No Spill Inc. v. Scepter Corporation et al
MEMORANDUM AND ORDER denying 286 Motion for Leave to File Under Seal. Signed by Magistrate Judge Kenneth G. Gale on 09/08/21. (tl)
Case 2:18-cv-02681-HLT-KGG Document 287 Filed 09/08/21 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NO SPILL, LLC and TC CONSULTING, INC. )
) Case No. 18-cv-2681-HLT-KGG
SCEPTER CANADA, INC., and SCEPTER
MEMORANDUM AND ORDER ON MOTION FOR LEAVE TO FILE UNDER
Now before the Court are Defendants’ Motion for Leave to File under Seal (Doc. 286).
Having reviewed the unopposed submission, Defendants’ motion is DENIED.
Defendants move pursuant to D. Kan. Rule 5.4.6 for an Order allowing them to
file under seal their Amended Answer to the Second Amended Complaint and
Counterclaims. The Counterclaims include violations of the Sherman Act (§§ 1, 2) and
the Clayton Act (§ 7). A protective order has been entered in this case for confidential
information that is “extremely sensitive” and “may cause competitive harm to the
disclosing party.” (Doc. 95). Defendants contend that since the document in question has
been designated as “confidential” under the protective order by the parties, then they
should be granted leave to file under seal. (Doc. 286). In addition to this contention, the
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Defendants argue that the confidential nature of the document outweighs any public
interest in its disclosure. (Doc. 286).
“Courts have a long recognized common-law right of access to judicial records.”
Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The right to access judicial records is an
important aspect of preserving the integrity of the judicial process. United States v.
Hickey, 767 F.2d 705, 708 (10th Cir. 1985). The court has discretion when determining
whether to seal judicial records. Id. There is a strong presumption that judicial records
will not be sealed. Mann, 477 F.3d at 1149. However, the right is not absolute, it can be
rebutted when other interests outweigh the public’s interest in accessing the records. Id.
The first consideration taken into account is the public interest in the documents.
Riker v. Fed. Bureau of Prisons, 315 F. App’x 752, 755 (10th Cir. 2009). Courts begin at
the premise that the public interest is “presumptively paramount against those advanced
by the parties.” In re Syngenta AG MIR 162 Corn Litig., Nos. MDL 2591, 14-md-2591JWL, 2015 WL 3440476, at *1 (D. Kan. May 28, 2015). However, the weight of
presumption is low when the documents “play a negligible role in the performance of
Article III duties.” Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 1847033, at *4
(D. Kan. Apr. 18, 2018) (Gale, J., the undersigned) (citing Riker, 315 F. App’x at 755).
The documents at issue are the type that are generally made available for public
access. Allowing a party to file a pleading under seal is generally disfavored. See Mike v.
Dymon, Inc., No. 95-2405-EEO, 1996 WL 137828, at *1 (D. Kan. Mar. 22, 1996); see
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also Hill v. Mitchell, No. 1:98-cv-452, 2012 WL 4087060, at *1 (S.D. Ohio Sept. 17,
2012) (citing Proctor & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 227 (6th Cir.
1996)) (“[P]lacing court pleadings under seal is generally disfavored, in view of the long
tradition of valuing public access to court proceedings.”). Reviewing and analyzing the
pleadings are critical to the role of a judge when exercising his or her Article III duties.
As such, the public interest in the documents is high and the Defendants must overcome a
strong presumption against leave to file under seal.
The next factor considered are the parties’ competing interest. See Riker, 315 F.
App’x at 755. The District of Kansas has recognized confidential pricing information,
confidential personnel and business information, and sensitive financial details as
legitimate countervailing interests. See, e.g., Heartland Surgical Specialty Hosp., LLC v.
Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 101858, at *4–5 (D. Kan. Jan.
10, 2007) (confidential pricing information); Univ. of Kan. Ctr. For Rsch., Inc. v. United
States by Dep’t of Health & Hum. Servs., No. 08-2565-JAR-DJW, 2009 WL 10689840,
at *2 (D. Kan. Nov. 17, 2009) (confidential personnel and business information); Reser’s
Fine Foods, Inc. v. H.C. Schmieding Produce Co., LLC, No. 16-4160-SAC, 2017 WL
784755, at *2 (D. Kan. Mar. 1, 2017) (sensitive financial details). These countervailing
interests are more likely to rebut the initial presumption when the confidential
information is not at issue in the immediate proceedings. See Reser’s, 2017 WL 784755
at *2 (noting the relevancy of the information sought to be sealed is influential).
The Defendants argue that the protective order governs the document at issue.
(Doc. 286, at 1–2). However, that is simply not the case. The scope of the protective
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order is “[a]ll documents and materials produced in the course of discovery . . . .” (Doc.
95, at 2) (providing the scope of the protective order). Here, the document requested to be
filed under seal is a pleading, not a document produced during the course of discovery.
Therefore, the protective order does not govern the matter. A party’s designation of
material as confidential under a protective order does not establish that it is, or that is
entitled to be filed under seal. The present motion attempts no explanation of the need for
filing under seal beyond conclusory assertions.
The Defendants further contend that their interest overcome the strong
presumption of public access. (Doc. 286). Specifically, they contend that the “document
contains or reflects confidential, non-public business information” which warrants leave
to file under seal. (Id.). Granted, leave may be appropriate when it is necessary to keep
the court from serving as a source of business information that might harm a party’s
business or competitive standing in the marketplace. Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 598 (1978). However, courts will not seal its records, especially pleadings,
based on “unsupported hypothesis or conjecture;” rather, the moving party must produce
concrete evidence showing the nature of the public or private harm that may be caused if
publicly filed. In re Syngenta, 2015 WL 3440476, at *2 (citing Nixon, 435 U.S. at 598);
see also Womack v. Delaware Highlands AL Servs. Provider, LLC, No. 10-2312, 2012
WL 1033384, at *1 (D. Kan. Mar. 27, 2012). In this case, the Defendants have not
pointed to any harm that may be caused by publicly filing the documents. Not to mention
the type of non-speculative evidence necessary to overcome their high burden. Moreover,
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the information under seal would be pertinent to the case at hand, which increases the
interest to the public.
Accordingly, the Court finds that the Defendants have not met their burden of
establishing that their interest outweighs the public’s significant interest, and therefore,
DENIES the request for leave to file under seal without prejudice.
IT IS THEREFORE ORDERED that Defendants shall file their Amended
Answer to the Second Amended Complaint and Counterclaims unsealed.
Dated at Wichita, Kansas, on this 8th day of September 2021.
/S KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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