Hohenberg v. Ferrero USA, Inc
MOTION to File Documents Under Seal (With attachments)(Fitzgerald, John) Modified on 10/21/2011 atty contacted re: proposed orders not e-filed(leh).
1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 email@example.com 3 JACK FITZGERALD (257370) firstname.lastname@example.org 4 MELANIE PERSINGER (275432) email@example.com 5 COURTLAND CREEKMORE (182018) firstname.lastname@example.org 6 1405 Morena Blvd., Suite 201 7 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 8 9 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) email@example.com 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9066 Facsimile: (619) 564-6665 Interim Class Counsel 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 IN RE FERRERO LITIGATION Case No.. 3:11-cv-00205-H-CAB Pleading Type: Class Action Action Filed: February 01, 2011 15 16 17 18 19 20 21 22 PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL THE UNREDACTED VERSION OF PLAINTIFFS’ REPLY IN SUPPORT OF CLASS CERTIFICATION, THE UNREDACTED VERISON OF THE DECLARATION OF MELANIE PERSINGER IN SUPPORT OF CLASS CERTIFICATION, AND UNREDACTED PORTIONS OF EXHIBITS 1-2 ATTACHED THERETO Judge: Hon. Marilyn L. Huff Date: November 7, 2011 Time: 10:30 a.m. Location: Courtroom 13 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 under seal 3 the unredacted versions of Plaintiffs’ Reply in Support of Class Certification, the Declaration of Melanie 4 Persinger and Exhibits 1-2 attached thereto in accordance with Local Rule 79.2. 5 BACKGROUND 6 On April 19, 2011, the Court entered a Protective Order (Dkt. 32). The Protective Order permits the 7 parties to designate information as “Confidential . . . if, in the good faith belief of such party and its counsel, 8 the unrestricted disclosure of such information could be potentially prejudicial to the business or operations 9 of such party.” Under the Protective Order, the parties have agreed to apply to file such confidential 10 information under seal. See Protective Order at ¶ 12. Because Plaintiffs’ Reply in Support of Plaintiffs’ 11 Motion for Class, the Declaration of Melanie Persinger and Exhibits 1-2 attached thereto contain copies and 12 discussions of documents designated by Defendant and third-party Connie Evers (who was acting under the 13 Protective Order) as confidential, Plaintiffs hereby apply to file these documents under seal. Additionally, 14 Plaintiffs offer the following explanation as to “why any particular statement or portions of the exhibits [ ] 15 may warrant sealing.” In re Ferrero Litig., 2011 U.S. Dist. LEXIS 85238, at *5 (S.D. Cal. Aug. 3, 2011). 16 ARGUMENT 17 I. 18 LEGAL STANDARD “[T]he Supreme Court recognize[s] a federal common law right ‘to inspect and copy public records and 19 documents.’ This right extends to pretrial documents filed in civil cases . . . .”Foltz v. State Farm Mut. Auto. 20 Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003) (quoting Nixon v. Warner Communications, 435 U.S. 589, 597 21 (1978)). As such, there is “a strong presumption in favor of access to court records,” id. at 1135 (citation 22 omitted), unless the documents are “among those which have ‘traditionally been kept secret for important 23 policy reasons,’” id. at 1134 (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 24 1989)). 25 “A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption 26 by meeting the compelling reasons standard. That is, the party must articulate compelling reasons supported 27 by specific factual findings, . . . that outweigh the general history of access and the public policies favoring 28 1 In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL 1 disclosure, such as the public interest in understanding the judicial process.” Kamakana v. City & Cnty of 2 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations and quotation marks omitted). 3 4 5 6 7 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. 8 Foltz, 331 F.3d at1135 (citations omitted); see also Kamakana, 447 F.3d at 1179 (“In general, ‘compelling 9 reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist when 10 such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to gratify 11 private spite, promote public scandal, circulate libelous statements, or release trade secrets.”). 12 Moreover, there is an exception to the presumption of access to court records for documents attached 13 to a non-dispositive motion and filed under seal pursuant to a valid protective order. Foltz, 331 F.3d at 1135 14 (“‘when a party attaches a sealed discovery document to a nondispositive motion, the usual presumption of 15 the public's right of access is rebutted.’ . . . [T]he presumption of access [is] rebutted because ‘when a court 16 grants a protective order for information produced during discovery, it already has determined that “good 17 cause” exists to protect this information from being disclosed to the public by balancing the needs for 18 discovery against the need for confidentiality.’” (quoting Phillips v. GMC, 307 F.3d 1206, 1213 (9th Cir. 19 2002))). 20 II. BECAUSE PLAINTIFFS HAVE SHOWN GOOD CAUSE FOR SEALING THESE 21 DOCUMENTS, THE COURT SHOULD GRANT THEIR APPLICATION TO FILE UNDER 22 SEAL 23 A. 24 The following portion of Exhibit 2 to the Declaration of Melanie Persinger discusses the formulation The Formulation Of Nutella 25 of Nutella: 26 • 27 The contents of Nutella are a trade secret, disclosure of which would allow Ferrero’s competitors to 28 Persinger Decl., Ex. 2, Kreilmann Dep. Tr. 81:5-83:13: Discussing the formulation of Nutella. 2 In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL 1 offer the same product under their label, thus causing substantial harm to Ferrero’s business. Good cause 2 thus exists for sealing any information relating to the formulation of Nutella. See, e.g., Kamakana, 447 F.3d 3 at 1179 (“[C]ompelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing 4 court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as the . . 5 . release [of] trade secrets.”). 6 B. 7 The following exhibit and portions of Plaintiffs’ Reply and the Declaration of Melanie Persinger Ferrero’s Marketing Strategy 8 discuss Ferrero’s confidential marketing strategies: 9 • 10 Persinger Decl. ¶ 4: showing and discussing content from Evers Dep. Tr., 163:7-12, and 248:23-249:6. 11 • Persinger Decl., Ex. 1, Evers Dep. Tr. 162:1-165:25, 163:7-12, and 248:23-149:6. 12 • Reply page 8, line 5 and lines 7-8: discussing information derived from the Kreilmann 13 declaration (¶ 20), which Ferrero requested, and the Court subsequently ordered, be filed 14 under seal. See Dkt. Nos. 73, 78. 15 Ferrero’s marketing strategy should be filed under seal because public disclosure of this information 16 would harm Defendant’s ability to compete in the marketplace. Disclosure would allow Ferrero’s 17 competitors to learn the details of and imitate its effective marketing strategies, which cost Ferrero millions 18 of dollars to develop and implement. Thus, Ferrero’s competitors would be saved the costs of researching 19 and developing a marketing strategy of their own, thereby putting Ferrero at a substantial financial and 20 competitive disadvantage. 21 CONCLUSION 22 For the reasons discussed above, the Court should grant Plaintiffs’ Application to File Under Seal the 23 Reply in Support of Plaintiffs’ Motion for Class Certification, the Declaration of Melanie Persinger and 24 Exhibits 1-2 attached thereto. Plaintiffs will also electronically file public versions of their Reply and the 25 Declaration of Melanie Persinger with confidential information and exhibits redacted. 26 27 28 3 In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL 1 Dated: October 21, 2011 Respectfully submitted, 2 /s/ Jack Fitzgerald 3 THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD MELANIE PERSINGER COURTLAND CREEKMORE 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 4 5 6 7 8 9 10 11 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9066 Facsimile: (619) 564-6665 12 13 Interim Class Counsel 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 In re Ferrero Litigation, Case No. 3:11-cv-00205-H-CAB PLAINTIFFS’ APPLICATION TO FILE UNDER SEAL