IDC Financial Publishing Inc v. BondDesk Group LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

IDC FINANCIAL PUBLISHING, INC.,

Plaintiff,

v. Case No. 15-cv-1085-pp

BONDDESK GROUP, LLC, et al.,

Defendants.

ORDER DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION TO

RESTRICT (DKT. NO. 160), DEFENDANT BONDDESK’S MOTION TO

RESTRICT (DKT. NO. 169) AND DEFENDANT FIDELITY’S MOTION TO

RESTRICT (DKT. NO. 181) AND REQURING THE PARTIES TO FILE

AMENDED MOTIONS BY A DATE CERTAIN

______________________________________________________________________________

The parties have filed three motions to restrict documents.

The plaintiff’s motion asks the court to restrict Exhibits A, E, F, H and J

attached to the declaration of Matthew M. Wuest (dkt. no. 168) in support of

the plaintiff’s motions in limine. Dkt. No. 160. In support of the motion, the

plaintiff asserts that under Fed. R. Civ. P. 5.2(d) and Civil Local Rule 79(d)(4),

the court has the authority to allow parties to restrict documents “for good

cause.” Id. at 2. It asserts that courts allow parties to restrict documents that

contain sensitive business information, “especially, where, as here, the

confidential material consists of ‘trade secrets or other categories of bona fide

long-term confidentiality.’” Id. (citing Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d

544, 546 (7th Cir. 2002). The plaintiff asserts that the court should restrict the

exhibits because “they reference, describe, and quote from documents and

information that the parties have designated as ‘CONFIDENTIAL’ or

‘ATTORNEYS EYES ONLY,’ and which the designating party has asserted

contains non-public and confidential business and/or financial information.”

Id. Specifically, the plaintiff says the attachments contain “confidential

deposition testimony and confidential client names and information.” Id. at 2-3.

The plaintiff says that “‘CONFIDENTIAL’ or ‘ATTORNEYS EYES ONLY’

information can also be damaging to the parties’ ability to compete in the

marketplace if public disclosures were permitted.” Id. at 3.

BondDesk’s motion is similar. Dkt. No. 169. It asks the court to restrict

three memoranda of law in support of motions in limine, asserting that there is

information in them that the plaintiff has designated confidential. Id. at 2. The

defendant asserts that the redactions in the motions “reference or describe

information that Fidelity or IDC have designated as ‘Confidential’ under the

Protective Order because they contain non-public, proprietary, and/or

competitive information belonging to IDC and Fidelity.” Id. at 3. It concludes

that IDC and/or Fidelity “may be harmed commercially if the details contained

in the proposed redactions to the Motions were made available to the public.”

Id. at 3-4. Fidelity’s motion is much the same (although it cites decisions in

which courts have declined to grant the sorts of motions the parties have filed

here). Dkt. No. 181.

None of the motions state good cause to restrict the attachments. “The

Seventh Circuit has emphasized that ‘the public at large pays for the courts

and therefore has an interest in what goes on at all stages of a judicial

proceeding.’ Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945

(7th Cir. 1999).” Roumann Consulting Inc. v. T.V. John & Son, Inc., No. 17-C-

1407, 2019 WL 3501513, at *8 (E.D. Wis. Aug. 1, 2019). A party may override

this interest only if its privacy interest surmounts the public’s interest; “that is,

only if there is good cause for sealing a part or the whole of the record in that

case.” Id.

In Baxter—the case the plaintiff itself cited—the Seventh Circuit faced a

motion like the one the plaintiff has filed. The court explained,

[a] few weeks ago a single judge of this court, serving as motions

judge for the week, received and denied a joint motion to maintain

documents under seal. The motion was generic: it related that the

parties had agreed on secrecy, that the documents contained

commercially sensitive information, and so on, but omitted details.

