The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ZAP AVIATION, LLC,
Plaintiff,
v. Case No: 6:23-cv-1149-RBD-LHP
NXT JET, INC.,
Defendant
ORDER
This cause came on for consideration without oral argument on the following
motions filed herein:
MOTION: DEFENDANT’S UNOPPOSED MOTION TO SEAL
(Doc. No. 118)
FILED: December 31, 2024
THEREON it is ORDERED that the motion is DENIED.
MOTION: DEFENDANT’S UNOPPOSED MOTION TO SEAL
(Doc. No. 120)
FILED: December 31, 2024
THEREON it is ORDERED that the motion is DENIED.
MOTION: DEFENDANT NXT JET, INC.’S UNOPPOSED
MOTION TO SEAL (Doc. No. 124)
FILED: January 7, 2025
THEREON it is ORDERED that the motion is DENIED.
I. BACKGROUND.
This case concerns the early termination of an Aircraft Charter and Lease
Agreement (“Lease Agreement”) entered by Plaintiff Zap Aviation, LLC (“Zap”)
and Defendant NXT Jet, Inc. (“NXT”), in August 2022. Doc. No. 57; see also Doc.
Nos. 1, 5, 12. Zap’s only remaining claim is for breach of contract against NXT,
Doc. No. 78, and NXT has answered and filed similar counterclaims, Doc. No. 79.
Discovery is now closed, and the deadline for dispositive motions lapsed on
December 31, 2024. Doc. No. 85.
As relevant to resolution of the above-styled motions, during discovery, NXT
moved for a protective order. Doc. No. 100. On the response deadline of
November 18, 2024, Zap filed a motion to file its response and related exhibits under
seal, but the Court denied that motion without prejudice for failure to comply with
the Local Rules the next day. Doc. Nos. 103–04. Zap did not renew the motion to
seal, and instead filed its response and all related exhibits on the public docket on
November 19, 2024. Doc. No. 105. The Court issued a ruling on the motion for
protective order three days later. Doc. No. 106. Thereafter, Zap twice filed
motions to remove four exhibits filed with its response from the public docket (Doc.
Nos. 105-1, 105-2, 105-11, 105-14), claiming that NXT marked the exhibits as
confidential during discovery. Doc. Nos. 107, 110. Both motions were denied for
failure to comply with the Local Rules. Doc. Nos. 108, 113. Zap did not again
renew the request, did not file an appeal to the presiding District Judge, and did not
seek reconsideration. NXT likewise did not seek any relief with regard to those
Orders at that time.1
On December 30, 2024, Zap filed an expedited motion seeking to file its
motion for summary judgment and eighteen (18) exhibits thereto under seal,
arguing that NXT had marked such materials confidential pursuant to the parties’
confidentiality agreement. Doc. No. 116. The Court denied the motion the same
1 In a current motion to seal under review, NXT contends that “pursuant to Local
Rule 1.11(c), NXT was to have the ability to file a memorandum in support of Zap’s initial
Motions to Seal.” Doc. No. 124, at 16. While true that Local Rule 1.11(c) states as much,
NXT fails to explain how this provision would apply to motions such as those filed by Zap,
which were wholly deficient under Local Rule 1.11(b) on their face and failed to comply
with the Local Rules. See Doc. Nos. 103, 107, 110, 116. Accordingly, the Court does not
find this argument persuasive on the facts of this case. Moreover, NXT argues that the
documents were not “placed under temporary seal with a stay of the denial orders to
provide the requisite time to permit a motion to reconsider,” Doc. No. 124, at 16, but the
Court notes that it was Zap that filed the materials on the public docket, rather than
renewing the motion to seal as permitted. See Doc. Nos. 104–105; Doc. Nos. 117, 122.
Accordingly, NXT’s reliance on Local Rule 1.11(d) is unpersuasive.
day for failure to establish the propriety of sealing the materials, as Zap’s motion
was premised entirely on the parties’ confidentiality agreement, which does not
alone authorize sealing. Doc. No. 117; see Local Rule 1.11(a). Zap did not renew
the motion, appeal that Order, or seek reconsideration, and instead, filed its motion
for summary judgment and all related exhibits on the public docket the following
day. Doc. No. 122.
For its part, NXT filed a Daubert motion with a redacted exhibit and a
redacted summary judgment motion and several exhibits on the public docket on
December 31, 2024. Doc. Nos. 119, 121. With those motions, NXT also filed an
unopposed motion to file under seal the exhibit in support of the Daubert motion,
as well an unopposed motion to file under seal the unredacted summary judgment
motion and sixteen (16) of its related exhibits, claiming that the documents contain
NXT’s confidential business information. Doc. Nos. 119, 121. Upon review,
because the documents NXT was requesting to seal appeared to overlap with those
that Zap had already filed on the public docket, the Court ordered NXT to file a
notice specifying which materials it sought to file under seal were already filed on
the docket. Doc. No. 123.
Before filing its notice, NXT filed another unopposed motion to seal, this time
seeking to file under seal materials Zap had previously filed on the public docket,
namely, the four exhibits Zap filed in response to NXT’s motion for protective order
during discovery (Doc. No. 105), as well as portions of Zap’s motion for summary
judgment and twenty (20) exhibits Zap had filed in support (Doc. No. 122). Doc.
No. 124. Thereafter, NXT filed its notice identifying which it exhibits it now seeks
to seal have already been filed on the public docket, but stating that with the
addition of its latest motion to seal (Doc. No. 124), if granted, all materials it claims
are confidential would be filed under seal. Doc. No. 125.
On review, and for the reasons discussed below, the motions to seal (Doc.
Nos. 118, 120, 124) will be denied.
II. LEGAL STANDARDS.
A party seeking to file a document under seal must address the applicable
requirements set forth in Local Rule 1.11. The moving party must also satisfy the
Eleventh Circuit’s standard concerning the public’s common law interest and right
of access to inspect and copy judicial records. See, e.g., Chicago Trib. Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311–12 (11th Cir. 2001); United States v.
Rosenthal, 763 F.2d 1291 (11th Cir. 1985). “The right of access creates a rebuttable
presumption in favor of openness of court records,” Gubarev v. Buzzfeed, Inc., 365 F.
Supp. 3d 1250, 1256 (S.D. Fla. 2019), which “may be overcome by a showing of good
cause, which requires balancing the asserted right of access against the other party’s
interest in keeping the information confidential. Whether good cause exists is
decided by the nature and character of the information in question.” Romero v.
Drummond Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007) (internal quotations and
alterations omitted).2
“Courts draw a distinction between documents filed with discovery motions
and documents filed in connection with other types of motions.” NXP B.V. v.
Blackberry Ltd., No. 6:12-cv-498-Orl-YK-TBS, 2014 WL 12622459, at *2 (M.D. Fla. Mar.
17, 2014). “‘[T]here is a presumptive right of public access to pretrial motions of a
nondiscovery nature, whether preliminary or dispositive, and the material filed in
connection therewith.’” Romero, 480 F.3d at 1246 (quoting Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993)). Therefore, “material filed
with discovery motions is not subject to the common-law right of access, whereas
discovery material filed in connection with pretrial motions that require judicial
resolution of the merits is subject to the common-law right.” Chicago Trib. Co., 263
F.3d at 1312. “Stated another way, although there is no common law right to obtain
2 Courts conducting a “good cause” balancing test consider, among other factors:
(1) whether allowing access would impair court functions or harm legitimate privacy
interests, (2) the degree of and likelihood of injury if made public, (3) the reliability of the
information, (4) whether there will be an opportunity to respond to the information, (5)
whether the information concerns public officials or public concerns, (6) the availability of
a less onerous alternative to sealing the documents, (7) whether the records are sought for
such illegitimate purposes as to promote public scandal or gain unfair commercial
advantage, (8) whether access is likely to promote public understanding of historically
significant events, and (9) whether the press has already been permitted substantial access
to the contents of the records. Gubarev, 365 F. Supp. 3d at 1256 (citing Romero, 480 F.3d at
1246; Newman v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983)).
discovery material, a party that submits documents in connection with a motion for
summary judgment puts the information into the public domain and triggers
greater public right of access.” Regions Bank v. Kaplan, No. 8:16-cv-2867-T-23AAS,
2017 WL 11025768, at *2 (M.D. Fla. Dec. 11, 2017) (citing Alvey v. Gualtieri, No. 8:15-
cv-1861-T-33MAP, 2016 WL 4129273, at *2 (M.D. Fla. Aug. 3, 2016)).
III. ANALYSIS.
As discussed above, NXT, without opposition from Zap,3 seeks to file under
seal several documents: (1) a deposition transcript in support of its Daubert motion,
see Doc. No. 119-2; (2) an unredacted copy of its summary judgment motion and
sixteen (16) related exhibits, see Doc. No. 121; (3) four (4) exhibits filed by Zap during
discovery, see Doc. Nos. 105-1, 105-2, 105-11, 105-14; and (4) Zap’s motion for
summary judgment and twenty (20) related exhibits filed by Zap on the public
docket, see Doc. No. 122, Doc. Nos. 122-3 through 122-7, 122-9, 122-10, 122-16
through 122-23, 122-25, 122-30, 122-31, 122-34, 122-38. Doc. Nos. 118, 120, 124.
Each of NXT’s requests are based on the same thing—the parties have entered
into a confidentiality agreement in this case, NXT has marked these materials
3 The Court notes that while the motions are all unopposed by Zap, Zap has made
previous filings in this case arguing that “NXT has aggressively marked numerous such
documents and transcript portions as confidential,” and that Zap “does not believe all of
the documents marked as confidential necessarily merit such a designation.” See Doc. No.
116, at 1.
confidential under the agreement, and the materials contain NXT’s confidential
business information. Doc. Nos. 118, 120, 124. Each motion lists the motions
and/or exhibits NXT seeks to file under seal, followed by substantially the same
conclusory explanation in each motion:
[T]he parties’ Confidentiality Agreement requires filing documents
designated as “confidential” under seal. . . . [T]he [document(s)]
requested to be sealed contain highly sensitive business and financial
information that must be sealed entirely in order to protect NXT’s
proprietary business information, negotiations, sale prices, and other
sensitive contractual and financial information from public
consumption. NXT is not aware of means other than those sought
herein that would satisfactorily preserve or protect the interests
asserted by the Parties. To disclose the information sought to be
sealed would cause harm to NXT in revealing the manner in which it
conducts its business and the financial intricacies of same. By way of
example, the information sought to be sealed includes sales prices,
deposit figures, confidential letter of intent language, itemization of
billing information, and specific revenue numbers. This information
goes far beyond simply being protected under a Confidentiality
Agreement— it rises to the level of necessitating Court protection from
public consumption in order to shield NXT’s proprietary business
information from competitors, customers, and the like. NXT will,
however, redact its motion to keep from public disclosure the contents
of the document while keeping the remainder of its motion available
for public view.
Doc. No. 118, at 5–6; Doc. No. 120, at 9–10; see also Doc. No. 124, at 7, 11–12
(mentioning also “banking account numbers, ABA routing numbers, Swift codes,
detailed business banking information, proprietary business information, private
negotiations, sale prices, revenue information, and other highly sensitive
contractual and financial information”).
NXT does not expand on how this analysis applies to each of the filings at
play, which includes hundreds of pages of documents, and instead, appears to
argue that all of the materials it seeks to file under seal fall under this broad category
of information which is subject to protection. Doc. Nos. 118, 120, 124. The
undersigned does not agree.
Upon review of the materials NXT wishes to file under seal, 4 the
undersigned is not clear how each of the materials would qualify for confidential
treatment under governing law. Most of the filings concern the contractual
arrangement between NXT and Zap and go to the heart of this litigation, to include
things like the purchase price of the aircraft, deposit amounts and whether the
deposit was refundable, revenues, losses, letters of intent, wire deposits, draft
contracts, agreements reached, modifications to agreements, flight costs, expenses,
invoices to Zap, staffing of the aircraft and salaries, and Zap’s outstanding balances.
See Doc. Nos. 118, 120, 124, and related attachments.5
4 Pursuant to Local Rule 1.11(b)(8), the materials have been filed under seal pending
an order resolving the motions. See Doc. Nos. 118, 120, 124.
5 To the extent that NXT references bank account numbers and “detailed banking
information,” NXT does not explain why such account numbers or related information
could not be redacted.
The Court also notes that NXT’s motions contain discrepancies, for example, NXT
seeks to seal different portions of the Wargo deposition transcript. Compare Doc. No. 124,
at 7 (citing only Tr. 25:1–8), with id. at 10 (discussing Tr. 25:7–21). Moreover, at least one
deposition transcript page is not included with the proposed sealed filings. Compare Doc.
Besides stating that these materials are “confidential” or “proprietary,” and
providing blanket assertions, NXT makes no effort to explain how each of the
specific materials are entitled to confidential treatment under governing law or how
each of the materials contain the proprietary information that NXT claims. Nor is
it the Court’s job to make that argument for NXT, or to sift through hundreds of
pages to find the confidential information NXT wishes to protect. And, as the
Court has previously cautioned the parties, “[s]ealing is not authorized by a
confidentiality agreement, a protective order, a designation of confidentiality, or a
stipulation” alone. Local Rule 1.11(a); see also NXP B.V., 2014 WL 12622459, at *2
(“The parties’ agreement to seal court documents ‘is immaterial’ to the public’s right
of access.” (quoting Brown v. Advanatage Eng’g, 960 F.2d 1013, 1016 (11th Cir. 1992))).
Thus, upon consideration of NXT’s conclusory arguments regarding the
confidential nature of the materials at issue, the Court does not find that NXT has
satisfied its burden of demonstrating that each of the materials at issue should be
sealed. See Kaplan, 2017 WL 11025768, at *2 (“Defendants’ blanket assertion that
the subject exhibits contain confidential business or financial information is
insufficient to show good cause for sealing the filings.” (citing Aldora Aluminum &
No. 120, at 6 (referencing Zappone Tr. 132:21–25, Exhibit D), with Doc. No. 120-4, at 35–36
(omitting page 132).
Glass Prod., Inc. v. Poma Glass & Specialty Windows, Inc., No. 3:14-cv-1402-J-34JBT,
2016 WL 7666128, at *2 (M.D. Fla. June 13, 2016)); see also Rodriguez v. Magic Burgers,
LLC, No. 6:19-cv-1656-CEM-LRH, 2021 WL 3017528, at *2 (M.D. Fla. Mar. 24, 2021)
(denying motion to seal in relation to summary judgment, stating: “The Defendant’s
conclusory statement that the documents at issue contain proprietary information,
trade secrets, and are subject to protection under the parties’ confidentiality
agreement falls short of rebutting the presumption in favor of openness.”); Allstate
Ins. Co. v. Auto Glass Am., LLC, No. 6:18-cv-2184-Orl-41LRH, 2020 WL 6870755, at *3
(M.D. Fla. Oct. 22, 2020) (denying motion to seal summary judgment and Daubert
materials for failure to demonstrate that the materials were subject to confidential
treatment under governing law); Sarasota Cty. Pub. Hosp. Dist. v. MultiPlan, Inc., No.
8:18-cv-252-T-27AAS, 2019 WL 1244963, at *2 (M.D. Fla. Mar. 18, 2019) (denying
motion to seal dispositive motions in limine and exhibits filed in support of
summary judgment for failure to establish good cause for sealing).6
6 Outside of general legal principals regarding the propriety of sealing information
and the public right of access, NXT cites three cases to support its argument that sealing
its confidential business information is appropriate, but each is unpersuasive to the
situation here. Doc. No. 118, at 3–4; Doc. No. 120, at 5; Doc. No. 124, at 6. Neither Graphic
Packaging Int’l, Inc. v. C.W. Zumbiel Co., No. 3:10-cv-891-J-JBT, 2010 WL 6790538 (M.D. Fla.
Oct. 28, 2010), nor Patent Asset Licensing, LLC v. Bright House Networks, LLC, No. 3:15-cv-
742-J-32MCR, 2016 WL 2991057 (M.D. Fla. May 24, 2016), concerned requests to file
documents under seal at the summary judgment stage. And the Court finds Arthrex, Inc.
v. Parcus Med., LLC, No. 2:11-cv-694-FtM-29CM, 2014 WL 1569149 (M.D. Fla. Apr. 17, 2014),
which concerned motions in limine, unpersuasive because the case was decided under a
This is particularly true given that NXT wishes to file these materials in
conjunction with Daubert and summary judgment motions – motions which by their
nature address the key issues and defenses of the case and determine whether and
to what extent expert testimony can be presented at trial. 7 By attaching the
exhibits at issue to these motions, NXT is representing that the information
contained in the exhibits goes to the heart of this litigation, will likely be necessary
to and discussed in rulings by the Court (rulings which will be filed publicly), and
will be necessary for NXT’s case at trial should the case proceed that far (a trial
which will also be public). Given the large swaths of information that NXT seeks
to seal in conjunction with these dispositive issues, and absent further cogent
explanation from NXT as to why each of the filings at issue are entitled to protection
prior version of the Local Rules and presented different circumstances because it was a
patent infringement case. NXT cites one additional case, Microlumen, Inc. v. Allegrath, No.
8:07-cv-350-T-17TBM, 2007 WL 1247068 (M.D. Fla. Apr. 30, 2007), but that case not only
did not address sealing at the summary judgment stage, but the court also denied the
request to seal for failure to provide sufficient detail.
7 Although NXT’s motions include a request to file under seal materials filed by
Zap on the public docket during discovery, those materials are duplicative of those NXT
wishes to seal in conjunction with summary judgment. Compare Doc. No. 105-1 (Kevin
Wargo deposition transcript), Doc. No. 105-2 (Christopher Tasca 30(b)(6) deposition
transcript); Doc. No. 105-11 (Williams Jeffreys deposition transcript), and Doc. No. 105-14
(Christopher Tasca deposition transcript), with Doc. No. 122-3 (Christopher Tasca 30(b)(6)
deposition transcript), Doc. No. 122-4 (Kevin Wargo deposition transcript), Doc. No. 122-
9 (William Jeffreys deposition transcript), and Doc. No. 122-38 (Christopher Tasca
deposition transcript). See Doc. No. 124, at 7–10; see also Doc. No. 120, at 6–9.
Accordingly, the same analysis applies.
under governing law, NXT has not overcome the presumption of public right of
access. See Rodriguez, 2021 WL 3017528, at *2; Auto Glass Am., LLC, 2020 WL
6870755, at *3; Sarasota Cty. Pub. Hosp. Dist., 2019 WL 1244963, at *2; Kaplan, 2017
WL 11025768, at *2.
Accordingly, upon due consideration, NXT’s motions (Doc. Nos. 118, 120,
124) will be denied.
IV. CONCLUSION.
For the reasons stated herein, NXT’s unopposed motions to seal (Doc. Nos.
118, 120, 124) are DENIED. This Order is stayed until January 27, 2025 to permit
an appeal to the presiding District Judge, if deemed appropriate. See Local Rule
1.11(d). On or before January 27, 2025, NXT shall either file its appeal, or file its
Daubert motion and related unredacted exhibits (Doc. No. 119) as well as its
unredacted motion for summary judgment and related unredacted exhibits (Doc.
No. 121) on the public docket.
This Order does not alter any existing case management deadlines, and in
particular deadlines related to summary judgment or Daubert motions briefing,
including responses and replies are not extended by this Order. See Local Rule
3.01(c); Doc. No. 48, at 12.
DONE and ORDERED in Orlando, Florida on January 13, 2025.
ayn □□□□
LESLIE AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
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