Capri Sun GmbH v. American Beverage Corporation

Filing 163

ORDER granting 151 Letter Motion to Seal. Granted. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 7/16/2021) (va)

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]

July 14, 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 Reply Memorandum
of Law in Support of its Motion for Summary Judgment (DE 94) and (2) granting leave to file that
reply memorandum and certain supporting documents with redactions, for the reasons set forth
herein.
On June 1 and June 2, 2021, the Parties filed letter motions seeking leave to file their
summary judgment and Daubert motion papers and related exhibits under seal and/or with
redactions. See DE 84-86. The Court granted those motions on June 4, 2021. See DE 117-18.
On June 30, 2021, the Parties filed additional letter motions seeking leave to file their summary
judgment and Daubert opposition papers and related exhibits under seal and/or with redactions.
See DE 120, 130. The Court granted those motions on July 6, 2021. See DE 141-42.
Contemporaneously with the filing of this letter motion, ABC is also filing (1) its Reply
Memorandum of Law in Support of its Motion for Summary Judgment, which includes (a) the
Declaration of Mark T. Goracke dated July 14, 2021, together with the exhibits annexed thereto,
and (b) an accompanying response to Capri Sun’s Rule 56.1 Counter-Statement of Material Facts
in Support of its Opposition to ABC’s Motion for Summary Judgment (collectively, the “Reply
Papers”).
ABC’s Reply Papers quote from and refer to materials that this Court permitted to be filed
under seal and/or with redactions in its June 4 and July 6, 2021 Orders. See DE 117-18, 141-42.
Pursuant to Rule 4(B)(2) of the Court’s Individual Rules and Practices in Civil Cases, ABC writes
to identify the documents included in its Reply Papers 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

The Honorable Paul A. Engelmayer
July 14, 2021
Page 2
redactions because (1) the material has been sealed and/or redacted following the Court’s June 4
and July 6, 2021 Orders (see DE 117-18, 141-42); (2) each of the documents identified is
designated “CONFIDENTIAL” and “OUTSIDE COUNSEL’S EYES ONLY” pursuant to the
protective order (DE 38); 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
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
2

The Honorable Paul A. Engelmayer
July 14, 2021
Page 3
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 transcript that ABC seeks to seal contains 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.”).
In line with its previous filings, ABC respectfully requests that this deposition transcript
remain under seal.
Category 4: ABC’s Memoranda of Law in support of its Reply Papers and its Response to
Capri Sun’s Rule 56.1 Counter-Statement of Material Facts that include or discuss any of the
above-mentioned categories.
ABC has redacted portions of its Reply Papers 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.
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

3