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‐
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