Walker et al v. Segway, Inc.

Filing 34

ORDER unsealing documents 16, 17, 21, 24 and 27. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Charles W. and Janette Walker
v.

Civil No. 11-cv-382-JD

Segway Inc.
O R D E R
The Walkers filed a motion to compel; Segway filed its
objection, and further responses were filed.
filings were made under seal.
was also filed under seal.

All of these

The order on the motion to compel

The court then ordered the parties to

show cause why their filings, along with the order addressing the
motion, should not be unsealed.

The parties have filed their

responses.

Standard of Review
“The common law presumes a right of public access to
judicial records.”

Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9

(1st Cir. 1998); accord United States v. Kravetz, 706 F.3d 47, 52
(1st Cir. 2013).

“Judicial records,” in this context, “are those

materials on which a court relies in determining the litigants’
substantive rights.”

Kravetz, 706 F.3d at 54.

A party seeking

to seal judicial records must show compelling reasons for doing
so.

Id. at 59.

Because discovery disputes ordinarily do not result in the
determination of the parties’ substantive rights, those filings
are not judicial records to which the presumption of public
access attaches.

Id. at 54.

Nevertheless, once filed with the

court, a showing of good cause is necessary to protect discovery
motions and responses from disclosure.

Poliquin v. Garden Way,

Inc., 989 F.2d 527, 533 (1st Cir. 1993); see also Pintos v.
Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010);
Mangosoft, Inc. v. Oracle Corp., 2005 WL 2203171, at *2 (D.N.H.
Sept. 9, 2005).

“Good cause” requires “making a particularized

factual showing of the harm that would be sustained if the court
did not allow the filing under seal.”

Metroplex Path. Assoc. v.

Horn, 2013 WL 22197, at *4 (D. Mass. Jan. 2, 2013) (citing Dunkin
Donuts Franchised Rests., LLC v. Agawam Donuts, Inc., 2008 WL
427290, at *1 (D. Mass. Feb. 13, 2008)); see also Blum v. Merrill
Lynch Pierce Fenner & Smith Inc., --- F.3d ---, 2013 WL 1458891,
at *4 (9th Cir. Apr. 11, 2013); Rovner v. Keystone Human Servs.
Corp., 2012 WL 1899654, at *2 (M.D. Pa. May 24, 2012).

Discussion
In response to the court’s show cause order, the Walkers
support unsealing the motion to compel, the responses, and the
order granting the motion, while Segway asks that they remain
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sealed.

The Walkers contend that their motion to compel, the

responsive filings, and the order do not include matters that
were designated as confidential or protected under the parties’
Stipulated Confidentiality Agreement and Protective Order.
Segway contends that certain documents and deposition testimony
are protected information under the Protective Order.

A.

Protective Order
The protective order states that some documents produced in

discovery and some deposition testimony may “contain proprietary,
competitively sensitive, confidential trade secret, or other
confidential information.”

Doc. no. 11 at 1.

Such documents and

deposition testimony may be disclosed under the Protective Order.
Not all documents and deposition testimony, however, are entitled
to protection.

Id.

The parties agreed to a procedure for protecting documents
and deposition testimony that are disclosed under the Protective
Order.

Id. at 2.

Under that procedure, documents stamped with

the term “Confidential (or Highly Confidential) and Subject to
Protective Order” are protected and entitled to confidential
treatment as provided in the order.

Portions of deposition

testimony that refer to protected documents or other confidential
information “shall be designated by page and line number,
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following review of the deposition transcript[,] as being
‘Confidential and Subject to Protective Order’ (‘Protected
Testimony’), and shall be protected and be given confidential
treatment as described below.”

B.

Id. at 2, ¶ 1.

Protected Documents and Deposition Testimony
Segway argues that information about prior incidents and

complaints, parts of the depositions of Roxanne Lamonde and Jane
Davison, the Walkers’ expert’s report, and Segway engineers’
deposition testimony are all protected information under the
terms of the Protective Order.

Segway contends that because the

motion papers, the responses, and the order refer to those
documents and deposition testimony they must be sealed.

The

Walkers represent that none of the cited documents and deposition
testimony was designated according to the procedure provided in
the Protective Order.
The Protective Order states that its protection applies to
documents and deposition testimony that are designated as
confidential as provided in the Protective Order.

Segway does

not contend that the documents and deposition testimony that it
seeks to protect were designated as “Confidential” or “Protected
Testimony” as provided in the Protective Order.

Segway also did

not respond to the Walkers’ assertion that the disputed documents
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and testimony were not designated as confidential under the
Protective Order.
Instead, Segway argues that the cited documents and
deposition testimony should be protected under the Protective
Order because if that information were disclosed, it “could harm
Segway’s competitiveness in its industry.”

Segway’s main concern

appears to be disclosure of prior incidents, complaints, and
service anomalies.

With respect to the Segway engineers’

testimony, Segway also mentions information about “control
algorithms, principles of operation, and fault logs” without any
specificity as to what that information would disclose.
The Protective Order provides a procedure for protecting
confidential information that apparently was not applied to the
documents and testimony at issue here.

Even if it were

appropriate for the court to apply the Protective Order when the
required designations are missing, Segway has not provided
sufficient specificity to support its request for protection.
Under these circumstances, Segway has not shown good cause to
have the motion to compel, the responsive filings, and the order
remain sealed.

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Conclusion
For the foregoing reasons, documents numbered 16, 17, 21,
24, and 27 shall be unsealed.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 15, 2013
cc:

Ronald E. Cook, Esquire
Ralph Suozzo, Esquire
Mark Venardi, Esquire

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