Patterson Dental Supply, Inc. v. Pace
Patterson Dental Supply, Inc. v. Pace
2021 WL 7162098 (D. Minn. 2021)
February 22, 2021
Brisbois, Leo I., United States Magistrate Judge
Summary
The court granted the parties' Joint Motion Regarding Continued Sealing, allowing certain documents containing ESI, such as emails and other documents, to remain confidential. The court determined that the documents should remain under seal pending a determination of whether or not the information contained within them constitutes confidential information or trade secrets.
Additional Decisions
Patterson Dental Supply, Inc., Plaintiff,
v.
Daniele Pace, et al., Defendants
v.
Daniele Pace, et al., Defendants
Case No. 19-cv-1940 (JNE/LIB)
United States District Court, D. Minnesota
Filed February 22, 2021
Counsel
Joseph W. Hammell, Kristin Simonet, Employment, Benefits and Labor, Kristin K. Zinsmaster, Rebecca Kline, Jones Day, Minneapolis, MN, for Plaintiff.Christopher W. Madel, Stephen M. Premo, Madel PA, Minneapolis, MN, Mark N. Parry, Moses & Singer LLP, New York, NY, for Defendant Daniele Pace.
Abraham Skoff, Pro Hac Vice, Daniel Hoffman, Pro Hac Vice, Mark N. Parry, Pro Hac Vice, Moses & Singer, New York, NY, Christopher W. Madel, Stephen M. Premo, Madel PA, Minneapolis, MN, Brooks F. Poley, Winthrop & Weinstine, PA, Mpls, MN, for Defendant Henry Schein, Inc.
Brisbois, Leo I., United States Magistrate Judge
ORDER
*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon the parties’ various Joint Motions Regarding Continued Sealing. [Docket Nos. 289, 290, 327, 338]. Pursuant to Local Rule 5.6, the Court took the parties’ Motions under advisement on the written submissions of the parties.
For the reasons discussed herein, the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 289], is GRANTED, as set forth herein; the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 290], is GRANTED, as set forth herein; the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 327], is GRANTED, as set forth herein; and the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 338], is GRANTED, as set forth herein.
I. Background
Plaintiff initiated the present case in the First Judicial District, County of Dakota, State of Minnesota. (Notice of Removal [Docket No. 1]). Defendant Pace removed the present case to this Federal Court on July 23, 2019. (Id.).
Thereafter, Plaintiff filed its Amended Complaint, and on September 14, 2020, Plaintiff, after being given leave of Court to do so, filed its operative Second Amended Complaint. (Second Amended Compl. [Docket No. 239]). Plaintiff's Second Amended Complaint names as Defendants Daniele Pace, Plaintiff's former employee, and Henry Schein, Inc., Defendant Pace's new employer and one of Plaintiff's direct competitors. (Id.).
According to the factual assertions in its operative Second Amended Complaint, Plaintiff distributes dental supplies, equipment, and software to dental professionals across the United States. (Id. at 1). In June 2013, Plaintiff hired Defendant Pace as a “CAD/CAM” or “CEREC” Specialist “responsible for working directly with territory sales representative to provide specialized counseling and services to CAD/CAM customers.” (Id. at 1–3). Defendant Pace “worked out of Patterson's Denver location and she had responsibilities throughout Colorado and portions of Wyoming.” (Id. at 3).
On February 9, 2018, during her employment with Plaintiff, Defendant Pace signed an Employment Agreement in which, Plaintiff alleges, Defendant Pace agreed to “keep in confidence and trust” all confidential and proprietary information. (Id. at 4). The Employment Agreement contained a provision that required Defendant Pace, at the time her employment was terminated, to provide her employer with all her personally owned electronic devices which “contain[ ] or could contain any Company Property,” including confidential information. (Id. at 5).
On March 18, 2019, Defendant Pace terminated her employment with Plaintiff. (Id. at 9). According to Plaintiff, Defendant Pace “immediately thereafter took a job with Henry Schein as Regional Sales Manager in the Denver market.” (Id.).
Plaintiff alleges that Defendant Pace breached her Employment Agreement in a number of ways, including breaching the confidentiality provisions, failing to return Plaintiff's property, breaching the non-solicitation provision, misappropriating Plaintiff's trade secrets, retaining trade secret information without authorization, and disclosing trade secret information in order to solicit Patterson customers. (Id. at 8–25). Plaintiff alleges that Defendant Pace, during the course of her employment with Plaintiff, sent to her personal email a number of documents which Plaintiff alleges contained confidential information and trade secrets. (Id.). Plaintiff further avers that Defendant Pace, after the termination of her employment with Plaintiff, retained certain “Company Property,” including several documents that contained Plaintiff's confidential information and trade secrets, and she “refused” to return certain “Company Property” after Plaintiff requested she do so. (Id.).
