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9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA
12 PATRICK MCMORROW, et al., Case No. 17-cv-2327-BAS-JLB 13 Plaintiffs, ORDER: 14 (1) GRANTING PLAINTIFFS’ MOTION TO SEAL 15 v. (2) GRANTING DEFENDANT’S MOTION TO SEAL 16 (3) GRANTING IN PART MONDELĒZ INTERNATIONAL, PLAINTIFFS’ MOTION TO 17 SEAL INC.,
18 [ECF No. 71, 84, 103] Defendant. 19
21 Presently before the Court are three motions by the parties to file documents 22 under seal. (ECF Nos. 71, 84, 103.) The Court analyzes each motion in turn. 23 I. LEGAL STANDARD 24 “[T]he courts of this country recognize a general right to inspect and copy 25 public records and documents, including judicial records and documents.” Nixon v. 26 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record 27 is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the 1 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2 2003)). “The presumption of access is ‘based on the need for federal courts, although 3 independent—indeed, particularly because they are independent—to have a measure 4 of accountability and for the public to have confidence in the administration of 5 justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 6 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 7 A party seeking to seal a judicial record bears the burden of overcoming the 8 strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to 9 meet this burden depends upon whether the documents to be sealed relate to a motion 10 that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 11 809 F.3d at 1102. When the underlying motion is more than tangentially related to 12 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 13 underlying motion does not surpass the tangential relevance threshold, the “good 14 cause” standard applies. Id. 15 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest 16 in disclosure and justify sealing court records exists when such ‘court files might 17 have become a vehicle for improper purposes,’ such as the use of records to gratify 18 private spite, promote public scandal, circulate libelous statements, or release trade 19 secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, 20 “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, 21 incrimination, or exposure to further litigation will not, without more, compel the 22 court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal 23 documents is “one best left to the sound discretion of the trial court” upon 24 consideration of “the relevant facts and circumstances of the particular case.” Nixon, 25 435 U.S. at 599. 26 II. ANALYSIS 27 The parties seek to seal portions of motions, briefs, declarations and/or 1 Daubert motions. Because these motions are “more than tangentially related to the 2 merits of [the] case,” there must be “compelling reasons” for sealing documents 3 attached thereto. Lucas v. Breg, Inc., 15-CV-00258-BAS-NLS, 2016 WL 5464549, 4 at *1 (S.D. Cal. Sept. 28, 2016). 5 A. Plaintiffs’ Motion to Seal: ECF No. 71 6 Plaintiffs seeks to file under seal portions of their motion for class certification 7 and supporting declaration and exhibits. (ECF No. 71.) 8 The redacted information was designated as confidential by Defendant. (ECF 9 No. 71 at 4.) To support the sealing request, Defendant submitted a declaration by 10 Alexander Smith. Mr. Smith attests that several of Plaintiffs’ exhibits consist of 11 marketing, advertising and consumer research that Defendant has conducted in 12 connection with its products. (“Smith Decl.,” ECF No. 72-1, ¶¶ 2, 4, 6.) This 13 research provides Defendant with a competitive advantage in the marketplace. (Id. 14 ¶¶ 3, 6.) Further, Defendant claims that two excerpts of depositions should be 15 redacted because the transcripts refer to the information in the exhibits. (Id. ¶ 7.) 