Amato v. Subaru of Am., Inc.
Amato v. Subaru of Am., Inc.
2024 WL 4025042 (D.N.J. 2024)
January 17, 2024
Donio, Ann Marie, United States Magistrate Judge
Summary
Plaintiffs filed a motion to seal three expert reports containing confidential information, including deposition testimony and data from JD Power, in response to a previous motion to compel filed by Defendants regarding the use of electronic data from the National Automobile Dealers Association (NADA) by Plaintiffs' expert. The Court granted the motion to seal and ordered the exhibits to be filed under seal on the docket.
JOSEPH AMATO, et al., individually and on behalf of all others similarly situated, Plaintiffs,
v.
SUBARU OF AMERICA, INC. and SUBARU CORPORATION, Defendants.
RICARDO AQUINO, et al., individually and on behalf of all others similarly situated, Plaintiffs,
v.
SUBARU OF AMERICA, INC. and SUBARU CORPORATION, Defendants
v.
SUBARU OF AMERICA, INC. and SUBARU CORPORATION, Defendants.
RICARDO AQUINO, et al., individually and on behalf of all others similarly situated, Plaintiffs,
v.
SUBARU OF AMERICA, INC. and SUBARU CORPORATION, Defendants
Civil No. 18-16118 (JHR/AMD), Civil No. 22-990 (JHR/AMD)
United States District Court, D. New Jersey
Filed January 17, 2024
Counsel
Gary S. Graifman, Kantrowitz, Goldhamer & Graifman, PC, Montvale, NJ, for Plaintiffs, Joseph Amato, James B. Moore, George Sandoval, Ian Connolly, Andrew Hinshaw, Stephen Tresco.Neal D. Walters, Casey Gene Watkins, Kristen A. Petagna, Ballard Spahr LLP, Mount Laurel, NJ, for Defendants, Subaru of America, Inc., Subaru Corporation.
Donio, Ann Marie, United States Magistrate Judge
ORDER TO SEAL
[D.I. 159]
[D.I. 59]
*1 This motion to seal pursuant to Local Civil Rule 5.3 arises out of a motion to compel previously filed by Defendants, Subaru of America, Inc. and Subaru Corporation, concerning electronic data used by Plaintiffs’ expert in formulating expert reports in this matter. In connection with the prior motion to compel, Plaintiffs filed the expert reports that utilized the data at issue, including the Expert Report of D.C. Sharp, Ph.D. dated March 1, 2022, attached as Exhibit 1 to the Declaration of Gary S. Graifman, Esq. in Opposition to Defendants’ Motion to Compel (hereinafter, the “Graifman Declaration”) [D.I. 147-1 in Civil No. 18-16118], the Expert Rebuttal Report of D.C. Sharp, Ph.D dated June 24, 2022, attached as Exhibit 2 to the Graifman Declaration, and the Expert Report of Mark Gustafson, dated May 9, 2022, attached as Exhibit 6 to the Graifman Declaration.[1] The Court has considered the submissions of Plaintiffs, no opposition having been filed, and decides this matter pursuant to Federal Rule of Civil Procedure 78(b). For the reasons that follow and for good cause shown, Plaintiffs’ motion to seal is granted.
By way of background, the issue presented in the prior discovery motion was whether Plaintiffs’ expert could utilize for purposes of this litigation data that he obtained from the National Automobile Dealers Association (hereinafter, “NADA”) pursuant to an online license he purchased from the owner of the data, JD Power. Amato Subaru of Am., Inc. v. Subaru of Am., Inc., No. 22-990, 2023 WL 7085095, at *1 (D.N.J. Sept. 27, 2023). Defendants argued in the motion to compel “that the NADA data cannot be utilized by Dr. Sharp or Defendants’ expert, Mark Gustafson, because neither expert purportedly has the appropriate license from [JD Power] granting authorization to use the data for purposes of this litigation.” Id. In opposition to the motion, Plaintiffs submitted the expert reports at issue. Plaintiffs did not, however, file the exhibits on the docket, nor did they file a corresponding motion to seal, and the Court therefore directed the parties to file a motion to seal pursuant to Local Civil Rule 5.3(c). Id. at *6.
In accordance with the Court's directive, Plaintiffs have now filed the instant motion to seal. Plaintiffs assert that their initial expert report “relies on, and/or analyzes materials obtained in discovery that are designated Confidential pursuant to the Confidentiality Order entered in this action[,]” including the deposition testimony of plaintiff George Sandoval and Defendants’ Rule 30(b)(6) witness. (Index Pursuant to L. Civ. R. 5.3(c)(3) [D.I. 147-2 in Civil No. 18-16118, D.I. 59-2 in Civil No. 22-990], p. 1.) Further, Plaintiffs contend that their expert report “contains extensive analysis derived from J.D. Power Values Online ... pricing data, which Defendants and JD Power assert is confidential, proprietary and subject to JD Power's licensing agreement.” (Id. at pp. 1-2.) Similarly, Plaintiffs represent that their expert's rebuttal report “contains additional analysis of NADA used car pricing data, which Defendants and JD Power allege to be proprietary and subject to JD Power's licensing agreement and applicable copyright law.” (Id. at p. 2.) With respect to Defendants’ expert report, Plaintiffs assert that such report “contains analysis of NADA used car pricing data, and the actual NADA raw data which Defendants and JD Power allege to be proprietary and subject to JD Power's licensing agreement and applicable copyright law” and also contains documents that have been designated as Confidential in discovery. (Id. at p. 3.) Plaintiffs state that “this non-public material discloses information pertaining to commercially sensitive information that could harm Defendants’ or third-party JD Power's business advantage if publicly disclosed.” (Id. at p. 1.) Plaintiffs also note Defendants’ position in the prior motion to compel that public disclosure of the NADA data could subject the parties, their attorneys, and their experts to liability to JD Power for breach of JD Power's licensing agreement and/or copyright law. (Id.) Plaintiffs note that that Defendants do not oppose the request to seal these documents. (Id.)
