Kines v. Ford Motor Company

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

DEBRA KINES and STEVEN KINES,

Plaintiffs,

v. No. 1:19-cv-01054-JDB-jay

FORD MOTOR COMPANY,

Defendant.

ORDER DENYING PLAINTIFFS’ MOTION TO DENY DEFENDANT’S REQUEST FOR

REDACTION OF TRIAL TRANSCRIPTS,

GRANTING DEFENDANT’S MOTION TO SEAL PLAINTIFFS’ PROPOSED FINDINGS OF

FACT AND CONCLUSIONS OF LAW, AND

GRANTING DEFENDANT’S MOTION TO SEAL PLAINTIFFS’ RESPONSE TO ITS

MOTION TO SEAL PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS

OF LAW

In this product liability action, the Plaintiffs, Debra Kines and Steven Kines, contend that

Mrs. Kines was injured by certain components of her 2018 Ford Explorer, designed and

manufactured by Defendant, Ford Motor Company (“Ford”), when she attempted to adjust the

third row seat’s position. (Docket Entry (“D.E.”) 140 at PageID 1651-52.) A bench trial was held

on November 2 and 3, 2020. (D.E. 157-58.) Transcripts of the proceedings, one for each day of

the trial, were placed on the Court’s digital docket. (D.E. 160-61.) Pursuant to § 7.5 of the Court’s

ECF Policies and Procedures (the “Policies”), Ford filed, on December 30, 2020, a notice of intent

to request redaction of certain testimony from the trial transcripts (D.E. 164) and, on January 15,

2021, its request for such redaction (D.E. 167). The parties’ proposed findings of fact and

conclusions of law were filed on January 27 and 28, 2021. (D.E. 168-69.) On January 29, 2021,

Plaintiffs moved to deny a portion of the redaction request. (D.E. 171.) In an order entered March

10, 2021, the Court placed the transcripts under seal pending a ruling on the requested redaction.

(D.E. 180.) Also pending before the Court are Ford’s motions to seal Plaintiffs’ proposed findings

of fact and conclusions of law (D.E. 172) and Plaintiffs’ response to D.E. 172 (D.E. 178). As the

briefing is complete as to all three motions, they are ripe for review.

Defendant’s Request for Redaction (D.E. 167) and Plaintiffs’ Motion to Deny Request (D.E. 171).

Before diving into the substantive questions raised in these filings, the Court will address

the procedural issues identified in the parties’ briefs. Ford complains that Plaintiffs’ motion to

deny redaction is “procedurally improper” on the grounds that neither the local rules nor the

Policies permit a motion to deny a redaction request. (D.E. 173 at PageID 2337.) However, court

rules and policies cannot anticipate every type of request for relief and Defendant does not suggest

Plaintiffs have no mechanism by which to challenge its redaction request. This argument is

without merit.

Defendant further points out—correctly—that the Kineses failed to comply with the local

rules’ requirement that motions be accompanied by a certificate of consultation. See LR

7.2(a)(1)(B). While “[f]ailure to attach an accompanying certificate of consultation may be

deemed good grounds for denying the motion,” id., in the interest of judicial economy, the Court

will not deny Plaintiffs’ motion on that basis. That said, Plaintiffs’ counsel has practiced in this

Court long enough to be familiar with the local rules and to know the Court expects them to be

followed. Any future filings violative of the applicable rules may be stricken from the docket.

Plaintiffs submit that Defendant has waived any claim for redaction under the parties’

Agreed Protective Order (the “APO”) entered during the discovery phase of this case. (See D.E.

54.) In its request, Ford stated that the confidential business information for which it sought

redaction “was produced pursuant to the [APO].” (D.E. 167 at PageID 2220.) The Kineses insist

that the APO did not follow information all the way to trial and, even if it did, Defendant waived

its right to seek redaction of trial testimony pursuant to its protections by failing to seek such relief

within the time period set forth in the APO. However, the Court does not read Defendant’s request

as relying on the APO as the basis for redaction of the trial record and, judging from Ford’s

response to the Plaintiffs’ motion, it did not intend to do so. Thus, the parties appear to be in

agreement that the APO does not govern redaction of the trial transcript. Upon review of the APO,

the Court concurs. Accordingly, the Plaintiffs’ waiver argument with respect to the APO fails.

Now, to the merits. Ford’s request for redaction addresses two categories of testimony—

personal identifiers in the form of Mrs. Kines’ date of birth at Page 124 Line 2 of the November

2, 2020, transcript and certain testimony, referenced in the request by page and line number, that

Defendant claims constitutes confidential business information. Plaintiffs have moved to deny

only the second request. In response to the motion, Ford has identified three specific categories

of confidential business information testimony of which it seeks redaction: (1) discussion of

testing methodologies in its System Design Specification (“SDS”) for Seat Systems, entered at

trial as Exhibit Number 26; (2) part cost and engineering change information contained in product

change notices from its Worldwide Engineering Release System (“WERS”); and (3) discussion of

and quotation from an engineering document known as a Design Failure Mode and Effects

Analysis (“DFMEA”). This information, Ford claims, constitutes trade secrets for which redaction

is appropriate.

There is a “long-established legal tradition [of] the presumptive right of the public to

inspect and copy judicial documents and files.” In re Knoxville News-Sentinel Co., Inc., 723 F.2d

470, 474 (6th Cir. 1983)). The public’s interest

rests on several grounds. Sometimes, the public’s interest is focused primarily upon

the litigation’s result—whether a right does or does not exist, or a statute is or is

not constitutional. In other cases the public’s interest is focused not only on the

result, but also on the conduct giving rise to the case. In those cases, secrecy

insulates the participants, masking impropriety, obscuring incompetence, and

concealing corruption. And in any of these cases, the public is entitled to assess for

itself the merits of judicial decisions. Thus, the public has an interest in ascertaining

what evidence and records the [courts] have relied upon in reaching [their]

decisions.

Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016)

(brackets and internal citations and quotation marks omitted). The presumptive right of openness

is not unbounded, however. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). It cannot

be “used to gratify private spite or promote public scandal” or as a “source[] of business

information that might harm a litigant’s competitive standing.” Id.

“The party seeking to seal a record carries the burden of overcoming [the] presumption and

only the most compelling reasons can justify nondisclosure of judicial records.” Lipman v. Budish,

974 F.3d 726, 753 (6th Cir. 2020) (citing Shane Grp., 825 F.3d at 305; Knoxville News-Sentinel,

723 F.2d at 476) (brackets and internal citation and quotation marks omitted), reh’g en banc denied

(Oct. 7, 2020). “[E]ven where a party can show a compelling reason why certain documents or

portions thereof should be sealed, the seal itself must be narrowly tailored to serve that reason.”

Shane Grp., 825 F.3d at 305. “The proponent of sealing therefore must analyze in detail, document

by document, the propriety of secrecy, providing reasons and legal citations,” and demonstrate that

“disclosure will work a clearly defined and serious injury.” Id. at 305-07 (quoting Baxter Int’l,

Inc. v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002); In re Cendant Corp., 260 F.3d 183, 194

(3d Cir. 2001)) (internal quotation marks omitted).

In making its determination, the district court must take care not to conflate the standard

for entering a protective order governing discovery pursuant to Rule 26 of the Federal Rules of

Civil Procedure, at a stage of the proceedings “before the material enters the judicial record” where

“[s]ecrecy is fine,” and the “very different considerations” that apply at the adjudication stage. Id.

at 305 (quoting Baxter, 297 F.3d at 545; Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)). “The

line between these two stages, discovery and adjudicative, is crossed when the parties place

material in the court record." Id.

“[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), [are] typically enough to

overcome the presumption of access” at the adjudication stage. Id. at 308 (quoting Baxter, 297

F.3d at 546) (internal quotation marks omitted). As noted above, the Defendant argues that the

information it seeks to redact constitutes trade secrets.

The term “trade secret” has both common-law and statutory definitions in Tennessee. The

relevant statute provides that the term

means information, without regard to form, including, but not limited to, technical,

nontechnical or financial data, a formula, pattern, compilation, program, device,

method, technique, process, or plan that:

(A) Derives independent economic value, actual or potential, from not being

generally known to, and not being readily ascertainable by proper means by

other persons who can obtain economic value from its disclosure or use; and

(B) Is the subject of efforts that are reasonable under the circumstances to maintain

its secrecy.

Tenn. Code Ann. § 47-25-1702(4). Under the common law, “a trade secret was defined as ‘any

formula, process, pattern, device or compilation of information that is used in one’s business and

which gives him an opportunity to obtain an advantage over competitors who do not use it.’”

Hamilton-Ryker Grp., LLC v. Keymon, No. W2008-00936-COA-R3-CV, 2010 WL 323057, at *13

(Tenn. Ct. App. Jan. 28, 2010) (citing Wright Med. Tech., Inc. v. Grisoni, 135 S.W.3d 561, 588

(Tenn. Ct. App. 2001)). Courts have identified factors to be considered in determining whether a

trade secret exists:

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

extent to which it is known by employees and others involved in the business; (3)

the extent of measures taken by the business to guard the secrecy of the information;

(4) the value of the information to the business and to its competitors; (5) the

amount of money or efforts expended by the business in developing the

information; [and] (6) the ease or difficulty with which the information could be

properly acquired or duplicated by others.

Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 983 (M.D. Tenn. 2008) (citing Wright

Med. Tech., 135 S.W.3d at 589).

Ford has proffered the declaration of Jennifer Buckman, a design analysis engineer

employed by the company, in support of its claim that the testimony sought to be redacted

constitutes trade secrets. (D.E. 172-1 ¶ 2.) Therein, she describes Defendant’s Seat SDSs as

“proprietary Ford design, development, and testing specifications related to vehicle seat

assemblies,” containing information relevant to the “design requirements, testing, and verification

methods” for those assemblies. (Id. ¶ 7.) Ford, she states, “is an industry leader in seat design

research and test methodologies.” (Id.) Trial testimony with respect to the SDS, she relates,

pertaining to seat system handling specifications, specifications of the fold and tumble/kneel

function seat life cycle, and specifications of the load floor/seat strength, reflects Defendant’s

“motives, goals, and strategies” for seat design and development. (Id. ¶ 8.) Buckman avers that

the DFMEA “contains design actions, specifications, and requirements to prevent or control any

foreseeable potential design failures of a component part and is highly sensitive to Ford.” (Id. ¶

9.) According to the declarant, the WERS encompasses the “design history and costs of

component parts and tracks any approved changes to those parts.” (Id. ¶ 10.) Its change notices

“provide notification within Ford of any approved changes to component parts.” (Id.) Trial

testimony, she asserts, relative to “design changes and cost of a component part is not publicly

available information, and disclosure thereof could provide Ford’s competitors with economic or

business advantages by allowing them to streamline their processes.” (Id.)

Buckman explains that the contents of these documents “are the result of years of detailed

engineering analyses, development of testing methodology, and benchmarking”; are “unique to

Ford”; were years in the making; and were “developed at great expense.” (Id. ¶ 11.) They are

utilized in Ford’s business of designing and manufacturing vehicles and provides Defendant “with

an advantage in that market over anyone who does not have such information.” (Id. ¶ 12.) She

insists that “Ford takes great care to protect the dissemination of this sensitive engineering, design,

and testing information because of the highly competitive nature of the automotive industry, and

being first to market with a new concept, feature, or performance capability can confer a distinct

competitive advantage to an automotive manufacturer, translatable into increased market share.”

(Id.) To her knowledge, this information has not been released to the public and is not shared

outside Ford’s business. (Id. ¶¶ 5, 13.) It has been only disseminated or accessible internally “to

employees who are either directly involved with seat design and testing, or those who have a need

to know.” (Id. ¶ 13.) Suppliers are bound by confidentiality agreements and “are only provided

the specific parts of these protected documents needed to manufacture the components they

supply.” (Id.) She advises that, if such data did become publicly available, Defendant’s

competitive position in the marketplace would suffer harm, as others would be able to make use

of Ford’s research, testing, and developmental costs to quickly and cheaply market similar designs.

(Id. ¶ 14.)

Plaintiffs argue in their motion that Ford’s attempt to carry its burden on this issue amounts

only to “vague generalities.” (D.E. 171-1 at PageID 2312.) The Court disagrees. Buckman has

set forth in her declaration, under penalty of perjury, the clearly defined and serious injury her

employer would face should its trade secrets be publicly disseminated and specifically addresses

the factors articulated by Tennessee law for determining whether information should be considered

a trade secret. Based on the declaration and the arguments of counsel, the Court finds that the

information sought to be redacted from the trial transcript constitutes trade secrets under Tennessee

law and, thus, that the presumption of access has been overcome. Compare Brown & Williamson

Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1180 (6th Cir. 1983) (“a court should not

seal records unless public access would reveal legitimate trade secrets, a recognized exception to

the right of public access to judicial records”) with Shane Grp., 825 F.3d at 302, 307-08 (in class

action suit alleging insurer engaged in price-fixing, protection of “financial and negotiating

information,” which the parties did not contend was a trade secret, was an insufficient basis for

sealing court records).

Further, upon review of the proposed redactions, the Court finds them to be narrowly

tailored. Although Plaintiffs complain that the portions of the transcript for which Ford seeks

redaction cover some thirty pages of testimony,1 the proposed redactions on many of those pages

amount to only a few words and are limited to trade secret information as described in Buckman’s

declaration.

Based on the foregoing, the Plaintiffs’ motion to deny the redactions sought by Defendant

is DENIED. The trial transcripts shall be redacted pursuant to D.E. 167. The Clerk is DIRECTED

to forward a copy of this order to the Court Reporter.

1The transcripts run a total of 439 pages in length.

Defendant’s Motion to Seal Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (D.E.

172).

Ford argues in this motion that Paragraphs 25, 30, and 36 of Plaintiffs’ proposed findings

of fact and conclusions of law (D.E. 168) contain trade secrets and, therefore, the document should

be sealed. Paragraph 25 consists of quoted material from the SDS read aloud in court by Buckman

during her testimony. Paragraph 30 references trial testimony of Buckman relating to part cost

information from a product change notice. In Paragraph 36, Plaintiffs cite to certain portions of

Buckman’s trial testimony that pertain to contents of the DFMEA. The information included in

these paragraphs is the same as that determined to be trade secrets in the previous section of this

order.

Plaintiffs contend that, even if the information sought to be redacted constitutes trade

secrets, any protection was waived by the presentation of the evidence in open court without any

attempt by Ford’s counsel to prevent the information from entering the judicial record or the public

domain.2 In doing so, the Kineses cite to various cases outside this circuit, which of course have

no precedential value here.3 One of the referenced cases, however, cites to the Sixth Circuit case

of National Polymer Products v. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981), for the

proposition that “[i]t is a ‘well-established principle of American jurisprudence that the release of

information in open trial is a publication of that information and, if no effort is made to limit its

disclosure, operates as a waiver of any rights a party had to restrict its further use.’” Glaxo Inc. v.

2This assertion was not specifically made in Plaintiffs’ motion to deny Ford’s request to

redact the trial transcripts.

