IDC Financial Publishing Inc v. BondDesk Group LLC et al

Filing 51

ORDER signed by Judge Pamela Pepper on 10/26/2017. 45 Plaintiff's motion to seal document GRANTED; exhibits A,D,E,F,G,H,I,J,K,L,M to declaration of John Kirtley (dkt. no. 47) RESTRICTED to case participants until further order of the court. 46 Plaintiff's motion to compel GRANTED; defendants to produce un-redacted version of documents identified in exhibits A and B to the Kirtley declaration (dkt. nos. 47-1 and 47-2) no later than end of day 11/7/2017. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
IDC FINANCIAL PUBLISHING, INC.,
Plaintiff,
v.

Case No. 15-cv-1085-pp

BONDDESK GROUP, LLC, et al.,
Defendants.
ORDER GRANTING THE PLAINTIFF’S MOTION TO RESTRICT DOCUMENTS
(DKT. NO. 45) AND GRANTING THE PLAINTIFF’S CIVIL L.R. 7(h) NONDISPOSITIVE MOTION TO COMPEL (DKT. NO. 46)
On September 7, 2017, the plaintiff filed two motions: (1) a Civil L.R. 7(h)
expedited, non-dispositive motion to compel production of un-redacted
documents, dkt. no. 46; and (2) a motion to restrict documents submitted in
support of the motion to compel, dkt. no. 45. The defendants join in the
plaintiff’s motion to restrict documents, dkt. no. 48, and filed their response in
opposition to the plaintiff’s motion to compel on September 14, 2017.
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The Plaintiff’s Motion to Restrict Documents (Dkt. No. 45)

The plaintiff’s motion seeks to restrict from public view portions of
Exhibits A, D, E, F, G, H, I, J, K, L and M, which are attached to John Kirtley’s
declaration in support of the plaintiff’s Civil L.R. 7(h) motion to compel. Dkt.
No. 47. The plaintiff states that “these documents and declaration should be
sealed because they reference, describe, and quote from documents and
information that TradeWeb has designated as CONFIDENTIAL or ATTORNEYS
EYES ONLY” under the court’s February 15, 2016 protective order (dkt. no.
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30). The Seventh Circuit, however, has held that courts should not restrict
documents solely because the parties have agreed to restrict them:
“Documents that affect the disposition of federal litigation are presumptively
open to public view, even if the litigants strongly prefer secrecy, unless a
statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 698,
701 (7th Cir. 2010) (citing Baxter Int’l, Inc. v. Abbott Laboratories, 297 F.3d
544 (7th Cir. 2002)).
In their request to join the plaintiff’s motion, the defendants more
specifically detail the sensitive nature of the documents. Dkt. No. 48. They
state that the materials to be restricted include “drafts of contracts between
Tradeweb and its customers and . . . internal Tradeweb comments concerning
negotiations of one of those contracts. [Certain Exhibits] relate to the specific
customizations of the functionality of Tradeweb’s electronic platform to meet
the specific trading needs of individual customers.” Dkt. No. 48 at 2. They
allege that the documents “contain commercially sensitive, non-public, and
proprietary business information relating to Tradeweb’s business and its
relationship with numerous of its customers.” Id. at 1. They assert that
disclosure of the information in the documents “would be commercially
harmful to Tradeweb’s relationship with its customers, and “would . . . provide
unwarranted access to competitively sensitive information to Tradeweb’s
competitors and to competitors of its customers[.]” Id. at 2.
The court finds that the defendants have stated good cause to restrict the
documents, and the court will grant the motion.
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2.

The Plaintiff’s Civil L.R. 7(h) Motion to Compel (Dkt. No. 46)

