I. INTRODUCTION

*1 Before the Court is a motion challenging Plaintiff Orgain, Inc.’s (“Orgain”) confidentiality designations on certain documents filed by Defendants Northern Innovations Holding Corp., Lakeside Innovations Holding Corp., Iovate Health Sciences International Inc., Iovate Health Sciences U.S.A. Inc., and Kerr Investment Holding Corp. (collectively “Defendants”). Having reviewed the pleadings, the relevant legal authority, and the record in this case, the Court GRANTS Defendants’ motion to remove the confidentiality designations except for the customers’ personal identifying information.

II. BACKGROUND

On November 15, 2018, the parties stipulated to a protective order that allows either party to unilaterally designate documents as “CONFIDENTIAL” OR “CONFIDENTIAL-ATTORNEYS EYES ONLY.” (Dkt. No. 47, Stipulated Protective Order § VIII.B.2.) A party may use either designation when the “material constitutes or discloses extremely sensitive CONFIDENTIAL Information, the disclosure of which would be especially detrimental or harmful to the producing party if disclosed beyond the limited class of permitted recipients[.]” (Id.) Pursuant to the Protective Order, Orgain designated three sets of documents as “CONFIDENTIAL-ATTORNEYS EYES ONLY.”

As explained in the Joint Stipulation and confirmed by the Court's review, the first set of documents comprises various email exchanges between Orgain and its customers regarding concerns and questions about certain Orgain products. (Dkt. No. 220-4, Ex. 5, at 3-198.)[1] The second set of documents comprises emails between Dr. Andrew Abraham, the founder and majority owner of Orgain, and his family members regarding questions posted to Amazon's website. (See id. at 200-209.) The third set of documents comprises internal emails between Orgain employees—Dr. Abraham, Todd Dieudonne, and Jessica Nguyen—discussing how to respond to customer concerns and feedback.[2] (See id. at 211-285.)

After Orgain designated and produced these documents as “CONFIDENTIAL-ATTORNEY EYES ONLY,” Defendants emailed Orgain asserting that the designation was improper. (Dkt. No. 221-1, Ex. 1, at 11-13.) Orgain responded contending the designation was proper because they contained “extremely sensitive confidential information,” including “information otherwise generally unavailable to the public,” “commercial information (including information implicated privacy rights of third parties),” and “information regarding confidential business practices[.]” (Id. at 9-10.) Orgain nevertheless offered to change its designation from “CONFIDENTIAL-ATTORNEY EYES ONLY” to “CONFIDENTIAL,” (id.), and did so on May 17, 2021, (Dkt. No. 221-2, First Declaration of Kurtis Hendricks ¶ 2.) After another unsuccessful meet-and-confer, the parties filed this Joint Stipulation in which Defendants move to remove the “CONFIDENTIAL” designations on all the documents. (Dkt. No. 221, Unredacted Joint Stipulation (“J. Stip.”).)

A. Standard of Review

*2 Generally, “the public is permitted ‘access to litigation documents and information produced during discovery.’ ” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002)). The Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The party seeking protection bears the “burden of establishing that there is good cause to continue the protection of the discovery material.” In re Roman Catholic Archbishop, 661 F.3d at 424.

The good-cause inquiry is a three-step process. See id. at 424. First, the Court must determine whether “particularized harm will result from disclosure of information to the public.” Id. (quoting Phillips, 307 F.3d at 1211). It is not enough to assert “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning[.]’ ” Id. (quoting Beckman Indus., Inc. v. Int'l. Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). Rather, the protecting party must “allege specific prejudice or harm.” Id. (citing Beckman Industries, Inc., 966 F.2d at 476). Second, if harm will result from disclosure, then the Court must balance “the public and private interests to decide whether [maintaining] a protective order is necessary.” Id. (quoting Philips, 307 F.3d at 1211). Third, if protection is warranted, the Court must still “consider whether redacting portions of the discovery material will nevertheless allow disclosure.” Id. at 425.

