Capri Sun GmbH v. American Beverage Corporation

Filing 119

ORDER granting 86 Letter Motion to Seal. Granted. So Ordered. (Signed by Judge Paul A. Engelmayer on 6/4/21) (yv)

10 St. James Avenue | Boston, MA 02116 | T 617.523.2700 | F 617.523.6850
Holland & Knight LLP | www.hklaw.com
Mark T. Goracke | [phone] | [e-mail]

June 2, 2021
VIA ECF
The Honorable Paul A. Engelmayer
United States District Judge, S.D.N.Y.
Thurgood Marshall United States Courthouse
40 Foley Square, Courtroom 1305
New York, New York 10007
Re:

Capri Sun GmbH v. American Beverage Corp., 1:19-cv-01422 (PAE)

Dear Judge Engelmayer:
We represent Defendant American Beverage Corporation (“ABC”) in the abovereferenced civil action. Pursuant to Rule 4(B)(2) of the Court’s Individual Rules and Practices in
Civil Cases and the Protective Order entered in this action (DE 38), ABC respectfully moves this
Court for an order: (1) sealing certain documents filed in support of ABC’s Motion for Summary
Judgment and its Motion to Partially Exclude the Testimony of Joel H. Steckel and (2) granting
leave to file certain documents filed in support of those motions with redactions, for the reasons
set forth herein.
On July 8, 2019, the Court entered a Protective Order in this action that governs the use of
confidential discovery materials. Pursuant to the Protective Order, information or materials
produced by any party or nonparty as part of discovery in this action may be designated as
“CONFIDENTIAL” or “OUTSIDE COUNSEL’S EYES ONLY.” See DE 38 at Article 5.
Furthermore, the Protective Order specifies that “the Party seeking to file or submit the Protected
Material to the Court shall request that the portion(s) of the document(s) containing the Protected
Materials be filed under seal by way of a written application and proposed order, along with the
portion(s) of the document(s) submitted for filing under seal, in accordance with the local rules.”
See DE 38 at Article 13. Discovery between ABC and Capri Sun GmbH (the “Parties”) has been
ongoing for almost two years, and the Parties have exchanged materials and information
designated “CONFIDENTIAL” and “OUTSIDE COUNSEL’S EYES ONLY” as those terms are
defined in the Protective Order.
Contemporaneously with the filing of this letter motion, ABC is also filing (1) a Motion
for Summary Judgment, which includes (a) the Declaration of Mark T. Goracke dated June 2,
2021, together with the exhibits annexed thereto, (b) the Declaration of John H. Anderson dated
June 1, 2021, together with the exhibits annexed thereto, (c) the Declaration of Ilene Bergenfeld
dated June 1, 2021, (d) an accompanying Rule 56.1 Statement of Undisputed Facts, and (e) an
accompanying Memorandum of Law; and (2) a Motion to Partially Exclude the Testimony of Joel
H. Steckel, which includes (a) the Declaration of Mark T. Goracke dated June 2, 2021, together
with exhibits annexed thereto, and (b) an accompanying Memorandum of Law.

The Honorable Paul A. Engelmayer
June 2, 2021
Page 2
ABC intends to rely on and submit to this Court materials and information designated
“CONFIDENTIAL” and “OUTSIDE COUNSEL’S EYES ONLY” in connection with its Motion
for Summary Judgment and Motion to Partially Exclude the Testimony of Joel H. Steckel.
Pursuant to Rule 4(B)(2) of the Court’s Individual Rules and Practices in Civil Cases, ABC
writes to identify the documents that ABC requests to be filed under seal and the documents that
ABC seeks to file with redactions, as well as the bases for sealing or redacting those documents.
ABC respectfully submits that good cause exists for sealing the documents listed in the
attached Exhibit A and granting leave to file the documents listed in the attached Exhibit B with
redactions because (1) each of the documents identified is designated “CONFIDENTIAL” and
“OUTSIDE COUNSEL’S EYES ONLY” pursuant to the protective order; and/or (2) because the
documents also fall into one of more of the following categories that further justifies sealing or
redaction. See Tyson Foods, Inc. v. Keystone Foods Holdings, Ltd., No. 1:19-CV-010125 (ALC),
2020 WL 5819864, at *2 (S.D.N.Y. Sept. 30, 2020) (quoting Hypnotic Hats, Ltd. v. Wintermantel
Enterprises, LLC, 335 F.Supp.3d 566, 600 (S.D.N.Y. Sept. 28, 2018) and New York v. Actavis,
PLC, No. 14 Civ. 74732014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014) for the proposition that
“[a]ll of these documents ‘fall[ ] into categories commonly sealed[:] those containing trade secrets,
confidential research and development information, marketing plans, revenue information, pricing
information, and the like.’ . . . Non-public data of this nature ‘is sensitive and potentially damaging
if shared with competitors.’”).
Category 1: Confidential business/marketing strategy documents, including internal,
confidential and commercially sensitive business communications concerning marketing, existing
products, new products, and current or potential customers and/or confidential competitive
analysis that, if made public, would commercially or competitively disadvantage the disclosing
party.
This Court has recently noted that “‘Courts commonly find that documents that contain
trade secrets, confidential research and development information, marketing plans, revenue
information, pricing information, and the like satisfy the sealing standard’” and that “‘[d]ocuments
falling into categories commonly sealed are those containing trade secrets, confidential research
and development information, marketing plans, revenue information, pricing information, and the
like.’” Kewazinga Corp. v. Microsoft Corp., No. 1:18-CV-4500-GHW, 2021 WL 1222122, at *3
(S.D.N.Y. Mar. 31, 2021), granting motion to seal and quoting Rensselaer Polytechnic Inst. v.
Amazon.com, Inc., 2019 WL 2918026, at *2 (N.D.N.Y. June 18, 2019) and Cumberland Packing
Corp. v. Monsanto Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999). See also Louis Vuitton Malletier
S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (granting motion to redact
documents containing advertising expenditures and plans, merchandising strategies, policies, and
sales).
Category 2: Highly confidential non-public financial information and analysis that, if
made public, would commercially or competitively disadvantage the disclosing party.
Confidential corporate financial documents and budgets are among those documents
frequently recognized by this Court as appropriately sealed. See, e.g., See Louis Vuitton Malletier
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The Honorable Paul A. Engelmayer
June 2, 2021
Page 3
S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015) (granting motion to redact
documents containing advertising expenditures and plans, merchandising strategies, policies, and
sales); GoSMiLE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649–50
(S.D.N.Y. 2011) (granting motion to seal documents containing highly proprietary material
concerning the party’s marketing strategies, product development, costs and budgeting); Skyline
Steel, LLC v. PilePro, LLC, 101 F. Supp. 3d 394, 412 (S.D.N.Y. 2015), on reconsideration in part,
No. 13-CV-8171 JMF, 2015 WL 3739276 (S.D.N.Y. June 15, 2015) (granting motion to seal
highly confidential sales information, including pricing information which is not available to the
public).
Category 3: Excerpts of deposition transcripts and expert reports that include or discuss
any of the above-mentioned categories.
The deposition transcripts or expert reports that ABC seeks to seal or redact contain
information that falls into the above two categories, and thus warrants protection. See, e.g., See
Rubik's Brand Ltd. v. Flambeau, Inc., 2021 U.S. Dist. LEXIS 53529 at *2 (S.D.N.Y. March 22,
2021) (granting motion to redact portions of excerpt of deposition and noting that “the proposed
redactions cover material that, if disclosed, would competitively harm Flambeau. For instance, a
competitor could use information concerning sales figures to upend the puzzle cube market and
disrupt the Quick Cube’s business model.”).
ABC has redacted expert reports and expert deposition transcripts where appropriate. ABC
notes that the excerpts of fact witness depositions identified in Exhibit A are so pervaded with the
commercially sensitive, private information described in categories 1-2 above that redactions
would be impracticable. Accordingly, ABC respectfully requests that fact witness deposition
transcripts remain under seal.
Category 4: ABC’s Memoranda of Law and Rule 56.1 Statement of Undisputed Facts that
include or discuss any of the above-mentioned categories.
ABC has redacted portions of its Memorandum of Law and Rule 56.1 Statement of
Undisputed Facts filed in support of its Motion for Summary Judgment, as well as portions of its
Memorandum of Law in support of its Motion to Partially Exclude the Testimony of Joel H.
Steckel where appropriate. Those redacted portions warrant protection for the reasons identified
above.
Accordingly, ABC respectfully requests that this Court enter an Order sealing the
documents listed on Exhibit A and granting leave to file the documents listed on Exhibit B with
redactions. ABC thanks the Court for its time and consideration.

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The Honorable Paul A. Engelmayer
June 2, 2021
Page 4
Respectfully submitted,
HOLLAND & KNIGHT LLP
/s/ Mark T. Goracke
Mark T. Goracke
cc: All counsel of record (via ECF)

SO ORDERED.
__________________________________
PAUL A. ENGELMAYER
United States District Judge

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