Entertainment USA Inc v. Moorehead Communications Inc

Filing 123

OPINION AND ORDER: GRANTING IN PART AND DENYING IN PART 110 MOTION Requesting Certain Documents Remain Under Seal re 106 Opinion and Order, by Plaintiff Entertainment USA Inc. The documents found at DE 87 , 88 and 96 shall remain under seal; ORDERING OWW to prepare redacted versions of DE 87 , 88 and 96 based on the Court's directive and file the redacted versions of these pleadings with the Clerk of the Court within thirty (30) days. Signed by Judge Rudy Lozano on 6/9/2015. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

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ENTERTAINMENT USA, INC.
Plaintiff,
vs.
MOOREHEAD COMMUNICATIONS,
INC.

NO. 1:12–CV-116

Defendant.

OPINION AND ORDER
This matter is before the Court on the Motion Requesting
Certain

Confidential

Documents

Remain

Under

Seal

filed

by

Plaintiff Entertainment USA, Inc., on April 17, 2015 (DE# 110).
For the reasons set forth below, Plaintiff’s Motion Requesting
Certain Confidential Documents Remain Under Seal (DE# 110) is
GRANTED IN PART AND DENIED IN PART.

The pleadings found at Docket

Entry numbers 87, 88 and 96 shall remain under seal.

Plaintiff is

ORDERED to (1) prepare redacted versions of Docket Entry numbers
87, 88 and 96 based on the Court’s directives below, and (2) file
the redacted versions of these pleadings with the Clerk of the
Court within thirty (30) days.

‐1‐ 

BACKGROUND
Plaintiff Entertainment USA, Inc. (“OWW”) filed a Motion for
Summary Judgment on August 18, 2014.

In doing so, OWW filed under

seal (1) its Memorandum in Support of Motion for Summary Judgment
(“SJ Memorandum”) at Docket Entry 87, and (2) an Appendix in
Support of Plaintiff’s Motion for Summary Judgment (“SJ Appendix”)
at

Docket

Entry

88.

In

response

to

Defendant

Moorehead

Communications Inc.’s (“Moorehead”) Motion for Partial Summary
Judgment, OWW filed under seal an Appendix in Opposition to
Defendant’s

Motion

for

Partial

Summary

Judgment

Appendix”) at Docket Entry 96 on September 15, 2014.

(“Opposition
OWW filed a

redacted version of this appendix at Docket Entry 98 on the same
day.

(See DE# 111 at 9.)
In its March 20, 2015 Order on the parties’ motions for

summary judgment (“March 20 Order”), the Court noted that OWW had
filed Docket Entry numbers 87, 88, and 96 under seal without moving
for approval to do so.

(DE# 106 at 44 n.11.)

OWW was ordered to

make a showing in accordance with Seventh Circuit law that these
documents should remain sealed, or they would be placed in the
public record.

(Id.)

OWW now requests that a small subset of the information
contained within Docket Entry numbers 87, 88, and 96 remain filed
under seal:

‐2‐ 



Within Docket Entry 87, the table found on pages 12-18
of the SJ Memorandum, and Exhibits F and G attached
thereto (DE# 87 at 14-21, 52-54).



Within Docket Entry 88:




Pages 81-82 and 214-17 of the transcript of the
deposition of Wade Alter (“Alter Deposition”), and
deposition exhibits 2, 12, 13 and 15 (SJ App. Ex.
M, DE# 88-2 at 9, 30-31, 34-35, 53-59); and





Paragraphs 7, 8, and 9 of the Affidavit of Chau
Nguyen (“Chau Affidavit”), and its Attachment 2 (SJ
App. Ex. A, DE# 88-1 at 2-5, 12-14);

Attachments 8, 9, 14-16, 26, 27, 31, and 32 to the
Affidavit of Jason M. Kuchmay (“Kuchmay Affidavit”)
(SJ App. Ex. O, DE# 88-11, 88-12, 88-19 through 8821, 88-31, 88-32).1

Within Docket Entry 96, the table contained in OWW’s
Statement of Genuine Disputes (Opp. App. Ex. B, DE# 962 at 14-21).2
In

response

to

OWW’s

motion,

Moorehead

identified

two

additional documents in Docket Entry 88 containing information
that it asserts should remain filed under seal:

Alter Deposition

Exhibit 8 and Kuchmay Affidavit Attachment 30.

(See DE## 88-2 at

43-47, 88-45 through 88-48.)

On May 13, 2015, the Court issued an

order for Moorehead to show cause as to why certain documents and

1

 Docket Entry 88 does not include Attachments 31 and 32 to the Kuchmay Affidavit.
Because OWW never filed these documents, they are not the subject of this Order.
Moorehead maintains that if these documents are filed, they should be filed
under seal. If OWW decides to file these documents under seal, it should follow
proper procedures for doing so.

2
 While OWW’s motion requests that “Paragraph 40” of its Statement of Genuine
Disputes remain sealed, it appears that OWW intended to request that the table
found in Paragraph 39 remain under seal.
OWW previously filed a redacted
version of this pleading in which the entire table in Paragraph 39 was redacted.
(See DE# 98-2 at 14.) 

‐3‐ 

information it designated “confidential” should remain under seal.
(DE# 118.)

On May 20, 2015, Moorehead filed its response to the

order to show cause.

(DE# 121.)

DISCUSSION
Northern District of Indiana Local Rule 5–3 provides that
“[t]he clerk may not maintain a filing under seal unless authorized
to do so by statute, court rule, or court order.”
5–3(a) (2014).

N.D. Ind. L.R.

The Seventh Circuit has held that, although there

is a general presumption that judicial records are public, that
presumption “can be overridden” by “the property and privacy
interests

of

the

litigants

.

.

.

if

the

latter

interests

predominate in the particular case” such that “there is good cause
for sealing a part or the whole of the record.”

Citizens First

Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945
(7th Cir. 1999).

Notwithstanding an agreement of parties to seal

documents, the decision of whether good cause exists to file a
document under seal rests with the Court.

See id.

exist

order

if

the

documents

are

sealed

in

to

Good cause may
maintain

the

confidentiality of trade secrets, privileged information (such as
information covered by the attorney-client privilege), and nonpublic financial and business information.

See Baxter Int'l, Inc.

v. Abbott Lab., 297 F.3d 544, 546 (7th Cir. 2002); Metavante Corp.

‐4‐ 

v. Emigrant Sav. Bank, No. 05–CV-1221, 2008 WL 4722336, at *9 (E.D.
Wis. Oct. 24, 2008).
OWW requests that portions of Docket Entry numbers 87, 88 and
96 remain under seal. The information contained in these pleadings
fall into three categories:
identifying

information;

designated

“confidential”

(2)
by

(1) Moorehead customers’ personal
documents

containing

Moorehead;

counsel’s bank account information.

and

information

(3)

Moorehead’s

The Court will address each

category in turn.

Consumer Identifying Information
OWW filed under seal several documents in Docket Entry numbers
87 and 88 that identify Moorehead customers by name.
documents

include:

SJ

Memorandum

Exhibit

G;

Alter

These

Deposition

Exhibits 2 (second page), 12, 13, and 15; and Kuchmay Affidavit
Attachments 14, 15, 16 and 30.

(DE# 87 at 53-54; DE# 88-2 at 35,

53-59; DE## 88-19 through 88-21; DE## 88-45 through 88-48.)

In

addition, the Alter Deposition transcript references a customer by
name.

(See DE# 88-2 at 30.)
The

Second

Amended

Agreed

Protective

Order

(“Protective

Order”) entered in this case provides that the personal identifying
information of wireless customers is “Confidential Information” to
be protected from disclosure.
1.)

(Protective Order ¶ 3(a), DE# 23-

The parties agree that that this Confidential Information is
‐5‐ 

not available in the public domain, that the parties “are legallyobligated to protect the confidentiality of individual customers,”
and that disclosure of this information could cause irreparable
harm.

(DE# 23 at 1 (Second Amend. Joint Mot. for a Protective

Order).)
under

The Court therefore finds good cause for OWW to file

seal

the

documents

identifying information.

containing

customers’

personal

See Principle Solutions LLC v. Feed.Ing

B.V., No. 13–C–223, 2015 WL 113292, at *3 (E.D. Wis. Jan. 8, 2015)
(finding good cause for protecting customers’ names, addresses and
contact information).
The

Protective

Order

provides

that

where

Confidential

Information is submitted in an exhibit or is incorporated in a
pleading, brief or other material submitted to the Court, the party
must also file an unsealed copy of the pleading or brief with the
Confidential Information redacted.

(DE# 23-1 at 5.)

Here, OWW

failed to file unsealed and redacted copies of Docket Entry numbers
87 and 88.

OWW shall file unsealed copies of Docket Entry numbers

87 and 88 with the customers’ personal identifying information
redacted.

‐6‐ 

Moorehead’s “Confidential” Information
OWW filed under seal several documents that were designated
“confidential” by Moorehead in Docket Entry numbers 87 and 88.
OWW requests that these documents remain under seal.3
First, Exhibit F to OWW’s SJ Memorandum and the first page of
Alter Deposition Exhibit 2 are identical copies of a table listing
referral payments made to OWW between January 2006 and June 2008.
(DE## 87 at 52; 88-2 at 34.)

The information contained in this

table merely identifies dates and referral payments made to OWW.
The Alter Deposition also includes testimony regarding this table.
(DE# 88-2 at 9.)

In response to the Court’s order to show cause,

Moorehead states that it does not contend that either this table
or Alter’s testimony regarding the table are confidential, and
notes that it originally produced the table without a confidential
designation.

(See DE# 121-2.)

Moreover, Moorehead repeatedly

disclosed referral fees paid to OWW in its own publicly-filed
summary judgment pleadings.

(See, e.g., DE# 91 at 21 (referencing

an email “enclosing a summary for May 2006 referral fees totaling
$2,230”); DE# 92-3 (Aff. of Scott R. Shanks, attaching “Moorehead’s
reports showing [referral] payments to OWW”).)

For these reasons,

the Court finds that good cause does not exist for SJ Memorandum

3

  OWW relies upon the Protective Order as the basis for non-disclosure of
information designated confidential by Moorehead. However, the Protective Order
applies only to customers’ personal identifying information, which is not found
in these documents. (See Protective Order ¶ 3(a), DE# 23-1.) 

‐7‐ 

Exhibit F, the first page of Alter Deposition Exhibit 2, and pages
81-82 of the Alter Deposition to remain under seal.

These pages

shall be not be redacted from the unsealed copies of Docket Entry
numbers 87 and 88 to be filed by OWW.
Second, Kuchmay Affidavit Attachments 8, 9, 26 and 27 were
designated confidential by Moorehead.
88-32.)

(DE## 88-11, 88-12, 88-31,

Attachments 8 and 9 purport to reflect “the activation

and upgrade summaries for Mike Kapp and Mike Trimble through July
2013.”

(DE# 88-3 at 2, Kuchmay Aff. ¶ 10.)

Attachments 26 and 27

purport to be “activation/upgrade reports produced by [Moorehead]”
for dealers Phan Tran Crop. Store and Miguel Rivera, respectively.
(DE# 88-3 at 2-3, Kuchmay Aff. ¶ 13(o-p).) These documents contain
tables listing the dealers’ activations and upgrades per month
over a period of years.

Moorehead contends that these documents

contain non-public financial and business information related to
activations and upgrades, and should not be disclosed.

Moorehead

also maintains that information relating to Kapp is irrelevant
because the March 20 Order held that OWW is not entitled to
referral fees based on its alleged referral of Mike Kapp.
cause

may

exist

if

documents

are

sealed

to

confidentiality of non-public business information.

maintain

Good
the

See Metavante

Corp., 2008 WL 4722336, at *9-*10 (finding good cause existed to
warrant

sealing

documents

containing

nonpublic

financial

and

business information); Formax Inc. v. Alkar-Rapidpak-MP Equip.,
‐8‐ 

Inc., No. 11-C-0298, 2013 WL 2452703, at *1 (E.D. Wis. June 5,
2013) (“documents containing sensitive pricing information, sales
figures, sales dollar amounts, profit and loss data, and other
financial records not normally made known to the public may be
properly filed under seal”) (citation omitted).

The Court finds

that good cause exists to maintain Kuchmay Affidavit Attachments
8, 9, 26 and 27 under seal.
Moorehead asks that these Attachments be sealed in their
entirety, but does not explain why redactions would be insufficient
to protect its confidential information.

(See DE# 121 at 5, 7.)

“To say that particular information is confidential is not to say
that

the

entire

confidential.”

document

containing

that

information

is

Methodist Hospitals, Inc. v. Sullivan, 91 F.3d

1026, 1032 (7th Cir. 1996) (remanding to order redaction of
confidential information with the remainder of the document filed
in the public record) (emphasis in original).

The Court finds

that Moorehead’s confidential information can be protected by
redacting the numbers of new accounts and upgrades from these
Attachments. Therefore, the unsealed copy of Docket Entry 88 shall
include these Attachments with the following redactions:

in

Kuchmay Affidavit Attachments 8 and 9, the amounts in the columns
entitled, “New Acts,” “Upgrades,” and “Total”; and in Attachments
26 and 27, the amounts in the columns entitled, “Count.”

‐9‐ 

Third, the SJ Memorandum, the Chau Affidavit, its Attachment
2,

and

the

Opposition

Appendix

include

OWW’s

summaries

of

information that Moorehead designated as confidential.

(DE# 87 at

14-21; DE# 88-1 at 2-5, 12-14; DE# 96-2 at 14-21.)

Moorehead

maintains that these summaries include Moorehead’s non-public
financial and business information that should not be disclosed,
specifically,

detailed

information

related

to

activations, upgrades and data and prepaid plans.

its

total

Moorehead also

notes that the March 20 Order renders some of the information
irrelevant to this case.

Like the Kuchmay Affidavit Attachments

addressed above, these submissions contain non-public business
information that legitimately qualifies as confidential.

The

Court finds that good cause exists for the summaries of Moorehead’s
confidential information to remain under seal.

See Standard

Process, Inc. v. Total Health Discount, Inc., 559 F. Supp. 2d 932,
946 (E.D. Wis. 2008) (concluding that good cause existed to seal
documents discussing confidential information).    OWW shall file
unsealed

copies

Moorehead’s

of

Docket

confidential

Entry
material

numbers

87,

redacted,

Moorehead’s response to the order to show cause.

88

and

96

as

proposed

with
in

(See DE## 121-1

(proposed redacted SJ Mem.), 121-3 (proposed redacted Chau Aff. &
Attach. 2), 121-5 (proposed redacted Opp. App. Ex. B, which
discloses more information than OWW’s redacted version at DE# 982).)
‐10‐ 

Bank Account Information
Finally,

Moorehead

asks

that

its

counsel’s

bank

account

information, which is contained in Alter Deposition Exhibit 8,
remain under seal.

(See DE# 88-2 at 44.)

The Court finds

Moorehead’s concern over the possible disclosure of counsel’s bank
account information to be legitimate.

See Goldstein v. Colborne

Acquisition Co., LLC, No. 10 C 6861, 2012 WL 3156870, at *2 (N.D.
Ill. Aug. 3, 2012); Fed. R. Civ. P. 5.2(a)(4) (filings containing
an individual’s financial-account number “may include only . . .
the last four digits of the financial-account number”). Consistent
with Federal Rules of Civil Procedure Rule 5.2, OWW shall redact
counsel’s bank account information from the publicly filed copy of
Docket Entry number 88.
In

summary,

information

in

having

Docket

found

Entry

that

numbers

87,

certain
88

and

confidential
96

warrants

remaining under seal, the Court holds that OWW shall file unsealed
copies of these pleadings with such information redacted.

The

unsealed copy of Docket Entry number 87 shall redact:
(1) all customers’ personal identifying information; and
(2) Moorehead’s confidential information, as proposed by
Moorehead (see DE# 121-1).
The unsealed copy of Docket Entry number 88 shall redact:
(1) all customers’ personal identifying information;

‐11‐ 

(2) in Kuchmay Affidavit Attachments 8 and 9, the amounts in
the columns entitled, “New Acts,” “Upgrades,” and “Total”;
(3) in Kuchmay Affidavit Attachments 26 and 27, the amounts
in the columns entitled, “Count;”
(4) in the Chau Affidavit and its Attachment 2, Moorehead’s
confidential information, as proposed by Moorehead (see DE#
121-3); and
(5) Moorehead’s counsel’s bank account information.
The

unsealed

copy

of

Docket

Entry

number

96

shall

redact

Moorehead’s confidential information, as proposed by Moorehead.
(See DE# 121-5.)

OWW shall collaborate with Moorehead to confirm

the accuracy of the redactions prior to filing.

CONCLUSION
For the reasons set forth above, OWW’s Motion Requesting
Certain Confidential Documents Remain Under Seal (DE# 110) is
GRANTED IN PART AND DENIED IN PART.

The documents found at Docket

Entry numbers 87, 88 and 96 shall remain under seal.

OWW is

ORDERED to (1) prepare redacted versions of Docket Entry numbers
87, 88 and 96 based on the Court’s directive above, and (2) file
the redacted versions of these pleadings with the Clerk of the
Court within thirty (30) days.

DATED:

June 9, 2015

/s/ RUDY LOZANO, Judge
United States District Court

‐12‐