Shaf International, Inc. v. First Manufacturing Co. Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHAF INTERNATIONAL, INC.,

Plaintiff,

MEMORANDUM & ORDER

- against - 20-CV-1242 (PKC) (LGD)

FIRST MANUFACTURING CO.,

Defendant.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Shaf International, Inc. (“Plaintiff” or “Shaf”) brought this action against

Defendant First Manufacturing Co. Inc. (“Defendant” or “FMC”) for selling garments in violation

of Plaintiff’s U.S. Patent No. 10,433,598 titled “Liner Access Means,” issued on October 8, 2019.

Multiple motions for leave to file documents under seal (filed by both Plaintiff and Defendant)

relating to the parties’ cross motions for summary judgment are now before the Court. For the

reasons explained below, these motions are denied. In addition, as described below, the parties

are ordered to file all outstanding summary judgment documents on the public docket by June 19,

2024, and to submit one courtesy hard copy of all summary judgment briefing, including related

exhibits, to the Court by June 21, 2024.

BACKGROUND

Plaintiff and Defendant have both made requests to file under seal portions of their cross-

motions for summary judgment and related exhibits. (Dkts. 92–94.) Both parties submitted their

requests as letter motions devoid of any legal argument. (See id.) Plaintiff seeks to file portions

of two documents containing “confidential sales information” related to Shaf’s sales and sales by

a third-party, Tucker-Rocky, under seal. (Pl.’s Mot. to File Under Seal, Dkt. 92 at 1–2.) Shaf fails

to explain why this sales data should be kept from public view, merely asserting that the

information in question has been “previously designated Confidential Attorney’s Eyes Only” by

the parties during discovery in this case. (Id.)

Defendant also seeks to file a number of documents under seal. (Def.’s Mots. to File Under

Seal, Dkts. 93–94.) According to Defendant’s motion, two of these documents contain Shaf’s

sales information and/or sales records from third-parties Tucker-Rocky and Pro-Tech. (Def.’s

Mot. to File Under Seal, Dkt. 93 at 1–2.) Like Shaf, Defendant simply asserts that this sales data

was previously designated “Confidential – Attorney’s Eyes Only.” (Id.) In addition, Defendant

seeks to file under seal some or all portions of seven other documents. (See id.) With respect to

some of these documents, Defendant again states that they contain information that was

“previously designated Confidential – Attorney’s Eyes Only.” (Id.) Other documents seemingly

were not designated as such, and Defendant does not provide argument as to why those documents

should be sealed. (Id. at 2.)

A review of the documents attached to Defendant’s motions reveals that Defendant seeks

to file under seal information related to a variety of topics, including when certain products were

developed, sold, and/or shipped by Defendant or others in the same business (Dkt. 93-2 ¶¶ 88–90,

92–93, 97; Dkt. 93-3 at 18–20; Dkt. 93-5 at 14); descriptions of prior art (Dkt. 93-3 at 27–30; Dkt.

93-5 at 14); invoices from 2016 pertaining to prior art (Dkt. 93-6); and sales data (Dkt. 93-7 at

144; Dkt. 93-8 at 6; Dkt. 94-1 at 6). Moreover, some of the information that Defendant requests

to file under seal is neither described nor attached to either of Defendant’s motions to file under

seal. (Compare Def.’s Mot. to File Under Seal, Dkt. 93 at 2 (seeking to file pages 35, 36, and 48

of the transcript of the Aaron Whitney deposition under seal), with Excerpts from Aaron Whitney

Dep., Dkt. 93-3 (excluding pages 35, 36 and 48).)

LEGAL STANDARD

Courts evaluate requests to seal documents under both a “common law right of public

access to judicial documents,” and the “qualified First Amendment right to attend judicial

proceedings and to access certain judicial documents.” Lugosch v. Pyramid Co. of Onondaga, 435

F.3d 110, 119–20 (2d Cir. 2006) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d

Cir. 2004)). “If a sealing request cannot survive the common law test, it will not survive scrutiny

under the First Amendment test.” In re Keurig Green Mountain Single-Serve Coffee Antitrust

Litig., No. 14-mc-02542, 2023 WL 196134, at *1 (S.D.N.Y. Jan. 17, 2023). With that in mind,

courts typically begin their analysis with the common law test. That test has three steps. Diesel

S.P.A. v. Diesel Power Gear, LLC, No. 19-CV-9308, 2023 WL 5713713, at *1 (S.D.N.Y. Sept. 5,

2023). First, the court must “determine whether the information to be sealed is a ‘judicial

document’ to which the presumption of public access applies.” Id. (quoting Lugosch, 435 F.3d at

119–20.) Second, the Court “determine[s] the ‘weight of that presumption’; and third, ‘after

determining the weight of the presumption of access, [the court must] balance competing

considerations against it.’” Id. (quoting Lugosch, 435 F.3d at 119–20) (cleaned up).

Judicial documents are documents that are “relevant to the performance of the judicial

function and used in the judicial process.” Lugosch, 435 F.3d at 119 (quoting United States v.

Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995)). This typically includes “documents used by parties

moving for, or opposing, summary judgment,” which, as a result, “should not [be placed under]

seal absent the most compelling reasons.” Id. at 121 (quoting Joy v. North, 692 F.2d 8800, 893

(2d Cir. 1982)). In other words, “there is a presumption of access to documents submitted on a

summary judgment motion.” Id. “[P]arties opposing disclosure [of judicial documents] must

make a particular and specific demonstration of fact showing that disclosure would result in an

injury sufficiently serious to warrant protection; broad allegations of harm unsubstantiated by

specific examples or articulated reasoning fail to satisfy the test.” Coventry Cap. US LLC v. EEA

Life Settlements, Inc., No. 17-CV-07417, 2017 WL 5125544, at *3 (S.D.N.Y. Nov. 2, 2017)

(quoting In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009)). Moreover, “the older

the information is, the less appropriate it is to seal that information, particularly when the party

does not explain with specificity why, despite the passage of time, the information should still be

sealed.” In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 2023 WL 196134, at

*4.

DISCUSSION

To begin, neither party has provided the Court with any argument as to why these

documents should be under seal apart from noting that some of the documents had previously been

designated “Attorney’s Eyes Only” in connection with discovery in this case. (See Mots. to File

Documents Under Seal, Dkts. 92–94.) That said, the documents in question are summary

judgment documents. (See id.) Consequently, they are judicial documents and a strong

presumption in favor of public access attaches. Lugosch, 435 F.3d at 121; see also Brown v.

Maxwell, 929 F.3d 41, 49 (2d Cir. 2019) (explaining that documents submitted to courts “in

connection with summary judgment enjoy[] a strong presumption of public access”).

To overcome the presumption of public access, the “party opposing disclosure [] must

make a particular and specific demonstration of fact showing that disclosure would result in an

injury sufficiently serious to warrant protection[.]” Coventry Cap. US LLC, 2017 WL 5125544,

at *3 (quoting In re Parmalat Sec. Litig., 258 F.R.D. at 244). Neither party here has done so or

even attempted to do so. (See Mots. to File Documents Under Seal, Dkts. 92–94.) Instead, the

parties have merely indicated that some (not all) of the documents that they now seek to file under

seal were previously designated “Attorney’s Eyes Only.” (See Mots. to File Documents Under

Seal, Dkts. 92–94.) But “[i]t is not enough for parties to assert that a confidentiality agreement or

protective order governing discovery allows for documents or information to be filed under seal.”

Berlin v. JetBlue Airways, No. 28-CV-1545, 2020 WL 7706488, at *1 (E.D.N.Y. Dec. 29, 2020).

“[T]he decision to allow documents to be filed under seal in connection with motions and court

proceedings is a wholly separate inquiry governed by a different standard than whether to maintain

documents disclosed in discovery in confidence.” Johnson v. Fed. Bureau of Prisons, No. 16-CV-

3919, 2017 WL 5197143, at *3 (E.D.N.Y. Nov. 9, 2017).

As such, the fact that some of the documents at issue were previously designated as

“Confidential Attorney’s Eyes Only” by the parties during discovery does not overcome the

presumption of public access. Nor have the parties pointed to any other compelling reasons that

explain why the Court should place the documents at issue under seal or require their redaction.

And notably, none of the information at issue is current; much of it is almost seven years old,

dating back to 2017 or before. (See, e.g., Dkt. 93-1 at 12 (describing a “Spring 2016 Catalog”);

id. at 13 (listing a product ship date in early 2016); Dkt. 93-2 ¶¶ 88–90, 92–93, 97 (referencing a

product rollout that took place in early 2016); Dkt. 93-6 (containing invoices from early 2016);

Dkt. 93-7 (referencing the number of units sold between 2017 and 2021); Dkt. 93-8 (referencing

the number of units sold between 2016 and 2021).) The parties have not explained why this type

of outdated information should be under seal. See In re Parmalat Secs. Litig., 258 F.R.D. at 250

(refusing to seal “seven-year-old information” concerning a party’s “marketing strategy” where

that party did not explain how it would be harmed by disclosure); see also In re Keurig Green

Mountain Single-Serve Coffee Antitrust Litig., 2023 WL 196134, at *4 (“[T]he older the

information is, the less appropriate it is to seal that information, particularly when the party does

not explain with specificity why, despite the passage of time, the information should still be

sealed.”).

Accordingly, the Court denies the parties’ motions to file under seal in their entirety.

CONCLUSION

For the reasons stated above, the parties’ motions to file under seal (Dkts. 92, 93, and 94)

are denied. The parties are ordered to file all outstanding summary judgment documents on the

public docket by June 19, 2024. Moreover, the parties are ordered to provide the Court with one

courtesy hard copy of all summary judgment briefing, including related exhibits, by June 21, 2024.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: June 12, 2024

Brooklyn, New York