In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig.
In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig.
2023 WL 196134 (S.D.N.Y. 2023)
January 17, 2023
Broderick, Vernon S., United States District Judge
Summary
The court denied requests to seal or redact certain documents, including those related to summary judgment and Daubert motions, as the parties had not met the stringent burden required to seal materials to which a First Amendment right of access has attached. The court did, however, allow for the redaction of names, emails, and phone numbers of individuals in certain documents. The court also directed the parties to submit a joint letter setting out a proposed plan for reconciling the redactions and getting properly redacted materials filed on the public docket.
Additional Decisions
IN RE: KEURIG GREEN MOUNTAIN SINGLE-SERVE COFFEE ANTITRUST LITIGATION
This order relates to all cases
This order relates to all cases
14-MD-2542 (VSB), 14-MC-2542 (VSB)
United States District Court, S.D. New York
Filed January 17, 2023
Broderick, Vernon S., United States District Judge
OPINION & ORDER
*1 This Opinion & Order addresses 12 motions to seal or redact materials. The parties, as well as various non-parties, have made numerous requests seeking either the wholesale sealing of dozens of documents or detailed line-item redactions covering thousands of pages of material. This Opinion & Order covers an initial tranche of such requests.
I assume familiarity with the background of this multidistrict litigation, which focuses on antitrust claims brought against Keurig Green Mountain, Inc. (“Keurig”), and which is discussed in more detail in my Opinion & Order of April 3, 2019. (Doc. 581.) Where additional background is necessary, I address it in the context of the specific motion to seal or redact.
I. Legal Standard
“The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action.” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997). When a party requests sealing, the court must evaluate that request under both a “common law right of public access to judicial documents,” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006), and the press and public's “qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.” Id. at 120 (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004)).
I begin with the standard for the common law right of access. This is an appropriate starting point because the test for whether a document can be sealed under the First Amendment is more stringent then under the common law. Lugosch, 435 F.3d at 124. If a sealing request cannot survive the common law test, it will not survive scrutiny under the First Amendment test.
A “common law right of public access to judicial documents is firmly rooted in our nation's history.” Lugosch, 435 F.3d at 119. Thus, a presumption of public access rooted in this common law attaches to materials classified as judicial documents. Amodeo I, 44 F.3d at 146. This right of access is essential to maintaining judicial accountability.
The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice. Federal courts exercise powers under Article III that impact upon virtually all citizens, but judges, once nominated and confirmed, serve for life unless impeached through a process that is politically and practically inconvenient to invoke. Although courts have a number of internal checks, such as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.
*2 Amodeo II, 71 F.3d at 1048. Accordingly, “[i]t is not, and should not be, an easy matter to deny the public access to documents that are utilized in judicial proceedings and form part of the basis of judicial decision-making, since the public is ordinarily entitled to review such material in order to understand and evaluate the actions of the courts.” Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 167 n.15 (2d Cir. 2013).
Courts evaluate the common law right of access with a three-step process. The court first determines if the document to be sealed is a “judicial document.” Lugosch, 435 F.3d at 119. “In order to be designated a judicial document, ‘the item filed must be relevant to the performance of the judicial function and useful in the judicial process.’ ” Id. (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (Amodeo I)). Accordingly, “the mere filing of a paper or document with the court is insufficient to render that paper a judicial document.” Amodeo I, 44 F.3d at 145. Similarly, “[d]ocuments that play no role in the performance of Article III functions, such as those passed between the parties in discovery” are not judicial documents. United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (Amodeo II). Documents that seek no relief from the court are also not judicial documents. See, e.g., In re New York City Policing During Summer 2020 Demonstrations, No. 20CIV8924CMGWG, 2022 WL 7886182, at *2 (S.D.N.Y. Oct. 14, 2022).
Conversely, “documents submitted to a court for its consideration in a summary judgment motion are—as a matter of law—judicial documents.” Lugosch, 435 F.3d at 121. “Filings related to Daubert motions are [also] judicial documents subject to a significant presumption of access under the common law and the First Amendment.” In re Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Tech. & Versys Femoral Head Prod. Liab. Litig., No. 18-MC-2859 (PAC), 2021 WL 4706199, at *2 (S.D.N.Y. Oct. 8, 2021) (“Zimmer”); see also Republic of Turkey v. Christie's Inc., 425 F. Supp. 3d 204, 221 (S.D.N.Y. 2019) (collecting cases). Motions for class certification are judicial documents as well. See, e.g., Tropical Sails Corp. v. Yext, Inc., No. 14 CIV. 7582, 2016 WL 1451548, at *3 (S.D.N.Y. Apr. 12, 2016); Mark v. Gawker Media LLC, No. 13-CV-4347 (AJN), 2015 WL 7288641, at *2 (S.D.N.Y. Nov. 16, 2015).
If a court determines that the documents at issue are judicial documents to which the presumption of access applies, then in the second step “it must determine the weight of that presumption.” Lugosch, 435 F.3d at 119. The “presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Amodeo II, 71 F.3d at 1049. This information, and by extension the strength of the presumption “fall[s] somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance.” Id.
Summary judgment motions and papers filed in support of these motions enjoy “a strong presumption of access.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016); see also Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.”) This presumption exists regardless of the role the specific document plays in a court's adjudication of a motion. Brown v. Maxwell, 929 F.3d 41, 48 (2d Cir. 2019) (“We have expressly rejected the proposition that ‘different types of documents might receive different weights of presumption based on the extent to which they were relied upon in resolving a motion for summary judgment.’ ”) (quoting Lugosch, 435 F.3d at 123 (cleaned up)).
*3 A significant presumption of access also exists for filings related to Daubert motions. Zimmer, 2021 WL 4706199, at *2 (“Filings related to Daubert motions are judicial documents subject to a significant presumption of access under the common law and the First Amendment.”). As with motions for summary judgment, this presumption extends to all materials associated with Daubert motions. See, e.g., Sec. & Exch. Comm'n v. Ripple Labs, Inc., No. 20 CIV. 10832 (AT), 2022 WL 17751466, at *3 (S.D.N.Y. Dec. 19, 2022) (noting that supporting “financial documents [which] may assist the Court when resolving the pending Daubert Motions ... are subject to a substantial presumption of public access”); In re Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis With Kinectiv Tech. & Versys Femoral Head Prod. Liab. Litig., No. 18-MC-2859 (PAC), 2021 WL 2258292, at *2 (S.D.N.Y. June 3, 2021) (“Exhibits ... submitted in connection with Plaintiffs' Daubert motion, are judicial documents subject to a significant presumption of public access.”)
However, the presumption of access has only “modest” weight where the document is submitted in connection with discovery motions, motions to compel testimony, and motions to exclude certain deposition testimony. In re New York City Policing During Summer 2020 Demonstrations, 2022 WL 7886182, at *2 (citing Brown, 929 F.3d at 50).
In the third step, “after determining the weight of the presumption of access, the court must ‘balance competing considerations against it.’ ” Lugosch, 435 F.3d at 120 (quoting Amodeo II, 71 F.3d at 1049). Courts have identified several countervailing considerations that may overcome even strong presumptions of public access. The most relevant to this case is the possibility of competitive harm to an enterprise if confidential business information is disclosed. “The need to protect sensitive commercial information from disclosure to competitors seeking an advantage may” be an interest meriting sealing. In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-MC-2542 (VSB), 2014 WL 12772236, at *2 (S.D.N.Y. Nov. 5, 2014); see also Standard Inv. Chartered, Inc. v. Fin. Indus. Regul. Auth., Ind., 347 F. App'x 615, 617 (2d Cir. 2009) (upholding a district court's finding that a business's “interest in protecting confidential business information outweighs [even] the qualified First Amendment presumption of public access”); Rowe v. Google LLC, No. 19 CIV. 8655 (LGS), 2022 WL 4467628, at *2 (S.D.N.Y. Sept. 26, 2022) (“Preventing competitive harm is a countervailing interest that can override the public right of access.”). Thus, courts in this District have permitted the redaction of confidential information such as sales and pricing data on the grounds that its disclosure would work a competitive harm on the disclosing enterprise. See, e.g., In the Matter of the Ex Parte Application of the Upper Brook Companies for an Order Directing Discovery In Aid of a Foreign Proceeding Pursuant to 28 U.S.C. § 1782, No. 22-MC-97 (PKC), 2023 WL 172003, at*6 (“Upper Brook”) (“A presumption of access may be outweighed by a party's interest in ‘protecting confidential business information’ from disclosure that would subject it to ‘financial harm’ or a ‘significant competitive advantage.’ ”) (quoting Standard Inv. Chartered, Inc., 347 F. App'x at 617); W.J. Deutsch & Sons Ltd. v. Diego Zamora, S.A., No. 1:21-CV-11003-LTS, 2022 WL 890184, at *3 (S.D.N.Y. Mar. 25, 2022) (granting a sealing request where “disclosure of this confidential business information would subject [movant] to a competitive disadvantage”); Valassis Commc'ns, Inc. v. News Corp., No. 17-CV-7378 (PKC), 2020 WL 2190708, at *3 (S.D.N.Y. May 5, 2020) (“The demonstration of a valid need to protect the confidentiality of sensitive business information, such as pricing and compensation information, may be a legitimate basis to rebut the public's presumption of access to judicial documents”).
*4 Other courts, however, have been skeptical of sealing information that is commercially sensitive, particularly where it is highly relevant to the dispute and by extension, to the public's understanding of the court's decision. In Ferring Pharmacueticals Inc. v. Serenity Phramauticals, LLC, for example, Judge McMahon refused to permit the redaction of purportedly sensitive commercial information for a wide range of documents. No. 17CIV9922CMSDA, 2020 WL 949423 (S.D.N.Y. Feb. 27, 2020). The collective effect of these redactions would have been to force the court to “mak[e] ‘secret’ findings of fact” and “award secret damages,” id. at *1–2, which Judge McMahon declined to do.
A further countervailing consideration is “the privacy interests of innocent third parties” which “should weigh heavily in a court's balancing equation.” Application of Newsday, Inc., 895 F.2d 74, 79–80 (2d Cir. 1990) (cleaned up). These privacy interests are “a venerable common law exception to the presumption of access.” Amodeo II, 71 F.3d at 1051. However, not all third-party interests have equal weight. As Olson v. Major League Baseball, noted, an entity's “third-party status should be placed in context.” 29 F.4th 59, 91 (2d Cir. 2022). In Olson, for example, the third-party privacy interests of the Yankees were lessened because of the nature of their association with the named defendant, which had the right to investigate the team. Accordingly, while the Yankees had a privacy interest, it was not comparable to that of a third party with no association with a named defendant. Id.
