Digital Assurance Certification, LLC v. Pendolino

Filing 196

ORDER granting 195 Motion to Seal. Signed by Magistrate Judge Thomas B. Smith on 2/7/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DIGITAL ASSURANCE CERTIFICATION,
LLC,
Plaintiff,
v.

Case No: 6:17-cv-72-Orl-41TBS

ALEX PENDOLINO, JR. and LUMESIS,
INC.,
Defendants.
ORDER
This misappropriation of trade secrets case comes before the Court without a
hearing on the parties’ Joint Motion to Seal Portions of Certain Motions and Responses
Thereto (Doc. 195).
February 18, 2019 is the deadline for the parties to file summary judgment and
Daubert motions (Id., ¶ 4). They represent that these motions will necessarily require the
disclosure of what has previously been designated as “highly confidential” information
(Id., ¶¶ 3-5). The parties’ Stipulated Confidentiality Agreement defines “highly
confidential” information as:

"Highly Confidential" or "HIGHLY CONFIDENTIAL"

information is information that the Designating Party in
good faith reasonably believes is highly sensitive and
would provide others with an unfair competitive or improper
advantage, including but not limited to: (i) trade secrets; (ii)
technical specifications, drawings, descriptions, processes,
and other proprietary technical information; (iii) non-public
and/or proprietary financial or strategic business plans,
agreements and projections; (iv) non-public and/or
proprietary pricing information; and (v) information that is
subject to an express obligation of confidentiality owed by
the Designating Party to a third-party.

(Doc. 195-1, ¶ 3.b). The parties have agreed to specific limiting conditions on the
use and disclosure of “highly confidential information.” (Id., ¶ 5).
“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 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-J32MCR, 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

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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
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

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onerous alternative to sealing the documents.” Romero, 480 F.3d at 1246 (citation
omitted).
The Middle District of Florida has adopted its own rule on the sealing of
information:
(a) Unless filing under seal is authorized by statute, rule, or
order, a party seeking to file under seal any paper or other
matter in any civil case shall file and serve a motion, the title of
which includes the words “Motion to Seal” and which includes
(i) an identification and description of each item proposed for
sealing; (ii) the reason that filing each item is necessary; (iii) the
reason that sealing each item is necessary; (iv) the reason that
a means other than sealing is unavailable or unsatisfactory to
preserve the interest advanced by the movant in support of
the seal; (v) a statement of the proposed duration of the seal;
and (vi) a memorandum of legal authority supporting the seal.
M.D. FLA. Rule 1.09(a). The parties’ joint motion satisfies the requirements of Local Rule
1.09(a).
At least one party maintains that the information proposed to be sealed contains its
trade secrets, including client contacts and information, financial information, information
related to computer system platform development and programming, and forms and
reports it deems confidential, proprietary and/or trade secrets (Doc. 195, ¶ 3). The Court
assumes these assertions are made in good faith.
Based upon the parties’ representations the Court finds it is highly likely that
disclosure to the general public of the information that has been designated “highly
confidential” would unreasonably impair the parties’ legitimate privacy interests and
cause them undue economic harm. The Court also finds that sealing will not compromise
the reliability of the information, and that the information does not concern public officials
or public concerns. Lastly, the Court finds that there is no alternative to sealing that will
adequately protect the parties’ legitimate interests in the “highly confidential” information.

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Considered together, these findings constitute good cause that outweighs the
public’s right of access to the information the parties have designated “highly
confidential.” Accordingly, the motion is GRANTED. The parties are authorized to redact
from their public filings all information that has been designated “highly confidential”
pursuant to the Stipulated Confidentiality Agreement. The parties shall file under seal, the
unredacted versions of their papers. The Clerk shall maintain the unredacted papers
UNDER SEAL for one year from the rendition of this Order or further Court order,
whichever occurs first. Any party may seek an extension of the seal on motion made
before the seal expires.
DONE and ORDERED in Orlando, Florida on February 7, 2019.

Copies furnished to Counsel of Record

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