Language Access Network v. CulturaLink

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANGUAGE ACCESS NETWORK

Case No. 2:19-cv-194

Plaintiff, Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

v.

CULTURALINK, et al.,

Defendants.

OPINION & ORDER

This matter is before the Court on three motions to seal; one filed by Plaintiff (Doc. 53),

one was filed by Defendant (Doc. 65), and one was filed jointly (Doc. 72). The Motions are

unopposed. For the following reasons, they are GRANTED IN PART AND DENIED IN PART.

I. STANDARD

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). If there is a compelling reason, “the party must then show why those reasons outweigh

the public interest in access to those records.” Kondash v. Kia Motors Am., Inc., 767 F. App’x

635, 637 (6th Cir. 2019) (citing Shane Grp., 825 F.3d at 305). The Court “has an obligation to

keep its records open for public inspection [and] that obligation is not conditioned upon the desires

of the parties to the case.” Harrison v. Proctor & Gamble Co., No. 1:15-CV-514, 2017 WL

11454396, at *1–2 (S.D. Ohio Aug. 11, 2017) (citing Shane Grp., 825 F.3d at 307.). The court

“that chooses to seal court records must set forth specific findings and conclusions ‘which justify

nondisclosure to the public.’” Shane Grp., 825 F.3d at 306 (citing Brown & Williamson, 710 F.2d

at 1176).

II. DISCUSSION

Plaintiff’s Motion to File Document Under Seal (Doc. 53)

Plaintiff moves to file under seal Exhibit A to Andy Panos’s affidavit, which is Exhibit BB

to the motion for summary judgment (Doc. 50). (Doc. 53 at 1). This motion was filed on

September 27, 2021, and is unopposed. Exhibit A “is a single page from Plaintiff’s Sales Force

software which tracks work activity for various customers by each employee, which in this case is

Defendant Pastore.” (Id. at 2). The exhibit shows a list of Plaintiff’s customers that is not public

knowledge. (Id.). “Plaintiff introduces this document to prove that Defendant Pastore had dealings

with one of its customers, Catholic Health Hospitals, while he was employed at [Defendant

Language Access Network].” (Id.). Plaintiff argues that sealing this exhibit is necessary because

it is a confidential customer list. (Id. at 3). Plaintiff states that it “takes affirmative steps to protect

the confidentiality of its customer lists[,]” including using password protected software that is only

available to authorized employees, having employees sign confidentiality agreements, training

employees concerning confidential or trade secret matters, and designating this list as

“Confidential, Attorney’s Eyes Only” during discovery. (Id. at 3–4).

The need to protect trade secrets can overcome the presumption of access. Shane Grp.,

825 F.3d at 308. Customer lists can be trade secrets. SKF USA Inc v. Zarwasch-Weiss, No. 1:10-

CV-1548, 2011 WL 13362617, at *16 (N.D. Ohio Feb. 3, 2011) (citing Avery Dennison Corp. v.

Kitsonas, 118 F. Supp. 2d 848 (S.D. Ohio 2000)). See also ATI Indus. Automation, Inc. v. Applied

Robotics, Inc., 801 F. Supp. 2d 419, 428 (M.D.N.C. 2011) (granting seal of customer lists because

they are trade secrets); Mezzadri v. Med. Depot, Inc., No. 14-CV-2330-AJB-DHB, 2015 WL

12564223, at *2 (S.D. Cal. Dec. 18, 2015) (same). The Court finds that Plaintiff has a compelling

reason to seal the customer list in Exhibit A, especially given the efforts to keep the list

confidential. Yet, the public has a right to know the information pertaining to Defendant Pastore’s

involvement with Catholic Health Hospitals because it aids in understanding the dispute. See

Kondash, 767 F. App’x at 637 (citing Shane Grp., 825 F.3d at 305). Thus, the sealing of the entire

document is not narrowly tailored. Accordingly, Plaintiff is permitted to redact information in the

customer list that does not pertain to Defendant Pastore’s involvement with Catholic Health

Hospitals or CHI matters.

The seal of Exhibit A is GRANTED IN PART, DENIED IN PART. Plaintiff is

ORDERED to file a redacted version of Exhibit A consistent with this Opinion and Order by

November 15, 2021.

Defendant’s Motion to File Document Under Seal (Doc 65)

Defendant requests the Court grant Plaintiff leave to file exhibits in support of Plaintiff’s

Memorandum Contra Defendant’s Motion for Summary Judgment (Doc. 59) under seal. (Doc. 65

at 1). This motion was filed on October 18, 2021 and is unopposed. Defendant represents that

public disclosure of this confidential financial information would put them at a disadvantage with

competitors. (See Doc. 65).