B. Orgain Fails to Show Good Cause to Maintain the Confidentiality Designations.

As noted above, Orgain must first show particularized harm will occur from public disclosure of the emails between Orgain and its customers. Orgain argues particularized harm will occur in three ways. First, Orgain contends these documents “could potentially cause embarrassment to Orgain, loss of sales, and problems in the relationship between Orgain and Amazon.” (J. Stip. at 23:12-13.) Orgain relies on Defendants’ alleged admission that the disclosure of these emails “would be ‘embarrassing to Orgain and could presumably cause a loss of sales and problems in the relationship between Orgain and Amazon.’ ” (J. Stip. at 20:4-7 (quoting id. at 30:1-3).) Orgain also relies on a declaration from Orgain's counsel, Kurtis Hendricks, in which he attests that “Orgain will be harmed if this information is made public to Orgain's competitors, vendors or customers.” (Dkt. No. 222, Second Declaration of Kurtis Hendricks (“Second Hendricks Decl.”) ¶ 6.)

Second, Orgain argues disclosure will be harmful to its customers because these emails contain sensitive customer information, including their names, addresses, phone numbers, emails, and information about the products they purchased. (See also Second Hendricks Decl. ¶ 3 (“Specifically, the information comprises confidential, personally identifiable information of customers and individuals that have corresponded with Orgain (‘Personally Identifiable Information’), which should be protected from public disclosure.”).) On a related point, Orgain also argues that it will be harmed if its competitors “could contact Orgain's customers for commercial gain and gain knowledge of complaints not presently public.” (J. Stip. at 17:15-17.)

Third, Orgain asserts this information contains sensitive issues regarding problems with its products and sensitive business information. Hendricks, Orgain's counsel, attests this information constitutes confidential business practices for “handling customer complaints and customer communications, including with reference to product reviews on Amazon.com.” (Second Hendricks Decl. ¶ 6.) Although Orgain does not explain why disclosure of this information would cause harm in its portion of the Joint Stipulation, Hendricks attests that “Orgain will be harmed if this information is made public to Orgain's competitors, vendors, or customers.” (Id. ¶¶ 5-6.)

*3 The Court finds Orgain has not carried its burden to show particularized harm will occur from the disclosure of these emails. To begin, Orgain offers insufficient evidence to show disclosure will cause embarrassment, loss of sales, or cause problems with its relationship with Amazon. Orgain's reliance on Defendants’ statement in the Joint Stipulation is misplaced. That statement is unsubstantiated, unattested, and wholly speculative in nature. (J. Stip. at 30:1-3 (“[W]hile such communications are potentially embarrassing to Orgain and could presumably cause a loss of sales and problems in the relationship between Orgain and Amazon”)) (emphasis added). Most notably, Defendants’ conditional language like “potentially” and “presumably” falls short of showing “particularized harm will result from disclosure of information to the public.” In re Roman Catholic Archbishop, 661 F.3d at 424 (emphasis added); see also Qualcomm Inc. v. Apple Inc., No. 18-mc-80134-PJH, 2021 WL 879817, at *4 (N.D. Cal. Mar. 9, 2021) (finding conditional language insufficient to show harm will occur from disclosure).

The only proffered evidence Orgain relies upon is Hendrick's attestation that “Orgain will be harmed if this information is made public to Orgain's competitors, vendors or customers.” (Second Hendricks Decl. ¶ 6.) This statement lacks personal knowledge, lacks foundation, is conclusory, and is insufficient to show “particularized harm.” See also Sampson v. City of El Centro, No. 14cv1807-L (DHB), 2015 WL 11658713, at *8 (S.D. Cal. Aug. 31, 2015) (“[g]eneral allegations of injury to reputation or embarrassment that may result from dissemination of privileged documents is insufficient to justify judicial endorsement of an umbrella confidentiality agreement”) (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3d. Cir. 1995)).

However, the Court finds Orgain offers adequate evidence to show its customers will be harmed if their personal identifying information is disclosed to the public. Hendricks attests that “the information comprises confidential, personally identifiable information of customers and individuals that have corresponded with Orgain (“Personally Identifiable Information”), which should be protected from public disclosure.” (Second Hendricks Decl. ¶ 3.) Nevertheless, the Court agrees with Defendants that any harm to Orgain's customers can be easily mitigated by redacting this information, a point that Orgain offers no argument to the contrary. (See J. Stip. at 16 n.7); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003) (“[s]imply redacting the identifying information of third parties (e.g., their names, addresses, telephone numbers, and social security numbers) from these records and disclosing the remaining information would not injure the third parties”); Todd v. Tempur-Seal Int'l., Inc., No. 13-cv-04984-JST (MEJ), 2015 WL 1006534, at *5 (N.D. Cal. Mar. 6, 2015) (“Further, even if the emails contain any information identifying specific customers, Defendant may redact it.”). Merely because the documents contain personally identifying customer information does not justify, however, blanket protection of the underlying substance. The Court finds that redaction of the customers’ contact information will ameliorate Orgain's unsupported assertion that it would be harmed if its competitors could contact its customers to discuss complaints about its products not presently public.

Finally, the Court finds Orgain offers insufficient evidence to show it will be harmed if its competitors learn about how it handles customer complaints. Orgain offers nothing more than Hendricks's conclusory assertion that “Orgain will be harmed if this information is made public to Orgain's competitors, vendors or customers.” (Second Hendricks Decl. ¶ 5.) Nor is it clear to the Court that Orgain's handling of its customers’ concerns and feedback is particularly unique such that dissemination of this information would give its competitors an advantage.

*4 Accordingly, the Court concludes Orgain fails to show good cause to maintain the confidentiality designations on the emails between Orgain and its customers except for the customers’ personal identifying information. Because no particularized harm has been established, the Court need not balance the privacy and public interests.

The next issue is whether good cause exists to maintain the confidentiality designations over the emails between Orgain and family members to Orgain employees, beginning with the particularized-harm inquiry. Orgain solely argues it will suffer harm because it “would be ‘embarrassing to Orgain and could presumably cause a loss of sales and problems in the relationship between Orgain and Amazon.’ ” (J. Stip. at 27:15-16 (quoting id. at 30:1-3).) Orgain again solely relies on Defendants’ unsubstantiated, unattested, and speculative statement in the Joint Stipulation. As discussed above, this is not evidence the Court can properly consider in assessing whether Orgain will suffer particularized harm from disclosure. To the extent Orgain relies on Hendricks's declaration, it suffers from the same defects noted as noted above.

Accordingly, because Orgain has not shown it will suffer particularized harm from the disclosure of the second set of documents, the Court concludes Orgain fails to show good cause to maintain the confidentiality designation over the second set of emails. Because no particularized harm has been established, the Court need not balance the privacy and public interests.

The last issue is whether good cause exists to maintain the confidentiality designations over Orgain's internal emails. Once more, Orgain argues it will suffer harm because it “could be ‘embarrassing to Orgain and could presumably cause a loss of sales and problems in the relationship between Orgain and Amazon.’ ” (J. Stip. at 30:26-28-31:1 (quoting id. at 30:1-3).) As discussed above, the Court finds Orgain's reliance on this statement unavailing. Orgain further argues, in conclusory fashion, that it “will be harmed if this information is made public,” (J. Stip. at 31:14-15), because the communications between Orgain employees involve information of a highly sensitive nature seeing as they relate to complaints about problems with Orgain's products. Apart from Orgain's conclusory argument, it neither offers evidence nor explains why disclosure of these complaints about its products will cause it harm.

Accordingly, the Court finds Orgain has not carried its burden to show it will suffer particularized harm from disclosure of these internal emails. Because no particularized harm has been established, the Court need not balance the privacy and public interests.

C. The Court Denies Defendants’ Motion for Monetary Sanctions.

Defendants move for monetary sanctions against Orgain for having to file this motion. Defendants argue sanctions are justified because Orgain failed to carefully designate documents, it refused to remove the designation despite knowing they were improper, and Defendants had to unnecessarily highlight these issues for Orgain. Orgain, on the other hand, contends it was substantially justified in designating these documents as confidential, and sanctions should not be imposed. Orgain further notes that it attempted to compromise by reducing the designation from “CONFIDENTIAL-ATTORNEYS EYES ONLY” to “CONFIDENTIAL.”

*5 Under Federal Rule of Civil Procedure 37(a)(5)(A), the Court must award reasonable expenses to the moving party if it was successful in bringing a motion. The Court shall not do so, however, when the nonmoving party's conduct was “substantially justified.” Fed. R. Civ. P. 37(a)(5)(A)(ii). Here, although Defendants ultimately prevail, the Court finds Orgain was “substantially justified” in designating these documents as confidential. Under these circumstances, the Court concludes an award of reasonable expenses or sanctions is not warranted. Accordingly, Defendants’ request for reasonable expenses is DENIED.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion to remove the confidential designations on the three sets of documents, except for the customers’ personal identifying information, which may be redacted. The Court DENIES Defendants’ motion for reasonable expenses.

IT IS SO ORDERED.