Willis v. Big Lots, Inc. et al

Filing 73

ORDER granting 71 Motion to File Document Under Seal. Signed by Magistrate Judge Norah McCann King on 7/29/2016. (agm)

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

ALAN WILLIS,
Plaintiff,
vs.

Civil Action 2:12-cv-604
Judge Watson
Magistrate Judge King

BIG LOTS, INC., et al.,
Defendants.

ORDER
Defendants have renewed their motion for leave to file certain
documents under seal. Renewed Motion to File under Seal Certain
Materials in Support of Defendants’ Memorandum of Law in Opposition to
Plaintiffs’ Motion for Class Certification and to Appoint Class
Representatives and Class Counsel, ECF No. 71. Defendants specifically
ask for leave to file Exhibits L, M, and N to the Declaration of David
A. Herman under seal, as well as their memorandum in opposition to
plaintiffs’ motion; defendants ask that they be permitted to file
Exhibits D, E, F, and G to the Herman Declaration publically. Id.
Plaintiffs agree that Exhibits L, M, and N and the memorandum in
opposition should be filed under seal; they argue, however, that
Exhibits D, E, F, and G should also be filed under seal. Plaintiffs’
Response to Defendants’ Renewed Motion to File Documents under Seal,
ECF No. 72.
Although litigants may maintain discovery materials in
confidence, the actual filing of documents – which implicates the

1

interests of the public in unencumbered access to court proceedings –
should not routinely be made under seal.

Proctor & Gamble Co. v.

Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Brown & Williamson
Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983). Moreover,
the local rules of this Court prohibit the filing of documents under
seal without leave of Court. S.D. Ohio Civ. R. 5.2.1(a).
Apparently, plaintiffs or other entities denominated Exhibits D,
E, F, G, L, M, and N as confidential during the course of discovery in
this action. The parties agree that Exhibits L, M, and N to the
Declaration of David A. Herman should be filed under seal. Exhibits L
and M relate to Herndon Capital Management, LLC (hereinafter
“Herndon”), an institutional investment management firm specializing
in equity strategies. Kenneth R. Holley, a Principal and the Chief
Investment Officer of Herndon, avers that Exhibits L and M “disclose
Herndon’s confidential and proprietary information relating to its
detailed investment strategies,” which are maintained in confidence
and not disclosed to the general public.

Affidavit of Herndon Capital

Management, LLC, ECF No. 71-2, ¶ 6. Exhibit N is the transcript of the
Rule 30(b)(6) deposition of OakBrook Investments, LLC, another thirdparty to the action and which denominated that document as
confidential. Janna L. Sampson, Managing Member and Co-Chief
Investment Officer of OakBrook, avers that her deposition discloses
“OakBrook’s investment strategy and methodologies” as well as
“proprietary models reveal[ing] confidential trade secrets about
OakBrook’s core business.” Declaration in Support of Confidential
Designations in Deposition Transcript of Janna L. Sampson, ECF No. 713 ¶¶ 4, 6.
The Court concludes that defendants have adequately established
that Exhibits L, M, and N should be filed under seal.

The parties disagree as to the confidential nature of Exhibits E
and F, which are described as agreements between plaintiffs’ counsel,
Robbins Geller Rudman & Dowd LLP (“Robbins Geller”),and the proposed
class representatives for “portfolio monitoring” in connection with
potential securities fraud claims. The parties also disagree as to the
confidential nature of Exhibits D and G, which are described as
portions of the transcripts of the Rule 30(b)(6) depositions of the
proposed class representatives, in which the monitoring agreements are
quoted or discussed. David W. Mitchell, a member of Robbins Geller,
avers that these monitoring agreements
describe Robbins Geller’s proprietary processes and
procedures to protect client assets . . . [and that] the
disclosure of the [agreements] would harm its competitive
standing, as competitor firms without such processes and
procedures and/or different processes and procedures could
replicate information contained in the [agreements] for
their own use.
Declaration of David W. Mitchell, ECF No. 71-4, ¶ 5. Defendants
disagree that these monitoring agreements are truly confidential,
particularly in light of the public discussion of these agreements by
other courts. See City of Pontiac Gen. Employees' Ret. Sys. v.
Lockheed Martin Corp., 844 F. Supp. 2d 498, 500 (S.D.N.Y. 2012); Iron
Workers Local No. 25 Pension Fund v. Credit-Based Asset Servicing and
Securitization, LLC, 616 F.Supp.2d 461 (S.D.N.Y. 2009).
This Court accepts Robbins Geller’s declaration that its
monitoring agreements contain proprietary information ordinarily
subject to protection. Although these, or similar, monitoring
agreements developed and utilized by Robbins Geller have been the
subject of consideration by other courts and, although other courts
have quoted isolated words or phrases in the agreements, see, e.g.,

3

City of Pontiac Gen. Employees' Ret. Sys., 844 F. Supp. 2d at 500, it
does not appear to the Court that that discussion has been so public
and on such a scale as to divest those documents of their confidential
character. The Court therefore concludes that Exhibits D, E, F, and G
are also appropriately filed under seal.
Defendants also ask that their memorandum in opposition to
plaintiffs’ motion be filed under seal. Plaintiffs do not oppose that
request. Because that filing can be expected to make reference to the
confidential information contained in these exhibits, the Court agrees
that the memorandum should also be filed under seal. However,
defendants must file a redacted version of their memorandum on the
public record within five (5) days of the date of this Order.
It is so ordered.

July 29, 2016

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge