1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J.J., C.D., C.B., and D.F., individually and Case No.: 3:24-cv-00311-GPC-MSB on behalf of all others similarly situated, 12 ORDER DENYING WITHOUT Plaintiffs, 13 PREJUDICE PLAINTIFFS’ AND v. DEFENDANT’S MOTIONS TO SEAL 14
ASHLYNN MARKETING GROUP, 15 [ECF Nos. 103, 109, 112] INC., 16 Defendant. 17
18 This case concerns Defendant’s alleged failure to warn consumers of the purportedly 19 addictive nature of kratom when marketing and labeling its kratom-based products. 20 Currently pending before the Court are both Plaintiffs’ and Defendant’s motions to file 21 documents under seal. ECF Nos. 103, 109, & 112. For the reasons set forth below, the 22 motions are DENIED without prejudice. 23 BACKGROUND 24 The factual background of this case has been outlined by this Court in previous 25 orders. See ECF No. 77. Thus, the Court will address only those facts relevant to the motions 26 now before it. 27 1 On March 7, 2025, Plaintiffs J.J., C.D., C.B., and D.F. filed their Consolidated Class 2 Action Complaint (CCAC), individually and on behalf of three putative classes, alleging 3 that Defendant failed to warn consumers of the potentially addictive nature of its products, 4 which contain dried leaves from a plant called kratom. ECF No. 50. Specifically, Plaintiffs 5 allege that Defendant misled consumers by espousing the purported health benefits of 6 kratom without disclosing kratom’s addictive properties on its product labels or in its 7 advertising. Id. at 8, 16. 8 Before Plaintiffs filed the operative complaint, on April 18, 2024, the parties filed a 9 joint motion for entry of a stipulated protective order. ECF No. 13. The joint stipulation 10 noted that this case is likely to involve confidential or sensitive information, and provided 11 that either party may designate any materials as confidential. ECF No. 13-1, at 4-5. The 12 stipulation goes on to mandate that, should either party file a document designated as 13 confidential with the Court, the party must seek permission from the Court to file the 14 material under seal. Id. at 9. 15 On April 26, 2024, United States Magistrate Judge Michael S. Berg granted the joint 16 motion for entry of stipulated protective order. ECF No. 14. 17 Plaintiffs have now moved for class certification. ECF No. 105. In support of their 18 motion, Plaintiffs have sought to file several documents designated by Defendant as 19 confidential pursuant to the protective order. Thus, Plaintiffs have moved to file documents 20 under seal. ECF No. 103. 21 In opposing Plaintiffs’ motion for class certification, ECF No. 111, Defendant has 22 also sought to file information designated as confidential pursuant to the protective order. 23 Defendant has moved to file those documents under seal. ECF No. 109. 24 Lastly, Plaintiffs have moved for sanctions. ECF No. 114. To abide by the protective 25 order, Plaintiffs have again filed an accompanying motion to file documents under seal. 26 ECF No. 112. 27 1 LEGAL STANDARD 2 “Historically, courts have recognized a ‘general right to inspect and copy public 3 records and documents, including judicial records and documents.’” Kamakana v. City & 4 Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner 5 Commc'ns, Inc., 435 U.S. 589, 597 n.7 (1978)). Thus, “[u]nless a particular court record is 6 one ‘traditionally kept secret,’ a ‘strong presumption in favor of access is the starting 7 point.’” Id. (citing Foltz v. State Farm Mutual Auto. Insurance Company, 331 F.3d 1122, 8 1135 (9th Cir. 2003)). 9 Courts in the Ninth Circuit have generally held that the “compelling reasons” 10 standard applies to motions to seal documents relating to class certification. See Adtrader, 11 Inc. v. Google LLC, No. 17-CV-07082-BLF, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 12 2020) (collecting cases). Thus, a party seeking to seal a judicial record in relation to a 13 motion for class certification must “articulate[] compelling reasons supported by specific 14 factual findings . . . that outweigh the general history of access and public policies favoring 15 disclosure.” Kamakana, 447 F. 3d at 1178-79 (internal quotation marks and citation 16 omitted). Generally, “compelling reasons sufficient to outweigh the public's interest in 17 disclosure and justify sealing court records exist when such court files might have become 18 a vehicle for improper purposes, such as the use of records to gratify private spite, promote 19 public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179. Even so, 20 “‘[a]ny order sealing documents should be narrowly tailored’ to serve those compelling 21 reasons.” Doe v. L. Offs. of Winn & Sims, No. 06-CV-00599-H-AJB, 2021 WL 9917688, 22 at *1 (S.D. Cal. June 21, 2021), as modified (June 29, 2021) (quoting Ervine v. Warden, 23 214 F. Supp. 3d 917, 919 (E.D. Cal. 2016)). 24 “Filings that are only tangentially related to the merits [of a case] may be sealed 25 upon a lesser showing of ‘good cause.’” Adtrader, Inc., 2020 WL 6391210, at *2 (citing 26 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02 (9th Cir. 2016)). More 27 1 specifically, “a ‘particularized showing’ . . . under the ‘good cause’ standard of Rule 2 26(c) will ‘suffice[] to warrant preserving the secrecy of sealed discovery material attached 3 to non-dispositive motions.’” Kamakana, 447 F.3d at 1180 (quoting Foltz, 331 F. 3d at 4 1135, 1138). “Good cause exists where the party seeking protection shows that specific 5 prejudice or harm will result if no protective order is granted.” Anderson v. Marsh, 312 6 F.R.D. 584, 594 (E.D. Cal. 2015) (citing Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 7 307 F.3d 1206, 1210-11 (9th Cir. 2002)). A party asserting good cause must offer more 8 than “broad allegations of harm that are unsubstantiated by specific examples or articulated 9 reasoning.” Id. 10 Under both the good cause and compelling reasons standards, the presumption of 11 access is not rebutted where documents are the subject of a blanket protective order, and 12 parties must still meet the relevant standard for each piece of information they seek to file 13 under seal. Kamakana, 447 F. 3d at 1179-80 (“The compelling reasons standard is invoked 14 even if the dispositive motion, or its attachments, were previously filed under seal or 15 protective order.”) (internal quotation marks omitted); Foltz, 331 F. 3d at 1133 (“a party 16 seeking the protection of the court via a blanket protective order typically does not make 17 the ‘good cause’ showing required by Rule 26(c) with respect to any particular 18 document.”). 19 DISCUSSION 20 The sealing motions before the Court address three sets of documents: (1) exhibits 21 supporting Plaintiffs’ motion for class certification; (2) Defendant’s opposition to class 22 certification and supporting exhibits; and (3) exhibits supporting Plaintiffs’ motion for 23 sanctions. The Court addresses each in turn. 24 I. Plaintiffs’ Motion to Seal – Motion for Class Certification 25 In moving to seal various documents—or portions thereof—in support of their 26 motion for class certification, Plaintiffs note that each piece of information they seek to seal 27 1 has been designated as confidential by Defendant. ECF No. 103, at 2-3. Further, Plaintiffs 2 state that they “take no position with regard to whether these documents have been properly 3 designated,” ECF No. 103, at 4, and ask to seal the documents only “to comply with their 4 obligations pursuant to the Protective Order in this matter,” ECF No. 103-1, at 2. Thus, 5 Plaintiffs do not present any reasons to seal particular information beyond noting that a 6 document (1) was designated by Defendant as confidential or (2) relies on or refers to 7 information designated by Defendant as confidential. See ECF No. 103-1, at 3 8 “Generally, a party seeking to seal judicial records bears the burden to demonstrate 9 ‘compelling reasons’ to deny the public access to public records.” Baldwin v. United States, 10 732 F. Supp. 2d 1142, 1143 (D. N. Mar. I. 2010) (quoting Kamakana, 447 F. 3d at 1178). 11 Here, while Plaintiffs are the party seeking to seal the records, Defendant is the party 12 aiming to keep the information confidential. Accordingly, the Court finds that the burden 13 is on Defendant to demonstrate compelling reasons for each document or piece of 14 information they seek to seal. 15 Defendant’s counsel has filed a declaration in support of Plaintiffs’ motion to seal, 16 wherein he asserts that “there are compelling reasons to seal the testimony and documents 17 identified in Plaintiffs’ motion.” ECF No. 108, at 2. However, the Court finds that 18 Defendant’s conclusory explanations regarding why a piece of information should be 19 sealed—for example, “the [testimony] identif[ies] Defendant’s suppliers,” ECF No. 108, 20 at 2—do not sufficiently “articulate[] compelling reasons supported by factual findings” to 21 seal the materials. Kamakana, 447 F. 3d at 1178. 22 When a party seeks to seal records to protect its own business interest, “information 23 may be sealed from the public only if it is truly confidential, not generally known, and its 24 disclosure would likely cause [the party] competitive harm.” Krommenhock v. Post Foods, 25 LLC, 334 F.R.D. 552, 587 (N.D. Cal. 2020). Defendant does not specify how publication 26 of most of the information identified in Plaintiffs’ motion to seal—which includes such 27 1 vague testimony as a witness’ opinion that Defendant could, if needed, add up units sold 2 over a given period—would cause Defendant competitive harm. In addition, the declaration 3 does not, with two exceptions, address the filings on a line-by-line basis. See Kommenhock, 4 334 F.R.D. at 587. 5 Further, to the extent Defendant argues that publication of the information will harm 6 Defendant’s business interests, Defendant’s counsel lacks the required personal knowledge 7 of such business interests for his declaration to constitute factual evidence supporting a 8 compelling reason. See Mendell v. Am. Med. Response, Inc., No. 19-CV-01227-BAS-KSC, 9 2021 WL 398486, at *2 (S.D. Cal. Feb. 3, 2021) (“[D]eclarations by counsel who lacks 10 personal knowledge of or the foundation for the alleged harm from disclosure—for 11 example, harm to the business interests of [defendant]—cannot constitute factual evidence 12 that supports a ‘compelling reason’”); Pac. Marine Propellers, Inc. v. Wartsila Def., Inc., 13 No. 17-CV-555-L-NLS, 2018 WL 6601671, at *2 (S.D. Cal. Dec. 14, 2018) (finding that 14 the declaration by counsel was not enough to meet the “compelling reasons” standard 15 because counsel lacked personal knowledge of or foundation for the assertions that the 16 information at issue might harm the defendant company's competitive standing); Signal 17 Hill Serv., Inc. v. Macquarie Bank Ltd., No. CV-11-01539-MMM-JEMX, 2013 WL 18 12244287, at *3 (C.D. Cal. May 14, 2013) (assigning “no weight” to the conclusory 19 declaration by plaintiff's counsel that disclosure of the information at issue could harm the 20 plaintiff's business where the plaintiff did not demonstrate that counsel had personal 21 knowledge about the harm asserted). 22 Lastly, the parties ask to seal most of the documents in their entirety rather than via 23 partial redactions. See ECF No. 103, at 2-3. This includes over three hundred pages of 24 expert reports produced by Plaintiffs. See ECF Nos. 104-1, 104-2, & 104-3. Defendant also 25 seeks to seal entire exhibits because, for example, they “include cell phone numbers.” ECF 26 No. 108, at 3. “Even where a document contains some information appropriate for sealing, 27 1 a party may not seal the entire document and must narrowly tailor that party's request by 2 only redacting the information appropriate for sealing.” Ameranth, Inc. v. Chownow, Inc., 3 No. 20-CV-02167-BEN-BLM, 2021 WL 3678415, at *7 (S.D. Cal. Aug. 18, 2021). Where 4 a party does seek to seal an entire document, “it must show that the possibility of prejudice 5 or harm would not be defeated by redacting only the sensitive portions of said document.” 6 Matthew v. United States, No. 3:25-CV-01664-JES-JLB, 2025 WL 1811828, at *1 (S.D. 7 Cal. July 1, 2025) (citing In re Roman Cath. Archbishop, 661 F.3d 417, 425 (9th Cir. 8 2011)). Defendant’s requests to seal are poorly explained and facially overbroad. “These 9 sorts of overbroad requests to seal will not be granted.” Krommenhock v. Post Foods, LLC, 10 334 F.R.D. 552, 587 (N.D. Cal. 2020). Accordingly, the Court rules on Plaintiffs’ first 11 motion to seal, ECF No. 103, as follows: 12 PLAINITFFS’ MOTION TO SEAL – MOTION FOR CLASS CERTIFICATION 13 Record Description 14 Record and Portion Alleged reason to seal Court’s Ruling 15 of Record to be Sealed 16 Exhibit 1 to the 57:8-10 “The redacted portions DENIED as to 57:8-10 Declaration of 58:1-2; of Exhibit 1 at 57:8-10, 58:1-2; 58:5. Defendant has 17 Neal J. 58:5 58:1-2, and 58:5 identify provided no particularized 18 Deckant in 286:22- Defendant’s suppliers. factual showing to justify Support of 287:8 The redacted portions of sealing the name of its 19 Plaintiff’s 299:5-15 Exhibit 1 at 286:22- supplier. In fact, courts have 20 Motion for 287:8 discuss proprietary rejected similar attempts to Class marketing/search engine file supplier names under 21 Certification optimization strategy seal. See, e.g., HDT Bio 22 (“NJD and methods. The Corp. v. Emcure Pharms., Declaration”) – redacted portions of Ltd., No. C22-0334JLR, 23 Excerpts from Exhibit 1 at 299:4-15 2023 WL 8433121, at *3 24 Wasem explain Defendant’s (W.D. Wash. Dec. 5, 2023); Saliman pricing structure.” ECF Fitzhenry-Russell v. Dr. 25 deposition No. 108, at 2. Pepper Snapple Grp., Inc., 26 No. 17-CV-00564 NC, 2018 27 1 ECF 104, at 6 WL 10472795, at *1 (N.D. – 34 Cal. Apr. 23, 2018). 2
3 DENIED as to 286:22- 287:8. The testimony does 4 not reveal proprietary 5 marketing information. It only states that Defendant 6 could, if needed, add up all 7 units sold over a given period. 8
9 DENIED as to 299:5-15. The testimony only stands 10 for the general proposition 11 that Defendant’s item prices are consistent on its website 12 and across states. It is 13 unclear how this information—discussed 14 using hypothetical prices— 15 would harm Defendant’s market position, and 16 Defendant does not provide 17 a factual basis for such a finding. 18
19 NJD Decl. Entire Sales information is DENIED. Exhibit 2 – Document “broken down in such 20 Excel table detail that it could While the pricing, sales, and 21 depicting top undermine Defendant’s revenue information line sales, position if made public.” contained in the document 22 profit margin, ECF No. 108, at 3. may be “detailed enough to 23 total units sold constitute the kind of sales and average data that could undermine 24 unit price for [Defendant’s] market 25 Defendant position if made public,” from 2023- Lucas v. Breg, Inc., No. 15- 26 2024, broken cv-00258-BAS-NLS, 2016 27 1 down by WL 5464549, *2 (S.D. Cal. California, Sept. 28, 2016), Defendant 2 Florida, New has offered no supporting 3 York, Texas, evidence from a declarant and with personal knowledge of 4 Washington Defendant’s business 5 interests that publication of ECF No. 104, such information would 6 at 35 – 36 cause Defendant 7 competitive harm. NJD Decl. 121:8 “The redacted portion of DENIED as to 121:8 for 8 Exhibit 4 – 203:1-11 Exhibit 4 at 121:8 reasons articulated above 9 Excerpts from 204:1-5 identifies Defendant’s regarding Defendant’s Wasem supplier. The redacted supplier. 10 Saliman portions of Exhibit 4 at 11 deposition 203:1-11 and DENIED as to 203:1-11 and 204:1-5 identifies 204:1-5. The testimony 12 ECF No. 104, internal shipping review reveals only that 13 at 40 – 62 practices and Defendant’s suppliers ship documentation handling. to Defendant domestically 14 The redacted portions rather than internationally. 15 are narrowly tailored to This is not sufficiently protect only sensitive detailed to harm 16 information.” ECF No. Defendant’s competitive 17 108, at 3. standing, and Defendant has not articulated what harm 18 might result from 19 disclosure.
20 NJD Decl. The document was DENIED as overly broad. 21 Exhibit 5 – E- Entire identified as mail produced Document “CONFIDENTIAL” and There is no indication this 22 in discovery the “email includes document should be sealed 23 designated as confidential pricing in its entirety rather than confidential by information.” ECF No. redacted. 24 Defendant 108, at 3. 25 If Defendant provides evidence from a party with 26 personal knowledge of 27 1 ECF No. 104, Defendant’s business at 63 – 64 interests that publication of 2 the pricing information 3 included in the document may harm Defendant’s 4 market position, then 5 Defendant may redact specific account numbers, 6 quantities, and dollar 7 amounts. However, it may not redact non-confidential 8 materials. See HDT Bio 9 Corp. v. Emcure Pharms., Ltd., 2023 WL 8433121, at 10 *3. 