Ethicon Endo-Surgery, Inc. v. Covidien, Inc.
ORDER Temporarily Granting 181 Ethicon's Motion to File Motion for Summary Judgment and Supporting Documents Under Seal. Signed by Judge Timothy S. Black on 9/20/17. (gs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
ENDO-SURGERY, INC., et al.,
COVIDIEN, INC., et al.,
Case No. 1:11-cv-871
Judge Timothy S. Black
ORDER TEMPORARILY GRANTING ETHICON’S MOTION TO FILE
MOTION FOR SUMMARY JUDGMENT AND
SUPPORTING DOCUMENTS UNDER SEAL (DOC. 181)
This civil action is before the Court regarding Plaintiffs Ethicon Endo-Surgery,
Inc. and Ethicon Endo-Surgery, LLC (hereinafter referred to collectively as “Ethicon”)’s
motion to file motion for summary judgment and supporting documents under seal.
STANDARD OF REVIEW
A district court’s decision to seal court records is reviewed for an abuse of
discretion. Klingenberg v. Fed. Home Loan Mortg. Co., 658 Fed. Appx. 202, 207 (6th
Cir. 2016) (citing Shane Grp. Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 306 (6th Cir.
2016)). However, “the district court’s decision is not accorded the deference that
standard normally brings.” Id.
There is a “stark” difference between, on one hand, the propriety of allowing
litigants to exchange documents in secret, and on the other, allowing litigants to shield
those documents which are ultimately relied on in the Court’s adjudication from public
view. See Shane Grp., 825 F.3d at 305. Parties are typically entitled to a “protective
order” limiting disclosure of documents in discovery upon a mere showing of good cause.
Id. However, “very different considerations apply” when these materials are filed in the
public record. Id.
Unlike information merely exchanged between the parties, the public has a strong
interest in obtaining the information contained in the court record. Id. Accordingly, the
courts have long recognized a “strong presumption in favor of openness” of court
records. Id. (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180
(6th Cir. 1983)).
Three times in the past year the Sixth Circuit has explained that a party moving to
seal court records must overcome a significant burden. See Shane Grp., 825 F.3d at 30506; Klingenberg, 658 Fed. Appx. at 207-08; Rudd Equip. Co. v. John Deere Constr. &
Forestry Co., 834 F.3d 589, 593-96 (6th Cir. 2016). According to the Sixth Circuit:
The burden of overcoming that presumption [of openness] is borne by the
party that seeks to seal them. In re Cendant Corp., 260 F.3d 183, 194 (3d
Cir. 2001). The burden is a heavy one: “Only the most compelling reasons
can justify the non-disclosure of judicial records.” In re Knoxville NewsSentinel Co., 723 F.2d 470, 476 (6th Cir. 1983). . . . 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. See, e.g., Press-Enter. Co. v. Superior Court of California,
Riverside Cnty., 464 U.S. 501, 509-11, 104 S. Ct. 819, 78 L. Ed. 2d 629
(1984). The proponent of sealing therefore must “analyze in detail,
document by document, the propriety of secrecy, providing reasons and
legal citations.” Baxter, 297 F.3d at 548.
Shane Grp., 825 F.3d at 305-06.
A movant’s obligation to provide compelling reasons justifying the seal exists
even if the parties themselves agree the filings should be sealed. See Rudd Equip., 834
F.3d at 595 (noting the parties “could not have waived the public’s First Amendment and
common law right of access to court filings”) (citation omitted); see also In re Knoxville
News-Sentinel Co., 723 F.2d 470, 475 (6th Cir. 1983) (in reviewing a motion to seal, the
district court has “an obligation to consider the rights of the public”). Simply put, this
Court has an obligation to keep its records open for public inspection, and that obligation
is not conditioned upon the desires of the parties to the case. Shane Grp., 825 F.3d at
A district court which chooses to seal court records must set forth specific findings
and conclusions “which justify nondisclosure to the public.” Id. at 306 (quoting Brown &
Williamson, 710 F.2d at 1176). A court’s failure to set forth reasons explaining why the
interests in support of nondisclosure are compelling, why the interests supporting access
are less so, and why the seal itself is no broader than necessary is grounds to vacate an
order to seal. Id.
Ethicon’s motion to seal requests that Ethicon’s forthcoming motion for summary
judgment and supporting exhibits be sealed to protect “non-public and proprietary
technical (including, but not limited to, detailed device specifications and design
documents), research and development, and business information (including, but not
limited to, revenues, costs and profits) concerning Covidien’s accused Sonicision product
and/or Ethicon’s competing ultrasonic surgical products.” (Doc. 181, at 4). This Court
has previously recognized that protecting confidential information that would otherwise
allow competitors an inside look at a company’s business strategies is a compelling
reason to restrict public access to filings. The Procter & Gamble Co. v. Ranir, LLC, Case
No. 1:17-CV-185-TSB, Dkt. #35 (August 17, 2017) (defining “Confidential Information”
as, at a minimum, including “non-public information” that contains “confidential trade
secret, technical, business, financial, or personal information”). Accordingly, Ethicon has
provided a compelling reason to allow for the filing of documents under seal.
The Court recognizes that Ethicon’s motion to seal, while generally providing
compelling justification for the sealing of confidential information, does not provide
detailed, specific justification on a “document by document” basis as envisioned by the
Sixth Circuit. See Shane Grp., 825 F.3d at 305–06 (citing Baxter Intern. Inc. v. Abbott
Labs., 297 F.3d 544, 548 (7th Cir. 2002)). Therefore, the Court will grant Ethicon’s
motion on a temporary basis. If, after reviewing the filed documents, the Court finds that
nondisclosure of some or all of the filed documents was unjustified, Ethicon will be
ordered to refile those documents on the public docket.
Accordingly, Ethicon’s motion to seal (Doc. 181) is GRANTED on a temporary
basis. Ethicon may file copies of its forthcoming motion for summary judgment,
memorandum in support of that motion, statement of proposed undisputed facts, and all
exhibits referenced by the motion under seal. The Court will review the sealed
documents once they are filed and will inform Ethicon if any of the documents must be
filed on the public docket.
IT IS SO ORDERED.
/s/Timothy S. Black
Timothy S. Black
United States District Judge
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