Insight Equity AP X LP v. Transitions Optical Inc.

Filing 173

MEMORANDUM ORDER providing for portions of the record that shall remain under seal, and portions that are to be unsealed (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 12/29/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

INSIGHT EQUITY AP X LP,
Plaintiff,
Civil Action No. 10-635-RGA

V.

TRANSITIONS OPTICAL INC.,
Defendant.

MEMORANDUM ORDER

I unsealed the summary judgment record effective December 12, 2016, except as to any
part of it to which objections were filed by December 7, 2016. (D.I. 156). Three timely

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objections were filed. (D.I. 162, 164, 165). Plaintiff answered. (D.I. 169). One reply was
received. (D.I. 171).
Visionworks objected to the unsealing of one document, and supported its objection with
a declaration. (D.I. 165). Plaintiffs answer does not object to Visionworks' objection. (D.I.

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169). I therefore grant Visionworks' objection. Exhibit 96 (which can be found at D.I. 43-5 &
43-6) is ordered to REMAIN SEALED.
U.S. Vision objects to the unsealing of five exhibits, portions of the Baseman expert
report, and portions of briefs filed in relation to summary judgment motions. (D.I. 162).
Carl Zeiss objects to portions of both the Stiroh and Baseman expert reports. (D.I. 164).

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Neither U.S. Vision nor Carl Zeiss submit any support under oath for their positions.
In response, Plaintiff objects to some of the objections, but not all. (D.I. 169). In
particular, it objects to Exhibit 138 (D.I. 68-38), and paragraphs 57, 112, 120, 142, and 240 and

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footnotes 197, 199, 235, 431, 432, 433, and 434 of Baseman's expert report (D.I. 55-1).
The party seeking to seal has to establish good cause. Good cause requires a showing that
"disclosure will work a clearly defined and serious injury to [that party]. The injury must be
shown with specificity." Id. at 507 (alteration in the original; citations and internal quotation
marks omitted). Or, in other words, the party seeking to seal judicial records must demonstrate
"a compelling interest" in shielding those materials from public view. Id. at 508. Among other
things, I have considered the various factors, to the extent relevant, set forth in Pansy v. Borough
ofStroudsburg, 23 F.3d 772, 786 (3d Cir. 1994), Courts should consider:
(1) whether disclosure will violate any privacy interests; (2) whether the information
being sought is for a legitimate purpose; (3) whether disclosure will cause embarrassment
to a party; (4) whether the information to be disclosed is important to public health and
safety; (5) whether sharing the information among litigants will promote fairness and
efficiency; (6) whether the party benefitting from the order is a public entity or official;
and (7) whether the case involves issues important to the public.
Mosaid Tech Inc. v. LSI Corp, 878 F.Supp.2d 503, 508 n.2 (D.Del. 2012) (citing Pansy). I also
take into account that some of the materials at issue were provided after a protective order was
already in place, and, thus, I should consider the reliance of the objecting parties on the protective
order. See Crum & Crum Enterprises, Inc. v. NDC of California., L.P., 2011WL886356, *2
(D.Del. Mar. 10, 2011).
Simply because the parties have designated the information as confidential, highly
confidential, confidential - attorneys' eyes only, etc., under a protective order is irrelevant to the
present issue, that is, whether information submitted in connection with summary judgment
motions should be redacted. There is not much public interest in the information that is
exchanged in discovery. Once, however, it is disclosed in a judicial proceedings, it is in the
public interest to be able to understand the proceedings before a judge, and redaction of the

relevant record hinders that public interest. Nevertheless, there are things that might be
appropriately sealed in a public proceeding, such as the pricing terms in license agreements,
some other non-public financial information, trade secrets, and other proprietary technology.
Information in a document, report, brief, or transcript may hint at some of these things without
actually threatening any "clearly defined and serious injury." Things that typically weigh against
the necessity of sealing include that the information is old, or general, or already in the public
record, and was relevant to the judicial proceeding. Further, ifthere is a need for redactions, the
proposed redactions should be as narrow as possible.
It appears that Exhibit 138 is a TOI document about plans for 2007, that is, ten years ago.

There is no evidence that disclosure of the document will work any harm to U.S. Vision.
Therefore, its request as to Exhibit 138 is DENIED. Exhibit 138 (D.I. 68-38) is UNSEALED.
The various paragraphs and supporting footnotes in the Baseman report have to do with
the existence of exclusivity agreements or Carl Zeiss's market share, all in the 2005-09 period. I
accept that Carl Zeiss's estimate of its market share ten years ago was extremely confidential
business information at the time, the disclosure of which would have worked a business harm to
Carl Zeiss. Not so today. Even less do I understand the U.S. Vision objection, which clearly has
no relevance to today. Thus, the U.S. Vision and Carl Zeiss objections to the disclosure of the
five identified paragraphs of the Baseman report are DENIED. Paragraphs 57, 112, 120, 142,
and 240 are UNSEALED.
I note in regard to the above that there may be a privacy interest, but that it is extremely
marginal due to the passage of time. The information is sought for a legitimate purpose, namely,
to prepare for trial. Disclosure will cause no embarrassment to anyone. The information is
irrelevant to public health and safety. Disclosing the information will marginally ease the

efficiency of trial preparation. Only private parties benefit from the sealing order. Antitrust
issues are important to the public. Thus, of the seven Pansy factors, the first, fourth, and sixth
weigh in favor of sealing; the second, third, fifth, and seventh weigh in favor of unsealing. I do
not see reliance as making any difference to the ultimate outcome. Had the documents not been
voluntarily produced, I expect they would have been involuntarily produced. In the end, where
there is a dispute, the staleness of the information tips the balance in favor of disclosure.

I also direct that the summary judgment briefs be UNSEALED. Thus, except as to
exhibits and portions of expert reports to which Plaintiff did not object, 1 the summary judgment
record is UNSEALED.
IT IS SO ORDERED this

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}fJ_ day of December 2016.

I do not consider Plaintiffs footnote (D.I. 169 at 2 n.l) to be a responsive argument to
the various third-party objections.