Several factors can diminish the weight of these countervailing considerations. First, if a court is to give weight to a party's asserted harms, those harms must be concretely and specifically described. “[B]road allegations of harm unsubstantiated by specific examples or articulated reasoning fail to satisfy the test.” Coventry Cap. US LLC v. EEA Life Settlements, Inc., No. 17CIV7417VMHBP, 2017 WL 5125544, at *3 (S.D.N.Y. Nov. 2, 2017) (quoting In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009)); see also In re Google Digital Advert. Antitrust Litig., No. 21-CV-6841 (PKC), 2021 WL 4848758, at *3 (S.D.N.Y. Oct. 15, 2021) (declining to seal material where the “harms ... are vaguely described[,] ... rather conclusory ... [and] do not identify privacy interests or concrete harms that outweigh the presumption of public access.”); In re SunEdison, Inc. Sec. Litig., No. 16-CV-7917 (PKC), 2019 WL 126069, at *1 (S.D.N.Y. Jan. 7, 2019) (questioning the appropriateness of sealing where a party “cite[s] generally to ‘commercially sensitive, non-public information’ without explaining why specific documents or information are sensitive or risk harm to any person or entity.”)
Second, the older the information is, the less appropriate it is to seal that information, particularly when the party does not explain with specificity why, despite the passage of time, the information should still be sealed. Compare Upper Brook, 2023 WL 172003, at*6 (S.D.N.Y. Jan. 12, 2023) (denying sealing where movant failed “to show that the information is not ‘stale’ ” or “why disclosure would still cause harm”); In re Parmalat Sec. Litig., 258 F.R.D. at 250–56 (finding a diminished interest in sealing where the relevant documents were seven to fourteen years old and movant failed to explain their continued sensitivity); Dawson v. Merck & Co., No. 112CV1876BMCPK, 2021 WL 242148, at *8 (E.D.N.Y. Jan. 24, 2021) (“Stale business records cannot support the necessary finding of harm”), with City of Providence v. BATS Glob. Markets, Inc., No. 14-CV-2811 (JMF), 2022 WL 539438, at *3 (S.D.N.Y. Feb. 23, 2022) (“Although the document is several years old, the third-party privacy interest of Nasdaq's customer in preventing disclosure of this sensitive information regarding its trading and business strategies is significant.”); Encyclopedia Brown Prods., Ltd. v. Home Box Off., Inc., 26 F. Supp. 2d 606, 614 (S.D.N.Y. 1998) (finding that decade-old information should still be sealed where movant had credibly explained why the information would still create competitive harm).
*5 The older the information contained in documents, the more detailed the supporting material should be submitted to support the sealing of the documents. In Home Box Off., Inc., for example, sealing requests for decade-old information were supported with sworn statements demonstrating that the older agreements were still in force or that the business practices reflected in those agreements were still in effect. Id. at 613. I have specifically drawn the parties' attention to this factor, and asked them to consider sealing requests in the context of “where we currently stand in the case, as opposed to where it stood when the case was initially filed” because “there may be certain things that time has overtaken and they're no longer sensitive, either from the companies' perspective or otherwise.” Transcript of Hearing Held Apr. 5, 2019, 7:4–9.[1]
Third, and finally, the existence of a protective order covering a document is not, in and of itself, sufficient grounds to seal or redact that document. “[T]hat a document was produced in discovery pursuant to a protective order has no bearing on the presumption of access that attaches when it becomes a judicial document.” Doe v. U.S. Immigr. & Customs Enf't, No. 19-CV-8892 (AJN), 2021 WL 3862708, at *3 (S.D.N.Y. Aug. 30, 2021); see also Newsday LLC, 730 F.3d at 166 (“[T]he facts necessary to show good cause for a protective order applicable to discovery documents that are not yet implicated in judicial proceedings will not necessarily meet the higher threshold imposed by the First Amendment with respect to judicial documents.”) This is because “the showing required in connection with a sealing motion is significantly higher than the burden for obtaining a protective order in civil discovery.” Rojas v. Triborough Bridge & Tunnel Auth., No. 18-CV-1433 (PKC), 2022 WL 773309, at *4 (S.D.N.Y. Mar. 14, 2022).
The balancing of this presumption against the countervailing factors determines what findings a court must make to seal a document. Where a common law right of access applies, a court must “make specific, rigorous findings before sealing the document or otherwise denying public access.” Newsday LLC, 730 F.3d at 167 n.15. However, if the weight of the presumption of access is modest, “a court must still articulate specific and substantial reasons for sealing such material,” but “the reasons usually need not be as compelling as those required to seal” judicial documents like “summary judgment filings.” Brown, 929 F.3d at 50.
The First Amendment provides a qualified right of access to court records. There are two approaches for determining if such a right attaches to a particular document. The “ ‘experience and logic’ approach requires the court to consider both whether the documents ‘have historically been open to the press and general public’ and whether ‘public access plays a significant positive role in the functioning of the particular process in question.’ ” Lugosch, 435 F.3d at 120 (Pellegrino, 380 F.3d at 92). “The second approach considers the extent to which the judicial documents are “derived from or [are] a necessary corollary of the capacity to attend the relevant proceedings.” Lugosch, 435 F.3d at 120 (quoting Pellegrino, 380 F.3d at 93). For example, “[t]he transcript of a proceeding is so closely related to the ability to attend the proceeding itself that maintaining secrecy is appropriate only if closing the courtroom was appropriate.” Newsday LLC, 730 F.3d at 165.
Documents submitted to a court as part of a summary judgment motion enjoy a First Amendment right of access, Brown, 929 F.3d at 47, as do motions for class certification, see, e.g., Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC, 2015 WL 7288641, at *2, and Daubert motions, see, e.g., Zimmer, 2021 WL 4706199, at *2; Am. Railcar Indus., Inc. v. Gyansys, Inc., No. 14-CV-8533 (AJN), 2017 WL 11501880, at *1 (S.D.N.Y. May 8, 2017); Republic of Turkey, 425 F. Supp. 3d at 221.
*6 If a First Amendment right of access applies, “documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (cleaned up). “Broad and general findings by the trial court ... are not sufficient to justify closure,” id. (internal quotations omitted), and the Court of Appeals has cautioned courts against making “generalized statements about the record as a whole” to justify sealing decisions, Brown, 929 F.3d at 48. The showing required to seal a document to which a First Amendment right of access attaches is thus more stringent than the showing required under the common law framework. Lugosch, 435 F.3d at 124.
Higher values that may justify sealing even under this standard include “the privacy interests of innocent third parties.”[2] Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987). Courts have also found that in certain circumstances, business data such as pricing information and negotiations may remain under seal even where the First Amendment is implicated. See, e.g., Zimmer, 2021 WL 4706199, at *2.
This latter category, however, is susceptible to abuse if liberally applied. Ferring Pharmacueticals Inc., for example, decried the “abuse of the public filing rule” when parties sought to redact or seal expert analysis, agreement terms, and exhibits that would likely be introduced at trial. 2020 WL 949423, at *1–2. This is particularly true in the case of motions for summary judgment. Joy, for example, reversed the sealing of a report by the special litigation committee of a public company that was submitted in connection with a motion for summary judgment as part of a shareholder derivative action. 692 F.2d at 893. The Court of Appeals rejected the proposition that “derivative actions may be routinely dismissed on the basis of secret documents” because “confidence in the administration of justice would be severely weakened” and “any other rule might well create serious constitutional issues.” Id. at 893. The Joy sealing analysis concluded by noting that “foreclosing public scrutiny of the grounds for this adjudication is wholly unjustifiable.” Id. at 894.
Even when sealing is appropriate under either the common law or First Amendment framework, it must be “narrowly tailored,” meaning that a court should “seal only that information that needs to be sealed in order to preserve higher values.” Signify Holding B.V. v. TP-Link Rsch. Am. Corp., No. 21CV9472JGKKHP, 2022 WL 3704002, at *1 (S.D.N.Y. Aug. 26, 2022). When “some sealing of a judicial document is appropriate, the Second Circuit has directed that the Court should determine whether partial redaction of the private material is ‘a viable remedy,’ or whether the document presents ‘an all or nothing matter.’ ” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, No. 14-CV-6867 (VEC), 2016 WL 1071107, at *4 (S.D.N.Y. Mar. 18, 2016) (quoting Amodeo II, 71 F.3d at 1053).
Finally, while the moving party bears the burden of justifying sealing, the ultimate task of balancing these interests “rests heavily upon the shoulders of the trial judge.” Matter of New York Times Co., 828 F.2d at 116. The court must balance the harms of disclosure not only to the parties but also to non-parties who may not be before the court, see, e.g., id., against protecting the interests of the public and press who, similarly, are frequently not before the court when sealing motions determining their rights of access are determined.
*7 There is temptation, when a district court is faced with a deluge of sealing motions, to effectively outsource sealing determinations to the parties by approving or even pre-approving sealing requests that the parties agree on. This inevitably leads to large portions of the docket being filed under seal. See, e.g., Brown, 929 F.3d at 46 (noting that after “the District Court entered a Sealing Order that effectively ceded control of the sealing process to the parties ... 167 documents—nearly one-fifth of the docket—were filed under seal.”) This, as Brown noted is not acceptable. It is ultimately the district court's responsibility to supervise its records, id. at 51, and make its own findings when a party requests to seal or redact a document. With these principles in mind, I turn to the to the pending sealing requests.
II. Discussion
Currently, there are 37 sealing motions pending. I address 12 of these below based on the standards set out above.
Keurig and TreeHouse Foods, Inc., Bay Valley Foods, LLC, Sturm Foods, Inc. (collective “TreeHouse”) move to redact or otherwise seal certain information in Keurig's memorandum of law to exclude the report and testimony of Dr. Gary French, as well as various supporting exhibits. Both parties seek to redact or completely seal different components of these materials. Specifically, Keurig seeks to completely seal exhibits at Docs. 1410-1, 1410-2, 1410-4, and 1410-6. It seeks partial redactions to its opposition motion at Doc. 1408, and exhibits at Docs. 1410-3, 1410-15, 1410-17, 1410-18, and 1410-19. (Doc. 1405.) TreeHouse seeks partial redactions to Doc. 1408, and to exhibits at 1410-17 and 1410-19. (Doc. 1411.)
Daubert motions are subject to the qualified First Amendment right of access. Zimmer, 2021 WL 4706199, at *2; Gyansys, Inc., 2017 WL 11501880, at *1 (S.D.N.Y. May 8, 2017); Republic of Turkey, 425 F. Supp. 3d at 221. Accordingly, these papers may only be sealed or redacted if movants can offer information that would support “specific, on the record findings” “demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (cleaned up).
Neither Keurig nor TreeHouse have met this burden. Both parties note that this material is subject to a protective order entered at Doc. 496 (the “Protective Order”). (Doc. 1405, at 1–2, Doc. 1411, at 1.) A document, however, cannot be sealed simply because it is subject to a protective order. Newsday LLC, 730 F.3d at 166. The rationales the parties supply beyond this consist of “[b]road and general findings” that “are not sufficient to justify closure.” Lugosch, 435 F.3d at 120 (cleaned up). Keurig asserts only that the various documents contain “commercially sensitive information” such as “margin and pricing data” or “transaction data.” (Doc. 1405, at 1–2.) It does not explain why this information is sensitive or how harm will result if it is disclosed. Similarly, TreeHouse simply states that disclosure will “cause material injury” without explaining how or why that would result. Neither party offers explanations for their proposed sealing on a document-by-document basis, which would be necessary for me to render the specific findings required to meet the stringent First Amendment requirements for sealing or redacting these filings.
The request to seal or redact these materials is therefore denied in its entirety. However, at the parties' discretion, the names, emails, and phone numbers of Keurig employees in Doc. 1410-4 may be redacted.
Keurig moves to redact and/or seal certain information in its memorandum of law opposing class certification for certain plaintiffs as well as exhibits submitted in support of this motion. Specifically, Keurig seeks to completely seal exhibits at Docs. 1418-1, 1418-2, 1418-3, 1418-13, 1418-14, 1418-15, 1418-16, 1418-18, 1418-21, and 1418-25. It seeks partial redactions to its opposition motion at Doc. 1420, and exhibits at Docs. 1418-4, 1418-8, 1418-9, and 1418-11.
*8 The qualified First Amendment right of access applies to documents filed in connection with class certification proceedings. Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC, 2015 WL 7288641, at *2. As with the materials discussed in Section II.A, Keurig has not met the stringent burden required to seal materials to which a First Amendment right of access has attached. For certain items, such as Docs. 1418-11, 1418-18, 1418-21, and 1418-25, it offers no justification beyond the fact that a party has named the document confidential or otherwise protected under the Protective Order; this is insufficient, see Newsday LLC, 730 F.3d at 166. For other items such as Docs. 1418-1, 1418-2, 1418-3, 1418-13, 1418-14, 1418-15, and 1418-16, Keurig simply states in a conclusory manner that the information contained is “commercially sensitive” or otherwise sensitive. It does not explain why these sensitivities implicate the “higher values” necessary to permit sealing when the First Amendment right of access is implicated. Lugosch, 435 F.3d at 120. Accordingly, Keurig has not provided me with information to support the kind of specific findings necessary to justify sealing.
The request to seal or otherwise redact these materials is therefore denied in its entirety. However, at the parties' discretion, the names, emails, and phone numbers of individual employees in Doc. 1418-25 may be redacted.
Plaintiff McLane Company, Inc. (“McLane”) proposes to redact information from a broad array of documents connected to various Daubert motions, class certification motions, and summary judgment motions. McLane requests redactions for three different categories of information: (1) information related to its supply and customer contractual material (Doc. 1746, at 2–4); (2) information related to its proprietary business practices, (id. 4); and (3) personal information of various individuals, (id. 4–5). It has provided appendices setting out the rationale for sealing or redacting each document. Docs. 1778-1–1778-3. Summary judgment and Daubert motions are subject to a First Amendment right of access, so the burden is on McLane to demonstrate that its requests are narrowly tailored to preserve higher values.
1. Supplier and Customer Contractual Information
McLane requests to redact information about business relationships with customers and suppliers. The information it wishes to redact is set out at Docs. 1778-4 through 1778-52, and summarized in Doc. 1778-1. All the proposed redactions are connected to documents submitted in connection with Daubert motions, motions for class certification, or motions for summary judgment.
As a preliminary matter, although McLane has requested sealing pursuant to the three-part balancing test set out in Lugosch, 435 F.3d 110, motions for summary judgment, Brown, 929 F.3d at 47, class certification motions, Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC, 2015 WL 7288641, at *2, and Daubert motions involve the more stringent test associated with the First Amendment right of access, see, e.g., Zimmer, 2021 WL 4706199, at *2, Gyansys, Inc., 2017 WL 11501880, at *1. Sealing commercially sensitive information may still be permissible under this standard, Zimmer, 2021 WL 4706199, at *2, but must be carefully policed for abuse, particularly when it is connected to a motion for summary judgment, see generally Saks Inc. v. Attachmate Corp., No. 14 CIV. 4902 CM, 2015 WL 1841136, at *14–16 (S.D.N.Y. Apr. 17, 2015) (noting with concern the potential for parties to abuse commercial secrets designations and decrying “the worrying trend toward de facto secret litigation.”)
With this in mind, I address McLane's requests in Table 1 below. References to pages and paragraphs refer to a document's pagination and paragraph markers unless otherwise noted. I address each request individually, but the consistent thread of McClane's requested redactions is that it does not want to reveal that it consistently made more than 99 percent of its K-Cup sales to Walmart at a four to six percent mark-up over the price it paid. Indeed, these two facts and minor variations on them account for the bulk of McClane's proposed redactions. Even accepting that this might be confidential information, the point is simply too relevant to this dispute to permit sealing. McClane's Walmart sales and mark-ups are basic facts underlying McClane's arguments against Keurig at numerous points. Similarly, McLane makes repeated efforts to seal information related to how it sold K-Cups with Walmart, a sales relationship that appears to have terminated by 2016. Again, the business details of this relationship are an inextricable part of this case and McClane cannot initiate a lawsuit based on its K-Cup business and then seek to shield almost all of the salient details of this business from the public. As in Joy, it would be “unjustifiable” to prevent the public from fairly scrutinizing the adjudication of this dispute by concealing a key fact about the business dynamics at play in this case. 692 F.2d at 894. Moreover, accepting this would invariably result in the sensitive business exception swallowing the First Amendment Rule.
