SC Johnson & Son Inc v. Nutraceutical Corporation et al

Filing 136

ORDER signed by Judge Pamela Pepper on 9/29/2017 DENYING 124 Motion to Restrict Document, But Giving the Plaintiff An Opportunity to Show Cause. The clerk of courts shall restrict the briefs (Dkt. Nos. 120-1 and 125-1) such that only the parties and the court may view the un-redacted versions only until October 20, 2017. Please see order for further details. (cc: all counsel) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
S.C. JOHNSON & SON, INC.,

Case No. 11-cv-861-pp

Plaintiff,
v.
NUTRACEUTICAL CORPORATION and
NUTRAMARKS, INC.,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO RESTRICT DOCUMENT
(DKT. NO. 124), BUT GIVING THE PLAINTIFF AN OPPORTUNITY TO SHOW
CAUSE
On February 6, 2017, the defendants filed a motion to restrict
documents, asking the court to restrict two documents to case participants
only: (1) Brief in support of Defendants’ motion for entry of final judgment
consistent with the Seventh Circuit’s opinion, dkt. no. 120-1; and (2)
Defendant’s reply brief in support of the motion for entry of final judgment
consistent with the Seventh Circuit’s opinion, dkt. no. 125-1. Dkt. No. 124. At
the same time, the defendants filed publicly available, redacted versions of
these briefs. Dkt. Nos. 120, 125. In support of their request, the defendants
argue that “[t]hese documents contain information identified by the relevant
parties as containing sensitive or proprietary business or technical information
and designated as ‘CONFIDENTIAL’ or ‘HIGHLY CONFIDENTIAL’ under the
Protective Order.” Dkt. No. 124. It appears to the court that the defendants
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seek to redact financial information of the plaintiff, including the plaintiff’s
gross sales, number of units sold, and total profit in various years relevant to
this lawsuit. Dkt. No. 120-1 at 8-9. The defendants also seek to redact the
“disgorgement of profits” amount to which the defendants claim they
established at trial and to which they argue they are entitled. Id. at 13
(“Nutraceutical established at trial that SC Johnson’s total claimed gross
revenue minus its total claimed costs or deductions equaled [redacted
amount].”)
The Seventh Circuit has made clear, however, that court should not
restrict documents from public view solely because they contain commercial
information, or solely because the parties have agreed to restrict them;
“[d]ocuments that affect the disposition of federal litigation are presumptively
open to public view, even if the litigants strongly prefer secrecy . . . .” In re
Specht, 622 F.3d 697, 701 (7th Cir. 2010). “[M]any litigants would like to keep
confidential the salary they make, the injuries they suffered, or the price they
agreed to pay under a contract, but when these things are vital to claims made
in litigation they must be revealed.” Baxter Intern. Inc. v. Abbott Laboratories,
297 F.3d 544, 547 (7th Cir. 2002). The Seventh Circuit “recognize[s] only three
classes of material subject to seal: trade secrets, information covered by a
recognized privilege, and information required by statute to be maintained in
confidence. United States v. Sanford-Brown, Ltd., 788 F.3d 696, 712 (7th Cir.
2015), cert. granted, judgment vacated sub nom. U.S. ex rel. Nelson v. Sanford-

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Brown, Ltd., ___ U.S. ___, 136 S. Ct. 2506, (2016), and opinion reinstated in
part, superseded in part, 840 F.3d 445 (7th Cir. 2016).
The defendants have not demonstrated that the documents they seek to
restrict contain a trade secret, fall within a recognized privilege, or are required
by statute to be maintained in confidence. The Local Rules for the Eastern
District of Wisconsin require a party to show good cause for restricting material
from the public record. General L.R. 79(d). The defendants have not met the
good cause standard, nor has the plaintiff offered argument as to why their
financial information should be redacted from the defendants’ briefs. The mere
fact that the parties agreed to be subject to a protective order does not provide
a sufficient basis for the court to restrict the documents under Seventh Circuit
case law. Baxter Inten. Inc., 297 F.3d at 547.
The court DENIES WITHOUT PREJUDICE the motion to restrict the
defendants’ brief in support of the motion for judgment consistent with the
Seventh Circuit opinion and their reply brief in support of the motion for
judgment consistent with the Seventh Circuit opinion. The court ORDERS that
the clerk of courts shall RESTRICT the briefs (Dkt. Nos. 120-1 and 125-1)
such that only the parties and the court may view the un-redacted versions
only until October 20, 2017. By the end of the day on October 20, 2017,
either (1) the parties shall notify the court that they have agreed that the briefs
need not be restricted; or (2) the plaintiff shall file a document stating cause
why the information should be restricted. If neither event occurs by the end of

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the day on October 20, 2017, the court will make the documents publicly
available.
Dated in Milwaukee, Wisconsin this 29th day of September, 2017.

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