Hohenberg v. Ferrero USA, Inc

Filing 57

MOTION to File Documents Under Seal (With attachments)(Fitzgerald, John)(leh).

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1 LAW OFFICES OF RONALD A. MARRON, APLC 2 RONALD A. MARRON (175650) 3 3636 4th Street, Suite 202 San Diego, CA 92103 (619) 696-9066 4 Telephone: Facsimile: (619) 564-6665 5 ron.marron@gmail.com 6 7 THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) MELANIE PERSINGER (275423) 888 Turquoise Street San Diego, CA 92109 Telephone: (858) 488-1672 Facsimile: (480) 247-4553 greg@westonfirm.com jack@westonfirm.com mel@westonfirm.com 8 9 Interim Class Counsel 10 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 12 13 IN RE FERRERO LITIGATION 14 15 16 17 18 CASE NO. 3:11-CV-00205-H-CAB Pleading Type: Class Action Action Filed: February 01, 2011 PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL THE UNREDACTED MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, EXHIBITS 1-4, 10, 1317, 20, 22, 24-26, AND 28-34 TO THE DECLARATION OF GREGORY S. WESTON, AND CONFIDENTIAL PORTIONS OF THIS APPLICATION 19 20 21 Judge: Hon. Marilyn L. Huff Date: October 11, 2011 Time: 10:30 a.m. Location: Courtroom 13 22 23 24 25 26 27 28 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD 2 PLEASE TAKE NOTICE that Plaintiffs hereby apply for an order allowing them to file 3 under seal the unredacted versions of the Memorandum in Support of Plaintiffs‘ Motion for 4 Class Certification and Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26, 5 and 28-34 to the Declaration of Gregory S. Weston, and confidential portions of this Application 6 in accordance with Local Rule 79.2 7 8 BACKGROUND On April 19, 2011, the Court entered a Protective Order (Dkt. 32). The Protective Order 9 permits the parties to designate information as ―Confidential . . . if, in the good faith belief of 10 such party and its counsel, the unrestricted disclosure of such information could be potentially 11 prejudicial to the business or operations of such party.‖ Under the Protective Order, the parties 12 have agreed to apply to file such confidential information under seal. See Protective Order at ¶ 13 12. Because Plaintiffs Memorandum in Support of Plaintiffs‘ Motion for Class Certification and 14 Appointment of Class Counsel and Exhibits 1-5, 9-11, and 13-34 to the Declaration of Gregory 15 S. Weston contained copies and discussions of documents designated by Defendant and third16 party Connie Evers (who was acting under the Protective Order) as confidential, Plaintiffs 17 applied to file these documents under seal on August 1, 2011. (Dkt. No. 52.) 18 On August 3, 2011, the Court denied Plaintiffs‘ application, holding that ―Plaintiffs‘ one- 19 page motion to seal does not identify each exhibit and explain why any particular statements o 20 portions of the exhibits [ ] may warrant sealing.‖ In re Ferrero Litig., 2011 U.S. Dist. LEXIS 21 58238, at *5 (S.D. Cal. Aug. 3, 2011). The Court further explained that, ―[t]o the extent Plaintiffs 22 argue that thee protective order itself assures that Rule 26(c) good cause standard is met in this 23 case, the argument is rejected.‖ Id. Finally, the Court instructed that ―[s]hould either party in the 24 future request the sealing of any documents, they must designate specific portions based on the 25 appropriate showing.‖ Id. 26 27 28 1 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL In response to the Court‘s Order, the parties met and conferred with counsel for both 1 2 Ferrero and Ms. Evers to discuss withdrawing any unnecessary confidentiality designations, 3 limiting redactions where possible, and articulating good cause for why each document, or 4 excerpt thereof, should be filed under seal. As a result of these discussions, Defendant and Ms. 5 Evers agreed to: (1) withdraw its confidentiality designation on Exhibits 5, 9, 11, 18-19, 21, 23, 6 and 27; (2) designate specific portions of Exhibit 2 (Connie Evers‘ Deposition Transcript) as 7 confidential, rather than the entire transcript; (3) limit the redactions of Exhibits 10, 20, 25, 288 29, and 31 to specific excerpts, rather than the entire contents, of each; and (4) reduce the 9 portions of the Memorandum which would need to be redacted. Defendant and Ms. Evers also 10 articulated reasoning for each designation, which Plaintiffs incorporated into this revised 11 Application to File Under Seal the Memorandum in Support of Plaintiffs‘ Motion for Class 12 Certification and Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26, and 2813 34 to the Declaration of Gregory S. Weston, and confidential portions of this Application. 14 15 16 ARGUMENT I. LEGAL STANDARD ―[T]he Supreme Court recognize[s] a federal common law right ‗to inspect and copy 17 public records and documents.‘ This right extends to pretrial documents filed in civil cases . . . 18 .‖Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v. 19 Warner Communications, 435 U.S. 589, 597 (1978)). As such, there is ―a strong presumption in 20 favor of access to court records,‖ id. at 1135 (citation omitted), unless the documents are ―among 21 those which have ‗traditionally been kept secret for important policy reasons,‘‖ id. at 1134 22 (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989)). 23 ―A party seeking to seal a judicial record then bears the burden of overcoming this strong 24 presumption by meeting the compelling reasons standard. That is, the party must articulate 25 compelling reasons supported by specific factual findings, . . . that outweigh the general history 26 of access and the public policies favoring disclosure, such as the public interest in understanding 27 28 2 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 the judicial process.‖ Kamakana v. City & Cnty of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2 2006) (citations and quotation marks omitted). 3 4 5 6 7 8 The common law right of access, however, is not absolute and can be overridden given sufficiently compelling reasons for doing so. In making the determination, courts should consider all relevant factors, including: the public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets. . . . After taking all relevant factors into consideration, the district court must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture. 9 Foltz, 331 F.3d at1135 (citations omitted); see also Kamakana, 447 F.3d at 1179 (―In general, 10 ‗compelling reasons‘ sufficient to outweigh the public‘s interest in disclosure and justify sealing 11 court records exist when such ‗court files might have become a vehicle for improper purposes,‘ 12 such as the use of records to gratify private spite, promote public scandal, circulate libelous 13 statements, or release trade secrets.‖). 14 Moreover, there is an exception to the presumption of access to court records for 15 documents attached to a non-dispositive motion and filed under seal pursuant to a valid 16 protective order. Foltz, 331 F.3d at 1135 (―‗when a party attaches a sealed discovery document to 17 a nondispositive motion, the usual presumption of the public's right of access is rebutted.‘ . . . 18 [T]he presumption of access [is] rebutted because ‗when a court grants a protective order for 19 information produced during discovery, it already has determined that ―good cause‖ exists to 20 protect this information from being disclosed to the public by balancing the needs for discovery 21 against the need for confidentiality.‘‖ (quoting Phillips v. GMC, 307 F.3d 1206, 1213 (9th Cir. 22 2002))). 