Ewalt v. Gatehouse Media Ohio Holdings II, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN EWALT, et al.,

Case No. 2:19-cv-4262

Plaintiffs, Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

v.

GATEHOUSE MEDIA OHIO

HOLDING II, INC., d/b/a THE

COLUMBUS DISPATCH, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion to Seal (Doc. 82). Defendants filed a

response in support of sealing Plaintiffs’ Memorandum in Opposition to Defendants GateHouse

Media, LLC’s and Gannett Co., Inc.’s Motion to Dismiss and one of its exhibits, Exhibit C. (Doc.

92). For the reasons that follow, the Motion to Seal (Doc. 82) is DENIED in part. Specifically,

the Motion is denied with respect to the request to seal the information contained in Plaintiffs’

Memorandum in Opposition to Defendants GateHouse Media, LLC’s and Gannett Co., Inc.’s

Motion to Dismiss. Defendants are GRANTED 14 days in which to submit a supplemental brief

accompanied by affidavits or declarations addressing whether specific portions of Exhibit C

contain trade secrets.

I. BACKGROUND

This case concerns Defendants’ alleged deceptive trade practices that damaged subscribers

to the Columbus Dispatch. According to Plaintiffs, “the GateHouse Defendants advertise and offer

term subscriptions to The Dispatch … for specific prices, and their customers enter into these

agreements … reasonably expecting that the GateHouse Defendants will provide The Dispatch for

the number of weeks stated in those Subscription Agreements.” (Doc. 42, ¶ 5). Instead, Plaintiffs

allege, “the GateHouse Defendants reduce their customers’ term subscriptions by sending their

customers unsolicited ‘premium editions’ and decreasing the length of those subscriptions based

on the value the GateHouse Defendants arbitrarily assign to these premium editions.” (Id., ¶ 7).

After Defendants Gannett Co., Inc. and GateHouse Media, LLC filed a Motion to Dismiss,

(Doc. 66), Plaintiffs filed the instant Motion pursuant to the parties’ Protective Order, (see Doc.

37, ¶ 8 (requiring that the parties file a motion to seal when using the opposing party’s Confidential

information in the body of any filing and giving the opposing party 14 days to file a response

supporting the motion to seal)). In their Motion, Plaintiffs requested that they be permitted to file

an unredacted version of their Memorandum in Opposition (the “Opposition”) to that Motion to

Dismiss and its accompanying exhibits. (See Doc. 82 at 3 (asserting that “they should be entitled

to file unredacted versions of the Memorandum in Opposition and Exhibit C as part of the public

record”)). Defendants filed a response, arguing that Plaintiffs should be permitted to file only a

redacted version of the same on the public docket. (See generally Doc. 91). The Motion is fully

briefed and ripe for resolution.

II. DISCUSSION

The parties’ dispute concerns a series of Defendants’ internal emails and Plaintiffs’ use of

those emails in their Opposition. Defendants contend that portions of Plaintiffs’ Opposition and

Exhibit C containing those emails should be redacted because they contain trade secrets. (See

generally Doc. 91). Plaintiffs disagree. (See generally Doc. 95).

Courts distinguish between limiting public disclosure of information during discovery

versus the adjudicative stage of a case. See Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,

825 F.3d 299, 305 (6th Cir. 2016). “The line between these two stages, discovery and adjudicative,

is crossed when the parties place material in the court record.” Id. (citing Baxter Int’l, Inc. v.

Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002)). “Unlike information merely exchanged between

the parties, ‘[t]he public has a strong interest in obtaining the information contained in the court

record.’” Shane Grp., 825 F.3d at 305 (quoting Brown & Williamson Tobacco Corp. v. F.T.C.,

710 F.2d 1165, 1180 (6th Cir. 1983)). For this reason, the moving party has a “heavy” burden of

overcoming a “‘strong presumption in favor of openness’ as to court records.” Shane Grp., 825

F.3d at 305 (quoting Brown & Williamson, 710 F.2d at 1179); see also Shane Grp., 825 F.3d at

305 (“Only the most compelling reasons can justify non-disclosure of judicial records.” (quotation

omitted)).

“[I]n civil litigation, only trade secrets, information covered by a recognized privilege

(such as the attorney-client privilege), and information required by statute to be maintained in

confidence (such as the name of a minor victim of a sexual assault), is typically enough to

overcome the presumption of access.” Shane Grp., 825 F.3d at 308 (citation and quotations

omitted). “[T]he seal itself must be narrowly tailored to serve” the reason for sealing, which

requires the moving party to “analyze in detail, document by document, the propriety of secrecy,

providing reasons and legal citations.” Id. at 305–06 (quotation omitted). Ultimately, the movant

must show that “disclosure will work a clearly defined and serious injury … And in delineating

the injury to be prevented, specificity is essential.” Id. at 307–08 (internal citations and quotations

omitted). Similarly, the court “that chooses to seal court records must set forth specific findings

and conclusions which justify nondisclosure.” Id. at 306 (quotation omitted).

A. Plaintiffs’ Opposition

In their Opposition, Plaintiffs quote a number of emails from Defendants’ employees,

including employees at the Columbus Dispatch. (See Doc. 83 at 26–27). Generally, they discuss

the number of premium editions to be issued, the price of those premium editions, Dispatch

subscribers’ frustration with the premium-edition policy, and Dispatch employees’ opinions

regarding the same. (See id.).

Defendants emphasize that the information in those emails constitutes trade secrets and

that Plaintiffs’ quotation of them in their Opposition should therefore be redacted. (See Doc. 92

at 2–6). Under Ohio law, courts consider six factors in determining whether information

constitutes a trade secret:

(1) the extent to which the information is known outside the business; (2) the extent

to which it is known to those inside the business, i.e., by the employees; (3) the

precautions taken by the holder of the trade secret to guard the secrecy of the

information; (4) the savings effected and the value to the holder in having the

information as against competitors; (5) the amount of effort or money expended in

obtaining and developing the information; and (6) the amount of time and expense

it would take for others to acquire and duplicate the information.

Handel’s Enter., Inc. v. Schulenburg, 765 F. App’x 117, 122 (6th Cir. 2019) (citing Heartland

Home Fin., Inc. v. Allied Home Mortg. Capital Corp., 258 F. App’x 860, 861–62 (6th Cir. 2008)).

Defendants generally assert that the information in question is “proprietary and

competitively sensitive business information” and that they “will be harmed if their competitors

have access to the Confidential Information and are able to gain insight into matters such as

Defendants’ pricing strategies, sales trends, revenues, customer preferences, and overall business

condition.” (Doc. 92 at 3).

This argument suffers from two flaws. One, Defendants have not demonstrated that the

specific information they seek to redact from Plaintiffs’ Opposition is, in fact, a trade secret. For

example, Defendants assert that they take “great care to maintain the confidentiality of this

information,” citing a prior declaration from GateHouse Media Ohio Holdings II, Inc.’s

(“GateHouse Ohio”) Senior Vice President of Finance and Treasurer. In that declaration, he attests

that Defendant GateHouse Ohio’s employees “must not disclose include [sic] confidential

financial data, or other non-public proprietary company information, including, but not limited to,

corporate strategies, trade secrets, specifications, pricing information, customer lists, personal

customer information, and research data.” (Doc. 59-1, ¶ 4).1 But beyond this general assertion,

the declaration does not meaningfully address:

(1) the extent to which the information is known outside the business; (2) the extent

to which it is known to those inside the business, i.e., by the employees; (3) the

precautions taken by the holder of the trade secret to guard the secrecy of the

information; (4) the savings effected and the value to the holder in having the

information as against competitors; (5) the amount of effort or money expended in

obtaining and developing the information; and (6) the amount of time and expense

it would take for others to acquire and duplicate the information.

Handel’s Enter., Inc., 765 F. App’x at 122 (citation omitted). And without that information, the

Court cannot justify a finding that the information at issue constitutes a trade secret that should be

redacted.

Two, Defendants are required to show that “disclosure will work a clearly defined and

serious injury … And in delineating the injury to be prevented, specificity is essential.” Shane

Grp., 825 F.3d at 307–08 (internal citations and quotations omitted). General representations of

some potential undefined harm, like those made by Defendants, are insufficient to justify redacting

the information in question. See id.

Ultimately, “[o]nly the most compelling reasons can justify non-disclosure of judicial

records.” Shane Grp., Inc., 825 F.3d at 305. Even “[w]here a party can show a compelling reason

for sealing, the party must [still] show why those reasons outweigh the public interest in access to

those records and that the seal is narrowly tailored to serve that reason.” Kondash v. Kia Motors

1 While the declaration addresses Defendant GateHouse Ohio’s efforts to protect its confidential or proprietary

information, it does not appear to be applicable to the other Defendants in this matter. The Court, nonetheless, assumes

that similar restrictions apply to the employees of the other Defendants.

America, Inc., 767 F. App’x 635, 637 (6th Cir. 2019) (citing Shane Grp., Inc., 825 F.3d at 308).

“[I]n class actions—where by definition some members of the public are also parties to the case—

the standards for denying public access to the record should be applied ... with particular

strictness.” Shane Grp., Inc., 825 F.3d at 305 (citation, internal quotations, and alterations

omitted).

Defendants have not demonstrated that the information contained in Plaintiffs’ Opposition

is a trade secret. And, because this is a purported class action concerning central Ohio’s primary

newspaper, the public has at least a moderate interest in viewing the information in question. See

id. The relevant portion of Plaintiffs’ Opposition contains information regarding the Dispatch’s

subscription policies and Dispatch employees’ opinions regarding the same. On the record before

the Court, there is no reason for the Court to prevent the public from viewing that information.

B. Exhibit C

Less definite, in the Court’s view, is whether portions of Exhibit C contain trade secrets.

In a few limited instances, the emails contained in Exhibit C appear to contain information

regarding Defendants’ internal processes and strategy that potentially could be considered trade

secrets. Because the Court does not have the necessary information to make that determination at

this time, the Court will grant Defendants fourteen days in which to submit a supplemental brief

accompanied by affidavits or declarations addressing whether specific portions of Exhibit C

contain trade secrets under Ohio’s six-factor test, Handel’s Enter., Inc., 765 F. App’x at 122.

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion (Doc. 82) is DENIED in part. Specifically,

the Motion is denied with respect to the request to seal the information contained in Plaintiffs’

Memorandum in Opposition to Defendants GateHouse Media, LLC’s and Gannett Co., Inc.’s

Motion to Dismiss. Defendants are GRANTED 14 days in which to submit a supplemental brief

accompanied by affidavits or declarations addressing whether specific portions of Exhibit C

contain trade secrets. The Court will then issue an Order regarding unsealing the relevant

information.

IT IS SO ORDERED.

Date: September 16, 2020 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE