Caudill Seed and Warehouse Company, Inc. v. Jarrow Formulas, Inc.

Filing 281

MEMORANDUM OPINION AND ORDER by Senior Judge Charles R. Simpson III on 1/18/2019. The sealed documents are UNSEALED at DNs 100-7, 124-28, 124-29, 124-30, 124-31, 124-32, 124-33, 124-34, 124-35, 126-8, 133-33, 38, 43, 126-3, 133-17, 126-6, 133-18, 12 6-11, 124-4, 204-13, 124-11, 133-7, 61-7, 78-5, 124-19, 124-20, 124-21, 133-46, 126-34, 126-35, 128-31, and 128-32. ORDERS counsel to file unsealed, redacted copies of DNs 69, 71-8, 78-11, 86-1, 126-5, 133-19, 135-4, 165-1, 181-1, 194-2, 78-3, 80-9, 126-23, 128-28, 133-16, 78- 10, 126-7, 135-37, and 204-12 to substitute the currently sealed versions. Parties shall comply as set forth in Order. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CAUDILL SEED AND
WAREHOUSE COMPANY, INC.

PLAINTIFF

v.

CIVIL ACTION NO. 3:13-CV-82-CRS

JARROW FORMULAS, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
I.

Introduction
This case is before the Court for a determination regarding the unending saga of sealed

documents in this case. The parties, the magistrate judge, and the undersigned have spent a hefty
amount of time and effort sealing and unsealing documents. Following another extensive review,
the Court will order some documents unsealed, while keeping others under seal.
II.

Procedural Background
The magistrate sua sponte ordered the parties to confer, submit a joint status report listing

the documents the parties agreed to unseal and, to the extent there was disagreement on sealing
the remaining documents, brief the issues. DN 177. The parties filed their joint status report
listing documents they agreed to unseal. DN 208, 212. The magistrate ordered those documents
unsealed. DN 240.
Caudill filed its motion to maintain documents under seal. DN 209. Jarrow responded in
opposition. DN 218. Caudill replied. DN 220. Jarrow also filed its own motion requesting to file
redacted documents and to maintain certain documents under seal. DN 210. Caudill had no
objection except to the unsealing of documents which it had requested remain sealed. DN 215.
The magistrate issued his opinion on the issue unsealing certain documents and leaving others

1

under seal. DN 239. Jarrow objected to a number of those rulings. DN 243. Caudill responded in
opposition to those objections. DN 274. The Court thus restricts its review to the items to which
Jarrow objects.
III.

Discussion
Generally, there is a “strong presumption” in favor of open court records. Rudd Equip.

Co. v. John Deere, 834 F.3d 589, 593 (6th Cir. 2016). “In civil cases, as much as in criminal
matters, the resolution of private disputes frequently involves issues and remedies affecting third
parties or the general public, and secrecy serves only to insulate the participants, mask
impropriety, obscure incompetence, and conceal corruption.” Id. at 593 (cleaned up).
Sealing should occur only when there is a “compelling reason why certain documents or
portions thereof should be sealed.” Id. (citing Shane Grp., Inc. v. Blue Cross Blue Shield of
Mich., 825 F.3d 299, 305 (6th Cir. 2016)). Even then, “the seal itself must be narrowly tailored to
serve that reason,” and should “analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations.” Id. at 594 (citing Shane Grp., 825 F.3d at 305).
Valid reasons for sealing could include court records that are “sources of business information
that might harm a litigant’s competitive standing,” Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 598 (1978), as well as “trade secrets, information covered by a recognized privilege (such as
the attorney-client privilege), and information required by statute to be maintained in confidence
(such as the name of a minor victim of sexual assault),” Rudd, 834 F.3d at 589.
In undertaking this analysis, however, the Court must remain mindful that the issue in the
case revolves around trade secret misappropriation. In those cases, “[t]he strong presumption of
access is improper.” Kyle J. Mendenhall, Can You Keep a Secret?, 62 DRAKE L. REV. 885, 910
(2014). Instead, “[d]istrict courts should be able to use their sound discretion in weighing the

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competing interests for and against sealing court documents without such a misbalanced starting
presumption.” Id. That is important in trade secret cases because there is an inherent “discord
between litigating to protect confidential information and disclosing that same confidential
information during the litigation.” United States v. Roberts, No. 3:08-CR-175, 2010 WL
1010000, at *5 (E.D. Tenn. March 17, 2010). “It would, of course, be idle to the point of flat
absurdity for the trial judge to compel the plaintiff to publicly disclose its processes in the act of
protecting them from disclosure.” Id. (citation omitted). Otherwise, the Court sets a plaintiff
alleging misappropriation of trade secrets sailing ‘twixt Scylla and Charybdis.
Put simply, where the issue boils down to the “plaintiff claiming the processes were
secret, but the defendant claiming they were not,” unsealing the documents is improper. Id. This
is so because the Court’s decision on sealing should be “completely separate” from the merits of
the case or admissibility of the evidence. Rudd, 834 F.3d at 593. However, a ruling unsealing a
document which contains an alleged trade secret implicates a merits issue because the Court
would be required to necessarily determine that the item is not a trade secret. Id.
In this case, Caudill has survived summary judgement on its remaining trade secret
claims. See DN 145. That means that Caudill has produced sufficient evidence to create a
genuine issue of material fact as to whether its alleged trade secrets are, in fact, trade secrets. See
FED. R. CIV. P. 56. Therefore, to the extent that Caudill alleges a document contains a trade
secret and it appears to the Court that a genuine issue of material fact exists as to whether that
information is a trade secret, the Court will maintain the seal on the document rather than
implicate itself in an improper ruling on the merits of Caudill’s claims.
The parties have briefed the issue utilizing a table. The Court finds that method also
appropriate to organize its specific reasoning for sealing or unsealing.

3

Tab
1

DNs
38
43
78-1
80-8
124-3
126-4
133-5

2/50

61-18
124-37
133-13
124-38
126-14
133-13

5

69
71-8
78-11
86-1
126-5
133-19
135-4
165-1
181-1
194-2
78-3
80-9
126-23
128-28
133-16
78-10
126-7
135-37
204-12

9

10

15

100-7
100-8
100-9

Reasoning
These documents contain deposition transcripts from Dan Caudill. DNs 38
and 43 involve testimony regarding the location of the lab notebook and hard
drive at issue in the case. No portion of those documents appears to represent
Caudill’s alleged trade secret, privileged, or proprietary and confidential
business information. Therefore, they will be unsealed.
DNs 78-1, 80-8, 124-3, 126-4, and 133-5 contain information about
Caudill’s manufacturing processes. Caudill has created a genuine issue of
material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
These documents contain e-mails that include a list of Caudill’s customers.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Further, such business information might harm
Caudill’s competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
These documents contain deposition transcripts filed unsealed in a state court
case with limited redactions. No portion of those documents appears to
represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, counsel shall substitute
redacted copies which will be unsealed.

These documents contain deposition transcripts filed unsealed in a state court
case with limited redactions. No portion of those documents appears to
represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, counsel shall substitute
redacted copies which will be unsealed.
These documents contain deposition transcripts filed unsealed in a state court
case with limited redactions. No portion of those documents appears to
represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, counsel shall substitute
redacted copies which will be unsealed.
These documents contain an e-mail between counsel with expert reports
attached. DN 100-7 contains an e-mail from Jarrow’s counsel to Caudill’s
counsel (at the time). No portion of this document appears to represent
Caudill’s alleged trade secret, privileged, or proprietary and confidential
business information. Therefore, it will be unsealed.

4

17

18

19

20/33

25

26

DNs 100-8 and 100-9 contain expert reports of Jarrow’s experts, Andrew
Chambers and Charles Staff, discussing Caudill’s processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
These documents contain deposition transcripts taken from Joseph Lyons.
During his testimony, Lyons discusses Caudill’s manufacturing processes.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.

124-2
126-2
128-2
133-4
139-1
181-2
194-3
204-2
124-10 These documents contain an e-mail from Ashurst to Jarrow while he was
133-23 employed by Caudill which discusses Caudill’s formulas and processes, as
well as commentary and notation on a research monograph. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
124-28 These documents contain public research and publicly available patents. No
124-29 portion of those documents appears to represent Caudill’s alleged trade
124-30 secret, privileged, or proprietary and confidential business information.
124-31 Therefore, it will be unsealed.
124-32
124-33
124-34
124-35
126-8
133-33
124-47 These documents contain a market analysis involving Jarrow’s assumptions
133-42 regarding pricing. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
126-3 These documents contain deposition transcripts from Richard Sullivan.
133-17 During his testimony, Sullivan primarily details his search for the notebook
and hard drive at issue in this case. No portion of those documents appears to
represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, they will be unsealed.
126-6 These documents contain deposition transcripts from Laura Putnam. During
133-18 her testimony, Putnam primarily details her search for the notebook and hard
drive at issue in this case. No portion of those documents appears to

5

represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, they will be unsealed.
These documents contain deposition transcripts from Jarrow Rogovin.
During his testimony, Rogovin discusses documents he received from
Ashurst, but does not detail the substance of those documents. No portion of
those documents appears to represent Caudill’s alleged trade secret,
privileged, or proprietary and confidential business information. Therefore,
they will be unsealed.
This document contains a declaration from Kean Ashurst and an attached
PowerPoint presentation. Specifically, the documents contain information on
Caudill’s business, including Caudill’s customers. Caudill has created a
genuine issue of material fact as to whether this is a trade secret. DN 145.
There is a compelling interest in protecting disclosure of alleged trade
secrets, as such disclosure could cause irreparable harm. See Rudd, 834 F.3d
589. Further, such business information might harm Caudill’s competitive
standing. See Nixon, 435 U.S. at 598. Therefore, this information will remain
sealed.
This document contains an exchange between Jarrow consultants discussing
the purchase price of Caudill’s products. Caudill has created a genuine issue
of material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
such business information might harm Caudill’s competitive standing. See
Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
This document contains an e-mail with attachments regarding results of
Caudill’s testing. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
These documents contain deposition transcripts from Leslie West. During his
testimony, Jarrow discusses Caudill’s manufacturing processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
These documents contain deposition transcipts from Kean Ashurst. In DNs
128-22, 135-26, 137-6, 139-2, 165-4, 124-8, 126-10, 133-3, 124-5, 133-1,
and 133-37, Ashurst discusses Caudill’s production processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.

27

126-11
124-4

30

128-21

31

133-14

32

133-30

34

133-61
135-1
126-12

41

128-22
135-26
137-6
139-2
165-4
124-8
126-10
133-3
124-5 In DN 204-13, however, the discussion is limited to a meeting held with Dan
133-1 Caudill at a restaurant. No portion of that document appears to represent
6

44

45

46/47

48

49

52/53

133-37 Caudill’s alleged trade secret, privileged, or proprietary and confidential
204-13 business information. Therefore, it will be unsealed.
194-5 This document contains a redacted certificate of analysis. Caudill has created
a genuine issue of material fact as to whether this is a trade secret. DN 145.
There is a compelling interest in protecting disclosure of alleged trade
secrets, as such disclosure could cause irreparable harm. See Rudd, 834 F.3d
589. The included redactions are insufficient to warrant public disclosure.
Therefore, this information will remain sealed.1
124-11 These documents contain deposition transcripts from Rebecca Wagner from
133-7 FONA. During her testimony, Wagner discusses the 2011 genesis of a joint
development agreement with Caudill. No portion of that document appears
to represent Caudill’s alleged trade secret, privileged, or proprietary and
confidential business information. Therefore, it will be unsealed.
61-5 These documents contain an e-mail from Ashurst to Clouatre discussing
124-13 Caudill’s processes. Caudill has created a genuine issue of material fact as to
133-12 whether this is a trade secret. DN 145. There is a compelling interest in
133-22 protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Therefore, this information will
remain sealed.
61-7 These documents contain issued patents, a sublicense agreement between
61-8 Caudill and Brassica, a form letter, and documents drafted by Caudill’s
61-9 attorneys.
78-5
78-6 DNs 61-7, 78-5, 124-19, 124-20, 124-21, and 133-46 contain only publicly
78-7 available patent information. No portion of those documents appears to
78-8 represent Caudill’s alleged trade secret, privileged, or proprietary and
124-19 confidential business information. Therefore, they will be unsealed.
124-20
124-21 DNs 61-8, 61-9, 78-6, 78-7, 78-8, 124-22, 124-23, 124-24, 133-47, and 133124-22 48 contain documents drafted by Caudill’s attorney and confidential
124-23 sublicense agreements between Caudill and its business partners. There is a
124-24 compelling interest in protecting the attorney-client privilege, A such
133-46 disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
133-47 such business information might harm Caudill’s competitive standing. See
133-48 Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
61-23 These documents contain a sublicense agreement between Caudill and
124-61 Brassica as well as a manufacturing flowchart. Caudill has created a genuine
137-8 issue of material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Further,
such business information might harm Caudill’s competitive standing. See
Nixon, 435 U.S. at 598. Therefore, this information will remain sealed.
126-13 These documents contain e-mails that describe Caudill’s processes. Caudill
133-26 has created a genuine issue of material fact as to whether this is a trade

The Court will note, however, that Caudill has been ordered to provide unredacted copies to Jarrow’s counsel to
comply with the agreed protective order in this case. DN 253 at 13–14.
1

7

54

126-24
128-34
133-57

55

126-29

56

126-30
133-10

67

191-3
201-2
204-1

68

191-4
201-1
204-4

69

126-18
133-25

73

124-62

secret. DN 145. There is a compelling interest in protecting disclosure of
alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
These documents contain deposition transcripts from Martin Gallant. During
his testimony, Gallant discusses Caudill’s purchasing process and pricing
information. Caudill has created a genuine issue of material fact as to
whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Further, such business
information might harm Caudill’s competitive standing. See Nixon, 435 U.S.
at 598. Therefore, this information will remain sealed.
These documents contain deposition transcripts from Benjamin Khowong. In
his testimony, Khowong discusses Caudill’s customer list. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Further, such business information might harm Caudill’s
competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
These documents contain an e-mail which describes Caudill’s manufacturing
processes. Caudill has created a genuine issue of material fact as to whether
this is a trade secret. DN 145. There is a compelling interest in protecting
disclosure of alleged trade secrets, as such disclosure could cause irreparable
harm. See Rudd, 834 F.3d 589. Therefore, this information will remain
sealed.
These documents contain the supplemental expert report of Leslie West. In
his report, West specifically discusses Caudill’s manufacturing processes.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
These documents contain the rebuttal expert report of Leslie West. In his
report, West specifically discusses Caudill’s manufacturing processes.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
These documents contain deposition transcripts of David Slaughter. In his
deposition, Slaughter discusses specific processing parameters, times, and
temperatures associated with Caudill’s manufacturing process. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
This document contains an e-mail discussing Caudill’s testing cost, vendors,
and results. Caudill has created a genuine issue of material fact as to whether
8

75

126-19
128-29
133-56

76

126-33
126-34
126-35
128-30
128-31
128-32

77

78

81

82

this is a trade secret. DN 145. There is a compelling interest in protecting
disclosure of alleged trade secrets, as such disclosure could cause irreparable
harm. See Rudd, 834 F.3d 589. Therefore, this information will remain
sealed.
These documents contain deposition transcripts from Nutramax. In the
deposition, the corporate representative discusses specific pricing
information and Caudill’s processes for soliciting business. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Further, such business information might harm Caudill’s
competitive standing. See Nixon, 435 U.S. at 598. Therefore, this
information will remain sealed.
These documents contain e-mails between Caudill and Nutramax. DNs 12633 and 128-30 contain specific pricing information and Caudill’s processes
for soliciting business. Caudill has created a genuine issue of material fact as
to whether this is a trade secret. DN 145. There is a compelling interest in
protecting disclosure of alleged trade secrets, as such disclosure could cause
irreparable harm. See Rudd, 834 F.3d 589. Further, such business
information might harm Caudill’s competitive standing. See Nixon, 435 U.S.
at 598. Therefore, this information will remain sealed.

DNs 126-34, 126-35, 128-31, and 128-32 lack such information. No portion
of those documents appears to represent Caudill’s alleged trade secret,
privileged, or proprietary and confidential business information. Therefore,
they will be unsealed.
133-53 This document contains an e-mail from Ashurst. In the e-mail, he discusses
specific percentages used in Caudill’s manufacturing processes. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
201-3 These documents contain the rebuttal expert report of Kean Ashurst. In his
report, Ashurst specifically discusses Caudill’s manufacturing processes.
Caudill has created a genuine issue of material fact as to whether this is a
trade secret. DN 145. There is a compelling interest in protecting disclosure
of alleged trade secrets, as such disclosure could cause irreparable harm. See
Rudd, 834 F.3d 589. Therefore, this information will remain sealed.
204-9 This document contains correspondence between Jarrow and one of its
vendors which discusses Caudill’s manufacturing process. Caudill has
created a genuine issue of material fact as to whether this is a trade secret.
DN 145. There is a compelling interest in protecting disclosure of alleged
trade secrets, as such disclosure could cause irreparable harm. See Rudd, 834
F.3d 589. Therefore, this information will remain sealed.
204-10 This document contains e-mails and faxes within Jarrow which discusses
Caudill’s manufacturing process. Caudill has created a genuine issue of
9

83

IV.

material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
204-11 This document contains e-mails and faxes within Jarrow which discusses
Caudill’s manufacturing process. Caudill has created a genuine issue of
material fact as to whether this is a trade secret. DN 145. There is a
compelling interest in protecting disclosure of alleged trade secrets, as such
disclosure could cause irreparable harm. See Rudd, 834 F.3d 589. Therefore,
this information will remain sealed.
Order

For the reasons set forth above, and the Court being otherwise sufficiently advised, the Court:
ORDERS UNSEALED the sealed documents at DNs 100-7, 124-28, 124-29, 124-30,
124-31, 124-32, 124-33, 124-34, 124-35, 126-8, 133-33, 38, 43, 126-3, 133-17, 126-6, 133-18,
126-11, 124-4, 204-13, 124-11, 133-7, 61-7, 78-5, 124-19, 124-20, 124-21, 133-46, 126-34, 12635, 128-31, and 128-32.
ORDERS counsel to file unsealed, redacted copies of DNs 69, 71-8, 78-11, 86-1, 126-5,
133-19, 135-4, 165-1, 181-1, 194-2, 78-3, 80-9, 126-23, 128-28, 133-16, 78-10, 126-7, 135-37,
and 204-12 to substitute the currently sealed versions.

IT IS SO ORDERED.
January 18, 2019

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