Drerup v. NetJets Aviation, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHARI S. DRERUP,

Plaintiff,

v. Civil Action 2:19-cv-3499

Judge Sarah D. Morrison

Magistrate Judge Jolson

NETJETS AVIATION, INC., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant NetJets Aviation, Inc.’s Motion to File

Documents Under Seal. (Doc. 44). Plaintiff represents that the Motion is unopposed. For the

following reasons, the Motion is 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

Defendant moves to “file under seal Exhibits A and B to the Affidavit of Christopher

Eastman . . . in support of its Motion for Summary Judgment[.]” (Doc. 44 at 1). Both exhibits are

flight training records; one is Plaintiff’s record, and one is the record for Charles Felton, a

comparator. (Id. at 2). Defendant says that these records contain “confidential, proprietary, and

trade secret information” related to the training program established by Defendant and a third-

party training company. (Id.). Specifically, Defendant asserts that the selection, sequencing, and

timing of the program’s training maneuvers are proprietary. (Id.). They further state that because

Mr. Felton is a “third party whose conduct did not give rise to this matter,” his record should be

protected in the interest of privacy. (Id.).

First, the Court does not dispute that the selection, sequencing, and timing of training

maneuvers constitute proprietary or trade secret information. Defendant and the third-party

company have clearly expended resources to design an effective and efficient training program,

and competitors could benefit from having access to details about that program. Additionally, the

public has a lesser interest in knowing the precise details of the training program. Defendant has

therefore successfully demonstrated a compelling interest for sealing.

Yet, the seal must be narrowly tailored to serve this compelling interest. Redactions, as

opposed to a blanket sealing, will accomplish the protection of trade secret information while also

providing the public with the information necessary to understand the court record and Defendant’s

Motion for Summary Judgment. Namely, the scoring Defendant has put at issue in its Motion for

Summary Judgment should be disclosed to the public. (See Doc. 45 at 4–6, 13). Defendants can

provide the records’ unredacted training scores while redacting the names of training maneuvers.

This will disguise the selection, sequencing, and timing of the training maneuvers and protect the

trade secret information. These redactions may be made with one exception: the names of the

maneuvers which Defendant identified as significant to its argument about Plaintiff’s proficiency,

“the IFR Precision Approach ILS Manual One-Engine Inoperative maneuver, the Non-Precision

Approach One Engine Inoperative maneuver, the Circling Approach and Landing maneuver, and

the Missed Approach with Engine Failure maneuver[,]” must remain unredacted. (Id. at 5).

Finally, the Court finds the assertion that Mr. Felton’s record should be completely sealed

to protect his privacy unpersuasive. True, the privacy interests of innocent third parties should be

“take[n] seriously[.]” Shane Grp., 825 F.3d at 308. But it is unclear to what extent, if any, Mr.

Felton’s training record discloses personal information beyond what Defendant itself has already

disclosed in its motions—that is, Mr. Felton’s name and his scores throughout training. (See Docs.

44, 45). Defendant may redact additional personal identifying information, like Mr. Felton’s

middle name, client identification number, or pilot certificate number. Otherwise, Mr. Felton’s

scoring, like Plaintiff’s, should remain unredacted and available to the public.

III. CONCLUSION

For the foregoing reasons, Defendant’s Motion to File Documents Under Seal (Doc. 44) is

GRANTED IN PART AND DENIED IN PART. Defendant is ORDERED to file redacted

exhibits consistent with this Opinion and Order within seven (7) days.

IT IS SO ORDERED.

Date: December 2, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE