Konica Minolta Business Solutions, U.S.A., Inc. v. Applied Imaging Systems, Inc. et al

Filing 278

OPINION AND ORDER Denying Motion to Seal without Prejudice (ECF NO. 275 ). Signed by Magistrate Judge Elizabeth A. Stafford. (Sandusky, K)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KONICA MINOLTA BUSINESS
SOLUTIONS, U.S.A., INC.
Plaintiff,

Civil Action No.: 15-11254
Honorable Victoria A. Roberts
Magistrate Judge Elizabeth A. Stafford

v.
LOWERY CORPORATION d/b/a
APPLIED IMAGING SYSTEMS,
INC., et al,
Defendants.
__________________________/
OPINION AND ORDER DENYING MOTION TO SEAL
WITHOUT PREJUDICE [ECF NO. 275]
I.

Introduction
On July 30, 2018, defendants filed an exhibit under seal, [ECF No.

274], but the Court struck it with a notation stating, “A motion to seal must
be filed that complies with LR 5.3, as amended on March 1, 2018.”
Defendants followed by filing an unopposed motion to seal that does not
comply with Rule 5.3. [ECF No. 275]. The Court will deny the motion.
II.

Analysis
Defendants motion to seal states that the Honorable Victoria A.

Roberts entered a stipulated protective order in February 2016, and has

granted orders to file under seal the same documents that defendants seek
to file under seal now. [ECF Nos. 92, 239, 240, 243, 244]. The stipulations
and orders to seal to which defendants refer stated that the information to
be sealed is the subject of a protective order; no other justification was
provided. [ECF Nos. 239, 240].
Defendants’ current motion to seal outlines the requirements of E.D.
Mich. LR 5.3(b)(3) as follows:
“[A] motion seeking such authorization must include: (1) an
index of documents proposed for sealing; (2) a description of
any non-party or third-party interests that may be affected by
Case disclosure; (3) whether the proposed material was
designated as confidential under a protective order; (4) a
detailed analysis demonstrating that the request satisfied
controlling legal authority; (5) a redacted version of the
document to be sealed; and (6) an unredacted version of the
document to be sealed, filed as a sealed exhibit.
[ECF No. 275, PageID. 4844-45]. Their motion addresses the third
requirement; it notes that the materials were designated under a
protective order and states that they are deemed highly confidential.
But despite citing all of the requirements of Rule 5.3, defendants’
motion satisfies none of the other requirements.
Although the proposed exhibit to be sealed is 81 pages long and has
within it an objection to a special master report, the full special master

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report, and ten separate exhibits labeled “A” through “J,” defendants’ index
of documents is beyond cursory:

[ECF No. 275, PageID.4843].
Defendants’ motion to seal also does not address the interest of any
non-parties that may be affected. They do cite opinions indicating that the
sealing of confidential information that could harm a party’s business
interest is proper. [Id., PageID.4844, citing LL NJ, Inc. v. NBC-Subsidiary
(WCAU-TV), LP, 2008 WL 1923261, *27 (E.D. Mich. Apr. 28, 2008);
NetJets Ass’n of Shared Aircraft Pilots v. NetJets, Inc., 2016 WL 5349793,
*2 (S.D. Ohio Sept. 23, 2016)]. But these citations do not constitute a
“detailed analysis demonstrating that the request satisfied controlling legal
authority,” as required by Rule 5.3. And NetJets “involve[d] a small amount
of information from one document that has been redacted.” 2016 WL
5349793 at *2. It does not support defendants’ motion to seal the entirety
of the 81 pages at issue here.
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It is not enough to pay lip service to Rule 5.3, which states that “[a]ny
motion to file under seal must contain” the components set forth therein.
Rule 5.3(b)(3)(a) (emphasis added). The rule also mandates that the
parties file a motion “that is narrowly tailored,” and that the “Court may
grant a motion to seal only upon a finding of a compelling reason why
certain documents or portions thereof should be sealed.” E.D. Mich. LR
5.3(b) (emphasis added).
The comments to the 2018 amendment refer to Shane Grp., Inc. v.
Blue Cross Blue Shield of Michigan, which emphasized the heavy burden
for overcoming the strong presumption that records filed with the court be
done so openly. 825 F.3d 299, 305 (6th Cir. 2016). This heavy burden
must be met even if no party objects, and it requires “document-bydocument, line by line” analysis. Id. at 305, 308. The court indicated that
the sealing of documents filed at the adjudication stage cannot be justified
by a Federal Rule of Civil Procedure 26(c)(1) protective order, which is
blanket in nature and is allowed with a “mere showing” of good cause. Id.
at 305.
The Shane court held that the district court had abused its discretion
by sealing records without an adequate justification.
The parties’ asserted bases for sealing off all this information
were brief, perfunctory, and patently inadequate. For example,
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when the Plaintiffs sought to seal their brief in support of their
Motion for Class Certification—arguably the most important
filing in any putative class action—and all 90 attachments
thereto, the Plaintiffs’ entire justification for filing these materials
under seal was the following: ‘The Class Certification Brief
includes quotations, information, and references to multiple
depositions and documents designated as confidential by Blue
Cross or the third party entity that produced the document or
deposition.’ Those are protective-order justifications, not
sealing-order ones.
Id. at 306. The court thus vacated the district court’s approval of a
settlement, and vacated all of the orders sealing documents. Id. at
310.
The comments to the 2018 amendment to Rule 5.3 also refer to
Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 207 (6th
Cir. 2016). In that opinion, the Sixth Circuit vacated the sealing of
documents “per Protective Order” because no motion had been filed to
show a narrowly tailored and compelling need, and the district court did not
enter an order or otherwise approve the sealing with the necessary specific
findings. Id. This opinion should serve as a warning for the parties; the
court in Beauchamp raised the sealing issue on its own motion. Id.
The tone and substance of defendants’ motion to seal appears to
treat the requirements of Rule 5.3 cavalierly, and suggests that this Court’s
order directing them to file a motion to seal was superfluous. Defendants
suggest that the fact that the documents they wish to seal have been
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designated confidential under a protective order should be enough.
Defendants are not alone in having this mistaken belief; until recently,
motions to seal have routinely relied exclusively on an existing protective
order, and those motions have routinely been granted. But that practice is
directly contrary to Sixth Circuit precedent and Rule 5.3, and continuing
that practice poses risks to the parties involved. The Shane and
Beauchamp attorneys and parties learned that lesson the hard way.
III.

Conclusion
Defendants’ motion to seal is denied. [ECF No. 275]. They may

renew their motion, but any renewed motion must fully comply with Rule
5.3, and must address each of the individual documents within the 81-page
document individually. Defendants should strongly consider filing redacted
exhibits, and filing corresponding unredacted versions under seal, rather
than moving to seal the entirety of the 81 pages of documents. See Rule
5.3(b)(3)(A)(v) and (vi) (describing procedure for filing documents with
redactions). If defendants file redacted and unredacted versions of the
documents, the Court will consider the unredacted portion of the
documents only to the extent that a motion to seal has been granted. Rule
5.3(b)(3)(C)(ii) and (iii)(2).

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IT IS SO ORDERED.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: August 6, 2018
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of 14 days from the date of receipt of a copy of this order
within which to file objections for consideration by the district judge under
28 U.S.C. § 636(b)(1).
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 6, 2018.
s/Karri Sandusky for
MARLENA WILLIAMS
Case Manager

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