LaCrosse Furniture Company v. Future Foam, Inc. et al

Filing 80

MEMORANDUM AND ORDER. IT IS THEREFORE ORDERED that Leggett & Platt, Incorporated's Motion For Leave To File Its Memorandum In Support Of Its Motion For Partial Summary Judgment And Accompanying Documents Under Seal (Doc. #68) filed January 24, 2 017 is OVERRULED. IT IS FURTHER ORDERED that Leggett & Platt, Incorporated's Motion For Leave To File Its Memorandum In Support Of Its Motion To Exclude Testimony And Expert Reports Of Dr. Orley Ashenfelter Under Seal (Doc. #70) filed January 24 , 2017 is OVERRULED. IT IS FURTHER ORDERED that Plaintiff LaCrosse Furniture Co.'s Motion For Leave To File Documents Under Seal (Doc. #73) filed February 8, 2017 is OVERRULED. IT IS FURTHER ORDERED that Plaintiff LaCrosse Furniture Co.'s M otion For Leave To File Documents Under Seal (Doc. #75) filed February 14, 2017 is OVERRULED. IT IS FURTHER ORDERED that Leggett & Platt, Incorporated's Motion For Leave To File Its Reply Memorandum In Support Of Its Motion To Exclude Testimony And Expert Reports Of Dr. Orley Ashenfelter Under Seal (Doc. #77) filed February 21, 2017 is OVERRULED. IT IS FURTHER ORDERED that Leggett & Platt, Incorporated's Motion For Leave To File Its Reply Memorandum In Support Of Its Motion For Partia l Summary Judgment And Accompanying Documents Under Seal (Doc. #78) filed February 28, 2017 is OVERRULED. IT IS FURTHER ORDERED that on or before April 17, 2017, the parties may file the proposed memoranda and exhibits not under seal. IT IS FURTHER ORDERED that plaintiff's claims against Valle Foam Industries (1995), Inc. are DISMISSED without prejudice. Signed by District Judge Kathryn H. Vratil on 4/11/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LACROSSE FURNITURE CO.,
Plaintiff,
v.
FUTURE FOAM, INC., et al.,
Defendants.

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CIVIL ACTION
No. 12-2748-KHV

MEMORANDUM AND ORDER
LaCrosse Furniture Co. brings suit against Leggett & Platt, Inc. for violation of the Kansas
Unfair Trade and Consumer Protection Act, K.S.A. § 50-101 et seq.1 Specifically, plaintiff alleges
that defendant conspired to fix the price of polyurethane foam. See Pretrial Order (Doc. #64) filed
December 19, 2016 at 3-8, 15. On December 14, 2012, the Judicial Panel on Multidistrict Litigation
(“JPML”) transferred this case for consolidated proceedings in the United State District Court for
the Northern District of Ohio. Conditional Transfer Order (Doc. #5). On May 18, 2015, the

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Plaintiff also sued Future Foam, Inc., Hickory Springs Manufacturing Company,
Carpenter Company, Carpenter Holdings, Inc., E.R. Carpenter, L.P., Crest Foam Industries, Inc.,
Flexible Foam Products, Inc., FXI-Foamex Innovations, Inc., Vitafoam Products Canada Limited,
Vitafoam, Inc., Mohawk Industries, Inc., Ohio Decorative Products, Inc. and Woodbridge Foam
Corporation, but agreed to dismiss those defendants. See Complaint (Doc. #1) filed November 29,
2012; Exhibit 2 to Conditional Remand Order (Doc. #8) filed June 10, 2015 (MDL Docs. #8, #35,
#38 and #39 dismissing Ohio Decorative Products, Inc., Crest Foam Industries, Carpenter Company,
Carpenter Holdings, Inc., E.R. Carpenter, L.P., Mohawk Industries, Inc. and Flexible Foam
Products, Inc.); Doc. #10 (dismissing Vitafoam, Inc. and Vitafoam Products Canada Limited), Doc.
#17 (dismissing Woodbridge Foam Corporation, Woodbridge Sales & Engineering, Inc. and
Woodbridge Foam Fabricating, Inc.), Doc. #35 (dismissing Hickory Springs Manufacturing
Company), Doc. #44 (dismissing FXI Holdings, Inc.) and Doc. #58 (dismissing Future Foam, Inc.).
Plaintiff also sued Valle Foam Industries (1995), Inc., see Complaint (Doc. #1) ¶ 9, but the
docket reflects no service on that defendant. According to the pretrial order, Leggett & Platt is the
sole remaining defendant. See Pretrial Order (Doc. #64) at 1. Accordingly, the Court dismisses
Valle Foam Industries (1995), Inc. as a defendant in the case.

transferee court remanded the case to this Court. Conditional Transfer Order (Doc. #6). This matter
comes before the Court on Leggett & Platt, Incorporated’s Motion For Leave To File Its
Memorandum In Support Of Its Motion For Partial Summary Judgment And Accompanying
Documents Under Seal (Doc. #68) filed January 24, 2017, Leggett & Platt, Incorporated’s Motion
For Leave To File Its Memorandum In Support Of Its Motion To Exclude Testimony And Expert
Reports Of Dr. Orley Ashenfelter Under Seal (Doc. #70) filed January 24, 2017, Plaintiff LaCrosse
Furniture Co.’s Motion For Leave To File Documents Under Seal (Doc. #73) filed February 8, 2017,
Plaintiff LaCrosse Furniture Co.’s Motion For Leave To File Documents Under Seal (Doc. #75)
filed February 14, 2017, Leggett & Platt, Incorporated’s Motion For Leave To File Its Reply
Memorandum In Support Of Its Motion To Exclude Testimony And Expert Reports Of Dr. Orley
Ashenfelter Under Seal (Doc. #77) filed February 21, 2017 and Leggett & Platt, Incorporated’s
Motion For Leave To File Its Reply Memorandum In Support Of Its Motion For Partial Summary
Judgment And Accompanying Documents Under Seal (Doc. #78) filed February 28, 2017.
Legal Standards
Federal courts have long recognized a common law right of access to judicial records.
Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011); Mann v. Boatright, 477 F.3d 1140, 1149
(10th Cir. 2007). This right derives from the public’s interest in understanding disputes that are
presented to a public forum for resolution and is intended to ensure that courts are fair and judges
are honest. Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980); Worford v. City
of Topeka, No. 03-2450-JWL-DJW, 2004 WL 316073, at *1 (D. Kan. Feb. 17, 2004). The public’s
right of access, however, is not absolute. Helm, 656 F.3d at 1292. The Court therefore has
discretion to seal documents if competing interests outweigh the public’s right of access. Id.; United

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States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). In exercising its discretion, the Court weighs
the public’s interests, which it presumes are paramount, against those advanced by the parties.
Helm, 656 F.3d at 1292; Dobbins, 616 F.2d at 461. The party seeking to overcome the presumption
of public access to the documents bears the burden of showing that some significant interest
outweighs the presumption. Helm, 656 F.3d at 1292; Mann, 477 F.3d at 1149. The Court should
seal documents based only on articulable facts known to the Court, and not based on unsupported
hypothesis or conjecture. Worford, 2004 WL 316073, at *1 (citing Stapp v. Overnite Transp. Co.,
No. 96-2320-GTV, 1998 WL 229538, at *1 (D. Kan. April 10, 1998)).
Analysis
Both parties seek leave to file under seal certain memoranda and exhibits in support of – and
in opposition to – defendant’s motions for partial summary judgment and to exclude expert
testimony. See Docs. ##68, 69, 70, 73, 75, 77, 78. In support of their requests, the parties assert that
the proposed memoranda and exhibits “include excerpts from and references to deposition
testimony, expert reports, and documents” which the parties designated as “Confidential” or “Highly
Confidential” under the stipulated protective order.2 Doc. #68 at 1-2; see also Docs. ##69, 70, 73,

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In the MDL proceedings, the transferee court entered a stipulated protective order
which this Court incorporated by reference in the scheduling order in this case. See Scheduling
Order (Doc. #41) filed April 1, 2016 at 3.
The stipulated protective order defines “Confidential Information” as follows:
Documents, information . . . or tangible things that, in good faith, qualify for
protection under standards developed under Fed. R. Civ. P. 26(c), including but not
limited to confidential personal information, medical or psychiatric information,
personnel records or other sensitive commercial information that is not publically
[sic] available. Public records and other information or documents that are publicly
available may not be designated as Confidential Information.
(continued...)
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75, 77, 78. The fact that the parties have designated documents as “Confidential” or “Highly
Confidential” under the protective order does not in itself provide sufficient reason to seal. See
Stormont-Vail Healthcare, Inc. v. BioMedix Vascular Solutions, Inc., No. 11-4093-SAC,
2012 WL 884926, at *1 (D. Kan. Mar. 14, 2012); Carefusion 213, LLC v. Prof’l Disposables, Inc.,
No. 09-2616-KHV, 2010 WL 2653643, at *1 (D. Kan. June 29, 2010). On this record, the parties
have not come close to meeting the heavy burden to articulate a real and substantial interest which
justifies depriving the public access to records which inform the Court’s decision-making process.3

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(...continued)
Stipulated Protective Order ¶ 2.1, Exhibit A to Stipulated Supplemental Protective Order (Doc. #56)
filed June 17, 2016.
The stipulated protective order defines “Highly Confidential Information” as follows:
Documents, information . . . or tangible things that contain trade secrets or other
highly sensitive competitive or highly sensitive confidential information the
disclosure of which is reasonably likely to result in demonstrable harm to the
Designating Party, such as financial information relating to costs, unpublished
pricing information, unpublished plans to buy or sell a business or business unit, and
the like.
Id. ¶ 2.2.
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Also, the parties have not shown that redaction would not sufficiently protect any
information which is legitimately confidential. Pursuant to the District of Kansas Administrative
Procedure for Filing, Signing, and Verifying Pleadings and Papers by Electronic Means, plaintiffs
may redact personal data as follows:
In accordance with Fed. R. Civ. P. 5.2 and to address the privacy concerns created
by Internet access to court documents, litigants shall modify or partially redact the
following personal data identifiers appearing in documents filed with the court:
1. Social Security numbers: Use only the last four numbers; and
2. Minors’ names: Use the minors’ initials;
3. Dates of birth: Use only the year; and
4. Financial account numbers: Identify the name or type of account and the
financial institution where maintained, but use only the last four numbers of
(continued...)
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See Helm, 656 F.3d at 1292. The Court therefore overrules the parties’ motions to file documents
under seal. On or before April 17, 2017, the parties may file the proposed memoranda and exhibits
not under seal.
IT IS THEREFORE ORDERED that Leggett & Platt, Incorporated’s Motion For Leave
To File Its Memorandum In Support Of Its Motion For Partial Summary Judgment And
Accompanying Documents Under Seal (Doc. #68) filed January 24, 2017 is OVERRULED.
IT IS FURTHER ORDERED that Leggett & Platt, Incorporated’s Motion For Leave To
File Its Memorandum In Support Of Its Motion To Exclude Testimony And Expert Reports Of
Dr. Orley Ashenfelter Under Seal (Doc. #70) filed January 24, 2017 is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff LaCrosse Furniture Co.’s Motion For Leave
To File Documents Under Seal (Doc. #73) filed February 8, 2017 is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff LaCrosse Furniture Co.’s Motion For Leave
To File Documents Under Seal (Doc. #75) filed February 14, 2017 is OVERRULED.
IT IS FURTHER ORDERED that Leggett & Platt, Incorporated’s Motion For Leave To
File Its Reply Memorandum In Support Of Its Motion To Exclude Testimony And Expert Reports
Of Dr. Orley Ashenfelter Under Seal (Doc. #77) filed February 21, 2017 is OVERRULED.
IT IS FURTHER ORDERED that Leggett & Platt, Incorporated’s Motion For Leave To

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(...continued)
the account number.
In addition, parties may modify or partially redact other confidential information as
permitted by the court (e.g., driver’s license numbers, medical records, employment
history, individual financial information, and proprietary or trade secret information).
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District of Kansas Administrative Procedure for Filing, Signing, and Verifying Pleadings and Papers
by Electronic Means in Civil Cases, § II., I (August 24, 2015).
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File Its Reply Memorandum In Support Of Its Motion For Partial Summary Judgment And
Accompanying Documents Under Seal (Doc. #78) filed February 28, 2017 is OVERRULED.
IT IS FURTHER ORDERED that on or before April 17, 2017, the parties may file the
proposed memoranda and exhibits not under seal.
IT IS FURTHER ORDERED that plaintiff’s claims against Valle Foam Industries (1995),
Inc. are DISMISSED without prejudice.
Dated this 11th day of April, 2017 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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