The plaintiff’s motion to compel seeks production of un-redacted
documents from the defendants. Specifically, the plaintiff alleges that while
defendant TradeWeb has produced more than 6,000 documents in discovery,
the plaintiffs have found that over 600 of the documents have been
“unilaterally redacted.” Dkt. No. 46 at 1. The plaintiff states that the redactions
are broad; the defendants have redacted nearly all the text in “dozens of emails,
contracts, and spreadsheets.” Id. The plaintiff says that “there is no debate
that the documents at issue fall within th[e] scope [of discovery][,]” and argue
that the defendants should not be allowed redact large swaths of information in
an otherwise responsive document on the ground that the defendants have
deemed such information irrelevant. Id. (emphasis in original). The plaintiff
notes that the defendant “cannot identify any prejudice from the production of
unredacted documents[,]” and argues that if the defendants disagree about the
relevance of information contained in a document, “an objection is appropriate
upon its introduction,” rather than large scale redactions at the discovery
stage. Id.
The defendants respond that the material they have redacted from the
documents is not relevant to the case. Dkt. No. 49 at 1. The defendants aver
that they have produced all of TradeWeb’s discussions with its customers
about “whether to include IDC financial strength ratios as a search criteria for
CDs[,]” and argue that the parameters of this case do not allow the plaintiffs to
peruse and explore all other aspects of the TradeWeb’s contractual and
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financial relationships with its customers. Id. at 2. The defendants argue that
the redactions are “necessary to protect business information that is wholly
unrelated to IDC’s ratings data.” Id. at 4. In short, defendants argue that “IDC
does not get to probe all of TradeWeb’s business dealings just because one
contract is at issue.” Id.
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case[.]” Fed. R.
Civ. P. 26(b). Although the 2015 Amendments to Rule 26(b) placed a renewed
emphasis on proportionality with regard to discovery requests (see advisory
committee notes, 2015 Amendment; Milwaukee Elec. Tool Corp. v. Snap-On
Inc., No. 14-CV-1296-JPS, 2017 3130414, at *1 (E.D. Wis. July 24, 2017)), the
rule still provides that “[i]nformation within this scope of discovery need not be
admissible in evidence to be discoverable.” Id. District courts maintain broad
discretion in discovery matters. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir.
2016).
The plaintiff submits exhibits with examples of the sorts of redactions
that the defendants have performed. For example, exhibit D to the Kirtley
declaration shows more than thirty of its thirty-seven pages redacted as “nonresponsive.” Dkt. No. 47-6. In exhibit H to the Kirtley declaration, the
defendants have redacted pages five through thirty of the document. Dkt. No.
47-14. The defendants have gone beyond the sort-of “line-item” redactions of
personal information or account numbers sanctioned by Fed. R. Civ. P. 5.2.
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Instead, they have blocked out large chunks of information on documents that,
by virtue of producing them, they admit are discoverable.
Although the defendants have provided the court with a description of
each of the redacted documents through the declaration of Michael Kleinman,
(dkt. no. 50 at 2, ¶5), these descriptions do not suffice to cure the extensive
redactions. As another district court has found, “[t]he practice of redacting for
nonresponsiveness or irrelevance finds no explicit support in the Federal Rules
of Civil Procedure, and the only bases for prohibiting a party from seeing a
portion of a document in the Rules are claims of privilege and work-product
protections.” Burris v. Versa Products, Inc., Civil No. 07-3938 (JRT/JJK), 2013
WL 608742, at *3 (D. Minn. Feb. 19, 2013) (citing Fed. R. Civ. P. 26(b)(5)).
Further,
[p]arties making such redactions unilaterally decide that
information within a discoverable document need not be
disclosed to their opponents, thereby depriving their opponents
of the opportunity to see information in its full context and
fueling mistrust about the redactions’ propriety. And if the
Court were to allow such a practice it would improperly
incentivize parties to hide as much as they dare. That is a
result at odds with the liberal discovery policies, the adversary
process, and the Court’s obligation to read the Rules ‘to secure
the just, speedy, and inexpensive determination of every action
and proceeding.’ Fed.R.Civ.P. 1. None of this is intended to
imply that [redacting party] or its counsel attempted to hide the
ball here. But because these types of redactions find no
support in the Rules and are fraught with the potential for
abuse, the Court will not permit them unless the
circumstances provide an exceedingly justification to do so.
Id.
That potential for abuse exists here. The defendants do not assert any
privilege protecting the information they redacted, and object to disclosing the
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information on a blanket assertion that the redacted information does not
apply to the plaintiff. The plaintiffs may disagree with the defendants’ relevance
determination. See EEOC v. Dolgencorp, LLC, No. 13-cv-04307, 2015 WL
2148394 at *5 (N.D. Ill. May 5, 2015) (“What constitutes relevant information is
often a matter of judgment, and even irrelevant information within a document
that contains relevant information may be highly useful to providing context for
the relevant information.”) (internal quotations omitted). The court does not
agree that the plaintiff must “take the defendants’ word for it” that the redacted
portions of the documents are not relevant to the plaintiff’s claim.
More important, the defendants have not provided a compelling reason
for the court to allow the extensive redactions. The defendants cite In re:
Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143
(S.D. Fla. Feb. 24, 2016), in which a district court in the Southern District of
Florida allowed the defendants to redact documents as nonresponsive because
of its concern that the documents contained competitively sensitive materials
that may have been exposed to the public, despite protective orders. Here,
while the defendants state that “Tradeweb’s redactions are necessary to protect
‘business information that is wholly unrelated’ to IDC’s ratings data[,]” they
make no effort to explain why Judge Randa’s February 15, 2016 protective
order does not adequately protect the defendants. That protective order
explicitly provides that “documents or other information marked as
CONFIDENTIAL INFORMATION may be used only in connection with the
above-captioned litigation and shall not be disclosed, displayed, shown, made
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available, or communicated in any way to anyone other than the following
[specific exceptions].” Dkt. No. 30 at 3, ¶6. The court does not see a compelling
reason to alter the traditionally broad discovery allowed by the rules by letting
the defendants unilaterally redact large portions of their responsive documents
on relevance grounds.
The court GRANTS the plaintiff’s motion to file as restricted. Dkt. No. 45.
The court ORDERS that, under General L.R. 79(d), Exhibits A, D, E, F, G, H, I,
J, K, L and M to the declaration of John Kirtley (dkt. no. 47) shall be
RESTRICTED to case participants until further order of the court.
The court GRANTS the plaintiff’s motion to compel. Dkt. No. 46. The
court ORDERS that the defendants shall produce an un-redacted version of
the documents identified in Exhibits A and B to the Kirtley Declaration, dkt.
nos. 47-1, 47-2, no later than the end of the day on November 7, 2017.
Dated in Milwaukee, Wisconsin this 26th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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