Commonwealth of Kentucky v. Marathon Petroleum Company LP

Filing 221

Memorandum Opinion and Order Signed by Magistrate Judge Colin H. Lindsay on 9/17/2019. The Commonwealth's Motion DN 197 is GRANTED. The Commonwealth's Motions DNs 164 , 192 , 202 , 213 are GRANTED IN PART and DENIED IN PART. Marathon's Motions DNs 155 , 166 , 189 , 194 , 198 , 211 , 210 , 214 , are GRANTED. Parties have 30 DAYS to file additional motions to seal or supplemental redacted versions of Exhibits pursuant to the above Order. DNs 203 -25, [ 203]-32, 203 -45, 215 -2, 215 -3, 193 -2, 193 -10, 193 -16, 165 -7, 165 -8, and 165 -9 shall be PROVISIONALLY SEALED for 30 DAYS. The Court directs the Clerk to unseal any of the documents identified in this paragraph if no party files a motion to seal such documents on or before 10/30/2019. Parties shall comply as set forth in Order. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-354-DJH-CHL

COMMONWEALTH OF KENTUCKY,

Plaintiff,

v.
MARATHON PETROLEUM COMPANY LP, et al.
MARATHON PETROLEUM CORPORATION, et al.
SPEEDWAY, LLC, et al.

Defendants.

Memorandum Opinion and Order
Before the Court are numerous motions to seal filed by both plaintiff Commonwealth of
Kentucky (“the Commonwealth” or “Plaintiff”) and defendants Marathon Petroleum Company
LP, Marathon Petroleum Corp. and Speedway LLC (“Marathon” or “Defendants”). The Court
will address the motions by grouping for clarity.
For the reasons set forth below:
The Commonwealth’s Motion DN 197 is GRANTED.
The Commonwealth’s Motions DNs 164, 192, 202, 213 are GRANTED IN PART and
DENIED IN PART.
Marathon’s Motions DNs 155, 166, 189, 194, 198, 211, 210, 214 are GRANTED.

I.

Statement of Facts and Procedural History

The Commonwealth’s second amended complaint alleges that Marathon has engaged in
anticompetitive conduct in violation of the Sherman Act, Clayton Act, and Kentucky’s
Consumer Protection Act, through its business dealings in Louisville and northern Kentucky.

(DN 88, at PageID #1087.) Essentially, the Commonwealth alleges that Marathon has entered
into contracts with various gasoline retailers for the distribution of its reformulated gasoline
(“RFG”) that restrict its competitors’ ability to challenge Marathon’s market dominance. (Id. at
1087–88.) The Commonwealth has alleged, inter alia, that these distribution agreements
unlawfully restrict the gasoline retailers’ ability to purchase RFG from Marathon’s competitors;
separate contracts allegedly include deed restrictions that prevent competitors from entering the
market. (Id.)
Previously, this Court granted the Commonwealth’s motion to amend its complaint. (DN
86.)

The Commonwealth subsequently filed its second amended complaint, which added

Speedway LLC and Marathon Petroleum Corp. as co-defendants alongside Marathon Petroleum
Co. LP. (DN 88.) Marathon Petroleum Corp. promptly filed a motion to dismiss for a want of
personal jurisdiction (DN 92). A settlement conference was held on February 1, 2018 and
parties were unable to come to an agreement. (DN 122.) On September 26, 2018, the Court
denied Marathon Corp.’s and Speedway’s motion to dismiss. (DN 147.) On November 20,
2018, Marathon filed its motion for summary judgment based on lack of personal jurisdiction.
(DN 156.) On April 5, 2019, Marathon filed a motion to exclude expert testimony and opinions
of Plaintiff’s expert Dr. Michael J. Sattinger (DN 191) and a motion for summary judgment on
all claims. (DN 195.) That same day, the Commonwealth also filed a motion to exclude the
testimony and opinions of Marathon’s experts Ramsey Shehadeh and Michael Baye. (DN 193.)

II.

Summary of Law

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Although the Sixth Circuit has long recognized a “strong presumption in favor of
openness” regarding court records, there are certain interests that overcome this “strong
presumption.” Rudd Equipment Co., Inc. v. John Deere Construction & Forestry Co., 834 F.3d
589, 593 (6th Cir. 2016) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165,
1179 (6th Cir. 1983)). These interests include “certain privacy rights of participants or third
parties, trade secrets, and national security.” Brown & Williamson Tobacco Corp., 710 F.2d at
1179. The party seeking to seal the records bears a “heavy” burden; simply showing that public
disclosure of the information would, for instance, harm a company’s reputation is insufficient.
Id.; Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016).
Instead, the moving party must show that it will suffer a “clearly defined and serious injury” if
the judicial records are not sealed. Shane Grp. Inc., 825 F.3d at 307. Examples of injuries
sufficient to justify a sealing of judicial records include those that could be used as “sources of
business information that might harm a litigant’s competitive standing.” Nixon v. Warner
Comm’ns, Inc., 435 U.S. 589, 598 (1978). In rendering a decision, the Court must articulate why
the interests supporting nondisclosure are compelling, why the interests supporting public access
are not as compelling, and why the scope of the seal is no broader than necessary. Shane Grp.
Inc., 825 F.3d at 306. Importantly, the presumption that the public has the right to access judicial
records does not vanish simply because all parties in the case agree that certain records should be
sealed. Rudd Equipment Co., Inc., 834 F.3d at 595 (noting that although the defendant did not
object to the plaintiff’s motion to seal, his lack of objection did not waive the public’s First
Amendment and common law right of access to court filings); Shane Grp. Inc., 825 F.3d at 305

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(“A court’s obligation to keep its records open for public inspection is not conditioned on an
objection from anybody.”)

III.

Analysis

A. Marathon’s Motion for Summary Judgment- Personal Jurisdiction
First, the Court addresses the parties’ request to seal certain documents related to
Marathon’s motion for summary judgment based on lack of personal jurisdiction. (DNs 155, 164,
166.)
Marathon requests the Court issue an order to seal portions of its memorandum in support
of its motion for summary judgment based on lack of personal jurisdiction as well as supporting
Exhibits C, E, F, G and H. (DN 156.) The supporting exhibits are supply agreements for the
sale of gasoline products in Louisville, northern Kentucky, and the surrounding areas of
Kentucky with third parties, as well as amendments to and renewals of those agreements. (DN
155, at PageID #3379.) Exhibits F and G also include contract renewal analyses produced by
Marathon LP prior to entering into the supply agreements. (Id. at PageID #3380.) Marathon
contends the supply agreements and renewal documents contain sensitive pricing, volume and
other commercial term information of third parties with whom Marathon negotiated. (Id. at
PageID #3381.) Marathon states the corresponding portions of the memorandum in support of
the motion for summary judgment based on a lack of personal jurisdiction contain a detailed
discussion of these exhibits and the images embedded at pages 7-9 are taken directly from
Exhibits C and E. (DN 156, at PageID #3402; DN 155, at PageID #3380.) Marathon states the

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Court has previously granted Defendant leave to file Exhibits C, E, F and G under seal. (Id. at
PageID #3379; DN 136, at PageID #3258.)
Marathon contends it would be harmed if the documents are not sealed as it would
compromise its ability to negotiate competitive supply agreements with other third parties in the
future.

Marathon also argues the Court should also consider the harm to the competitive

standing of the third parties to the agreements contained in the Exhibits as well. (DN 155, at
PageID #3383.)
The Commonwealth requests that the Court seal the highlighted portions of its opposition
to Marathon’s motion for summary judgment based on lack of personal jurisdiction and
accompanying Exhibits B and D-H of the Declaration of Todd Leatherman. (DN 164, at PageID
#4386.) Other than the fact that these documents were disclosed by Marathon and marked as
confidential, the Commonwealth does not offer any explanation as to why these documents
should be protected from public disclosure. (DN 164, at PageID #4386.) However, upon review
of the identified exhibits and corresponding portions of the Opposition to Defendant’s Motion
for Summary Judgment, Exhibits B and D are contract renewals with third parties and are
duplicative of Exhibit F and Exhibit G attached to Marathon’s memorandum in support of its
motion for summary judgment. Exhibit E is a duplicate of a document sealed in below Section B
of this Order. However, neither party has addressed a compelling interest served by sealing
Exhibits F, G or H.
Marathon also requests that this Court seal the highlighted portions of its reply in support
of its motion for summary judgment. (DN 167.) Marathon argues that in the Commonwealth’s
opposition to Marathon’s motion for summary judgment, the Commonwealth cites to Marathon’s
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internally generated authorizations to renew supply agreements with third parties and the
deposition testimony of an executive for Marathon LP. In order to respond to the opposition,
Marathon in reply cites to and discusses these documents. Marathon argues that Exhibits B and
D to the Commonwealth’s opposition are its authorizations to renew supply agreements with
third parties and include statements made by third parties during the negotiation of those
agreements.

(DN 166, at PageID #4390.)

