American Airlines Inc v. Travelport Limited et al

Filing 491

MOTION Unopposed Motion to Permanently Seal Documents Containing Confidential Travelport Information filed by Travelport Limited, Travelport, LP (Attachments: #1 Proposed Order) (Pentz, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

AMERICAN AIRLINES, INC.,
Plaintiff,
vs.
TRAVELPORT LIMITED, et al.,
Defendants.

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TRAVELPORT’S UNOPPOSED MOTION TO PERMANENTLY SEAL
DOCUMENTS CONTAINING CONFIDENTIAL TRAVELPORT INFORMATION
Defendants Travelport Limited and Travelport, LP (collectively, “Travelport”)
respectfully file this unopposed motion to permanently seal certain documents that are listed in
Exhibit 1 to the Appendix to this Motion (the “Appendix”), all of which contain highly
confidential, proprietary Travelport information. (See App. at 1-4.) The disclosure of these
documents, which were previously filed under seal pursuant to the Court’s June 9, 2011 Order
(Doc. 69) as well as paragraph 21 of the Second Amended Stipulated Protective Order (Doc.
374) and preceding protective orders, would cause injury to Travelport’s business by exposing its
confidential business information to the general public. Accordingly, pursuant to N.D. Tex.
Civil Local Rule 79.4 and for the reasons articulated in this Motion, Travelport requests that the
Court not unseal the documents listed in Exhibit 1 upon expiration of the 60-day period
described in the Rule, but instead permanently seal those documents. As reflected in the
Certificate of Conference to this Motion, Travelport has conferred with counsel for all other
parties and no party opposes the relief sought in this Motion.

Further, Travelport requests that the terms of the Second Amended Stipulated Protective
Order otherwise remain in effect with respect to the permanently sealed documents. For
example, notwithstanding the permanent sealing of any document, parties should be permitted to
possess, use, control, and disclose their own confidential documents or information. Similarly, if
any party that is in possession of permanently sealed records is served with a discovery request,
subpoena, or an order issued in other litigation or proceedings that would compel disclosure of
the permanently sealed records, the terms of paragraph 27 of the Second Amended Stipulated
Protective Order should govern the party’s response.
ARGUMENT
While there is a general presumption in favor of a public right of access to Court
proceedings, that right is “not absolute” and the Court has discretion to seal confidential
materials. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978); SEC v. Van
Waeyenberghie, 990 F.2d 845, 848 (5th Cir. 1993). In exercising its discretion to seal public
records, this court must balance the public right of access against any interests favoring nondisclosure. See Nixon, 435 U.S. at 599 (advising courts to consider “relevant facts and
circumstances of particular case”); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 428 (5th
Cir. 1981) (noting that there are instances where “the common-law right of inspection has bowed
before the power of the court to insure that its records are not used as vehicles for improper
purposes”) (internal quotation omitted). Because such a balancing exercise is necessarily factintensive, “the decision as to access is one best left to the sound discretion of the trial court, a
discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
Nixon, 435 U.S. at 599.

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One factor justifying restricting public access is where the confidential materials reflect
“sources of business information that might harm a litigant’s competitive standing.” Id. at 598;
see also Oldendorff Carriers GmbH & Co., KG v. Grand China Shipping Co., Ltd., 2013 WL
1867604, at *4 (S.D. Tex. Apr. 22, 2013) (continuing to seal documents because of the plaintiff’s
“reliance on the confidential nature of these agreements, as well as the possibility that disclosure
would potentially harm its competitive standing”).1 For example, documents reflecting
confidential business plans, trade secrets, or details regarding a company’s relationships with its
suppliers or customers, are all appropriately restricted from public access. See, e.g., Olendorff
Carriers GmBH & Co., KG, 2013 WL 186704, at *5 (sealing business plans); Gate Guard Servs.
L.P. v. Solis, 2012 WL 4625679, at *2-3 (S.D. Tex. Sept. 30, 2012) (sealing client identities and
marketing strategy documents);2 see also, e.g., In re High-Tech Emp. Antitrust Litig., 2013 WL
163779, at *4, *9 (N.D. Cal. Jan. 15, 2013) (sealing documents relating to parties’ strategies,
competitive positions, and business operations).3
The documents that Travelport seeks to permanently seal, which are reflected in Exhibit 1
to the Appendix, contain confidential, highly secretive details relating to Travelport’s business
strategies and its relationships with its suppliers and customers. (See App. at 36-37, ¶ 3 (Decl. of
Thomas DeMay).) These documents, if made available to Travelport’s competitors, suppliers, or
customers would provide them with sensitive information that they could use to take advantage
of Travelport in business dealings or to use the inside information to compete with Travelport in

1

See App. at 5-9.

