Wood v. Robert Bosch Tool Corporation

Filing 248

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that Defendant's fourth motion to seal requesting that unredacted trial transcripts be sealed [ECF No. 243] is GRANTED. IT IS FURTHER ORDERED that all of Defendant's designations, construed as motions, for sealing of materials [ECF Nos. 216, 238, and 242] are GRANTED. Signed by Magistrate Judge Patricia L. Cohen on November 30, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD WOOD,

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Plaintiff,
vs.
ROBERT BOSCH
TOOL CORPORATION,
Defendant.

Case No. 4:13cv01888 PLC

MEMORANDUM AND ORDER
Defendant 1 Robert Bosch Tool Corporation moves to seal unredacted volumes of the trial
transcript [ECF No. 243], and requests the sealing of other portions of the record [ECF Nos. 216,
238, and 242], 2 including: numerous trial exhibits; trial testimony focused on those exhibits; the
entire trial testimony of two witnesses, Eric Laliberte and Ralph Dammertz; and specified portions
of other testimony. Defendant acknowledges the Court did not retain the trial exhibits, which "are
in the custody of the parties' attorneys." 3 With respect to Mr. Dammertz's testimony, Defendant
states it presented Mr. Dammertz's testimony by videotaped deposition, the deposition was not
recorded during trial except to state "prior deposition testimony was presented," and the transcript
of that deposition is marked "confidential." 4
In support, Defendant refers the Court to the argument and case law in Defendant's
memorandum supporting its pretrial motion to seal certain confidential material provided by third
1

The parties consented to a United States Magistrate Judge's exercise of jurisdiction.

2

The Court construes the latter materials as motions to seal, and refers to those materials as Defendant's first
motion to seal [ECF No. 216], second motion to seal [ECF No. 238], and third motion to seal [ECF No. 242]. The
Court refers to the motion that is docketed as ECF No. 243 as Defendant's fourth motion to seal, and to all of these
motions as "post-trial motions to seal."
3

Def's third mot. seal at 2 [ECF No. 242].

4

Def's third mot. seal at 2 [ECF No. 242].

parties. 5 In the memorandum, Defendant requested the sealing of confidential material presented
at trial under the common-law right of access and First Amendment right of access to judicial
records.
Plaintiff Donald Wood opposes Defendant's post-trial motions to seal on the ground that
Defendant's request is overbroad. Plaintiff further argues Defendant has not demonstrated a basis
for sealing records under the common-law right of access to judicial records and has not
established good cause for sealing materials as required by Local Rule 83-13.05.
I. Background
This case arises out of hand injuries Plaintiff sustained while using one of Defendant's table
saws with its blade-guarding features. The issues during discovery and trial focused on the table
saw's actual and possible features for guarding against a user's physical contact with the saw's
rotating blade. During discovery, the parties obtained confidential materials from SawStop, 6
other saw manufacturers, and related safety organizations regarding the development and
feasibility of blade-guarding features that would reduce or eliminate injuries during use of a table
saw.

Defendant also shared with Plaintiff materials Defendant designated as confidential

regarding its development and consideration of blade-guarding features. Prior to and during trial,
Defendant successfully sought protection from public disclosure of SawStop's and Defendant's
confidential materials. Defendant now seeks to maintain the protection with respect to trial
exhibits and testimony.
A. Pretrial agreed protective order

5

Def's mem. support mot. seal [ECF No. 193].

6

The parties and Court refer to Stephen Gass, who developed a flesh-detection technology for saws, and his
related businesses, SawStop, LLC, SawStop, Inc., and SD3, LLC, as "SawStop."

2

The parties agreed to the terms of a protective order to preclude the public disclosure of
confidential business-related materials they shared or received during discovery. 7 The Agreed
Protective Order ("APO") defines "confidential materials" as
any documents, information or things that constitute, reflect or contain trade secrets
or other non-public, proprietary or business-sensitive information or things,
including, without limitation, confidential research, development, financial,
corporate, or other commercial information belonging to or concerning a party or
conveying party and that a party or conveying party designates as
"CONFIDENTIAL" or "CONFIDENTIAL-2 . . . ."
Under the terms of the APO, a party may designate as confidential "[d]ocuments, information and
things produced by a party during the course of this litigation, including but not limited to
responses to discovery requests and interrogatories"; "information disclosed at a deposition,
including questions, testimony, documents or exhibits"; "motion papers, briefs, memoranda or any
other papers filed or lodged with the Court and/or served on opposing counsel"; and information
disclosed at a hearing. When a party invokes confidential status during a deposition, the party
may ask the reporter to designate the relevant portion of the deposition transcript as confidential.
Additionally, during a deposition, the party designating information as confidential "may exclude
from the room any person who is not authorized" to receive the information under the agreed
protective order. A party also "may designate information disclosed at a hearing" as confidential
by asking "the Court [to] receive the information in camera and designate the transcript
appropriately."
For information designated as confidential, the APO provides that the information "shall
not be disclosed to anyone other than this Court and the persons entitled access to such materials"
under the terms of the APO.

7

The APO expressly prohibits the disclosure to SawStop of

See Agreed Protective Order, dated Oct. 7, 2014 [ECF No. 42].

3

information designated as "Confidential-2." 8
The APO permits use of the confidential information "solely for the purposes of preparing
for and conducting this action." Specifically, the APO allows the parties to use the confidential
information during pretrial preparation and proceedings, trial proceedings, and appellate
proceedings for this and "Similar Cases." "Similar Cases" are "claims filed against [Defendant]
by one or more of the attorneys representing Plaintiff in this case in which allegations are made
that a [Defendant's] saw is defective or unreasonably dangerous." The parties may only use the
confidential information for other purposes when "agreed to in writing by all parties to this action
or authorized by order of the Court."
While the APO does not "govern proceedings during trial, [it expressly] does [not] prohibit
either party from seeking a protective order to govern proceedings during trial." The APO also
sets forth requirements for challenging a designation of information as confidential, for
modification of the order, and for the return or disposition at the termination of the litigation of
materials protected by the order.
B. Trial proceedings
Prior to the start of trial, Defendant moved 9 to seal SawStop documents designated
"Confidential – Attorneys' Eyes Only" filed during trial, as well as any part of the record
discussing confidential SawStop documents. 10 Defendant further requested the Court to close
proceedings to "the public, the press, and any employee of [Defendant]" when the confidential

8

For convenience in discussing Defendant's post-trial motions to seal, the Court refers to all the designated
material as confidential, whether the designation is "Confidential" or "Confidential-2" under the APO's terms.
9

Def's pretrial mot. seal and mem. supp. pretrial mot. seal, filed Oct. 29, 2015. [ECF Nos. 192 and 193].

10

The SawStop documents are subject to a protective order issued by the United States District Court for
the District of Oregon.

4

SawStop documents were discussed during trial. 11

In the motion, Defendant stated it

"anticipate[d] that its expert witness, Peter Domeny, will discuss documents that are designated as
'Confidential – Attorney's Eyes Only' during his trial testimony." 12

At the final pretrial

conference, the Court granted Defendant's pretrial motion to seal. 13
The parties agreed prior to trial that the Court would read a statement to the jury stating,
"Ladies and Gentlemen, due to some earlier rulings by the Court, during certain testimony various
people will leave the courtroom. You are not to consider this in your consideration of this case." 14
Before voir dire began, Defendant sought the same protection for confidential and
proprietary information in documents and testimony addressing Defendant's "development of its
flesh-detection saw." 15 In seeking protection, Defendant's counsel referenced the testimony of
Eric Laliberte. 16

Defendant also asked the Court to seal the record to protect the above

information contained in any transcript later ordered. 17 The Court orally granted Defendant's
requests and directed Defendant to file a document reflecting the Court's decision. 18
During trial, Plaintiff presented the testimony of four witnesses: expert witness Darry
Robert Holt, who testified for two days; Plaintiff; expert witness Kelly Mehler; and Plaintiff's
wife. 19 Defendant presented three witnesses: Mr. Dammertz (by videotaped deposition), Mr.

11

Def.'s Mot. Seal, filed Oct. 29, 2015 [ECF No. 192].

12

Def.'s Mot. Seal at 2, filed Oct. 29, 2015 [ECF No. 192].

13

See Minute Sheet for the final pretrial conference, dated Oct. 30, 2015 [ECF No. 199].

14

Trial Tr., Vol. I at 32, 49-50 [ECF No. 239].

15

Trial Tr., Vol. I, at 33 [ECF No. 239].

16

Trial Tr., Vol. I, at 33 [ECF No. 239].

17

Trial Tr., Vol. I, at 34 [ECF No. 239].

18

Trial Tr., Vol. I, at 34-35 [ECF No. 239].

19

See Witness List [ECF No. 219].

5

Laliberte, and Mr. Domeny, an expert witness who testified during two days. 20 The Court
admitted one hundred of the parties' exhibits during trial. 21 The jury awarded Plaintiff $100,000
in damages and found Plaintiff partially at fault on each claim. 22 The Court entered judgment in
favor of Plaintiff in the total amount of $40,000.00 23 and taxed costs in Plaintiff's favor. 24
Plaintiff filed and then withdrew a motion for new trial on damages. 25
Pursuant to Local Rule 83-7.02(B), on the day the jury reached its verdict, the Court
returned to the parties the exhibits and deposition transcripts they had introduced during trial. 26
Later, a court reporter filed with the Court redacted and unredacted versions of Volumes I, II, and
V of the trial transcript. 27 Those volumes encompass the testimony of Mr. Holt (Volumes I and
II) and part of the testimony of Mr. Domeny (Volume V). The unredacted versions of those
volumes are maintained under seal and the redacted versions of those volumes are not maintained
under seal. The record does not include any redacted or unredacted version of any other volume
of trial transcript.

20

See Witness List [ECF No. 219].

21

There appears to be some duplication in the list of admitted exhibits [ECF No. 220]. For instance, an
exhibit designated "P20" appears twice on the exhibit list.
22

Verdict, filed Nov. 9, 2015 [ECF No. 209].

23

The Court originally entered judgment in favor of Plaintiff in the total amount of $60,000.00. After an
unopposed motion filed by Defendant seeking entry of a judgment totaling $40,000.00 in favor of Plaintiff, the Court
granted the motion and entered an amended judgment awarding Plaintiff $40,000.00. See Jdg., filed Nov. 9, 2015
[ECF 215]; Def's mot. alter jdg., filed Nov. 13, 2015 [ECF 217]; Am. Jdg., filed Nov. 16, 2015 [ECF No. 222].
24

Am. Jdg., filed Nov. 16, 2015 [ECF No. 222]; Taxation of Costs, filed Dec. 2, 2015 [ECF No. 231].

25

Pl.'s mot. new trial, filed Nov. 23, 2015 [ECF No. 227]; Pl.'s notice of withdrawal of Pl's mot. new trial,
filed Dec. 3, 2015 [ECF No. 232].
26

27

See Ex. Receipt [ECF No. 213] and Dep. Receipt [ECF No. 214].
Unredacted and Redacted Versions of Vols. I, II, and V of Trial Tr. [ECF Nos. 234, 235, 236, 239, 240,

and 241].

6

Neither party has filed a notice of appeal to date. Plaintiff has filed a satisfaction of
judgment. 28
C. Pending post-trial motions to seal
Defendant filed its first motion to seal after trial concluded. In the motion, Defendant asks
the Court to seal forty-four exhibits, which are identified by number only. Defendant also
requests the Court to seal the testimony related to those exhibits and the entire testimony of Mr.
Laliberte and Mr. Dammertz.
In its second motion to seal, Defendant designates for sealing specified portions of
Volumes I, II, and V of the trial transcript, as well as forty-eight exhibits, which are identified by
number only, including twenty listed in Defendant's first motion to seal. The redacted versions of
Volumes I, II, and V of the trial transcript, which are available in the public record, comply with
Defendant's designation for sealing portions of those volumes.
For its third motion to seal, Defendant asks the Court to seal identified portions of Volumes
III, IV, and VI of the trial transcript, as well as Mr. Dammertz's testimony and seventy-nine
exhibits, including sixty-four exhibits listed in Defendant's first two motions to seal. Defendant
notes Mr. Dammertz's prior deposition testimony was presented at trial by playing the videotaped
recording of the deposition testimony and was not recorded by the Court during trial, the transcript
for this deposition was marked "confidential," and the transcript "will continue to be treated as
confidential by the parties." Additionally, Defendant acknowledges the parties retained their trial
exhibits and would protect the confidential nature of listed trial exhibits because they were marked
as "confidential" when they were produced during discovery.
In its fourth motion to seal, Defendant states it anticipates the filing of redacted versions of
Volumes III, IV, and VI of the trial transcript. Defendant asks the Court "to seal the unredacted
28

Satisfaction of Jdg., filed Feb. 12, 2016 [ECF No. 247].

7

trial transcript in all volumes and to allow access only to the redacted trial transcripts." The
record does not yet include Volumes III, IV, and VI of the trial transcript.
For legal principles and argument supporting its four post-trial motions to seal, Defendant
refers to the memorandum it filed in support of its pre-trial motion to seal SawStop documents.29
In that memorandum, Defendant discusses the common-law and First Amendment rights of access
to judicial records and documents.
Plaintiff opposes Defendant's post-trial motions to seal on the ground that Defendant seeks
protection of materials beyond the confidential SawStop documents. Plaintiff does not object to
the continued protection of the confidential SawStop documents. Citing IDT Corp. v. eBay, 709
F.3d 1220 (8th Cir. 2013), Plaintiff urges Defendant has not demonstrated a basis for sealing
records other than the SawStop documents under the common-law right of access to judicial
records.

Plaintiff also argues Defendant has not established "good cause" for sealing the

materials under Local Rule 83-13.05.
II. Discussion
A. Right of access to judicial records and files
1. Common-law right of access to judicial records
There is a judicially-recognized "general right to inspect and copy public records and
documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435
U.S. 589, 598 (1978) (footnotes omitted). This common-law right of access is not absolute. Id.
Rather, "[e]very court has supervisory power over its own records and files," and may exercise its
discretion to ascertain whether material is protected from the common-law right of access under
the "relevant facts and circumstances of the particular case." Id. at 598-99. In Nixon, the
Supreme Court held that, although the common-law right of access applied, it did not support
29

Def.'s Mem. Supp. Mot. Seal [ECF No. 193].

8

release of White House tape recordings "from the custody of the District Court," because an
alternative means of public access to the recordings was available through the Presidential
Recordings and Materials Preservation Act, 44 U.S.C. Section 2101, et seq. Nixon, 435 U.S. at
599, 606-08 and 607 n. 18.
The Eighth Circuit has acknowledged a common-law right of access in a civil proceeding.
Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371, 1376-77 (8th Cir. 1990).
However, the Eighth Circuit defers to the trial court rather than adopting an approach that
recognizes a "'strong presumption' favoring access." Id. at 1376 (quoting United States v. Webbe,
791 F.2d 103, 106 (8th Cir. 1986)). In exercising its discretion regarding the sealing of judicial
records, a court balances "the interests served by the common-law right of access . . . against the
salutary interests served by maintaining confidentiality of the information sought to be sealed."
IDT Corp., 709 F.3d at 1223.

The common-law right of access serves such interests as

"bolster[ing] public confidence in the judicial system by allowing citizens to evaluate the
reasonableness and fairness of judicial proceedings," allowing citizens "'to keep a watchful eye on
the workings of public agencies,'" and "provid[ing] a measure of accountability to the public at
large, which pays for the courts." Id. at 1222 (quoting Nixon, 435 U.S. at 598) (other citations
omitted). Importantly, as the Supreme Court recognized, "courts have refused to permit their files
to serve . . . as sources of business information that might harm a litigant's competitive standing."
Nixon, 435 U.S. at 598.
(a.) Judicial records
Defendant asks the Court to seal numerous exhibits, only some of which were admitted
during trial, as well as the trial testimony (videotape) of Mr. Dammertz, the trial testimony of Mr.
Laliberte, and certain portions of other testimony in the trial transcripts. Plaintiff objects to the
sealing of any information other than information in or pertaining to confidential SawStop
9

materials. While the parties have not raised or addressed the issue, the Court first ascertains
whether the material Defendant asks the Court to seal constitutes a judicial record subject to the
common-law right of access. Cf. Nixon, supra, addressing the common-law right of access to
tapes "in [the district court's] custody."
(1) Videotaped recording of deposition testimony
In its first and third motions to seal, Defendant seeks, in part, the protection from public
access of the trial testimony of Mr. Dammertz. Plaintiff objects generally to the sealing of this
testimony because Mr. Dammertz is one of Defendant's employees. The parties do not dispute
that Defendant presented Mr. Dammertz's testimony at trial by playing the videotape of his
deposition testimony. 30
Although not cited by either party, in United States v. McDougal, 103 F.3d 651 (8th Cir.
1996), the Eighth Circuit held, "as a matter of law that the videotape" of a witness's deposition
played during trial "is not a judicial record to which the common law right of public access
attaches," regardless of whether the videotape is admitted into evidence. Id. at 656. As the
Eighth Circuit observed, the videotape recording of a deposition is not a recording "of the primary
conduct of witnesses or parties [which is] similar to documentary evidence to which the common
law right of public access ordinarily may apply," but, rather, is "merely an electronic recording of
witness testimony." Id. at 657. Based on McDougal, the Court concludes the videotape of the
deposition of Mr. Dammertz, which was played during trial, is not a judicial record subject to the
common-law right of access. Therefore, the Court grants Defendant's first and third motions to
seal to the extent Defendant seeks to protect from public access the videotape of Mr. Dammertz's
testimony.

30

See, e.g., Clerk's Witness List [ECF No. 219].

10

(2) Exhibits
In its first three motions to seal, Defendant asks the Court to protect from public access
numerous exhibits, some of which were admitted at trial. 31 Plaintiff generally objects to such
protection to the extent the request encompasses documents beyond confidential SawStop
materials.
The parties have not directed the Court to, and the Court has not discovered, Eighth Circuit
authority expressly addressing what constitutes a "judicial record" for purposes of the
common-law right of access to trial exhibits. However, the Third Circuit has addressed, in
Littlejohn v. BIC Corp., 851 F.2d 673 (3rd Cir. 1988), whether a trial exhibit is a "judicial record"
subject to the common-law right of access. In Littlejohn, the trial court entered prior to trial a
protective order proscribing public disclosure of certain materials. Id. at 676. Following the trial
on liability, the parties settled the case. Id. The trial court returned the trial exhibits to the
parties. Id. at 676-77. The parties did not file an appeal. Subsequently, a newspaper intervened
in the matter to secure access to certain admitted trial exhibits. Id. Based on its earlier decision
in United States v. Criden, 648 F.2d 814, 823 (3rd Cir. 1981), the Third Circuit found exhibits
introduced into evidence during a public trial should be made available for public access under the
common law. Littlejohn, 851 F.2d at 678-81. Finding a protected document had not been
admitted into evidence during trial, the Third Circuit reversed the district court's determination that
the exhibit was part of the public record due to its admission into evidence. Id. at 679-80.
With respect to exhibits admitted into evidence, the Third Circuit concluded the release of
information in open court with no effort to limit its disclosure "'operates as a waiver of any rights a
party had to restrict its future use.'" Id. at 680 (quoting National Polymer Prods. v. Borg-Warner

31

Compare exhibit numbers listed in Def's first three post-trial mots. seal [ECF Nos. 216, 238, and 242]
with exhibit numbers listed in Clerk's Exhibit List [ECF No. 220].

11

Corp., 641 F.2d 418, 421 (6th Cir. 1981)). A litigant's "failure to object to the admission into
evidence of [confidential] documents, absent a sealing of the record," the Third Circuit held,
"constituted a waiver of whatever confidential interests might have been preserved under the"
protective order. Id. at 680-81. The Third Circuit then addressed an argument that exhibits did
not remain judicial records once a court returned the exhibits to the parties after trial.
Of considerable relevance here, the Third Circuit concluded that exhibits admitted into
evidence and returned to the parties upon resolution of the case are no longer "judicial records"
subject to public access when an appeal is not filed. Id. at 681. The Third Circuit observed that
where liability is established at trial, the exhibits are returned to the parties, and no appeal is taken,
public access to exhibits no longer serves the purposes of "promot[ing] trustworthiness of the
judicial process," "curb[ing] judicial abuses, and . . . provid[ing] the public with a more complete
understanding of the judicial system." Id. at 682. Therefore, the Third Circuit held:
absent allegations of fraud or other extraordinary circumstances, trial exhibits that
were restored to their owner after a case has been completely terminated . . . are no
longer judicial records within 'the supervisory power' of the district court. . . .
Neither the first amendment nor the common law right of public access empowers
the district court to require that litigants return such exhibits to the court for the
purposes of copy and inspection by third parties.
Id. at 683. Importantly, the Third Circuit expressly recognized that the right of access continues
to exist for "items . . . properly remain[ing] part of the judicial record, such as the deposition
testimony read into evidence at trial or exhibits or portions thereof transcribed and made part of the
official transcript."

Id.

Accordingly, because the case was concluded and no appeal was

pending, the district court erred, the Third Circuit decided, in requiring the return to the district
court of certain exhibits, including two confidential corporate documents admitted during trial.
Id. at 676-77, 683.

12

Here, as in Littlejohn, the APO protected confidential business and trade secret materials
from public disclosure prior to trial, the Court granted Defendant's pre-trial requests to protect the
confidential materials from disclosure during trial proceedings, the parties received the trial
exhibits at the conclusion of trial, neither party filed an appeal from the judgment entered after
trial, and Plaintiff filed a satisfaction of judgment. Applying principles articulated in Littlejohn to
this case, the Court concludes that the exhibits identified in Defendant's post-trial motions to seal
are not judicial records and are protected from public access. Littlejohn, supra. Accord Pansy v.
Borough of Stroudsburg, 23 F.3d 772 (3rd Cir. 1994) ("once . . . [a] document[ is] no longer part of
the court file [it] lose[s its] status as [a] judicial record[]"); cf. United States v. Amodeo, 44 F.3d
141, 145-46 (2nd Cir. 1995) (a document filed with the court that is "relevant to the performance of
the judicial function and useful in the judicial process [is] a judicial document" for purposes of the
common law right of public access); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 778-79
(1st Cir. 1988) (finding a district court lacked power, in a closed case that was not appealed, to
require a litigant to file in court certain documents to make them available to the public); Rosado v.
Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 54-55 (2009) ("[w]hile in the court's
possession, judicial documents remain part of the court's records [subject to the supervisory
authority of the court] and are subject to . . . public access"). Accordingly, Defendant's first three
post-trial motions to seal are granted.
(3) Testimony in trial transcripts
Defendant also asks the Court to seal: (1) testimony related to the exhibits Defendant
identified in its post-trial motions to seal; (2) all of the testimony of Mr. Laliberte; (3) certain
specified portions of the trial transcript; and (4) all unredacted volumes of the trial transcript.
Plaintiff has not addressed Defendant's specific requests but generally objects to sealing any
testimony beyond testimony regarding confidential SawStop information.
13

To the extent the Court considers protecting from public disclosure trial witnesses'
discussion of confidential exhibits, Plaintiff objects generally to the continued protection of
Defendant's sensitive business information marked as "confidential." However, Plaintiff agrees
to the sealing of SawStop documents marked as confidential. Plaintiff does not provide a
rationale for distinguishing between the two groups of documents, except possibly insofar as the
SawStop documents "are subject to the protective order [issued by the] United States District
Court of Oregon." This distinction alone is not a sufficient basis for an objection to Defendant's
request.
Plaintiff also states, in support of his position, that "many of the [confidential] documents
are from years ago and do not even suggest a need for confidentiality on their face." Plaintiff has
not specified either the documents or the confidential materials to which he is referring.
Moreover, Plaintiff has not asserted either that he lacked access to any of the materials designated
as confidential, or that he presented his challenge to the confidentiality designation upon obtaining
access to and reviewing the material prior to trial. Significantly, the APO expressly allows
Plaintiff to use the confidential material in litigation characterized as similar to this case. The
Court is not persuaded by Plaintiff's objections to the continued sealing of confidential materials
identified as exhibits discussed during trial and reflected in the available trial transcript.
As the Third Circuit recognized in Littlejohn, the common-law right of access exists for
"items . . . properly remain[ing] part of the judicial record [after the trial concludes even in the
absence of an appeal], such as . . . exhibits or portions thereof transcribed and made part of the
official transcript." Littlejohn, 851 F.2d at 673. To ascertain whether any of the exhibits
identified in Defendant's post-trial motions to seal were made part of the official transcript that
may be subject to the common-law right of access, the Court reviews only the portions of the
available trial transcript that have been redacted, namely, the redacted portions of Volumes I, II,
14

and V. The portions of the trial transcript accessible due to the filing of the transcript volumes in
the public record are not protectible by sealing now that they have been made available to the
public. See, e.g., Webster Groves Sch. Dist., 898 F.2d at 1377 (a court "cannot unseal the record
and then restrict dissemination of the sensitive information therein"); In re Iowa Freedom of
Information Council, 724 F.2d 658, 662, 664 (8th Cir. 1984) ("Trade secrets are a peculiar kind of
property. Their only value consists in their being kept private. If they are disclosed or revealed,
they are destroyed").
Volumes I and II of the trial transcript contain the testimony of Darry Robert Holt, one of
Plaintiff's expert witnesses, who testified in relevant part about reports, meeting minutes, and other
materials discussing the development of SawStop flesh-detection technology and Defendant's
effort to develop certain table saw guarding and flesh-detection technology systems. During the
part of his testimony that Defendant seeks to seal, Mr. Holt addressed materials identified as
Exhibits 58, 103, 147, 176, 207, 257, 259, 264, and 268. Defendant included each of these nine
exhibits in its first, second, and third motions to seal [Docs. 216, 238, and 242] as exhibits to place
under seal.
Volume V of the trial transcript contains the continuation of the direct examination, as well
as the cross-examination and redirect examination, of Mr. Domeny, who formerly worked for
Defendant. That testimony provides information about SawStop documents and the availability
and various aspects of its flesh-detection technology, as well as information about Defendant's
development of guarding systems and flesh-detection technology.

During the part of his

testimony that Defendant asks to seal, Mr. Domeny discussed materials identified as Exs. 301,
303, 1005, 1052, 1145, 1146, 1147, 1149, and 1150.

Defendant included each of these nine

exhibits in its first, second, and third motions to seal [Docs. 216, 238, and 242] as exhibits to place
under seal.
15

Having reviewed the redacted portions of the available trial transcript, the Court concludes
Defendant's interest in maintaining the confidentiality of its business and commercial information
regarding development of its guarding and flesh-detection technology outweighs the public's
interest in access to those portions of the available transcript.

