*1 On May 1, 2024, the Court ordered the parties to file their summary judgment-related briefs under seal provisionally, and within 10 days propose appropriate redacted versions of those briefs which shall be available to the public. ECF 264.[1] Defendants’ Motion for Summary Judgment and Memorandum in Support was filed under seal on May 3, 2024. ECF 279. The parties then submitted to the Special Master the redacted version of the Defendants’ Motion and Memorandum. On May 11, the Special Master recommended that the Court Approve the parties’ proposed redactions to the Motion and Memorandum (ECF 281), which the Court adopted (ECF 283), and the Defendants filed the redacted Motion for Summary Judgment on May 23. ECF 284.

As part of the Recommendation and the Court's Order (ECF 281 & 283), the Court Ordered that the exhibits submitted in support of the Motion were to remain sealed while the parties worked with the Special Master to determine the best method to protect the sensitive information contained in those exhibits. ECF 283, PageID #14859. The parties submitted their Joint Submission on sealing and/or redacting the exhibits to the Special Master on Friday, May 24. (Contemporaneously filed herewith as Exhibit A.)

I have reviewed the parties’ Joint Submission, as well as the declarations, reports, and transcripts contemplated therein, and make these findings and recommendations.

As previously recognized by this Court (ECF 164 PageID #4926-4928), in Shane Group Inc. v. Blue Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016), the Sixth Circuit directed district courts, when sealing material on the public docket, independently to assess and set forth specific findings regarding whether nondisclosure of certain information is warranted. In doing so, the Sixth Circuit distinguished between discovery, which is typically governed by a protective order, and adjudicatory information or documents, which are entered into the court record and are presumptively open to the public. By their nature, adjudicatory records typically concern the issues in dispute and draw a strong public interest about “whether a right does or does not exist, or a statute is or is not constitutional” or sometimes about “the conduct giving rise to the case.” Shane Grp., 825 F.3d at 305. In each instance, “the public has an interest in ascertaining what evidence and records” a court relies on in reaching its decision. Id.

A district court's decision to seal adjudicatory court records is reviewed for an abuse of discretion. Klingenberg v. Federal Home Loan Mortg. Co., 658 F. App'x 202, 207 (6th Cir. 2016) (citing Shane Grp., 825 F.3d at 306). But in the sealing context, “the district court's decision is not accorded the deference that standard normally brings.” Id. To exercise its discretion properly, district courts must “set forth specific findings and conclusions ‘which justify nondisclosure to the public.’ ” Shane Grp., 825 F.3d at 306 (quoting Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176 (6th Cir. 1983)).

*2 This independent obligation exists regardless of any agreement or disagreement among the parties about sealing the records at issue. See Rudd Equip. Co v. John Deere Constr. & Forestry Co., 834 F.3d 589, 595 (6th Cir. 2016). District courts must weigh, on the one hand, the parties’ interest in keeping information confidential, and on the other, the public's strong interest in “obtaining the information contained in the court record.” Shane Grp., 825 F.3d at 305 (citation and quotation omitted). “The courts have long recognized ... ‘a strong presumption in favor of openness’ to court records.” Id. (quoting Brown & Williamson, 701 F.2d at 1179).

Overcoming this burden is “a heavy one: ‘Only the most compelling reasons can justify non-disclosure of judicial records.’ ” Id. (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). The greater the public interest, the greater the burden to justify sealing. See id. In civil litigation, the most common categories of information that overcome this burden include “trade secrets, information covered by a recognized privilege (such as attorney-client privilege), and information required by statute to remain in confidence (such as the name of a minor victim of a sexual assault).” Id. at 308.

Plaintiffs request that the Court seal all the materials submitted in support of Defendant's Motion for Summary Judgment, including depositions, declarations, and exhibits, or in the alternative, permit redactions of confidential customer, private business activities, and financial information. (ECF 265-278). (Joint Submission at 6.) Defendants agree that the deposition transcripts and expert reports should be sealed as non-adjudicatory discovery materials (or in the alternative, redacted), but acknowledge that the declarations submitted in support of their Motion are adjudicatory, and propose sealing some exhibits to those declarations due to their confidential nature (the McCracken Settlement Agreement, Liberty Sales Reports, and Deal Term Sheets). (Joint Submission at 14-15.)

The Court has previously considered whether to seal certain deposition transcripts and exhibits. Before addressing its obligations under Shane Group, the Court considered the prefatory question of whether those materials were adjudicatory. ECF 164, PageID #4927-4929. In that context (considering the materials supported in a Report and Recommendation), the Court determined that “only the Report and Recommendation itself and the materials it references are adjudicatory.” Id. PageID #4929. Those materials not impacting the Court's disposition of the pending motions were found not to be adjudicatory, and merely “discovery materials that are not normally public.” Id.

Today, we consider whether to seal from the public view not a Report and Recommendation, but materials cited by a party in support of its dispositive motion. So here, to determine whether the materials may be adjudicatory, we look instead to whether the materials are relied on by a party as evidence in support of their Motion. The results are a bit of a mixed bag.

A. Deposition Transcripts

First, the deposition transcripts are overwhelmingly non-adjudicatory “discovery materials that are not normally public.” ECF 164 PageID #4929. Where they do contain adjudicatory passages – which they clearly do – those passages typically contain confidential material, especially pricing and customer information, which should be treated confidential pursuant to Shane Group. See, e.g., ECF 284 PageID #14875, 14877, 14891 (citations to Kaufman Deposition); PageID #14875-7, 14892 (citing Vilcheck Dep.); PageID #14876-77, 14891 (citing Flinner Dep.); PageID #14877, 14892, 14893); PageID #14877, 14879, 14891, 14892 (citing Lent Dep.); PageID #14879 (citing Stark Dep.); PageID #14879, 14880 FN; 14891 (citing Ranelli Dep); PageID #14891, 14893 (citing Myer Dep.). Moreover, whereas the parties have a great interest in keeping their sensitive and private business information confidential, here there is little, if any, public interest in that information. To unseal the transcripts for the purpose of revealing non-adjudicatory information with the occasional adjudicatory-but-redacted passage, would be an elevation of form over substance, not worthy of the exercise. I recommend that the deposition transcripts (ECF 265, 266, 267, 28, 269, 270, 271 & 272) remain sealed.

B. Expert Reports

*3 Next, on a number of instances in their Motion for Summary Judgment, Defendants cite to expert reports exchanged between the parties, and often discussed in the experts’ depositions. See, e.g., ECF 284 at 9, 30 (citing ECF 269-1 Boffo 2021 Report), at 9, 11, 32, 39 (citing ECF 269-2 Boffo 2023 Report), at 21 (citing ECF 269-3 Boffo 2024 Report), at 10 (citing 271-1 Ford Report).[2] Plaintiffs argue that these Reports are discovery materials and inadmissible hearsay (Joint Submission at 7), and Defendants appear to agree (id. at 15). This is fine as far as it goes, but it does not address the very specific citations to the expert reports that found their way into Defendants’ brief and based on which, it could be argued, they are adjudicatory.

However, a review of the citations to those reports allows for the possibility that, when cited by Defendants, the reports are not typically offered for the truth of the matter asserted but rather are offered to show the basis for the experts’ reports, often in a manner intended to undermine or impeach the expert's testimony. See id. The parties have not yet addressed this possibility, and this report and recommendation (which is only considering whether the reports should be sealed) is not the appropriate place to begin ruling on evidentiary issues that are best reserved for consideration when deciding the dispositive motion itself, or at trial. In the meantime, I do find that the parties’ interest in maintaining the reports – replete with references to customer and pricing information one or the other party claims as trade secrets – exceeds the limited interest the public may have in the same. I recommend that the expert reports (269-1 to 269-3, ECF 270-1, ECF 271-1, ECF 272-1) remain sealed.

C. Declarations & Exhibits Thereto

In support of their Motion, Defendants offer a number of declarations from witnesses, sometimes to authenticate other materials, and sometimes to provide substantive testimony upon which Defendants rely. See ECF 273, 274, 275, 276, 277, & 278. These declarations, offered as evidence to support Defendants’ Motion, are adjudicatory as they concern the issues in dispute and draw a strong public interest about “the conduct giving rise to the case.” Shane Grp., 825 F.3d at 305. Nonetheless, some of the information in these adjudicatory documents (and attached thereto) is undoubtedly business information about customers and pricing that is of a confidential nature, in which the parties’ interest in privacy is great and which outweighs the public need. Accordingly, some of the materials should be sealed or redacted. I will sort through these individually.

First, the parties and I agree that the following declarations and exhibits need not be sealed:

Next, the parties and I agree that the following documents should be sealed:

Finally, there are a number of declarations and exhibits which the Defendants do not view as trade secrets (and so they do not request sealing) but they also do not oppose Plaintiff's request to seal or redact:

*6 Accordingly, with regard to sealing and/or redacting the materials submitted in support of the Defendants’ Motion for Summary Judgment, I recommend the following:

As always, I remain available to the Court and to the parties to address any questions or issues that may arise.