Local Access, LLC v. Peerless Network, Inc.

Filing 943

ORDER granting 938 Peerless Network, Inc.'s Motion for Leave to File Under Seal its Motion to Redesignate Discovery Materials. Signed by Magistrate Judge Embry J. Kidd on 3/28/2023. (RMN)

Case 6:17-cv-00236-WWB-EJK Document 943 Filed 03/28/23 Page 1 of 4 PageID 21351

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 Motion for
Leave to File Under Seal its Motion to Redesignate Discovery Materials (the
“Motion”) (Doc. 938), filed March 13, 2023. Upon consideration, the Motion is
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 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
memorandum supporting the seal; but (7) must not include
the item proposed for sealing.

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The parties have complied 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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Peerless seeks to redact one word in its Motion to Redesignate Discovery
Materials (Doc. 937) and three exhibits thereto. (Doc. 938.) Specifically, Exhibit B is
an email exchange between Local Access and one of its outbound customers produced
by Local Access. Exhibit D is a copy of the parties’ March 31, 2017 emails that formed
the settlement agreement in previous litigation between them in this Court, No. 6:14cv-399. And Exhibit E is a group exhibit containing expert reports and work papers
from the experts’ reports which summarizes Local Access’s CDRs. (Id. at 1–2.)
Peerless states that these items have all been designated Confidential or Highly
Confidential, pursuant to the terms of the Protective Order in this case. (Doc. 938 at
2.) However, as the Court has stated, “[s]ealing is not authorized by a . . . protective
order . . . .” Local Rule 1.11(c). Thus, simply because a party has designated a
document as Confidential or Highly Confidential does not automatically make the
document eligible for sealing.
However, 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, in this instance, that the parties have certified
that all of 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-cv399-Orl-40TBS, 2017 WL 2021761, at *2–3 (M.D. Fla. May 12, 2017)

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(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 hereby ORDERED as follows:
1. Peerless Network, Inc.’s Motion for Leave to File Under Seal its Motion to
Redesignate Discovery Materials (Doc. 938) is GRANTED.
2. The parties are DIRECTED to file the items approved for sealing through
CM/ECF on or before March 30, 2023. 1 The seal shall remain in place until
resolution of this matter, including any appeals.
DONE and ORDERED in Orlando, Florida on March 28, 2023.

1

Effective November 7, 2022, lawyers are required to use CM/ECF to file a sealed
document. Additional information and instructions can be found at
https://www.flmd.uscourts.gov/cmecf.

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