Table 1: Sealing and Redaction Requests McLane Supplier and Customer Contractual Information
2. Proprietary Business Practices
*9 McLane requests to redact information about proprietary business practices. The information they wish to seal or redact is set out at Docs. 1778-53 to 1778-88 and summarized in Doc. 1778-2. Each of these documents are filed in connection with motions for summary judgment and Doc. 1778-53 also appears in Daubert motions. The First Amendment right of access therefore attaches to these documents. Brown, 929 F.3d at 47.
McClane's request to seal these documents is denied because they have not overcome the burden imposed by the stringent test for sealing or redacting materials under the First Amendment. McClane asserts that the information in the proposed redactions “reference[s] McLane's proprietary business practices and strategies, such as methods for measuring demand, creating forecasts, and placement of orders for its customers.” (Doc. 1746, at 4.) The supporting appendix provides virtually no additional information that would permit me to make the specific findings necessary to justify sealing under the First Amendment test. In most cases, McClane simply asserts that the information in a particular document is “commercially sensitive” without providing additional information. See Doc. 1778-2. These kind of “broad allegations of harm unsubstantiated by specific examples or articulated reasoning fail to satisfy the test” for sealing. Coventry Cap. US LLC, 2017 WL 5125544, at *3 (cleaned up). Docs. 1778-55 and 1778-56 are not even described as commercially sensitive. (Doc. 1778-2, at 1.)
The contrast between this request, and Home Box Off., Inc., which McClane cites, is instructive. 26 F. Supp. 2d at 613. There, “Defendants submit[ed] numerous affidavits attesting to the confidentiality of the information they [sought] to seal.” Id. This included “specific testimony that, for example, the cost and profit structures of the defendants, the volume of subscribership and the strategies employed ... have not significantly changed since 1991” and testimony that key agreements which the defendants wished to seal were “still in force.” Id. at 614. The sworn testimony describing specific harms in detail differentiates Home Box Off., Inc. from McClane's requests.
Nor, based on my review, are any of these documents so facially sensitive that they would merit sealing even on this limited showing. Some of this material is eight or nine years old at this point. McClane does not explain why this apparently stale information is still commercially sensitive. (See, e.g., Docs. 1778-62, 1778-63, 1778-64.) Other material appears highly specific to McClane's old K-Cup business so it is not clear why it would work a broader competitive harm on McClane if disclosed now. (See, e.g., Docs. 1778-64, 1778-68, 1778-72, 1778-75, 178-81.) Some information is so generic that it is not clear why it would work a competitive harm. (See, e.g., Docs. 1778-65, 1778-69, 1778-71.) In the absence of any facially sensitive information, crediting the unsworn and generic assertions of harm made by McClane would permit the sensitive commercial information exception to swallow the First Amendment rule. Accordingly, the requested redactions are denied.
3. Personal Information of Current and Former Employees
*10 McLane requests to redact the phone numbers and email address of various individual employees that appear in exhibits supporting Plaintiffs' motion for summary judgment, Keurig's motion for summary judgment, and oppositions to these motions. This personal information appears at Doc Nos. 1778-89 to 1778-114, and is summarized in Doc. 1778-3.
These requests are granted. I have reviewed the proposed redactions in each of these as they relate to the email addresses and phone numbers of individuals.[4] The privacy of third parties is the type of higher value that justifies sealing even where the First Amendment right of access attaches. Matter of New York Times Co., 828 F.2d at 116. In some cases, however, these redactions cover information that is clearly not private. Doc. 1778-98 seeks to redact corporate website (e.g., “Keurig.com”, “KeurigGreenMountain.com”), which is not appropriate and therefore the request to redact this type of information is denied.
Non-parties AVB Sales and Marketing, LLC (“AVB”), (Doc. 1755), Demitri Chesapeake Sales Specialty Brokerage (“DCS”), (Doc. 1765), and Harold W. Young Partners (“HWY”), (Doc. 1774), request to seal certain documents. These requests are granted to the extent that they relate to employees' personal information but are otherwise denied.
AVB requests to redact several paragraphs of Exhibit 141 of Doc. 1497. Specifically, AVB seeks to redact paragraphs 8, 9, 10, 11, 13, 14, 15, 16, 17, and 18. (Doc. 1763-1.) DCS requests partial redactions covering employee personal information and business suppliers referenced in a 2016 email. (Doc. 1771-1.) HWY requests partial redactions covering employee personal information and business suppliers referenced in a 2012 email. (Doc. 1777-1.) All of these materials have been submitted in connection with motions for summary judgment.
These movants use virtually identical and equally generic language in their requests. In each case they assert that if this information becomes public, customers or business partners referenced “could become prejudiced towards [movant], resulting in lost revenues.” They further assert that this information “may place [movant] at a competitive disadvantage were it to become public.” (Compare Docs. 1755, 1765, 1774.) They provide no additional detail or declarations explaining why prejudice would result or what competitive harm would accrue.
As these materials have been submitted in connection with a motion for summary judgment, they are subject to the more stringent First Amendment standard for sealing. Brown, 929 F.3d at 47. I have already found that the redaction of personal employee information is permissible under this test in connection with McClane's request to seal. See infra Section II.C.3. Redacting the phone numbers and emails of employees is permissible here for the same reasons.
*11 Movants do not otherwise make the showing required to support sealing. The type of “generalized concern of negative reaction” they proffer is not sufficient to overcome the common law presumption of access to documents like complaints. Kim v. BTG Pactual Asset Mgmt. US, LLC, No. 22-CV-3547 (RA), 2022 WL 4115955, at *2 (S.D.N.Y. Sept. 9, 2022); see also Gen. Media, Inc. v. Shooker, No. 97 CIV. 510 (DAB), 1998 WL 401530, at *12 (S.D.N.Y. July 16, 1998) (“The public interest in access to the courts, and the court's own interest in allowing such access, far outweigh [a defendant's] generalized concern of negative reaction on his business dealings.”) If generalized business concerns cannot overcome the common-law presumption of access, then it cannot overcome the stronger First Amendment right.
Additionally, even accepting that AVB may have privacy interests as a third-party, those interests are diminished here. AVB is a broker for products sold by TreeHouse. (Doc. 1763-1, at ¶ 1.) It thus has a business relationship with the TreeHouse plaintiffs and a favorable opinion of TreeHouse and its products, (id. ¶¶ 20–21), and it also believes that Keurig's practices have cost it business, (id. ¶ 1). Thus, although its privacy interests are entitled to consideration, as in Olson, these interests are diminished compared to those of a truly unassociated third-party. 29 F.4th at 91. Accordingly, I do not find that these third-party privacy interests support redaction either.
As for DCS and HWY, they fail to show why the information they request to seal is not stale. DCS and HWY seek to redact emails that are 6 and 10 years old respectively. Although it is possible to show that such information is not so stale as to require disclosure through specific demonstrations of harm, neither movant has provided more than generic assertions. These broad assertions do not meet the stringent First Amendment test for sealing or redaction. Movants may therefore redact employee phone numbers and email addresses that appear in these materials, but nothing else.
JBR, Inc. (“JBR”) requests to seal selected pages of exhibits filed in connection with summary judgment and Daubert motions. Requests to redact or seal materials associated with summary judgment and Daubert motions are subject to the more stringent test associated with the First Amendment right of access.
The basis for JBR's request is that this information involves aggregate sales revenue, sales to specific customers in specific time frames, pricing and discounting at specific times, capitalized costs of manufacturing and marketing, and margins. (Doc. 1789, at 2.) It also notes that this material has been designated as “highly confidential” under the terms of the Protective Order and that the request is narrowly tailored such that it focuses on only these specific categories of information and does not involve the wholesale sealing or redaction of documents. (Id. at 1–2.) The documents JBR wishes to seal and my rulings on these requests are collected in Table 2 below. References to tables, figures, and appendices refer to the relevant item in the document unless otherwise noted.
Table 2: Sealing and Redaction Requests McLane Supplier and Customer Contractual Information
In cases where I have authorized partial redactions to a table, row, and column heading identifiers must remain unredacted. This includes year headings, even if specific information associated with that year may be redacted (e.g., if a table showed sales of $1.00 in 2019, the $1.00 may be redacted, but the “2019” table heading may not.) Where I have partially authorized redactions for a period, information before that period must be disclosed. For example, if redactions for 2016 onwards are granted for a table that also has information from 2012 to 2015, the 2012 to 2015 figures must be disclosed.
*12 TreeHouse requests to seal information submitted in connection with the parties' Daubert and summary judgment motions. (Doc. 1799.) It requests sealing or redacting across three different categories of information: (1) recent pricing, margin, sales, and cost information (id. 3), (2) business strategy, bid, and payment information, (id. 3–4), and (3) personal information of current and former employees, (id. 4–5). It has provided appendices setting out the rationale for sealing or redacting each document. (Docs. 1799-1 to 1799-3.) Summary judgment and Daubert motions are, as noted, subject to a First Amendment right of access, so the burden is on TreeHouse to meet the stringent test for sealing by showing that their sealing requests are narrowly tailored to preserve higher values.
1. Recent Pricing, Margin, Sales, and Cost Information
TreeHouse requests to redact information about its pricing, margins, sales, and costs. It asserts that this is recent, non-public, information that will work a competitive harm on TreeHouse if it is released. (Doc. 1799, at 3.) The redactions it proposes are contained in Docs. 1801-1 through 1801-31, and summarized at Doc. 1799-1. My rulings on these requests are collected below in Table 3. References to exhibits refer to a document's exhibits unless otherwise noted. “ECF pages” refers to the pagination applied by ECF.
Table 3: Sealing and Redaction Requests for TreeHouse Recent Pricing, Margin, Sales, and Cost Information
2. Confidential Strategic Business Information
TreeHouse requests to redact information about business practices that it asserts would work a competitive harm on it if the information was publicly disclosed. (Doc. 1799, at 3–4.) The proposed documents to be sealed or redacted are filed at Docs. 1801-32–1801-69, and summarized at Doc. 1799-2. All of these documents are filed in connection with motions for summary judgment or Daubert motions. My rulings on these requests are collected below in Table 4.
Table 4: Sealing and Redaction Requests for TreeHouse Confidential Strategic Business Information
3. Personal Information of Current and Former Employees
TreeHouse requests to redact personal information of current and former employees such as personal cell phone numbers, as well as addresses of non-party customers. This personal information is identified in proposed redactions in the documents, located at Docs. 1801-70 through 1801-95, and summarized in Doc. 1799-3. These redactions are granted. I have already permitted similar redaction requests by McClane. See Section II.C.3 infra. That analysis applies with equal force to these redactions.