*2 Based on the allegations in its Second Amended Complaint, Plaintiff raises eight causes of action. (Id. at 14–21). Specifically, Plaintiff asserts the following causes of action: Breach of Contract (Count I) against Defendant Pace; Misappropriation of Trade Secrets (Count II) against Defendants Pace and Henry Schein; Conversion (Count III) against Defendant Pace; Tortious Interference with Contractual Relationships (Count IV) against Defendants Pace and Henry Schein; Tortious Interference with Prospective Economic Advantage (Count V) against Defendants Pace and Henry Schein; Breach of Fiduciary Duty and Duty of Loyalty (Count VI) against Defendant Pace; Inducing, Aiding, and Abetting Breaches (Count VII) against Defendant Henry Schein; and Conspiracy (Count VIII) against Defendants Pace and Henry Schein. (Id.).
II. Joint Motions Regarding Continued Sealing. [Docket Nos. 289, 290, 327, 333].
On November 24, 2020, the parties filed their Joint Motion Regarding Continued Sealing, [Docket No. 289], regarding certain documents which the parties had filed under temporary seal in the motion practice surrounding Defendants’ “Motion to Compel Discovery, for a Protective Order, and for Supplementation and De-designation of Disclosures.” [Docket No. 261]. The parties’ November 24, 2020, Joint Motion Regarding Continued Sealing, [Docket No. 289], relates to Docket Nos. 263, 266, 266-1, 266-2, 266-3, 266-4, 266-5, 266-6, 266-7, 266-8, 266-9, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-20, 275-21, 275-22, and 275-23. The parties agree that Docket Nos. 263, 266-3, 266-5, 266-6, 266-7, 266-8, and 266-9 may be unsealed.
On November 24, 2020, the parties also filed their Joint Motion Regarding Continued Sealing, [Docket No. 290], regarding certain documents they had filed under temporary seal in the motion practice surrounding Plaintiff's Motion to Compel Discovery. [Docket No. 274]. This Joint Motion Regarding Continued Sealing, [Docket No. 290], involves Docket Nos. 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, and 281.
On February 4, 2021, the parties filed a third Joint Motion Regarding Continued Sealing, [Docket No. 327], regarding two documents which Plaintiff had filed under temporary seal in opposition to Defendants’ Motion for Protective Order. [Docket No. 292]. Specifically, the February 4, 2021, Joint Motion Regarding Continued Sealing, [Docket No. 327], relates to Docket Nos. 304 and 304-1.
On February 11, 2021, the parties filed their fourth Joint Motion Regarding Continued Sealing, [Docket No. 338], which relates to documents Defendants filed under temporary seal in support of their Motion to Amend their Answer. [Docket No. 310]. Specifically, the February 11, 2021, Joint Motion Regarding Continued Sealing, [Docket No. 338], relates to Docket Nos. 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, 318-9, and 320. The parties agree that Docket No. 320 may be unsealed.
Joint motions regarding continued sealing are governed by Local Rule 5.6(d)(2). The 2017 Advisory Committee Note to Rule 5.6 provides guidance regarding what must be shown in order for a document to be sealed under Local Rule 5.6. It states, in relevant part:
[P]arties have been filing too much information under seal in civil cases .... As a general matter, the public does not have a right of access to information exchanged in discovery; thus, protective orders are often quite broad, covering entire documents or sets of documents produced during discovery, even when most or all of the contents are not particularly sensitive. But the public does have a qualified right of access to information that is filed with the court. Even if such information is covered by a protective order, that information should not be kept under seal unless a judge determines that a party or nonparty's need for confidentiality outweighs the public's right of access.
*3 In addition to the undersigned at least three other United States Magistrate Judges for the District of Minnesota, and one District Court Judge for the District of Minnesota, have applied certain well-established legal standards regarding sealing documents that have been filed with a Federal Court. See, e.g., In re Bair Hugger Forced Air Warming Devices Prod. Liab. Litig., No. 15-mdl-2666 (JNE/FLN), 2018 WL 3019901 (D. Minn. June 18, 2018); Blu Dot Design & Manufacturing, Inc. v. Stitch Industries, Inc., 17-cv-3208 (PJS/KMM), 2018 WL 1370533 (D. Minn. March 16, 2018); Feinwachs v. Minn. Hosp. Ass'n, No. 11-cv-8 (JRT/SER), 2018 WL 882808, at *3 (D. Minn. Feb. 13, 2018).
As the Eighth Circuit Court of Appeals has held:
There is a common-law right of access to judicial records .... This right of access bolsters public confidence in the judicial system by allowing citizens to evaluate the reasonableness and fairness of judicial proceedings, and “to keep a watchful eye on the workings of public agencies.” It also provides a measure of accountability to the public at large, which pays for the courts.
IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013). “This right of access is not absolute, but requires a weighing of competing interests.” Feinwachs, 2018 WL 882808, at *3 (quoting Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir. 1990)). Even more specifically:
Where the common-law right of access is implicated, the court must consider the degree to which sealing a judicial record would interfere with the interests served by the common-law right of access and balance that interference against the salutary interests served by maintaining confidentiality of the information sought to be sealed.... “[T]he decision as to access is one best left to the sound discretion of the trial court ... in light of the relevant facts and circumstances of the particular case.”
IDT Corp., 709 F.3d at 1223 (citations omitted); see also, Feinwachs, 2018 WL 882808, at *3 (partially quoting the same). “[T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and resultant value of such information to those monitoring the federal courts.” IDT Corp., 709 F.3d at 1224 (citations omitted).
Determining whether a document should remain sealed under Local Rule 5.6 “requires a weighing of competing interests.” Feinwachs, 2018 WL 882808, at *3 (quoting Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir. 1990)). The more relevant information is to resolution by the Court of the dispute then at issue, the greater weight to be assigned to the public's right to access that information. See, IDT Corp., 709 F.3d at 1224.
As noted above, the parties have agreed that Docket Nos. 263, 266-3, 266-5, 266-6, 266-7, 266-8, 266-9, and 320 should be unsealed. Thus, these documents will be unsealed.
Docket Nos. 245-20 and 275-23 are also of particular note. These two docket entries are copies of invoices for legal services Defendants incurred in the present case. Plaintiff submitted Docket No. 275-20 and 275-23 in opposition to Defendants’ “Motion to Compel Discovery, for a Protective Order, and for Supplementation and De-designation of Disclosures.” Defendants have articulated some minimal privacy interest in these documents. On the other hand, these documents played no role in the Court's exercise of its judicial power. (See, Order [Docket No. 305]). Neither Docket No. 275-20 nor Docket No. 275-23 was relevant to this Court's resolution of the issues presented in Defendants’ “Motion to Compel Discovery, for a Protective Order, and for Supplementation and De-designation of Disclosures.” (See, Id.). The Court's weighing of the competing interest finds that Docket No. 275-20 and Docket No. 275-23 may remain under continued seal absent further Court Order.
*4 The remainder of the at issue documents present a different circumstance. Plaintiff argues that the remaining at issue documents should remain sealed because they contain information which constitutes either confidential information or trade secrets; the same type of confidential information and trade secrets upon which Plaintiff bases several of its claims. Defendants refute the contention that all of the information contained in Plaintiff's documents constitutes either confidential information or trade secrets; however, Defendants recognize that the determination of that issue is potentially dispositive of several of Plaintiff's claims in the present case.
The undersigned cannot on the record now before it, currently determine the level of articulable privacy interest the parties have in the remaining documents at issue. The undersigned cannot do so, at this time, because the determination of whether or not the information contained in these documents constitutes confidential information or trade secrets is potentially dispositive of several of Plaintiff's claims in the present case.[1] Because this determination is potentially dispositive of several of Plaintiff's claims in the present case, it is not for the undersigned to make in the first instances.
For example, as observed above, Plaintiff raises a claim of breach of contract against Defendant Pace alleging she violated the terms of her Employment Agreement by, among other things, retaining certain confidential information and documents after the termination of her employment with Plaintiff, and she further violated her Employment Agreement, as well as, her fiduciary duties, by misusing that confidential information. (See, Second Amended Compl. [Docket No. 239]). The remaining documents at issue in the present Joint Motions Regarding Continued Sealing are among some of the same documents[2] upon which Plaintiff, in part, bases its breach of contract and breach of fiduciary duty claims. similarly, Plaintiff's claim against Defendants for misappropriation of trade secrets involves, among other things, the same documents, and the same type of information, at issue in the remaining at issue documents.
It is evident that the determination of whether or not the information contained in the remaining at issue documents constitutes either confidential information or a trade secret is potentially dispositive of Plaintiff's claims as discussed above. That same determination is also like to have a significant effect on Plaintiff's claims for tortious interference with contractual relationships, tortious interference with prospective economic advantage, and civil conspiracy. Because of the potentially dispositive effect of this determination, it is not for the undersigned to make said determination in the first instance.
For these reasons, the undersigned will permit Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-20, 275-21, 275-22, 275-23, 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-21, 252-22, 281, 304, 304-1, 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, and 318-9 temporarily to remain under continued seal pending the Court's determination of whether or not the information contained within these documents constitutes either confidential information or information constituting a trade secret. However, upon the completion of the determination regarding the confidentiality of the information contained in Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-21, 275-22, 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, 281, 304, 304-1, 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, and 318-9, the undersigned will reevaluate whether or not these documents should remain under continued seal.
*5 If the present action concludes in the ultimate determination that any of the information contained within Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-21, 275-22, 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, 281, 304, 304-1, 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, and 318-9 is neither confidential nor a trade secret, then Plaintiff shall, by letter filed on CM/ECF, immediately inform the undersigned of said determination. The undersigned will, at that time, determine whether Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-21, 275-22, 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, 281, 304, 304-1, 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, or 318-9 shall remain under continued seal.
Therefore, the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 289], is GRANTED, as set forth herein; the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 290], is GRANTED, as set forth herein; the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 327], is GRANTED, as set forth herein; and the parties’ Joint Motion Regarding Continued Sealing, [Docket No. 338], is GRANTED, as set forth herein.
III. Conclusion
For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. The parties’ Joint Motion Regarding Continued Sealing, [Docket No. 289], is GRANTED, as set forth herein;
2. Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-20, 275-21, 275-22, and 275-23 may remain under continued seal absent further Court Order;
3. If the present action concludes in the ultimate determination that any of the information contained within Docket Nos. 266, 266-1, 266-2, 266-4, 273, 275, 275-1, 275-2, 275-3, 275-4, 275-5, 275-6, 275-7, 275-8, 275-9, 275-10, 275-11, 275-12, 275-13, 275-14, 275-15, 275-16, 275-17, 275-18, 275-19, 275-21, or 275-22, is neither confidential nor a trade secret, then Plaintiff shall, by letter filed on CM/ECF, immediately inform the undersigned of said determination, and the undersigned will, at that time, determine whether these documents shall remain under continued seal;
4. Docket Nos. 263, 266-3, 266-5, 266-6, 266-7, 266-8, and 266-9 may be unsealed;
5. The parties’ Joint Motion Regarding Continued Sealing, [Docket No. 290], is GRANTED, as set forth herein;
6. Docket Nos. 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, and 281 may remain under seal absent further Order of this Court;
7. If the present action concludes in the ultimate determination that any of the information contained within Docket Nos. 248, 250, 252, 252-1, 252-2, 252-3, 252-4, 252-5, 252-6, 252-7, 252-8, 252-9, 252-10, 252-11, 252-12, 252-13, 252-14, 252-15, 252-16, 252-17, 252-18, 252-19, 252-20, 252-21, 252-22, 252-23, or 281 is neither confidential nor a trade secret, then Plaintiff shall, by letter filed on CM/ECF, immediately inform the undersigned of said determination, and the undersigned will, at that time, determine whether these documents shall remain under continued seal;
*6 8. The parties’ Joint Motion Regarding Continued Sealing, [Docket No. 327], is GRANTED, as set forth herein;
9. Docket Nos. 304 and 304-1 may remain under seal absent further Court Order;
10. If the present action concludes in the ultimate determination that any of the information contained within Docket Nos. 304 or 304-1 is neither confidential nor a trade secret, then Plaintiff shall, by letter filed on CM/ECF, immediately inform the undersigned of said determination, and the undersigned will, at that time, determine whether these documents shall remain under continued seal;
11. The parties Joint Motion Regarding Continued Sealing, [Docket No. 338], is GRANTED, as set forth herein;
12. Docket Nos. 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, and 318-9 may remain under seal absent further Order of this Court;
13. If the present action concludes in the ultimate determination that any of the information contained within Docket Nos. 317, 318, 318-1, 318-2, 318-3, 318-4, 318-5, 318-6, 318-7, 318-8, or 318-9 is neither confidential nor a trade secret, then Plaintiff shall, by letter filed on CM/ECF, immediately inform the undersigned of said determination, and the undersigned will, at that time, determine whether these documents shall remain under continued seal; and
14. Docket No. 320 may be unsealed.
Footnotes
The remaining at issue documents include some documents containing information belonging to Defendant Henry Schein. Although the information contained therein is information about Defendant Henry Schein's business, it is of the same type of information that Plaintiff contends constitutes confidential information and/or trade secrets. Because it is information of the same type, the Court cannot determine the level of articulable privacy interest in these documents without implicating the issue of whether or not the information upon which Plaintiff bases its claims constitutes confidential information or trade secrets.
Or documents containing the same type of information.