Gosmile, Inc. v. Levine, D.M.D. P.C. et al

Filing 109

MEMORANDUM AND ORDER ON SEALING. The parties' sealing motions are GRANTED. (Docket # 102, 105.) The Clerk is directed to terminate the motions. The parties are directed to file their motion papers on ECF in accordance with this Order within 14 days. Granting 102 Motion to Seal; Granting 105 Motion to Seal. (Signed by Judge P. Kevin Castel on 4/19/2012) (rjm)

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#: ____~______

-----------------------------------------------------------x

DATE FILED: ">"-01.-0 - /~

GOSMILE, INC., a Delaware Corporation,
Plaintiff,

10 Civ. 8663 (PKC)
-againstMEMORANDUM AND ORDER
ON SEALING
DR. JONATHAN LEVINE, D.M.D. P.c., a
New York corporation, and DR. JONATHAN
B. LEVINE, an individual,
Defendants.

-----------------------------------------------------------x
P. KEVIN CASTEL, District Judge:
Two motions to seal documents are pending in this action. The first motion,
which is filed by the defendants, moves to seal and redact certain of plaintiff's submissions in
support of its motion to dismiss and in opposition to defendants' motion for attorneys' fees.
(Docket # 102.) The second motion, filed by plaintiff, moves to seal an exhibit submitted by
defendants in support of their attorneys' fees motion. (Docket # 105.) Because these documents
were immaterial to the Court's rulings on plaintiff's Rule 41(a)(2) motion and the defendants'
attorneys' fees motion, and because they contain certain proprietary information, the motions are
granted.
There are both common-law and First Amendment presumptions of public access
to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,119-20 (2d Cir.
2006). A court first must detennine whether the disputed materials are, in fact, judicial
documents. Id.at 119. "[T]he item filed must be relevant to the performance of the judicial
function and useful in the judicial process in order for it to be designated a judicial doeument."

-2­

United States v. Amodeo, 44 F.3d 141,145 (2d Cir. 1995). If the item qualifies as ajudicial
document, the presumption of access may vary. Lugosch, 435 F.3d at 119. Certain submissions
directly affect adjudication, while others are irrelevant. rd. at 119-20. Courts also may weigh
the presumption of disclosure against "countervailing factors," including "the privacy interests of
those resisting disclosure." Id. at 120 (quotation marks omitted). "When litigation requires
disclosure of trade secrets, the court may disclose certain materials only to the attomeys
involved." In re New York Times Co., 577 F.3d 401,410 nA (2d Cir. 2009) (in dictum).
Exhibits 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61 to the Declaration ofWendi
Sloane have no bearing on the motions to dismiss and for attomeys' fees. Each exhibit is an e­
mail chain that involves the defendants' discussions oflaunching their product on cable shopping
networks. The e-mails discuss matters such as the marketing strengths of the various networks,
pricing and sales targets, and the defendants' branding goals. These e-mails sometimes include
discussion of personal details irrelevant to this litigation, such as family illnesses and vacations.
Plaintiff apparently submitted these e-mails in an attempt to refute defendants' contention that
this litigation complicated their product launch, and argue that any delay was due to business
considerations. (PI. Reply. Mem. at 16-17.) The Court did not weigh these documents in its
review of the parties' motions, considers them immaterial to the motions, and therefore does not
consider them to be judicial documents. Even if viewed as judicial documents, the presumption
of access is slight, and are outweighed by their proprietary nature and, to a more limited extent,
the privacy interests implicated by the correspondents' more personal discussions.
New York Times Co., 577 F.3d at 410 nA; Lugo_scl;:t, 435 F.3d at 120. The defendants' motion is
therefore granted, and exhibits 52,53,54,55,56,57,58,59,60, and 61 to the Declaration of

-3­

Wendi Sloane may be filed under seal. The plaintiff's memorandum of law discussing these
documents may be redacted under heading 4 at pages 16 to 17.
Separately, the plaintiff moves to seal Exhibit D to the Declaration of Kyle C.
Bisceglie, dated November 16,2011. This exhibit reflects plaintiff's public-relations activities in
December, 2009 and certain public-relations plans for the first half of201 O. While such material
might be relevant and probative to a trademark-infringement analysis, particularly to any dispute
over the strength of a mark, this exhibit was immaterial to the Court's order on attomeys' fees
and the action's dismissaL I therefore do not consider it to be ajudicial document for the
purpose of these motions, and the exhibit may be filed under seal.
CONCLUSION
The parties' sealing motions are GRANTED. (Docket # 103, 105.) The Clerk is
directed to terminate the motions.
The parties are directed to file their motion papers on ECF in accordance with this
Order within 14 days.
SO ORDERED.

Dated: New York, New York
Apri119,2011