The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NFOCUS CONSULTING INC.,
Plaintiff,
v. Civil Action 2:20-cv-5106
Judge Michael H. Watson
Magistrate Judge Jolson
BENJI UHL, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Valpak Direct Marketing Systems Inc.’s
(“Valpak”) Motion to Seal Documents Filed in Support of Opposition to Motion for Preliminary
Injunction. (Doc. 45). For the reasons that follow, Valpak’s Motion is GRANTED in part and
DENIED in part.
I. BACKGROUND
Valpak seeks to seal certain exhibits in support of its Response in Opposition to Plaintiff’s
Motion for a Preliminary Injunction, including specific deposition transcripts and interrogatory
responses. (Doc. 45). The Court has confirmed that Plaintiff does not object to Valpak’s request.
This matter is now ripe for resolution.
II. STANDARD
A district court may enter a protective order during discovery on a mere showing of “good
cause.” Fed. R. Civ. P. 26(c)(1). “[V]ery different considerations apply” when a party seeks to
seal documents “[a]t the adjudication stage,” which applies “when the parties place material in the
court record.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.
2016) (quotation omitted). “Unlike information merely exchanged between the parties, ‘[t]he
public has a strong interest in obtaining the information contained in the court record.’” Id.
(quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)).
For this reason, the moving party owns a “heavy” burden of overcoming a “‘strong presumption
in favor of openness’ as to court records.” Shane Grp., Inc., 825 F.3d at 305 (quoting Brown &
Williamson, 710 F.2d at 1179). “[T]he seal itself must be narrowly tailored to serve that reason,”
which requires the moving party to “analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations.” Shane Grp., Inc., 825 F.3d at 305–06 (quotation
marks and citation omitted). Similarly, the court “that chooses to seal court records must set forth
specific findings and conclusions which justify nondisclosure.” Id. at 306 (quotation marks and
citation omitted).
III. DISCUSSION
Valpak seeks to seal certain excerpts from its corporate deposition that contain both “the
witnesses personal cell phone number” (Doc. 45 at 2), as well as “the identities of companies that
responded to Valpak’s request for proposals [RFPs] in 2017 and information they put in their
proposals.” (Id). Valpak also requests to seal portions of Plaintiff’s corporate deposition
transcripts that are marked as “Attorneys’ Eyes Only” or “Confidential” under the Protective
Order. (Id. at 2–3). Finally, Valpak requests the sealing of certain excerpts of Plaintiff’s
Interrogatory Responses, that contain both a complete list of Plaintiff’s former clients as well as
information regarding the security features placed on Plaintiff’s data platforms. (Id. at 3). These
excerpts, too, were marked by Plaintiff as “Attorneys’ Eyes Only” or “Confidential” under the
Protective Order. (Id.). Each of these requests lends itself to its own analysis, so the Court
discusses them accordingly.
A. Cell Phone Number
Valpak requests that the Court redact an excerpt of its corporate deposition transcript that
includes “the witnesses personal cell phone number.” (Id. at 2). Valpak argues that, “[d]istrict
courts regularly find good cause exists for allowing redactions in court filings in order to protect
personal identifying information, including phone numbers.” (Doc. 43 at 2). The Court agrees.
Redacting this personal phone number, rather than sealing ‘“broad swaths’ of the record” is
appropriate. Doe #1 by & through Lee v. Sevier Cty., Tenn., No. 3:17-CV-41, 2017 WL 888395,
at *2 (E.D. Tenn. Mar. 1, 2017) (quoting Shane Grp., 825 F.3d at 307) (denying motion to seal
and directing defendants to file redacted versions of minors’ records). This approach is narrowly
tailored and balances Valpak’s concern of protecting the witness with the public’s interest in
accessing the record in this case. See Shane Grp., 825 F.3d at 305. Accordingly, Valpak shall
redact the personal cell phone number and file the redacted version of the deposition transcript on
the public docket within fourteen (14) days of the date of this Opinion and Order.
