United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANT'S FIRST MOTION
S. Lasnik United States District Judge.
matter comes before the Court on Defendant Institute for
Environmental Health, Inc.'s Motion to Seal Confidential
Documents in Support of its Motion for Summary Judgment. Dkt.
#32. After plaintiff James Byron opposed defendant's
motion, the parties met and conferred regarding the need to
file documents under seal. Dkt. #52 at 2. Defendants agreed
to narrow their claims of confidentiality regarding certain
exhibits and have since filed redacted versions of those
exhibits. Dkt. #52-1. At this point, defendant seeks
permission to seal Exhibits K, Y, Z, AA, DD, GG,
LL to the Declaration of Sarah Bouchard
(“Bouchard Declaration”) (Dkt. #31) in their
entirety and to file unredacted versions of Exhibits
B, C, D, G, J, L, M, N, R, S, T, W, EE, and HH under
seal. Dkt. #32. Despite a number of statements indicating
that defendant has filed sealed, unredacted versions of these
documents for the Court's review and/or that defendant
would like to “maintain” the seal, the record as
it currently stands does not contain any of the information
defendants seek to seal. Rather, one-page placeholders have
been submitted for Exhibits K, Y, Z, AA, DD, GG,
LL and the available versions of the motion for
summary judgment (Dkt. #3) and Exhibits B, C, D, G,
J, L, M, N, R, S, T, W, EE, and HH (Dkt. #52-1)
contain significant redactions. No. unredacted copies have
is a strong presumption of public access to the court's
files.” LCR 5(g). In the Ninth Circuit, the presumption
is particularly strong for documents attached to dispositive
motions. Kamakana v, . City and Cnty. of Honolulu,
447 F.3d 1172, 1179 (9th Cir. 2006). In order to override the
common law right of the public to inspect and copy court
documents, “a party seeking to seal judicial records
must show that compelling reasons supported by specific
factual findings outweigh the general history of access and
the public policies favoring disclosure.” Pintos v.
Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir.
2010) (internal quotation marks and alterations omitted).
Ultimately, “[w]hat constitutes a compelling reason is
best left to the sound discretion of the trial court.”
Center for Auto Safety v. Chrysler Group, LLC, 809
F.3d 1092, 1097 (9th Cir. 2016) (internal quotations
omitted). The Ninth Circuit has found, however, that
protecting trade secrets is one such legitimate private
interest that outweighs the public's interest in
disclosure. Kamakana, 447 F.3d at 1179. A trade
secret “may consist of any formula, pattern, device, or
compilation of information which is used in one's
business, and which gives him an opportunity to obtain an
advantage over competitors who do not know or use it.”
In re Electronic Arts, Inc., 298 Fed.Appx. 568, 569
(9th Cir. 2008), quoting Restatement of Torts §
757 cmt. b.
Local Civil Rules of this district provide two avenues
through which a party may obtain permission to file a
document under the seal. The first method is to file a motion
or stipulated motion to seal at the same time that the
document is filed under seal. This method allows the Court to
review the purportedly confidential material when determining
whether a seal is appropriate. If the Court grants the motion
to seal, the document will remain sealed. If the
Court denies the motion, the document will be unsealed unless
the party relying on the sealed document withdraws it from
consideration. LCR 5(g)(6). The second method is to file a
motion to seal before the document is filed. Defendant has
chosen to utilize that method here, but there is a
significant downside: the Court cannot review the actual
document and must determine whether the moving party has made
a compelling showing based solely on counsel's argument
and supporting declarations.
defendant's burden to show that a seal is warranted by
specifying the public and private interests that favor a
seal, the injury that would occur if a seal were not granted,
and why a less restrictive alternative - such as redaction -
would not be sufficient. LCR 5(g)(3)(B). Vague and conclusory
assertions regarding the competitiveness of defendant's
industry and/or the confidential nature of a document that
has not been provided for review (see Dkt. #52-2) do
not satisfy this burden, especially in the absence of the
documents themselves. The Court has carefully considered the
submissions of the parties, but has been unable to determine
the content of certain documents. Where the parties dispute
the content of a document and the remainder of the record
does not resolve the issue, the dispute has been decided in
reviewed the submissions of the parties, the Court finds as
DD and GG to the Bouchard Declaration contain the
communications between the parties that form the basis of
plaintiff's retaliation claim. Dkt. #52 at 4. The parties
agree that plaintiff's questions about defendant's
research protocols are already in the public record. Dkt. #52
at 4; Dkt. #42 at 7. Defendant cannot file under seal
information that is already within the public domain.
Defendant argues, however, that the documents also contain
“internal deliberations regarding [defendant's]
testing methods and the specific information regarding how
[defendant] prepared this study” that are not part of
the public record. Dkt. #52 at 4. That information could give
defendant's competitors an unfair advantage if disclosed
by affording insight into defendant's proprietary testing
methods. The Court finds that sealing Exhibits DD and
GG in their entirety is unwarranted, but that
defendant may file these documents under seal if and only if
it provides publicly-available redacted versions that protect
only the information regarding defendant's testing
methods and how it prepared the study.
to defendant, Exhibit K to the Bouchard
Declaration contains detailed information about revenue
generated from certain clients. Dkt. #52 at 7. Plaintiff
acknowledges that Exhibit K contains
information about sales to specific customers but disputes
that the remainder of the information is confidential or
proprietary. Dkt. #42 at 5. The Court has not been able to
review the document and, without it, defendant has not met
its burden to support a seal of Exhibit K in
its entirety. Defendant may file this document under seal
only if it provides a publicly-available redacted version
protecting only the identity of its clients.
to defendant, Exhibit Y to the Bouchard
Declaration contains “detailed information regarding
IEH's confidential and proprietary testing methods”
from a confidential presentation to a potential client. Dkt.
#52 at 3. Plaintiff asserts that the information is available
on defendant's website. Dkt. #42 at 6. Defendant does not
dispute that the information is already in the public domain,
and the Court has no way of determining otherwise.
Defendant's motion to seal Exhibit Y is
seeks permission to file Exhibit Z to the
Bouchard Declaration under seal because the document
“cites to” a proprietary testing method and
contains information related to defendant's business and
marketing strategy. Dkt. #52 at 4. Defendant argues that an
industry competitor could use the information to unfairly
compete with defendant. Id. Plaintiff asserts that
the exhibit is a letter that contains no confidential
information. Dkt. #42 at 6. Because the Court has no way of
resolving the parties' disagreement regarding the
contents of the document, the dispute is resolved in
plaintiff's favor, and defendant's motion to seal
Exhibit Z is DENIED.
to defendant, Exhibit AA is a letter
containing “a description of IEH's market research
on pricing for testing services, and financial information
specifically prepared for a potential client.” Dkt. #52
at 3. Defendant claims that disclosure would allow IEH's
competitors to undercut its client-specific prices.
Id. Plaintiff asserts that the letter lacks
“IEH pricing data, test methods or specific business
strategy, ” but acknowledges that it contains a market
survey and a summary of microbiological tests. Dkt. #42 at 6.
The Court finds that defendant has an interest in protecting
its market research but has not met its burden to support a
seal of Exhibit AA in its entirety.
Defendant may file this document under seal only if it
provides a publicly-available redacted version protecting
only its market research.
LL to the Bouchard Declaration is, according to
defendant, an internal document containing data and results
of a study for a potential client, including
“sensitive, non-public confidential and proprietary
information” regarding study designs and results. Dkt.
#52 at 5. Plaintiff asserts that the document's
confidentiality is not obvious from its content, but does not
dispute that it contains proprietary information regarding
defendant's studies. Dkt. #42 at 7. Because the parties
do not dispute the sensitive and proprietary content of the
document, defendant's motion to seal Exhibit
LL is GRANTED.
discussed above, defendant has filed redacted versions of
Exhibits B, C, D, G, J, L, M, N, R, S, T, W,
EE, and HH. See Dkt.
#52-1. Per the Local Rules, the Court has discretion to
determine whether the information will remain redacted. LCR
5(g)(2)(B). According to defendant, the redacted portions of
those exhibits contain information regarding its clients,
business and pricing strategies, and revenue from clients.
Dkt. #52 at 7-8; see generally Dkt. #52-2.
B contains excerpts of a deposition from the
underlying administrative proceedings. Dkt. #52-2 at 1, 6-25;
Dkt. #42 at 3. Defendant acquiesced to many of
plaintiff's objections regarding the scope of the
confidentiality designations within this exhibit, and has
withdrawn the designations except as to testing methods and
information regarding clients. See generally Dkt.
#52 at 5; #52-2 at 6-25. Plaintiff challenges the redactions
on pages 50-52 on the grounds that the information is already
in the public record and that none of the testimony on those
pages reveals confidential information. Dkt. #42 at 3.
Defendant does not refute plaintiff's assertions that the
matters discussed on pages 50-52 are ...