16 Compelling reasons may exist if sealing is required to prevent documents from 17 being used “as sources of business information that might harm a litigant’s 18 competitive standing.” Nixon, 435 U.S. at 598. “[A] trial court has broad discretion 19 to permit sealing of court documents for, inter alia, the protection of ‘a trade secret 20 or other confidential research, development, or commercial information.’” GPNE 21 Corp. v. Apple Inc., 2015 WL 4381244, at *1 (N.D. Cal. July 16, 2015) (quoting Fed. 22 R. Civ. P. 269(c)(1)(G)); see also Bauer Bros. LLC v. Nike, Inc., No. 09cv500– 23 WQH–BGS, 2012 WL 1899838, *2 (S.D. Cal. May 24, 2012) (finding compelling 24 reasons to seal because “public disclosure of Nike's confidential business materials, 25 including marketing strategies, sales and retailer data, product development plans, 26 unused prototypes, and detailed testimony regarding the same, could result in 27 improper use by business competitors seeking to replicate Nike’s business practices 1 marketing development”). 2 The Court finds compelling reasons to seal the marketing, advertising and 3 consumer research identified in paragraphs 2, 3, 4, and 6 of the Smith Declaration. 4 Further, any portions of the depositions of Marion Saenen Delgutte and Sandra 5 Morreale that refer to these exhibits may be sealed. (See Smith Decl. ¶ 7.)1 6 Plaintiffs also provide that the Declaration of Colin B. Weir “contains unit and 7 dollar sales information Plaintiffs received from third party marketing research 8 company IRI, which IRI designated ‘HIGHLY CONFIDENTIAL AEO [Attorneys’ 9 Eyes Only],’ as well as damages figures calculated using that IRI data.” (ECF N. 71, 10 at 5.) Plaintiffs state that disclosure of this information would harm IRI “by 11 providing for free what IRI has expended resources collecting and charges its clients 12 for” and would put it at a competitive disadvantage. Id. The Court finds compelling 13 reasons to seal this information. 14 The Court GRANTS Plaintiff’s Motion. 15 B. Defendant’s Motion to Seal: ECF No. 84 16 Defendant seeks to file under seal portions of its opposition to Plaintiff’s 17 motion for class certification, its motion to exclude expert testimony, and various 18 supporting exhibits. (ECF No. 84.) 19 Defendant seeks to seal exhibits 1-10, 12-18, and 23-29 because they “consist 20 of or refer to internal marketing, product, advertising, and consumer research that 21 MDLZ has conducted, commissioned, or purchased in connection with the belVita 22 products challenged in this lawsuit, as well internal scientific research that MDLZ 23 has conducted to substantiate the “4 Hours of Nutritious Steady Energy’ claim 24
25 1 Defendant also references one exhibit, MDLZ-00035886 which is an excerpt from a report licensed from a marketing research company. Defendant seeks to seal this document solely because 26 its license with the company “require that the document be kept confidential and not be disclosed to the public.” (Smith Decl. ¶ 5.) Simply because another company seeks to keep the information 27 confidential does not mean there are compelling reasons for this Court to seal the document. 1 challenged in this lawsuit.” (ECF No. 104, at 2.) The Court finds compelling reasons 2 to seal these exhibits because Defendant’s marketing and research information gives 3 Defendant a competitive advantage.
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9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA
12 PATRICK MCMORROW, et al., Case No. 17-cv-2327-BAS-JLB 13 Plaintiffs, ORDER: 14 (1) GRANTING PLAINTIFFS’ MOTION TO SEAL 15 v. (2) GRANTING DEFENDANT’S MOTION TO SEAL 16 (3) GRANTING IN PART MONDELĒZ INTERNATIONAL, PLAINTIFFS’ MOTION TO 17 SEAL INC.,
18 [ECF No. 71, 84, 103] Defendant. 19
21 Presently before the Court are three motions by the parties to file documents 22 under seal. (ECF Nos. 71, 84, 103.) The Court analyzes each motion in turn. 23 I. LEGAL STANDARD 24 “[T]he courts of this country recognize a general right to inspect and copy 25 public records and documents, including judicial records and documents.” Nixon v. 26 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record 27 is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the 1 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2 2003)). “The presumption of access is ‘based on the need for federal courts, although 3 independent—indeed, particularly because they are independent—to have a measure 4 of accountability and for the public to have confidence in the administration of 5 justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 6 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 7 A party seeking to seal a judicial record bears the burden of overcoming the 8 strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to 9 meet this burden depends upon whether the documents to be sealed relate to a motion 10 that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 11 809 F.3d at 1102. When the underlying motion is more than tangentially related to 12 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 13 underlying motion does not surpass the tangential relevance threshold, the “good 14 cause” standard applies. Id. 15 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest 16 in disclosure and justify sealing court records exists when such ‘court files might 17 have become a vehicle for improper purposes,’ such as the use of records to gratify 18 private spite, promote public scandal, circulate libelous statements, or release trade 19 secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, 20 “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, 21 incrimination, or exposure to further litigation will not, without more, compel the 22 court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal 23 documents is “one best left to the sound discretion of the trial court” upon 24 consideration of “the relevant facts and circumstances of the particular case.” Nixon, 25 435 U.S. at 599. 26 II. ANALYSIS 27 The parties seek to seal portions of motions, briefs, declarations and/or 1 Daubert motions. Because these motions are “more than tangentially related to the 2 merits of [the] case,” there must be “compelling reasons” for sealing documents 3 attached thereto. Lucas v. Breg, Inc., 15-CV-00258-BAS-NLS, 2016 WL 5464549, 4 at *1 (S.D. Cal. Sept. 28, 2016). 5 A. Plaintiffs’ Motion to Seal: ECF No. 71 6 Plaintiffs seeks to file under seal portions of their motion for class certification 7 and supporting declaration and exhibits. (ECF No. 71.) 8 The redacted information was designated as confidential by Defendant. (ECF 9 No. 71 at 4.) To support the sealing request, Defendant submitted a declaration by 10 Alexander Smith. Mr. Smith attests that several of Plaintiffs’ exhibits consist of 11 marketing, advertising and consumer research that Defendant has conducted in 12 connection with its products. (“Smith Decl.,” ECF No. 72-1, ¶¶ 2, 4, 6.) This 13 research provides Defendant with a competitive advantage in the marketplace. (Id. 14 ¶¶ 3, 6.) Further, Defendant claims that two excerpts of depositions should be 15 redacted because the transcripts refer to the information in the exhibits. (Id. ¶ 7.) 16 Compelling reasons may exist if sealing is required to prevent documents from 17 being used “as sources of business information that might harm a litigant’s 18 competitive standing.” Nixon, 435 U.S. at 598. “[A] trial court has broad discretion 19 to permit sealing of court documents for, inter alia, the protection of ‘a trade secret 20 or other confidential research, development, or commercial information.’” GPNE 21 Corp. v. Apple Inc., 2015 WL 4381244, at *1 (N.D. Cal. July 16, 2015) (quoting Fed. 22 R. Civ. P. 269(c)(1)(G)); see also Bauer Bros. LLC v. Nike, Inc., No. 09cv500– 23 WQH–BGS, 2012 WL 1899838, *2 (S.D. Cal. May 24, 2012) (finding compelling 24 reasons to seal because “public disclosure of Nike's confidential business materials, 25 including marketing strategies, sales and retailer data, product development plans, 26 unused prototypes, and detailed testimony regarding the same, could result in 27 improper use by business competitors seeking to replicate Nike’s business practices 1 marketing development”). 2 The Court finds compelling reasons to seal the marketing, advertising and 3 consumer research identified in paragraphs 2, 3, 4, and 6 of the Smith Declaration. 4 Further, any portions of the depositions of Marion Saenen Delgutte and Sandra 5 Morreale that refer to these exhibits may be sealed. (See Smith Decl. ¶ 7.)1 6 Plaintiffs also provide that the Declaration of Colin B. Weir “contains unit and 7 dollar sales information Plaintiffs received from third party marketing research 8 company IRI, which IRI designated ‘HIGHLY CONFIDENTIAL AEO [Attorneys’ 9 Eyes Only],’ as well as damages figures calculated using that IRI data.” (ECF N. 71, 10 at 5.) Plaintiffs state that disclosure of this information would harm IRI “by 11 providing for free what IRI has expended resources collecting and charges its clients 12 for” and would put it at a competitive disadvantage. Id. The Court finds compelling 13 reasons to seal this information. 