*2 Local Civil Rule 5.3 governs a litigant's request to seal documents filed with the Court. L. Civ. R. 5.3(c)(3). Under the Local Rule, a party seeking to seal documents or otherwise restrict public access must demonstrate: “(a) the nature of the materials or proceedings at issue; (b) the legitimate private or public interest which warrants the relief sought; (c) the clearly defined and serious injury that would result if the relief sought is not granted; (d) why a less restrictive alternative to the relief sought is not available; (e) any prior order sealing the same materials in the pending action; and (f) the identity of any party or nonparty known to be objecting to the sealing request.” L. Civ. R. 5.3(c)(3).
The Court recognizes that “the public's common law right of access to judicial proceedings and records ... ‘is beyond dispute.’ ” Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d Cir. 1988)(quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984)). “[W]here a party moves to seal pretrial motions of a ‘nondiscovery nature,’ the moving party must make a showing sufficient to overcome a ‘presumptive right of public access.’ ” Securimetrics, Inc. v. Iridian Tech., Inc., No. 03-4394, 2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006) (quoting Leucadia v. Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993)). Where, however, a party seeks to seal documents filed in connection with discovery motions, there is no such presumptive right to public access. Id. (citing Leucadia, 998 F.2d at 165).
Here, as discussed above, the documents at issue are three expert reports submitted in opposition to a motion to compel. As these materials were filed in connection with a discovery dispute, the presumptive right of public access does not attach to these documents. The Court also notes that in deciding the motion to compel, it permitted Plaintiffs to obtain a revised expert report using new data, and Defendants will also be obtaining a new expert report. See Amato, 2023 WL 7085095, at *4, 6 (“Defendants already intended to obtain a new expert report” and Court provided “Plaintiffs an opportunity to revise their expert report using different data and ... Defendants a corresponding opportunity to respond to Plaintiffs’ revised report”). Consequently, the reports in the form attached to Plaintiffs’ opposition papers may not be utilized in resolving these cases on the merits. The Court thus finds that the public interest factor does not weigh against granting Plaintiffs’ motion to seal. In considering the private interest factor, Plaintiffs represent that these reports contain or are based upon information that has been designated as “Confidential” by the Parties and is subject to the Confidentiality Order entered in this case or are otherwise confidential. (See Decl. of Gary S. Graifman, Esq. [D.I. 159-1 in Civil No. 18-16118, D.I. 59-1 in Civil No. 22-990], Nov. 8, 2023, p. 2, ¶ 3.) The parties’ interest in maintaining the confidentiality of such information supports the motion to seal particularly given that the reports, in the form submitted to the Court, are being revised and will not be used in the resolution of this case on the merits. As to the injury prong, the Court previously declined to decide whether use of the NADA data in this litigation “is contrary to” JD Power's rights, and the Court likewise will not decide herein that public dissemination of the reports will subject the parties to liability to JD Power and therefore finds the injury prong neutral as to sealing. Although Plaintiffs contend that no less restrictive alternative is available, Plaintiffs could file a redacted version of the expert reports, wherein those portions of the reports that do not refer to or utilize the NADA data are unredacted, which weighs against the motion to seal. Finally, the Court notes Plaintiffs’ representations that there are no prior orders sealing this material and that no party or non-party is known to be objecting to this request, both of which support Plaintiffs’ request to seal.
*3 Balancing the factors under Local Civil Rule 5.3(c), the Court finds that Plaintiffs met their burden of demonstrating that Exhibits 1, 2, and 6 to the Graifman Declaration should be sealed and that on balance the factors as set forth above support sealing. The motion to seal will therefore be granted.[2]
CONSEQUENTLY, for the reasons set forth above and for good cause shown:
IT IS on this 17th day of January 2024,
ORDERED that Plaintiffs’ motion [D.I. 159 in Civil No. 18-16118, D.I. 59 in Civil No. 22-990] to seal shall be, and is hereby, GRANTED; and it is further
ORDERED that by no later than February 2, 2024, Plaintiffs shall file a motion to seal the Graifman Declaration [D.I. 147-1 in Civil No. 18-16118] or advise the Court that the declaration, exclusive of exhibits, may be unsealed; and it is further
ORDERED that by no later than February 2, 2024, Plaintiffs shall file Exhibits 1, 2, and 6 of the Graifman Declaration on the docket, which shall be filed under seal pursuant to this Order.
Footnotes
The Graifman Declaration itself is also filed under seal. Plaintiffs’ motion does not address sealing of the Graifman Declaration. If Plaintiffs seek to seal the Graifman Declaration, they must file a motion to seal this document by February 2, 2024 or file a letter indicating that the Declaration, exclusive of exhibits, may be unsealed.
In so finding, the Court notes that Exhibits 1, 2 and 6 to the Graifman Declaration are not filed on the docket and hard copies were sent to Chambers only. Plaintiffs shall file these exhibits on the docket under seal pursuant to this Order.