IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.

Filing 278

OPINION. Signed by Judge Noel L. Hillman on 1/13/2023. (alb, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SONYA IVANOVS and KATIE
HOFFMAN, ON BEHALF OF
THEMSELVES AND ALL OTHER
SIMILARLY SITUATED EMPLOYEES,

1:17-cv-01742-NLH-AMD
OPINION

Plaintiffs,
v.
BAYADA HOME HEALTH CARE,
INC.,
Defendant.

Appearances:
MICHAEL JOHN PALITZ
SHAVITZ LAW GROUP, P.A.
800 3RD AVENUE
SUITE 2800
New York, N.Y. 10022
On behalf of Plaintiffs
MICHAEL D. HOMANS
HOMANS PECK, LLC
1500 JOHN F. KENNEDY BLVD.
STE. 520
PHILADELPHIA, PA. 19102
On behalf of Defendant
HILLMAN, District Judge
Pending before the Court is the parties’ joint motion to
redact and seal pursuant to Local Civil Rule 5.3.

(ECF 226).

For the reasons expressed below, the motion will be granted.

I. Background
Defendant BAYADA Home Health Care, Inc. is privately held
healthcare company incorporated in Pennsylvania and principally
based in Moorestown, New Jersey.

(ECF 1 at ¶¶ 18-19).

Plaintiffs Sonya Ivanovs and Katie Hoffman (collectively
“Plaintiffs”) are citizens of New Jersey and Minnesota,
respectively, who both worked as client services managers
(“CSMs”) for Defendant.

(Id. at ¶¶ 12, 15).

Plaintiffs allege that Defendant employs CSMs and similar
positions and unlawfully classifies such employees as exempt
from the minimum-wage and overtime requirements of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., despite
CSMs primarily performing non-exempt duties, (id. at ¶¶ 2-4).
Plaintiffs brought their action on behalf of themselves and a
purported nationwide class of similarly situated current and
former employees of Defendant.

(Id. at ¶ 11).

On July 10, 2017, Magistrate Judge Ann Marie Donio entered
a discovery confidentiality order permitting the parties and
third parties to designate as “Confidential” material containing
trade secrets or competitively sensitive information, private or
confidential personal information, and other content.
at ¶ 1).

(ECF 29

On September 24, 2018, the Court granted conditional

certification of Plaintiffs’ two proposed subclasses, (ECF 56;
ECF 58), and, on August 6, 2021, granted Plaintiffs’ motion for
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final certification, (ECF 174; ECF 175).

As part of their

motion to certify, Plaintiffs filed under seal the three
documents relevant to the instant motion pursuant to the
discovery confidentiality order.

(ECF 141-15; ECF 141-16; ECF

141-24).
On September 10, 2021, Defendant moved pursuant to Local
Civil Rule 5.3 to seal two of the above-referenced documents,
both versions of “The BAYADA Way of Operating an Office,” and to
redact the name of a non-party from an employee evaluation.
(ECF 181; ECF 181-1 at 1).

On June 23, 2022, the Court denied

Defendant’s motion without prejudice, citing procedural and
substantive defects.

(ECF 222).

On July 25, 2022, Defendant, with the consent of
Plaintiffs’ counsel, filed the instant motion to redact the same
three documents.

(ECF 226).

II. Discussion
A. Jurisdiction
The Court possesses original jurisdiction over this action
as Plaintiffs’ claims are based on alleged violations of the
FLSA.

See 28 U.S.C. § 1331.

B. Local Civil Rule 5.3
Motions to seal within this District are governed by Local
Civil Rule 5.3.

Medley v. Atl. Exposition Servs., Inc., 550 F.

Supp. 3d 170, 203 (D.N.J. July 26, 2021).
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Pursuant to Local

Civil Rule 5.3, requests to restrict public access are to be
made via a single, consolidated motion on behalf of all parties,
L. Civ. R. 5.3(c)(1), and include (a) the nature of the
materials or proceeding at issue, (b) the interests warranting
the relief sought, (c) the clearly defined, serious injury that
would result without relief, (d) why less restrictive
alternatives are unavailable, (e) any prior orders involving the
sealing of the same materials, and (f) the identity of any
objector, L. Civ. R. 5.3(c)(3); see also Ford v. Caldwell, No.
20-12655, 2022 WL 4449338, at *1 (D.N.J. Sept. 23, 2022) (noting
that the Local Civil Rule 5.3(c)(3) factors are considered by
courts when ruling on motions to seal).

Corresponding opinions

and orders must include findings on those same factors.

L. Civ.

R. 5.3(c)(6).
While litigants maintain an interest in privacy, and it is
within courts’ authority to restrict public access, the public
has a right to information regarding judicial proceedings.

See,

e.g., Medley, 550 F. Supp. 3d at 203; Bertolotti v. AutoZone,
Inc., 132 F. Supp. 3d 590, 609 (D.N.J. Sept. 22, 2015).
Therefore, movants bear the burden of overcoming the presumption
in favor of public access, which must be accompanied by
demonstration of “good cause” in favor of protection.

Medley,

550 F. Supp. 3d at 203-04 (citing Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)).
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Good cause is

demonstrated by a particularized showing of a clear and serious
injury that would result from disclosure and is not met by
broad, unsubstantiated allegations.

Id. at 204 (citing Pansy,

23 F.3d at 786).
III. Analysis
At the outset, the Court notes that the instant motion has
– consistent with Local Civil Rule 5.3(c)(3) – been accompanied
by an index describing the information to be redacted, the
interests and injuries implicated, why less restrictive
alternatives are unavailable, and any parties opposing the
redactions, which there are none.

(ECF 226-2).

Also, contrary

to the earlier motion to seal, (ECF 222 at 6-7), a declaration
from an employee with knowledge of the relevant materials has
been included.

(ECF 226-1).

The declaration of Cris Toscano,

practice president of Defendant’s Skilled Nursing Unit who has
worked for Defendant for twenty-seven years, appropriately
details the materials to be redacted and the interests and
potential injuries at stake.

(Id.).

With these procedural standards met, the Court will,
pursuant to Local Civil Rule 5.3(c)(6), address the Local Civil
Rule 5.3(c)(3) factors.
A. Nature of Materials at Issue, Local Civil Rule 5.3(c)(1)
The parties seek to redact numerous pages from two versions
of the “The BAYADA Way of Operating an Office,” otherwise
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referred to as “playbooks,” filed as Exhibits M and N in
Plaintiffs’ motion for final certification.
at ¶ 6; ECF 226-2 at 2-6).

(ECF 226; ECF 226-1

They also seek to redact portions of

an employee evaluation attached to Plaintiffs’ motion for final
certification as Exhibit V.

(ECF 226; ECF 226-1 at ¶ 21; ECF

226-2 at 6-7).
For the playbook filed as Exhibit M, effective May 26,
2015, the parties seek to redact all or part of twenty-three
pages.

Eighteen pages sought to be fully redacted contain

“Lifecycle” data, including development and growth plans for
Defendant offices, targeted hour and revenue goals, and
additional cost and revenue information.
ECF 226-6 at 26-43).

(ECF 226-1 at ¶ 12;

Two-and-a-half additional pages of

material consisting of employee pay scale and rates are sought
to be entirely redacted as well as portions of two other pages
containing financial-goals information and a “Week in Review”
report pertaining to Defendant’s business model.
¶¶ 15-16; ECF 226-6 at 75-77, 172-73).

(ECF 226-1 at

The playbook filed as

Exhibit N, effective May 20, 2019, contains similar material
sought to be redacted – twenty-three fully redacted pages of
“Lifecycle” data, three fully redacted pages of employeecompensation information, and portions of one page consisting of
financial-goals information.

(ECF 226-1 at ¶ 17; ECF 226-3 at

23-45, 76-78, 167).
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Finally, the parties seek to redact the subject’s name and
signature from an employee evaluation, filed as Exhibit V.
226-1 at ¶ 21; ECF 226-4).

(ECF

This employee is not a party to this

action, or even a CSM, but rather their evaluation was included
to demonstrate work conducted by CSMs.

(ECF 226-1 at ¶ 21).

The Court has reviewed Toscano’s declaration and index
summarizing proposed redactions attached to the pending motion.
(ECF 226-1; ECF 226-2).

The Court has also cross-referenced the

descriptions of the redacted material in the declaration and
index with unredacted copies of the exhibits in question and
concludes that the index and declaration accurately depict the
proposed redacted material.
B. Private Interests Implicated and Clearly Defined Injury,
Local Civil Rules 5.3(c)(2), (3)
Toscano’s declaration explains that the two playbooks
included as Exhibits M and N are compilations containing
sensitive information regarding Defendant’s operations that have
been compiled and refined over many years.
8, 11).

(ECF 226-1 at ¶¶ 7-

The above-referenced “Lifecycle” data consists of

development and growth plans, targeted weekly revenue and
billing hours, cost and revenue data, division-of-labor
information, and financial expectations and milestones.
¶ 12).

(Id. at

If such information was made public, Toscano asserts

that competitors would be able to replicate Defendant’s
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practices, undercut Defendant’s pricing, recruit away
Defendant’s clients and employees, and forecast changes within
the company such as office splits.

(Id. at ¶ 14).

Similarly,

Toscano asserts that the employee-compensation material and
financial-goals data sough to be redacted, including the “Week
in Review,” could be used by competitors to recruit employees
away from Defendant or undercut Defendant with clients.

(Id. at

¶¶ 15-16).
Such information has been recognized as protectable within
the District of New Jersey.

See Cherry Hill Programs, Inc. v.

Sullivan, No. 1:21-cv-20248, 2022 WL 14558234, at *4 (D.N.J.
Oct. 25, 2022) (referring to a business plan, expense reports,
employee-compensation information, and similar material);
Boehringer Ingelheim Pharma GMBH & Co. KG v. Mylan Pharms.,
Inc., No. 14–4727, 2015 WL 1816473, at *2 (D.N.J. Apr. 22, 2015)
(sealing portions of a brief and declaration containing sales
and revenue information).

The injuries cited by Toscano are

also the sorts that courts within the District have found to
warrant sealing.

See Sullivan, 2022 WL 14558234, at *4 (finding

that plaintiffs presented a clearly defined injury by stating
that the revelation of sales and contract data would allow
clients to change their bids, enable competitors to poach
clients, and undermine employee retention); Kasilag v. Hartford
Inv. Fin. Servs., LLC, Nos. 11-1083 & 14-1611, 2016 WL 1394347,
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at *7 (D.N.J. Apr. 7, 2016) (“Companies possess a legitimate
private interest in keeping ‘cost and profit information sealed
from the public and their competitors, to ensure their
competitiveness in the marketplace.’” (quoting Bracco
Diagnostics, Inc. v. Amersham Health, Inc., No. 03-6025, 2007 WL
2085350, at *5 (D.N.J. July 18, 2007))).

Therefore, the Court

concludes that the nature of the interests and injuries
implicated favor sealing the playbooks submitted as Exhibits M
and N.
Separately, Exhibit V is an employee evaluation of a nonparty who is not a CSM that was submitted to demonstrate how
CSMs evaluate employees.

(ECF 226-1 at ¶ 21).

Defendant has a

policy of keeping employee records confidential and Toscano
submits that public disclosure of the employee’s identity would
result in invasion of their privacy and embarrassment.

(Id. at

¶¶ 21-22).
The Court agrees that the identity of the non-party
employee who was the subject of the evaluation included as
Exhibit V is of little relevance to the action and that the
information provided in the document, including numeric ratings
and future goals, is the sort in which the employee maintains a
legitimate privacy interest.

Therefore, the Court holds that

the interests and injuries in question support sealing Exhibit
V.

See Jorjani v. N.J. Inst. of Tech., Nos. 18-11693 & 20-1422,
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2022 WL 1811304, at *6 (D.N.J. June 2, 2022) (granting a motion
to seal nonparties’ employment information, concluding that
“[p]ublic disclosure would likely threaten the privacy interests
of such nonparties, exposing them to potential embarrassment and
harm to their reputation”).
C. Availability of Less Restrictive Alternatives, Local Civil
Rule 5.3(c)(4)
Many of the proposed redactions are full pages from
Defendant’s playbooks, forty-six-and-a-half pages in all, along
with several more minor redactions of financial-goals
information from the playbooks and the employee’s name and
signature from the evaluation.

Toscano represents that, in

response to the Court’s previous opinion, the proposed
redactions of the playbooks are tailored to exclude only
material that Defendant is certain will result in substantial
harm if disclosed. (ECF 226-1 at ¶¶ 19-20).

Further, Toscano

states that redaction of the employee’s identity is the least
restrictive means of protecting their privacy.

(Id. at ¶ 23).

While movants must state with particularity “why a less
restrictive alternative to the relief sought is not available,”
L. Civ. R. 5.3(c)(3)(d), wholesale redactions have been
permitted within this District, see Medwell, LLC v. Cigna Corp.,
No. 20-cv-10627, 2020 WL 7694008, at *5 (D.N.J. Dec. 28, 2020)
(concluding that there was no less restrictive means of
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redaction than to seal exhibits in their entirety).

The Court

has reviewed the material to be redacted from the playbooks and
is satisfied that the proposed redactions have been limited to
information implicating the legitimate interests and injuries
described above.

Further, the employee evaluation has remained

unredacted aside from the name and signature identifying the
subject.

Therefore, the Court finds that less restrictive

alternative redactions are not available and that the redactions
as proposed are appropriate.
D. Prior Sealing Orders and Objectors, Local Civil Rules
5.3(c)(5), (6)
Finally, the Court looks to whether any prior order has
sealed the same materials and any party or non-party objector.
As referenced, the relevant exhibits were filed pursuant to
Judge Donio’s discovery confidentiality order and the Court
previously denied a similar motion to seal these documents.
(ECF 29; ECF 222).

The pending motion is unopposed.

(ECF 226-

2).
Therefore, the Court holds that the balance of the Local
Rule 5.3(c) factors supports the proposed redactions.

In

particular, the parties have demonstrated the sensitivity and
legitimate privacy interests Defendant has in the records, the
clearly defined and serious injury Defendant would suffer if the
motion is not granted, and the absence of less restrictive
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alternatives.

The Court will thus grant the parties’ motion to

seal. 1
IV. Conclusion
For the reasons stated above, the parties’ joint motion to
redact and seal pursuant to Local Civil Rule 5.3, (ECF 226),
will be granted.
An Order consistent with this Opinion will be entered.

Date: January 13, 2023
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Although the Court has granted the motion to seal, it retains
the prerogative to lift the seal of any portion of the sealed
materials if necessary to avoid misleading the factfinder in
this matter or which are necessary to unseal, after notice and
an opportunity to be heard, in order to explain or place in
context any legal ruling by the Court either during trial or
post-trial.
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