United States of America et al v. Doyle et al

Filing 85

OPINION AND ORDER granting 70 , 75 , and 76 Motions for Leave to File Documents under Seal in full. The Asset Purchase Agreement, Transition Services Agreement and Transition Professional Services Agreement may be filed with the Court under sea l. The redacted version of 77 NADM and PDA's Opposition to Joinder, shall remain on the public docket in redacted form, but NADM and PDA shall file an unredacted version of that Opposition under seal. The Court also denies 80 North American Dental Management, LLC and Professional Dental Alliance, LLC's Motion to Strike but grants 80 their Motion to File Surreply. The Court orders them to file the same. Signed by Judge Douglas R. Cole on 5/4/23. (sct)

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 1 of 9 PAGEID #: 1689

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, ex
rel., JOHN N. KRAMER,
Plaintiff,

Case No. 1:18-cv-373
JUDGE DOUGLAS R. COLE

v.
ROBERT A. DOYLE, JR., et al.,
Defendants.
OPINION AND ORDER
The Court here examines four motions. To start, there are three Motions for
Leave to File Under Seal from (1) Plaintiff-Relator John Kramer (Doc. 70),
(2) Defendants CDC Martins Ferry, LLC and CDC Steubenville, LLC (Doc. 75), and
(3) previous Defendant North American Dental Management, LLC and non-party
Professional Dental Alliance, LLC (Doc. 76). Also before the Court, North American
Dental Management, LLC, and Professional Dental Alliance, LLC have moved to
strike or for leave to file a Surreply. (Doc. 80).
For the reasons below, the Court GRANTS all Motions for Leave to File
Documents under Seal (Docs. 70, 75, 76) in full. Further, the Court DENIES North
American Dental Management, LLC and Professional Dental Alliance, LLC’s Motion
to Strike (Doc. 80) but GRANTS their Motion to File Surreply (Doc. 80). The Court
ORDERS them to file the same.

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 2 of 9 PAGEID #: 1690

LAW AND ANALYSIS
A.

The Court Grants All Three Motions For Leave To File Under Seal.
A district court’s decision to seal court records is reviewed for an abuse of

discretion. Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 207 (6th
Cir. 2016) (citing Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299,
306 (6th Cir. 2016)). But when sealing, that “decision is not accorded the deference
that standard normally brings.” Id. So to avoid abusing its discretion, a district court
must “set forth specific findings and conclusions ‘which justify nondisclosure to the
public.’” Shane Grp., 825 F.3d at 306 (quoting Brown & Williamson Tobacco Corp. v.
F.T.C., 710 F.2d 1165, 1176 (6th Cir. 1983)).
A district court has independent obligation, regardless of the parties’
agreement, to determine whether sealing is warranted. See Proctor (sic) & Gamble
Co. v. Ranir, LLC, No. 1:17-cv-185, 2017 WL 3537195, at *2 (S.D. Ohio Aug. 17, 2017)
(“A movant’s obligation to provide compelling reasons justifying the seal exists even
if the parties agree the filings should be sealed, because litigants cannot waive the
public’s First Amendment and common law right of access to court filings.” (citing
Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 595 (6th Cir.
2016))).
In response to a motion to seal, this Court must determine whether the movant
overcomes the “strong presumption in favor of openness.” Brown & Williamson, 710
F.2d at 1179. That’s no easy task. To do so, the Court considers “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.” Shane Grp., 825 F.3d at 306
2

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 3 of 9 PAGEID #: 1691

(citing Brown & Williamson, 710 F.2d at 1176). The Sixth Circuit has repeatedly
cautioned that “only the most compelling reasons can justify non-disclosure of judicial
records.” In re Nat’l Prescription Opiate Litig., 927 F.3d 919, 940 (6th Cir. 2019)
(brackets and citation omitted). Further, any sealing order must be “narrowly
tailored” to serve the reason asserted. Shane Grp., 825 F.3d at 305. To meet this
narrow tailoring requirement, the movant must “analyze in detail, document by
document, the propriety of secrecy, providing reasons and legal citations.” Id. at 305–
06 (quoting Baxter Int’l v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002)).
Relevant here, an interest in protecting sensitive business information and
trade secrets whose disclosure could result in a competitive disadvantage can be
sufficient to support sealing. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
(1978); Ethicon Endo-Surgery, Inc. v. Covidien, Inc., Case No. 1:11-cv-871, 2017 WL
4168290, at *2 (S.D. Ohio Sept. 20, 2017) (recognizing an interest in sealing
“confidential information that would otherwise allow competitors an inside look at a
company’s business strategies”); Morris v. Tyson Chicken, Inc., No. 4:15-cv-77, 2020
WL 3442177, at *2 (W.D. Ky. June 23, 2020) (denying motion to unseal documents
that contain “confidential business information that could harm [defendant’s]
competitive standing”); Caudill Seed & Warehouse Co., Inc. v. Jarrow Formulas, Inc.,
No. 3:13-cv-82, 2017 WL 3220470, at *2 (W.D. Ky. July 28, 2017).
The parties’ Motions overlap. Combined, they desire to file three documents
under seal: (1) an Asset Purchase Agreement between CDC Martins Ferry, LLC
(“CDC Martins Ferry”), CDC Steubenville, LLC (“CDC Steubenville”), North

