ELDER CARE PROVIDERS OF INDIANA, INC. v. HOME INSTEAD, INC.

Filing 136

ORDER REGARDING MOTIONS TO SEAL: Counter-Defendants' Motion to Maintain Documents Under Seal [Dkt. 93] is DENIED as MOOT and Counter-Defendants' Motion to Maintain Certain Documents Under Seal and Statement A uthorizing Unsealing of Other Documents [Dkt. 111] is GRANTED. Additionally, the Court ORDERS the parties to appear for a hearing on Home Instead's remaining motions to seal [Dkts. 103, 115, 117, & 120], which is to take place on Tuesday, August 11, 2015 at 1:30 pm at 46 East Ohio Street in Courtroom 243 (see Order for additional information). Signed by Magistrate Judge Mark J. Dinsmore on 7/16/2015.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ELDER CARE PROVIDERS OF INDIANA,
INC.,

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Plaintiff,
vs.
HOME INSTEAD, INC.,

No. 1:14-cv-01894-SEB-MJD

Defendant.

ORDER REGARDING MOTIONS TO SEAL
This matter comes before the Court on Elder Care Providers of Indiana, Inc. (“Elder
Care”), Anthony Smith, Georgette Smith, and Home Again Senior Care, Inc.’s (collectively
“Counter-Defendants”) Motion to Maintain Documents Under Seal [Dkt. 93] and Motion to
Maintain Certain Documents Under Seal and Statement Authorizing Unsealing of Other
Documents [Dkt. 111]. Additionally before the Court are Home Instead, Inc.’s (“Home
Instead”) Motion for Leave to Maintain Under Seal [Dkt. 103], Motion to Maintain Certain
Documents Under Seal [Dkt. 115], Second Motion to Maintain Certain Documents Under Seal
[Dkt. 117], and Motion to Maintain Attachments 1 and 2 to the Second Declaration of Tanya
Morrison Under Seal [Dkt. 120].
For the following reasons, the Court hereby DENIES Counter-Defendants’ Motion to
Maintain Documents Under Seal [Dkt. 93] as MOOT and GRANTS Counter-Defendants’
Motion to Maintain Certain Documents Under Seal and Statement Authorizing Unsealing of
Other Documents [Dkt. 111]. The Court additionally ORDERS the parties to appear before the
Court for a hearing on Home Instead’s remaining motions to seal.
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I. Background
On November 18, 2014, Plaintiff Elder Care Providers of Indiana, Inc. filed this suit
against Defendant Home Instead, Inc. alleging that Home Instead wrongfully terminated the
parties’ Franchise Agreement, in violation of the Indiana Deceptive Franchise Practices Act, for
providing medical services in addition to the franchised nonmedical services. [Dkt. 1.] In
response, Home Instead raised several counterclaims against Elder Care and the remaining
Counter-Defendants, including misappropriation of trade secrets and trademark infringement,
alleging that the Counter-Defendants violated state and federal laws by usurping Home Instead’s
confidential business System, in violation of the Franchise Agreement. [Dkt. 44.]
On February 17, 2015, Home Instead filed a Motion for Preliminary Injunction
requesting that the Court order the Counter-Defendants to cease using Home Instead’s materials
and methods, to cease working with Home Instead’s vendors, and to return any Home Instead
materials, among other requests. [Dkt. 59.] In support of the response and reply briefing
pertaining to Home Instead’s Motion for Preliminary Injunction, both Home Instead and the
Counter-Defendants submitted documents under seal, pursuant to the Court’s Protective Order
[Dkt 77]. [See Dkts. 92, 99, 100, 101, 102 (sealed attachments).]
Upon filing their response brief, Counter-Defendants moved to maintain confidentiallymarked documents under seal for fourteen days in order to give Home Instead the opportunity to
move to seal the attachments it had so designated as confidential during discovery. [Dkt. 93.]
Upon filing its reply brief, Home Instead moved to permanently seal certain exhibits to its reply
brief [Dkt. 103], and Counter-Defendants thereafter moved to permanently seal additional
exhibits filed by Home Instead in support of its reply brief [Dkt. 111]. Home Instead then
moved for the Court to permanently seal additional documents submitted as exhibits in support

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of the parties’ briefs [Dkts. 115, 117, & 120] and further moved for leave to file a reply brief in
support of one of its motions for permanent seal [Dkt. 127]. Each of the aforementioned motions
is now before the Court.
II. Discussion
“Secrecy is fine at the discovery stage, before the material enters the judicial record.”
Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (citing to Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1984)). Once documents become the underpinnings of a case, however,
such documents are presumptively subject to public inspection “unless they meet the definition
of trade secrets or other categories of bona fide long-term confidentiality,” such as “information
covered by a recognized privilege” or “information required by statute to be maintained in
confidence.” Id. at 545-46. When a motion to keep confidential documents sealed generally
asserts that the documents are “commercial” without attempting to analyze the legal reasoning
behind maintaining that seal, “[t]hat won’t do.” Id. at 546 (Easterbrook, J.). Accordingly, a
motion that “does not analyze in detail, document by document, the propriety of secrecy,
providing reasons and legal citations . . . [has] no prospect of success.” Id. at 548.
Even when a protective order providing for confidentiality is on the docket, the party who
desires the secrecy has the burden of continually showing “good cause” to maintain such
confidentiality when the confidential nature of the information is challenged. In re Bank One
Sec. Litig., 222 F.R.D. 582, 586 (N.D. Ill. 2004) (citing to Union Oil Co. of Cal. v. Leavell, 220
F.3d 562, 568 (7th Cir.2000)). The majority of information produced in the discovery process
remains private because it is never filed with the Court, but “most portions of discovery that are
filed and form the basis of judicial action must eventually be released[, as] the judge’s opinions
and orders belong in the public domain.” Union Oil Co. of California v. Leavell, 220 F.3d 562,
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568 (7th Cir. 2000). When a party presents “good cause” to maintain documents as confidential,
the Court must weigh the party’s confidentiality interest against this public right to access the
information. See Matter of Cont'l Illinois Sec. Litig., 732 F.2d 1302, 1313 (7th Cir. 1984).
The Court will first address the Counter-Defendants’ motions to seal. CounterDefendants filed their first Motion to Maintain Documents Under Seal pursuant to Local Rule 511, merely indicating that the documents filed under seal were so filed because Home Instead
had designated them as “Attorney’s Eyes Only” or “Confidential” during discovery and
requesting that the documents be maintained under seal for fourteen days in order to give Home
Instead the opportunity to demonstrate why the documents should remain under seal. [Dkt. 93.]
Home Instead has since so moved to maintain three of the five attachments under seal, but
concedes to the unsealing of Docket Entry 92-4 and Docket Entry 92-5. [Dkt. 115]. In support
of its concession, Home Instead filed a Statement of Authorization, requesting that the Court
“unseal Exhibits 22 and 33” to Counter-Defendants’ response brief. [Dkt. 113.] Accordingly,
Counter-Defendants’ first motion is DENIED as MOOT, and the Clerk of the Court is
ORDERED to UNSEAL Docket Entry 92-4 and Docket Entry 92-5.
Next, Counter-Defendants move to maintain twenty-three additional exhibits under seal
that were filed by Home Instead in support of its reply brief because the documents contain the
name, date of birth, contact information, and health information of their clients, which is
statutorily required to remain confidential pursuant to the Health Insurance Portability and
Accountability Act (HIPAA), 45 C.F.R. §§ 160.103, 164.501. [Dkt. 112]. Along with their
motion, Counter-Defendants filed a Submission of Redacted Documents, which contains
minimally-redacted copies of each of the twenty-three documents, only eliminating the clients’
names, home addresses, e-mail addresses, phone numbers, and dates of birth from the reader’s

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view. [See Dkt. 114.] Because HIPAA requires that such information be “maintained in
confidence,” the Counter-Defendants’ proposed redactions fall squarely within one of the
categories of “bona fide long-term confidentiality” contemplated by the Seventh Circuit in
Baxter. Additionally, Counter-Defendants’ minimal redactions meet the Court’s requirement
that a party seeking permanent seal must “file for public view a copy of all documents sought to
be maintained under seal from which only the information properly subject to being sealed has
been redacted,” as “[o]ver-redaction may result in the denial of a motion to seal.” [Dkt. 77.]
Accordingly, the Clerk of the Court is ORDERED to maintain under PERMANENT SEAL
Docket Entries 99-3, 99-13, 99-14, 99-18, 100-6, 100-7, 100-8, 100-9, 100-10, 100-11, 100-12,
100-18, 101-1, 101-2, 101-3, 101-4, 101-5, 101-7, 101-9, 101-10, 102-8, 102-9, and 102-10.
Finally, Home Instead has filed four motions to permanently seal a total of twenty-five
attachments in their entirety—no proposed redactions have been provided to the Court. [See
Dkts. 103, 115, 117, & 120.] While Home Instead fails to discuss the merit of permanently
sealing each individual document, it appears that the vast majority, if not all, of the documents
are blank forms and/or operations manuals. [See id.] While most of the documents were
provided by Home Instead during the discovery process, many of the documents were produced
by Elder Care but Home Instead wants them to remain sealed because it asserts that the are
substantially similar to Home Instead’s own forms and/or manuals. [See Dkt. 117.] While the
basis for permanent seal does not appear to be identical in each motion, Home Instead widely
asserts that making even portions of the documents public would expose Home Instead to a
threat of competitive injury [see, e.g., Dkt. 103] and would expose its trade secret information
and processes [see Dkt. 115]. In response, Counter-Defendants insist that the materials are not
trade secret, that much of the information is already available to the public, and that Home

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Instead’s failure to propose redactions of the documents warrants denial of Home Instead’s
motions to seal. [See Dkts. 110, 124.] The Court is disinclined to seal twenty-five documents in
their entirety but nonetheless schedules the matter for ORAL ARGUMENT.
III. Conclusion
For the aforementioned reasons, Counter-Defendants’ Motion to Maintain Documents
Under Seal [Dkt. 93] is DENIED as MOOT and Counter-Defendants’ Motion to Maintain
Certain Documents Under Seal and Statement Authorizing Unsealing of Other Documents [Dkt.
111] is GRANTED. Additionally, the Court ORDERS the parties to appear for a hearing on
Home Instead’s remaining motions to seal [Dkts. 103, 115, 117, & 120], which is to take place
on Tuesday, August 11, 2015 at 1:30 pm at 46 East Ohio Street in Courtroom 243.
Accordingly the Clerk of the Court is ORDERED to UNSEAL Docket Entry 92-4 and
Docket Entry 92-5. Additionally, the Clerk of the Court is ORDERED to PERMANENTLY
SEAL Docket Entries 99-3, 99-13, 99-14, 99-18, 100-6, 100-7, 100-8, 100-9, 100-10, 100-11,
100-12, 100-18, 101-1, 101-2, 101-3, 101-4, 101-5, 101-7, 101-9, 101-10, 102-8, 102-9, and
102-10. The following Docket Entries are to remain TEMPORARILY SEALED, pending oral
argument: 92-1, 92-2, 92-3, 99-16, 99-17, 100-13, 101-8, 101-11, 101-12, 101-13, 101-14, 10115, 101-16, 101-17, 101-18, 101-19, 101-20, 102-1, 102-2, 102-3, 102-11, 102-12, 102-13, 1191, and 119-2.
Additionally, the Clerk is hereby ORDERED to UNSEAL the following related Docket
Entries that no party has moved to seal: 99-1, 99-2, 99-4, 99-5, 99-6, 99-7, 99-8, 99-9, 99-10, 9911, 99-12, 99-15, 100-1, 100-2, 100-3, 100-4, 100-5, 100-14, 100-15, 100-16, 100-17, 100-19,
100-20, 101-6, 102-4, 102-5, 102-6, 102-7, 102-14, 102-15, 102-16, 102-17, 102-18, 102-19,
102-20, 102-21, 102-22, 102-23, 102-24, 102-25, 102-26. Pursuant to Local Rule 5-11(g), the
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Clerk is instructed to unseal these documents fourteen (14) days after the date of this order,
absent objection pursuant to Federal Rule of Civil Procedure 72(a), motion to reconsider, appeal,
or further court order extending such seal.

Dated: 07/16/2015

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Distribution:
Gregory W. Guevara
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Philip R. Zimmerly
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Ronald E. Elberger
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Adam W. Barney
CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, LLP
[e-mail]
Theresa D. Koller
CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, LLP
[e-mail]
Trenten P. Bausch
CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, LLP
[e-mail]
Adam Arceneaux
ICE MILLER LLP
[e-mail]
Mark R. Alson
ICE MILLER LLP
[e-mail]
Olga A. Voinarevich
ICE MILLER LLP
[e-mail]
Josh F. Brown
LAW OFFICES OF JOSH F. BROWN, LLC
[e-mail]

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