This Court has recognized that companies have a compelling interest in protecting

confidential information when disclosure on the public docket would “give a significant advantage

to competitors of the parties in this action.” Total Quality Logistics, LLC v. Riffe, No. 1:19-CV-

23, 2020 WL 5849408, at *2 (S.D. Ohio Sept. 30, 2020); see also Lucid Health, Inc. v. Premier

Imaging Ventures, LLC, No. 2:20-CV-1055, 2021 WL 128956, at *2 (S.D. Ohio Jan. 14, 2021).

Defendants have met the burden to justify sealing these documents, which contain pricing

projections, profit margins, internal expenses, and investment amounts. Further, Defendants

proposed redactions are narrowly tailored, removing only the dollar amount or the few sentences

discussing financial conditions or projections. Finally, the public has a lesser interest in viewing

this confidential financial because it is not needed to understand the events giving rise to the

dispute or the arguments in the case. Ewalt v. GateHouse Media Ohio Holding II, Inc., No. 2:19-

CV-4262, 2020 WL 6110569, at *3 (S.D. Ohio Oct. 16, 2020).

Accordingly, the Court GRANTS Plaintiff leave to file under seal exhibits KK (ex. 166),

RR (ex. 148), and UU (79873) to Plaintiff’s Memorandum Contra Defendant’s Motion for

Summary Judgment.

Joint Motion to File Documents Seal. (Doc. 72).

The parties jointly move to file under seal various documents containing confidential

financial information. (Doc 72). Again, Defendant represents that public disclosure of

confidential financial information would put them at a disadvantage with competitors. (Doc. 72

at 4–5). The Court agrees with the parties on some, but not all, of the documents proposed to be

sealed.

As previously stated, protecting financial information that would put a party at a

competitive disadvantage is a compelling reason to seal. See Total Quality Logistics, LLC, 2020

WL 5849408, at *2; Lucid Health, Inc, 2021 WL 128956, at *2. Because there is a compelling

reason that outweighs the public interest and the proposed redactions are narrowly tailored, the

Court GRANTS the Joint Motion to Seal for the following documents:

• Page 4 of Defendants’ Motion for Summary Judgment (Doc. 52, PageID 787);

• Pages 3-5 of Plaintiff’s Memorandum Contra Defendants’ Motion for Summary

Judgment (Doc. 61-1, PageID 1514-16);

• Pages 15-17, 19 of Exhibit A to Defendants’ Motion for Summary Judgment (Doc.

52-1, PageID 834-36, 838); and

• Pages 10-11, 31-32, 38 of Exhibit B to Defendants’ Motion for Summary Judgment

(Doc. 52-2, PageID 882-83, 903-04, 910)

Upon review of the other documents, exhibit 235, exhibit 240, and the Gordon deposition

transcript, the Court finds that the proposed seals do not overcome the high bar set by the Sixth

Circuit in Shane Group, Inc., 825 F.3d at 305. For exhibits 235 and 240 to both Exhibit C and D

to Defendants’ Motion for Summary Judgment the request to seal is not narrowly tailored. After

reviewing these documents, the Court concludes that there is no compelling reason to seal much

of the information contained in the eighty-nine total pages. So, narrow redactions are more

appropriate. Thus, the seal of Exhibits 235 and 240 is DENIED without prejudice. Parties are

ORDERED to file more narrowly tailored redactions to Exhibits 235 and 240 along with a motion

in support of those redactions for the Court’s consideration by November 15, 2021.

As for the proposed seal of Richard Gordon’s deposition transcript, pages 73–74 and 177–

81, the Court finds the motion deficient because it is unclear what the parties propose to redact—

a redacted version was not provided by the parties and could not be found on the docket. Without

proposed redactions, the Court cannot perform its role to determine if there is a compelling reason

supporting seal or if it is narrowly tailored. Thus, the motion to seal Richard Gordon’s deposition

transcript (pages 73–74 and 177–81) is DENIED without prejudice. The parties are ORDERED

to file proposed redactions to this transcript along with a motion in support of those redactions for

the Court’s consideration by November 15, 2021.

III. CONCLUSION

For the above reasons, Plaintiff’s Motion to File Document Under Seal (Doc. 53),

Defendant’s Motion to File Document Under Seal (Doc 65) and parties’ Joint Motion to File

Documents Seal (Doc. 72) are GRANTED IN PART AND DENIED IN PART. Consistent with

this opinion and order, Plaintiff and Defendant are ORDERED to file revised proposed redactions

along with supporting motions by November 15, 2021.

IT IS SO ORDERED.

Date: November 8, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE