Uhlig, LLC v. PropLogix, LLC

Filing 327

MEMORANDUM AND ORDER overruling 323 MOTION to Seal or Redact Documents 317 Motion to Exclude the Testimony of Preston Herman and Memorandum in Support, 320 Memorandum in Support of Motion, and 321 Exhibits in Support of Motion. The clerk is directed to unseal the specified entries. Signed by District Judge Kathryn H. Vratil on 5/8/2024. (heo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UHLIG LLC d/b/a CONDOCERTSTM and
d/b/a WELCOMELINK®,

)
)
)
Plaintiff,
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v.
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)
PROPLOGIX, LLC,
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)
Defendant.
)
__________________________________________)

CIVIL ACTION
No. 22-2475-KHV

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s Motion To Seal (Doc. #323) filed April 12,
2024. For reasons stated below, the Court overrules defendant’s motion.
Federal courts have long recognized a common-law right of access to judicial records.
Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). This right stems from the fundamental
public interest in understanding disputes that are presented to a public forum for resolution. See
Nixon v. Warner Commc’ns, 435 U.S. 589, 599 (1978); Crystal Grower’s Corp. v. Dobbins, 616
F.2d 458, 461 (10th Cir. 1980). The party seeking to overcome the presumption of public access
must show that some significant interest which favors non-disclosure outweighs the public interest
in access to court proceedings and documents. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241
(10th Cir. 2012). To do so, the party must articulate a real and substantial interest that justifies
depriving the public of access to the records that inform the Court’s decision-making process. Id.;
see Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981) (moving party must submit particular
and specific facts, not merely “stereotyped and conclusory statements”). The Court must rely on
specific, rather than general, information when deciding to seal. See United States v. Bacon, 950
F.3d 1286, 1294 (10th Cir. 2020).

Defendant seeks to seal Plaintiff’s Motion For Partial Summary Judgment (Doc. #319) and
Plaintiff’s Motion To Exclude The Testimony Of Preston Herman And Memorandum In Support
(Doc. #317), both filed April 5, 2024, or, alternatively, to redact certain exhibits to the motions.
Defendant argues that it designated certain exhibits to plaintiff’s filings as confidential under the
Protective Order (Doc. #69) filed June 8, 2023 and the documents contain information that is
“competitively sensitive.” Motion To Seal (Doc. #323) at 1. The fact that a party designated
documents “confidential” under the protective order does not in itself provide sufficient reason to
seal. The protective order states that “[n]othing in this Order will be construed as a prior directive
to allow any document to be filed under seal.” Protective Order (Doc. #69) at 6. Further, the mere
designation of information as confidential “is insufficient to satisfy the court’s requirements for
filing under seal in light of the public’s qualified right of access to court dockets.” Id.; see id. at 3
(because of presumption in favor of open and public judicial proceedings, order “will be strictly
construed in favor of public disclosure and open proceedings wherever possible”); see also Helm
v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011) (parties cannot overcome presumption against
sealing simply by showing records are subject to protective order).
Defendant argues that the documents contain information that is “competitively sensitive”
and “disclosure could damage its position in the marketplace.” Motion To Seal (Doc. #323) at 4.
Defendant has not shown that the identities of its clients and the prices it charged previously for
diligence services are confidential or that such information is not otherwise readily available in
public records. Defendant asserts that it will suffer competitive injury if the Court does not seal
such information, along with its “historical sales data and insights,” but it fails to explain
specifically how any competitor could gain such a competitive advantage from access to the
information. Id. at 5; see id. at 4 (granting competitors access to what defendant charges for its

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services and identity of its clients will provide competitors with yet another advantage in
marketplace); id. at 6 (disclosure of clients and client complaints provides competitors roadmap to
poach clients). The Court recognizes that the public and competitors may have easier access to
this information if the documents are not sealed. Even so, based on the historical nature of the
information—which refers to transactions and sales in 2019, 2020 and 2022—defendant’s fear that
a competitor could exploit such information is speculative. On balance, defendant has not shown
how its interests in making it more difficult for competitors to access the information outweighs
the public interest in access to the materials that form part of the basis of this lawsuit.1 See Colony
Ins., 698 F.3d at 1242.
On this record, defendant has not met the heavy burden to articulate a real and substantial
interest which justifies depriving the public access to records which inform the Court’s decisionmaking process. See id. (denying motions to seal where parties did not submit specific argument
or facts indicating why confidentiality of settlement agreements outweighs presumption of public
access). Granted, where documents “play only a negligible role in the performance of Article III
duties, the weight of the presumption is low and amounts to little more than a prediction of public
access absent a countervailing reason.” Riker v. Fed. Bureau of Prisons, 315 F. App’x 752, 755
(10th Cir. 2009) (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006)).
Even so, the movant must present a countervailing reason which is sufficient to outweigh the
presumption of public access. Defendant has not done so. For these reasons, the Court overrules
defendant’s motion to keep the documents under seal or have them redacted. See United States v.

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Defendant also notes that at least one of its clients maintains closing documents
which include estoppel certificates as confidential during the ordinary course of its business.
Motion To Seal (Doc. #323) at 6. The individual business practices of defendant’s clients do not
present a countervailing interest which is sufficient to overcome the presumption of public access.
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Carter, No. 12-20066-38-KHV, 2020 WL 4673213, at *1 (D. Kan. Aug. 12, 2020) (“The Court’s
constitutional duties do not include asserting arguments for sealing records or ferreting out
authorities and identifying factors which are necessary for it to conduct the nuanced balancing of
the public’s right of access against defendant’s interest in non-disclosure.”).
IT IS THEREFORE ORDERED that defendant’s Motion To Seal (Doc. #323) filed
April 12, 2024 is OVERRULED.
Dated this 8th day of May, 2024 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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