The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: DAVOL, INC./C.R. BARD,
Case No. 2:18-md-2846
INC., POLYPROPYLENE HERNIA
MESH PRODUCTS LIABILITY
LITIGATION
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
This document relates to:
Stinson v. Davol, Inc., et al.,
Case No. 2:18-cv-01022
ORDER
This matter is before the Court on Defendants’ Motion to Redact Defendants’ Financial
Information in Plaintiff’s Response in Opposition to Defendants’ Motion for Summary Judgment
and Exhibit P1.0189 Thereto. (ECF No. 127). For the reasons that follow, Defendants’ Motion is
DENIED.
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 has a “heavy” burden of overcoming a “‘strong presumption in favor
of openness’ as to court records.” Id. at 305 (quoting Brown & Williamson, 710 F.2d at 1179).
“Only the most compelling reasons can justify non-disclosure of judicial records.” Id. (quoting In
re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). “[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.” Id. at
305–06 (quotation 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).
The parties have agreed on several redactions to Plaintiff’s filings. However, Defendants
ask this Court to order Plaintiff to redact “a single dollar figure originating from a speech given at
a non-public company event in 2006.” (ECF No. 147.) Defendants point out that the figure was
redacted in the first bellwether trial, Johns v. C.R. Bard, Inc., et al., Case No. 18-cv-1509. (ECF
No. 127 at PageID # 5537.) Defendants claim that their request for redaction is “narrowly tailored”
and that “the information is not necessary for the public to understand the events giving rise to the
dispute or the arguments made in Plaintiff’s Opposition [to Defendants’ Motion for Summary
Judgment].” (Id. at PageID #5540.) Defendants also claim that the requested redactions are in
line with how the information was treated in Johns, “and there is no reason to depart from that
approach now.” (Id.)
In response, Plaintiff argues that Defendants do not articulate at all how they would be
injured by “the disclosure of a nearly two-decade old dollar figure given in a speech to hundreds
of sales representatives.” (ECF No. 146 at PageID #5969.) Plaintiff also contends that just because
the dollar figure was redacted in Johns does not mean it needs to be redacted in this case. (Id.) In
distinguishing this case from Johns, Plaintiff points to the fact that the quoted language specifically
references the PerFix Plug, the device at issue in this case (which was not at issue in Johns). (Id.
at PageID #5972.) Plaintiff seeks to use the dollar figure, and the speech of which it was a part,
as evidence of malice in any punitive damages phase of the trial. (Id.)
Defendants point to several cases from this District in support of their argument that their
revenue and sales data must be kept confidential. However, these cases can be distinguished. In
London Computer Systems v. Zillow, the court held that companies have a compelling interest in
protecting information such as revenue and sales data from their competitors, especially where
disclosure would cause a competitive disadvantage. London Computer Sys., Inc. v. Zillow, Inc.,
No. 1:18-CV-696, 2019 WL 4110516, at *4 (S.D. Ohio Aug. 29, 2019). However, in this case,
Defendants have not claimed they would suffer any adverse consequences at all, let alone a
“competitive disadvantage.” Defendants also cite Reliant Capital Solutions v. Ram Payment,
which also focuses on when disclosure “would give a significant advantage to competitors of the
parties in this action.” Reliant Cap. Sols., LLC v. Ram Payment, LLC, No. 2:22-CV-03047, 2022
WL 16569215, at *2 (S.D. Ohio Nov. 1, 2022) (internal citations omitted).
In Language Access Network v. CulturaLink, the court reasoned that a seal must be
narrowly tailored to serve the reason for sealing, “which requires the moving party to analyze in
detail . . . the propriety of secrecy, providing reasons and legal citations. . . . And in delineating
the injury to be prevented, specificity is essential.” Language Access Network v. CulturaLink, No.
2:19-CV-194, 2021 WL 5298048, at *1 (S.D. Ohio Nov. 15, 2021) (internal citations omitted).
Defendants do not point out with any specificity an injury to be prevented. Additionally, their
reasons for sealing seem to be that the information “is not necessary for the public to understand
the events giving rise to the dispute,” and that the information was redacted in Johns. (ECF No.
127 at PageID #5540.) Defendants vaguely point to their “interests in keeping [their] financial
information confidential” (ECF No. 147 at PageID #6019), but the Court’s obligation to keep its
records open for public inspection “is not conditioned upon the desires of the parties to the case.”
CulturaLink, 2021 WL 5298048 at *1.
Defendants cite to Joseph v. Joseph, but in that case the court discussed the privacy
interests related to the personal assets and net worth of individual defendants, not that of a large
corporation. Joseph v. Joseph, No. 1:16-CV-465, 2018 WL 11432993, at *2 (S.D. Ohio Sept. 26,
2018). Finally, CNG Financial Corp. v. Brichler is also distinguishable from this case. In
Brichler, the court reasoned that the case was a “business-to-business dispute,” and there were “no
allegations that either of the[] companies have harmed the public,” which is not the case here.
CNG Fin. Corp. v. Brichler, No. 1:21-CV-00460, 2022 WL 683416, at *4 (S.D. Ohio Mar. 8,
2022).
Defendants have not shown that disclosure will result in a “clearly defined and serious
injury.” As the Court has previously explained in denying another motion to seal filed by
Defendants in this MDL:
Defendants argue that the Exhibit is irrelevant to the resolution of Defendants’
Motion. As this Court has previously explained on more than one occasion, “claims
that a document is ‘irrelevant’ or ‘highly prejudicial’ are insufficient” to establish
that a document should be sealed. (Case No. 18-cv-1509, ECF No. 116 at PageID
#8177; Case No. 18-cv-1509, ECF No. 141 at PageID #9092.) Those same
arguments fail again here. Because Defendants have not demonstrated a clearly
defined and serious injury from the disclosure of the Exhibit, their Motion is
DENIED.
(Case No. 18-cv-1320, ECF No. 341.) The same reasoning applies here. Defendants’ Motion to
Redact (ECF No. 127) is DENIED.
IT IS SO ORDERED.
12/7/2022 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE