Stiles v. Wal-Mart Stores Inc, et al
Filing
543
ORDER signed by Chief District Judge Kimberly J. Mueller on 3/31/2021 DENYING 501 520 526 530 537 Requests to Seal and DIRECTING the parties to publicly file unredacted copies of all exhibits and briefs attached to or associated with 4 the pending motions for summary judgment, oppositions, and replies within 7 days. (Coll, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
Sharidan Stiles, et al.,
12
Plaintiffs,
13
14
No. 2:14-cv-2234-KJM-DMC
ORDER
v.
Wal-Mart Stores, Inc., et al.,
15
Defendants.
16
17
Walmart Inc. and American International Industries have both moved for partial summary
18
judgment. Both also ask to file several documents related to those motions under seal. See Am.
19
Req. Seal, ECF No. 474; Walmart Req. Seal, ECF No. 501; Walmart Resp., ECF No. 532; Am.
20
Resp., ECF No. 533; Am. Req. Seal, ECF No. 537. As the court advised the parties during a
21
hearing on March 30, 2021, and as fully explained in this order, these requests are denied.
22
I.
23
LEGAL STANDARD
“[T]he courts of this country recognize a general right to inspect and copy public records
24
and documents, including judicial records and documents.” Nixon v. Warner Commc’ns,
25
435 U.S. 589, 597 (1978) (footnote omitted). Although that right is not absolute, “‘a strong
26
presumption in favor of access’ is the starting point.” Kamakana v. City and County of Honolulu,
27
447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
28
1122, 1135 (9th Cir. 2003)). This presumption “is ‘based on the need for federal courts, although
1
1
independent—indeed, particularly because they are independent—to have a measure of
2
accountability and for the public to have confidence in the administration of justice.’” Ctr. for
3
Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v.
4
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).
5
When, as here, documents are filed with motions “more than tangentially related to the
6
merits of a case,” id. at 1101, such as a motion for summary judgment, Kamakana, 447 F.3d at
7
1179, a party who asks to keep them secret “must meet the high threshold of showing that
8
‘compelling reasons’” support that request, id. at 1180 (quoting Foltz, 331 F.3d at 1136). This
9
standard applies even if the documents have previously been filed under seal or are covered by a
10
generalized protective order, including a discovery-phase protective order. See Foltz,
11
331 F.3d at 1136. To decide whether the party requesting a seal has carried its burden, the court
12
balances the requesting party’s reasons for secrecy with the public’s interests in disclosure. See
13
Kamakana, 447 F.3d at 1179. The interest in secrecy generally outweighs the public’s interest
14
only if a document will “become a vehicle for improper purposes,” such as the gratification of
15
“private spite,” the promotion of “public scandal,” the reiteration of “libelous statements,” or the
16
revelation of “information that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at
17
598 (citations and quotation marks omitted). If a court decides to grant a request to seal, it must
18
explain its reasons and may not rely on “hypothesis or conjecture.” Kamakana, 447 F.3d at 1179
19
(quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)).
20
This court, as others, has found that “corporate parties in complex litigation generally
21
prefer to litigate in secret.” Takeda Pharm. U.S.A., Inc. v. Mylan Pharm., Inc., No. 19-2216,
22
2019 WL 6910264, at *1 (D. Del. Dec. 19, 2019). Requests to seal are “frequently overbroad,”
23
especially in patent litigation; district courts must resolve “burdensome motions to seal on a
24
regular basis.” Uniloc 2017 LLC v. Apple Inc., No. 18-00360, 2019 WL 2009318, at *2 n.2 (N.D.
25
Cal. May 7, 2019), aff’d in relevant part, 964 F.3d 1351 (Fed. Cir. 2020); see also, e.g., Cardiac
26
Pacemakers, Inc. v. St. Jude Med., Inc., No. 96-1718, 2007 WL 141923, at *2 (S.D. Ind. Jan. 16,
27
2007) (“[A]ll too frequently this Court finds itself reviewing overbroad and unsupported requests
28
/////
2
1
to file documents under seal.”). Resolving requests to seal is all the more difficult when, as is
2
usually the case, no one opposes those requests. See Takeda, 2019 WL 6910264, at *1.
3
In light of the strong presumption in favor of access to court records, and given the
4
frequency and overbreadth of many motions to seal, federal courts deny motions to seal that
5
merely cite “a general category of privilege.” See Kamakana, 447 F.3d at 1184. A party who
6
wishes to keep its documents secret must point out a “specific linkage” between its interests in
7
secrecy and those documents. See id. “[C]onclusory offerings do not rise to the level of
8
‘compelling reasons’ sufficiently specific to bar the public access to the documents.” Id. at 1182.
9
If a party does not “articulate with any specificity how disclosure” would cause it harm, its
10
request to seal must be denied. Tevra Brands LLC v. Bayer HealthCare LLC, No. 19-04312,
11
2020 WL 1245352, at *3 (N.D. Cal. Mar. 16, 2020).
12
II.
13
14
DISCUSSION
Here, American and Walmart have each asked to keep several documents secret. Neither
party carries its burden.
15
A.
American
16
American asks to seal five documents attached to its motion for summary judgment,
17
eighteen documents attached to Stiles’s opposition to its motion, and two documents attached to
18
its reply. See Am. Notice, ECF No. 474 (citing exhibits 33, 63, 64, and 65 to its motion and
19
excerpts of Stiles’s deposition transcripts); Am. Resp. at 2, ECF No. 533 (citing exhibits 2, 3, 4,
20
5, 6, 7, 8, 9, 10, 11, and 19 to the declaration of Joseph Alioto in support of Stiles’s opposition to
21
American’s motion for summary judgment and exhibits 6, 7, 8, 9, 10, 11, and 12 to Josephine
22
Alioto’s declaration in support of Stiles’s opposition to Walmart’s motion for summary
23
judgment); Am. Notice, ECF No. 537 (citing the declaration of Zachary Page and exhibit 67 to its
24
reply).
25
The court previously denied American’s request to seal the documents attached to its
26
motion without prejudice to a renewed request that better explained the interests motivating its
27
filing. See Order (June 15, 2020), ECF No. 478. American has not renewed its request. The
28
/////
3
1
court concludes that it has waived its request to seal exhibits attached to its motion for summary
2
judgment, as American’s counsel in fact effectively confirmed at hearing.
3
4
As for the eighteen documents attached to Stiles’s opposition briefs, American offers one
short paragraph, referring to itself as “AI”:
5
6
7
8
9
10
These Exhibits consist of internal documents, emails and attachments thereto
between then-employees at AI regarding AI’s strategy for the marketing and sale of
its products at Walmart, including details regarding plans and strategy for the
introduction of new products, product development plans and confidential pricing,
cost and product financial performance information not generally available to the
public.
11
Resp. at 2, ECF No. 533. It contends this information is “trade secret or other confidential
12
research, development, or commercial information” described in Rule 26(c)(1)(G) because it is
13
“detailed financial information” with “competitive value” and would reveal “marketing
14
strategies,” “unused prototypes,” and other similar information. See id. at 2–3 (quoting In re
15
Hydroxycut Mktg. & Sales Practices Litig., No. 09-2087, 2011 WL 3759632, at *1 (S.D. Cal.
16
Aug. 25, 2011), and Bauer Bros. LLC v. Nike, Inc., No. 09-0500, 2012 WL 1899838, at *2 (S.D.
17
Cal. May 24, 2012)).
18
Rule 26(c)(1) does not provide the rule of decision here. That rule offers an avenue to
19
litigants who need protection from “annoyance, embarrassment, oppression, undue burden or
20
expense” caused by an opponent’s discovery requests. Fed. R. Civ. P. 26(c)(1). It provides the
21
“good cause” standard. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). As
22
this court explained when it denied American’s previous request to file under seal, discovery
23
protective orders are judged against a different standard than requests to withhold evidence
24
attached to a dispositive motion. See Order (June 15, 2020) at 2, ECF No. 748 (citing Foltz,
25
331 F.3d at 1135, 1136). American must prove more than just “good cause”—it must show a
26
compelling interest in secrecy.
27
This is not to say that American has no interest in protecting its sensitive commercial
28
information. Detailed data about profits, costs, and margins, for example, might give an opponent
29
an advantage in contract negotiations. See Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214,
30
1225 (Fed. Cir. 2013). A sophisticated competitor might also find a way to use the disclosure of
4
1
previously secret contract terms to its advantage. See In re Elec. Arts, 298 F. App’x 568, 569
2
(2008) (unpublished). A competitor could even divert business to itself if it learns from a court
3
filing what prices to charge or what terms to demand. See Obesity Rsch. Inst., LLC v. Fiber Rsch.
4
Int'l, LLC, No. 15-595, 2018 WL 3642177, at *5 (S.D. Cal. Aug. 1, 2018).
5
But “generalized assertions of potential competitive harm” are not enough to carry the
6
“compelling reasons” burden. Uniloc, 2019 WL 2009318, at *1. Here, American has not carried
7
that burden. It does not explain how the exhibits reveal its “plans and strategy.” Nor does it
8
specify which prices are “confidential.” It also does not explain what it means by “product
9
financial performance information,” let alone why the public disclosure of that information would
10
be damaging. See Resp. at 2, ECF No. 533. The court will not comb these files and attempt a
11
guess at what American’s concerns might be. Not only would that exercise relieve American of
12
its burden; it would amount to improper “conjecture.” Kamakana, 447 F.3d at 1179 (quoting
13
Hagestad, 49 F.3d at 1434). American’s request to seal documents attached to Stiles’s opposition
14
is denied.
15
American also asks to seal two documents cited in its reply. The first is a declaration that
16
summarizes materials Stiles marked as “confidential” during discovery. See Not. at 2, ECF
17
No. 537 (citing the declaration of Zachary Page). It is a summary table of inventory numbers,
18
shipment dates, quantities, revenues, and similar information for shipments completed about
19
fifteen years ago. Neither American nor Stiles explains why the disclosure of this information
20
would harm their commercial interests. The second document is a fifteen-year-old email chain
21
about a razor prototype. American contends the email reveals its “plans and strategy for the
22
introduction of new products and product development plans” that are “not generally available to
23
the public.” Req. Seal at 2, ECF No. 537. It does not explain why emails about a product in
24
development fifteen years ago could harm its commercial interests today. The court cannot agree
25
American’s interest in secrecy is compelling. The request to file the reply declaration and email
26
chain under seal is denied.
27
/////
5
1
B.
Walmart
2
Walmart asks to seal more than a hundred documents filed with its motion for summary
3
judgment. See generally Walmart Req., ECF No. 501. Its request lists two different sets of
4
documents. Compare Walmart Req. Seal at 5, ECF No. 501 (listing exhibits 2, 6, 7, 9, 14, 15, 17,
5
21–26, 28–30, 32, 72, 89, 100–13, 115–17, 119, 121–85, 187–96, 235–36, and 246 to the
6
Merryman Declaration) with id. at 6 (listing exhibits 21–26, 28–30, 32, 72, 89, 100–13, 115–17,
7
119, 121–96, 202–03, 235–36, and 246). The court assumes Walmart intends to request that
8
documents listed in either or both sets be filed under seal. Walmart also asks to seal sixteen
9
documents filed with Stiles’s opposition, although several of these documents are identical to
10
those attached to Walmart’s own filing. See Walmart Resp. at 4–6, ECF No. 532. Finally,
11
Walmart proposes to file redacted versions of thirty-three of the documents on its lists. See Req.
12
at 7, ECF No. 501 (identifying “redacted versions of Exhibits 28, 32, 110, 112, 115, 121, 128-
13
132, 134, 138, 139, 143, 144, 147, 150, 161, 163, 166, 167, 169, 172, 174, 183, 184, 185, 188,
14
190, 194, 196, and 202”).
15
Seven of the documents on Walmart’s lists were produced or created by others. The court
16
considers these first, starting with three documents produced by its co-defendant, American. See
17
Walmart Req. Seal at 5, ECF No. 501 (citing Merryman Decl. Exs. 2, 6, and 7). Walmart cross-
18
references American’s request to seal these documents to explain its own request; it offers no
19
independent analysis of its own. See id. Because American’s request to seal these documents is
20
denied, Walmart’s request to seal them is also denied. The four remaining documents were
21
produced by CVS Pharmacy, Inc., KISS Products Inc., and Onyx brands, LLC. See id. at 5–6
22
(citing Merryman Decl. Exs. 9, 14, 15, and 17). These companies claim the documents contain
23
nonpublic sales data and assert that their disclosure might give unnamed competitors unspecified
24
competitive advantages. See generally Bowe Decl., ECF No. 457-10; Makous Decl., ECF No.
25
466-1; Findlay Decl., ECF No. 467-1. Most of this sales data is many years old. See, e.g.,
26
Merryman Decl. Ex. 9 (sales data from 2013). Neither Walmart nor these third parties have
27
explained why each of these documents would cause harm if they were revealed. The supporting
28
declarations offer only generalized assertions of potential harm, which do not suffice. See
6
1
Kamakana, 447 F.3d at 1184 (“Simply mentioning a general category of privilege, without any
2
further elaboration or any specific linkage with the documents, does not satisfy the burden.”).
3
The request to seal these documents is denied.
4
Walmart’s own documents make up the bulk of its request. It does not argue that
5
disclosing these documents publicly would serve to gratify some private spite, create a scandal, or
6
republish libel. See Nixon, 435 U.S. at 598. Its reasons for maintaining secrecy fall into three
7
categories that could arguably be described as “trade secrets.” See Clark v. Bunker, 453 F.2d
8
1006, 1009 (9th Cir. 1972). First, it argues disclosure would reveal its strategies for negotiations
9
with suppliers. See Walmart Req. Seal at 6, ECF No. 501 (citing Bell Northern Research, LLC v.
10
Coolpad Technologies, Inc., No. 18-1783, 2020 WL 353630 (S.D. Cal. Jan. 21, 2020)). Second,
11
Walmart argues the documents include “detailed financial information,” Walmart Req. Seal at 6–
12
7, relying primarily on In re Hydroxycut Marketing & Sales Practices Litigation, No. 2087, 2011
13
U.S. Dist. LEXIS 25977, at *31 (S.D. Cal. Mar. 11, 2011). Third, Walmart argues the documents
14
reveal its “marketing strategies” and “the information [it] uses to make appropriate marketing
15
decisions,” Walmart Req. Seal at 7, relying primarily on Bauer Brothers Limited Liability Co. v.
16
Nike, Inc., No. 09-0500, 2012 U.S. Dist. LEXIS 72862 (S.D. Cal. May 24, 2012). In short,
17
Walmart argues third parties could use information in its documents to gain an unfair advantage
18
in negotiations or to replicate its business strategy.
19
These reasons might prove compelling if tied to particular information in particular
20
documents, as discussed above. See Apple, 727 F.3d at 1225; In re Electronic Arts, 298 F. App’x
21
at 569; Obesity Rsch. Inst., 2018 WL 3642177 at *5. But Walmart does not provide the specific,
22
factual explanations that would be necessary to understand its requests. It instead asserts in
23
general terms that disclosure would endanger its interests. See generally Vakil Decl., ECF
24
No. 501-1. Walmart’s explanations are so generic that it has used the same language for almost
25
every document it asks to seal. For example, the first document Walmart asks to seal is an email
26
exchange with attachments. See id. ¶ 2. It claims the email and attachments reveal “detailed
27
information regarding Walmart’s relationships with suppliers and such suppliers’ sales and
28
product information.” Id. But it does not explain what “detailed information” is potentially
7
1
harmful, why, and who would use that information. The email and its attachment are also several
2
pages long, so divining the omitted explanation from the context is no simple task, if it is possible
3
at all. Walmart then makes an identical claim of harm—the same claim, word for word—about
4
dozens of other documents: contracts, emails, letters, spreadsheets, worksheets, the report of an
5
expert witness, and more. See id. ¶¶ 3–12, 14, 16–43, 45–48, 50–102, 103–11.
6
This repeated phrase is only one example of the generic explanations Walmart offers for
7
many documents. See, e.g., id. ¶¶ 2–72, 74–85, 87–111 (“The information and data contained in
8
this Exhibit inform and reveal Walmart’s negotiation strategy with suppliers, product placement,
9
and product addition and deletion decisions.”); id. ¶¶ 2, 11, 13, 20, 26, 30, 34, 36–38, 44, 45, 47,
10
57, 58, 65, 67– 69, 76, 79, 81–83, 86, 87, 89– 93, 95, 96, 99, 101–03, 106–10 (“Were this Exhibit
11
to be filed publicly, business competitors and other suppliers could use this private financial
12
information to gain a competitive or bargaining advantage over Walmart.”). Walmart’s request to
13
seal documents attached to Stiles’s opposition uses the same generic explanations. See, e.g.,
14
Vakil Decl. ¶¶ 2–12, ECF No. 532-2 (“Were this Exhibit to be filed publicly, business
15
competitors and suppliers could use” “the information,” “the information regarding Walmart’s
16
contracts with third-party suppliers,” or “this private financial information” “to gain a competitive
17
or bargaining advantage over Walmart.”). Its request is denied.
18
III.
19
CONCLUSION
This is not the first time the court has considered Walmart’s and American’s requests to
20
seal these documents. The court denied American’s original request to seal, but permitted
21
American to renew its motion with more developed explanations for the need for secrecy. See
22
Order (June 15, 2020), ECF No. 478. The court also declined to rule on a previous request to seal
23
by Walmart, see ECF No. 463, advising that any renewed request would be denied if not “made
24
with the particularity required by case law and the applicable rules,” Minute Order, ECF No. 487.
25
Despite that guidance, Walmart and American have not supported their requests to seal with the
26
detail that would be necessary to understand and assess their needs for secrecy. They have
27
offered more pages, but not “compelling reasons supported by specific factual findings.”
28
Kamakana, 447 F.3d at 1178 (quoting Foltz, 331 F.3d at 1135).
8
1
The requests to file under seal, ECF Nos. 501, 520, 526, 530, and 537 are denied. Given
2
that the parties indicated their acceptance of the court’s order at hearing, the parties are now
3
directed to publicly file unredacted copies of all exhibits and briefs attached to or associated with
4
the pending motions for summary judgment, oppositions, and replies within seven days.
5
6
7
IT IS SO ORDERED.
DATED: March 31, 2021.
8
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?