Beyond Systems, Inc. v. Kraft Foods, Inc. et al

Filing 341

Letter/ORDER GRANTING IN PART 260 Interim Sealing Motion and Motion to Challenge Confidentiality. Signed by Magistrate Judge Charles B. Day on 4/21/2010. (cm, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE U.S. COURTHOUSE 6500 CHERRYWOOD LANE GREENBELT, MARYLAND 20770 [phone] FAX [phone]

April 21, 2010

VIA ELECTRONIC FILING Anthony F. Cavanaugh, Esquire Anthony A. Onorato, Esquire John J. Duffy Esquire Thomas M. Barba, Esquire Jennie L. Kneedler, Esquire Jeffrey Edward McFadden, Esquire Steptoe and Johnson 1330 Connecticut Avenue, NW Washington, DC 20036 Michael S. Rothman, Esquire Law Office of Michael S. Rothman 401 E. Jefferson Street, Suite 201 Rockville, Maryland 20850 Stephen Howard Ring, Esquire Stephen H. Ring, P.C. 20300 Seneca Meadows Parkway, Suite 200 Germantown, Maryland 20876 Barry J. Reingold, Esquire John M. Devaney, Esquire John K. Roche, Esquire Perkins Coie, LLP 607 14th Street, NW - Suite 800 Washington, DC 20005 Re: Beyond Systems, Inc. v. Kraft Foods, Inc., et al. Civil Action No. PJM-08-409

Darrell J. Graham, Esquire Law Office of Darrel J. Graham, LLC 53 W. Jackson Boulevard - Suite 1334 Chicago, Illinois 60604 Ari Nicholas Rothman, Esquire J. Douglas Baldridge, Esquire Lisa Jose Fales, Esquire Robert Andrew Friedman, Esquire Venable LLP 575 Seventh Street, NW Washington, DC 20004 Sanford M. Saunders, Jr., Esquire Nicoleta Burlacu, Esquire Greenberg and Traurig, LLP 2101 L. Street, NW ­ Suite 1000 Washington, DC 20037

Dear Counsel: Pursuant to the referral of this case to me for resolution of discovery disputes, the Court has received Defendants Connexus Corporation and Hydra LLC's Interim Sealing Motion and Motion to Challenge Confidentiality (ADefendants' Motion@)(Docket Item No. 260). The Court has reviewed Defendants' Motion and the opposition, and reply thereto. No hearing is deemed

Beyond Systems v Kraft, et al. April 21, 2010 Page 2 of 3

necessary. Local Rule 105.6 (D. Md.). The Court hereby GRANTS IN PART Defendant's Motion. Plaintiff and Third-Party Defendants James Joseph Wagner ("Wagner") and Hypertouch, Inc. ("Hypertouch") have designated various documents as "confidential" pursuant to the Protective Order granted by this Court on May 12, 2009. As stated in Paragraph 4 of the Protective Order, "The burden of proving the confidentiality of designated information remains with the party asserting such confidentiality." Plaintiff, Wagner and Hypertouch have failed to satisfy their burdens. Exhibit 6 and 10 As to Exhibit 6, Plaintiff seeks protection of portions of its Answers to Interrogatories which describe the gross revenues it has received from settlements and/or judgments of claims related to commercial electronic mail, from 2004 to 2009. Plaintiff contends a disclosure of this information would run afoul of confidential settlement agreements. Exhibit 10 is an excerpt from the deposition of Wagner regarding his personal financial information as well as corporate financial information for Hypertouch. Wagner and Hypertouch suggest that the public disclosure of this information serves no legitimate purpose and is merely being used for the purposes of harassment, embarrassment and oppression. Defendants contend these exhibits reflect "BSI's and Joe Wagner/Hypertouch's aggregate litigation proceeds," without providing other identifiers. They also note that the Court has previously found, by way of its Order dated October 21, 2009, that the lack of identifiers destroys the need for confidentiality. Neither Wagner nor Hypertouch have provided any persuasive reason why this generic income information should be shielded from public view. It is not the sort of "sensitive personal information" or "commercial information" envisioned by the Protective Order or case law. While the Court understands how the disclosure of this information could be embarrassing, the Court fails to appreciate how the disclosure could be harmful. Moreover, the Court does not find on this record that Defendants' motivation is to cause embarrassment. The Court starts from the concern that Plaintiff, Wagner and Hypertouch have failed to demonstrate the necessary entitlement to confidentiality. Wagner and Hypertouch have made no meaningful attempt or credible argument to show by

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affidavit or concrete examples the likelihood of harm. See Deford v. Schmid Prod. Co., 129 F.R.D. 648, 653 (D. Md. 1987). Defendants' Motion is GRANTED as to Exhibits 6 and 10. Exhibit 7 and 10 These exhibits reflect "BSI's and Joe Wagner/Hypertouch's aggregate revenue information" which do not satisfy any of the standards necessary to obtain protection under the Protective Order. Equally, the gross amounts do not use identifiers to further specify the nature of the revenue information. Again, Plaintiff, Wagner, and Hypertouch have failed to set forth any concrete examples of the likelihood of harm. See Deford v. Schmid Prod. Co., 129 F.R.D. 648, 653 (D. Md. 1987). Defendants' Motion is GRANTED as to Exhibits 7 and 10. Wagner and Hypertouch consent to the release of the contents of this exhibit into the public record. Therefore, as to Exhibit 9, Defendants' Motion is GRANTED. The Court will defer ruling on this exhibit as it is more properly the subject of a motion for the return of inadvertently produced privileged documents.

Exhibit 9

Exhibit 22

Accordingly, Defendants' Motion is GRANTED IN PART. Exhibits 6, 7, 9 and 10 to Defendants Connexus and Hydra's Motion for Summary Judgment no longer enjoy the confidentiality afforded by the Protective Order of the Court. The Court will defer ruling on Exhibit 22. Despite the informal nature of this letter, it should be flagged as an opinion and docketed as an order. Very truly yours, /s/ Charles B. Day United States Magistrate Judge CBD/bab