Kind Bar Plaintiffs v. Kind Bar Defendants

Filing 211

ORDER granting 206 Letter Motion to Seal. Application granted. SO ORDERED.. (Signed by Judge Naomi Reice Buchwald on 1/28/2022) (kv)

Case 1:15-mc-02645-NRB Document 211 Filed 01/28/22 Page 1 of 2

21, 2022
VIA ECF
Hon. Naomi Reice Buchwald
United States District Judge
Daniel Patrick Moynihan Courthouse
Southern District of New York
500 Pearl St.
New York, New York 10007
Re:

Application granted.

Dated: New York, New York
January 28, 2022

In re Kind LLC Healthy and All Natural Litig., No. 1:15-md-2645-NRB
In re Kind LLC Healthy and All Natural Litig., No. 1:15-mc-2645-NRB

Dear Judge Buchwald:
Pursuant to Your Honor’s Individual Practices § 2(H), Your Honor’s Standing Order, the
Southern District of New York’s Local Rules, and Section 6 of the Southern District’s Electronic
Case Filing Rules & Instructions, Defendant KIND LLC (“KIND”) respectfully submits this
request to file under seal unredacted versions of Exhibits 7, 16, and 17 to the Declaration of Keri
E. Borders in support of KIND’s concurrently filed motions (the “Borders Declaration”). The
Viewing Level for these documents will be for “Selected Parties.” KIND also requests to file
redacted versions of the same documents as publicly available filings.
In accordance with the Individual Practices of this Court, unredacted versions of Exhibits
7, 16, and 17 to the Borders Declaration—along with redacted versions of these documents—are
being filed contemporaneously with this request. Copies of this letter and the unredacted and
redacted versions of the exhibits shall be contemporaneously mailed to Your Honor.
In this action, the parties are subject to a Stipulated Protective Order approved by Judge
William Pauley. ECF No. 158. Under the terms of that Order, a party may designate as
“Confidential” or “Highly Confidential” material or information that the party “reasonably and in
good faith believes constitutes and reveals confidential trade secrets, proprietary business
information, and/or non-public personal, client, or customer information concerning individuals
or other entities” (id. ¶ 2.3), provided that the designating party “shall take care to limit any such
designation to specific material that qualifies under the appropriate standards.” Id. ¶ 5.1. Properly
designated Confidential or Highly Confidential material may not be disclosed publicly under the
terms of the Order (id. ¶¶ 7.1-7.3) and must instead be filed under seal pursuant to Your Honor’s
Individual Practices. Id. ¶ 12.3.
The information that KIND seeks to file under seal, and which has been designated as
“Highly Confidential – Attorneys’ Eyes Only” under the terms of the Stipulated Protective
Order, includes:

Case 1:15-mc-02645-NRB Document 211 Filed 01/28/22 Page 2 of 2

Hon. Naomi Reice Buchwald
Page 2
7: a true and correct copy of the Expert Report of Anton A. Toutov,
Ph.D., dated September 10, 2021.
16: a true and correct copy of the Rebuttal Expert Report of Dr. Catherine
Adams Hutt, Ph.D., R.D., C.F.S., dated November 12, 2021.
17: true and correct copies of documents produced by KIND in discovery
to plaintiffs bearing Production Nos. KIND_0000195-198, KIND_0000353-354,
and KIND_0000419-421.
These exhibits contain highly confidential, proprietary, and trade secret information regarding
ingredients of KIND products and their properties, internal procedures for manufacture of
products with those ingredients, manufacture and sourcing information, and supplier
information.
Federal Rule of Civil Procedure 26(c) authorizes district courts, upon a showing of good
cause, to “require that the parties simultaneously file specified documents or information in
sealed envelopes, to be opened as the court directs.” Fed. R. Civ. P. 26(c)(1)(H). “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 v. Pyramid Co.
of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (internal quotations and alterations omitted).
Here, KIND seeks leave to publicly file these exhibits with all references to Highly
Confidential information redacted, and to file wholly unredacted versions of these documents
under seal. This request is narrowly tailored in that it relates only to documents designated by
KIND as Highly Confidential pursuant to the Stipulated Protective Order and will allow the
exhibits to be sealed only to the extent necessary to protect KIND’s business interests and
commercially sensitive business information.
Judge William Pauley, when presented with a virtually identical request, allowed KIND
to file the materials under seal. See ECF No. 197.
Based on the foregoing, KIND respectfully requests that: (i) the Court approve this
request to file documents under seal pursuant to Your Honor’s Individual Practices § 2(H);
(ii) the redacted versions of Exhibit 7, 16, and 17 to the Borders Declaration be accepted as the
public version to be electronically filed; and (iii) that the Court grant KIND leave to file
unredacted versions of the same under seal.
Respectfully submitted,
/s/ Keri E. Borders
Keri E. Borders
Partner
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