SC Johnson & Son Inc v. Nutraceutical Corporation et al

Filing 36

ORDER signed by Judge Rudolph T. Randa on 8/20/2013 DENYING 34 Motion to Seal Document. (cc: all counsel) (cb)

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

Case No. 11-C-861

NUTRACEUTICAL CORPORATION
and NUTRAMARKS, INC.,
Defendants.

DECISION AND ORDER

This matter is before the Court on the motion of Plaintiff S. C. Johnson & Son,
Inc. (“S. C. Johnson”) (ECF No. 34) seeking an order sealing (1) its Brief in Support
of Summary Judgment; (2) its Proposed Findings of Fact; and (3) Exhibits A, B, E, F,
G, H, I, O, and S to the Declaration of Katherine W. Schill in support S. C. Johnson‟s
Motion for Summary Judgment, in accordance with General L.R. 79(d) and the
Protective Order entered in this case (ECF No. 26). In its present form the motion is
denied.
Agreement by the parties is not a sufficient basis upon which to order
documents filed in a public court record sealed. See Union Oil Co. of Cal. v. Leavell,
220 F.3d 562, 567 (7th Cir. 2000) (“[T]he parties‟ confidentiality agreement cannot
require a court to hide a whole case from view. . .”); see also Hicklin Eng’g, L.C. v.
Bartell, 439 F.3d 346 (7th Cir. 2006) (“What happens in the federal courts is

presumptively open to public scrutiny.”). This Court has a duty to make a
determination of good cause to seal any part of the record of a case. Citizens First
Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999).
The Court may not seal carte blanche whatever portions of the record any party wants
to seal. Id. A sealing order must also expressly state that any party and any interested
member of the public may challenge the sealing of the subject document(s). See Cnty.
Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2007).
“The rights of the public kick in when material produced during discovery is
filed with the court.”

Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009).

Documents used in a Court proceeding may “„influence or underpin the judicial
decision‟ and . . . are therefore presumptively „open to public inspection unless they
meet the definition of trade secret or other categories of bona fide long-term
confidentiality.‟” Id. at 1075 (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544,
545). Unlike unfiled discovery to which the public generally has no right of access,
“[i]t is beyond dispute that most documents filed in court are presumptively open to
the public.” Id. at 1073. See also In re Specht, 622 F.3d 697, 701 (7th Cir. 2010.)
This is so because the parties to a lawsuit are not the only entities who have a
legitimate interest in the record compiled in a legal proceeding. Citizens First Nat’l
Bank, 178 F.3d at 944. “[T]he public at large pays for the courts and therefore has an
interest in what goes on at all stages of a judicial proceeding.” Id. at 945. “That
interest does not always trump the property and privacy interests of the litigants, but it
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can be overridden only if the latter interests predominate in the particular case, that is,
only if there is good cause for sealing a part or the whole of the record in that case.”
Id.
A party seeking to seal items has the burden of showing cause and must
“analyze in detail, document by document, the propriety of secrecy, providing reasons
and legal citations.” Baxter Int’l, Inc., 297 F.3d at 548. “Narrow, specific requests
will be granted when based on articulated, reasonable concerns for confidentiality.”
KM Enter., Inc. v. Global Traffic Techs., Inc., No. 12-3406,

F. 3d

, 2013 WL

3958385, at * 14 (7th Cir. Aug. 2, 2013) (regarding a motion to seal or to return
several documents filed on appeal that contained customer and pricing information).
S. C. Johnson requests leave to seal entire documents. Review of the proffered
documents establishes that S. C. Johnson‟s request is significantly over-inclusive. For
example, S. C. Johnson wants to seal its entire brief. Parts of that brief set out case
law. Other parts include patents which are of public record. This is contrary to the
Committee comment to General L.R. 79 which states:
The motion to seal should be limited to that portion of the
material necessary to protect the movant from the harm
that may result from disclosure, e.g., the fact that a single
page or paragraph of a document contains confidential
material generally will not support a motion to seal the
entire document. Counsel may, and in most circumstances
should, submit a redacted version of the document, with a
separate request to seal the portions containing
confidential material.

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Moreover, S. C. Johnson has not provided an independent factual basis to
establish good cause for sealing.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
S. C. Johnson‟s motion to seal (1) its Brief in Support of Summary Judgment;
(2) its Proposed Findings of Fact; and (3) Exhibits A, B, E, F, G, H, I, O, and S to the
Declaration of Katherine W. Schill in support of S. C. Johnson‟s Motion for Summary
Judgment (ECF No. 34) is DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of August, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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