B. Identities of Companies that Responded to Defendant’s 2017 RFP
Next, Valpak asks the Court to seal an excerpt of its corporate deposition transcript that
includes the identities of, and information relating to, companies that responded to its 2017 RFP.
(Doc. 43 at 2). Valpak argues that such a public disclosure “may put the third party at a competitive
disadvantage in the market place.” (Doc. 45 at 2). Here, the Court disagrees. While, “the privacy
interests of innocent third parties should weigh heavily in a court’s balancing equation,” Shane
Grp., Inc., 825 F.3d at 305–06 (quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir.
1995)), it is unclear on the face of Valpak’s Motion how the information in the 2017 RFP puts the
privacy interests of these third parties at risk. Valpak has not provided sufficient “reasons and
legal citation” to overcome the Court’s “strong presumption in favor of openness.” Shane Grp.,
Inc., 825 F.3d at 305–06 (quotation marks and citation omitted).
C. Deposition Transcripts marked “Attorneys’ Eyes Only”
Valpak further requests the sealing of certain excerpts of the transcript from Plaintiff’s
corporate deposition that have been marked as “Attorneys’ Eyes Only” or “Confidential” under
the Protective Order. (Id. at 2-3). Again, the Court finds that Valpak has failed to meet the burden
imposed by the Sixth Circuit. Simply marking a document, or excerpts of a document, as
“Attorney’s Eyes Only” or as “Confidential” is not nearly narrowly tailored enough to overcome
the substantial burden in favor of “openness.” Shane Grp., Inc., 825 F.3d at 305.
Valpak’s argument that in making this request they are simply complying with the
Protective Order (Doc. 32) also falls flat. Sixth Circuit precedent dictates that such an argument
“is plainly insufficient for a court filing to be sealed.” Lipman v. Budish, 974 F.3d 726 at 754
(denying defendant’s motion to seal where “defendant’s only argument for sealing Plaintiff’s brief
is that it contains information derived from a deposition that Defendant designated as confidential
under a protective order”).
D. List of Former Clients and Data Security Features
Finally, Valpak requests the sealing of certain excerpts of Plaintiff’s Interrogatory
Responses, that contain both a complete list of Plaintiff’s former clients as well as information
regarding the security features placed on Plaintiff’s data platforms. (Id. at 3). These excerpts, too,
were marked by Plaintiff as “Attorneys’ Eyes Only” or “Confidential” under the Protective Order
(Id.). Valpak again contends that in making this request they are simply complying with the
Protective Order (Doc. 32). As discussed, this is neither specific enough a reason, nor sufficiently
narrowly tailored to serve any privacy interest. See Lipman v. Budish, 974 F.3d 726 at 754.
Valpak asserts two reasons why Plaintiff designated these responses as confidential. First,
that “disclosing [the former client lists] to [Defendant], its purported competitor, will put [Plaintiff]
at a competitive disadvantage in the marketplace.” (See Doc. 45 at 3). Second, that sealing these
excerpts prevents “users of the platform [from] us[ing] the interrogatory responses to work around
or undermine the security features.” (Doc. 45 at 3). Again, Valpak’s assertions, albeit as an
attempt to understand Plaintiff’s reasoning, are neither specific enough, nor sufficiently narrowly
tailored to serve any privacy interest. To overcome its burden 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.” Shane Grp., 825 F.3d at 307-8 (citation and quotations
omitted). Neither of these alleged injuries are clearly nor specifically defined.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion (Doc. 45) is GRANTED in part and
DENIED in part. Consistent with this Opinion and Order, Defendant is DIRECTED to file the
redacted version of the deposition transcript on the public docket within fourteen (14) days of the
date of this Opinion and Order. If either party wishes to file a more narrowly tailored motion to
seal, setting forth basis consistent with this Opinion and Order, they must do so within fourteen
(14) days of the date of this Opinion and Order.
IT IS SO ORDERED.
Date: November 19, 2020 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE