Capana Swiss Advisors AG et al v. Rymark Inc. et al

Filing 179

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' 175 MOTION TO SEAL - granting 175 Motion to Seal; re 175 Plaintiff's MOTION to Seal and Memorandum in Support re 174 Affidavit/Declaration in Suppo rt of Motion, ; ORDER re 175 Plaintiff's MOTION to Seal and Memorandum in Support re 174 Affidavit/Declaration in Support of Motion, filed by Capana Swiss Advisors AG, AmeriMark Automotive AG. See Order for details. Signed by Magistrate Judge Cecilia M. Romero on 11/25/24. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
CAPANA SWISS ADVISORS AG, et al.,
Plaintiffs,
v.

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS’
[175] MOTION TO SEAL
Case No. 2:23-cv-00467-TS-CMR

RYMARK INC., et al.,

Judge Ted Stewart

Defendants.

Magistrate Judge Cecilia M. Romero
I.

BACKGROUND

This matter is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) (ECF 7).
Before the court is Plaintiffs’ Motion to Seal (Motion to Seal) (ECF 175) regarding Exhibits 9 and
10 (ECF 174-9, 174-10) to the Declaration of Chad S. Pehrson (Declaration) (ECF 174) in support
of Defendants’ Motion to Compel Deposition of Director of Plaintiff AmeriMark Automotive
Nicolai Colshorn (Motion to Compel) (ECF 173). Defendants filed an Opposition (ECF 176) to
the Motion. Having carefully considered the relevant filings, the court finds that oral argument is
not necessary and will decide this matter based on written memoranda. See DUCivR 7-1(g). For
the reasons set forth below, the court GRANTS the Motion to Seal.
II.

DISCUSSION

On November 15, 2024, Defendants publicly filed their Motion to Compel (ECF 173) and
supporting Declaration (ECF 174) with attached exhibits. On the same day, Plaintiffs filed the
present Motion to Seal (ECF 175) pursuant to DUCivR 5-3 asking the court to seal Exhibits 9 and
10 (ECF 174-9, 174-10) to the Declaration filed in support of the Motion to Compel, as these

documents have been designated as confidential pursuant to the governing Standard Protective
Order. Defendants thereafter filed their Opposition (ECF 176), and Plaintiffs did not file a reply.
DUCivR 5-3 provides that “[t]he court may make an independent determination as to
whether the Document will be sealed, regardless of the parties’ agreement or a party’s decision
not to oppose a Motion for Leave to File Under Seal.” DUCivR 5-3(b)(3). The court may make
this determination “on motion of a party and a showing of good cause.” See DUCivR 5-3(a)(1).
Courts will not grant a motion to seal “unless the moving party overcomes a presumption in favor
of access to judicial records by ‘articulat[ing] a real and substantial interest that justifies depriving
the public of access to the records that inform our decision-making process.’”???Sacchi v. IHC Health
Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019) (quoting Eugene S. v. Horizon Blue Cross Blue
Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011)). This requires the moving party to
“submit[] any specific argument or facts indicating why the confidentiality of [the document]
outweighs the presumption of public access.” Id. (quoting Colony Ins. Co. v. Burke, 698 F.3d 1222,
1241–42 (10th Cir. 2012)).
Here, Plaintiffs argue sealing these documents is necessary because Exhibit 9 is a
confidential email containing information relating to financial accounts and bookkeeping and
Exhibit 10 is a confidential email discussing outstanding invoices (ECF 175 at 3). Plaintiffs further
argue the request is narrowly tailored to only the exhibits that would cause Plaintiffs “significant
competitive harm in the marketplace or which would directly violate the privacy of third parties”
(id. at 4). Defendants oppose this request arguing that designating documents as confidential does
not justify sealing, Plaintiffs’ conclusory arguments fail to show a significant interest that
outweighs the presumption of public access, Exhibits 9 and 10 do not contain proprietary or
confidential information, and there is no risk of competitive harm (ECF 176 at 6–7).

Having considered the parties respective arguments and the relevant caselaw, the court
finds that Plaintiffs have met the relevant standard for sealing Exhibits 9 and 10. The court notes
that Plaintiffs did not rely solely on their confidentiality designations and disagrees with
Defendants’ characterization of Plaintiffs’ arguments as conclusory where Plaintiffs provided
arguments with both evidentiary and legal support. Although the court acknowledges the
presumption in favor of public access, the court finds good cause and substantial interest to
overcome this presumption for the reasons stated in the Motion.
In addition, the court once again admonishes the parties to comply with the procedures set
forth in DUCivR 5-3 and the Standard Protective Order. Defendants have demonstrated a pattern
of publicly filing documents that have been designated as confidential by Plaintiffs in accordance
with the Standard Protective Order. The appropriate procedure to challenge the propriety of these
designations is outlined in the Standard Protective Order, which Defendants have not followed.
Unless and until these designations have been properly challenged, the appropriate procedure for
the filing of documents designated as confidential by another party is outlined in DUCivR 53(b)(2)(C)(i) (“If the sole basis for proposing that the Document be sealed is that another party
designated it as confidential or for attorneys’ eyes only, then so state that reason in the motion. If
the designating party seeks to have the Document remain under seal, the designating party must
file a Motion for Leave to File Under Seal in accordance with DUCivR 5-3(b)(2) within 7 days of
service of the motion. If the designating party does not file a motion within 7 days, the original
motion may be denied, and the Document may be unsealed without further notice.”). Defendants’
continued failure to comply with the rules of this court will result in sanctions. See DUCivR 1-2.

III.

CONCLUSION AND ORDER

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion to Seal (ECF
175) is GRANTED and Exhibits 9 and 10 (ECF 174-9, 174-10) shall be placed under seal.
IT IS SO ORDERED.
DATED this 25 November 2024.

Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah