Nespresso USA, Inc. v. Williams-Sonoma, Inc.

Opinion

| USDC SDNY en orrick ELECTRONICALLY FILED DOC #: March 8, 2021 Ph. Orrick, Herrington & Sutcliffe LLP DATE FILED:_3/9/2021_ 51 West 52nd Street Via ECF New York, NY 10019-6142 +1 212 506 5000 orrick.com The Honorable Katharine H. Parker United States Magistrate Judge Elizabeth E. Brenckman United States Courthouse E ebrenckman @orrick.com 500 Pearl Street D +1 212 506 3535 New York, NY 10007-1312 Pet are soe ote!

Re: Nespresso USA, Inc. v. Williams-Sonoma, Inc., 1:19-cv-04223-LAP-KHP Dear Judge Parker: Pursuant to Section III(d) of the Court’s Individual Practices and for similar reasons cited in the parties’ Joint Letter Motion to Seal (Dkt. No. 76) that the Court granted (Dkt. No. 79), Nespresso USA, Inc. (“Nespresso”) and WS jointly request permission to file under seal two exhibits to WS’s March 8, 2021 Letter Motion to Judge Parker (the “Exhibits”). The Exhibits contain information that Nespresso has designated as “Attorneys’ Eyes Only” under the Court’s Protective Order. See Dkt. No. 64. Therefore, the parties respectfully request that they be able to file those documents under seal. As set forth below, filing these two Exhibits under seal is consistent with the Second Circuit's opinions in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) and Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir. 2016). Pursuant to Lugosch, the Court must first assess whether the documents at issue are “judicial documents.” 435 F.3d at 119. Once the Court has made that determination, it must assess the weight of the presumption of public access to the documents under the common law and the First Amendment, and then, it must weigh the presumption of public access against any competing interests, such as the privacy interests of the party resisting disclosure. /d. at 119-20. While the parties do not dispute that the Exhibits are judicial documents, the information that the parties seek to seal relates to material entitled to as material passed between the parties in discovery. As such, the presumption of public access is low. See, Bernstein, 814 F.3d at 142 (documents “such as those passed between the parties in discovery’ often play ‘no role in the performance of Article Ill functions’ and so the presumption of access to these records is low’) (citation omitted); In re Zyprexa Injunction, 474 F. Supp. 2d 385, 424 (E.D.N.Y. 2007) (“the documents at issue are not litigation filings, but documents produced in discovery, to which the right of public access has not

attached”). Here, the emails that the parties seek to seal are highly confidential business communications of Nespresso’s, and the presumption of public access is therefore low. See In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-md-2542, 2014 WL 12772236, at *2 (S.D.N.Y. Nov. 5, 2014) (sealing information produced in discovery); Firmode (Intel) Co. v. Intel Watch Grp., Inc., No. 2008-4890, 2009 WL 3698137, at *2 (E.D.N.Y. Nov. 2, 2009) (collecting authorities sealing confidential supplier and pricing information). Turning to the second portion of the Lugosch test, Nespresso has significant privacy interests in the information contained in its confidential communications. As such, filing these two Exhibits under seal is appropriate and narrowly tailored to protect Nespresso’s interests under Lugosch, 435 F.3d at 120, and the parties respectfully request that the Court seal the Exhibits. Concurrent with this letter motion, WS is contemporaneously: (a) publicly filing “slip sheets” in place of the Exhibits; and (b) electronically filing under seal copies of the full Exhibits. Sincerely, For the same reasons cited by the Court at ORRICK, HERRINGTON & SUTCLIFFE LLP ECF No. 143, the parties’ request is hereby GRANTED. Accordingly, the Court By: /s/ Elizabeth E. Brenckman respectfully requests that the Clerk of Elizabeth E. Brenckman Court ensure that the document filed at 51 West 52nd Street ECF No. 149 remains sealed, with access New York, New York 10019-6142 limited to the parties and the Court. Tel.: (212) 506 3535 - Email: ebrenckman@orrick.com SO ORDERED: QZ Sheryl Koval Garko (pro hac vice) Kotha tf Faker 222 Berkeley Street, Suite 2000 HON. Boston, Massachusetts 02116 UNITED STATES MAGISTRATE JUDGE Tel.: (617) 880 1919 Date: March 9, 2021 Email: sgarko@orrick.com Attorneys for Defendant Williams-Sonoma, Inc. MAYER BROWN LLP By: /S/Gina M. Parlovecchio A. John P. Mancini Gina M. Parlovecchio

Jonathan W. Thomas 1221 Avenue of the Americas New York, New York 10020-1001 Tel.: (212) 506 2500 Fax: (212) 262 1910 Email: JMancini@mayerbrown.com Email : GParlovecchio@mayerbrown.com Email: JWThomas@mayerbrown.com

Adam L. Hudes (pro hac vice) 1999 K Street, NW Washington, D.C. 20006 Tel.: (202) 263 3298 Email: AHudes@mayerbrown.com

Attorneys for Plaintiff Nespresso USA, Inc.