Jon Feingersh Photography, Inc. v. Pearson Education, Inc.

281 F.R.D. 234, 2012 U.S. Dist. LEXIS 101993, 2012 WL 957534
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 13, 2012
DocketCivil Action No. 11-5122
StatusPublished
Cited by1 cases

This text of 281 F.R.D. 234 (Jon Feingersh Photography, Inc. v. Pearson Education, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jon Feingersh Photography, Inc. v. Pearson Education, Inc., 281 F.R.D. 234, 2012 U.S. Dist. LEXIS 101993, 2012 WL 957534 (E.D. Pa. 2012).

Opinion

EXPLANATION AND ORDER

ANITA B. BRODY, District Judge.

Plaintiff Jon Feingersh Photography, Inc. (“Feingersh”) brings suit against Pearson Education, Inc. (“Pearson”) and John Doe Printers 1-10 asserting claims for copyright infringement. Feingersh is a stock photography agency that granted Pearson, a publisher of education textbooks, limited licenses to use copies of its photographs in numerous educational publications. Feingersh alleges that Pearson engaged in copyright infringement of its photographs by using some without any permission, and by exceeding the permitted uses for others under the terms of the limited licenses. Before continuing with discovery, Pearson moves this Court to enter a protective order for categories of information that it deems confidential. Feingersh opposes the motion for entry of a protective order. For the reasons set forth below, I will grant the motion in part and deny it in part.

Federal Rule of Civil Procedure 26(c) provides that upon a showing of “good cause” a court may enter a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way____” The party seeking the protective order bears the burden of demonstrating the confidentiality of each document it seeks to protect. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir.1994). “ ‘Good cause’ is established when it is specifically demonstrated that disclosure [236]*236will cause a clearly defined and serious injury.” Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.1995). Some of the factors that courts may consider in evaluating whether “good cause” exists are:

1) whether disclosure will violate any privacy interests;
2) whether the information is being sought for a legitimate purpose or for an improper purpose;
3) whether disclosure of the information will cause a party embarrassment;
4) whether confidentiality is being sought over information important to public health and safety;
5) whether the sharing of information among litigants will promote fairness and efficiency;
6) whether a party benefitting from the order of confidentiality is a public entity or official; and
7) whether the case involves issues important to the public.

Id. These factors take into consideration “the strong public interest in open proceedings.” Id. at 484.

Pearson seeks a protective order for the following three categories of information: 1) the print quantities and dates of Pearson’s publications; 2) Pearson’s non-public financial data; and 3) Pearson’s sales and marketing projections. To support its motion, Pearson provides the declarations of William E. Hess, Senior Vice President & CFO of the Pearson School Group, and John Owen, Senior Vice President & CFO of the Higher Education Group at Pearson.

Pearson asserts that it maintains the confidentiality of its print quantities and dates of publications, and that this information should be protected because disclosure would reveal sensitive sales data and provide competitors with insight into how Pearson conducts its business. Specifically, Pearson argues that if actual print run numbers were revealed to the public, competitors would learn “Pearson’s actual publication quantities for particular disciplines and grade levels, its publication cycle, and its sales strategies,” which would give competitors access to Pearson’s sales strategies and “undermine Pearson’s ability to compete in the market.” Hess Decl. ¶ 5. As evidence that it maintains the confidentiality of print run numbers and dates, Pearson asserts that it regularly requires potential recipients of such information, including authors and printers, to sign non-disclosure agreements. Hess Decl. ¶ 9; Owen Decl. ¶ 9. Additionally, Pearson asserts that its preferred vendor agreements with photographers and stock photography agencies often contain non-disclosure provisions. Hess Decl. ¶ 9; Owen Decl. ¶ 9. Moreover, Pearson also limits employee access to this information and requires its employees to sign non-disclosure agreements. Hess Decl. ¶ 8; Owen Decl. ¶ 8.

Feingersh argues that print run quantities and dates should not be protected because prior to litigation this information was not kept confidential. On four separate occasions in 2010, Pearson disclosed print run quantities and dates to Feingersh without requiring or requesting that this information be kept confidential. See Ex. K. Similarly, in 2006, 2008, and 2009, Pearson revealed print run numbers and dates to several people, on several occasions, without any requirement that the information be kept confidential. See Exs. A-D. Additionally, Feingersh alleges that even if this information is deemed confidential, the public interest in disclosure far outweighs any private injury to Pearson. Feingersh asserts that Pearson not only infringed its copyrights, but has also engaged in a widespread practice of unlicensed use of other photographers’ images. Feingersh argues that it is in the public interest to disclose print quantities because disclosure of this information will enable other photography licensors to determine whether Pearson has infringed their copyrights.

Pearson’s disclosure of print run numbers and dates to Feingersh on four separate occasions, and to several other individuals, without requiring that this information be kept confidential, undermines Pearson’s need to protect this information now that litigation has begun. However, assuming that the information that has not already been disclosed to Pearson is confidential, the public interest in disclosure of this information outweighs Pearson’s interest in keeping [237]*237it confidential. “The sharing of information among current and potential litigants is furthered by open proceedings.” Glenmede, 56 F.3d at 485. Thus, the Third Circuit has cautioned that “[f]ederal courts should not provide a shield to potential claims by entering broad protective orders that prevent public disclosure of relevant information.” Id. Here, public disclosure of print run numbers and dates is highly relevant to other Pearson licensors because this information will likely aid them in determining if their copyrights have been infringed by Pearson. This public benefit outweighs the competitive harm that may come to Pearson with disclosure of this information. Therefore, I will deny Pearson’s motion for entry of a protective order as to print quantities and dates.

Pearson also seeks to protect the confidentiality of its non-public financial data. The nonpublic financial data that Pearson seeks to protect is its revenue and expenses for particular publications, and its profitability on a per-publication basis. See Hess Decl. ¶ 6; Owen Decl. ¶ 7.

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281 F.R.D. 234, 2012 U.S. Dist. LEXIS 101993, 2012 WL 957534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jon-feingersh-photography-inc-v-pearson-education-inc-paed-2012.