American Dairy Queen Corporation v. W.B. Mason Co., Inc.
ORDER denying 294 Joint Motion Regarding Continued Sealing. Document Number(s) to be UNSEALED: 290. Order on continued sealing becomes final on 11/1/2021 unless further timely submissions are filed. Signed by Magistrate Judge Elizabeth Cowan Wright on 10/4/2021. (SK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AMERICAN DAIRY QUEEN
Case No. 18-cv-693 (SRN/ECW)
W.B. MASON CO., INC.,
This matter is before the Court on the parties’ Joint Motion Regarding Continued
Sealing (Dkt. 294) to continue sealing the July 1, 2021 Order (Dkt. 290) by United States
District Judge Susan Richard Nelson with respect to the Motion for Partial Summary
Judgment filed by Plaintiff American Dairy Queen Corporation (“Dairy Queen”) (Dkt.
180); (2) the Motion for Summary Judgment filed by Defendant W.B. Mason Co. (“W.B.
Mason”) (Dkt. 182); (3) Plaintiff’s Motion to Exclude Surveys and Opinions from
Defendant’s Expert Sarah Butler (Dkt. 133); (4) Plaintiff’s Motion to Exclude the
Opinion, Report, and Testimony of Dr. Wayne D. Hoyer (Dkt. 141); (5) Defendant’s
Motion to Exclude the Recognition Survey Conducted by E. Deborah Jay and Any
Associated Opinions (Dkt. 155); and (6) Defendant’s Motion to Exclude Expert
Testimony of Erich Joachimsthaler (Dkt. 172).
As part of the Order, the parties were instructed to show cause as to why the Order
should remain under seal, and if so, which portions of the Order should remain sealed and
for how long.
The July 1, 2021 Order, relied, in part, on documents that this Court ordered were
subject to continued sealing pursuant to Local Rule 5.6(d). (Dkt. 291.)
The parties proposed a redacted version of the June 1, 2021 Order that the parties
agreed should be filed publicly. (See Dkt. 295.)
American courts “recognize a general right to inspect and copy public records and
documents, including judicial records and documents.” Nixon v. Warner Comms., Inc.,
435 U.S. 589, 597 (1978). As the Eighth Circuit has held:
There is a common-law right of access to judicial records. . . . This right of
access bolsters public confidence in the judicial system by allowing citizens
to evaluate the reasonableness and fairness of judicial proceedings, and “to
keep a watchful eye on the workings of public agencies.” It also provides a
measure of accountability to the public at large, which pays for the courts.
IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013) (citations omitted).
“This right of access is not absolute, but requires a weighing of competing
interests.” Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir.
1990). The Eighth Circuit has identified the following interests that must be addressed in
deciding whether to seal a judicial record:
Where the common-law right of access is implicated, the court must consider
the degree to which sealing a judicial record would interfere with the interests
served by the common-law right of access and balance that interference
against the salutary interests served by maintaining confidentiality of the
information sought to be sealed. The decision as to access is one best left to
the sound discretion of the trial court in light of the relevant facts and
circumstances of the particular case.
IDT, 709 F.3d at 1223 (cleaned up). That said, “[a]lthough the court is given . . .
supervisory power [over its records], ‘only the most compelling reasons can justify non2
disclosure of judicial records.’” In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (quoting
In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005)).
“Modern cases on the common-law right of access say that ‘the weight to be given
the presumption of access must be governed by the role of the material at issue in the
exercise of Article III judicial power and resulting value of such information to those
monitoring the federal courts.’” IDT, 709 F.3d at 1224 (quoting United States v.
Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995)) (citations omitted). When a document plays
only a negligible role in a court’s exercise of its Article III duties, such as a complaint,
the public’s interest in access to the document is weaker and “the weight of the
presumption is low and amounts to little more than a prediction of public access absent a
countervailing reason.” Id. (quoting Amodeo, 71 F.3d at 1050). While the Eighth Circuit
has not been explicit about what weight to give the presumption as it relates to documents
filed in conjunction with summary judgment, in one of the decisions relied upon by the
Eighth Circuit in IDT, see 709 F.3d at 1224, the Second Circuit concluded that the weight
of the presumption of public access given to such documents is of the highest and such
documents should not remain under seal unless there exist compelling reasons. See
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (citation
omitted); see also Krueger v. Ameriprise Fin., Inc., No. 11-CV-2781 (SRN/JSM), 2014
WL 12597948, at *8-9 (D. Minn. Oct. 14, 2014) (noting that while the Eighth Circuit has
not explicitly defined what constitutes “judicial records,” courts have held that
information submitted in connection with a motion for summary judgment is integrally
involved in the resolution of the merits of a case for which the presumption of public
access attaches); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 245
F.R.D. 632, 636 (D. Minn. 2007) (“The Court finds that Guidant and Duran have a
heightened burden to overcome the presumptive right of the public to access of the briefs
and supporting documents at issue because they were filed in support of and in opposition
to motions for summary judgment.”) (citation omitted).
Here, the presumption is even stronger than it would be for briefs and exhibits
submitted with respect to motions for summary judgment and to exclude expert
testimony, as not only does the Order reflect information provided by the parties for the
Court’s consideration in the adjudication of the merits of the dispositive motions and
what evidence will be considered, but it also reflects Judge Nelson’s reasoning related to
the merits of the claims. Such information is central to the exercise of Article III judicial
power, and restricting this information would hinder the public’s ability to evaluate the
reasonableness and fairness of judicial proceedings and the merits of the Court’s ruling
on the motions. The only reason for continued, indefinite sealing provided by the parties
is “[b]ecause the Court’s June 1 Order contains the same non-public, confidential and
commercially sensitive business information as that included in the Sealed Docket
Entries, the disclosure of which would result in competitive injury to the Parties.” (Dkt.
294 at 2.) But this does not address the public’s interest in understanding the basis for
Judge Nelson’s decision. The Court denies the motion for continued sealing on this basis
In any event, the Court has reviewed the excerpts of the Order that the parties seek
to have redacted from the publicly available record. The excerpts deal with past sales of
Blizzard treats, total past amounts spent over an eleven-year period for marketing of
Blizzard treats, why W.B. Mason decided to sell water, and public recognition of the
BLIZZARD mark. Given that the strength of any property and privacy interests asserted
is weak, coupled with the fact that the information as to sales, marketing, and public
recognition forms part of the basis for the Court’s decision on dispositive motions and
evidentiary matters, the Court finds that the parties have not met their burden to
overcome the presumptive right of the public to access to the entire June 1, 2020 Order.
Based upon on the motion and the documents filed under seal, as well as all the
files, records and proceedings herein, IT IS HEREBY ORDERED:
The parties’ Joint Motion Regarding Continued Sealing (Dkt. 294) to
continue sealing the July 1, 2021 Order is DENIED.
The July 1, 2021 Order (Dkt. 290) shall be UNSEALED in accordance
with the Local Rules unless a timely objection to the Order is filed.
DATED: October 4, 2021
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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