23 /// 24 /// 25 26 27 28 3 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 II. BECAUSE PLAINTIFFS HAVE SHOWN GOOD CAUSE FOR SEALING 2 THESE 3 APPLICATION TO FILE UNDER SEAL 4 5 A. DOCUMENTS, THE COURT SHOULD GRANT THEIR THE CONTENTS OF NUTELLA The following exhibit and portions of the Memorandum of Points and Authorities in 6 Support of Class Certification (―Memorandum‖) discuss the contents of Nutella: 7  Exhibit 1 8  Memorandum page 1, line 11 9 The contents of Nutella are a trade secret, disclosure of which would allow Ferrero‘s 10 competitors to offer the same product under their label, thus causing substantial harm to 11 Ferrero‘s business. Good cause thus exists for sealing any information relating to the formulation 12 of Nutella. See, e.g., Kamakana, 447 F.3d at 1179 (―[C]ompelling reasons‘ sufficient to outweigh 13 the public‘s interest in disclosure and justify sealing court records exist when such ‗court files 14 might have become a vehicle for improper purposes,‘ such as the . . . release [of] trade secrets.‖ 15 B. 16 17 FERRERO’S COMMERCIALLY SENSITIVE FINANCIAL INFORMATION The following exhibits and portions of the Memorandum discuss Ferrero‘s commercially 18 sensitive financial information: 19  Exhibits 3, 4, 33, and 34 20  Memorandum page 1, lines 21-23. 21  Memorandum page 2, lines 2-8 and graph showing ―Net Sales of Nutella‖ and 22 ―Ferrero‘s Advertising & Promotional Spending.‖ 23  Memorandum page 13, lines 17-20 24  Memorandum page 13, line 13. 25 This information should be filed under seal because such information qualifies as 26 ―confidential commercial information,‖ see Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 27 28 4 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 555, n.4 (C.D. Cal. 2007) (―Fed. R. Civ. P. 26(c)(7) does not limit its reach to ‗trade secrets,‘ but 2 also allows for protection of ‗confidential commercial information.‘ Customer/supplier lists and 3 sales and revenue information qualify as ‗confidential commercial information.‘‖), the public 4 disclosure of which would limit Ferrero‘s ability to compete in the marketplace. 5 6 C. FERRERO’S MARKETING STRATEGY The following exhibits, excerpts thereof, and portions of the Memorandum discuss 7 Ferrero‘s confidential marketing strategies: 8  Exhibits 15-17, 22, 24, and 26 9  Exhibit 10, 10  Exhibit 20, 13  Exhibit 25, the text of the email on CEVERS271 14  Exhibit 28,  Exhibit 29,  Exhibit 31,  Exhibit 2, Connie Evers‘ Deposition Transcript, page 98, line 10 – to page 99, line 11 12 15 16 17 18 19 20 21 22 23 24 25 17  Exhibit 2, Connie Evers‘ Deposition Transcript, page 11, lines 16-35 26 27 28 5 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1  2 3 25  4 5 Exhibit 2, Connie Evers‘ Deposition Transcript, page 154, line 1 – page 167, line Exhibit 2, Connie Evers‘ Deposition Transcript, page 174, line 9 – page 175, line 16  6 Exhibit 2, Connie Evers‘ Deposition Transcript, page 236, line 11 – page 243, line 23 7  Exhibit 2, Connie Evers‘ Deposition Transcript, page 248, lines 17-25 8  Exhibit 2, Connie Evers‘ Deposition Transcript, page 271, line 15 – page 272, line 9 2 10  Exhibit 2, Connie Evers‘ Deposition Transcript, page 272 lines 14-20 11  Exhibit 2, Connie Evers‘ Deposition Transcript, page 273, line 7 – page 274, line 12 16 13  Exhibit 2, Connie Evers‘ Deposition Transcript, page 275, lines 7-25 14  Exhibit 2, Connie Evers‘ Deposition Transcript, page 277, line 15 – page 278, line 15 5 16  Exhibit 2, Connie Evers‘ Deposition Transcript, page 281, lines 3-19 17  Exhibit 2, Connie Evers‘ Deposition Transcript, page 292, lines 11-25 18  Exhibit 2, Connie Evers‘ Deposition Transcript, page 293, line 2 – page 294, line 19 20 21 1  Exhibit 2, Connie Evers‘ Deposition Transcript, page 305, lines 1-11  Exhibit 2, Connie Evers‘ Deposition Transcript, page 319, line 23 – page 320, line 22 8 23  Exhibit 2, Connie Evers‘ Deposition Transcript, page 325, line 10 – page 326, line 24 25 25 26 27 28  Exhibit 2, Connie Evers‘ Deposition Transcript, page 337, lines 21-22  Exhibit 2, Connie Evers‘ Deposition Transcript, page 366, lines 7-19 6 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1  Memorandum, page 4, lines 23-26 2  Memorandum, page 5, line 28 – page 6, line 18 3  Memorandum, page 6, lines 25-27 4  Memorandum, page 7, lines 10-11 5  Memorandum, page 8, line 20 – page 9, line 8 6  Memorandum, page 9, footnote 6 7  Memorandum, page 10, lines 4-7 8  Memorandum, page 11, lines 5-7 9  Memorandum, page 13, lines 17-20 10  Memorandum, page 13, line 23 11  Memorandum, page 22, lines 14-15 12 Ferrero‘s marketing strategy should be filed under seal because public disclosure of this 13 information would harm Defendant‘s ability to compete in the marketplace. Disclosure would 14 15 16 17 18 19 20 21 allow Ferrero‘s competitors to learn the details of and imitate its effective marketing strategies, which cost Ferrero millions of dollars to develop and implement. Thus, Ferrero‘s competitors would be saved the costs of researching and developing a marketing strategy of their own, thereby putting Ferrero at a substantial financial and competitive disadvantage. For example, allowing the public to access to Exhibit 16 would save competitors the time and costs associated with finding opinion leaders to endorse their advertising campaigns since they could simply contact those already identified by Defendant. Giving competitors access to opinion leaders which Defendant may have contacted regarding their Nutella advertising 22 campaign also gives Defendant‘s competitors the implied information of who may have turned 23 down Defendant‘s offer, and thus might be willing to engage in a campaign directly aimed at 24 disparaging Defendant or its advertising campaign. 25 26 27 28 7 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 2 D. CONNIE EVERS’ CONTRACT WITH FERRERO The following exhibits and portions of the Memorandum contain the Spokesperson 3 Agreement between Connie Evers and Defendant, as well as discussions about the contents and 4 surrounding negotiations of said agreement: 5  Exhibits 13, 14, 15, 30, and 32 6  Exhibit 2, Connie Evers‘ Deposition Transcript: page 98, line 1 – page 99, line 17 7  Exhibit 2, Connie Evers‘ Deposition Transcript, page 100, lines 16-25 8  Exhibit 2, Connie Evers‘ Deposition Transcript, page 154, lines 1-15 9  Exhibit 2, Connie Evers‘ Deposition Transcript, page 292, lines 2-25 10  Exhibit 2, Connie Evers‘ Deposition Transcript, page 293, line 2 – page 294, line 11 1 12  Exhibit 2, Connie Evers‘ Deposition Transcript, page 305, lines 1-11 13  Memorandum page 4, lines 24-26 14  Memorandum page 5, line 27- page 6, line 6 15  Memorandum Page 10, lines 4-7 16 17 18 19 20 21 22 Connie Evers‘ Spokesperson Agreement and surrounding negotiations, including discussions thereof, should be filed under seal because this information is confidential commercial information, the disclosure of which would prejudicially affect Ms. Evers‘ freedom to contract with other companies. If the terms of Ms. Evers‘ agreement with Ferrero, or the surrounding negotiations, become public, her ability to contract for more beneficial or different terms will be severely limited and her business is likely to suffer as a result. CONCLUSION 23 For the reasons discussed above, the Court should grant Plaintiffs‘ Application to File 24 Under Seal the Memorandum in Support of Plaintiffs‘ Motion for Class Certification and 25 26 Appointment of Class Counsel, Exhibits 1-4, 10, 13-17, 20, 22, 24-26, and 28-34 to the Declaration of Gregory S. Weston, and confidential portions of this Application. Plaintiffs will 27 28 8 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 also electronically file public versions of their Application and Memorandum with confidential 2 information and exhibits redacted. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL 1 Dated: August 15, 2011 Respectfully Submitted, 2 /s/Gregory S. Weston Gregory S. Weston 3 4 5 6 7 8 9 10 11 12 THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD MELANIE PERSINGER 888 Turquoise Street San Diego, CA 92109 Telephone: 858 488 1672 Facsimile: 480 247 4553 LAW OFFICES OF RONALD MARRON, APLC RONALD A. MARRON 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: 619 696 9066 Facsimile: 619 564 6665 13 14 Interim Class Counsel 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB PLAINTIFFS‘ APPLICATION TO FILE UNDER SEAL A.