TreeHouse requests to redact certain information associated with their opposition to Keurig's objections under Fed. R. Civ. 72 to Magistrate Judge Sarah L. Cave's April 11, 2022, Order. (Doc. 1822.) That order resolved reciprocal motions for spoliation sanctions precluding evidence and awarding fees that Keurig and Plaintiffs filed against each other based on the failure to preserve various materials for discovery. (Doc. 1806, at 5–6.)
I do not find that a First Amendment right of access attaches to these documents. As Brown notes, although “a court's authority to oversee discovery and control the evidence introduced at trial surely constitutes an exercise of judicial power ... this authority is ancillary to the court's core role in adjudicating a case.” 929 F.3d at 50. Thus, while documents submitted to aid the court in the exercise of this authority are judicial documents to which the common law right attaches, “the presumption of public access in filings submitted in connection with discovery disputes or motions in limine is generally somewhat lower than the presumption applied to material introduced at trial, or in connection with dispositive motions such as motions for dismissal or summary judgment.” Id. For requests to seal such discovery-oriented papers, “a court must still articulate specific and substantial reasons for sealing” but “the reasons usually need not be as compelling as those required to seal summary judgment filings.” Id.
*13 Even under this more modest standard, I find that TreeHouse has not met the necessary burden to permit the redactions it requests. The only justification it offers for sealing in its one-page letter is that the information it wishes to seal has been designated as “Highly Confidential” under the Protective Order. It does not indicate what harm would accrue if this information was disclosed. As noted, the fact that material is covered by the Protective Order does not justify sealing.
Non-party Unilever United States, Inc. (“Unilever”) requests to seal all of the deposition transcript of its Rule 30(b)(6) witness, Theodore Narozny, as well as the Expert Report of David S. Sibley, Ph.D. (Doc. 1788.) These materials were filed as part of summary judgment and Daubert motions and are therefore covered by the First Amendment right of access. Unilever does not provide the kind of specific, particularized information necessary to justify sealing under the stringent First Amendment test nor does it explain with any particularity what harms would accrue to it if these materials were disclosed. In the absence of such information, I cannot make the findings necessary to justify sealing, particularly since Unilever seeks to seal an entire deposition and expert report rather than to redact narrow portions of these materials.
Non-party Community Coffee Company, L.L.C., (“CCC”) requests to seal certain materials submitted in connection with summary judgment and Daubert motions. (Doc. 1759.) The First Amendment presumption of access attaches to the summary judgment and Daubert motion materials CCC wishes to seal. CCC does not explain why the various materials it wishes to seal should not be public beyond generically asserting third party privacy rights and unspecified commercial harms. Indeed, it does not even explain precisely what information it wishes to seal or redact in various documents. Without this information, I cannot make the specific, on-the-record, document-by-document findings necessary to meet the First Amendment test for sealing.
III. Subsequent Proceedings
Having addressed this first tranche of documents, I now turn to the procedure for implementing this Opinion & Order and for proceedings in the rest of this case. There are still 25 sealing motions outstanding, some of which propose additional redactions to documents covered in this Opinion & Order. Filing these documents based on only the redactions covered in this Opinion & Order would be premature and might lead to the disclosure of information that is properly sealed. Accordingly, all parties who have a motion to seal materials either addressed by this Opinion & Order or pending before me shall meet-and-confer and submit a joint letter setting out a proposed plan for reconciling the redactions directed by this and future orders and getting properly redacted materials filed on the public docket.
This joint letter shall also indicate if parties and non-parties with sealing motions believe that expediting the sealing and reconciliation process through mechanisms such as the appointment of a special master to review sealing requests and make recommendations to the court would be beneficial to the resolution of this action. If the parties have recommendations for such a mechanism, they may describe it in this letter.
The parties are understandably eager to move the adjudication of this dispute forward with decisions on their substantive motions. Progress towards that goal will inevitably be slowed if Judge Cave and I are engaged in the kind of line-by-line reviews of thousands of pages of redaction requests required given our obligation to safeguard the public's common law and First Amendment rights of access to court materials. Therefore, I request the parties use this Opinion & Order as guidance for their future applications to seal or redact documents.
*14 Finally, if any party believes that a sealing request that they have made is mooted or no longer merited given the guidance and determinations in this Opinion & Order, they should raise that information as part of this letter. This letter shall be submitted by February 16, 2023.
Judge Cave and I will continue to move the adjudication of this case forward as expeditiously as possible. I expect to address the remaining sealing requests based on the information I receive in the letter I receive from the parties on February 16, 2023. I also plan to resolve two pending objections made under Fed. R. Civ. P. 72, and the class certification request as soon as practicable. Following the resolution of these motions, I will address the parties' Daubert motions, which will be useful when I the pending motions for summary judgment.
IV. Conclusion
Materials in this matter are to be sealed or redacted in compliance with the terms of this Opinion & Order. The parties shall submit the joint status letter directed by this Opinion & Order by February 16, 2023.
SO ORDERED.
Footnotes
Available at ECF No. 577.
Similarly, “as a general rule, there is no constitutional right of access to traditionally nonpublic government information.” N.Y. Times Co. v. Dep't of Justice, 806 F.3d 682, 688 (2d Cir. 2015) (cleaned up).
“Doc.” in each header references the relevant motion.
In certain cases, McClane has including redactions based on multiple grounds in a single request. For example, McLane references the same email chain with the same proposed redactions twice: once to request the redaction of commercially sensitive information, (Doc. 1753-24), and once to request redactions of personal information (Doc. 1753-89). My approval of redactions of personal information does not extend to these other redactions.