and appoint class counsel. Vilore has not articulated a 24 compelling reason or made a particularized showing in support of sealing the information. 25
26 27 1 In a separate filing, Vilore also moves to seal the same expert rebuttal report by Wilner, which also is attached as Exhibit A to the Scott Declaration filed in support of Vilore’s 28 1 ||Accordingly, Vilore’s motions to seal [ECF Nos. 85, 98] are DENIED. Unless the 2 documents are withdrawn, on or before February 18, 2022, Vilore shall file publicly on 3 docket an unredacted version of their P&A in support of its opposition [ECF No. 87] 4 ||that includes complete and unredacted versions all exhibits, as well as an unredacted 5 || version of its motion to exclude expert reports [ECF No. 97] that includes a complete and 6 || unredacted version of all exhibits. 7 IT IS SO ORDERED. 8 Dated: February 12, 2022 9 NO 10 QF 11 Honorable Linda Lopez 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28