In re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigation

Filing 82

OPINION AND ORDER: Materials in this matter are to be sealed or redacted in compliance with the terms of this Opinion & Order. The parties shall submit the joint status letter directed by this Opinion & Order by February 16, 2023. The Clerk of Court is respectfully directed to terminate the motions at Docs. 1405, 1411, 1416, 1746, 1755, 1759, 1765, 1774, 1788, 1789, 1799, and 1822. SO ORDERED. (Signed by Judge Vernon S. Broderick on 1/17/2023) (kv)

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 1 of 49

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
IN RE:
:
:
KEURIG GREEN MOUNTAIN SINGLE:
SERVE COFFEE ANTITRUST
:
LITIGATION
:
:
This order relates to all cases
:
:
--------------------------------------------------------- X

14-MD-2542 (VSB)
14-MC-2542 (VSB)
OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:
This Opinion & Order addresses 12 motions to seal or redact materials. The parties, as
well as various non-parties, have made numerous requests seeking either the wholesale sealing of
dozens of documents or detailed line-item redactions covering thousands of pages of material.
This Opinion & Order covers an initial tranche of such requests.
I assume familiarity with the background of this multidistrict litigation, which focuses on
antitrust claims brought against Keurig Green Mountain, Inc. (“Keurig”), and which is discussed
in more detail in my Opinion & Order of April 3, 2019. (Doc. 581.) Where additional
background is necessary, I address it in the context of the specific motion to seal or redact.
Legal Standard
“The burden of demonstrating that a document submitted to a court should be sealed rests
on the party seeking such action.” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d
Cir. 1997). When a party requests sealing, the court must evaluate that request under both a
“common law right of public access to judicial documents,” Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119 (2d Cir. 2006), and the press and public’s “qualified First
Amendment right to attend judicial proceedings and to access certain judicial documents.” Id. at

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120 (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004)).
A.

The Common Law Right of Access

I begin with the standard for the common law right of access. This is an appropriate
starting point because the test for whether a document can be sealed under the First Amendment
is more stringent then under the common law. Lugosch, 435 F.3d at 124. If a sealing request
cannot survive the common law test, it will not survive scrutiny under the First Amendment test.
A “common law right of public access to judicial documents is firmly rooted in our
nation’s history.” Lugosch, 435 F.3d at 119. Thus, a presumption of public access rooted in this
common law attaches to materials classified as judicial documents. Amodeo I, 44 F.3d at 146.
This right of access is essential to maintaining judicial accountability.
The presumption of access is based on the need for federal courts, although
independent—indeed, particularly because they are independent—to have a
measure of accountability and for the public to have confidence in the
administration of justice. Federal courts exercise powers under Article III that
impact upon virtually all citizens, but judges, once nominated and confirmed, serve
for life unless impeached through a process that is politically and practically
inconvenient to invoke. Although courts have a number of internal checks, such as
appellate review by multi-judge tribunals, professional and public monitoring is an
essential feature of democratic control. Monitoring both provides judges with
critical views of their work and deters arbitrary judicial behavior. Without
monitoring, moreover, the public could have no confidence in the
conscientiousness, reasonableness, or honesty of judicial proceedings. Such
monitoring is not possible without access to testimony and documents that are used
in the performance of Article III functions.
Amodeo II, 71 F.3d at 1048. Accordingly, “[i]t is not, and should not be, an easy matter to deny
the public access to documents that are utilized in judicial proceedings and form part of the basis
of judicial decision-making, since the public is ordinarily entitled to review such material in
order to understand and evaluate the actions of the courts.” Newsday LLC v. Cnty. of Nassau,
730 F.3d 156, 167 n.15 (2d Cir. 2013).
Courts evaluate the common law right of access with a three-step process. The court first

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determines if the document to be sealed is a “judicial document.” Lugosch, 435 F.3d at 119. “In
order to be designated a judicial document, ‘the item filed must be relevant to the performance of
the judicial function and useful in the judicial process.’” Id. (quoting United States v. Amodeo,
44 F.3d 141, 145 (2d Cir. 1995) (Amodeo I)). Accordingly, “the mere filing of a paper or
document with the court is insufficient to render that paper a judicial document.” Amodeo I, 44
F.3d at 145. Similarly, “[d]ocuments that play no role in the performance of Article III
functions, such as those passed between the parties in discovery” are not judicial documents.
United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (Amodeo II). Documents that seek
no relief from the court are also not judicial documents. See, e.g., In re New York City Policing
During Summer 2020 Demonstrations, No. 20CIV8924CMGWG, 2022 WL 7886182, at *2
(S.D.N.Y. Oct. 14, 2022).
Conversely, “documents submitted to a court for its consideration in a summary
judgment motion are—as a matter of law—judicial documents.” Lugosch, 435 F.3d at 121.
“Filings related to Daubert motions are [also] judicial documents subject to a significant
presumption of access under the common law and the First Amendment.” In re Zimmer M/L
Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Tech. & Versys Femoral Head
Prod. Liab. Litig., No. 18-MC-2859 (PAC), 2021 WL 4706199, at *2 (S.D.N.Y. Oct. 8, 2021)
(“Zimmer”); see also Republic of Turkey v. Christie’s Inc., 425 F. Supp. 3d 204, 221 (S.D.N.Y.
2019) (collecting cases). Motions for class certification are judicial documents as well. See,
e.g., Tropical Sails Corp. v. Yext, Inc., No. 14 CIV. 7582, 2016 WL 1451548, at *3 (S.D.N.Y.
Apr. 12, 2016); Mark v. Gawker Media LLC, No. 13-CV-4347 (AJN), 2015 WL 7288641, at *2
(S.D.N.Y. Nov. 16, 2015).
If a court determines that the documents at issue are judicial documents to which the

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presumption of access applies, then in the second step “it must determine the weight of that
presumption.” Lugosch, 435 F.3d at 119. The “presumption of access must be governed by the
role of the material at issue in the exercise of Article III judicial power and the resultant value of
such information to those monitoring the federal courts.” Amodeo II, 71 F.3d at 1049. This
information, and by extension the strength of the presumption “fall[s] somewhere on a
continuum from matters that directly affect an adjudication to matters that come within a court’s
purview solely to insure their irrelevance.” Id.
Summary judgment motions and papers filed in support of these motions enjoy “a strong
presumption of access.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d
132, 142 (2d Cir. 2016); see also Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments
used by parties moving for, or opposing, summary judgment should not remain under seal absent
the most compelling reasons.”) This presumption exists regardless of the role the specific
document plays in a court’s adjudication of a motion. Brown v. Maxwell, 929 F.3d 41, 48 (2d
Cir. 2019) (“We have expressly rejected the proposition that ‘different types of documents might
receive different weights of presumption based on the extent to which they were relied upon in
resolving a motion for summary judgment.’” (quoting Lugosch, 435 F.3d at 123 (cleaned up)).
A significant presumption of access also exists for filings related to Daubert motions.
Zimmer, 2021 WL 4706199, at *2 (“Filings related to Daubert motions are judicial documents
subject to a significant presumption of access under the common law and the First
Amendment.”). As with motions for summary judgment, this presumption extends to all
materials associated with Daubert motions. See, e.g., Sec. & Exch. Comm’n v. Ripple Labs, Inc.,
No. 20 CIV. 10832 (AT), 2022 WL 17751466, at *3 (S.D.N.Y. Dec. 19, 2022) (noting that
supporting “financial documents [which] may assist the Court when resolving the pending

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Daubert Motions . . . are subject to a substantial presumption of public access”); In re Zimmer
M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis With Kinectiv Tech. & Versys Femoral
Head Prod. Liab. Litig., No. 18-MC-2859 (PAC), 2021 WL 2258292, at *2 (S.D.N.Y. June 3,
2021) (“Exhibits . . . submitted in connection with Plaintiffs’ Daubert motion, are judicial
documents subject to a significant presumption of public access.”)
However, the presumption of access has only “modest” weight where the document is
submitted in connection with discovery motions, motions to compel testimony, and motions to
exclude certain deposition testimony. In re New York City Policing During Summer 2020
Demonstrations, 2022 WL 7886182, at *2 (citing Brown, 929 F.3d at 50).
In the third step, “after determining the weight of the presumption of access, the court
must ‘balance competing considerations against it.’” Lugosch, 435 F.3d at 120 (quoting Amodeo
II, 71 F.3d at 1049). Courts have identified several countervailing considerations that may
overcome even strong presumptions of public access. The most relevant to this case is the
possibility of competitive harm to an enterprise if confidential business information is disclosed.
“The need to protect sensitive commercial information from disclosure to competitors seeking an
advantage may” be an interest meriting sealing. In re Keurig Green Mountain Single-Serve
Coffee Antitrust Litig., No. 14-MC-2542 (VSB), 2014 WL 12772236, at *2 (S.D.N.Y. Nov. 5,
2014); see also Standard Inv. Chartered, Inc. v. Fin. Indus. Regul. Auth., Ind., 347 F. App’x 615,
617 (2d Cir. 2009) (upholding a district court’s finding that a business’s “interest in protecting
confidential business information outweighs [even] the qualified First Amendment presumption
of public access”); Rowe v. Google LLC, No. 19 CIV. 8655 (LGS), 2022 WL 4467628, at *2
(S.D.N.Y. Sept. 26, 2022) (“Preventing competitive harm is a countervailing interest that can
override the public right of access.”). Thus, courts in this District have permitted the redaction

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of confidential information such as sales and pricing data on the grounds that its disclosure
would work a competitive harm on the disclosing enterprise. See, e.g., In the Matter of the Ex
Parte Application of the Upper Brook Companies for an Order Directing Discovery In Aid of a
Foreign Proceeding Pursuant to 28 U.S.C. § 1782, No. 22-MC-97 (PKC), 2023 WL 172003,
at*6 (“Upper Brook”) (“A presumption of access may be outweighed by a party’s interest in
‘protecting confidential business information’ from disclosure that would subject it to ‘financial
harm’ or a ‘significant competitive advantage.’”) (quoting Standard Inv. Chartered, Inc., 347 F.
App’x at 617); W.J. Deutsch & Sons Ltd. v. Diego Zamora, S.A., No. 1:21-CV-11003-LTS, 2022
WL 890184, at *3 (S.D.N.Y. Mar. 25, 2022) (granting a sealing request where “disclosure of this
confidential business information would subject [movant] to a competitive disadvantage”);
Valassis Commc’ns, Inc. v. News Corp., No. 17-CV-7378 (PKC), 2020 WL 2190708, at *3
(S.D.N.Y. May 5, 2020) (“The demonstration of a valid need to protect the confidentiality of
sensitive business information, such as pricing and compensation information, may be a
legitimate basis to rebut the public’s presumption of access to judicial documents”).
Other courts, however, have been skeptical of sealing information that is commercially
sensitive, particularly where it is highly relevant to the dispute and by extension, to the public’s
understanding of the court’s decision. In Ferring Pharmacueticals Inc. v. Serenity
Phramauticals, LLC, for example, Judge McMahon refused to permit the redaction of
purportedly sensitive commercial information for a wide range of documents. No.
17CIV9922CMSDA, 2020 WL 949423 (S.D.N.Y. Feb. 27, 2020). The collective effect of these
redactions would have been to force the court to “mak[e] ‘secret’ findings of fact” and “award
secret damages,” id. at *1–2, which Judge McMahon declined to do.
A further countervailing consideration is “the privacy interests of innocent third parties”

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which “should weigh heavily in a court’s balancing equation.” Application of Newsday, Inc.,
895 F.2d 74, 79–80 (2d Cir. 1990) (cleaned up). These privacy interests are “a venerable
common law exception to the presumption of access.” Amodeo II, 71 F.3d at 1051. However,
not all third-party interests have equal weight. As Olson v. Major League Baseball, noted, an
entity’s “third-party status should be placed in context.” 29 F.4th 59, 91 (2d Cir. 2022). In
Olson, for example, the third-party privacy interests of the Yankees were lessened because of the
nature of their association with the named defendant, which had the right to investigate the team.
Accordingly, while the Yankees had a privacy interest, it was not comparable to that of a third
party with no association with a named defendant. Id.
Several factors can diminish the weight of these countervailing considerations. First, if a
court is to give weight to a party’s asserted harms, those harms must be concretely and
specifically described. “[B]road allegations of harm unsubstantiated by specific examples or
articulated reasoning fail to satisfy the test.” Coventry Cap. US LLC v. EEA Life Settlements,
Inc., No. 17CIV7417VMHBP, 2017 WL 5125544, at *3 (S.D.N.Y. Nov. 2, 2017) (quoting In re
Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009)); see also In re Google Digital
Advert. Antitrust Litig., No. 21-CV-6841 (PKC), 2021 WL 4848758, at *3 (S.D.N.Y. Oct. 15,
2021) (declining to seal material where the “harms . . . are vaguely described[,] . . . rather
conclusory . . . [and] do not identify privacy interests or concrete harms that outweigh the
presumption of public access.”); In re SunEdison, Inc. Sec. Litig., No. 16-CV-7917 (PKC), 2019
WL 126069, at *1 (S.D.N.Y. Jan. 7, 2019) (questioning the appropriateness of sealing where a
party “cite[s] generally to ‘commercially sensitive, non-public information’ without explaining
why specific documents or information are sensitive or risk harm to any person or entity.”)
Second, the older the information is, the less appropriate it is to seal that information,

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particularly when the party does not explain with specificity why, despite the passage of time,
the information should still be sealed. Compare Upper Brook, 2023 WL 172003, at*6 (S.D.N.Y.
Jan. 12, 2023) (denying sealing where movant failed “to show that the information is not ‘stale’”
or “why disclosure would still cause harm”); In re Parmalat Sec. Litig., 258 F.R.D. at 250–56
(finding a diminished interest in sealing where the relevant documents were seven to fourteen
years old and movant failed to explain their continued sensitivity); Dawson v. Merck & Co., No.
112CV1876BMCPK, 2021 WL 242148, at *8 (E.D.N.Y. Jan. 24, 2021) (“Stale business records
cannot support the necessary finding of harm”), with City of Providence v. BATS Glob. Markets,
Inc., No. 14-CV-2811 (JMF), 2022 WL 539438, at *3 (S.D.N.Y. Feb. 23, 2022) (“Although the
document is several years old, the third-party privacy interest of Nasdaq’s customer in
preventing disclosure of this sensitive information regarding its trading and business strategies is
significant.”); Encyclopedia Brown Prods., Ltd. v. Home Box Off., Inc., 26 F. Supp. 2d 606, 614
(S.D.N.Y. 1998) (finding that decade-old information should still be sealed where movant had
credibly explained why the information would still create competitive harm).
The older the information contained in documents, the more detailed the supporting
material should be submitted to support the sealing of the documents. In Home Box Off., Inc.,
for example, sealing requests for decade-old information were supported with sworn statements
demonstrating that the older agreements were still in force or that the business practices reflected
in those agreements were still in effect. Id. at 613. I have specifically drawn the parties’
attention to this factor, and asked them to consider sealing requests in the context of “where we
currently stand in the case, as opposed to where it stood when the case was initially filed”
because “there may be certain things that time has overtaken and they’re no longer sensitive,
either from the companies’ perspective or otherwise.” Transcript of Hearing Held Apr. 5, 2019,

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7:4–9.1
Third, and finally, the existence of a protective order covering a document is not, in and
of itself, sufficient grounds to seal or redact that document. “[T]hat a document was produced in
discovery pursuant to a protective order has no bearing on the presumption of access that
attaches when it becomes a judicial document.” Doe v. U.S. Immigr. & Customs Enf’t, No. 19CV-8892 (AJN), 2021 WL 3862708, at *3 (S.D.N.Y. Aug. 30, 2021); see also Newsday LLC,
730 F.3d at 166 (“[T]he facts necessary to show good cause for a protective order applicable to
discovery documents that are not yet implicated in judicial proceedings will not necessarily meet
the higher threshold imposed by the First Amendment with respect to judicial documents.”) This
is because “the showing required in connection with a sealing motion is significantly higher than
the burden for obtaining a protective order in civil discovery.” Rojas v. Triborough Bridge &
Tunnel Auth., No. 18-CV-1433 (PKC), 2022 WL 773309, at *4 (S.D.N.Y. Mar. 14, 2022).
The balancing of this presumption against the countervailing factors determines what
findings a court must make to seal a document. Where a common law right of access applies, a
court must “make specific, rigorous findings before sealing the document or otherwise denying
public access.” Newsday LLC, 730 F.3d at 167 n.15. However, if the weight of the presumption
of access is modest, “a court must still articulate specific and substantial reasons for sealing such
material,” but “the reasons usually need not be as compelling as those required to seal” judicial
documents like “summary judgment filings.” Brown, 929 F.3d at 50.
B. The First Amendment Right of Access
The First Amendment provides a qualified right of access to court records. There are two
approaches for determining if such a right attaches to a particular document. The “‘experience

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Available at ECF No. 577.

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and logic’ approach requires the court to consider both whether the documents ‘have historically
been open to the press and general public’ and whether ‘public access plays a significant positive
role in the functioning of the particular process in question.’” Lugosch, 435 F.3d at 120
(Pellegrino, 380 F.3d at 92). “The second approach considers the extent to which the judicial
documents are “derived from or [are] a necessary corollary of the capacity to attend the relevant
proceedings.” Lugosch, 435 F.3d at 120 (quoting Pellegrino, 380 F.3d at 93). For example,
“[t]he transcript of a proceeding is so closely related to the ability to attend the proceeding itself
that maintaining secrecy is appropriate only if closing the courtroom was appropriate.” Newsday
LLC, 730 F.3d at 165.
Documents submitted to a court as part of a summary judgment motion enjoy a First
Amendment right of access, Brown, 929 F.3d at 47, as do motions for class certification, see,
e.g., Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC, 2015 WL 7288641, at *2, and
Daubert motions, see, e.g., Zimmer, 2021 WL 4706199, at *2; Am. Railcar Indus., Inc. v.
Gyansys, Inc., No. 14-CV-8533 (AJN), 2017 WL 11501880, at *1 (S.D.N.Y. May 8, 2017);
Republic of Turkey, 425 F. Supp. 3d at 221.
If a First Amendment right of access applies, “documents may be sealed if specific, on
the record findings are made demonstrating that closure is essential to preserve higher values and
is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (cleaned up). “Broad and
general findings by the trial court . . . are not sufficient to justify closure,” id. (internal quotations
omitted), and the Court of Appeals has cautioned courts against making “generalized statements
about the record as a whole” to justify sealing decisions, Brown, 929 F.3d at 48. The showing
required to seal a document to which a First Amendment right of access attaches is thus more
stringent than the showing required under the common law framework. Lugosch, 435 F.3d at

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124.
Higher values that may justify sealing even under this standard include “the privacy
interests of innocent third parties.”2 Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir.
1987). Courts have also found that in certain circumstances, business data such as pricing
information and negotiations may remain under seal even where the First Amendment is
implicated. See, e.g., Zimmer, 2021 WL 4706199, at *2.
This latter category, however, is susceptible to abuse if liberally applied. Ferring
Pharmacueticals Inc., for example, decried the “abuse of the public filing rule” when parties
sought to redact or seal expert analysis, agreement terms, and exhibits that would likely be
introduced at trial. 2020 WL 949423, at *1–2. This is particularly true in the case of motions for
summary judgment. Joy, for example, reversed the sealing of a report by the special litigation
committee of a public company that was submitted in connection with a motion for summary
judgment as part of a shareholder derivative action. 692 F.2d at 893. The Court of Appeals
rejected the proposition that “derivative actions may be routinely dismissed on the basis of secret
documents” because “confidence in the administration of justice would be severely weakened”
and “any other rule might well create serious constitutional issues.” Id. at 893. The Joy sealing
analysis concluded by noting that “foreclosing public scrutiny of the grounds for this
adjudication is wholly unjustifiable.” Id. at 894.
Even when sealing is appropriate under either the common law or First Amendment
framework, it must be “narrowly tailored,” meaning that a court should “seal only that
information that needs to be sealed in order to preserve higher values.” Signify Holding B.V. v.

Similarly, “as a general rule, there is no constitutional right of access to traditionally nonpublic government
information.” N.Y. Times Co. v. Dep’t of Justice, 806 F.3d 682, 688 (2d Cir. 2015) (cleaned up).
2

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TP-Link Rsch. Am. Corp., No. 21CV9472JGKKHP, 2022 WL 3704002, at *1 (S.D.N.Y. Aug.
26, 2022). When “some sealing of a judicial document is appropriate, the Second Circuit has
directed that the Court should determine whether partial redaction of the private material is ‘a
viable remedy,’ or whether the document presents ‘an all or nothing matter.’” Bernstein v.
Bernstein Litowitz Berger & Grossmann LLP, No. 14-CV-6867 (VEC), 2016 WL 1071107, at *4
(S.D.N.Y. Mar. 18, 2016) (quoting Amodeo II, 71 F.3d at 1053).
Finally, while the moving party bears the burden of justifying sealing, the ultimate task of
balancing these interests “rests heavily upon the shoulders of the trial judge.” Matter of New
York Times Co., 828 F.2d at 116. The court must balance the harms of disclosure not only to the
parties but also to non-parties who may not be before the court, see, e.g., id., against protecting
the interests of the public and press who, similarly, are frequently not before the court when
sealing motions determining their rights of access are determined.
There is temptation, when a district court is faced with a deluge of sealing motions, to
effectively outsource sealing determinations to the parties by approving or even pre-approving
sealing requests that the parties agree on. This inevitably leads to large portions of the docket
being filed under seal. See, e.g., Brown, 929 F.3d at 46 (noting that after “the District Court
entered a Sealing Order that effectively ceded control of the sealing process to the parties . . . 167
documents—nearly one-fifth of the docket—were filed under seal.” This, as Brown noted is not
acceptable. It is ultimately the district court’s responsibility to supervise its records, id. at 51,
and make its own findings when a party requests to seal or redact a document. With these
principles in mind, I turn to the to the pending sealing requests.
Discussion
Currently, there are 37 sealing motions pending. I address 12 of these below based on the

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standards set out above.
A. The Dr. Gary French Materials (Doc. 1405, 1411)3
Keurig and TreeHouse Foods, Inc., Bay Valley Foods, LLC, Sturm Foods, Inc.
(collective “TreeHouse”) move to redact or otherwise seal certain information in Keurig’s
memorandum of law to exclude the report and testimony of Dr. Gary French, as well as various
supporting exhibits. Both parties seek to redact or completely seal different components of these
materials. Specifically, Keurig seeks to completely seal exhibits at Docs. 1410-1, 1410-2, 14104, and 1410-6. It seeks partial redactions to its opposition motion at Doc. 1408, and exhibits at
Docs. 1410-3, 1410-15, 1410-17, 1410-18, and 1410-19. (Doc. 1405.) TreeHouse seeks partial
redactions to Doc. 1408, and to exhibits at 1410-17 and 1410-19. (Doc. 1411.)
Daubert motions are subject to the qualified First Amendment right of access. Zimmer,
2021 WL 4706199, at *2; Gyansys, Inc., 2017 WL 11501880, at *1 (S.D.N.Y. May 8, 2017);
Republic of Turkey, 425 F. Supp. 3d at 221. Accordingly, these papers may only be sealed or
redacted if movants can offer information that would support “specific, on the record findings”
“demonstrating that closure is essential to preserve higher values and is narrowly tailored to
serve that interest.” Lugosch, 435 F.3d at 120 (cleaned up).
Neither Keurig nor TreeHouse have met this burden. Both parties note that this material
is subject to a protective order entered at Doc. 496 (the “Protective Order”). (Doc. 1405, at 1–2,
Doc. 1411, at 1.) A document, however, cannot be sealed simply because it is subject to a
protective order. Newsday LLC, 730 F.3d at 166. The rationales the parties supply beyond this
consist of “[b]road and general findings” that “are not sufficient to justify closure.” Lugosch,
435 F.3d at 120 (cleaned up). Keurig asserts only that the various documents contain

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“Doc.” in each header references the relevant motion.

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“commercially sensitive information” such as “margin and pricing data” or “transaction data.”
(Doc. 1405, at 1–2.) It does not explain why this information is sensitive or how harm will result
if it is disclosed. Similarly, TreeHouse simply states that disclosure will “cause material injury”
without explaining how or why that would result. Neither party offers explanations for their
proposed sealing on a document-by-document basis, which would be necessary for me to render
the specific findings required to meet the stringent First Amendment requirements for sealing or
redacting these filings.
The request to seal or redact these materials is therefore denied in its entirety. However,
at the parties’ discretion, the names, emails, and phone numbers of Keurig employees in Doc.
1410-4 may be redacted.
B.

The Class Certification Opposition Materials (Doc. 1416)

Keurig moves to redact and/or seal certain information in its memorandum of law
opposing class certification for certain plaintiffs as well as exhibits submitted in support of this
motion. Specifically, Keurig seeks to completely seal exhibits at Docs. 1418-1, 1418-2, 1418-3,
1418-13, 1418-14, 1418-15, 1418-16, 1418-18, 1418-21, and 1418-25. It seeks partial redactions
to its opposition motion at Doc. 1420, and exhibits at Docs. 1418-4, 1418-8, 1418-9, and 141811.
The qualified First Amendment right of access applies to documents filed in connection
with class certification proceedings. Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC,
2015 WL 7288641, at *2. As with the materials discussed in Section II.A, Keurig has not met
the stringent burden required to seal materials to which a First Amendment right of access has
attached. For certain items, such as Docs. 1418-11, 1418-18, 1418-21, and 1418-25, it offers no
justification beyond the fact that a party has named the document confidential or otherwise

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protected under the Protective Order; this is insufficient, see Newsday LLC, 730 F.3d at 166. For
other items such as Docs. 1418-1, 1418-2, 1418-3, 1418-13, 1418-14, 1418-15, and 1418-16,
Keurig simply states in a conclusory manner that the information contained is “commercially
sensitive” or otherwise sensitive. It does not explain why these sensitivities implicate the
“higher values” necessary to permit sealing when the First Amendment right of access is
implicated. Lugosch, 435 F.3d at 120. Accordingly, Keurig has not provided me with
information to support the kind of specific findings necessary to justify sealing.
The request to seal or otherwise redact these materials is therefore denied in its entirety.
However, at the parties’ discretion, the names, emails, and phone numbers of individual
employees in Doc. 1418-25 may be redacted.
C.

The McLane Summary Judgment and Daubert Materials (Doc. 1746)

Plaintiff McLane Company, Inc. (“McLane”) proposes to redact information from a
broad array of documents connected to various Daubert motions, class certification motions, and
summary judgment motions. McLane requests redactions for three different categories of
information: (1) information related to its supply and customer contractual material (Doc. 1746,
at 2–4); (2) information related to its proprietary business practices, (id. 4); and (3) personal
information of various individuals, (id. 4–5). It has provided appendices setting out the rationale
for sealing or redacting each document. Docs. 1778-1–1778-3. Summary judgment and Daubert
motions are subject to a First Amendment right of access, so the burden is on McLane to
demonstrate that its requests are narrowly tailored to preserve higher values.
1. Supplier and Customer Contractual Information
McLane requests to redact information about business relationships with customers and
suppliers. The information it wishes to redact is set out at Docs. 1778-4 through 1778-52, and

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summarized in Doc. 1778-1. All the proposed redactions are connected to documents submitted
in connection with Daubert motions, motions for class certification, or motions for summary
judgment.
As a preliminary matter, although McLane has requested sealing pursuant to the threepart balancing test set out in Lugosch, 435 F.3d 110, motions for summary judgment, Brown, 929
F.3d at 47, class certification motions, Yext, Inc., 2016 WL 1451548, at *3; Gawker Media LLC,
2015 WL 7288641, at *2, and Daubert motions involve the more stringent test associated with
the First Amendment right of access, see, e.g., Zimmer, 2021 WL 4706199, at *2, Gyansys, Inc.,
2017 WL 11501880, at *1. Sealing commercially sensitive information may still be permissible
under this standard, Zimmer, 2021 WL 4706199, at *2, but must be carefully policed for abuse,
particularly when it is connected to a motion for summary judgment, see generally Saks Inc. v.
Attachmate Corp., No. 14 CIV. 4902 CM, 2015 WL 1841136, at *14–16 (S.D.N.Y. Apr. 17,
2015) (noting with concern the potential for parties to abuse commercial secrets designations and
decrying “the worrying trend toward de facto secret litigation.”)
With this in mind, I address McLane’s requests in Table 1 below. References to pages
and paragraphs refer to a document’s pagination and paragraph markers unless otherwise noted.
I address each request individually, but the consistent thread of McClane’s requested redactions
is that it does not want to reveal that it consistently made more than 99 percent of its K-Cup sales
to Walmart at a four to six percent mark-up over the price it paid. Indeed, these two facts and
minor variations on them account for the bulk of McClane’s proposed redactions. Even
accepting that this might be confidential information, the point is simply too relevant to this
dispute to permit sealing. McClane’s Walmart sales and mark-ups are basic facts underlying
McClane’s arguments against Keurig at numerous points. Similarly, McLane makes repeated

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Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 18 of 49

A3

1778-6

Daubert

A4

1778-7

Daubert

A5

1778-8

Daubert

A6

1778-9

Daubert,
Summary
Judgment

A7

1778-10

Daubert,
Summary
Judgment

A8

1778-11

Daubert,
Summary
Judgment

A9

1778-12

Daubert,
Summary
Judgment

A10

1778-13

Daubert,
Summary
Judgment

These redactions cover substantially the
same information McClane seeks to redact
in Docs. 1778-4 and 1778-5, and are denied
for substantially the same reasons.
The request to redact this document is
denied. The requested redaction contains
general and non-specific information
integrated into a hypothetical scenario. This
material is not confidential information.
These redactions target information that is
substantially similar to the redactions sought
in Doc. 1778-6. Therefore, they are denied
for substantially the same reasons.
These redactions target information that is
substantially similar to the redactions sought
in Doc. 1778-6, and are denied for
substantially the same reasons. I further
note that, since this information is submitted
in connection with a summary judgment
motion, there is even less of a basis to redact
it than in Doc. 1778-6.
The requested to redact this document is
denied. The requested redaction concerns a
generic and conditional summary of
business practices that cannot reasonably be
considered commercially sensitive.
The request to redact this document is
denied. The redaction concerns a single
comparative price point from an unspecified
time.
This is not specific enough
confidential data to overcome the
presumption of access.
The request to redact this document is
denied. The proposed redactions summarize
business relationships from 2012 to 2015
exclusively between McClane, Keurig, and
Walmart, the first two of which are adverse
parties in this case. Seven to ten-year-old
information about the relationship between
two adverse parties is not the kind of
confidential business information that could
reasonably be expected to harm McClane.
The request to redact this document is
denied. The proposed redactions are not
actual business data but recitations of
estimates or projections from an adverse

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A11

1778-14

Class
Certification,
Daubert,
Summary
Judgment

A12

1778-15

Daubert

A13

1778-16

Daubert

A14

1778-17

Summary
Judgment

A15

1778-18

Summary
Judgment

expert report. This is not the kind of
confidential information that is properly
sealed.
The request to redact this document is
denied. Several redactions relate to facts I
have already determined are not proper
subjects for redaction in relation to Docs.
1778-6 and 1778-9. Others challenge expert
projections and calculations of damages. It
is not clear, and McClane does not explain,
why expert projections developed by
interested parties specifically for the use in
litigation are confidential information that a
competitor would reasonably rely on.
The request to redact this document is
denied. These redactions are similar expert
projections to the ones discussed in Doc.
1778-14, and their redaction is denied for
substantially the same reasons.
The request to redact this document is
denied.
McClane suggests that this
redaction relates to its relationship with
third-party companies, but it appears to
simply be an expert’s estimate of various
companies’ market share without any
apparent connection to McClain’s business
relationships. In the absence of more
specific information, I cannot make the
findings necessary to justify sealing.
The request to redact this document is
denied. The proposed redaction on page 106
of this document is a generic statement with
no actual confidential information. The
proposed redaction on page 107 relates to a
decade-old agreement between McClane
and Walmart, that is also connected and
similar to kind of information I have already
declined to redact in Docs. 1778-4, 1778-5,
and 1778-6.
The request to redact this document is
denied. Some of the information McClane
seeks to redact is too generic to be sensitive
or summarizes agreements in broad terms
(e.g., ¶¶ 859, 862, 865). Some of it is more
specific but appears to connect to an
agreement between Walmart and McClane

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A16

1778-19

Summary
Judgment

A17

1778-20

Summary
Judgment

A18

1778-21

Summary
Judgment

A19

1778-22

Summary
Judgment

A20

1778-23

Summary
Judgment

made in 2011 (e.g., ¶ 883). In the absence
of more specific assertions about why
decade-old information poses a competitive
risk, the substantial burden to seal
information connected to a motion for
summary judgment is not met. Finally,
much of it is the kind of information I have
already declined to redact in Docs. 1778-4,
1778-5, and 1778-6.
The request to redact this document is
denied. The document is an email chain that
is more than a decade old. McClane does
not offer anything to credibly suggest that
this apparently stale information is properly
sealed.
The request to redact this document is
granted. The redactions concern specific
portions of a 2012 contract McClane
negotiated. While I am somewhat doubtful
that a decade-old contract is properly sealed,
McClane has specifically indicated that it
will be harmed if these contract provisions
are disclosed because competitors will be
able to leverage these disclosures. (Doc.
1746, at 3.) Thus, as in Home Box Off., Inc.,
I am satisfied that these provisions reflect
current practices that, if revealed, could be
leveraged by competitors. 26 F. Supp. 2d at
614.
The request to redact this document is
denied. The redactions concern specific
provisions of a 2012 contract addendum.
Accordingly, they may be sealed for the
same reasons discussed with regard to Doc.
1778-20.
The request to redact this document is
granted. The redactions concern specific
provisions of a 2012 contract addendum.
Accordingly, they may be sealed for the
same reasons discussed with regard to Doc.
1778-20.
The request to redact this document is
granted. The redactions concern specific
provisions of a contract. Accordingly, they
may be sealed for the same reasons
discussed with regard to Doc. 1778-20.

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A21

1778-24

Summary
Judgment

A22

1778-25

Summary
Judgment

A23

1778-26

Summary
Judgment

A24

1778-27

Summary
Judgment

A25

1778-28

Summary
Judgment

The request to redact this document is
denied. The redactions concern emails from
2015, which discuss a specific overstocking
issue at that time between McClane and
Smuckers. McClane does not provide, nor
do I see, any evidence that these emails
discuss a current practice that could
reasonably be classified as sensitive or
confidential.
The request to redact this document is
denied. The redactions relate to another
2015 email chain discussing a specific
overstocking issue.
The email covers
similar issues to those in Doc. 1778-24, and
redaction is denied for substantially the
same reasons.
The request to redact this document is
denied.
The requested redactions are
contained in a 2012 email chain discussing
a specific overstocking issue. The email
covers similar issues to those in Doc. 177824, and redaction is denied for substantially
the same reasons.
The request to redact this document is
denied. McClane proposes an extensive set
of redactions to a deposition transcript
submitted in connection with a summary
judgment motion. While it suggests in a
cursory manner that this information is
sensitive and confidential because it relates
to contract terms, (Doc. 1778-1, at 6), the
redactions cover more than contract terms.
Some of the redactions cover information
similar to that in Doc. 1778-4, which I have
already indicated may not be redacted.
Others relate to general business practices
not directly connected to a contract. I cannot
make the specific findings necessary to
justify the sealing of such a broad range of
information on the basis of this cursory
justification.
The request to redact this document is
granted in part and denied in part. The
proposed redactions to pages 22–25 and 33
are substantially the same type of
information I have already indicated may

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Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 22 of 49

A26

1778-29

Summary
Judgment

A27

1778-30

Summary
Judgment

A28

1778-31

Summary
Judgment

not be redacted in Doc. 1778-4. The
redactions to pages 28–30 are permitted
because they deal with current business
relationships and sales numbers.
The
redaction to page 68 is denied because it is a
single sales number from 2013 which does
not relate to McClane’s proposed rationale
of
protecting
confidential
business
strategies. (Doc. 1778-1, at 7.)
The request to redact this document is
granted in part and denied in part. The
material on pages 140–141 may be redacted
because it covers an unrelated commercial
transaction.
The remaining redaction
requests are denied because they discuss
forecasting methods and deals that appear to
have been used in 2014, and which appear to
be specifically related to the business
practices associated with single-serve
Keurig products. It is not apparent from this
data, nor does McClane explain, beyond
conclusory assertions, why this information
remains sensitive some eight years later.
The request to redact this document is
denied. The redactions address McClane’s
use of forecasting methods for various
commercial transactions specifically related
to its sale of Keurig K-Cups. All of the
relevant business relationships were
terminated by 2016, and McClane provides
only conclusory assertions of commercial
sensitivity to explain why this highly
specific and seeming stale information
should be redacted.
The request to redact this document is
denied. McClane proposes an extensive set
of redactions to a deposition transcript
submitted in connection with a summary
judgment motion but does not explain with
any specificity why these redactions are
appropriate, save for a single reference to
page 136, where it notes that it sells candy
to Walmart. These conclusory assertions
cannot justify redaction.

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A29

1778-32

Summary
Judgment

A30

1778-33

Summary
Judgment

A31

1778-34

Summary
Judgment

A32

1778-35

Summary
Judgment

A33

1778-36

Summary
Judgment

A34

1778-37

Summary
Judgment

The request to redact this document is
denied, because the requested redactions
relate to the kind of pricing and forecasting
information I concluded is not appropriate
for sealing in the context of Docs. 1778-4
and 1778-29.
The request to redact this document is
granted. The requested redactions address
specific provisions of a 2011 contract
between McClane and Walmart. McClane
has indicated that these provisions are
relevant to the broader long-term working
relationship between these companies and
that specific redactions of key agreements
are therefore necessary to protect McClane
from competitive harm. (Doc. 1778-1, at 8.)
Additionally, the reasons for protecting
contracts I discussed in relation to Doc.
1778-20 apply here.
The request to redact this document is
granted. The requested redactions are
granted as they relate to contract provisions
between
Walmart
and
McClane
substantially similar to the ones I approved
in Doc. 1778-33.
The request to redact this document is
denied. The document is a 2016 email
thread addressing business questions
between McClane and Walmart in general
terms. McClane does not provide more than
conclusory assertions as to why this sixyear-old email chain is the kind of sensitive
information likely to have broader
competitive harms.
The request to redact this document is
granted. The redactions relate to the specific
terms of a 2014 contract, which I find are
properly redacted for substantially the same
reasons as discussed in Doc. 1778-20.
The request to redact this document is
denied.
This document is Keurig’s
memorandum of law in support of its motion
for summary judgment, and it is particularly
inappropriate to seal the party’s actual
moving papers (as opposed to supporting
evidence) absent the most compelling of

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A35

1778-38

Summary
Judgment

A36

1778-39

Summary
Judgment

A37

1778-40

Summary
Judgment

A38

1778-41

Summary
Judgment

reasons.
The information McClane
proposes to seal, moreover, is either
information like the content discussed in
Doc. 1778-4, which is not appropriately
redacted, or generic assertions that do not
work a competitive harm.
The request to redact this document is
granted in part and denied in part. The
proposed redactions to footnote 161 are
granted to the degree that they address
current sales and business relationships.
They are denied to the degree that they
discuss sales associated with McClane’s old
K-Cup business. The proposed redactions to
¶¶ 163, 167, and 169 are denied because
they relate specifically to K-Cup
transactions from 2016, and McClane does
not provide any non-conclusory explanation
why information related to a specific
product at the heart of this litigation is likely
to work a broader competitive harm if
released. The remaining redactions are
denied because they are the kind of material
that I addressed in my analysis of Doc.
1778-4, which is not appropriate for sealing.
The request to redact this document is
denied. The document contains requests for
admissions discussing contract provisions
between McClane and Smucker.
The
content is, as might be expected given that it
was prepared by attorneys, heavily
qualified, and framed in highly generic
terms. Accordingly, this material lacks the
specificity or detail to justify sealing.
The request to redact this document is
denied. This document is an internal 2016
McClane email summarizing its position on
a K-Cup proposition by Walmart. McClane
does not explain in more than a conclusory
fashion why a brief six-year-old email
related to a specific promotion is so sensitive
that it is likely to inflict a competitive harm
on McClane if released.
The request to redact this document is
denied. This document is an email chain
discussing 2016 K-Cup transactions with

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Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 25 of 49

A39

1778-42

Summary
Judgment

A40

1778-43

Summary
Judgment

A41

1778-44

Summary
Judgment

A42

1778-45

Summary
Judgment

A43

1778-46

Summary
Judgment

Walmart. It is similar to the material in
Docs. 1778-35 and Docs. 1778-40, and
redaction of this material is denied for
substantially the same reason.
The request to redact this document is
denied.
This document is an email
discussing 2016 K-Cup transactions with
Walmart. The proposed redactions cover
content similar to that of Docs. 1778-35,
1778-40, and 1778-41, and I deny them for
substantially the same reasons.
The request to redact this document is
denied. This document is a set of business
records related to the McClane’s K-Cup
sales to Walmart from 2012 to 2015, with
some projections for 2016. McClane does
not explain why this apparently stale and
deal-specific information would inflict a
broader competitive harm on it.
Additionally, some of the information
related to mark-ups is the type of
information that, consistent with my
analysis of Doc. 1778-4, is not appropriate
for redaction.
The request to redact this document is
denied. This document is a 2013 email
chain about a K-Cup-based interaction with
Walmart. I have found similar, more recent
emails are not appropriate for redaction (i.e.,
Docs. 1778-35, 1778-40, 1778-41, 177842); therefore, I find these redactions are
inappropriate for the same reasons.
The request to redact this document is
denied.
McClane seeks to redact
information similar to the redactions I
denied for Doc. 1778-4, and the request is
denied for substantially the same reasons.
The request to redact this document is
granted in part and denied in part. The
proposed redactions to footnote 161 are
granted to the degree that they address
current sales and business relationships.
They are denied to the degree that they
discuss sales associated with McClane’s old
K-Cup business. The proposed redactions to
¶¶ 163, 165 to 169, and any associated

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A44

1778-47

Summary
Judgment

A45

1778-48

Summary
Judgment

A46

1778-49

Summary
Judgment

A47

1778-50

Summary
Judgment

footnotes are denied because they relate
specifically to K-Cup transactions from
2016, and McClane does not provide any
non-conclusory
explanation
why
information related to a specific product at
the heart of this litigation is likely to work a
broader competitive harm if released. The
remaining proposed redactions are the kind
of material that, consistent with my analysis
of Doc. 1778-4, is not appropriate for
sealing.
The request to redact this document is
denied. The requested redactions concern
hypothetical of the type I have already
indicated is inappropriate for redaction in
Doc. 1778-7, and the request is denied here
for the same reasons.
The request to redact this document is
denied. First, McClane only specifically
indicates that it seeks redactions to a specific
paragraph even though numerous redactions
in a similar color appear throughout the
document. If these redactions are also
sought by McClane, it has provided no basis
for them and so has failed to meet its burden.
As to the sole item it seeks to redact (¶ 859),
the proposed redaction is illogical since it
redacts only part of a line while leaving the
summary of the line that explains its import.
The proposed redaction would thus create
confusion without actually redacting the
relevant information.
The request to redact this document is
denied. This is an internal 2012 email
exchange discussing McClane and Keurig’s
negotiations. Although McClane indicates
that this email is relevant to its contract
negotiations more generally, a decade-old
internal discussion of a contract negotiation
between
litigation
adversaries
is
simultaneously too stale to justify sealing on
broader competitive grounds and too
relevant to the understanding of the present
dispute to warrant redaction.
The request to redact this document is
denied. This document is a 2012 email

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A48

1778-51

Summary
Judgment

A49

1778-52

Summary
Judgment

chain discussing a specific overstocking
issue. The email covers similar issues to
those in Docs. 1778-24 and 1778-26, and the
requested redactions are denied for
substantially the same reasons.
The request to redact this document is
denied because the redactions cover the
same kind of information as in Doc. 1778-4;
therefore, the requested redaction is denied
for substantially the same reasons
The request to redact this document is
denied. The document contains requests for
admissions discussing contract provisions
between McClane and Smucker.
The
content is, as might be expected given that it
was prepared by attorneys, heavily qualified
and framed in highly generic terms, and
redaction is thus not appropriate for the
same reasons I identify for Doc. 1778-40.
The content, moreover, is substantially
similar to the content in Doc. 1778-4, which
again, is not the appropriate subject for
redaction.

2. Proprietary Business Practices
McLane requests to redact information about proprietary business practices. The
information they wish to seal or redact is set out at Docs. 1778-53 to 1778-88 and summarized in
Doc. 1778-2. Each of these documents are filed in connection with motions for summary
judgment and Doc. 1778-53 also appears in Daubert motions. The First Amendment right of
access therefore attaches to these documents. Brown, 929 F.3d at 47.
McClane’s request to seal these documents is denied because they have not overcome the
burden imposed by the stringent test for sealing or redacting materials under the First
Amendment. McClane asserts that the information in the proposed redactions “reference[s]
McLane’s proprietary business practices and strategies, such as methods for measuring demand,
creating forecasts, and placement of orders for its customers.” (Doc. 1746, at 4.) The supporting

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appendix provides virtually no additional information that would permit me to make the specific
findings necessary to justify sealing under the First Amendment test. In most cases, McClane
simply asserts that the information in a particular document is “commercially sensitive” without
providing additional information. See Doc. 1778-2. These kind of “broad allegations of harm
unsubstantiated by specific examples or articulated reasoning fail to satisfy the test” for sealing.
Coventry Cap. US LLC, 2017 WL 5125544, at *3 (cleaned up). Docs. 1778-55 and 1778-56 are
not even described as commercially sensitive. (Doc. 1778-2, at 1.)
The contrast between this request, and Home Box Off., Inc., which McClane cites, is
instructive. 26 F. Supp. 2d at 613. There, “Defendants submit[ed] numerous affidavits attesting
to the confidentiality of the information they [sought] to seal.” Id. This included “specific
testimony that, for example, the cost and profit structures of the defendants, the volume of
subscribership and the strategies employed . . . have not significantly changed since 1991” and
testimony that key agreements which the defendants wished to seal were “still in force.” Id. at
614. The sworn testimony describing specific harms in detail differentiates Home Box Off., Inc.
from McClane’s requests.
Nor, based on my review, are any of these documents so facially sensitive that they
would merit sealing even on this limited showing. Some of this material is eight or nine years
old at this point. McClane does not explain why this apparently stale information is still
commercially sensitive. (See, e.g., Docs. 1778-62, 1778-63, 1778-64.) Other material appears
highly specific to McClane’s old K-Cup business so it is not clear why it would work a broader
competitive harm on McClane if disclosed now. (See, e.g., Docs. 1778-64, 1778-68, 1778-72,
1778-75, 178-81.) Some information is so generic that it is not clear why it would work a
competitive harm. (See, e.g., Docs. 1778-65, 1778-69, 1778-71.) In the absence of any facially

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sensitive information, crediting the unsworn and generic assertions of harm made by McClane
would permit the sensitive commercial information exception to swallow the First Amendment
rule. Accordingly, the requested redactions are denied.
3. Personal Information of Current and Former Employees
McLane requests to redact the phone numbers and email address of various individual
employees that appear in exhibits supporting Plaintiffs’ motion for summary judgment, Keurig’s
motion for summary judgment, and oppositions to these motions. This personal information
appears at Doc Nos. 1778-89 to 1778-114, and is summarized in Doc. 1778-3.
These requests are granted. I have reviewed the proposed redactions in each of these as
they relate to the email addresses and phone numbers of individuals.4 The privacy of third
parties is the type of higher value that justifies sealing even where the First Amendment right of
access attaches. Matter of New York Times Co., 828 F.2d at 116. In some cases, however, these
redactions cover information that is clearly not private. Doc. 1778-98 seeks to redact corporate
website (e.g., “Keurig.com”, “KeurigGreenMountain.com”), which is not appropriate and
therefore the request to redact this type of information is denied.
D.

The AVB, DCS, and HWY Requests (Docs. 1755, 1765, 1774)

Non-parties AVB Sales and Marketing, LLC (“AVB”), (Doc. 1755), Demitri Chesapeake
Sales Specialty Brokerage (“DCS”), (Doc. 1765), and Harold W. Young Partners (“HWY”),
(Doc. 1774), request to seal certain documents. These requests are granted to the extent that they
relate to employees’ personal information but are otherwise denied.
AVB requests to redact several paragraphs of Exhibit 141 of Doc. 1497. Specifically,

4

In certain cases, McClane has including redactions based on multiple grounds in a single request. For example,
McLane references the same email chain with the same proposed redactions twice: once to request the redaction of
commercially sensitive information, (Doc. 1753-24), and once to request redactions of personal information (Doc.
1753-89). My approval of redactions of personal information does not extend to these other redactions.

29

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 30 of 49

AVB seeks to redact paragraphs 8, 9, 10, 11, 13, 14, 15, 16, 17, and 18. (Doc. 1763-1.) DCS
requests partial redactions covering employee personal information and business suppliers
referenced in a 2016 email. (Doc. 1771-1.) HWY requests partial redactions covering employee
personal information and business suppliers referenced in a 2012 email. (Doc. 1777-1.) All of
these materials have been submitted in connection with motions for summary judgment.
These movants use virtually identical and equally generic language in their requests. In
each case they assert that if this information becomes public, customers or business partners
referenced “could become prejudiced towards [movant], resulting in lost revenues.” They
further assert that this information “may place [movant] at a competitive disadvantage were it to
become public.” (Compare Docs. 1755, 1765, 1774.) They provide no additional detail or
declarations explaining why prejudice would result or what competitive harm would accrue.
As these materials have been submitted in connection with a motion for summary
judgment, they are subject to the more stringent First Amendment standard for sealing. Brown,
929 F.3d at 47. I have already found that the redaction of personal employee information is
permissible under this test in connection with McClane’s request to seal. See infra Section
II.C.3. Redacting the phone numbers and emails of employees is permissible here for the same
reasons.
Movants do not otherwise make the showing required to support sealing. The type of
“generalized concern of negative reaction” they proffer is not sufficient to overcome the
common law presumption of access to documents like complaints. Kim v. BTG Pactual Asset
Mgmt. US, LLC, No. 22-CV-3547 (RA), 2022 WL 4115955, at *2 (S.D.N.Y. Sept. 9, 2022); see
also Gen. Media, Inc. v. Shooker, No. 97 CIV. 510 (DAB), 1998 WL 401530, at *12 (S.D.N.Y.
July 16, 1998) (“The public interest in access to the courts, and the court’s own interest in

30

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 31 of 49

allowing such access, far outweigh [a defendant’s] generalized concern of negative reaction on
his business dealings.”) If generalized business concerns cannot overcome the common-law
presumption of access, then it cannot overcome the stronger First Amendment right.
Additionally, even accepting that AVB may have privacy interests as a third-party, those
interests are diminished here. AVB is a broker for products sold by TreeHouse. (Doc. 1763-1,
at ¶ 1.) It thus has a business relationship with the TreeHouse plaintiffs and a favorable opinion
of TreeHouse and its products, (id. ¶¶ 20–21), and it also believes that Keurig’s practices have
cost it business, (id. ¶ 1). Thus, although its privacy interests are entitled to consideration, as in
Olson, these interests are diminished compared to those of a truly unassociated third-party. 29
F.4th at 91. Accordingly, I do not find that these third-party privacy interests support redaction
either.
As for DCS and HWY, they fail to show why the information they request to seal is not
stale. DCS and HWY seek to redact emails that are 6 and 10 years old respectively. Although it
is possible to show that such information is not so stale as to require disclosure through specific
demonstrations of harm, neither movant has provided more than generic assertions. These broad
assertions do not meet the stringent First Amendment test for sealing or redaction. Movants may
therefore redact employee phone numbers and email addresses that appear in these materials, but
nothing else.
E.

The JBR Materials (Doc. 1789)

JBR, Inc. (“JBR”) requests to seal selected pages of exhibits filed in connection with
summary judgment and Daubert motions. Requests to redact or seal materials associated with
summary judgment and Daubert motions are subject to the more stringent test associated with
the First Amendment right of access.

31

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 32 of 49

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 33 of 49

B

1790-2

Daubert

C

1790-3

Daubert

D

1790-4

Daubert

E

1790-5

Daubert

F

1790-6

Daubert

aggregated sums (e.g., the total sum from
2012 to 2019).
For the reasons discussed in Doc. 1790-1,
JBR may redact specific figures associated
with years 2016 forward on ECF pages 7, 9,
and 11. The redaction requests covering
information from 2015 and earlier are denied.
The redactions to ECF pages 4 and 6 are also
approved. These redactions concern specific
machinery costs and totals that could not be
disclosed without making it possible to
“reverse engineer” the machinery costs.
JBR may redact Figures 44, 45, 47, 48, 50,
and 51 so that information from 2016
onwards is redacted. All other redaction
requests are denied. The information is stale,
and, in any case, JBR has not requested to
redact identical information for Doc. 1790-7,
so granting the other redaction requests here
would be moot.
For the reasons discussed in Doc. 1790-1,
JBR may redact specific figures associated
with years 2016 forward in Exhibits 40–43,
Appendices D.22–25 and Appendices I.1 and
I.2. It may also redact Appendices D.10 and
D.11 so that information from 2016 onwards
is redacted. All remaining redactions are
denied as these items are either aggregate
information that is too broad to permit sealing
or expert projections and assessments not
associated with the specific, actual data for
which JBR has requested sealing.
For the reasons discussed in Doc. 1790-1,
JBR may redact specific figures associated
with years 2016 forward in Exhibits 22, 23,
and 24. It may also redact Exhibits 42, 43,
and 44 so that information from 2016
onwards is redacted. All other redaction
requests are denied, including requests to
redact aggregated sums (e.g., the total sum
from 2012 to 2019).
For the reasons discussed in Doc. 1790-1,
JBR may redact specific figures associated
with years 2016 forward in Exhibits 22, 23,
and 24. It may also redact Exhibits 42, 43,
and 44 so that information from 2016

33

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 34 of 49

G

1790-7

Summary
Judgment

H

1790-8

Summary
Judgment

I

1790-9

Summary
Judgment

J

1790-10

Summary
Judgment

onwards is redacted. All other redaction
requests are denied, including requests to
redact aggregated sums (e.g., the total sum
from 2012 to 2019).
JBR may redact Figures 44, 45, 47, 48, 50,
and 51 so that information from 2016
onwards is redacted.
For the reasons discussed in Doc. 1790-1,
JBR may redact Figures 44, 45, 47, 48, 50,
and 51 so that information from 2016
onwards is redacted.
Other redaction
requests are denied.
JBR may redact Figures 38 and 39, as well as
Tables 44, 45, 46, and 48, so that information
from 2016 onwards is redacted. All other
redaction requests are denied.
For the reasons discussed in Doc. 1790-1,
JBR may redact specific figures associated
with years 2016 forward in Exhibits 22 and
23. It may also redact Exhibits 43 and 44 so
that information from 2016 onwards is
redacted. All other redaction requests are
denied, including requests to redact
aggregated sums (e.g., the total sum from
2012 to 2019).

In cases where I have authorized partial redactions to a table, row, and column heading
identifiers must remain unredacted. This includes year headings, even if specific information
associated with that year may be redacted (e.g., if a table showed sales of $1.00 in 2019, the
$1.00 may be redacted, but the “2019” table heading may not.) Where I have partially
authorized redactions for a period, information before that period must be disclosed. For
example, if redactions for 2016 onwards are granted for a table that also has information from
2012 to 2015, the 2012 to 2015 figures must be disclosed.
F.

The TreeHouse Materials (Doc. 1799)

TreeHouse requests to seal information submitted in connection with the parties’ Daubert
and summary judgment motions. (Doc. 1799.) It requests sealing or redacting across three

34

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 35 of 49

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 36 of 49

THS-2

1801-2

Summary Judgment

THS-3

1801-3

Summary Judgment

THS-4

1801-4

Summary Judgment

THS-5

1801-5

Summary Judgment

THS-6

1801-6

Summary Judgment

THS-7

1801-7

Summary Judgment

THS-8

1801-8

Daubert

36

These redaction requests are granted
because they involve recent and specific
competitive information from 2016 and the
proposed redactions are narrow in scope.
(Doc. 1799, at 3.)
These redaction requests are granted
because they address specific and recent
price information from 2018 onward as
well as future economic projections.
Although some of the information to be
redacted is expert projections that would
otherwise be inappropriate for redaction, I
find that the data is framed in such a way
that unprotected expert information is
inextricable from protected commercial
information and that higher values still
require sealing.
This redaction request is denied. These are
redactions to a 2016 email that does not
reflect actual price points for TreeHouse
products.
This redaction request is granted.
Although TreeHouse does not provide a
date for this document, it is functionally
identical to the document at Doc. 1801-11.
Based on this, redaction is permissible
because this is a narrow redaction covering
specific price information.
This redaction request is denied. Without
a date for the information to seal, it is not
possible to tell if this information is stale or
not. It is also not clear from the face of the
document if this is actual TreeHouse
pricing information.
This redaction request is granted because
the redactions are specific 2016 to 2019
pricing information and the redactions are
narrowly tailored to address just this
information.
This redaction request is granted. The
redactions concern specific pricing and
unit sales information from 2019.
Although some of the pricing information
also covers earlier periods and would
otherwise be stale, I find that this
information is presented in such a way that

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 37 of 49

THS-9

1801-9

Summary Judgment

THS-10

1801-10

Daubert

THS-11

1801-11

Summary Judgment

THS-12

1801-12

Summary Judgment

THS-13

1801-13

Summary Judgment

THS-14

1801-14

Summary Judgment

THS-15

1801-15

Summary Judgment

THS-16

1801-16

Summary Judgment

THS-17

1801-17

Summary Judgment

37

the sensitive information is inextricably
connected to the otherwise stale
information, and that the redactions are
sufficiently narrow that no more
information will be sealed than necessary
given this issue.
This redaction request is granted in part
and denied in part. The redactions on ECF
pages 4 and 13 are denied. The redactions
on these pages are averages aggregating
four to seven years of information, which
is too broad a range to merit redaction. For
the same reason, the total sales numbers in
Exhibits 19, 21, and 52 may not be
redacted. The remaining information is
specific price, cost, and sales information
from 2016 onward that may be redacted.
The request to redact this document is
granted because the redaction concern
specific price, cost, fixed-cost, and sales
information that is from 2016 onward.
The request to redact this document is
granted for the reasons discussed in Doc.
1801-5.
This redaction request is granted because
the redactions concern specific 2016 unit
pricing information.
This document is substantially similar to
1801-12 and these redactions are granted
for the same reasons.
This redaction request is granted because
the redactions are narrowly tailored to
address only specific 2016 cost
information as well as employee personal
information.
This redaction request is granted because
the redactions concern specific 2016 unit
costs.
This redaction request is granted because
the redactions are narrowly tailored to
address only specific 2016 and 2017 cost
information as well as employee personal
information.
This redaction request is granted because
the redactions relate to unit cost

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 38 of 49

THS-18

1801-18

Summary Judgment

THS-19

1801-19

Summary Judgment

THS-20

1801-20

Summary Judgment

THS-21

1801-21

Summary Judgment

THS-22

1801-22

Summary Judgment

THS-23

1801-23

Summary Judgment

THS-24

1801-24

Summary Judgment

38

information from less than two years ago.
(Doc. 1799-1, at 7.)
This redaction request is granted because
the redactions include specific 2016 sales
information as well as employee personal
information.
This redaction request is granted because
the redactions relate to 2016 pricing
information and sales incentives.
This redaction request is granted in part
and denied in part. The redaction to 2012
sales information on ECF page 5 is denied
because it is from 2012 and is unredacted
on ECF page 4. The remaining redactions
are granted because they cover recent,
sensitive business information from 2016
onwards. The requests are also narrowly
tailored to restrict only that information.
Where information in these redactions
comes from before 2016, I have
determined that it is presented in such a
way that the pre-2016 information is
inextricable
from
the
post-2016
information and that the interest in
preventing competitive harm still merits
redaction.
This redaction request is granted because
the redactions relate to 2016 unit sales.
This redaction request is granted because
the redactions concern specific cost, price
and margin information related to a 2018
product launch and are narrowly tailored to
cover only that information.
This redaction request is granted because
the redactions concern specific margin,
price, and sales information from 2017
onwards. Where information in these
redactions comes from before 2017, I have
determined that it is presented in such a
way that the pre-2017 information is
inextricable
from
the
post-2017
information and that the interest in
preventing competitive harm still merits
redaction.
This redaction request is granted because
the redactions concern specific sales

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 39 of 49

THS-25

1801-25

Summary Judgment

THS-26

1801-26

Daubert

THS-27

1801-27

Daubert

THS-28

1801-28

Daubert

39

information for numerous products,
including ones irrelevant to the present
litigation, for a period from 2016 to 2019.
This redaction request is granted because
the redactions are narrowly tailored
redactions of 2017 price figures for
TreeHouse products.
This redaction request is granted because
the redactions are narrowly tailored
redactions sales and earnings information
from 2017 through 2019.
Where
information in these redactions comes
from outside this period, I have determined
that it is presented in such a way that the
otherwise stale information is inextricable
from the non-stale information and that the
interest in preventing competitive harm
still merits redaction.
The redaction request is granted in part and
denied in part. The numbers on ECF pages
9–16 are, in the main, expert projections
based on expert analysis. These are
projections prepared for litigation, not
actual
competitive
information.
TreeHouse may redact columns C, D and E
of tables in this section (actual competitive
information and two more columns to
inhibit the “reverse engineering” of that
information), but nothing else from this
section. The remaining redactions are
granted because they include profit and
manufacturing capacity information from
2019 to 2020. Where information in these
redactions comes from outside this period,
I have determined that it is presented in
such a way that the otherwise stale
information is inextricable from the nonstale information and that the interest in
preventing competitive harm still merits
redaction.
This redaction request is granted in part
and denied in part. These redactions are, in
the main, expert projections based on
expert analysis. These are projections
prepared for litigation, not actual
competitive information. TreeHouse may

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 40 of 49

THS-29

1801-29

Daubert

THS-30

1801-30

Daubert

THS-31

1801-31

Daubert

redact columns C, D and E of tables on
ECF pages 6–8, and 10–13 (actual
competitive information and two more
columns to inhibit the “reverse
engineering” of that information), the
manufacturing information in the “Notes
and Sources” section on ECF page 13, and
column B in the table on ECF page 15. The
remaining redactions are either expert
projections or are included in unredacted
form elsewhere in the document and thus
not appropriate for redaction.
This redaction request is granted because
the redactions are narrowly tailored to
cover 2017 to 2019 profit and margin
information. Where information in these
redactions comes from outside this period,
I have determined that it is presented in
such a way that the otherwise stale
information is inextricable from the nonstale information and that the interest in
preventing competitive harm still merits
redaction.
This redaction request is granted because
the redactions are narrowly tailored to
cover specific providing margin and sales
information from 2016.
This redaction request is granted because
the redactions concern specific sales, loss,
revenue, and cost information from 2016 to
2019.
Where information in these
redactions comes from outside this period,
I have determined that it is presented in
such a way that the otherwise stale
information is inextricable from the nonstale information and that the interest in
preventing competitive harm still merits
redaction.

2. Confidential Strategic Business Information
TreeHouse requests to redact information about business practices that it asserts would
work a competitive harm on it if the information was publicly disclosed. (Doc. 1799, at 3–4.)
The proposed documents to be sealed or redacted are filed at Docs. 1801-32–1801-69, and

40

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 41 of 49

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 42 of 49

THS-37

1801-37

Daubert

THS-38

1801-38

Daubert

THS-39

1801-39

Daubert

THS-40

1801-40

Summary Judgment

THS-41

1801-41

Summary Judgment

THS-42

1801-42

Summary Judgment

THS-43

1801-43

Summary Judgment

42

settlement of a lawsuit between Keurig and
TreeHouse. This is not the kind of
confidential business information that
would work a broader competitive harm on
TreeHouse.
This redaction request is denied for
substantially the same reasons as Doc.
1801-36.
This redaction request is granted in part
and denied in part. The redactions on ECF
pages 4, 5, 12 are denied because they are
expert opinions prepared for litigation or
are otherwise not confidential business
information that would work a competitive
harm on TreeHouse. The redactions on
ECF page 9 are denied because it is general
information from 2014 that is stale and too
general to work a competitive harm. The
remaining redactions on ECF pages 6–8,
10, 11, 13, and 15 are granted because they
cover recent, competitive business
information about bid pricing, costs, and
sales prices that could work a competitive
harm on TreeHouse.
This redaction request is denied for
substantially the same reasons as Doc.
1801-36.
This redaction request is denied. I cannot
determine a clear date for the information
TreeHouse proposes to redact so I cannot
make the necessary findings to determine
if this information is stale or otherwise
unsuitable for redaction.
This redaction request is denied for
substantially the same reasons as Doc.
1801-40.
This redaction request is denied for
substantially the same reasons as Doc.
1801-36.
This redaction request is denied.
TreeHouse does not provide dates for the
information it proposes to redact so I
cannot make the necessary findings to
determine if this information is stale or
otherwise unsuitable for redaction.

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 43 of 49

THS-44

1801-44

Summary Judgment

THS-45

1801-45

Summary Judgment

THS-46

1801-46

Summary Judgment

THS-47

1801-47

Summary Judgment

THS-48

1801-48

Summary Judgment

THS-49

1801-49

Summary Judgment

THS-50

1801-50

Summary Judgment

THS-51

1801-51

Summary Judgment

THS-52

1801-52

Summary Judgment

43

This redaction request is denied.
TreeHouse does not provide dates for the
information it proposes to redact so I
cannot make the necessary findings to
determine if this information is stale or
otherwise unsuitable for redaction.
This
redaction
request
concerns
information substantially similar to the
information in 1801-32 and the redaction is
denied for substantially the same reasons.
This redaction request is denied because
the information is too generic and nonspecific to plausibly work a competitive
harm on TreeHouse.
This redaction request is denied because
the redactions do not involve actual pricing
information but general summaries of nonTreeHouse parties negotiating positions
from 2016.
This redaction request is granted because
the redactions are narrowly tailored to
cover specific forward looking business
strategies from 2017 that remain relevant.
This redaction request is denied because
the relevant document is from 2012 and
there is no credible explanation for why
this decade-old information will work a
competitive harm on TreeHouse.
This redaction request is denied. The date
of this information is not apparent so I
cannot make the necessary findings to
determine if this information is stale or
otherwise unsuitable for redaction.
This redaction request is denied. The date
of this information is not provided but the
document appears to be from 2015 or
earlier and TreeHouse does not explain
why this information is not stale given its
apparent age.
This redaction request is denied. It does
not provide a date for the information
TreeHouse proposes to redact so I cannot
make the necessary findings to determine
if this information is stale or otherwise
unsuitable for redaction.

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 44 of 49

THS-53

1801-53

Summary Judgment

THS-54

1801-54

Summary Judgment

THS-55

1801-55

Summary Judgment

THS-56

1801-56

Summary Judgment

THS-57

1801-57

Summary Judgment

THS-58

1801-58

Summary Judgment

THS-59

1801-59

Summary Judgment

THS-60

1801-60

Daubert

THS-61

1801-61

Summary Judgment

44

This redaction request is granted because
the redactions are narrowly tailored to
cover specific confidential strategic
business planning information from 2016
to 2021.
These redactions cover information
substantially similar to the information in
1801-36 and the redactions are denied for
substantially the same reasons. Other
information covers a contract and dispute
with Unilever and TreeHouse does not
explain how this information would work a
competitive harm if disclosed.
This redaction request is denied.
TreeHouse has provided its redactions in a
manner that makes it impossible to assess
what material TreeHouse seeks to redact or
why these redactions would be appropriate.
Thus, I cannot make the kind of specific on
the record findings necessary to permit
sealing.
These redactions cover information
substantially similar to the information in
1801-36 and 1801-54, and the redaction
requests are denied for substantially the
same reasons.
These redactions cover information
substantially similar to the information
about Unilever in 1801-54 and are denied
for substantially the same reasons.
This redaction request is denied because
the redactions appear to be information on
proposed 2016 prices specific to a
particular bid that are not likely to work a
broader competitive harm on TreeHouse.
These redactions cover information
substantially similar to the information in
1801-54 and are denied for substantially
the same reasons.
This redaction request is denied because
the redactions related exclusively to a
specific 2015-2016 bid the disclosure of
which is unlikely to work a broader
competitive harm.
These redactions cover information
substantially similar to the information in

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 45 of 49

THS-62

1801-62

Summary Judgment

THS-63

1801-63

Summary Judgment

THS-64

1801-64

Daubert

THS-65

1801-65

Summary Judgment

THS-66

1801-66

Summary Judgment

THS-67

1801-67

Daubert

THS-68

1801-68

Daubert

THS-69

1801-69

Daubert

1801-36 and 1801-54 and are denied for
substantially the same reasons.
These redactions cover information
substantially similar to the information in
1801-54 and are denied for substantially
the same reasons.
These redactions cover information
substantially similar to the information in
1801-36 and are denied for substantially
the same reasons.
These redactions cover the same
information as in Doc. 1801-47 and are
denied for substantially the same reasons.
This redaction request is denied because
the redactions are speculation about
competitor prices rather than actual
competitive information, and already
recognized losses or specific bid
information from 2017 unlikely to work a
broader competitive harm on TreeHouse.
Where TreeHouse prices are discussed, it
is in general terms unlikely to work a
broader competitive harm.
This redaction request is granted because
the redaction includes specific TreeHouse
bid prices from 2017.
This redaction request is denied because
the information is from 2014 and
TreeHouse does not explain why this
information is not stale.
These redactions cover information
substantially similar to the information in
1801-36 and 1801-54. They are denied for
substantially the same reasons.
These redactions cover information
substantially similar to the information in
1801-36 and 1801-54 and are denied for
substantially the same reasons.

3. Personal Information of Current and Former Employees
TreeHouse requests to redact personal information of current and former employees such
as personal cell phone numbers, as well as addresses of non-party customers. This personal
information is identified in proposed redactions in the documents, located at Docs. 1801-70

45

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 46 of 49

through 1801-95, and summarized in Doc. 1799-3. These redactions are granted. I have already
permitted similar redaction requests by McClane. See Section II.C.3 infra. That analysis applies
with equal force to these redactions.
G.

The Keurig Rule 72 Objection Opposition (Doc. 1822)

TreeHouse requests to redact certain information associated with their opposition to
Keurig’s objections under Fed. R. Civ. 72 to Magistrate Judge Sarah L. Cave’s April 11, 2022,
Order. (Doc. 1822.) That order resolved reciprocal motions for spoliation sanctions precluding
evidence and awarding fees that Keurig and Plaintiffs filed against each other based on the
failure to preserve various materials for discovery. (Doc. 1806, at 5–6.)
I do not find that a First Amendment right of access attaches to these documents. As
Brown notes, although “a court’s authority to oversee discovery and control the evidence
introduced at trial surely constitutes an exercise of judicial power . . . this authority is ancillary to
the court’s core role in adjudicating a case.” 929 F.3d at 50. Thus, while documents submitted
to aid the court in the exercise of this authority are judicial documents to which the common law
right attaches, “the presumption of public access in filings submitted in connection with
discovery disputes or motions in limine is generally somewhat lower than the presumption
applied to material introduced at trial, or in connection with dispositive motions such as motions
for dismissal or summary judgment.” Id. For requests to seal such discovery-oriented papers, “a
court must still articulate specific and substantial reasons for sealing” but “the reasons usually
need not be as compelling as those required to seal summary judgment filings.” Id.
Even under this more modest standard, I find that TreeHouse has not met the necessary
burden to permit the redactions it requests. The only justification it offers for sealing in its onepage letter is that the information it wishes to seal has been designated as “Highly Confidential”

46

Case 1:14-mc-02542-VSB Document 82 Filed 01/17/23 Page 47 of 49

under the Protective Order. It does not indicate what harm would accrue if this information was
disclosed. As noted, the fact that material is covered by the Protective Order does not justify
sealing.
H. The Unilever Materials (Doc. 1788)
Non-party Unilever United States, Inc. (“Unilever”) requests to seal all of the deposition
transcript of its Rule 30(b)(6) witness, Theodore Narozny, as well as the Expert Report of David
S. Sibley, Ph.D. (Doc. 1788.) These materials were filed as part of summary judgment and
Daubert motions and are therefore covered by the First Amendment right of access. Unilever
does not provide the kind of specific, particularized information necessary to justify sealing
under the stringent First Amendment test nor does it explain with any particularity what harms
would accrue to it if these materials were disclosed. In the absence of such information, I cannot
make the findings necessary to justify sealing, particularly since Unilever seeks to seal an entire
deposition and expert report rather than to redact narrow portions of these materials.
I.

The Community Coffee Company Materials (Doc. 1759)

Non-party Community Coffee Company, L.L.C., (“CCC”) requests to seal certain
materials submitted in connection with summary judgment and Daubert motions. (Doc. 1759.)
The First Amendment presumption of access attaches to the summary judgment and Daubert
motion materials CCC wishes to seal. CCC does not explain why the various materials it wishes
to seal should not be public beyond generically asserting third party privacy rights and
unspecified commercial harms. Indeed, it does not even explain precisely what information it
wishes to seal or redact in various documents. Without this information, I cannot make the
specific, on-the-record, document-by-document findings necessary to meet the First Amendment
test for sealing.

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Subsequent Proceedings
Having addressed this first tranche of documents, I now turn to the procedure for
implementing this Opinion & Order and for proceedings in the rest of this case. There are still
25 sealing motions outstanding, some of which propose additional redactions to documents
covered in this Opinion & Order. Filing these documents based on only the redactions covered
in this Opinion & Order would be premature and might lead to the disclosure of information that
is properly sealed. Accordingly, all parties who have a motion to seal materials either addressed
by this Opinion & Order or pending before me shall meet-and-confer and submit a joint letter
setting out a proposed plan for reconciling the redactions directed by this and future orders and
getting properly redacted materials filed on the public docket.
This joint letter shall also indicate if parties and non-parties with sealing motions believe
that expediting the sealing and reconciliation process through mechanisms such as the
appointment of a special master to review sealing requests and make recommendations to the
court would be beneficial to the resolution of this action. If the parties have recommendations
for such a mechanism, they may describe it in this letter.
The parties are understandably eager to move the adjudication of this dispute forward
with decisions on their substantive motions. Progress towards that goal will inevitably be slowed
if Judge Cave and I are engaged in the kind of line-by-line reviews of thousands of pages of
redaction requests required given our obligation to safeguard the public’s common law and First
Amendment rights of access to court materials. Therefore, I request the parties use this Opinion
& Order as guidance for their future applications to seal or redact documents.
Finally, if any party believes that a sealing request that they have made is mooted or no
longer merited given the guidance and determinations in this Opinion & Order, they should raise

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that information as part of this letter. This letter shall be submitted by February 16, 2023.
Judge Cave and I will continue to move the adjudication of this case forward as
expeditiously as possible. I expect to address the remaining sealing requests based on the
information I receive in the letter I receive from the parties on February 16, 2023. I also plan to
resolve two pending objections made under Fed. R. Civ. P. 72, and the class certification request
as soon as practicable. Following the resolution of these motions, I will address the parties’
Daubert motions, which will be useful when I the pending motions for summary judgment.
Conclusion
Materials in this matter are to be sealed or redacted in compliance with the terms of this
Opinion & Order. The parties shall submit the joint status letter directed by this Opinion &
Order by February 16, 2023.
The Clerk of Court is respectfully directed to terminate the motions at Docs. 1405, 1411,
1416, 1746, 1755, 1759, 1765, 1774, 1788, 1789, 1799, and 1822.
SO ORDERED.
Dated: January 17, 2023
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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