Local Access, LLC v. Peerless Network, Inc.

Filing 1011

ORDER granting 993 Motion for leave to file under seal; granting 998 Motion for leave to file under seal; granting 1001 Motion for leave to file under seal; granting 1002 Motion for leave to file under seal; granting 1003 Motion for lea ve to file under seal; granting 1009 Motion for Leave to File Document. The parties are DIRECTED to file the documents approved for sealing through CM/ECF on or before June 16, 2023. Signed by Magistrate Judge Embry J. Kidd on 6/14/2023. (RMN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOCAL ACCESS, LLC,
Plaintiff,
v.

Case No: 6:17-cv-236-WWB-EJK

PEERLESS NETWORK, INC.,
Defendant.
ORDER
This cause comes before the Court on the Unopposed Motions to Seal (the
“Motions”) various filings associated with the parties’ Motions to Compel and
responses thereto. (Docs. 993, 998, 1001, 1002, 1003, 1009). For the reasons stated
herein, the Motions are due to be granted.
Local Rule 1.11(c) 1 requires the following for filing a document under seal, if it
is not authorized by a statute, rule, or order:
[The Motion] (1) must include in the title “Motion for
Leave to File Under Seal”; (2) must describe the item
proposed for sealing; (3) must state the reasons . . . filing the
item is necessary, . . . sealing the item is necessary, and . . .
partial sealing, redaction, or means other than sealing are
unavailable or unsatisfactory; (4) must propose a duration
of the seal; (5) must state the name, mailing address, email
address, and telephone number of the person authorized to
retrieve a sealed, tangible item; (6) must include a legal
1

Local Access moved to file its documents under seal pursuant to Local Rule 1.11(b),
asserting the Protective Order authorizes the filings under seal. (Docs. 993, 998.)
However, the Protective Order does not authorize seals, and therefore, the Court
construes Local Access’s motions as being made pursuant to Local Rule 1.11(c).

memorandum supporting the seal; but (7) must not include
the item proposed for sealing.
The parties’ Motions comply with the Local Rule; thus, the Court must now determine
whether there is good cause for the seal and whether the proposed duration is
appropriate.
While the Eleventh Circuit recognizes a “presumptive common law right to
inspect and copy judicial records,” United States v. Rosenthal, 763 F.2d 1291, 1292–93
(11th Cir. 1985), a party may overcome the public’s right to access by demonstrating
good cause. Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007); see
also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“It is uncontested,
however, that the right to inspect and copy judicial records is not absolute. Every court
has supervisory power over its own records and files, and access has been denied where
court files might have become a vehicle for improper purposes.”).
If good cause is shown, the court must balance the interest in obtaining access
to the information against the interest in keeping the information confidential. See
Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).
Factors a court may consider are:
[W]hether 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.

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Local Access’s Motion at Docket Entry 993 seeks to seal Exhibit A to its Motion
to Compel filed at Docket Entry 991, which is the Highly Confidential version of
James Webber’s expert report. Local Access’s Motion at Docket Entry 998 seeks to
seal its Motion to Compel the Re-Deposition of James Webber at Docket Entry 995
and the exhibits thereto, which include and reference the November 3, 2022 Highly
Confidential report of James Webber; the May 2, 2023 Highly Confidential report of
David Gabel; and the June 1, 2023 Highly Confidential report of James Webber.
Peerless’s Motion at Docket Entry 1001 seeks to seal exhibits to its Motion to
Compel Additional Expert Depositions at Docket Entry 996, which attaches copies of
the expert reports of David Gabel, James Smith, and David Malfara. Peerless’s Motion
at Docket Entry 1002 seeks to seal exhibits to its Motion to Compel Responses to Fifth
Set of Requests for Admission at Docket Entry 997, which attaches copies of Peerless’s
Tenth Documents Requests and Fifth Requests for Admission to Local Access and
Local Access’s Responses and Objections to Peerless Network, Inc.’s Tenth Document
Requests and Fifth Requests for Admission. Peerless’s Motion at Docket Entry 1003
seeks leave to seal its Motion to Compel Responses to Tenth Set of Requests for
Production, which also attaches Peerless Network, Inc.’s Tenth Document Requests
and Fifth Requests for Admission to Local Access, Local Access’s Responses and
Objections to Peerless Network, Inc.’s Tenth Document Requests and Fifth Requests
for Admission, and an exhibit discussing 0110 traffic. Finally, Peerless’s Motion at
Docket Entry 1009 seeks to file under seal exhibits to and portions of its Omnibus
Response in Opposition to Local Access’s Motions to Compel at Docket Entry 1005.

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This Response attaches copies of Peerless’s Responses and Objections to Local
Access’s Seventh and Eighth Set of Interrogatories, the Expert Report of James D.
Webber, and the Report of Joseph Gillan Adopted by David Gabel.
All of the referenced Motions discuss or attach items that have been designated
by a party as Confidential or Highly Confidential pursuant to the terms of the
Protective Order. As the undersigned previously found, based on the parties’
representations that the documents have been designated “Confidential” or “Highly
Confidential” pursuant to the terms of Protective Order, the Court will infer that the
parties have certified that the information contained therein references confidential or
proprietary business information, as contemplated by the definitions set forth in the
Protective Order (Doc. 44 at 2). (Id.)
Courts in this District have recognized that maintaining the privacy of
confidential business information can constitute good cause for keeping documents
from the public view. See, e.g., Local Access, LLC v. Peerless Network, Inc., No. 6:14-cv399Orl-40TBS, 2017 WL 2021761, at *2–3 (M.D. Fla. May 12, 2017) (permitting sealing
of proprietary financial and business information); Patent Asset Licensing LLC, v. Bright
House Networks, LLC, No. 3:15-cv-742-J-32MCR, 2016 WL 2991057, at *2 (M.D. Fla.
May 24, 2016) (permitting party to file confidential business information under seal
where such documents’ exposure could “violate the parties' privacy or proprietary
interests”). Thus, the parties have demonstrated good cause to overcome the public’s
right of access to the aforementioned documents to be sealed.
Accordingly, it is ORDERED as follows:

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1. The Unopposed Motions to Seal (Docs. 993, 998, 1001, 1002, 1003, 1009) are
GRANTED.
2. The parties are DIRECTED to file the documents approved for sealing through
CM/ECF on or before June 16, 2023. The seal shall remain in place until
resolution of this matter, including any appeals.
DONE and ORDERED in Orlando, Florida on June 14, 2023.

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