Babcock & Wilcox Power Generation Group, Inc. v. Cormetech, Inc.

Filing 149

Memorandum Opinion and Order denying Defendant's Motion for leave to file all pre-trial motions under seal (Related Doc # 146 ); and denying Plaintiff's Motion for leave to file partial brief in opposition (Related Doc # [ 148]). Cormetech is granted leave to file its other two pre-trial motions by 5:00 p.m. today, September 27, 2017. In accordance with the Court's Civil Trial Order (Doc. 132 ), Babcock's responses to Cormetech's three pending motions in limine are due by September 28, 2017. Babcock's responses to Cormetech's two soon-to-be-filed pretrial motions are due October 2, 2017. Counsel is hereby advised that they are expected to submit all filings in this case in compliance with the deadlines set in the Courts orders. Magistrate Judge Kathleen B. Burke on 9/27/2017.(D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BABCOCK & WILCOX COMPANY,
Plaintiff,
v.
CORMETECH, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 5:14CV514

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

On September 21, 2017, Defendant Cormetech timely filed three motions in limine with
exhibits attached. Docs. 143, 144, 145. The next day it filed a “Motion for Leave to File All
Pre-Trial Motions Under Seal Consistent With the Parties’ Stipulated Protective Order”
(“Motion”). Doc. 146. For cause, Cormetech explained that it had been contacted by counsel for
Plaintiff Babcock and Wilcox Company (“Babcock”) and informed that the motions in limine
contained testimony designated by the parties as confidential during the discovery phase of this
case. Id., p. 1. In the Motion, Cormetech also sought leave to file two other pretrial motions
after the deadline set in the Civil Trial Order, Doc. 132. Cormetech did not describe the subject
matter of the two unfiled motions but stated that it has not filed them because it is awaiting the
Court’s order on the Motion before doing so. Id., pp. 1-2. The Court entered an order requiring
Babcock to file its response, if any, to the Motion by 12:00 noon on Tuesday, September 26,
2017. See Order, 9/22/2017.
Babcock did not file a timely response. Six hours after the deadline set by the Court, it
filed a Motion for Leave to File Partial Brief in Opposition to Defendant’s Motion for Leave to
File All Pre-Trial Motions Under Seal, instanter. Doc. 148. Babcock explained that it did not
1

timely file its brief because of the press of business in this and other cases. Doc. 148, p. 1.
Babcock’s motion to file its “Partial Brief in Opposition” is DENIED.
Cormetech’s Motion requests blanket leave to file under seal in their entirety all pretrial
motions and supporting documents. The relief sought by Cormetech is without precedent or
support; as explained below, it is also wholly contrary to the law in this Circuit and to this
Court’s prior orders and is therefore DENIED.
Analysis
In 2016, more than two years after this case was filed, the Sixth Circuit made clear that
sealing orders are rarely to be entered and that agreements by parties as to what may be
designated as confidential for purposes of discovery, i.e., stipulated protective orders, have little,
if any, bearing on the filing of documents under seal with the Court. In Shane Group, Inc. v.
Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016), the Sixth Circuit
emphasized that “very different considerations apply” when the case has moved beyond
discovery. With regard to filing documents under seal, the Sixth Circuit stated, “[C]ourts have
long recognized ... a strong presumption in favor of openness as to court records.” Id. (internal
quotations and citations omitted). The burden of overcoming the presumption of openness lies
with the party seeking to seal filings and “[t]he burden is a heavy one: Only the most compelling
reasons can justify non-disclosure of judicial records.” Id. (internal quotations omitted). “And
even where a party can show a compelling reason why certain documents or portions thereof
should be sealed, the seal itself must be narrowly tailored to serve that reason” and “[t]he
proponent of sealing therefore must analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations.” Id. at 305-306 (internal quotation marks and
citations omitted).

2

The Sixth Circuit and district courts within the Circuit have underscored the policy
disfavoring sealing in subsequent opinions applying Shane Group. See Rudd Equip. Co., Inc., v.
John Deere Const. & Forestry Co., 834 F.3d 589, 593-594 (6th Cir. 2016) (affirming the district
court’s order to unseal documents previously filed under seal); Graiser v. Visionworks of Am.,
Inc., 2016 WL 3597718 (N.D.Ohio July 5, 2016) (denying the defendant’s request to file
documents under seal or redact its sales figures in court filings).
Orders entered in this case likewise provide no support for Cormetech’s Motion.1 The
Court’s Case Management Conference Order (“CMC Order”) entered on June 25, 2014,
provides:
Absent a statute or prior leave of Court, documents may not be filed under seal,
see LR 5.2.
No protective order or other sealing order is blanket authority to file entire
documents under seal. Only relevant portions of relevant documents are subject to sealing
under the terms of an approved order. For example, an entire memorandum in support of
a motion for summary judgment would not be placed under seal merely because it makes
mention of a document which is under seal. Nor would an entire deposition transcript be
placed under seal because confidential information was inquired into during the course of
the deposition.
***
2
Doc. 20, pp. 5-6.
Although Cormetech refers to “Doc. 20” as the parties’ Stipulated Protective Order
(“SPO”), cites to the SPO, and purports to attach the SPO to its Motion, “Doc. 20” is not the
parties’ protective order; it is the Court’s CMC Order. Cormetech has attached the CMC Order,
not the SPO, to its Motion. The SPO is Doc. 25. Also, although Cormetech purports to rely on
the SPO and cites to “¶ 5.2,” there is no paragraph 5.2 in either the CMC Order or the SPO.
Thus, Cormetech has not even properly identified the order that it cites as authority for its
1

In any event, any order inconsistent with Shane Group would be superseded by that decision.

2
Under the CMC Order, if a party wishes to file an entire motion and attachments under seal, it must request for
leave to file a redacted version and unredacted version. Cormetch did not request leave to file a redacted and
unredacted version of its motions in limine.

3

Motion. Had Cormetech reviewed the SPO prior to filing the Motion, it might have noticed that
the relief it requests is not warranted by that Order, which states that “there is a presumption in
favor of open and public judicial proceedings” (Doc. 25, p. 1) and cautions that the SPO is
entered “for the purpose of facilitating discovery” and that “[n]othing herein shall be construed
or presented as a judicial determination that any documents or information designated
CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER by counsel or the parties is subject to
protection under Rule 26(c) . . . .” Id., p. 9.
Cormetech does not identify any reasons, let alone compelling ones, that would justify
non-disclosure of pre-trial motions, which are judicial records. It only states that, because these
filings “contain deposition testimony previously marked ‘confidential,’” it follows that they
should be sealed now. Doc. 146, p. 2. But, as the Sixth Circuit has instructed, “very different
considerations apply” when the case has moved beyond discovery. See Shane Group, 825 F.3d
at 305. Cormetech has not explained why deposition testimony marked “confidential” for
purposes of discovery should be filed under seal, and it certainly has not identified “the most
compelling reasons [to] justify non-disclosure” of this evidence.3 Id.
Cormetech does state that “the confidential material currently at issue” is “primarily the
deposition testimony of B&W’s sole engineering expert Stephen Niksa.” Doc. 146, p. 2.
However, both this Court and the Sixth Circuit have discussed Niksa’s deposition testimony in
some detail their opinions at the summary judgment stage; those opinions are judicial records
that are open to the public. Niksa’s testimony, therefore, hardly meets the standard for sealing
set in Shane Group.

3
In its proposed Partial Brief in Opposition, Babcock supports Cormetech’s sealing request but also fails to offer
any specific reason the documents should be sealed, asserting only that they contain material that had previously
been marked “confidential.” Doc. 148-1, p. 2.
4

Cormetech has articulated no reason why entire motions in limine and all exhibits thereto
should be sealed, and the Court therefore DENIES Cormetech’s Motion for Leave to File All
Pre-Trial motions under seal (Doc. 146).
Cormetech is granted leave to file its other two pre-trial motions by 5:00 p.m. today,
September 27, 2017. In accordance with the Court’s Civil Trial Order (Doc. 132), Babcock’s
responses to Cormetech’s three pending motions in limine are due by September 28, 2017.
Babcock’s responses to Cormetech’s two soon-to-be-filed pretrial motions are due October 2,
2017.
Counsel is hereby advised that they are expected to submit all filings in this case in
compliance with the deadlines set in the Court’s orders.

IT IS SO ORDERED.

Dated: September 27, 2017
Kathleen B. Burke
United States Magistrate Judge

5