2

See App. at 9-12.

3

See App. at 13-35.

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the marketplace. (Id. at 37, ¶ 4.) Accordingly, the disclosure of these materials would cause
great injury to Travelport.
The materials that Travelport seeks to permanently seal fall into two main categories:
(1) documents reflecting internal Travelport business strategies, plans, or product development
efforts; and (2) documents reflecting confidential details regarding the business relationships
between Travelport and its suppliers or customers. (Id. at 37, ¶ 3.) Some documents fall into
both categories. (Id.) With regard to the first category, Travelport seeks to seal the following
docket entries (see Exhibit 1, (App. at 1-4), for a full description of the document, including the
date filed and full title of the document): 172, 256, 257, 278, 279, 280, 281, 290, 291, 297, 298,
316, 317, 320, 321, 327, 328, 344, 346, 347, 455, and 456. With regard to the second category,
Travelport seeks to seal the following docket entries: 52, 57, 66, 70, 148, 159, 170, 171, 182,
183, 185, 203, 216, 217, 218, 222, 223, 224, 225, 231, 258, 265, 288, 307, 308, 388, 425, and
426.
With regard to all of these documents, Travelport took great effort to maintain the
secrecy of these materials during the litigation. (See App. at 36, ¶ 2.) First, the parties agreed to
and filed stipulated protective orders to govern the treatment of highly confidential and
proprietary business information. All of the variations of these protective orders were approved
by the Court. (See Docs. 130, 267 & 374.) Next, along with the other parties to the litigation,
Travelport sought and obtained from the Court an order that authorized parties and third-parties
to file documents under seal with the Court. (Doc. 69.) All of these actions were taken to
maintain the confidentiality of the highly confidential Travelport materials and to ensure that
these materials were not made available to the general public.

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Accordingly, Travelport seeks an order permanently sealing the documents listed in
Exhibit 1 to the Appendix to prevent the competitive harm that would result from the disclosure
of these documents. The documents all contain confidential, proprietary Travelport information
that reflects Travelport business plans or strategies or details regarding Travelport’s relationship
with its suppliers or customers.
CONCLUSION
For the foregoing reasons, Travelport respectfully requests that the documents listed in
Exhibit 1 be permanently sealed.
Dated: October 14, 2013

Respectfully submitted,
/s/ Michael L. Weiner
Michael L. Weiner
[e-mail]
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036-6797
212.698.3608
212.698.3599 (Fax)
Mike Cowie
[e-mail]
Craig G. Falls
[e-mail]
DECHERT LLP
1775 I Street, NW
Washington, D.C. 20006-2401
202.261.3300
202.261.3333 (Fax)
Carolyn M. Hazard
[e-mail]
Justin N. Pentz
[e-mail]
DECHERT LLP
2929 Arch Street
Philadelphia, PA 19104
215.994.4000
215.994.2222 (Fax)

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_____

Walker C. Friedman
State Bar No. 07472500
[e-mail]
Christian D. Tucker
State Bar No. 00795690
[e-mail]
FRIEDMAN, SUDER & COOKE, P.C.
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
817.334.0400
817.334.0401 (Fax)
ATTORNEYS FOR DEFENDANTS
TRAVELPORT LIMITED and
TRAVELPORT, LP

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CERTIFICATE OF CONFERENCE
On October 14, 2013, I conferred with counsel for American Airlines (Daniel Klein) via
email; counsel for Sabre (Scott Fredericks) via email; and counsel for Orbitz (Brendan McShane)
via email, with regard to this Motion. Counsel for all parties indicated that they do not oppose
the relief sought in this Motion.

/s/ Justin N. Pentz
Justin N. Pentz

CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of October, 2013, I electronically filed the foregoing
document with the clerk of the court for the U.S. District Court, Northern District of Texas, Fort
Worth Division, using the electronic case filing system of the court. The electronic case filing
system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in
writing to accept this Notice as service of this document by electronic means.

/s/ Justin N. Pentz
Justin N. Pentz