11 NJD Decl. “The information DENIED as overly broad. Exhibit 6 – Entire identifies Defendant’s 12 Copy of bills Document supplier” ECF No. 108, Defendant seeks to seal the 13 of lading at 3. document only because the document identifies 14 ECF No. 104, Defendant’s supplier. The 15 at 65 – 68 Court has already found that Defendant has not presented 16 a compelling reason for 17 sealing such information. If Defendant does provide 18 such a reason, it would not 19 justify sealing this document in its entirety. 20 NJD Decl. The documents were DENIED as to the 21 Exhibit 8 – Entire identified as document as a whole. While WhatsApp Document “CONFIDENTIAL” and Defendant vaguely alleges 22 message thread “include cell phone that the document contains 23 and images numbers for non-parties “proprietary information,” produced in to the action and Defendant provides no 24 discovery and proprietary information.” additional detail, and it is 25 designated as ECF No. 108, at 3. not at all clear to the Court confidential by what proprietary 26 Defendant information is contained 27 1 within the document nor ECF No. 104, what harm its publication 2 at 101 – 104 might cause. 3 Conversely, there are 4 compelling reasons to seal 5 the personal contact information contained in the 6 document, and such 7 information should be redacted. See Clark v. 8 InComm Fin. Servs., Inc., 9 No. ED-CV-22-1839-JGB- SHKX, 2024 WL 1699346, 10 at *3 (C.D. Cal. Apr. 9, 11 2024). Dr. Lynn Entire “The results generated DENIED as overly broad. 12 Matthews Document by the report are based 13 Expert Report on Plaintiffs’ proposed The Parties seek to seal a warning label (which 313-page expert report 14 ECF No. 104-2 does not exist on because it discusses a study 15 Defendant’s products). wherein participants were The report, therefore, is shown kratom products with 16 based on Plaintiffs’ a warning label. The request 17 litigation strategy and is overbroad, and the parties the results may be used have made no good faith 18 by competitors to harm effort to limit the 19 Defendant.” ECF No. information subject to seal. 108, at 3-4. Additionally, the Court 20 notes that the results of the 21 study are included in Plaintiffs’ unsealed motion 22 for class certification, ECF 23 No. 105, at 17. Dr. Daniel Entire “[R]efers, describes DENIED as overly broad. 24 Overbeek Document and/or relies on 25 Expert Report documents and “Courts throughout the information that Ninth Circuit have 26 ECF No. 104-3 Plaintiffs designated as recognized that the need to 27 1 ‘Confidential,’ namely protect medical privacy discussion of the named generally qualifies as a 2 Plaintiffs’ medical compelling reason 3 histories and their to seal records.” Salgado v. discovery responses, and Iqvia, Inc., No. 18-CV- 4 ‘screenshots’ of 2785-BAS-WVG, 2020 WL 5 webpages . . . 1322949, at *2 (S.D. Cal. purportedly from ‘Krave Mar. 20, 2020) (collecting 6 Botanicals Website’ cases). However, while 7 [that are] not publicly Plaintiffs may be able to available. There are identify specific medical 8 compelling reasons to information to be sealed, 9 seal the report because it this is not a basis to seal the is based upon Plaintiffs’ expert report in its entirety. 10 discovery responses 11 (which they have designated as 12 ‘Confidential’) and non- 13 publicly available screenshots.” ECF No. 14 108, at 4. 15 Dr. William Entire “[R]efers to, describes, DENIED as overly broad. Ingersol Expert Document and relies on documents 16 Report and information that 17 Defendant designated as ECF No. 104-1 ‘Confidential’ pursuant 18 to the Protective Order 19 [including] (1) pages 286-287 of the 20 Declaration of Wasem 21 Saliman . . . a portion of which is the subject of 22 Plaintiffs’ motion to 23 seal, . . . (2) excel spreadsheets . . . which 24 identify Defendant’s 25 profit margin by year, then by state and 26 year . . . as well as 27 1 number of products sold by year, and (3) . . . 2 aggregated sales 3 numbers by city . . . which is information 4 broken down in 5 sufficient detail that such information would not 6 be publicly available.” 7 ECF No. 108, at 4.
