Nordock Inc v. Systems Inc

Filing 98

ORDER signed by Judge Rudolph T. Randa on 12/6/2012. MOTIONS to seal 73 84 and 92 are GRANTED IN PART and DENIED IN PART (See Order for Details). Nordock must file in the public record revised versions of documents including excerpts of Hahn&# 039;s testimony: (1) its memorandum of law in opposition to Systems' motion for summary judgment (2) proposed statement of material facts (3) its reply to Systems' opposition to it summary judgment motion (4) Nordock's supporting proposed statement of facts. Clerk of Court is DIRECTED TO FILE Exhibit M [63-17] and Exhibit AL [81-11] and [88-1] in the public record. Any member of the public may challenge the sealing of any paper sealed pursuant to this Order. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

NORDOCK INC.,
Plaintiff,
v.

Case No. 11-C-118

SYSTEMS INC.,
Defendant.

DECISION AND ORDER

Three motions to seal filed by the Plaintiff, Nordock, Inc. (“Nordock”), are
addressed herein. All three motions relate to filings in conjunction with the parties’ summary
judgment motions. The motions are addressed in the order in which they were filed.
Sealing of Papers in Support of Nordock’s Motion for Summary Judgment
Nordock seeks an order sealing paragraph 24 of its proposed statement of facts
in support of its summary judgment motion as to the validity and enforceability of U.S. Patent
No. D579,754 and exhibits D1, M, and R in support of that proposed statement of facts.
Defendant Systems Inc. (“Systems”) does not oppose the motion. For the reasons stated, the
motion to seal is granted as to all except exhibit M.
Motions to seal are decided in accordance with the controlling case law of this
Circuit which emphasizes the right of public’s access to documents filed with the Court and
the need for a party to establish good cause for the sealing of a document. See United States
v. Foster, 564 F.3d 852, 853 (7th Cir. 2009); Citizens First Nat'l Bank of Princeton v.

Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999). Even when the parties agree as to the
need to protect information from public disclosure, the Court must determine whether there
is good cause to seal documents that are filed in the action. Citizens First Nat'l Bank of
Princeton, 178 F.3d at 944. “The rights of the public kick in when material produced during
discovery is filed with the court.” See Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009).
Paragraph 24 of Nordock’s proposed statement of facts includes information
from exhibit R, a portion of Systems’ damages expert’s report (“Bero Report”) containing
financial information of the type that is not normally made available to the public. At page
16 of its October 5, 2012, Decision and Order, the Court found that Nordock established good
cause to seal such information. (ECF No. 77.) Therefore, paragraph 24 of Nordock’s
proposed statement of facts and exhibit R will be sealed.
Exhibit D1 contains a sheet of drawings containing some alternate lug concepts
that Systems has asserted is confidential. The drawing is not publically available, and its
disclosure would cause competitive harm to Systems. Nordock has established good cause to
seal Exhibit D1 and it will be sealed.
Exhibit M is a portion of the August 24, 2012, deposition transcript of Norbert
Hahn (“Hahn”), a Systems witness. Hahn, is currently doing work for Rite Hite, a company
that also produces loading dock equipment, and is a Rite Hite retiree. (See Ex. AL, 8-10)
(ECF No. 81-11.) At Systems’ counsel’s suggestion, Hahn requested that his entire transcript
be designated “confidential – attorney’s eyes only” because some portion might contain
confidential information of Rite Hite. Nordock sent a copy of the transcript and a letter to

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Hahn in mid-September 2012, requesting that he identify any portions that he or Rite Hite
considers “confidential” or “confidential –attorney’s eyes only.” A copy of the letter was also
sent to counsel for Rite-Hite. (See Mem. Pl.’s Mot. Seal Portions Mem. Pertaining to Hahn
Test. & Paragraphs 24, 66-77 & 79-91, and Ex. AL & AY, 3.) (ECF No. 85.) Nordock
confirmed Rite Hite’s receipt of the letter, but obtained no substantive response. (Id.)
Nordock states that sealing exhibit M is done out of the abundance of caution.
Despite notice to the interested party, no facts have been presented in support of sealing any
part of Hahn’s deposition. Good cause has not been established to seal exhibit M. Therefore,
the Court will direct the Clerk of Court to file exhibit M in the public record.
Sealing of Papers in Opposition to Systems’ Summary Judgment Motion
Nordock also seeks an order sealing portions of its memorandum of law in
opposition to System’s summary judgment motion (ECF No. 80) pertaining to Hahn’s
deposition testimony, portions of paragraphs 24, 66 through 77 and 79 through 91 of its
supporting proposed statement of material facts (ECF No. 81), and exhibits AL and AY.
The motion is granted as to exhibit AY and paragraph 24 of Nordock’s proposed
statement of material facts. Exhibit AY contains Nordock’s profit/loss data, financial data
that is not available to the public,” and financial records of this type are generally not made
available to the public. Paragraph 24 of Nordock’s proposed statement of material facts
includes financial information from Systems’ damages expert’s report and is the type of
information not normally made available to the public. There is “good cause” to seal such
information. (See Court’s October 5, 2012, Decision & Order, 16.)

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Based on this Court’s finding that good cause to seal Hahn’s deposition
transcript has not been established, Nordock’s motion is denied as to exhibit AL, which
consists of several pages of Hahn’s deposition transcript; paragraphs 66 through 77 and 79
through 91 of Nordock’s proposed statement of material facts, which include excerpts of
Hahn’s deposition transcript; and portions of Nordock’s memorandum in opposition to
Systems’ summary judgment motion, that refer to Hahn’s deposition transcript. Exhibit AL
will be filed in the public record. Nordock must file in the public record a revised statement
of proposed statement of material facts and an opposition memorandum that include Hahn’s
depostion testimony.
Sealing of Papers filed in Support of Nordock’s Reply
Nordock requests the sealing of portions of its reply to System’s opposition to
Nordock’s summary judgment motion (ECF No. 89) pertaining to Hahn’s deposition
testimony, and portions of paragraphs 24, 66 through 77 and 79 through 91 of its supporting
proposed statement of material facts (ECF No. 90).
The motion is granted as paragraph 24 of Nordock’s proposed statement of
material facts which includes financial information from Systems' damages expert’s report and
is the type of information not normally made available to the public. Good cause to seal has
been established. (See Court’s October 5, 2012, Decision & Order, 16.)
The remainder of the motion to seal is denied. The other material that Nordock
requested be sealed relates to Hahn’s deposition transcript. Good cause has not been shown
to seal that information. Therefore, Nordock must file in the public record revised versions

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of its reply to System’s opposition to Nordock’s summary judgment motion and Nordock’s
supporting proposed statement of material facts that include the portions of Hahn’s deposition
testimony.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Nordock’s motion to seal (ECF No. 73) is GRANTED as to paragraph 24 of its
proposed statement of facts and exhibits D1 and R and DENIED as to exhibit M;
Nordock’s motion to seal (ECF No. 84) is GRANTED as to exhibits AY and
paragraph 24 of Nordock’s proposed statement of material facts and DENIED as to exhibit
AL, a portion of Nordock’s memorandum of law in opposition to Systems’ motion for
summary judgment, and portions of paragraphs 66 through 77 and 79 through 91 of Nordock’s
proposed statement of material facts;
Nordock’s motion to seal (ECF No. 92) is GRANTED as to paragraph 24 of its
supporting proposed statement of facts and DENIED WITH RESPECT to portions of
Nordock’s reply to Systems’ opposition to Nordock’s summary judgment motion pertaining
to Hahn’s deposition testimony, and portions of paragraphs 66 though 77 and 79 through 91
of its supporting proposed statement of facts;
Nordock MUST FILE in the public record revised versions of the following
documents that include excerpts of Hahn’s testimony: (1) its memorandum of law in
opposition to Systems’ motion for summary judgment and (2) proposed statement of material

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facts; (3) its reply to Systems’ opposition to its summary judgment motion and (4) Nordock’s
supporting proposed statement of facts;
The Clerk of Court is DIRECTED TO FILE exhibit M (ECF No. 63-17) and
exhibit AL (ECF Nos. 81-11 & 88-1) in the public record; and
Any member of the public may challenge the sealing of any paper sealed pursuant
to this Order.
Dated at Milwaukee, Wisconsin this 6th day of December, 2012.
BY THE COURT

_______________________
Hon. Rudolph T. Randa
U.S. District Judge

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