Local Access, LLC v. Peerless Network, Inc.

Filing 1163

ORDER granting Peerless Network, Inc.'s Unopposed Motion for Leave to File under Seal 1148 Its Motion to Disqualify Lee Marcus and David Sellman from Serving as Trial Counsel and 1152 Its Motion for Sanctions. Signed by Magistrate Judge Embry J. Kidd on 11/2/2023. (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 Peerless Network, Inc.’s Unopposed
Motion for Leave to File Under Seal Its Motion to Disqualify Lee Marcus and David
Sellman from Serving as Trial Counsel (Doc. 1148) and Its Motion for Sanctions (Doc.
1152) (collectively, the “Motions to Seal”), filed October 23 and 24, 2023, respectively.
Upon consideration, the Motions to Seal are due to be granted.
Local Rule 1.11(c) 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 reason . . . 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
memorandum supporting the seal; but (7) must not include
the item proposed for sealing.

The Motions to Seal comply with the Local Rule; thus, the Court must now determine
whether there is good cause for the seal.
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., 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.
Peerless seeks to file under seal the following:
• an unredacted copy of the Motion to Disqualify (Doc. 1147) and Exhibits

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48, 200, 206, D, E, and F. (Doc. 1148.)
• an unredacted copy of the Motion for Sanctions (Doc. 1146) and Exhibits
106, C, D, and H. (Doc. 1152.)
As to the Motion to Disqualify, the exhibits to be sealed include (1) the
Settlement Amendment and communications concerning the Settlement Amendment
(Exs. 48 and 200); (2) the expert report of Local Access’s expert (Ex. 206); (3) transcript
excerpts from the deposition of David Sellman (Ex. E); and (4) discovery responses
(Ex. D and F). The Motion to Disqualify quotes from the text of and refers to
information contained in these 6 exhibits. As to the Motion for Sanctions, the exhibits
include the expert report of Peerless’s expert (Ex. 106), discovery responses from Local
Access (Exs. C, D), and the declaration of Peerless’s consultant (Ex. H). The Motion
for Sanctions quotes from the text of and refers to information contained in these 4
exhibits.
Peerless represents that the proposed items to be sealed all contain information
that is “Confidential” or “Highly Confidential” in nature, as defined by the Protective
Order. (Docs. 44 at 2; 1148; 1152.) As the Court has previously found, based on these
representations, the Court will infer that Peerless has certified that the information
contained therein references confidential or proprietary business information. 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-cv399-Orl-40TBS, 2017 WL
2021761, at *2–3 (M.D. Fla. May 12, 2017) (permitting sealing of proprietary financial

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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, Peerless has demonstrated good cause to overcome the public’s right of access
to the aforementioned documents to be sealed.
Accordingly, it is ORDERED as follows:
1. Peerless Network, Inc.’s Unopposed Motion for Leave to File under Seal Its
Motion to Disqualify Lee Marcus and David Sellman from Serving as Trial
Counsel (Doc. 1148) and Its Motion for Sanctions (Doc. 1152) are
GRANTED.
2. All items approved for sealing by this Order SHALL be filed through
CM/ECF on or before November 9, 2023. The seal shall remain in place
until resolution of this matter, including any appeals.
DONE and ORDERED in Orlando, Florida on November 2, 2023.

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