3

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 4 of 9 PAGEID #: 1692

American Dental Management, LLC (“NADM”), and Professional Dental Alliance,
LLC (“PDA”); (2) a Transition Services Agreement between the same; and (3) a
Transition Professional Services Agreement between the same.1 (Doc. 70, #1433; Doc.
75, #1515–16; Doc. 76, #1523). Relatedly, the parties request the references to
language in these documents to be redacted in their briefs. (Doc. 76, #1521).
The parties also provide similar justifications for sealing. Kramer seeks leave
to file under seal because of the Asset Purchase Agreement’s designation as
“Confidential – Attorney’s Eyes Only.” (Doc. 70, #1433). CDC Martins Ferry and CDC
Steubenville likewise seek leave to file under seal because the agreements are
designated as “Confidential – Attorney’s Eyes Only” and contain their and NADM
and PDA’s sensitive business information and contractual provisions. (Doc. 75,
#1516). NADM and PDA seek leave because they are (presently) nonparties to this
suit and these documents contain their confidential business information. They
contend that revealing this information would place them at a competitive
disadvantage. (Doc. 76, #1523). NADM and PDA further highlight that all parties
have always held these documents out as confidential. (Id.).
To recap, under Shane Group, the Court must determine whether the asserted
confidentially and competitive interests are compelling, whether the interests served
by sealing this information outweigh the value of public disclosure, and also whether
the seal is narrowly tailored to protect those privacy interests.

Kramer does not seek leave to file either Transition Agreement under seal, only the Asset
Purchase Agreement. CDC Martins Ferry, CDC Steubenville, NADM, and PDA all seek to
have all three documents filed under seal.
1

4

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 5 of 9 PAGEID #: 1693

The Court finds this one of the rare instances that meets Shane Group’s
demanding burden. True, Kramer’s claimed interest—that the documents were
designated as confidential under the Protective Order—is not compelling. The
Protective Order itself does not justify filing anything under seal. (See Doc. 58, #1114–
15). But the others do provide a compelling interest. The parties have convinced the
Court that the three documents contain confidential business information, disclosure
of which would create a competitive disadvantage for CDC Martins Ferry, CDC
Steubenville, NADM, and PDA. Professional dentistry is a highly competitive
industry. (Doc. 76, #1526). And the parties assert that the documents at issue contain
unique contractual provisions whose secrecy creates competitive advantages for their
future acquisitions—both in terms of competitors and future acquisition targets. It is
no surprise then that the parties have designated these documents as confidential
throughout this litigation. Moreover, the information at issue is sufficiently specific
and detailed such that its disclosure could harm their competitive standing. In short,
CDC Martins Ferry, CDC Steubenville, NADM and PDA have identified a compelling
interest that supports sealing. See Ray v. Found. Risk Partners, Corp., No. 22-3387,
2022 U.S. App. LEXIS 25954, at *3 (6th Cir. Sept. 15, 2022) (permitting an asset
purchase agreement to be filed under seal where the contractual terms’ secrecy gave
a competitive advantage over competitors and future acquisition targets).
On the other side sits the public interest in disclosure. Shane Group articulates
several reasons why the public might have an interest in an open review of a court’s
docket materials. For example, a public docket ensures the public’s right to guard

5

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 6 of 9 PAGEID #: 1694

against corruption and the public’s right to be on notice about what does and what
does not violate law. Shane Grp., 825 F.3d at 305. Likewise, the public may have a
legitimate interest in knowing the basis for the Court’s decision in a given case. See
Brown & Williamson, 710 F.2d at 1180. None of those reasons, though, appear to
support access to these documents. These acquisition and transition agreements play
a relatively minor role in Kramer’s overarching allegations of fraud. And critically,
there is no allegation these documents themselves contain or reflect fraud. (See
generally Doc. 71). Thus, the compelling competitive interest in sealing sensitive
business information outweighs any limited effect on the public’s ability to be on
notice about what violates the law or to understand the basis for the Court’s decision.
See Shane Grp., 825 F.3d at 305; Brown & Williamson, 710 F.2d at 1180.
The appropriateness of sealing is further confirmed because NADM and PDA
are not—or at least are not presently—parties here. Shane Group instructs that
courts should afford third-party privacy interests substantial weight when
considering a motion to seal. Shane Grp., 825 F.3d at 308; see also Veritas Indep.
Partners LLC v. Ohio Nat’l Life Ins. Co., No. 1:18-cv-769, 2022 WL 1749024, at *2
(S.D. Ohio Jan. 4, 2022). These nonparty privacy interests also tip the scales against
the minimal public interest in disclosure.
Finally, the narrow-tailoring requirement.2 Here, the NADM and PDA have
represented to the Court that the Asset Purchase Agreement, Transition Services

The Court requested the parties, to the extent they desired, submit supplemental briefing
to address Shane Group’s narrow tailoring requirement. (3/29/23 Not. Order). NADM, PDA,
CDC Martins Merry and CDC Steubenville did. (Docs. 82, 83).
2

6

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 7 of 9 PAGEID #: 1695

Agreement, and Transition Professional Services Agreement each contain
contractual clauses and requirements throughout that could place the companies at
a competitive disadvantage if revealed. (Doc. 82, #1677–78). Supporting that, CDC
Martins Ferry and CDC Steubenville detailed a non-exhaustive list of sensitive
clauses and details that “would be valuable to competitors of the non-party CDC
Entities, Defendants, NADM, and PDA” if disclosed—including in the structure of
the agreements themselves. (Doc. 83, #1683–84). Given the pervasive nature of the
sensitive information, the Court agrees that redaction is not a viable alternative.
For these reasons, the Court GRANTS all Motions for Leave to File Documents
under Seal (Docs. 70, 75, 76) in full.
B.

The Court Denies NADM And PDA’s Motion To Strike But Grants
Their Motion To File Surreply.
Separately, NADM and PDA moved to strike a declaration attached to

Kramer’s Reply in support of his Motion for Joinder. (Doc. 80). In the alternative,
they request the opportunity to file a Surreply responding to Kramer’s declaration.
(Id.).
“The Federal Rules of Civil Procedure do not provide for a motion to strike
documents other than pleadings.” O’Banion v. Am. Aggregates Corp., No. 1:19-cv-841,
2020 WL 13469259, at *1 (S.D. Ohio July 23, 2020) (citing Fed. R. Civ. P. 12(f)); Zep
Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818, 822 (S.D. Ohio 2010) (same).
“Instead trial courts make use of their inherent power to control their dockets, when
determining whether to strike documents or portions of documents.” Getachew v.
Cent. Ohio Transit Auth., No. 2:11-cv-860, 2013 WL 819733, at *2 (S.D. Ohio Mar. 5,

7

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 8 of 9 PAGEID #: 1696

2013) (citing Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003)).
The decision to strike is left to the Court’s sound discretion. Aerel S.R.L. v. PCC
Airfoils, LLC, 448 F.3d 899, 906 (6th Cir. 2006). And even where appropriate,
requests to strike are disfavored where a Court can simply ignore the improperly filed
information. Berry v. Frank’s Auto Body Carstar, Inc., 817 F. Supp. 2d 1037, 1041–42
(S.D. Ohio 2011).
The Court has yet to decide whether to consider Kramer’s declaration or his
arguments relating to it. But if the Court concludes Kramer’s declaration was filed in
error, the Court will simply ignore it. See id. Against this backdrop, NADM and PDA
have not persuaded the Court striking the declaration is proper or warranted.
Accordingly, the Court DENIES NADM and PDA’s Motion to Strike. But the
Court GRANTS their Motion for Leave to File Surreply and ORDERS them to file
the same.
CONCLUSION
For these reasons, the Court GRANTS all Motions for Leave to File Documents
under Seal (Docs. 70, 75, 76) in full. The Asset Purchase Agreement, Transition
Services Agreement and Transition Professional Services Agreement may be filed
with the Court under seal. The redacted version of NADM and PDA’s Opposition to
Joinder (Doc. 77), shall remain on the public docket in redacted form, but NADM and
PDA shall file an unredacted version of that Opposition under seal.

8

Case: 1:18-cv-00373-DRC Doc #: 85 Filed: 05/04/23 Page: 9 of 9 PAGEID #: 1697

The Court also DENIES North American Dental Management, LLC and
Professional Dental Alliance, LLC’s Motion to Strike (Doc. 80) but GRANTS their
Motion to File Surreply (Doc. 80). The Court ORDERS them to file the same.
SO ORDERED.
May 4, 2023

DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

9