8 II. Defendant’s Motion to Seal – Opposition to Class Certification 9 Defendant, in relation to its opposition to Plaintiffs’ motion for class certification, 10 has also sought to file certain documents or excerpts thereof under seal. ECF No. 109. 11 Because the documents are in relation to a motion for class certification, the compelling 12 reasons standard continues to apply. Adtrader, Inc., 2020 WL 6391210, at *2. 13 In Defendant’s motion, it is not always clear which party has designated certain 14 information as confidential. For example, Defendant notes that the declaration of Dr. 15 Kristen Smith “relies on and contains references to information produced by Plaintiffs and 16 designated as ‘Confidential,’” and “[b]ecause Dr. Smith’s declaration refers to and quotes 17 materials from the expert reports filed by Plaintiffs, Defendant agrees that Dr. Smith’s 18 declaration should be sealed.” ECF No. 109-1, at 2. However, Plaintiffs previously noted 19 that Defendant, not Plaintiffs, designated Plaintiffs’ expert reports as confidential. ECF No. 20 103, at 3. 21 Defendant is clear that some redactions—specifically, redactions in Plaintiffs’ 22 deposition transcripts—are proposed solely due to Plaintiff’s designation of the information 23 as confidential, and that Defendant “takes no position regarding whether . . . [the] 24 information [has] been properly designated.” ECF No. 109, at 5. Despite allegedly being 25 the party hoping to maintain portions of Plaintiffs’ transcripts confidential, Plaintiffs have 26 not provided a declaration in support of Defendant’s motion. Thus, the only evidence and 27 1 reasoning in support of Defendant’s motion to seal is in a declaration provided by 2 Defendant’s counsel. ECF No. 109, at 2-3; ECF No. 109-1. 3 As with the declaration in support of Plaintiffs’ motion to seal, Defendant’s 4 declaration largely fails to articulate compelling reasons supported by factual findings to 5 warrant sealing each particular document or piece of information. Specifically, Defendant 6 fails to demonstrate concrete “prejudice or harm flowing from the disclosure of [each] 7 specific document.” Al Otro Lado, Inc. v. McAleenan, No. 17-CV-02366-BAS-KSC, 2019 8 WL 6220898, at *3 (S.D. Cal. Nov. 21, 2019) (citing Unknown Parties v. Johnson, No. CV- 9 15-00250-TUC-DCB, 2016 WL 8199309, at *4 (D. Ariz. June 27, 2016)). 10 Further, Defendant’s requests—as with Plaintiffs’—largely seek to seal documents 11 in their entirety rather than through carefully considered, line-by-line redactions. A party 12 should not seal an entire document when narrowly tailored redactions may serve the purpose 13 of ameliorating harm or prejudice. See Ameranth, Inc., 2021 WL 3678415, at *7; Matthew, 14 2025 WL 1811828. Accordingly, the Court rules on Defendant’s motion to seal, ECF No. 15 109, as follows: 16 DEFENDANT’S MOTION TO SEAL – OPPOSITION TO CLASS 17 CERTIFICATION Record 18 Description Record and Portion Alleged reason to seal Court’s Ruling 19 of Record to 20 be Sealed Declaration of Entire “[R]elies on and DENIED as overly broad. 21 Dr. Kirsten Document contains references to 22 Smith information produced by Plaintiffs and 23 ECF No. 110- designated as 24 5 ‘Confidential’ pursuant to the Protective Order. 25 Because Dr. Smith’s 26 declaration refers to and 27 1 quotes materials from the expert reports filed 2 by Plaintiffs, Defendant 3 agrees that Dr. Smith’s declaration should be 4 sealed.” ECF No. 109-1, 5 at 2. Declaration of Entire “[R]elies on and DENIED as overly broad. 6 Rob Wallace Document contains references to 7 information produced ECF No. 110- by Defendant 8 6 and designated as 9 ‘Confidential’ pursuant to the Protective Order. 10 Although Defendant’s 11 product labeling is publicly available, a 12 comprehensive survey 13 of consumers’ understanding of 14 Defendant’s labels is 15 not publicly available. The information 16 contained in Mr. 17 Wallace’s report has the potential to be misused 18 by 19 competitors.” ECF No. 109-1, at 2–3. 20 Declaration of Entire “Dr. Forister’s report DENIED as overly broad. 21 Dr. Eric Document references and relies Forister upon documents (and 22 references reports that 23 ECF No. 110- rely upon documents) 4 that constitute 24 Defendant’s marketing 25 and business practices and confidential pricing 26 information, which 27 1 information is broken down into sufficient 2 detail that such 3 information would not be publicly 4 available.” ECF No. 5 109-1, at 3. Declaration of Entire The declaration DENIED as overly broad. 6 Dr. Edward Document “contains references to 7 Boyer expert report of Dr. Andrea Matthews.” 8 ECF No. 110- ECF No. 109-1, at 3. 9 3
10 Exhibit A to 64:9-25, “Plaintiffs have DENIED as overly broad. 11 Declaration of 79:9-15, designated limited Andrew P. 80:1-25, portions of [the As an initial matter, Plaintiff 12 Young in 81:1-21, testimony] as has failed to provide any 13 Support of 82:20-25, ‘Confidential’ pursuant compelling reason for Defendant’s 83:1-88:21, to the Protective Order.” sealing the information, and 14 Opposition to 90:1-11, ECF No. 109-1, at 4. Defendant’s only asserted 15 Plaintiffs’ 114:2- reason for sealing is that Motion for 115:25, Plaintiff has designated the 16 Class 155:1-8, information as confidential. 17 Certification 160:9- Further, portions of the (“APY Decl.”) 162:8, health information discussed 18 – 201:1-25 in the transcript are also 19 Excerpts of contained in Plaintiffs’ deposition of unsealed amended class 20 Plaintiff C.B. action complaint. ECF No. 21 50. Lastly, the proposed redactions include entire 22 ECF No. 110- pages of transcript, including 23 1, at 5 – 41 conversation amongst counsel. Such content is not 24 properly subject to seal. See 25 Al Otro Lado, Inc. v. Wolf, No. 317CV02366BASKSC, 26 27 1 2020 WL 4336064, at *6 (S.D. Cal. July 27, 2020). 2
3 Exhibit D to 43:11- “Plaintiffs have DENIED as overly broad for APY Decl. – 46:18, designated limited the same reasons outlined 4 Excerpts of 69:1-25 portions of [the above. 5 Declaration testimony] as with Plaintiff ‘Confidential’ pursuant 6 D.F to the Protective Order.” 7 ECF No. 109-1, at 4. ECF No. 110- 8 1, at 76 – 94 9 Exhibit E to Entire “Since Plaintiffs’ expert DENIED as overly broad APY Decl. – Document reports were designated 10 Excerpts of as confidential in their 11 Deposition of entirety, Plaintiffs Dr. William indicated that the expert 12 Robert testimony should also 13 Ingersoll. be designated as confidential in its 14 entirety. Defendant 15 ECF No. 110- agrees that the 1, at 95 – 102 deposition testimony of 16 Dr. Ingersoll should be 17 sealed, as the testimony relies on and refers to 18 confidential pricing 19 information produced by Defendant, which is 20 broken down into 21 sufficient detail that it is not publicly available.” 22 ECF No. 109-1, at 4. 23 Exhibit F to Entire “Since Plaintiffs’ expert DENIED as overly broad APY Decl. – Document reports were designated 24 Excerpts of as confidential in their 25 Deposition of entirety, Plaintiffs Dr. Daniel indicated that the expert 26 Overbeek testimony should also 27 1 be designated as ECF No. 110- confidential in its 2 1, at 103 – 114 entirety. Defendant 3 agrees that the deposition testimony of 4 Dr. Overbeek should be 5 sealed, as the testimony relies on Plaintiffs’ 6 discovery responses and 7 discusses Plaintiffs’ medical history.” ECF 8 No. 109-1, at 4. 9 Exhibit G to Entire “Since Plaintiffs’ expert DENIED as overly broad APY Decl. – Document reports were designated 10 Excerpts of as confidential in their 11 Deposition of entirety, Plaintiffs Dr. Andrea indicated that the expert 12 Matthews testimony should also 13 be designated as ECF No. 110- confidential in its 14 1, at 115 – 124 entirety. Defendant 15 agrees that the deposition testimony of 16 Dr. Matthews should be 17 sealed.” ECF No. 109-1, at 5. 18 Defendant’s 15:13-15, “Because Defendant’s DENIED. For reasons 19 Memorandum 15:28, Opposition quotes articulated in this order, of Points and 16:20-24, deposition testimony many of the materials 20 Authorities in 16:28, that has been marked as referenced in Defendant’s 21 Support of 17:10-12, ‘Confidential,’ memorandum of points and Opposition 17:1314, Defendant redacted that authorities in support of its 22 17:24-28, quoted testimony in its opposition are not properly 23 ECF No. 110 24:16-19, Memorandum of Points subject to seal. Once the (unredacted); 24:25-28, and Authorities filed in scope of the proposed seal 24 ECF No. 11 30:21-22 support of its has been narrowed, 25 (redacted) Opposition.” ECF No. Defendant should adjust the 109-1, at 5. redactions in its 26 memorandum accordingly. 27 1 Declaration of Entire “Defendant designated DENIED as overly broad Wasem Document the declaration of 2 Saliman Wasem Saliman, 3 Defendant’s Chief ECF No. 110- Executive Officer, as 4 2 ‘Confidential’ because 5 it refers to trade secret and proprietary 6 information with respect 7 to Defendant’s labelling.” 8 III. Plaintiffs’ Motion to Seal – Motion for Sanctions 9 Lastly, Plaintiffs have sought to redact exhibits to their motion for sanctions. 10 Specifically, Plaintiff seeks to seal portions of Wasem Saliman’s deposition transcript. ECF 11 No. 113. Plaintiffs again note that the information they seek to seal has been designated as 12 confidential by Defendant and that Plaintiffs “take no position on whether Defendant’s 13 confidentiality designations are substantively justified . . . To the extent any further showing 14 is required, Defendant bears the burden of establishing good cause of compelling reasons 15 for maintaining the seal.” ECF No. 112, at 2-3. 16 Because the excerpts are in support of Plaintiffs’ motion for sanctions, the motion to 17 seal is not subject to the compelling reasons standard previously analyzed. Instead, “a 18 ‘particularized showing’ . . . under the ‘good cause’ standard of Rule 26(c) will ‘suffice[] 19 to warrant preserving the secrecy of sealed discovery material attached to non-dispositive 20 motions.’” Kamakana, 447 F.3d at 1180 (quoting Foltz, 331 F. 3d at 1135, 1138). 21 However, even under the good cause standard, parties must show more than the mere 22 fact that information is subject to a protective order. See Anderson v. Marsh, 312 F.R.D. 23 584, 594 (E.D. Cal. 2015). The protective order entered in this case was the product of a 24 stipulation. See ECF No. 14. While Magistrate Judge Berg found the stipulated order was 25 supported by good cause, he did not make “an individualized determination as to specific 26 documents.” Kamakana, 447 F.3d at 1183. Thus, this is not the “kind of protective order[] 27 1 . . . that can automatically supply the good cause required to seal the documents [it] 2 cover[s].” BT Collective v. IP Holdings, LLC, No. 11-CV-0021-LAB-WVG, 2011 WL 3 5873388, at *5 (S.D. Cal. Nov. 23, 2011); see also Foltz, 331 F. 3d at 1133 (“a party 4 seeking the protection of the court via a blanket protective order typically does not make 5 the ‘good cause’ showing required by Rule 26(c) with respect to any particular 6 document.”). Instead, “[g]ood cause exists where the party seeking protection shows that 7 specific prejudice or harm will result” if the request to seal is denied.” Anderson, 312 8 F.R.D. at 594. 9 Here, neither party—Plaintiffs, who have moved to seal, nor Defendant, who has 10 designated the information as confidential—has made a particularized showing of good 11 cause such that specific prejudice or harm will result if the request for seal is denied. 12 Reviewing the redacted information in the transcript, it is not evident to the Court how 13 publication of the redacted information would cause any party harm or prejudice. Thus, 14 Plaintiffs’ second motion to seal, ECF No. 112, is DENIED. 15 IV. Counsel Must Provide the Court with Narrower Proposed Redactions 16 All denials in this order are without prejudice. Within twenty (20) days of this order, 17 the parties shall meet and confer and, subsequently, file a singular chart identifying by 18 document name, sealed document number, and page and line/paragraph number the precise 19 information they maintain should remain under seal. The chart shall also include citations 20 to a declaration from a source with the required personal knowledge attesting as to the 21 compelling reason why sealing is necessary. See, e.g., Krommenhock, 334 F.R.D. at 587; 22 Mendell v. Am. Med. Response, Inc., No. 19-CV-01227-BAS-KSC, 2021 WL 398486, at 3 23 (S.D. Cal. Feb. 3, 2021). 24 The filings now conditionally under seal will remain conditionally under seal until 25 the Court’s final ruling on sealing after reviewing the chart and declarations. At that 26 27 1 ||yuncture, the parties will be directed to file redacted documents that redact only the 2 ||information the Court has determined may remain under seal. 3 CONCLUSION 4 For the foregoing reasons, it is HEREBY ORDERED: 5 e Plaintiffs’ motion to file documents under seal in connection with their motion for 6 class certification, ECF No. 103, is DENIED WITHOUT PREJUDICE. 7 e Defendant’s motion to file documents under seal in connection with its opposition 8 to Plaintiffs’ motion for class certification, ECF No. 109, is DENIED WITHOUT 9 PREJUDICE. 10 e Plaintiffs’ motion to file documents under seal in connection with their motion for sanctions, ECF No. 112, is DENIED WITHOUT PREJUDICE. 12 The parties are ORDERED to meet and confer and file with the Court, within twenty 13 || (20) days of this Order, a chart identifying narrower redactions and sealing requests. 14 IT IS SO ORDERED. 15 || Dated: March 13, 2026 2 16 Hon. athe Ck 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 21 28 3:24-ev-00311-GPC-MSB