14 The Court GRANTS Plaintiff’s Motion. 15 B. Defendant’s Motion to Seal: ECF No. 84 16 Defendant seeks to file under seal portions of its opposition to Plaintiff’s 17 motion for class certification, its motion to exclude expert testimony, and various 18 supporting exhibits. (ECF No. 84.) 19 Defendant seeks to seal exhibits 1-10, 12-18, and 23-29 because they “consist 20 of or refer to internal marketing, product, advertising, and consumer research that 21 MDLZ has conducted, commissioned, or purchased in connection with the belVita 22 products challenged in this lawsuit, as well internal scientific research that MDLZ 23 has conducted to substantiate the “4 Hours of Nutritious Steady Energy’ claim 24
25 1 Defendant also references one exhibit, MDLZ-00035886 which is an excerpt from a report licensed from a marketing research company. Defendant seeks to seal this document solely because 26 its license with the company “require that the document be kept confidential and not be disclosed to the public.” (Smith Decl. ¶ 5.) Simply because another company seeks to keep the information 27 confidential does not mean there are compelling reasons for this Court to seal the document. 1 challenged in this lawsuit.” (ECF No. 104, at 2.) The Court finds compelling reasons 2 to seal these exhibits because Defendant’s marketing and research information gives 3 Defendant a competitive advantage. The Court also seals portions of Defendant’s 4 expert reports, opposition brief, and motion that quote from and incorporate these 5 documents. (Id. at 3–4.) The Court also seals the portions of the reports that contain 6 market research data by IRI. (Id.) See Algarin v. Maybelline, LLC, No. 12-3000, 7 2014 WL 690410, at *3 (S.D. Cal. Feb. 21, 2014) (granting L’Oreal’s motion to seal 8 where “[p]ublic disclosure of L’Oréal's confidential business material, marketing 9 strategies, [and] product development plans could result in improper use by business 10 competitors seeking to replicate L’Oréal's business practices and circumvent the time 11 and resources necessary in developing their own practices and strategies”). 12 The Court GRANTS Defendant’s Motion to Seal. 13 C. Plaintiffs’ Motion to Seal: ECF No. 103 14 Plaintiffs seek to file under seal Exhibits 1–3 and 8, as well as portions of their 15 reply brief, two motions to strike, and their opposition brief that cite those exhibits. 16 (ECF No. 103.) Plaintiffs state they seek to seal the information because Defendant 17 designed the information as confidential. Defendant then filed a declaration by Mr. 18 Smith stating Defendant has no objection to the public disclosure of the deposition 19 transcripts of Ronald Wilcox (Exhibit 1), Itamar Simonson (Exhibit 2), and Daniel 20 McFadden (Exhibit 3). Defendant further “does not seek to seal any of the 21 information Plaintiffs have redacted from their motion to strike the expert testimony 22 of Dr. Itamar Simonson (ECF No. 97-1) or their motion to strike the expert testimony 23 of Drs. Ronald Wilcox and Daniel McFadden (ECF No. 96-1).” (ECF No. 107, ¶ 2.) 24 Defendant provides that portions of Exhibit 8 as well as the redacted portions 25 of Paragraph 9 of the Omnibus Declaration of Paul Joseph “refer to internal scientific 26 or nutritional research that MDLZ has conducted in connection with the challenged 27 ‘Steady Energy’ claims in this case, including research designed to substantiate those 1 ||/information. (/d. § 4.) The Court finds compelling reasons to seal this information 2 || which Defendant has provided to be confidential research information. 3 Because Defendant does not seek to seal some of the information presented in 4 || Plaintiffs; motion to seal, the Court GRANTS IN PART Plaintiffs motion. Plaintiff 5 || must file Exhibits 1 through 3 on the public docket. Further, because Plaintiff has 6 filed redacted versions of two motions (ECF Nos. 96-1, 97-1) and Defendant does 7 |{not seek to seal any of the material in the motions, Plaintiff is to file public, 8 || unredacted versions of the motions. 9 IT IS SO ORDERED. 10 11 ||DATED: January 24, 2020 ( yt lig _( Ly harks sited Uiates District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28