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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 (ECF 15 v. No. 138);
16 (2) GRANTING DEFENDANT’S MONDELĒZ INTERNATIONAL, MOTION TO SEAL (ECF 17 No. 144); AND INC.,
18 (3) GRANTING PLAINTIFFS’ Defendant. MOTION TO SEAL (ECF 19 No. 158).
21 Pending before the Court are the parties’ motions to file documents under seal. 22 (ECF Nos. 138, 144, 158.) The Court GRANTS the motions. 23 24 I. BACKGROUND 25 Plaintiffs filed the present action against Mondelēz Global LLC (“MDLZ”), 26 alleging that certain claims on MDLZ’s product packaging are misleading. (Second 27 Amended Complaint, “SAC,” ECF No. 24, ¶ 114.) Plaintiffs moved to certify class, 1 Court allowed the parties to file under seal certain related documents. (Sealing 2 Order, ECF No. 115.) 3 Plaintiffs renewed their motion for class certification. (ECF No. 137.) The 4 parties each filed Daubert motions to strike the expert testimonies filed in support 5 of, or opposition to, class certification. (ECF Nos. 147, 148, 151, 158.) The parties 6 now move to file under seal portions of motions, briefs, declarations, and/or exhibits 7 filed in connection with Plaintiffs’ renewed motion for class certification and the 8 parties’ Daubert motions. (ECF Nos. 138, 144, 158.) The parties’ motions to seal 9 are suitable for determination on the papers submitted and without oral argument. 10 See Civ. L.R. 7.1(d)(1). 11 12 II. LEGAL STANDARD 13 “[T]he courts of this country recognize a general right to inspect and copy 14 public records and documents, including judicial records and documents.” Nixon v. 15 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record 16 is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the 17 starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 18 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 19 2003)). “The presumption of access is ‘based on the need for federal courts, although 20 independent—indeed, particularly because they are independent—to have a measure 21 of accountability and for the public to have confidence in the administration of 22 justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 23 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 24 A party seeking to seal a judicial record bears the burden of overcoming the 25 strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to 26 meet this burden depends upon whether the documents to be sealed relate to a motion 27 that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 1 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 2 underlying motion does not surpass the tangential relevance threshold, the “good 3 cause” standard applies. Id. 4 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest 5 in disclosure and justify sealing court records exists when such ‘court files might 6 have become a vehicle for improper purposes,’ such as the use of records to gratify 7 private spite, promote public scandal, circulate libelous statements, or release trade 8 secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, 9 “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, 10 incrimination, or exposure to further litigation will not, without more, compel the 11 court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal 12 documents is “one best left to the sound discretion of the trial court” upon 13 consideration of “the relevant facts and circumstances of the particular case.” Nixon, 14 435 U.S. at 599. 15 16 III. ANALYSIS 17 The parties move to seal portions of motions, briefs, declarations and/or 18 exhibits in connection with Plaintiffs’ renewed motion for class certification and the 19 parties’ Daubert motions. A motion for class certification is “more than tangentially 20 related to the merits of [the] case,” and therefore “compelling reasons” must be 21 shown to seal the documents attached thereto. See Krommenhock v. Post Foods, 22 LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (applying the “compelling reasons” 23 standard to class certification motion). Because the Daubert motions at issue are 24 closely associated with the class certification motion, the Court will apply the 25 “compelling reasons” standard to the motions to seal documents relevant to the 26 Daubert motions. Cf. In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 27 686 F.3d 1115, 1120–21 (9th Cir. 2012) (applying “compelling reasons” standard to 1 A. Plaintiffs’ Motion to Seal: ECF No. 138 2 Plaintiffs move to file under seal portions of their renewed motion for class 3 certification and supporting declaration and exhibits. (Pls.’ Mot. to Seal, ECF No. 4 138.) Plaintiffs first seek to seal financial data purchased from a third-party 5 marketing research company, IRI, which Plaintiffs’ expert witness, Colin B. Weir, 6 discusses in his declaration filed in support of Plaintiffs’ renewed motion for class 7 certification. (Weir Decl., ECF No. 137-3.) Plaintiffs state that Weir’s declaration 8 “contains unit and dollar sales information Plaintiffs received from third party 9 marketing research company IRI, which IRI designated ‘HIGHLY 10 CONFIDENTIAL AEO [Attorneys’ Eyes Only],’ as well as damages figures 11 calculated using that IRI data.” (Pls.’ Mot. to Seal at 4; Persinger Decl. ¶ 5, ECF No. 12 138-1.) Plaintiffs argue that disclosure of this information would harm IRI “by 13 providing for free what IRI has expended resources collecting and charges its clients 14 for” and would put it at a competitive disadvantage. (Pls.’ Mot. to Seal at 5; Persinger 15 Decl. ¶ 5.) In a previous sealing order, the Court has allowed Plaintiffs to file under 16 seal the same information from IRI. (Sealing Order at 4, ECF No. 115.) For the 17 same reasons discussed in that Order, the Court finds compelling reasons to seal this 18 information. 19 Plaintiffs also seek to seal Exhibits 1–2 to the Declaration of Paul K. Joseph 20 in Support of Plaintiffs’ renewed motion for class certification. These documents, 21 marked as MDLZ-00061486 and MDLZ-00086676, are Defendant’s marketing, 22 advertising, and consumer research that Defendant has conducted in connection with 23 the products at issue. In the previous sealing order, this Court allowed sealing 24 Exhibit 1, MDLZ-00061486, finding that the research provided Defendant with a 25 competitive advantage in the marketplace. (Sealing Order at 3–4, ECF No. 115.) 26 The same compelling reasons support sealing Exhibit 2, MDLZ-00086676, which is 27 Defendant’s internal report summarizing research on marketing, advertising, and 1 reasons to seal Exhibits 1–2 to the Declaration of Paul K. Joseph, marked as MDLZ- 2 00061486 and MDLZ-00086676. The Court also seals portions of Plaintiffs’ 3 renewed motion for class certification that quote from and incorporate these 4 documents. 5 The Court GRANTS Plaintiff’s motion (ECF No. 138) in full. 6 7 B. Defendant’s Motion to Seal: ECF No.
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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 (ECF 15 v. No. 138);
16 (2) GRANTING DEFENDANT’S MONDELĒZ INTERNATIONAL, MOTION TO SEAL (ECF 17 No. 144); AND INC.,
18 (3) GRANTING PLAINTIFFS’ Defendant. MOTION TO SEAL (ECF 19 No. 158).
21 Pending before the Court are the parties’ motions to file documents under seal. 22 (ECF Nos. 138, 144, 158.) The Court GRANTS the motions. 23 24 I. BACKGROUND 25 Plaintiffs filed the present action against Mondelēz Global LLC (“MDLZ”), 26 alleging that certain claims on MDLZ’s product packaging are misleading. (Second 27 Amended Complaint, “SAC,” ECF No. 24, ¶ 114.) Plaintiffs moved to certify class, 1 Court allowed the parties to file under seal certain related documents. (Sealing 2 Order, ECF No. 115.) 3 Plaintiffs renewed their motion for class certification. (ECF No. 137.) The 4 parties each filed Daubert motions to strike the expert testimonies filed in support 5 of, or opposition to, class certification. (ECF Nos. 147, 148, 151, 158.) The parties 6 now move to file under seal portions of motions, briefs, declarations, and/or exhibits 7 filed in connection with Plaintiffs’ renewed motion for class certification and the 8 parties’ Daubert motions. (ECF Nos. 138, 144, 158.) The parties’ motions to seal 9 are suitable for determination on the papers submitted and without oral argument. 10 See Civ. L.R. 7.1(d)(1). 11 12 II. LEGAL STANDARD 13 “[T]he courts of this country recognize a general right to inspect and copy 14 public records and documents, including judicial records and documents.” Nixon v. 15 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record 16 is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the 17 starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 18 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 19 2003)). “The presumption of access is ‘based on the need for federal courts, although 20 independent—indeed, particularly because they are independent—to have a measure 21 of accountability and for the public to have confidence in the administration of 22 justice.’” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 23 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 24 A party seeking to seal a judicial record bears the burden of overcoming the 25 strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to 26 meet this burden depends upon whether the documents to be sealed relate to a motion 27 that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 1 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 2 underlying motion does not surpass the tangential relevance threshold, the “good 3 cause” standard applies. Id. 4 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest 5 in disclosure and justify sealing court records exists when such ‘court files might 6 have become a vehicle for improper purposes,’ such as the use of records to gratify 7 private spite, promote public scandal, circulate libelous statements, or release trade 8 secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). However, 9 “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, 10 incrimination, or exposure to further litigation will not, without more, compel the 11 court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). The decision to seal 12 documents is “one best left to the sound discretion of the trial court” upon 13 consideration of “the relevant facts and circumstances of the particular case.” Nixon, 14 435 U.S. at 599. 15 16 III. ANALYSIS 17 The parties move to seal portions of motions, briefs, declarations and/or 18 exhibits in connection with Plaintiffs’ renewed motion for class certification and the 19 parties’ Daubert motions. A motion for class certification is “more than tangentially 20 related to the merits of [the] case,” and therefore “compelling reasons” must be 21 shown to seal the documents attached thereto. See Krommenhock v. Post Foods, 22 LLC, 334 F.R.D. 552, 586 (N.D. Cal. 2020) (applying the “compelling reasons” 23 standard to class certification motion). Because the Daubert motions at issue are 24 closely associated with the class certification motion, the Court will apply the 25 “compelling reasons” standard to the motions to seal documents relevant to the 26 Daubert motions. Cf. In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 27 686 F.3d 1115, 1120–21 (9th Cir. 2012) (applying “compelling reasons” standard to 1 A. Plaintiffs’ Motion to Seal: ECF No. 138 2 Plaintiffs move to file under seal portions of their renewed motion for class 3 certification and supporting declaration and exhibits. (Pls.’ Mot. to Seal, ECF No. 4 138.) Plaintiffs first seek to seal financial data purchased from a third-party 5 marketing research company, IRI, which Plaintiffs’ expert witness, Colin B. Weir, 6 discusses in his declaration filed in support of Plaintiffs’ renewed motion for class 7 certification. (Weir Decl., ECF No. 137-3.) Plaintiffs state that Weir’s declaration 8 “contains unit and dollar sales information Plaintiffs received from third party 9 marketing research company IRI, which IRI designated ‘HIGHLY 10 CONFIDENTIAL AEO [Attorneys’ Eyes Only],’ as well as damages figures 11 calculated using that IRI data.” (Pls.’ Mot. to Seal at 4; Persinger Decl. ¶ 5, ECF No. 12 138-1.) Plaintiffs argue that disclosure of this information would harm IRI “by 13 providing for free what IRI has expended resources collecting and charges its clients 14 for” and would put it at a competitive disadvantage. (Pls.’ Mot. to Seal at 5; Persinger 15 Decl. ¶ 5.) In a previous sealing order, the Court has allowed Plaintiffs to file under 16 seal the same information from IRI. (Sealing Order at 4, ECF No. 115.) For the 17 same reasons discussed in that Order, the Court finds compelling reasons to seal this 18 information. 19 Plaintiffs also seek to seal Exhibits 1–2 to the Declaration of Paul K. Joseph 20 in Support of Plaintiffs’ renewed motion for class certification. These documents, 21 marked as MDLZ-00061486 and MDLZ-00086676, are Defendant’s marketing, 22 advertising, and consumer research that Defendant has conducted in connection with 23 the products at issue. In the previous sealing order, this Court allowed sealing 24 Exhibit 1, MDLZ-00061486, finding that the research provided Defendant with a 25 competitive advantage in the marketplace. (Sealing Order at 3–4, ECF No. 115.) 26 The same compelling reasons support sealing Exhibit 2, MDLZ-00086676, which is 27 Defendant’s internal report summarizing research on marketing, advertising, and 1 reasons to seal Exhibits 1–2 to the Declaration of Paul K. Joseph, marked as MDLZ- 2 00061486 and MDLZ-00086676. The Court also seals portions of Plaintiffs’ 3 renewed motion for class certification that quote from and incorporate these 4 documents. 5 The Court GRANTS Plaintiff’s motion (ECF No. 138) in full. 6 7 B. Defendant’s Motion to Seal: ECF No. 144 8 Defendant seeks to file under seal portions of its opposition to Plaintiffs’ 9 renewed motion for class certification, its motion to exclude expert testimony, and 10 various supporting exhibits. (ECF No. 144.) The exhibits Defendant seeks to seal 11 are exhibits 16–20 to the Omnibus Declaration of Kate Spelman, which are a subset 12 of the documents that this Court previous ordered to be maintained under seal. 13 (Sealing Order at 4–5, ECF No. 115.) In that Order, the Court found that the exhibits 14 at issue constitute information that gives Defendant a competitive advantage. (Id. at 15 5.) Because Defendant’s present sealing request merely seeks to maintain the same 16 documents under seal, the Court GRANTS Defendant’s motion (ECF No. 144) in 17 full. 18 19 C. Plaintiffs’ Motion to Seal: ECF No. 158 20 Plaintiffs first seek to file under seal Exhibit 12 to the Fitzgerald Omnibus 21 Declaration. Exhibit 12 is an internal MDLZ document, which “references internal 22 marketing and consumer research that MDLZ conducted or commissioned in 23 connection with the belVita products and/or statements challenged in this lawsuit.” 24 (Smith Decl., ECF No. 158-1 ¶ 2.) The Court’s review of Exhibit 12 confirms that 25 it constitutes internal marketing research that gives MDLZ a competitive advantage. 26 The Court thus finds compelling reasons to maintain Exhibit 12 under seal. 27 Plaintiffs also seek to file under seal an unredacted copy of their reply brief 1 ||about the documents that this Court sealed in a previous Sealing Order. Because 2 ||compelling reasons support maintaining the underlying information under seal, the 3 || Court will also allow sealing the portions of the reply brief that refers to the sealed 4 || information. 5 Finally, Plaintiffs seek to file under seal their unredacted opposition to 6 || MDLZ’s second motion to exclude the testimony of Plaintiffs’ expert witness, J. 7 ||Michael Dennis. Plaintiffs have filed a redacted copy of the opposition brief, 8 || withholding from the public discussions of the contents of Exhibit 12 and a document 9 ||marked MDLZ-64024, for which this Court has already found compelling reasons to 10 ||maintain under seal. (See supraPart III.B.) Because the Court has found compelling 11 ||reasons to seal the underlying information, the Court will allow Plaintiffs to maintain 12 || under seal the portions of the opposition brief discussing that information. 13 The Court GRANTS Plaintiffs’ motion (ECF No. 158) in full. 14 15 ||IV. CONCLUSION 16 The Court GRANTS the parties’ motions to file documents under seal (ECF 17 ||Nos. 138, 144, 158). The Court directs the Clerk of the Court to accept and FILE 18 || UNDER SEAL the requested documents (ECF Nos. 139, 145, 167). 19 IT IS SO ORDERED. 20 21 ||DATED: February 10, 2021 ( if hig | Ly hak 22 sited Uiates District Judge 23 24 25 26 27 28