BASF Corporation v. SNF Holding Company et al
Filing
417
ORDER denying without prejudice 360 Motion for Attorney Fees; denying without prejudice to refile 361 Motion for Hearing; denying without prejudice 368 Motion to Seal; denying without prejudice 373 Motion to Seal Document; denying without prejudice 379 Motion to Seal; denying as moot 388 Motion to Seal; denying without prejudice to refile 390 Motion; granting 391 Motion Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C); denying without prejudice 393 Motion to Sea l. The Court DIRECTS the parties to, if appropriate, refile these Motions and the Bill of Costs within twenty-one (21) days of the date that the Federal Circuit Court of Appeals issues its mandate on the pending appeal. Signed by District Judge R. Stan Baker on 8/5/19. (jrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BASF CORPORATION,
Plaintiff,
CIVIL ACTION NO.: 4:17-cv-251
v.
SNF HOLDING COMPANY; FLOPAM INC.;
CHEMTALL INC.; SNF SAS; and SNF
(CHINA) FLOCCULANT CO., LTD,
Defendants.
ORDER
This matter comes before the Court regarding several Motions to Seal documents related
to Defendants’ pending Motion for Attorneys’ Fees and Expenses, (doc. 360). (See Docs. 368,
373, 379, 388, 393.) The Motions to Seal are unopposed. Also before the Court is Plaintiff’s
Motion to Defer Determination of Costs and Response in Opposition to Defendants’ Bill of Costs,
(doc. 391), to which Defendants filed a Reply, (doc. 401).
For the reasons set forth below, the Court DENIES without prejudice: Plaintiff’s Motion
to Seal Opposition to Defendants’ Motion for Attorneys’ Fees and Expenses, (doc. 368);
Defendants’ Motion to Seal Reply in Support of Defendants’ Motion for Attorneys’ Fees and
Expenses, (doc. 379); Plaintiff’s Motion to Seal BASF’s Surreply in Opposition to Defendants’
Motion for Attorneys’ Fees and Expenses, (doc. 393); Defendants’ Motion to Seal Declarations
Supporting Local Rule 54.2(c) Detailed Itemization and Specification of Requested Award of
Attorneys’ Fees and Nontaxable Costs, (doc. 373); and DENIES as moot Plaintiff’s Motion to
Seal BASF Corp.’s Motion Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C) for Adversary
Submissions Regarding Defendants’ Local Rule 54.2(c) Detailed Itemization and Specification of
Requested Award of Attorneys’ Fees and Nontaxable Costs, (doc. 388). The Court DIRECTS the
Clerk of Court to return the materials sought to be sealed, (see docs. 370, 374, 384, 389, 395), to
the submitting parties, Local R. 79.7(c).
The Court, however, GRANTS Plaintiff’s Motion to Defer Determination of Costs,
(doc. 391), and declines to adjudicate Defendants’ Motion for Attorney’s Fees and Expenses and
Bill of Costs, (docs. 360, 375), during the pendency of Plaintiff’s appeal before the Federal Circuit
Court of Appeals. As such, the Court DENIES without prejudice to refile: Defendants’ Motion
for Attorneys’ Fees and Expenses, (doc. 360); Defendants’ Bill of Costs, (doc. 375); Defendants’
Request for Hearing, (doc. 361); and Plaintiff’s Motion Pursuant to Federal Rule of Civil
Procedure 54(d)(2)(C) for Adversary Submissions Regarding Defendants’ Local Rule 54.2(c)
Detailed Itemization and Specification of Requested Award of Attorneys’ Fees and Nontaxable
Costs, (doc. 390). The Court DIRECTS the parties to, if appropriate, refile these Motions and the
Bill of Costs within twenty-one (21) days of the date that the Federal Circuit Court of Appeals
issues its mandate on the pending appeal. 1 Responsive briefing will be due within fourteen (14)
days of service of the respective motions and bill of costs, as set forth in Local Rules 7.5 and 7.6.
Pursuant to Local Rule 54.2(c), should Defendants remain the prevailing parties post-appeal and
should they still seek attorney’s fees, they shall file and serve their detailed specification and
itemization of the requested attorney’s fees award within twenty-one (21) days of the date that
the Federal Circuit issues its mandate.
1
The parties are, of course, free to refile these documents with supplemental argument based on
developments before the Federal Circuit or in response to any other relevant subsequent event.
Additionally, if following the Federal Circuit’s mandate the parties no longer seek the relief requested in
these pleadings, they are not required to file the pleadings.
2
In so filing these documents, the parties are advised that any request to seal or redact
information contained therein must account for the Court’s findings in this Order and those in the
Order dated July 3, 2019, (doc. 414). Specifically, the parties must not move to file under seal any
information or documents already found by the Court to not warrant sealing, and they must
narrowly tailor any information relevant to attorneys’ fees and costs that they still seek to have
sealed. If the parties seek to seal such content, they must offer particularized reasons as to why
the specific information or documents require sealing. As is made clear below, conclusory and
blanket assertions of confidentiality will not establish the requisite cause to seal. If, upon
reflection, the parties determine that these filings no longer need to be sealed, they may submit
them in the normal course. Local R. 79.7(c).
BACKGROUND
On October 4, 2018, the Court entered summary judgment in favor of Defendants,
invalidating Plaintiff’s patent that was the subject of this infringement action. (Doc. 355.) The
Summary Judgment Order, containing quoted and excerpted discovery material covered by the
Protective Order, was initially sealed but has since been unsealed based on the Court’s finding that
Plaintiff failed to show “good cause” to keep it shielded from the public’s presumed right of access
to judicial records. (Doc. 414, pp. 18–26.) Additionally, the Court unsealed and docketed the
unredacted version of Defendants’ Motion for Attorneys’ Fees and Expenses, because Plaintiff did
not show “good cause” to keep the limited discovery material contained therein protected from
public viewing. (Id. at pp. 12–18.)
As is pertinent to the Motions to Seal at bar, in unsealing Defendants’ unredacted Motion
for Attorneys’ Fees and Expenses, the Court found there was no cause to suppress Plaintiff’s
statement that “prior to the invention of the ’329 patent, conical tapers and inert gas had never
3
been used to remove the claimed polymer gels from reactors,” (doc. 416-1, p. 8 (citing doc. 1988, p. 59); and the Court found no cause to suppress a non-party’s statement that “polymerization
reactors do not require periodic cleaning. The polymer batches discharge completely with no
residual build-up on the inside of the reactors,” (id. at p. 20 (citing doc. 343-2, p. 2)). (See
Doc. 414, pp. 12–18.) This information—contained within Defendants’ Motion for Attorneys’
Fees and Expenses—is now publicly available on the Court’s CM/ECF docketing system.
Following the entry of summary judgment, Plaintiff appealed to the Federal Circuit Court
of Appeals, (doc. 362), while Defendants filed the Motion for Attorneys’ Fees and Expenses that
is the root of the motions presently under consideration, (doc. 360). Plaintiff’s appeal of summary
judgment in this case prompted the Court to stay proceedings in a related case brought by
Defendant Chemtall Inc. against Plaintiff BASF Corporation. Order, Chemtall Incorporated v.
BASF SE, 4:17-cv-186 (S.D. Ga. Jan. 7, 2019), ECF No. 259. The Court stayed that case pending
Plaintiff’s appeal in this case. Id. at 9–14. In that case, Defendant Chemtall Inc. claims Plaintiff
fraudulently concealed its ownership of the Sanyo SANWET® Process (at times, the “Process”)
in order to make its patent infringement action here cognizable. Id. at 3. Pertinently, in this case,
the Court invalidated Plaintiff’s ’329 patent based on its determination that the Process constituted
prior art. (Doc. 355.) Given the dependency of Defendant Chemtall Inc.’s related claims on the
Court’s prior art finding, the Court found it prudent to stay that case pending the outcome of
Plaintiff’s appeal in this case. Order, pp. 9–14, Chemtall Incorporated v. BASF SE, 4:17-cv-186
(S.D. Ga. Jan. 7, 2019), ECF No. 259.
In responding to the substance of Defendants’ Motion for Attorneys’ Fees and Expenses,
Plaintiff filed a redacted Opposition brief, (doc. 371), and a Motion to Seal an unredacted version
of the Opposition brief, (doc. 368). Defendants filed a redacted Reply in Support, (doc. 382), and
4
a Motion to Seal an unredacted version of the Reply in Support, (doc. 379). Plaintiff then filed a
redacted Surreply in Opposition, (doc. 398), and a Motion to Seal an unredacted version of the
Surreply in Opposition, (doc. 393). In addition, Defendants filed a Motion to Seal Declarations
Supporting Local Rule 54.2(c) Detailed Itemization and Specification of Requested Award of
Attorneys’ Fees and Nontaxable Costs, (doc. 373), as well as a Bill of Costs, (doc. 375). Plaintiff
filed a Motion to Defer Determination of Costs and Response in Opposition to Defendants’ Bill of
Costs, (doc. 391), to which Defendants replied, (doc. 401). Relatedly, Plaintiff filed a redacted
Motion Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C) for Adversary Submissions
Regarding Defendants’ Local Rule 54.2(c) Detailed Itemization and Specification of Requested
Award of Attorneys’ Fees and Nontaxable Costs, (doc. 390), and a Motion to Seal an unredacted
version of the same, (doc. 388). 2 Defendants filed a Memorandum in Opposition to Plaintiff’s
request for adversary submissions, (doc. 400), and Plaintiff filed a Reply in Support, (doc. 403).
While the parties have opposed the substance of and relief sought by these various filings,
they have not filed any opposition to the sealing of their contents. With this background in mind,
the Court takes up, in turn, the parties’ present Motions to Seal as well as Plaintiff’s Motion to
Defer. (Docs. 368, 373, 379, 388, 391, 393.)
DISCUSSION
I.
Plaintiff’s and Defendants’ Motions to Seal (Docs. 368, 373, 379, 388, 393)
The right of access to judicial records pursuant to common law is well-established. See
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); see also Brown v. Advantage Eng’g,
Inc., 960 F.2d 1013, 1016 (11th Cir. 1992). This right extends to the inspection and the copying
2
Pursuant to Local Rule 79.7 and the Court’s Administrative Procedures for Electronic Filing, the parties
manually filed with the Clerk of Court unredacted, paper versions of the documents sought to be sealed.
(See Docs. 370, 374, 384, 389, 395.)
5
of court records and documents. See Nixon, 435 U.S. at 597. The right to access, however, is not
absolute. See Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 598 (1982).
When deciding whether to grant a party’s motion to seal, the court is required to balance the
historical presumption of access against any significant interests raised by the party seeking to file
under seal. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th
Cir. 2001); Newman v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983). In balancing the interests,
courts consider, among other things:
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 v. Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007). When the designated
confidential information concerns asserted trade secrets, courts must examine whether: 1) the party
seeking protection has consistently treated the information as closely guarded secrets; 2) the
information represents substantial value to that party; 3) the information would be valuable to the
party’s competitors; and 4) the information derives its value by virtue of the effort of its creation
and lack of dissemination. Chicago Tribune Co., 263 F.3d at 1313–14.
“A party’s privacy or proprietary interest in information sometimes overcomes the interest
of the public in accessing the information.” Romero, 480 F.3d at 1246 (citing Nixon, 435 U.S. at
598). Moreover, the common-law right of access to judicial proceedings does not extend to
discovery documents or discovery disputes, “as these materials are neither public documents nor
judicial records.” Chicago Tribune Co., 263 F.3d at 1311. However, discovery material submitted
in conjunction with substantive motions that are “presented to the court to invoke its powers or
affect its decisions” is subject to the public right of access, regardless of whether the motion is
6
dispositive or not. Romero, 480 F.3d at 1245–46 (citations omitted); see also FTC v. AbbVie
Prods. LLC, 713 F.3d 54, 62–64 (11th Cir. 2013) (discussing what legal document filings
constitute judicial records).
Though a stipulated protective order may provide that documents designated confidential
are presumptively protected, a party’s calling a document confidential pursuant to a protective
order “does not make it so” when it comes to filing the document with the Court. Estate of Martin
Luther King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353, 1362 (N.D. Ga. 2002). “[C]onsensual
protective orders merely delay the inevitable moment when the court will be called upon to
determine whether Rule 26(c) protection is deserved, a decision ultimately rooted in whether the
proponent demonstrates ‘good cause.’” Id. Even when, as in this case, the motion to seal is
presented without any challenge from the litigants, the judge remains “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.’” Id. at
1363 (quoting Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th
Cir. 1999)). “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, 960 F.2d at 1016. Whether to seal such a matter
is a decision “left to the sound discretion of the trial court.” Nixon, 435 U.S. at 599.
A.
Plaintiff’s Motion to Seal Opposition to Defendants’ Motion for Attorneys’
Fees and Expenses (Doc. 368)
Plaintiff contends its unredacted Opposition brief should be sealed “because it contains
proprietary, confidential business information and/or trade secrets designated confidential”
pursuant to the Protective Order. (Doc. 368, p. 1.) Plaintiff also notes that certain, unspecified
exhibits contain information that should also be sealed. (Id.) Plaintiff shows that other motions
have been filed under seal and asserts that permanently sealing its unredacted Opposition brief “is
7
essential to protect confidential and proprietary business information designated as such by BASF,
Defendants, and other third parties.” (Id. at p. 2.)
The Court has compared, in camera, the redacted content in Plaintiff’s publicly-filed
Opposition brief, (doc. 371), to the unredacted, manually filed version, (doc. 370), and finds that
many of the redactions are overbroad and lack a discernable connection to proprietary business
information. 3 For example, Plaintiff redacts legal and factual positions that it and Defendants
advanced before the Patent and Trademark Officer during inter partes review, a public proceeding.
(See Doc. 371, pp. 7–8, 20.) It also seeks to redact the amount Defendants paid its expert, Mr.
Fowler, (see id. at pp. 8–9), and common information about his background, (see id. at p. 23).
Along these same lines, Plaintiff seeks to redact generic factual contentions that have little, if any,
observable connection to technical, proprietary business information, (see id. at pp. 1, 14–17, 20–
21, 25 n.14.) 4 Plaintiff also seeks to redact the titles and record citations of certain documents,
(see id. at pp. 11–12). In fact, Plaintiff proposes that the Court redact every record citation of the
information it argues should be confidential, (see id.).
What is more, some of the redacted content that actually pertains to proprietary business
information, (see id. at pp. 6–8), is now publicly available via the Court’s Summary Judgment
Order, (see doc. 355, pp. 18–20 (discussing whether leaving a polymer gel heel in the reactor
3
Because Plaintiff did not specify which of its forty-five (45) exhibits contained redactions and information
allegedly worthy of sealing, the Court limited its review to only the publicly-filed, redacted content in
Plaintiff’s Opposition brief, (doc. 371). Should Plaintiff again seek to have this information sealed, it must
specifically identify the relevant exhibits and information and explain, consistent with controlling law, why
that content should be shielded from the public’s presumed right of access.
4
To offer an illustration, some of this information concerns a 1985 license agreement pertinent to the
Sanyo SANWET® Process and when certain individuals or entities later learned about the Process.
(Doc. 371, pp. 14, 20–21.) On its face, this content, which consists only of surface level descriptions, hardly
constitutes the type of proprietary business information worthy of an order to seal. Cf. Shane Grp., Inc. v.
Blue Cross Blue Shield, 825 F.3d 299, 309 (6th Cir. 2016) (“[T]he particulars of years-ago negotiations are
unlikely to amount to a trade secret.”)
8
places the Sanyo SANWET® Process outside the meaning of the ’329 patent claim language)).
When seeking partial redaction of this Order, Plaintiff did not argue that information regarding
polymerized gel “heels” left in the bottom of reactors warranted sealing, (see docs. 411, 411-2).
Given the pervasive disconnect between Plaintiff’s purported reason for sealing its
Opposition brief—that it contains proprietary, technical trade secrets—and much of what is sought
to be shielded from public view—content that does not concern this avowed business rationale—
Plaintiff has not shown “good cause” to seal this judicial record. Critically, what Plaintiff seeks
to seal is not only the underlying discovery but the Opposition brief itself. This document, unlike
the discovery it discusses, is presumptively a judicial record subject to the public’s presumed right
of access. See Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1167
(11th Cir. 2019) (“[M]aterials submitted by litigants . . . that are ‘integral to the judicial resolution
of the merits’ in any action taken by that court are subject to the common law right of access and
the necessary balancing of interests that the right entails.” (citation omitted)).
Plaintiff’s
Opposition brief, like Defendants’ Motion for Attorneys’ Fees and Expenses, is a document that
is central to the substance of this case and “invoke[s] judicial resolution of the merits.” AbbVie
Prods., LLC, 713 F.3d at 63. Moreover, the exhibits attached to this brief are also subject to the
common-law right of access. See Advance Local Media, LLC, 918 F.3d at 1166–67 (exhibits
attached to a complaint and discovery material attached to motions subject to public access). 5
5
“Obviously briefs filed in support of or in opposition to dispositive motions, as well as the exhibits
attached thereto, are also ‘judicial records’ subject to the common-law right of access.” Brown v. City of
Prattville, Ala., No. 2:09-CV-918-MEF, 2011 WL 231148, at *1 n.1 (M.D. Ala. Jan. 24, 2011); see also
Wi-LAN USA, Inc. v. Telefonaktiebolaget TM Ericsson & Ericsson Inc., No. 12-23569-CV, 2015 WL
12976849, at *3 (S.D. Fla. Apr. 17, 2015) (denying motion to seal response to summary judgment). The
Eleventh Circuit has held that the public’s right of access attaches to a motion “whether or not [it is]
characterized as dispositive.” Romero, 480 F.3d at 1246 (citations omitted). Accordingly, these briefs and
their exhibits are plainly subject to the common-law right of access.
9
While it is true that materials containing proprietary or trade secret information may be
permissibly filed under seal, e.g. Corbett v. Transportation Security Administration, 767 F.3d
1171, 1183 (11th Cir. 2014) (sealing operations manual for advanced imaging scanner because it
expressly prohibited disclosure and required written permission for reproduction), the party
seeking to have such material sealed must explain why it should be sealed. In Corbett, a case cited
by Plaintiff, (doc. 368, pp. 1–2), the operations manual was specifically sealed due to the seller’s
express limitations on making its content public and not simply because it was copyrighted or
labeled proprietary, see 767 F.3d at 1176, 1183. In Reid v. Viacom International Inc., another case
cited by Plaintiff, the court sealed several exhibits or portions of exhibits filed in conjunction with
the defendant’s summary judgment motion. No. 1:14-CV-1252-MHC, 2016 WL 4157208, at *2–
7 (N.D. Ga. Jan. 25, 2016). As is indicated by its analysis, the Reid court was willing to grant the
motions to seal in large part because the parties had provided particularized reasons as to why
specific information contained in supporting exhibits warranted sealing. Id. Even so, the Reid
court scrutinized this reasoning and did not seal every exhibit at issue.
Id. at *2–3, *6.
Furthermore, the summary judgment motion and the response thereto were neither sealed nor
redacted. See Mot. & Resp., Reid v. Viacom International Inc., 1:14-cv-1251 (N.D. Ga. Sep. 9 &
Oct. 29, 2015), ECF Nos. 100, 108.
Here, unlike the parties in Reid and Corbett, Plaintiff has offered only blanket assertions
of confidentiality, and it does not bother to explain, with any degree of specificity, why sealing the
content related to the many redactions in its brief is warranted. “[S]tereotyped and conclusory
statements [] do not establish good cause” to seal. Romero, 480 F.3d at 1247 (citations omitted
and internal quotations omitted). To be sure, some of the redacted content in Plaintiff’s publiclyfiled brief, (doc. 371), which is sought to be filed under seal without redaction by this Motion,
10
does appear to qualify for trade secret protection. But Plaintiff neither offers specific argument
nor endeavors to delineate information that ostensibly constitutes trade secrets from information
that facially does not. By proceeding in this generalized manner, Plaintiff has failed to show
possible harm to legitimate privacy interests, Romero, 480 F.3d at 1246, and failed to establish
that the information it seeks to redact actually constitutes proprietary trade secrets, Chicago
Tribune Co., 263 F.3d at 1313–14.
In other words, Plaintiff does not show “good cause” to seal its Opposition brief. See
Nielson v. Portfolio Recovery Assocs., LLC, No. CV 2:18-1610-RMG, 2019 WL 2513722, at *2–
5 (D.S.C. June 18, 2019) (denying conclusory motion to seal that sought sealing of purported
sensitive business information but did not substantiate its status as such); Pledger v. Reliance Tr.
Co., No. 1:15-CV-4444-MHC, 2019 U.S. Dist. LEXIS 45668, at *66–67 (N.D. Ga. Feb. 25, 2019)
(denying motion to seal where movant did not address factors governing whether to seal reflected
in case law and relied solely on the material’s confidentiality designation under a joint protective
order); United States v. Lee Mem’l Health Sys., No. 2:14-CV-437-FTM-38CM, 2018 WL
4492271, at *4–8 (M.D. Fla. Sept. 19, 2018) (denying without prejudice motion to seal because it
was not supported by detailed description of the information to be sealed, including purported
trade secrets, and the reasons why each piece of information should be sealed); In re McCormick
& Co., Pepper Prods. Mktg. & Sales Practices Litig., 316 F. Supp. 3d 455, 467–71 (D.D.C. 2018)
(denying motions to seal and requiring movants to submit narrowly tailored, specifically supported
redactions of the documents sought to be sealed); Nelson v. Nissan N. Am., Inc., No. CV 11-5712
(JEI/AMD), 2014 WL 12617593, at *4–8 (D.N.J. Dec. 22, 2014) (denying motion to seal where
movant, relying on general allegations, failed to establish that the documents it wanted sealed
actually contained trade secrets); see also Pfizer, Inc. v. Teva Pharm. USA, Inc., No. CIV.A. 08-
11
1331 (DMC), 2010 WL 2710566, at *5–6 (D.N.J. July 7, 2010) (denying motion to redact
transcript where the requests to seal were “not supported by a brief or particularized argument,”
were “overbroad and only supported by general allegations of harm,” and left “unexplained how
the disclosure of this type of information could result in a specific and serious injury”).
Accordingly, the Court DENIES without prejudice Plaintiff’s Motion to Seal Opposition
to Defendants’ Motion for Attorneys’ Fees and Expenses. (Doc. 368) As it stands, the Court can
only consider the redacted version of Plaintiff’s Opposition brief and attached exhibits.
(Doc. 371.) If Plaintiff wants the Court to substantively consider the unredacted version of its
Opposition brief, Plaintiff must first file a more narrowly tailored redacted version—consistent
with this Order and the Court’s July 3, 2019 Order, (doc. 414)—and then file a properly-supported
Motion to Seal the unredacted version, offering particularized reasons why the specific information
that has been redacted from the publicly-filed version warrants the sealed filing of an unredacted
version. These instructions apply with equal force to any currently redacted exhibits attached to
Plaintiff’s Opposition brief.
B.
Defendants’ Motion to Seal Reply in Support of Defendants’ Motion for
Attorneys’ Fees and Expenses (Doc. 379)
Defendants contend their Reply in Support should be sealed for three reasons. (Doc. 379,
pp. 1–2.) First, the Reply quotes portions of the Court’s previously sealed Summary Judgment
Order; second, the Reply quotes portions of Plaintiff’s redacted Opposition brief; and third, the
Reply quotes from materials designated by Plaintiff as highly confidential under the Protective
Order. (Id.) As to this third category, Defendants note that one of the documents they quote from
is Plaintiff’s interrogatory response, the content of which is similar to a public assertion Plaintiff
previously made to the Patent and Trademark Office. (Id. at p. 2.)
12
The Court has considered Defendants’ Motion and compared, in camera, the redacted
content in the publicly-filed version of the Reply in Support, (doc. 382), to the unredacted,
manually-filed version, (doc. 384), and finds that a great deal of the redactions do not involve
information which could be rightly considered trade secrets. For example, Defendants redact
deposition testimony that concerns the extent to which Plaintiff’s Rule 30(b)(6) designee prepared
for her deposition and the steps Plaintiff took to unearth certain discovery materials. (See
Doc. 382, pp. 9–11.) Although this deposition transcript was covered by the parties’ Protective
Order, this particular area of testimony does not relay any information that facially warrants
sealing. Moreover, the existence of a stipulated protective order is largely irrelevant to whether
certain documents or information actually warrant sealing when filed as a judicial record. These
types of protective orders “merely delay the inevitable moment when the court will be called upon
to determine whether Rule 26(c) protection is deserved, a decision ultimately rooted in whether
the proponent demonstrates ‘good cause.’” Estate of Martin Luther King, Jr., Inc., 184 F. Supp.
2d at 1362. Here, the existence and applicability of the Protective Order alone is not good cause
to seal Defendants’ Reply in Support.
Furthermore, given that the Court has now unsealed its Summary Judgment Order as well
as Defendants’ Motion for Attorneys’ Fees and Expenses, (doc. 414), some of Defendants’ stated
reasons for redacting and seeking sealed protection of certain content in its Reply have become
moot. For instance, the Court has already found Plaintiff’s interrogatory response—that “prior to
the invention of the ’329 patent, conical tapers and inert gas had never been used to remove the
claimed polymer gels from reactors,” (doc. 207-31, p. 29)—should not be sealed. (Doc. 414,
pp. 14–16.) Further, the Court has entirely unsealed its Summary Judgment Order, (id. at pp. 18–
13
26), and Defendants’ underlying Motion for Attorneys’ Fees and Expenses, (id. at pp. 12–18). As
such, Defendants’ proffered reasons do not supply “good cause” to seal their Reply in Support.
However, like with Plaintiff’s Opposition brief, some of the redacted content in
Defendants’ Reply in Support may discuss actual trade secrets or other proprietary business
information that warrants sealing. Nevertheless, given the lack of detailed argument addressing
the specific redactions in Defendants’ Motion, the Court cannot determine what portions of this
information should remain publicly-redacted and be filed under seal without redaction. There
being no particularized reasons to seal otherwise shown, the Court finds that Defendants have not
shown “good cause” to seal their Reply in Support.
Accordingly, the Court DENIES without prejudice Defendants’ Motion to Seal Reply in
Support of Defendants’ Motion for Attorneys’ Fees and Expenses. (Doc. 379.) As it stands, the
Court can only consider the redacted version of their Reply in Support. (Doc. 382.) If Defendants
want the Court to substantively consider the unredacted version of their Reply in Support,
Defendants must first file a more narrowly tailored redacted version—consistent with this Order
and the Court’s July 3, 2019 Order, (doc. 414)—and then file a properly-supported Motion to Seal
the unredacted version, offering particularized reasons why the specific information that has been
redacted from the publicly-filed version warrants the sealed filing of an unredacted version.
C.
Plaintiff’s Motion to Seal BASF’s Surreply in Opposition to Defendants’
Motion for Attorneys’ Fees and Expenses (Doc. 393)
Plaintiff’s Motion to Seal its Surreply in Opposition essentially parrots Plaintiff’s alreadydiscussed Motion to Seal its Opposition brief. (Compare Doc. 368, with doc. 393.) The only
discernable textual difference is that Plaintiff replaced the sentence, “This is unsurprising for a
patent litigation between marketplace competitors dealing with complex chemical and physical
processes,” (doc. 368, p. 1), with the sentence, “Some of that information describes confidential
14
and proprietary chemical processes,” (doc. 393, pp. 1–2). Additionally, Plaintiff notes that, by this
Motion, it only seeks to seal the Surreply in Opposition itself and not any of the accompanying
exhibits. (Id. at p. 1 n.1.)
As done previously, the Court has compared, in camera, the redacted content in Plaintiff’s
publicly-filed Surreply in Support, (doc. 398), to the unredacted, manually-filed version,
(doc. 395), and again finds that many of the redactions are overbroad, without a discernable
connection to proprietary business information. By way of example, Plaintiff redacts historical
information about when the use of the Sanyo SANWET® Process began, (doc. 398, pp. 8–9);
discussion and quotation of a publicly-filed patent claim construction order, (id. at p. 10; see
doc. 122, p. 18); non-technical deposition testimony, (doc. 398, p. 16); the month and year in which
Defendant SNF Holding Company (“SNF”) allegedly became aware of the Sanyo SANWET®
Process, (id. at p. 21); and the year in which Defendant SNF allegedly first knew about its expert
witness, (id. at p. 22).
It is possible that this seemingly innocuous information has true trade secret value, but such
a determination is made impossible by Plaintiff’s conclusory Motion to Seal, (see doc. 393). Some
of the other redactions not mentioned here, moreover, might deserve to be sealed. Nonetheless,
given the lack of particularized discussion and the redaction of facially non-proprietary
information, Plaintiff has not shown “good cause” to seal its Surreply in Opposition. Thus, the
Court DENIES without prejudice Plaintiff’s Motion to Seal this filing. (Doc. 393.)
As it stands, the Court can only consider Plaintiff’s redacted version of its Surreply in
Opposition. (Doc. 398.) If Plaintiff wants the Court to substantively consider the unredacted
version of its Surreply, Plaintiff must first file a more narrowly tailored redacted version—
consistent with this Order and the Court’s July 3, 2019 Order, (doc. 414)—and then file a properly
15
supported Motion to Seal the unredacted version, offering particularized reasons why the specific
information that has been redacted from the publicly-filed version warrants the sealed filing of an
unredacted version.
D.
Defendants’ Motion to Seal Declarations Supporting Local Rule 54.2(c)
Detailed Itemization and Specification of Requested Award of Attorneys’ Fees
and Nontaxable Costs (Doc. 373)
In support of this Motion to Seal, Defendants state that the declarations “disclose attorney
rates and fees paid by [them] in connection with the defense of [this] action.” (Doc. 373, p. 1.)
Defendants argue these billing rates, “and the data from which these rates were calculated,”
constitute confidential commercial information under the Protective Order. (Id.) If publicly
known, Defendants contend, these rates “would provide a competitive commercial advantage to
competitors of Defendants’ attorneys and would compromise trade secrets of data compilation
companies, including at least Price Waterhouse Coopers.” (Id.) Defendants manually submitted
these declarations, (doc. 374), but did not publicly file redacted versions of them. As such, the
Court has conducted an in camera review of Defendants’ declarations and analyzes their request
to seal as follows.
To begin, many of the documents Defendants seek to seal here do not align with their stated
reasons, i.e. Defendants seek to seal documents that do not reveal billing rates or data compilation
trade secrets. This material includes: the Declaration of James R. Carlson, Defendant SNF’s
Senior Vice President, who avers that SNF has remitted payment for legal services and includes a
spreadsheet showing specific invoices paid to expert witnesses and law firms without indicating
any rates; and the Third Declaration of James W. Dabney, lead counsel for Defendants, who, while
disclosing billing rate information, also includes information readily available to the public, such
as his professional background, his firm profile page, his professor profile page, and news articles
16
about his past distinguished work. (See id.) Defendants also seek to seal Mr. Dabney’s bar
admissions as well as the firm profile pages of several partners and associates at his firm. (See id.)
Regarding the data from Price Waterhouse Coopers, Defendants seek to seal a BRASSplus
Revenue Management Report, (see id.), an annual survey of billing rates for law firm partners and
associates in which “nearly 75% of the largest, most profitable law firms” participate. See Price
Waterhouse
Coopers,
Billing
Rate
&
Associate
Salary
Surveyplus
(BRASSplus),
https://www.pwc.com/us/en/industries/law-firms/surveys/brass-survey.html (last visited July 18,
2019). Although participating firms receive this survey, it is not available to the public. See id.
Defendants, however, also include two editions of the American Intellectual Property Law
Association’s (“AIPLA”) biennial Report of the Economic Survey, (see doc. 374), which are
available to the public for purchase, see AIPLA, The Report of the Economic Survey,
https://www.aipla.org/home/news-publications/economic-survey (last visited July 18, 2019). The
rest of the filings Defendants seek to have sealed consist of: a copy of the docket in this case,
deposition notices, and two additional attorney declarations—from Lee L. Kaplan and James W.
Brady Jr.—both of which contain, inter alia, professional-biographical information that is
irrelevant to any possible trade secret concerns. (See Doc. 374.)
As this review reveals, Defendants seek to seal a considerable amount of information that
is either unrelated to attorney billing rates, already publicly available, or both. Even accepting
Defendants’ premise, there is no “good cause” to seal such information. Turning to the attorney
billing rates and related summary of paid invoices, the Court notes that Defendants provide no
legal authority in support of their Motion to Seal this information. (See Doc. 373.) While they
invoke the stipulated Protective Order, (doc. 39), in this Court, a litigant’s confidentiality
designation under a protective order does not automatically make it so when it comes to filing the
17
document on the Court’s docket. See Local R. 79.7 (“Any person desiring to have any matter
placed under seal shall present a motion setting forth the grounds why the matter presented should
not be available for public inspection.”).
Moreover, courts have found “that a purported concern over the public filing of counsel’s
hourly rates is not a sound legal basis to seal.” Procaps S.A. v. Patheon Inc., No. 12-24356-CIV,
2013 WL 5928586, at *3 (S.D. Fla. Nov. 1, 2013). “Attorney[s’] hourly rates are routinely
public[ly] disclosed and discussed in judicial opinions at all levels.” Id. at *4 (emphasis in original)
(collecting cases). This principle remains true in patent litigation. See, e.g., Envtl. Mfg. Sols.,
LLC v. Peach State Labs, Inc., 274 F. Supp. 3d 1298, 1320 (M.D. Fla. 2017) (discussing specific
partner and associate hourly rates in patent infringement action); Shipping & Transit, LLC v.
LensDiscounters.com, No. 16-80980-CIV, 2017 WL 5434581, at *7 (S.D. Fla. July 11, 2017)
(same); Kilopass Tech., Inc. v. Sidense Corp., 82 F. Supp. 3d 1154, 1171 (N.D. Cal. 2015) (same). 6
Case law even reveals the hourly rates of attorneys working for the subject law firm. “[T]he
standard hourly rate charged in 2011 by the well-known law firm of Hughes Hubbard & Reed in
New York City ranged from $625 to $990 for partners, and from $270 to $695 for associates.”
Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 503810, at *15 (W.D.N.Y. Feb. 14, 2012);
see also Decl., EVEMeta, LLC v. Siemens Convergence Creators Holding GmbH, 2:17-cv-6246
(C.D. Cal. Sept. 22, 2017), ECF No. 52-1, p. 2 (declaration of Hughes Hubbard & Reed partner
6
To be sure, courts in some cases have found that counsel’s hourly rates are “competitively sensitive” and
have therefore allowed fee-request information to be sealed. See, e.g., In re Anthem, Inc. Data Breach
Litig., No. 15-MD-02617-LHK, 2018 WL 3067783, at *2 (N.D. Cal. Mar. 16, 2018) (sealing specific hourly
rates, but not the aggregate fee amounts, due to possible impairment of the attorneys’ bargaining power).
This, however, is the minority position. Procaps S.A., 2013 WL 5928586, at *5. Furthermore, as explained
in Procaps S.A., attorney hourly billing rates “are frequently discussed in public and written about in the
legal media” and are generally always disclosed in connection with attorneys’ fees motions. Id. at *5–6.
Finally, disclosure of hourly rates when seeking attorneys’ fees is commonplace in the Southern District of
Georgia. See, e.g. Whitesell Corp. v. Electrolux Home Prods., Inc., No. CV 103-050, 2019 WL 1714131,
at *3–4 (S.D. Ga. Apr. 17, 2019).
18
disclosing hourly rate of $950); Banco Cent. Del Paraguay v. Paraguay Humanitarian Found., Inc.,
No. 01 CIV. 9649 (JFK), 2007 WL 747814, at *2 (S.D.N.Y. Mar. 12, 2007) (finding reasonable
Hughes Hubbard & Reed’s partner hourly rate of $700 and associate hourly rates of $485 and
$280).
What is more, in this case, Defendants have previously filed—unsealed and unredacted—
documents disclosing Mr. James W. Dabney’s $1,250 per hour billing rate. (Doc. 416-1, p. 21;
see also docs. 360-2, 367.) The Court cannot discern a logical basis to permit Defendants to seal
attorney rate information for its law firm here when such information is already publicly available,
both on this Court’s docket and elsewhere. Absent a particularized reason to seal specific hourly
rates, which Defendants do not offer, the Court cannot find “good cause” to blanket seal the rate
information discussed in the declarations and exhibits supporting Defendants’ Local Rule 54.2(c)
statement. 7 Simply stating that a competitive commercial disadvantage would result, (doc. 373,
p. 1), does not suffice.
Accordingly, for the foregoing reasons, the Court DENIES without prejudice
Defendants’ Motion to Seal Declarations Supporting Local Rule 54.2(c) Detailed Itemization and
Specification of Requested Award of Attorneys’ Fees and Nontaxable Costs. (Doc. 373.) The
Court denies this Motion without prejudice so that Defendants may, if they wish, seek to have
some of the declaration contents not already discussed herein sealed. 8 However, Defendants shall
7
Information concerning attorneys’ fees is generally not privileged. O’Neal v. U.S., 258 F.3d 1265, 1276
(11th Cir. 2001) (citations omitted). Further, it is doubtful that a substantiation of legal fees “will reveal
confidential information.” Id.
8
In so stating, the Court expresses no opinion as to whether any such content is actually worthy of seal.
Indeed, the Court has made clear that much of the documentation Defendants requested to be sealed by this
Motion does not need to be protected from public access. If Defendants file a subsequent motion to seal
the requisite Local Rule 54.2(c) itemization and specification, they are advised to narrowly tailor the content
sought to be sealed and to offer particularized reasoning why specific exhibits or statements therein should
be sealed.
19
not seek to file under seal information which is already public (e.g. attorney profile pages), or
which does not generally warrant sealing (e.g. attorney billing rates). Furthermore, to the extent
the hourly rate reports from Price Waterhouse Coopers and the AIPLA actually disclose data
compilation trade secrets, Defendants may submit appropriate excerpts of these documents; they
need not be submitted in full to support Defendants’ contentions.
Any subsequent motion to seal these declarations and accompanying exhibits must account
for, and be consistent with, this Order and the Court’s July 3, 2019 Order, (doc. 414). Pursuant to
Local Rule 54.2(c), should Defendants remain the prevailing parties following Plaintiff’s appeal
before the Federal Circuit, the Court extends the time for them to file their detailed specification
and itemization of their requested attorney’s fees award for twenty-one (21) days from the date
the Federal Circuit issues its mandate.
E.
Plaintiff’s Motion to Seal BASF Corp.’s Motion Pursuant to Federal Rule of
Civil Procedure 54(d)(2)(C) for Adversary Submissions Regarding
Defendants’ Local Rule 54.2(c) Detailed Itemization and Specification of
Requested Award of Attorneys’ Fees and Nontaxable Costs (Doc. 388)
Plaintiff seeks to file under seal its Federal Rule of Civil Procedure 54(d)(2)(C) Motion as
it discusses Defendants’ lawyers practices that Defendants designated confidential and which was
provided under the stipulated Protective Order. (Doc. 388, pp. 1–2.) Plaintiff publicly filed a
redacted copy of its Rule 54(d)(2)(C) Motion. (Doc. 390.) The Court has compared, in camera,
this redacted version to the unredacted, manually-filed version, (doc. 389), and finds that Plaintiff
only seeks to seal content found in Defendants’ Local Rule 54.2(c) declarations and exhibits. In
light of the Court’s denial of Defendant’s Motion to Seal this content, Plaintiff’s present Motion
to Seal has been rendered moot. Therefore, the Court DENIES as moot Plaintiff’s Motion to Seal
BASF Corp.’s Motion Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C) for Adversary
20
Submissions Regarding Defendants’ Local Rule 54.2(c) Detailed Itemization and Specification of
Requested Award of Attorneys’ Fees and Nontaxable Costs. (Doc. 388.)
II.
Plaintiff’s Motion to Defer Determination of Costs and Response in Opposition to
Defendants’ Bill of Costs (Doc. 391)
As part of its request for attorneys’ fees and pursuant to Federal Rule of Civil
Procedure 54(d), Defendants filed a Bill of Costs. (Doc. 375.) Plaintiff argues that the Court
should defer adjudication of Defendants’ request for costs until the Federal Circuit decides
Plaintiff’s appeal. (Doc. 391, p. 2; see also doc. 403, pp. 3–4.) Plaintiff previously made this
request in its Opposition brief to Defendants’ Motion for Attorneys’ Fees and Expenses, (doc. 371,
pp. 2–3), and its Surreply to the same, (doc. 398, pp. 2–3). Defendants filed Replies opposing
deferral by the Court. (Doc. 401, pp. 5–6, doc. 382, pp. 21–23; see also doc. 400, pp. 5–7.)
Under 35 U.S.C. § 285, “[t]he court in exceptional cases may award reasonable attorney
fees to the prevailing party.” In turn, Federal Rule of Civil Procedure 54(d) ordinarily allows the
prevailing party to obtain “costs” other than attorney fees, such as clerk of court fees, docketing
fees, and transcript printing fees. See 28 U.S.C. § 1920 (outlining taxable costs); Mathews v.
Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007) (“Under Rule 54(d), there is a strong presumption
that the prevailing party will be awarded costs . . . [but they] may not exceed those permitted by
28 U.S.C. § 1920.” (citations omitted)).
When an appeal occurs, the Federal Rules of Civil Procedure grant the district court
discretion to defer adjudication of these matters. “If an appeal on the merits of the case is taken,
the court may rule on the claim for [attorney’s] fees, may defer its ruling on the motion, or may
deny the motion without prejudice” and provide a new period for filing after the appeal has been
resolved. Fed. R. Civ. P. 54 advisory committee’s note to 1993 amendment; see also Fed. R. Civ.
P. 58 advisory committee’s note to 1993 amendment (“[I]f the claim for [attorney’s] fees involves
21
substantial issues or is likely to be affected by the appellate decision, the district court may prefer
to defer consideration of the claim for fees until after the appeal is resolved.”) Furthermore, like
with attorneys’ fees motions, a court “has discretion to postpone the taxation of costs pending the
resolution of an appeal.” U.S. ex rel. Lewis v. Walker, No. 3:06-CV-16 CDL, 2010 WL 5169085,
at *1 (M.D. Ga. Dec. 13, 2010) (collecting cases); see also Grovner v. Georgia Dep’t of Nat. Res.,
No. 2:13-CV-89, 2015 WL 6453163, at *3 (S.D. Ga. Oct. 23, 2015) (“Rule 54 grants the Court
wide discretion to control the timing of decisions on motions for costs filed during the pendency
of an appeal . . . .”).
Pursuant to this authority, Plaintiff contends the Court should defer resolution of
Defendants’ Motion for Attorneys’ Fees and Expenses, (doc. 360), because doing so would
preserve both judicial and party resources, (doc. 371, p. 3). As Defendants’ prevailing party status
may change as a result of the appeal, Plaintiff states the Court “need not” sort through the disputed
bill of costs issues, (doc. 391, p. 3), or the disputed attorneys’ fees issues, (doc. 398, pp. 2–3; doc.
403, p. 3). In response, Defendants contend that the Court should not issue a deferral or stay
because, inter alia, Plaintiff’s appeal is meritless and postponement would be prejudicial to
Defendants. (Doc. 382, pp. 21–22; see also doc. 401, pp. 5–6, doc. 400, pp. 5–6.)
In this particular case, the Court finds it prudent to defer ruling on Defendants’ Motion for
Attorneys’ Fees and Expenses, (doc. 360; see also doc. 416-1), and Bill of Costs, (doc. 375). 9
9
The Court acknowledges that, in the Eleventh Circuit, it is well settled “that costs may be taxed after a
notice of appeal has been filed.” Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 64 (11th Cir. 1982) (citation
omitted). Nevertheless, the Court exercises its discretion to defer ruling on costs as well as Defendants’
request for attorneys’ fees until the culmination of Plaintiff’s appeal before the Federal Circuit. See, e.g.,
Elver v. Whidden, No. 2:18-CV-102-FTM-29CM, 2019 WL 718536, at *2 (M.D. Fla. Feb. 20, 2019)
(“Immediate resolution of the motions [for costs and fees] is unwarranted given the procedural posture of
the case. Because the appeal is pending before the Eleventh Circuit Court of Appeals [], the Court denies
[the] defendants’ motions [] without prejudice.”); Flexiteek Ams., Inc. v. PlasTEAK, Inc., No. 08-60996CIV-COHN, 2010 WL 2976859, at *7 (S.D. Fla. July 20, 2010) (denying without prejudice motions for
22
Given the interrelation of the appellate court’s ultimate ruling and Plaintiff’s defense against
Defendants’ request for attorneys’ fees—that it advanced a “substantively strong” infringement
action grounded in sound legal and factual basis, (doc. 371, pp. 3–10)—prudence dictates awaiting
the appellate court’s ruling, which the Court anticipates will either support or undermine Plaintiff’s
argument against the award of attorneys’ fees; thus, deferral will permit this Court’s order on fees
to be consistent with the appellate court’s view of the case. Furthermore, deferring until such
appellate decision issues will obviate the possibility of the Court having to revisit this matter. If
the Federal Circuit rules in Plaintiff’s favor, any award of costs by this Court to the prevailing
party would be rendered null, and the Court would have to readdress this issue following appeal.
Lastly, foregoing a deferral on attorneys’ fees and costs would not avoid the specter of
piecemeal appeals. Plaintiff’s appeal has already been pending since November 2018, (doc. 362),
and both parties must refile certain documents sought to be sealed as well as consider adversary
submission issues, (docs. 390, 400, 403). In addition, Defendants have requested a hearing on the
matter of costs and fees, (doc. 361); the time necessary to schedule and prepare for this hearing
would further delay resolution of the attorneys’ fees issue and thereby almost certainly preclude
the Federal Circuit from jointly considering any appeal therefrom with Plaintiff’s pending
appeal. 10 “If this Court were to resolve the attorneys’ fees and costs issues while an appeal remains
pending, it would engage in the piecemeal adjudication of attorneys’ fees and costs. Immediate
resolution of the collateral issues of attorneys’ fees and costs is unlikely to assist the Court of
bill of costs and for attorneys’ fees and costs pending appeal before the Federal Circuit and permitting the
plaintiff to renew).
10
Furthermore, it is not uncommon in patent cases for two appeals to occur. E.g., Bayer CropScience AG
v. Dow AgroSciences LLC, 851 F.3d 1302, 1303 (Fed. Cir. 2017) (“This is the second appeal to our court
in this patent infringement lawsuit between plaintiffs-appellants [Bayer] and defendant-appellee Dow
AgroSciences LLC.”); MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 910 (Fed. Cir. 2012) (appealing
attorneys’ fee award after Federal Circuit affirmed summary judgment of non-infringement in first appeal).
23
Appeals.” Marinemax v. Nat’l Union Fire Ins. Co., No. 8:10-CV-1059-T-33AEP, 2013 WL
1222760, at *1 (M.D. Fla. Mar. 25, 2013).
Accordingly, the Court GRANTS Plaintiff’s Motion to Defer Determination of Costs.
(Doc. 391.) Rather than resolving Defendants’ Motion for Attorneys’ Fees and Expenses and Bill
of Costs, (docs. 360, 375), Defendants’ Request for Hearing, (doc. 361), and Plaintiff’s Motion for
Adversary Submissions, (doc. 390), the Court finds that denying theses motions without prejudice
and with leave to refile after the conclusion of the subject appeal better serves justice and judicial
economy. Therefore, the Court DENIES without prejudice to refile Defendants’ Motion for
Attorneys’ Fees and Expenses, (doc. 360), Defendants’ Bill of Costs, (doc. 375), Defendants’
Request for Hearing, (doc. 361), and Plaintiff’s Motion Pursuant to Federal Rule of Civil
Procedure 54(d)(2)(C) for Adversary Submissions Regarding Defendants’ Local Rule 54.2(c)
Detailed Itemization and Specification of Requested Award of Attorneys’ Fees and Nontaxable
Costs, (doc. 390).
CONCLUSION
For the reasons set forth above, the Court DENIES without prejudice: Plaintiff’s Motion
to Seal Opposition to Defendants’ Motion for Attorneys’ Fees and Expenses, (doc. 368);
Defendants’ Motion to Seal Reply in Support of Defendants’ Motion for Attorneys’ Fees and
Expenses, (doc. 379); Plaintiff’s Motion to Seal BASF’s Surreply in Opposition to Defendants’
Motion for Attorneys’ Fees and Expenses, (doc. 393); Defendants’ Motion to Seal Declarations
Supporting Local Rule 54.2(c) Detailed Itemization and Specification of Requested Award of
Attorneys’ Fees and Nontaxable Costs, (doc. 373); and DENIES as moot Plaintiff’s Motion to
Seal BASF Corp.’s Motion Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C) for Adversary
Submissions Regarding Defendants’ Local Rule 54.2(c) Detailed Itemization and Specification of
24
Requested Award of Attorneys’ Fees and Nontaxable Costs, (doc. 388). 11 The Court DIRECTS
the Clerk of Court to return the materials sought to be sealed, (see docs. 370, 374, 384, 389, 395),
to the submitting parties, Local R. 79.7(c).
The Court, however, GRANTS Plaintiff’s Motion to Defer Determination of Costs,
(doc. 391), and declines to adjudicate Defendants’ Motion for Attorney’s Fees and Expenses and
Bill of Costs, (docs. 360, 375), during the pendency of Plaintiff’s appeal to the Federal Circuit
Court of Appeals. As such, the Court DENIES without prejudice to refile: Defendants’ Motion
for Attorneys’ Fees and Expenses, (doc. 360); Defendants’ Bill of Costs, (doc. 375); Defendants’
Request for Hearing, (doc. 361); and Plaintiff’s Motion Pursuant to Federal Rule of Civil
Procedure 54(d)(2)(C) for Adversary Submissions Regarding Defendants’ Local Rule 54.2(c)
Detailed Itemization and Specification of Requested Award of Attorneys’ Fees and Nontaxable
Costs, (doc. 390). The Court DIRECTS the respective parties to, if appropriate, refile these
Motions and the Bill of Costs within twenty-one (21) days of the date that the Federal Circuit
Court of Appeals issues its mandate on the pending appeal. 12 Responsive briefing will be due
within fourteen (14) days of service of the respective motions and bill of costs, as set forth in
11
In denying these Motions to Seal without prejudice, the Court notes that, as a general matter, the genuine
existence of trade secrets or other proprietary business information within filings gives reason to seal or
redact such information from public view. Blanket assertions, however, do not suffice. Moreover, content
does not warrant confidential protection merely because it was previously filed under seal pursuant to the
Protective Order and the Southern District of Texas’s Local Rules of Practice for Patent Cases, which permit
parties more latitude to seal without motion than do this Court’s Local Rules. Compare S.D. Ga. Local R.
79.7 (requiring a motion and manual filing to seal), with S.D. Tex. Local R. of Practice for Patent Cases 16
(allowing documents to be sealed without motion and to be filed electronically). Even so, the Southern
District of Texas will only “accommodate parties’ desire to seal documents if the materials being filed are
genuinely confidential or proprietary.” Id. (emphasis in original). Thus the underlying principle remains
the same—whether a motion is first required or not, only materials that actually contain confidential or
proprietary information are worthy of seal.
12
The parties are, of course, free to refile these documents with supplemental argument based on
developments before the Federal Circuit or in response to any other relevant subsequent event. As noted
above, if following the Federal Circuit’s mandate the parties no longer seek the relief requested in these
pleadings, they are not required to file the pleadings.
25
Local Rules 7.5 and 7.6. Pursuant to Local Rule 54.2(c), should Defendants remain the prevailing
parties post-appeal and should they still seek an attorney’s fees award, they shall file and serve
their detailed specification and itemization of the requested attorney’s fees award within twentyone (21) days of the date that the Federal Circuit issues its mandate.
In so filing these documents, the parties are advised that any request to seal or redact
information contained therein must account for the Court’s findings in this Order and those in the
Order dated July 3, 2019, (doc. 414). Specifically, the parties must not move to file under seal any
information or documents found by the Court to not warrant sealing, and they must narrowly tailor
any information relevant to attorneys’ fees and costs that they still seek to have sealed. If the
parties seek to seal such content, they must offer particularized reasons as to why specific
information or documents require sealing. As is made clear throughout this Order, conclusory and
blanket assertions of confidentiality will not establish the requisite cause to seal. If, upon
reflection, the parties determine that these filings no longer need to be sealed, they may submit
them in the normal course. Local. R. 79.7(c).
SO ORDERED, this 5th day of August, 2019.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
26
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