MEMORANDUM OPINION AND ORDER
CHARLES R. SIMPSON, III, Senior District Judge.
I. Introduction
This case is before the Court for a determination regarding the unending saga of sealed documents in this case. The parties, the magistrate judge, and the undersigned have spent a hefty amount of time and effort sealing and unsealing documents. Following another extensive review, the Court will order some documents unsealed, while keeping others under seal.
II. Procedural Background
The magistrate sua sponte ordered the parties to confer, submit a joint status report listing the documents the parties agreed to unseal and, to the extent there was disagreement on sealing the remaining documents, brief the issues. DN 177. The parties filed their joint status report listing documents they agreed to unseal. DN 208, 212. The magistrate ordered those documents unsealed. DN 240.
Caudill filed its motion to maintain documents under seal. DN 209. Jarrow responded in opposition. DN 218. Caudill replied. DN 220. Jarrow also filed its own motion requesting to file redacted documents and to maintain certain documents under seal. DN 210. Caudill had no objection except to the unsealing of documents which it had requested remain sealed. DN 215. The magistrate issued his opinion on the issue unsealing certain documents and leaving others under seal. DN 239. Jarrow objected to a number of those rulings. DN 243. Caudill responded in opposition to those objections. DN 274. The Court thus restricts its review to the items to which Jarrow objects.
III. Discussion
Generally, there is a "strong presumption" in favor of open court records. Rudd Equip. Co. v. John Deere, 834 F.3d 589, 593 (6th Cir. 2016). "In civil cases, as much as in criminal matters, the resolution of private disputes frequently involves issues and remedies affecting third parties or the general public, and secrecy serves only to insulate the participants, mask impropriety, obscure incompetence, and conceal corruption." Id. at 593 (cleaned up).
Sealing should occur only when there is a "compelling reason why certain documents or portions thereof should be sealed." Id. (citing Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)). Even then, "the seal itself must be narrowly tailored to serve that reason," and should "analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations." Id. at 594 (citing Shane Grp., 825 F.3d at 305). Valid reasons for sealing could include court records that are "sources of business information that might harm a litigant's competitive standing," Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978), as well as "trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of sexual assault)," Rudd, 834 F.3d at 589.
In undertaking this analysis, however, the Court must remain mindful that the issue in the case revolves around trade secret misappropriation. In those cases, "[t]he strong presumption of access is improper." Kyle J. Mendenhall, Can You Keep a Secret?, 62 DRAKE L. REV. 885, 910 (2014). Instead, "[d]istrict courts should be able to use their sound discretion in weighing the competing interests for and against sealing court documents without such a misbalanced starting presumption." Id. That is important in trade secret cases because there is an inherent "discord between litigating to protect confidential information and disclosing that same confidential information during the litigation." United States v. Roberts, No. 3:08-CR-175, 2010 WL 1010000, at *5 (E.D. Tenn. March 17, 2010). "It would, of course, be idle to the point of flat absurdity for the trial judge to compel the plaintiff to publicly disclose its processes in the act of protecting them from disclosure." Id. (citation omitted). Otherwise, the Court sets a plaintiff alleging misappropriation of trade secrets sailing `twixt Scylla and Charybdis.
Put simply, where the issue boils down to the "plaintiff claiming the processes were secret, but the defendant claiming they were not," unsealing the documents is improper. Id. This is so because the Court's decision on sealing should be "completely separate" from the merits of the case or admissibility of the evidence. Rudd, 834 F.3d at 593. However, a ruling unsealing a document which contains an alleged trade secret implicates a merits issue because the Court would be required to necessarily determine that the item is not a trade secret. Id.
In this case, Caudill has survived summary judgement on its remaining trade secret claims. See DN 145. That means that Caudill has produced sufficient evidence to create a genuine issue of material fact as to whether its alleged trade secrets are, in fact, trade secrets. See FED. R. CIV. P. 56. Therefore, to the extent that Caudill alleges a document contains a trade secret and it appears to the Court that a genuine issue of material fact exists as to whether that information is a trade secret, the Court will maintain the seal on the document rather than implicate itself in an improper ruling on the merits of Caudill's claims.
The parties have briefed the issue utilizing a table. The Court finds that method also appropriate to organize its specific reasoning for sealing or unsealing.
Tab DNs Reasoning
1 38 These documents contain deposition transcripts from Dan Caudill. DNs 38
43 and 43 involve testimony regarding the location of the lab notebook and hard
78-1 drive at issue in the case. No portion of those documents appears to represent
80-8 Caudill's alleged trade secret, privileged, or proprietary and confidential
124-3 business information. Therefore, they will be unsealed.
126-4
133-5 DNs 78-1, 80-8, 124-3, 126-4, and 133-5 contain information about
Caudill's manufacturing processes. Caudill has created a genuine issue of
material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
2/50 61-18 These documents contain e-mails that include a list of Caudill's customers.
124-3 Caudill has created a genuine issue of material fact as to whether this is a
133-1 trade secret. DN 145. There is a compelling interest in protecting disclosure
124-3 of alleged trade secrets, as such disclosure could cause irreparable harm. See
126-1 Rudd, 834 F.3d 589. Further, such business information might harm
133-13 Caudill's competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
5 69 These documents contain deposition transcripts filed unsealed in a state court
71-8 case with limited redactions. No portion of those documents appears to
78-11 represent Caudill's alleged trade secret, privileged, or proprietary and
86-1 confidential business information. Therefore, counsel shall substitute
126-5 redacted copies which will be unsealed.
133-19
135-4
165-1
181-1
194-2
9 78-3 These documents contain deposition transcripts filed unsealed in a state court
80-9 case with limited redactions. No portion of those documents appears to
126-23 represent Caudill's alleged trade secret, privileged, or proprietary and
128-28 confidential business information. Therefore, counsel shall substitute
133-16 redacted copies which will be unsealed.
10 78-10 These documents contain deposition transcripts filed unsealed in a state court
126-7 case with limited redactions. No portion of those documents appears to
135-37 represent Caudill's alleged trade secret, privileged, or proprietary and
204-12 confidential business information. Therefore, counsel shall substitute
redacted copies which will be unsealed.
15 100-7 These documents contain an e-mail between counsel with expert reports
100-8 attached. DN 100-7 contains an e-mail from Jarrow's counsel to Caudill's
100-9 counsel (at the time). No portion of this document appears to represent
Caudill's alleged trade secret, privileged, or proprietary and confidential
business information. Therefore, it will be unsealed.
DNs 100-8 and 100-9 contain expert reports of Jarrow's experts, Andrew
Chambers and Charles Staff, discussing Caudill's processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
17 124-2 These documents contain deposition transcripts taken from Joseph Lyons.
126-2 During his testimony, Lyons discusses Caudill's manufacturing processes.
128-2 Caudill has created a genuine issue of material fact as to whether this is a
133-4 trade secret. DN 145. There is a compelling interest in protecting disclosure
139-1 of alleged trade secrets, as such disclosure could cause irreparable harm. See
181-2 Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
194-3
204-2
18 124-10 These documents contain an e-mail from Ashurst to Jarrow while he was
133-23 employed by Caudill which discusses Caudill's formulas and processes, as
well as commentary and notation on a research monograph. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
19 124-28 These documents contain public research and publicly available patents. No
124-29 portion of those documents appears to represent Caudill's alleged trade
124-30 secret, privileged, or proprietary and confidential business information.
124-31 Therefore, it will be unsealed.
124-32
124-33
124-34
124-35
126-8
133-33
20/33 124-47 These documents contain a market analysis involving Jarrow's assumptions
133-42 regarding pricing. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
25 126-3 These documents contain deposition transcripts from Richard Sullivan.
133-17 During his testimony, Sullivan primarily details his search for the notebook
and hard drive at issue in this case. No portion of those documents appears to
represent Caudill's alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, they will be unsealed.
26 126-6 These documents contain deposition transcripts from Laura Putnam. During
133-18 her testimony, Putnam primarily details her search for the notebook and hard
drive at issue in this case. No portion of those documents appears to
represent Caudill's alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, they will be unsealed.
27 126-11 These documents contain deposition transcripts from Jarrow Rogovin.
124-4 During his testimony, Rogovin discusses documents he received from
Ashurst, but does not detail the substance of those documents. No portion of
those documents appears to represent Caudill's alleged trade secret,
privileged, or proprietary and confidential business information. Therefore,
they will be unsealed.
30 128-21 This document contains a declaration from Kean Ashurst and an attached
PowerPoint presentation. Specifically, the documents contain information on
Caudill's business, including Caudill's customers. Caudill has created a
genuine issue of material fact as to whether this is a trade secret. DN 145.
There is a compelling interest in protecting disclosure of alleged trade
secrets, as such disclosure could cause irreparable harm. See Rudd, 834 F.3d
589. Further, such business information might harm Caudill's competitive
standing. See Nixon, 435 U.S. at 598. Therefore, this information will remain
sealed.
31 133-14 This document contains an exchange between Jarrow consultants discussing
the purchase price of Caudill's products. Caudill has created a genuine issue
of material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
such business information might harm Caudill's competitive standing. See
Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
32 133-30 This document contains an e-mail with attachments regarding results of
Caudill's testing. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
34 133-61 These documents contain deposition transcripts from Leslie West. During his
135-1 testimony, Jarrow discusses Caudill's manufacturing processes. Caudill has
126-12 created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
41 128-22 These documents contain deposition transcipts from Kean Ashurst. In DNs
135-26 128-22, 135-26, 137-6, 139-2, 165-4, 124-8, 126-10, 133-3, 124-5, 133-1,
137-6 and 133-37, Ashurst discusses Caudill's production processes. Caudill has
139-2 created a genuine issue of material fact as to whether this is a trade secret.
165-4 DN 145. There is a compelling interest in protecting disclosure of alleged
124-8 trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
126-10 F.3d 589. Therefore, this information will remain sealed.
133-3
124-5 In DN 204-13, however, the discussion is limited to a meeting held with Dan
133-1 Caudill at a restaurant. No portion of that document appears to represent
133-37 Caudill's alleged trade secret, privileged, or proprietary and confidential
204-13 business information. Therefore, it will be unsealed.
44 194-5 This document contains a redacted certificate of analysis. Caudill has created
a genuine issue of material fact as to whether this is a trade secret. DN 145.
There is a compelling interest in protecting disclosure of alleged trade
secrets, as such disclosure could cause irreparable harm. See Rudd, 834 F.3d
589. The included redactions are insufficient to warrant public disclosure.
Therefore, this information will remain sealed.1
45 124-11 These documents contain deposition transcripts from Rebecca Wagner from
133-7 FONA. During her testimony, Wagner discusses the 2011 genesis of a joint
development agreement with Caudill. No portion of that document appears
to represent Caudill's alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, it will be unsealed.
46/47 61-5 These documents contain an e-mail from Ashurst to Clouatre discussing
124-13 Caudill's processes. Caudill has created a genuine issue of material fact as to
133-12 whether this is a trade secret. DN 145. There is a compelling interest in
133-22 protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
48 61-7 These documents contain issued patents, a sublicense agreement between
61-8 Caudill and Brassica, a form letter, and documents drafted by Caudill's
61-9 attorneys.
78-5
78-6 DNs 61-7, 78-5, 124-19, 124-20, 124-21, and 133-46 contain only publicly
78-7 available patent information. No portion of those documents appears to
78-8 represent Caudill's alleged trade secret, privileged, or proprietary and
124-19 confidential business information. Therefore, they will be unsealed.
124-20
124-21 DNs 61-8, 61-9, 78-6, 78-7, 78-8, 124-22, 124-23, 124-24, 133-47, and 133-48
124-22 contain documents drafted by Caudill's attorney and confidential
124-23 sublicense agreements between Caudill and its business partners. There is a
124-24 compelling interest in protecting the attorney-client privilege, A such
133-46 disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
133-47 such business information might harm Caudill's competitive standing. See
133-48 Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
49 61-23 These documents contain a sublicense agreement between Caudill and
124-61 Brassica as well as a manufacturing flowchart. Caudill has created a genuine
137-8 issue of material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
such business information might harm Caudill's competitive standing. See
Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
52/53 126-13 These documents contain e-mails that describe Caudill's processes. Caudill
133-26 has created a genuine issue of material fact as to whether this is a trade
secret. DN 145. There is a compelling interest in protecting disclosure of
alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
54 126-24 These documents contain deposition transcripts from Martin Gallant. During
128-34 his testimony, Gallant discusses Caudill's purchasing process and pricing
133-57 information. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Further, such business
information might harm Caudill's competitive standing. See Nixon, 435 U.S.
at 598. Therefore, this information will remain sealed.
55 126-29 These documents contain deposition transcripts from Benjamin Khowong. In
his testimony, Khowong discusses Caudill's customer list. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Further, such business information might harm Caudill's
competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
56 126-30 These documents contain an e-mail which describes Caudill's manufacturing
133-10 processes. Caudill has created a genuine issue of material fact as to whether
this is a trade secret. DN 145. There is a compelling interest in protecting
disclosure of alleged trade secrets, as such disclosure could cause irreparable
harm. See Rudd, 834 F.3d 589. Therefore, this information will remain
sealed.
67 191-3 These documents contain the supplemental expert report of Leslie West. In
201-2 his report, West specifically discusses Caudill's manufacturing processes.
204-1 Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
68 191-4 These documents contain the rebuttal expert report of Leslie West. In his
201-1 report, West specifically discusses Caudill's manufacturing processes.
204-4 Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
69 126-18 These documents contain deposition transcripts of David Slaughter. In his
133-25 deposition, Slaughter discusses specific processing parameters, times, and
temperatures associated with Caudill's manufacturing process. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
73 124-62 This document contains an e-mail discussing Caudill's testing cost, vendors,
and results. Caudill has created a genuine issue of material fact as to whether
this is a trade secret. DN 145. There is a compelling interest in protecting
disclosure of alleged trade secrets, as such disclosure could cause irreparable
harm. See Rudd, 834 F.3d 589. Therefore, this information will remain
sealed.
75 126-19 These documents contain deposition transcripts from Nutramax. In the
128-29 deposition, the corporate representative discusses specific pricing
133-56 information and Caudill's processes for soliciting business. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Further, such business information might harm Caudill's
competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
76 126-33 These documents contain e-mails between Caudill and Nutramax. DNs 126-33
126-34 and 128-30 contain specific pricing information and Caudill's processes
126-35 for soliciting business. Caudill has created a genuine issue of material fact as
128-30 to whether this is a trade secret. DN 145. There is a compelling interest in
128-31 protecting disclosure of alleged trade secrets, as such disclosure could cause
128-32 irreparable harm. See Rudd, 834 F.3d 589. Further, such business
information might harm Caudill's competitive standing. See Nixon, 435 U.S.
at 598. Therefore, this information will remain sealed.
DNs 126-34, 126-35, 128-31, and 128-32 lack such information. No portion
of those documents appears to represent Caudill's alleged trade secret,
privileged, or proprietary and confidential business information. Therefore,
they will be unsealed.
77 133-53 This document contains an e-mail from Ashurst. In the e-mail, he discusses
specific percentages used in Caudill's manufacturing processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
78 201-3 These documents contain the rebuttal expert report of Kean Ashurst. In his
report, Ashurst specifically discusses Caudill's manufacturing processes.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
81 204-9 This document contains correspondence between Jarrow and one of its
vendors which discusses Caudill's manufacturing process. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
82 204-10 This document contains e-mails and faxes within Jarrow which discusses
Caudill's manufacturing process. Caudill has created a genuine issue of
material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
83 204-11 This document contains e-mails and faxes within Jarrow which discusses
Caudill's manufacturing process. Caudill has created a genuine issue of
material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
IV. Order
For the reasons set forth above, and the Court being otherwise sufficiently advised, the Court:
ORDERS UNSEALED the sealed documents at DNs 100-7, 124-28, 124-29, 124-30, 124-31, 124-32, 124-33, 124-34, 124-35, 126-8, 133-33, 38, 43, 126-3, 133-17, 126-6, 133-18, 126-11, 124-4, 204-13, 124-11, 133-7, 61-7, 78-5, 124-19, 124-20, 124-21, 133-46, 126-34, 126-35, 128-31, and 128-32.
ORDERS counsel to file unsealed, redacted copies of DNs 69, 71-8, 78-11, 86-1, 126-5, 133-19, 135-4, 165-1, 181-1, 194-2, 78-3, 80-9, 126-23, 128-28, 133-16, 78-10, 126-7, 135-37, and 204-12 to substitute the currently sealed versions.
IT IS SO ORDERED.