What is more, the motion did not attempt to separate genuinely

secret documents from others in the same box or folder that could

be released without risk. The motion was patterned on the sort of

broad secrecy agreement that often accompanies discovery in order

to expedite that process by avoiding document-by-document

analysis. Secrecy is fine at the discovery stage, before the material

enters the judicial record. See Seattle Times Co. v. Rhinehart, 467

U.S. 20 . . . (1984). But those documents, usually a small subset of

all discovery, that influence or underpin the judicial decision are

open to public inspection unless they meet the definition of trade

secrets or other categories of bona fide long-term confidentiality.

Baxter, 297 F.3d at 545. The court went on explain that the parties had made

“no effort to justify the claim of secrecy,” simply asserting it on the ground that

the documents to be sealed were commercial documents. Id. at 546. The court

stated, “[t]hat won’t do.” Id. The court allowed the parties to amend their

motion to seal, but stated that it would “in the future deny outright any motion

. . . that does not analyze in detail, document by document, the propriety of

secrecy, providing reasons and legal citations.” Id. at 548.

Since then, the court has affirmed that it would not seal documents

“simply because the parties had agreed to do so among themselves because

that practice deprives the public of material information about the judicial

process.” United States v. Sanford-Brown, Ltd., 788 F.3d 696, 713 (7th Cir.

2015) (vacated on other grounds, United States ex rel. Nelson v. Sanford-

Brown, Ltd., 136 S. Ct. 2506 (2016)).

The plaintiff mentions “trade secrets” and confidential client names and

information. In Formax Inc. v. Alkar-Rapidpak-MP Equipement, Inc., No. 11-C-

0298, 2014 WL 792086, at *1 (E.D. Wis. Feb. 25, 2014), Judge Griesbach

discussed the issues with these sorts of unsupported assertions. He explained:

Motions to seal are becoming increasingly common and occupy an

increasing portion of the court’s time. In litigation involving

businesses expecially, it is common for one or both parties to request

entry of a protective order to govern the handing [sic] information

they may be obligated to disclose in discovery that the disclosing

party believes could damage its business if the information is

disclosed to the wider general public, including their competitors.

The typical protective order requested by the parties allows the

disclosing party to designate such information “confidential” and

thereby create a duty on the part of the receiving party to avoid any

further disclosure of the information than is necessary to conduct

the litigation. The benefit of such an order is that it increases a

party’s willingness to respond to discovery requests without

involving the court on closer questions because of fear that providing

information that is not directly relevant may cause injury to their

businesses. The difficulty arises when one of the parties decides to

include information from a document designated “confidential” as

part of a court filing. The standard protective order states that if

information from a document designated “confidential” by another

party is filed with the court, it must be sealed. Filing documents

under seal, however, conflicts with the general rule that litigation in

the courts of the United States is open to the public. Union Oil Co. of

California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000).

Id.

Judge Griesbach went on to explain that it is “not enough to simply

assert that disclosure would place a party at a competitive advantage.” Id. at 2.

While acknowledging that documents “containing highly sensitive pricing

information, sales figures, sales dollar amounts, profit and loss data, and other

financial records not normally made known to the public may be properly filed

under seal,” he explained that “not all pricing information or customer lists are

entitled to protection.” Id. at 3. He found that “[a]bsent further explanation, the

fact that documents contain such information does not constitute good cause

for sealing them.” Id.

The court will deny all three motions, because they do not state good

cause for restricting. The court will allow the parties to file amended motions

within twenty-one days—motions which comply with the Seventh Circuit’s

directive that they analyze in detail, document by document, the propriety of

the requested secrecy and provide reasons.

The court DENIES WITHOUT PREJUDICE the plaintiffs motion to

restrict. Dkt. No. 160.

The court DENIES WITHOUT PREJUDICE defendant BondDesk’s

motion to restrict. Dkt. No. 169.

The court DENIES WITHOUT PREJUDICE defendant Fidelity’s motion to

restrict. Dkt. No. 181.

The court ORDERS that if the parties want the court to restrict any

documents, they must, by the end of the day on March 31, 2020, file amended

motions to restrict that comply with this order.

Dated in Milwaukee, Wisconsin this 10th day of March, 2020.

BY THE COURT:

Chief United States District Judge