AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 153

VACATED PURSUANT TO MINUTE ORDER FILED 2/3/16. . . . .ORDER: Holding in abeyance Defendant's motion to file documents under seal #120 . Defendant's filing due 2/5/16. (See order for details). Signed by Judge Tanya S. Chutkan on 1/21/16. (DJS) Modified on 2/3/2016 (td).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING
AND MATERIALS et al.,
Plaintiffs,
v.

PUBLIC.RESOURCE.ORG, INC.,
Defendant.

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Civil Action No. 13-cv-1215 (TSC) (DAR)

ORDER
In a February 2, 2015 Memorandum Opinion, this court described the parties involved in
this lawsuit and explained the basis of the present action:
Plaintiffs American Society for Testing and Materials, National Fire Protection
Association, Inc., and American Society Of Heating, Refrigerating, And AirConditioning Engineers, Inc., brought this action for copyright infringement and
trademark infringement against Public.Resource.org, Inc. (“Public Resource”).
Plaintiffs are not-for-profit organizations that develop private-sector codes and
standards. Plaintiffs sell or license these codes to generate revenue. State and local
government entities frequently incorporate Plaintiffs’ codes into statutes,
regulations, and ordinances. For example, Plaintiff National Fire Protection
Association develops the National Electrical Code, which provides a standardized
code for installation of electrical systems. Plaintiffs allege that the codes are
original works protected from copyright infringement, and brought suit because
Public Resource has posted a number of Plaintiffs’ codes on its website. Plaintiffs
seek a permanent injunction enjoining Public Resource from posting Plaintiffs’
codes and trademarks.…
Defendant Public Resource is a non-profit entity devoted to publicly disseminating
legal information. According to Defendant, its “mission is to improve public access
to government records and the law. . . . To accomplish this mission, Public Resource
acquires copies of . . . records, including legal decisions, tax filings, statutes, and
regulations, and publishes them online in easily accessible formats that make them
more useful to readers, entirely free of charge.” (Def. Answer ¶¶ 27-28). Public
Resource argues that because the codes at issue have been incorporated by
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reference into federal, state, and local laws, it is entitled to publish them as public
materials. Public Resource filed a counterclaim seeking a declaratory judgment
that posting the codes does not infringe Plaintiffs’ copyrights or trademarks, and
included a jury demand in its counterclaim.
(ECF No. 72.)
Defendant Public Resource has moved to file under seal: (1) Defendant’s motion for
summary judgment; (2) Defendants’ Statement of Material Facts; and (3) certain declarations
and exhibits proffered by Defendant. (ECF No. 120.) According to Defendant, these documents
should be sealed because they are designated “Confidential,” pursuant to a Protective Order
entered by the court. (See ECF No. 44). Under the terms of that agreement, “Confidential” is
defined as:
[m]aterial which is not known or available to the public and which constitutes
technical know-how; confidential research, development or commercial
information; purchase and/or sales data; proprietary commercial, financial,
technical, research, development, or business information; or any other
confidential, private, or proprietary information that is used in the party’s business.
(Id. ¶ 1(a).)
Additionally, the agreement provides that
[a] party shall not routinely designate material as “CONFIDENTIAL.” The parties
must make a good-faith determination that any information designated as
“CONFIDENTIAL” truly warrants protection under Rule 26(c) of the Federal
Rules of Civil Procedure. Designation of material as “CONFIDENTIAL” must be
narrowly tailored to include only material for which there is good cause.
(Id. ¶ 1(b).) The Federal Rules of Civil Procedure provide, in pertinent part, that the “court,
may for good cause, issue an order . . . requiring that a trade secrete or other confidential
research, development, or commercial information not be revealed or be revealed only in a
specified way.” Fed. R. Civ. P. 26(c)(1)(G).
“[T]he starting point in considering a motion to seal court records is a ‘strong
presumption in favor of public access to judicial proceedings.’” E.E.O.C. v. Nat’l Children’s
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Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Johnson v. Greater Se. Cmty. Hosp.
Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). In United States v. Hubbard, 650 F.2d 316 (D.C.
Cir. 1980),
[t]he D.C. Circuit . . . laid out six factors for courts to consider when determining
whether to seal court records: (1) the need for public access to the documents at
issue; (2) the extent of previous public access to the documents; (3) the fact that
someone has objected to disclosure, and the identity of that person; (4) the strength
of any property or privacy interests asserted; (5) the possibility of prejudice to those
opposing disclosure; and (6) the purposes for which the documents were introduced
during the judicial proceeding.
Guttenberg v. Emery, 26 F. Supp. 3d 88, 92 (D.D.C. 2014) (citing Hubbard, 650 F.2d at 316-17).
While the court understands the need to seal portions of the identified documents, the
court is not persuaded that sealing the documents in their entirety is necessary or justified under
the standards found in Rule 26 and Hubbard. For example, the first several pages of Defendant’s
brief and the first several pages of the Statement of Facts contain mostly general information
about the mission of the Plaintiffs, how the Defendant entity operates, citations to the Code of
Federal Regulations, and the intersection between Plaintiffs’ published standards and federal
law. (See ECF No. 123, Ex. 2 at pp. 1-6; Ex. 3 ¶¶ 1-20.) Yet, the Defendant has not indicated a
willingness to file redacted copies – to the extent possible – of the documents proposed for
sealing. Perhaps Defendant contemplates doing so, because the documents do contain scattered
sentences and paragraphs that are highlighted in grey. However, Defendant has not indicated
such a willingness in its motion.
Accordingly, the court will hold the motion in abeyance pending a supplemental filing by

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the Defendant that fully sets forth and supports the nature of the relief requested. Defendant’s
supplemental filing is due by February 5, 2016.

Date: January 21, 2016

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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