3Plaintiffs also cite to a ruling purportedly by the Sixth Circuit in State ex rel. Rea v. Ohio

Department of Education, 692 N.E. 2d 596 (1998). However, the case was decided by the Supreme

Court of Ohio, not the Sixth Circuit, and addressed trade secrets under Ohio law.

Novopharm Ltd., 931 F. Supp. 1280, 1301 (E.D.N.C. 1996) (quoting Nat’l Polymer Prod., 641

F.2d at 421).

National Polymer involved a claim for damages arising from the sale of a product supplied

by Borg-Warner to National Polymer. Nat’l Polymer Prod., 641 F.2d at 420. A jury trial was held

in open court and attended by the general public and the press. Id. at 420-21. At no time during

the trial did Borg-Warner move for any restriction on the exposure of others to evidence presented

in the case. Id. The question before the Sixth Circuit concerned whether the trial judge could

restrict, in the form of an injunction, post-trial disclosure of certain business-related information

presented during the trial. Id. at 421-22. The appellate court began its discussion with the quote

cited in Glaxo. Id. It went on to state, however, that the propriety of the injunction as to matters

publicly revealed at trial rested on the outcome of a balancing process in which the presumption

of access was weighed against the interest in preserving the confidentiality of the material,

including whether disclosure would impair Borg-Warner’s legitimate business interests. Id. at

424. The Court finds nothing in National Polymer that requires it to deny redaction just because

the courtroom was not closed or the evidence presented at trial was not otherwise sealed at the

time.

While Defendant’s lawyer certainly could have requested that the courtroom be closed, it

appears from the statements of counsel at the time of trial that the few spectators in the courtroom

were experts, witnesses, and employees/associates of counsel’s law firms. In their briefing,

Plaintiffs insist there was one true bystander present in the courtroom during the testimony of at

least two witnesses, one of whom was Don Phillips, who offered testimony concerning the WERS

and the DFMEA. Ford vehemently disputes this claim and the Court, for its part, does not recall

the presence of an unknown spectator. In any case, the redactions sought by Ford relate to the

testimony of Buckman, not Phillips.4 As the Plaintiffs do not assert that this alleged bystander

witnessed Buckman’s testimony, and considering the overriding interest in protecting trade secrets

as discussed herein, their argument is unpersuasive. Defendant’s motion, which the Court finds to

be well-taken, is GRANTED. The Clerk is DIRECTED to immediately place D.E. 168 under seal.

Plaintiffs are ORDERED to file a redacted version of their proposed findings of fact and

conclusions of law within five days of the entry of this order.

Defendant’s Motion to Seal Plaintiffs’ Response to Its Motion to Seal Plaintiffs’ Proposed

Findings of Fact and Conclusions of Law (D.E. 178).

In this motion, Ford seeks an order sealing Plaintiffs’ response to its motion to seal the

Kineses’ proposed findings of fact and conclusions of law (D.E. 174) as it contains approximately

four lines that quote the SDS. At the outset, the Court notes that it would have been helpful if

Defendant’s counsel had identified the page number(s) upon which the objectionable four lines

appear. The Court will assume Ford is referring to the quoted SDS language on pages three and

four of Plaintiffs’ response (the same language that is quoted in Paragraph 25 of D.E. 168). For

the reasons articulated in the preceding section hereof relating to the SDS, the motion is

GRANTED.

The Clerk is DIRECTED to immediately seal D.E. 174. Plaintiffs are ORDERED to file a

redacted version of the response within five days of the entry of this order.

IT IS SO ORDERED this 9th day of April 2021.

s/ J. DANIEL BREEN

UNITED STATES DISTRICT JUDGE

4In Paragraph 25, Plaintiffs attribute the reading at trial from the SDS to Phillips, citing to

Page 239, Lines 9-24 of the trial transcript. (See D.E. 168 at PageID 2230.) However, the quoted

testimony which appears at the cited page and lines is that of Buckman. (See D.E. 160 at PageID

2003-10.)