Marathon argues that its reply discusses the

substances of Exhibits B and D to the Commonwealth’s opposition and requests to seal those
portions of the reply. Marathon argues that the Court has already granted leave to file these same
documents under seal. (DN 136, at PageID #3264.)
First, the Court acknowledges that the public interest in these documents is low. The
underlying motion is a motion for summary judgment addressing whether Marathon Corp has a
legally sufficient business contacts in Kentucky such that it is subject to the jurisdiction of this
Court. The portions of the motion for summary judgment, opposition, reply and the specific
exhibits at issue are not being offered as evidence on the merits of the case.
Second, the Court is persuaded that there is a compelling reason to seal the documents
requested by Marathon to protect both Marathon’s and the contracting third parties’ competitive
standing in the marketplace since their bargaining power would be lost if their prior contractual
terms were revealed to competitors. The "privacy interests of innocent third parties should weigh
heavily in a court's balancing equation." Shane Group, Inc. v. Blue Cross Blue Shield of Mich.
825 F.3d 299, 308 (6th Cir.2016) (quoting U.S. v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995).
At the time the third parties entered into contracts with Marathon, they had no reason to believe
that the terms or internal communications regarding the terms of these agreements would
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eventually become a matter of public record. The revelation of this information would harm
both Marathon’s and the third parties’ ability to enter into supply agreements with other suppliers
or maintain a competitive market position.
The Court believes Marathon’s requests to seal are narrowly tailored to serve this
compelling interest as Marathon has identified the pertinent portions of its memorandum in
support of its motion for summary judgment and reply discussing the third-party supply
agreements at issue. Marathon did not seek to seal the entirety of the case or hundreds of
documents, but only the specific documents containing sensitive third-party information or a
discussion thereof.
Accordingly, the Court GRANTS Marathon’s motion to seal portions of Marathon’s
motion for summary judgment and corresponding Exhibits C, E, F and G. (DN 155.)
The Court GRANTS IN PART the Commonwealth’s motion to seal portions of its
opposition to the motion for summary judgment. (DN 164.) Specifically, the Court GRANTS
the motion to seal the highlighted portions of the Commonwealth’s opposition and corresponding
Exhibits B, D and E of the Declaration of Todd Leatherman. The Court DENIES WITHOUT
PREJUDICE the Commonwealth’s motion as to Exhibits F, G and H of DN 165. Either party
may file a renewed motion to seal within 30 days. The proffered documents shall remain
PROVISIONALLY SEALED during the next 30 days. The Court directs the Clerk to unseal
the same if no motion to seal is filed by the deadline set forth above.
The Court GRANTS Marathon’s motion to seal the highlighted portions of its reply in
support of its motion for summary judgment and corresponding Exhibits B and D. (DN 166.)
B. Marathon’s Motion to Exclude Expert Testimony of Michael J. Sattinger
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Second, the Court addresses the parties’ request to seal certain documents related to
Marathon’s motion to exclude expert testimony and opinions of Plaintiff’s expert Dr. Michael J.
Sattinger. (DNs 189, 197, 208, 211.)
a. Motion to Exclude Testimony
Marathon requests the Court issue an order to seal portions of its motion to exclude
expert testimony and opinions of Plaintiff’s expert Dr. Michael J. Sattinger, portions of
supporting Exhibits C, Q, R and S, and the entirety of Exhibits D, E, F, G, I, J, M, N and P. (DN
191.)
Marathon represents that the Court has already granted leave to file Exhibits G and P
under seal. (DN 136, at PageID #3264.) Marathon argues that Exhibits D, E, I, G and P include
a declaration and testimony from third party deponents regarding their decisions to enter into
petroleum products agreements with Defendants and the terms thereof. (DN 189, at PageID
#7856.) Further, Marathon states Exhibits Q, R and S include deposition testimony regarding its
internal corporate structure, strategies for entering into different agreements, and key agreement
terms and negotiations. (Id.) Marathon states the highlighted portions of Exhibit C, and the
entirety of Exhibits I, J, M and N include discussions of Marathon’s supply and exchange
agreements, amendments and renewals of supply agreements, email correspondence between
Marathon and third parties regarding contract negotiations and third-party strategy summaries to
analyze draft contract language. (Id.) Marathon represents that the highlighted portions of its
brief correspond to the exhibits requested sealed and as such Marathon move to seal those
portions of the brief as well.

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Similar to the above arguments in Section A, Marathon argues that the cited documents,
declarations, expert reports, and testimony contain sensitive strategy, pricing, volume and other
commercial information that, if made available to competitors and the public, would put
Defendants and the third parties to those agreements at a disadvantage in the marketplace. (Id.
189, at PageID #7858.) Marathon argues that publicly disclosing these exhibits would allow its
competitors to offer more competitive terms that they would otherwise offer. Marathon argues
that publicly disclosing these exhibits would similarly compromise third parties’ ability to
negotiate and enter into competitive supply and exchange agreements as the documents reveal
terms, prices and volumes those third parties may be willing to accept in Kentucky. (Id. at
PageID #7860.)
First, the Court acknowledges that the public interest in these documents is low. The
underlying motion is a Daubert motion addressing whether an expert’s opinions do or do not
meet Federal Rules of Evidence 702’s standards.
Second, the Court is persuaded that there is a compelling reason to seal the documents to
protect both Marathon’s and the contracting third parties’ competitive standing in the
marketplace since bargaining power would be lost if their previous contractual terms were
revealed to competitors.
The Court also believes the Marathon’s request to seal is narrowly tailored to serve this
compelling interest as Marathon has identified the pertinent portions of its motion to exclude
expert testimony and the corresponding exhibits discussing the third party supply agreements at
issue. Marathon has highlighted the relevant portions of the motion to be sealed and has selected
pages from deposition transcripts containing sensitive commercial information. Marathon did
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not seek to seal the entirety of this motion, but only the specific portions containing
commercially sensitive third-party information or a discussion thereof.
Accordingly, the Court GRANTS Marathon’s motion to seal portions of defendants’
motion to exclude expert testimony and opinions of Plaintiff’s expert Dr. Michael J. Sattinger,
the supporting brief, portions of supporting Exhibits C, Q, R and S, and the entirety of Exhibits
D, E, F, G, I, J, M, N and P. (DN 189)
b. Memorandum in Opposition to Motion to Exclude Testimony
The Commonwealth also requests the Court issue an order to seal portions of its
memorandum of law in opposition to Marathon’s motion to exclude the testimony and opinions
of Michael J. Sattinger and accompanying Exhibits A-I and Exhibits L-V. (DN 200.) The
Commonwealth states that the factual issues necessary to determine the expert testimony of Dr.
Sattinger necessitate citation to several documents produced by Marathon and third parties
designated as confidential. (DN 197, at PageID #11015.) The Commonwealth’s motion is
relatively lacking in substance.
However, Marathon has also filed a response in support of Plaintiff’s motion to seal
portions of its memorandum of law in opposition to Marathon’s motion to exclude the testimony
and opinions of Michael Sattinger and attached exhibits. (DN 208.) Marathon supports the
Commonwealth’s motion to seal portions of its opposition brief and attached Exhibits A-I and LV. In addition, Marathon moves to seal additional portions of the Commonwealth’s opposition
brief, Plaintiff’s Exhibits A-H and L-V in their entirety and portions of Plaintiff’s Exhibit I. (DN
208, at PageID #13531.)

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Marathon states that Exhibit Q is an early draft of a third party declaration that this Court
has already granted leave to file under seal. (DN 136, at PageID #3264.) Marathon represents
that Exhibits R through T are email correspondence that discuss the substance of Exhibit Q. (DN
208, at PageID #13531.) Marathon states Exhibits L and P consist of communications regarding
supply and exchange agreements and amendments to and renewals of those agreements. (Id. at
PageID #13531-13532.)

Marathon states Exhibits E-H, M-O and Q-V include third party

discovery encompassing email correspondence regarding contract negotiations; strategy
summaries developed to analyze proposed draft contract language; a third party declaration
attesting to Marathon’s ability to negotiate with third parties and correspondence with Counsel
discussing the substance of that draft; deposition testimony from third party deponents regarding
their decision to enter into petroleum products agreements with Marathon; and internal market
analysis and performance assessments. (Id. at PageID #13532.) Marathon contends all of this
information is included in the expert reports and deposition testimony in the highlighted portions
of Exhibit I, and the entirety of Exhibits A through D. Marathon states that the highlighted
portions of the opposition brief discuss the substance of the exhibits for which both parties seek
leave to seal. (Id. at PageID #13533.)
First, the Court acknowledges that the public interest in these documents is low. The
underlying motion is a Daubert motion addressing whether an expert’s opinions do or do not
meet Federal Rules of Evidence 702’s standards. Identical to its argument above, Marathon
contends that the compelling reason to seal the documents is to protect both Marathon’s and the
contracting third parties’ competitive standing in the marketplace since bargaining power would
be lost if their previous contractual terms were revealed to competitors. The Court finds the
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request is narrowly tailored as it does not prevent the public from viewing the substance of the
Parties’ arguments since the entirety of the opposition brief has not been sealed, only those
portions discussing the commercial sensitive information and the corresponding exhibits.
Accordingly, the Court GRANTS the Commonwealth’s motion to seal the highlighted
portions of its memorandum of law in opposition to Marathon’s motion to exclude the testimony
and opinions of Michael J. Sattinger and accompanying Exhibits A-I and Exh. L-V (DN 200) for
the reasons set forth in Marathon’s response in support of Plaintiff’s motion to seal portions of its
memorandum of law in opposition to Marathon’s motion to exclude the testimony and opinions
of Dr. Michael J. Sattinger. (DN 208.)
c. Reply to the Motion to Exclude Testimony
Lastly, Marathon moves to seal portions of its reply in support of its motion to exclude
expert testimony and opinions of Plaintiff’s expert Michael Sattinger and portions of supporting
Exhibit A and the entirety of Exhibits B, C, E and F. (DN 212.) Marathon contends that
Exhibits E and F include third party discovery including a declaration regarding a supply
agreement and deposition testimony from third party deponents regarding their decisions to enter
into petroleum products agreements with Marathon and the terms thereof. (DN 211, at PageID
#13583.) Marathon contends the highlighted portions of Exhibit A and the entirety of Exhibits B
and C include expert reports and deposition testimony concerning supply and exchange
agreements. (Id.) Marathon represents to the Court that the highlighted portions of the reply
brief necessarily discuss the substance of the exhibits for which Marathon seeks leave to seal in
the present motion to seal or other pending motions to seal. (Id. at PageID #13584.)

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For the same reasons above, the Court finds the public interest is relative low as this is a
Daubert motion. Marathon makes the same argument as above that the compelling reason to
seal the documents is to protect both Marathon and the contracting third parties’ competitive
standing in the marketplace since bargaining power would be lost if their previous contractual
terms were revealed to competitors. The Court finds the request is narrowly tailored to achieve
the compelling interest as it does not prevent the public from viewing the substance of the
Parties’ arguments since the entirety of the reply has not been sealed, and only those highlighted
portions of the deposition transcripts discussing the commercial sensitive information are
requested sealed.
The Court GRANTS the entirety of Marathon’s motion for leave to seal portions of its
reply in support of its motion to exclude expert testimony and opinions of Plaintiff’s expert
Michael J. Sattinger and certain attached exhibits. (DN 211.)
C. The Commonwealth’s Motion to Exclude Expert Testimony of Ramsey Shehadeh and
Michael Baye
Third, the Court addresses the parties’ request to seal certain documents related to the
Commonwealth’s motion to exclude the testimony and opinions of Marathon’s experts Ramsey
Shehadeh and Michael Baye. (DNs 192, 196, 198, 210, 213, 218.)
a. Motion to Exclude Expert Testimony
The Commonwealth moves to seal portions of its motion to exclude the testimony and
opinions of Marathon’s experts Ramsey Shehadeh and Michael Baye, the supporting
memorandum and accompanying Exhibits A, B, G, I, J, L-P, S-W of the Declaration of Todd
Leatherman. (DNs 190, 193.)
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The Commonwealth’s motion to seal is relatively lacking in substance and states merely
that Marathon designated these documents as confidential and the documents were produced
pursuant to a protective order. The Commonwealth explicitly states, “Plaintiff takes no position
on whether these documents are properly designated as confidential, and if Defendants do not
make the requisite showing to support the sealing of these documents, the Commonwealth
believes that it is in the public interest to disclose this information.” (DN 192, at PageID #8228.)
The party seeking to seal the record must show a countervailing privacy interest sufficient to
outweigh the strong presumption in favor of public access to federal court records. (Rudd
Equipment Co. Inc. at 594.)
The Commonwealth has failed to identify any compelling reason to seal these documents
in its single paragraph motion. (DN 192.) Accordingly, the Commonwealth has failed to meet
its burden of showing that a countervailing privacy interest exists sufficient to outweigh the
strong presumption in favor of public access to the records.
However, Marathon submitted a response in support of the Commonwealth’s motion to
seal the highlighted portions of its motion to exclude the testimony and opinions of Marathon’s
expert and corresponding exhibits. (DN 196.) Marathon supports the Commonwealth’s motion
to seal the highlighted portions of its motion and Exhibits A, G, I, L, M, O, P, S, T, V and W in
their entirety and portions of Plaintiff’s Exhibits B, N and U. (Id. at PageID #10637.)
Marathon contends the Court previously granted leave to seal Exhibit T. (DN 136, at
PageID #3264; DN 196, at PageID #10637.) Marathon argues Exhibits L, P and T consist of
supply and exchange agreements, amendments to and renewals of those agreements for the sale
of gasoline products regionally, and communications regarding those agreements. (DN 196, at
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PageID #10638.) Marathon represents that Exhibits I, S and W include third party discovery
encompassing contract management checklists used to summarize key terms and track drafting
milestones; strategy summaries regarding draft contract language; and internal market analyses
and performance assessments. (Id. at PageID #10638.) Marathon contends Exhibits A, G, M, O
and V in their entirety and portions of Exhibits B, N and U (reattached to the instant motion as
Exhibits 2-4) are expert reports and deposition testimony regarding the agreements. (Id. at
PageID #10639.)

Marathon attaches as Exhibit 1 additional highlighted portions to the

Commonwealth’s motion to exclude that it also requests sealed since all of the highlighted
material discusses the substance of the exhibits for which the Commonwealth seeks leave to seal.
(Id. at PageID #10639.)
Similar to Section B, the Court finds the public interest in the Commonwealth’s Daubert
motion is relatively low. Marathon makes the same argument as in the above Sections that the
compelling reason to seal the documents is to protect both Marathon’s and the contracting third
parties’ competitive standing in the marketplace since bargaining power would be lost if their
previous contractual terms were revealed to competitors. The Court believes the parties’ request
to seal is narrowly tailored to serve this compelling interest as Marathon has identified the
pertinent portions of the motion to exclude and the corresponding exhibits discussing the third
party supply agreements that implicate the compelling interest of competitive standing.
Marathon has further selected pages from deposition transcripts and expert declarations
containing information regarding supply agreement renewals with third parties. Marathon did
not seek to seal the entirety of this motion or the entirety of deposition transcripts of its experts,

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but only the specific exhibits containing commercially sensitive third-party information or a
discussion thereof.
The Court GRANTS IN PART the Commonwealth’s motion to exclude the testimony
and opinions of Marathon’s experts Ramsey Shehadeh and Michael Baye, the supporting
memorandum and accompanying Exhibits A, B, G, I, J, L-P, S-W of the Declaration of Todd
Leatherman (DN 192) based on the arguments set forth in Marathon’s response in support of the
Commonwealth’s motion to seal portions of its motion to exclude the testimony and opinions of
Marathon’s experts Ramsey Shehadeh and Michael Baye in its entirety. (DN 196.) Specifically,
the Court DENIES WITHOUT PREJUDICE the Commonwealth’s request to seal the entirety
of the deposition transcripts filed as Exhibits B, M, and U. However, the Court GRANTS the
remainder of the Commonwealth’s motion. Either party may file a renewed motion to seal
within 30 days. Marathon is ordered to file supplemental redacted versions of these deposition
transcripts to replace the entirety of the Commonwealth’s transcripts as Exhibits B, M and U
within 30 days. The proffered seal documents Exhibits B, M and U to DN 193 shall remain
PROVISIONALLY SEALED during the next 30 days. If no motion to seal or supplemental
redacted versions of Exhibits B, M and U are filed by the deadline set forth above, the Clerk
shall unseal the same.
Lastly, Marathon subsequently filed DN 210 which is Marathon’s motion to seal the
highlighted portions of Exhibits 1 through 4 attached to Marathon’s above response. (DN 196).
Defendants state that on April 19, 2019, Defendants inadvertently filed unsealed versions of
Exhibits 1 through 4 in DN 196, which include the Commonwealth’s memorandum of law in
support of its motion to exclude the testimony and opinions of Marathon’s experts Ramsey
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Shehadeh and Michael Baye (Exhibit 1), as well as deposition transcripts (Exhibits 2-4.) These
exhibits contain Marathon’s and third parties’ confidential and proprietary information, and are
duplicates of Exhibits B, N and U of the Commonwealth’s motion to exclude the testimony and
opinions of Marathon’s experts Ramsey Shehadeh and Michael Baye. (DN 193.)
For the same compelling reasons and analysis articulated above addressing DN 196 and
DN 192, the Court GRANTS Defendants motion to seal the highlighted portions of Exhibits 1
through 4 attached to Marathon’s response in its entirety. (DN 210.)
b. Memorandum in Opposition to the Commonwealth’s Motion to Exclude Expert
Testimony
Marathon also separately moves to seal portions of its opposition to the Commonwealth’s
motion to exclude the testimony and opinions of Marathon’s experts Drs. Ramsey Shehadeh and
Michael Baye and the highlighted portions of supporting Exhibits C, E, I, P and W, and the
entirety of supporting Exhibits F, G, J, L, N, O, R, S and T. (DN 199.)
Marathon argues Exhibit S should be sealed in its entirety as it is an analysis that
Marathon generated prior to entering into a supply agreement with a third party for the sale of
gasoline products in Louisville, KY. (DN 198, at PageID #11022.) Marathon argues Exhibit S
discusses key terms of Marathon’s contracts with a number of other third parties for the sale of
gasoline and Marathon’s recommended terms for renewal of the at-issue contract. (Id. at PageID
#11023-11024.) Marathon argues Exhibits L, N, O, and T should be sealed in their entirety as
this is third party discovery encompassing an analysis and recommendation to renew a contract,
a declaration regarding a confidential supply agreement, and deposition testimony from third
parties regarding their decision to enter into agreements with Marathon and the terms thereof.
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(Id. at PageID #11023.) Additionally, Marathon argues the highlighted portions of Exh C, E, I, P
and W, and the entirety of Exhibits F, G, J and R should be sealed since both the
Commonwealth’s and Marathon’s expert reports, deposition testimony and declarations discuss
Marathon’s supply agreements.

(Id. at PageID #11023.)

Lastly, Marathon argues the

highlighted portions of Marathon’s opposition brief discusses the substances of the exhibits for
which it seeks leave to seal. (Id.)
Marathon makes the same argument as in the above Sections that the compelling reason
to seal the documents is to protect both Marathon’s and the contracting third parties’ competitive
standing in the marketplace since bargaining power would be lost if their previous contractual
terms were revealed to competitors.
First, the Court acknowledges that the public interest in these documents is low. The
underlying motion is a Daubert motion addressing whether an expert’s opinions do or do not
meet Federal Rules of Evidence 702’s standards.
Second, the Court is persuaded that there is a compelling reason to seal the documents to
protect both Marathon’s and the contracting third parties’ competitive standing in the
marketplace since bargaining power would be lost if their previous contractual terms were
revealed to competitors.
The Court believes Marathon’s request to seal is narrowly tailored to serve this
compelling interest as Marathon has identified the pertinent portions of its opposition to the
Commonwealth’s motion to exclude the testimony and opinions of Marathon’s experts Drs.
Ramsey Shehadeh and Michael Baye and the corresponding exhibits discussing the third party
supply agreements at issue. Marathon has highlighted the relevant portions of the motion to be
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sealed, and selected pages from deposition transcripts and expert declarations containing
sensitive commercial information. Marathon did not seek to seal the entirety its opposition, but
only the specific portions and exhibits containing commercially sensitive third-party information
or a discussion thereof.
Accordingly, the Court GRANTS Marathon’s motion to seal portions of Marathon’s
opposition to the Commonwealth’s motion to exclude the testimony and opinions of Defendant’s
experts Drs. Ramsey Shehadeh and Michael Baye and the highlighted portions of supporting
Exhibits C, E, I, P and W, and the entirety of supporting Exhibits F, G, J, L, N, O, R, S and T.
(DN 199.)
c. Reply to the Commonwealth’s Motion to Exclude Expert Testimony
The Commonwealth also moves to seal portions of its reply in support of its motion to
exclude the testimony and opinions of Marathon experts Ramsey Shehadeh and Michael Baye.
(DN 215.) The Commonwealth’s motion states the factual issues necessitate citation to several
documents and the expert reports and deposition transcripts of Drs. Shehadeh and Baye which
were designated confidential pursuant to a protective order. The two exhibits attached to DN
215 are entire deposition transcripts of experts labeled Exhibit X and Exhibit Y.
Additionally, Marathon filed a response in support of the Commonwealth’s motion to
seal portions of the reply memorandum of law in support of its motion to exclude the testimony
and opinions of Marathon’s experts and motion to seal highlighted portions of attached exhibits.
(DN 218.) Marathon moves to seal the highlighted portions of Exhibits X and Y, reattached as
Exhibits 1 and 2 in DN 219. Marathon contends the experts’ deposition testimony in the
highlighted portions of the exhibits include a discussion of Marathon’s supply and exchange
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agreements, contract renewal analysis and third party documents developed to analyze draft
contract language. Marathon argues the information discussed in the transcripts is similar in
nature and sensitivity to the supply agreements and other documents themselves.
The Court is persuaded that there is a compelling reason to seal portions of the deposition
transcripts to protect both Marathon’s and the contracting third parties’ competitive standing in
the marketplace since bargaining power would be lost if their previous contractual terms were
revealed to competitors. The Court believes the Marathon’s request to seal is narrowly tailored
to serve this compelling interest as Marathon has identified the pertinent portions of the
depositions at issue and does not seek to seal the entirety of the deposition transcripts.
The Court GRANTS IN PART the Commonwealth’s motion to seal portions of its reply
in support of its motion to exclude the testimony and opinions of Marathon’s experts Ramsey
Shehadeh and Michael Baye (DN 213) based on the arguments set forth in Marathon’s response
in support of Plaintiff’s motion to seal portions of its reply and portions of Exhibits X and Y.
(DN 218.) Specifically, the Court DENIES WITHOUT PREJUDICE the Commonwealth’s
request to seal the entirety of the deposition transcripts filed as Exhibits X and Y. However, the
Court GRANTS the remainder of the Commonwealth’s motion. Either party may file a renewed
motion to seal within 30 days. Marathon is ordered to file supplemental redacted versions of
these deposition transcripts to replace the entirety of the Commonwealth’s transcripts as Exhibits
X and Y within 30 days. The proffered seal documents Exhibits X and Y to DN 215 shall
remain PROVISIONALLY SEALED during the next 30 days.

If no motion to seal or

supplemental redacted versions of Exhibits X and Y are filed by the deadline set forth above, the
Clerk shall unseal the same.
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D. Defendant’s Motion for Summary Judgment as to All Claims
Fourth, the Court addresses the parties’ request to seal certain documents related to
Defendant’s motion for summary judgment on all claims. (DNs 194, 202, 205, 214.)
a. Defendant’s Motion for Summary Judgment
Marathon also moves to seal portions of its motion for summary judgment and brief in
support as well as portions of supporting Exhibits D-F, H, M and FF, and the entirety of Exhibits
G, I, K-L, N-P, Q-Z, BB-EE, GG-TT, XX-YY, and BBB. (DN 195.)
Marathon argues its summary judgment brief cites to various supply and renewal
agreements, amendments, and supporting documents (Exhibits S, U-W, Y-Z, DD, EE, GG, IIOO, BBB); third party documents, declarations and testimony (Exhibits G, K-L, N-P, R, T, X,
BB, CC, HH, PP-TT); portions of Marathon’s deposition testimony (Exhibits D-F, M); and
certain expert reports and testimony (Exhibits H-I, Q, XX-YY.) (DN 194, at PageID #9561.)
Marathon argues that Exhibits U-W, Y-Z, DD, EE, GG, II-OO and BBB consist of
supply and exchange agreements, amendments to and renewals of those agreements with third
parties, and communications regarding those agreements. (Id. at PageID #9563.) Marathon
argues the expert reports including the entirety of Exhibits I, Q, XX and YY, as well as the
highlighted portions of Exhibits H and FF contain this same information. (Id.) Marathon argues
the highlighted portions of the deposition transcripts contained in Exhibits D-F and M contain
testimony regarding its internal corporate structure, strategies for entering into different
petroleum products agreements, distribution systems for moving gasoline between terminals and
customers, key agreement terms and negotiations, and production volumes.

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(Id.)

Lastly,

Marathon argues the highlighted portions of its summary judgment brief relate to the substance
of the exhibits for which Marathon seeks leave to seal. (Id.)
Marathon argues it has already been granted leave to file Exhibits P, DD, and HH under
seal. (DN 136, #3264.) Marathon makes the same argument as in the above Sections that the
compelling reason to seal the documents requested is to protect both Marathon’s and the
contracting third parties’ competitive standing in the marketplace since bargaining power would
be lost if their previous contractual terms were revealed to competitors.
Unlike the analysis above, the Court recognizes that the public interest in this evidence is
high. The evidence Marathon seeks to seal is evidence that goes to the merits of the case as the
underlying motion is a motion for summary judgment arguing that Plaintiff’s causes of action
should fail. However, on balance the Court finds that Marathon would suffer a clearly defined
and serious injury if the records are not sealed as the exhibits and highlighted sections of
Marathon’s brief contain information that might harm Marathon’s and third parties’ competitive
standing as they relate to terms third parties are willing to accept in their regional supply and
exchange agreements. As stated by the Court in prior orders (DN 136), although the pricing
“information and supply agreements may not be “trade secrets” in the technical sense (e.g.
proprietary chemical formulas or engineering patents), they undoubtedly constitute information
which is used in [Marathon’s] business, and which gives [it] an opportunity to obtain an
advantage over competitors who do not know or use it.” Apple, Inc. v. Samsung Elec. Co., Ltd.,
2012 WL 6115623, at *1 (N.D. Cal. Dec. 10, 2012).
The Court finds the scope of the seal is sufficiently narrowed since Marathon requests the
Court seal only some of the exhibits attached to its motion for summary judgment-- three of
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which have previously been sealed-- and the present motion would not prevent the public from
viewing the substance of Marathon’s arguments. (See Goodman v. J.P. Morgan Inv. Mgmt., Inc.,
301 F. Supp. 3d 759, 783 (S.D. Ohio 2018)). Further, redacting identifying information, the
agreement terms, related analysis and discussion of the terms would leave the functional
equivalent of a sealed document in the case of supply agreements, expert reports and internal
communications.
Accordingly, the Court GRANTS in its entirety Marathon’s motion for leave to seal
portions of its motion for summary judgment and brief in support as well as portions of
supporting Exhibits D-F, H, M and FF, and the entirety of Exhibits G, I, K-L, N-P, Q-Z, BB-EE,
GG-TT, XX-YY, and BBB. (DN 194.)
b. Memorandum in Opposition to the Motion for Summary Judgment
The Commonwealth also moves to seal portions of its opposition to Marathon’s motion
for summary judgment on all claims and Exhibits 1 through 48. (DN 202). Similar to the other
motions to seal filed by Commonwealth, the motion is substantively lacking and states the
exhibits were designated confidential by Marathon pursuant to a protective order. However, the
Commonwealth does not set forth any compelling reason in its motion as to why the documents
should be sealed.
However, Marathon has also filed a response in support of the Commonwealth’s motion
to seal portions of its opposition to Marathon’s motion for summary judgment on all claims.
(DN 205). Marathon supports the Commonwealth’s motion to seal the highlighted portions of its
opposition brief, and corresponding Exhibits 1-3, 5, 6, 8-11, 14-22, 24-29, 32-42, and 44-48 in
their entirety, and the portions of Exhibits 4, 7, 12, 13 and 31. Marathon states in footnote 1 of
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its response that it takes no position with respect to sealing Exhibits 23, 30 and 43. (Id. at
PageID #13426.)
Marathon argues Exhibit 25 is an early draft of a third party declaration that this Court
has already granted leave to file under seal. (Id. at PageID #13428.) Further Marathon argues
Exhibits 2, 3, 10, 11, 14, 26-29, 34-42, 44, 45 and 48 consist of supply and exchange agreements,
renewals of those agreements and communications regarding those agreements. (Id.) Marathon
argues Exhibits 5, 6, 15-20, 22, 24, 25, 32, 33 and 47 include third party discovery regarding
contract negotiations, drafts of contracts, and deposition testimony regarding the contracts. (Id.)
Marathon argues Exhibits 4, 7, 12, 13, 21 and 31 are deposition transcripts containing
information regarding Marathon’s strategies for entering into different petroleum products
agreements, distribution systems for moving gasoline between terminals and customers, and
include key agreement terms. (Id. at PageID #13429.) Marathon further argues Exhibits 2, 3, 47, 10-22, 24-29, 31-42, 44, 45, 47 and 48 are expert reports and testimony discussing the other
exhibits Marathon seeks sealed. (Id.) Lastly, Marathon states in addition to the highlighted
portions of the brief identified by the Commonwealth, Marathon believes additional portions of
the opposition brief should be kept under seal because those portions also discuss the substance
of the exhibits enumerated above. (Id.)
Marathon makes identical arguments regarding the compelling interest at stake as
reiterated in other Sections of this Order, and similar to the analysis above regarding DN 194, the
Court finds the compelling interest of Marathon’s and third parties’ competitive standing
outweighs the public interest in these documents. The Court finds the request is sufficiently
narrowly tailored as Marathon does not seek to seal the entirety of the Commonwealth’s
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opposition arguments and exhibits in support thereof, but only the portions containing sensitive
commercial information of Marathon and third parties.
The Court GRANTS IN PART the Commonwealth’s motion to seal portions of its
opposition to Marathon’s motion for summary judgment on all claims and Exhibits 1 through 48
(DN 202) based on the arguments set forth in Marathon’s response in support of Plaintiff’s
motion to seal portions of its opposition to Marathon’s motion for summary judgment on all
claims.

(DN 205) Specifically, the Court DENIES WITHOUT PREJUDICE the

Commonwealth’s request to seal Exhibits 23, 30 and 43. However, the Court GRANTS the
remainder of the Commonwealth’s motion. Either party may file a renewed motion to seal
within 30 days. Exhibits 23, 30 and 43 to DN 203 shall remain PROVISIONALLY SEALED
during the next 30 days. If no motion to seal is filed by the deadline set forth above, the Clerk
shall unseal the same.
c. Reply to the Motion for Summary Judgment
Marathon also moves to seal portions of its reply in support of its motion for summary
judgment and attached exhibits. (DN 216.) Specifically Marathon seeks to seal portions of
supporting Exhibits A and E, the entirety of Exhibits B-D and F-J. Marathon contends Exhibits
B, D, G, H and I include third party discovery including deposition testimony from third party
deponents regarding their decision to enter into supply agreements, third party negotiation
strategy pro formas assessing third party bargaining positions, a supply agreement and email
correspondence regarding the content of a third party declaration. (DN 214, at PageID #137.)
Marathon also states that both Plaintiff’s and Marathon’s expert reports and deposition testimony
in Exhibits B, D, G, H, I and J discuss the same types of materials encompassed in the exhibits
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above. (Id.) Lastly, Marathon states the highlighted portions of its reply brief discuss the
substance of the exhibits for which Marathon seeks leave to seal in the present motion to seal or
that the parties have sought to seal in other pending motions to seal. (Id.)
Marathon makes identical arguments regarding the compelling interest at stake as
discussed in other Sections of this Order and, similar to the analysis above regarding DN 194 and
DN 202, the Court finds the compelling interest of Marathon’s and third parties’ competitive
standing outweighs the public interest in these documents. The Court finds the request is
sufficiently narrowly tailored as Marathon does not seek to seal the entirety of its reply and all
exhibits in support thereof, but only the portions containing sensitive commercial information.
Accordingly, the Court GRANTS in its entirety Marathon’s motion to seal portions of
Marathon’s reply in support of its motion for summary judgment and exhibits. (DN 214.)

IV.

ORDER

For the reasons set forth above, IT IS HEREBY ORDERED as follows:
(1) The Commonwealth’s Motion DN 197 is GRANTED.
(2) The Commonwealth’s Motions DNs 164, 192, 202, 213 are GRANTED IN PART and
DENIED IN PART.
(3) Marathon’s Motions DNs 155, 166, 189, 194, 198, 211, 210, 214, are GRANTED.
(4) Parties have 30 DAYS to file additional motions to seal or supplemental redacted
versions of Exhibits pursuant to the above Order.
(5) DNs 203-25, 203-32, 203-45, 215-2, 215-3, 193-2, 193-10, 193-16, 165-7, 165-8, and
165-9 shall be PROVISIONALLY SEALED for 30 DAYS. The Court directs the
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Clerk to unseal any of the documents identified in this paragraph if no party files a
motion to seal such documents on or before October 30, 2019.

September 17, 2019

cc: Counsel of record

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