Local Access, LLC et al v. Peerless Network, Inc.

Filing 374

ORDER granting 368 Motion to Seal; granting 373 Motion to Seal. Signed by Magistrate Judge Thomas B. Smith on 9/6/2017. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOCAL ACCESS, LLC and BLITZ
TELECOM CONSULTING, LLC,
Plaintiffs,
v.

Case No: 6:14-cv-399-Orl-40TBS

PEERLESS NETWORK, INC.,
Defendant.
ORDER
This case comes before the Court without oral argument on Plaintiffs’ Unopposed
Motion to Seal Plaintiffs’ Verified Motion to Hold Defendant in Contempt of Sealed Order
Enforcing Settlement Agreement (Doc. 368), and Peerless Network, Inc.’s Motion for
Leave to File under Seal (Doc. 373).
I. Background
In March of this year, the parties informed the Court that this case had been
settled. Relying upon this advice, the Court administratively closed the case “subject to
the right of any party to file, within 60 days, a stipulated final order or judgment or, on
good cause shown, to move the Court to re-open the case for further proceedings.” (Doc.
335).
Defendant subsequently motioned the Court to reopen the case or in the
alternative, dismiss it with prejudice (Doc. 338). As grounds, Defendant alleged that the
parties did not have a settlement because they disagreed about the terms (Id.). Plaintiffs
responded with a motion to enforce the settlement agreement (Doc. 340). Then,

Defendant filed a motion for sanctions in which it accused Plaintiffs of fabricating
evidence for use at trial (Doc. 343).
The Court sealed some of the information contained in the parties’ motions
because it constitutes settlement negotiations that were intended to be confidential; and
some of the information consists of confidential and proprietary business plans, pricing
information and technical capabilities which, if made public, could injure Defendant’s
business operations and relationships with its customers (Doc. 345). For the same
reasons, the Court also granted the parties’ motions to seal certain information contained
in their responses to the foregoing motions (Docs. 352, 360).
On August 10, 2017, the Court entered a sealed Order granting Defendant’s
motion to reopen the case; denying Defendant’s motion to dismiss with prejudice; and
granting Plaintiffs’ motion to enforce the settlement (Doc. 364). In the same Order, the
Court dismissed this case with prejudice, while retaining jurisdiction to enforce the parties’
settlement agreement (Id.). Defendant has appealed the Order granting Plaintiffs’ motion
to enforce the settlement (Doc. 365).
Now pending are Plaintiffs’ Verified Motion to Hold Defendant in Contempt of
Sealed Order Enforcing Settlement Agreement (Doc. 367), and Defendant’s Corrected
Motion to Clarify and Stay Enforcement of the Court’s August 10, 2017 Order Pending
Appeal (Doc. 372). The parties seek leave of Court to file some of the contents of these
motions under seal (Docs. 368, 373). Both motions are unopposed.
II. Legal Standard
“The filing of documents under seal is disfavored by the Court.” Graphic
Packaging Int’l, Inc. v. C.W. Zumbiel Co., No. 3:10-cv-891-J-JBT, 2010 WL 6790538, at
*1 (M.D. Fla. Oct. 28, 2010). While the parties to a lawsuit “have protectable privacy

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interests in confidential information disclosed through discovery,” once the information
becomes a judicial record or public document, the public has a common-law right to
inspect and copy the information. In re Alexander Grant & Co. Litig., 820 F.2d 352, 355
(11th Cir. 1987). “Once a matter is brought before a court for resolution, it is no longer
solely the parties’ case, but also the public’s case.” Brown v. Advantage Eng’g, Inc., 960
F.2d 1013, (11th Cir. 1992); Patent Asset Licensing, LLC v. Wideopenwest Fin., LLC, No.
3:15-cv-743-J-32MCR, 2016 WL 2991058, at *1 (M.D. Fla. May 24, 2016). “[I]t is the
rights of the public, an absent third party, which are preserved by prohibiting closure of
public records, unless unusual circumstances exist.” Wilson v. Am. Motors Corp., 759
F.2d 1568, 1570 (11th Cir. 1985).
“Material filed in connection with any substantive pretrial motion, unrelated to
discovery, is subject to the common law right of access.” Romero v. Drummond Co., Inc.,
480 F.3d 1234, 1245 (11th Cir. 2007). “A substantive pretrial motion is ‘[a] motion that is
presented to the court to invoke its powers or affect its decisions, whether or not
characterized as dispositive, [and it] is subject to the public right of access.” Id. at 1246
(quotation marks and citation omitted).
“The judge is the primary representative of the public interest in the judicial
process and is duty-bound therefore to review any request to seal the record (or part of
it). He may not rubber stamp a stipulation to seal the record.” Estate of Martin Luther
King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353, 1363 (N.D. Ga. Feb. 15, 2002) (quoting
Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir.
1999)). “The right to inspect and copy is not absolute, however, and a judge’s exercise of
discretion in deciding whether to release judicial records should be informed by a
sensitive appreciation of the circumstances that led to the production of the particular

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document in question.” Chemence Med. Prods., Inc. v. Medline Indus., No. 1:13-CV-500TWT, 2015 WL 149984, at *1 (N.D. Ga. Jan. 12, 2015).
The public’s right of access may be overcome by a showing of “good cause”
sufficient for the granting of a protective order pursuant to FED. R. CIV. P. 26(c) (“The court
may, for good cause, issue an order to protect a party or person form annoyance,
embarrassment, oppression, or undue burden or expense …”). “’Good cause’ is a well
established legal phrase. Although difficult to define in absolute terms, it generally
signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant,
820 F.2d at 356.
The Eleventh Circuit has “superimposed a somewhat more demanding balancing
or interests approach to the” good cause requirement in Rule 26(c). Farnsworth v. Procter
& Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). This means that before making its
decision, the court has a duty to balance the public’s right of access against the party’s
interest in confidentiality. “In balancing the public interest in accessing court documents
against a party’s interest in keeping the information confidential, courts consider, among
other facts, whether allowing access would impair court functions or harm legitimate
privacy interests, the degree of and likelihood of injury if made public, the reliability of the
information, whether there will be an opportunity to respond to the information, whether
the information concerns public officials or public concerns, and the availability of a less
onerous alternative to sealing the documents.” Romero, 480 F.3d at 1246 (citation
omitted).
III. Discussion
The information the parties are asking the Court to seal includes the terms upon
which the Court found they settled this dispute, and information that is commercially and

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competitively sensitive. The parties have consistently evidenced their intent to keep all of
this information confidential and in prior Orders, the Court has sealed the same and similar
information. The Court understands that the information is not currently publicly available,
and there does not appear to be any other method, short of sealing, that will preserve the
confidentiality of the information. For these reasons, the Court finds that the parties’
interests in the privacy of the information sought to be filed under seal outweighs the
public’s right of access. Now, the motions to seal are GRANTED. The parties shall file
their motions in redacted form on the docket and the unredacted versions will be
accepted by the Clerk for filing UNDER SEAL.
Plaintiffs propose that the information they are filing be held under seal for a period
of 6 years (Doc. 368 at 2). Defendant asks that the information it is submitting be sealed
for a term of 1 year (Doc. 373 at 1). The Court’s local rules generally provide for sealing
for up to one year which is renewable on motion made before the expiration of the seal.
M.D. Fla. 1.09(c). Based upon confidential information in the Order enforcing the parties’
settlement agreement, the Court finds that the information to be sealed pursuant to this
Order shall remain sealed through April 1, 2022.
DONE and ORDERED in Orlando, Florida on September 6, 2017.

Copies furnished to Counsel of Record

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