Therefore the Court grants

Defendant's fourth motion to seal so that the unredacted versions of Volumes I, II, and V of the
trial transcript remain sealed and the redacted versions of those volumes remain available in the
public record. See, e.g., Seidl v. American Century Cos., 799 F.3d 983, 994 (8th Cir. 2015); In re
Iowa Freedom of Information Council, 724 F.2d at 664.
Finally, Defendant seeks to seal the entire trial testimony of Mr. Laliberte, which is part of
Volumes III, IV, and VI of the trial transcript, as well as certain portions of other testimony in
those volumes of the trial transcript. Because Volumes III, IV, and VI of the trial transcript are
not filed with the Court they are not judicial records subject to the common-law right of access.
See Littlejohn, supra. Therefore, the Court grants Defendant's motions to seal with respect to
Volumes III, IV, and VI of the trial transcript.
2. First Amendment right of access to judicial records in a civil case
Neither the United States Supreme Court nor the Eighth Circuit has applied "the
constitutional right of access to civil proceedings." See IDT Corp., 709 F.3d at 1224 n.2 ("[t]his
circuit has not decided whether there is a First Amendment right of public access to the court file in
civil proceedings"); Webster Groves Sch. Dist., 898 F.2d at 1377, 1374 (noting the United States
Supreme Court has "never . . . held that there is a constitutional right of access to civil proceedings
or to the court file in a civil proceeding" and "the Eighth Circuit has yet to address the issue"). In
IDT Corp., the Eighth Circuit stated the Supreme Court's decisions have established "at least two
prerequisites [to recognition of a First Amendment right of access in civil proceedings, including]
. . . a historical tradition of accessibility." IDT Corp., 709 F.3d at 1224 n.2. Finding an intervenor
16

seeking to unseal a complaint had not "established a strong historical tradition of public access to
complaints in civil cases that are settled without adjudication on the merits," the Eighth Circuit
rejected the intervenor's argument that a First Amendment right of access applied to permit public
access to the sealed complaint. Id.
Here, Plaintiff has not described the existence of a "strong historical tradition of public
access" to the videotaped recording of deposition testimony played during trial, to trial exhibits
either not admitted during trial or admitted during trial and returned to the parties after trial, to trial
testimony discussing admitted confidential materials that have been returned to the parties, or to
trial testimony not available in the written record in a closed civil case not appealed by the
litigants. In the absence of the demonstration of a basis to extend a First Amendment right of
access under the circumstances of this case, the Court declines to do so.
3. Local Rule 83-13.05
Plaintiff urges the Court to deny Defendant's post-trial motions to seal because Defendant
has not established the "good cause" required by Local Rule 83-13.05. Defendant has not
responded to this argument.
Local Rule 83-13.05 provides in relevant part that:
Upon a showing of good cause the Court may order that documents filed in
a civil case be received and maintained by the Clerk under seal. The Clerk of
Court will restrict access to such documents so that they are not in the file to which
the public has access.
Local Rule 83-13.05(A)(1). The Rule also permits the filing of a motion to unseal materials after
disposition of the civil case. Local Rule 83-13.05(A)(2). Specifically, the Rule permits the
filing of a motion: "Requesting that documents previously filed under seal be unsealed and made
part of the public record. Unless otherwise ordered by the Court, all documents previously sealed
in a civil action will remain sealed by the Clerk of the Court." Id.
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This Rule is not determinative here because the documents subject to Defendant's post-trial
motions to seal have not been "filed" in the civil case, except to the extent three volumes of trial
transcript were filed partially under seal. As to the portions of those transcripts remaining under
seal, the Court concludes any "good cause" required by Local Rule 83-13.05 for such filing was
established by the Court's consideration of the common-law right of access. See discussion
above.
4. In camera review
Defendant has offered to submit the relevant exhibits and transcripts to the Court for in
camera review. Plaintiff has not specifically responded to the proposed in camera review. The
Court declines to engage in such review because the sealed Volumes I, II, and V of the trial
transcript are accessible to the Court for review, and the Court has found the other materials are not
judicial records subject to the common law right of access.
III. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant's fourth motion to seal requesting that
unredacted trial transcripts be sealed [ECF No. 243] is GRANTED.
IT IS FURTHER ORDERED that all of Defendant's designations, construed as motions,
for sealing of materials [ECF Nos. 216, 238, and 242] are GRANTED.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of November, 2016.

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