SACKS HOLDINGS, INC. v. GRIN NATURAL USA LIMITED

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SACKS HOLDINGS, INC., )

)

Plaintiff, )

)

v. ) 1:23cv1058

)

GRIN NATURAL USA LIMITED, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on various motions to seal

(Docket Entries 112, 118, 138, 147, 150) (collectively, the

“Motions”) filed by Sacks Holdings, Inc. (the “Plaintiff”) and Grin

Natural USA Limited, Grin Holdings Limited, Grin Natural US

Limited, Grin Natural Products Limited, and Grin Natural Products

Australia PTY (collectively, the “Defendants”). For the reasons

that follow, the Court will grant in part and deny in part the

Motions.

BACKGROUND

Through the Motions, the parties seek to seal various

memoranda and exhibits submitted in connection with Plaintiff’s

motions to exclude certain untimely evidence (see Docket Entry 108)

(the “Evidence Motion”), strike an untimely expert report (see

Docket Entry 110) (the “Expert Report Motion”), and preclude

certain testimony (see Docket Entry 116) (the “Hybrid Witness

Motion”) (collectively, the “Substantive Motions”). (See

generally Docket Entries 112, 118, 138, 147, 150.) Although

Plaintiff filed three of the Motions (see Docket Entries 112, 118,

147), the Motions largely rest on Defendants’ assertion of

confidentiality. (See, e.g., Docket Entry 118 at 1 (“[Plaintiff]

submits these materials under seal on the basis of Defendants’

claims of confidentiality.”).)!

Defendants initially sought widespread sealing of large

quantities of material, but later abandoned many of those requests.

(Compare, e.g., Docket Entry 134 at 1-2 (generally supporting

Plaintiffs’ first two sealing motions), with Docket Entry 141 at 2

n.2 (“[Defendants] no longer seek[] to maintain as confidential:

[various specified materials].”).) Nevertheless, Defendants

continue to pursue sealing of a wide range of material (see, e.g.,

Docket Entry 141 at 2 & n.2), including materials necessary to

resolution of the Hybrid Witness Motion (see Docket Entry 233 (the

“Hybrid Witness Opinion”) at 1 n.2). Complicating matters, the

parties filed multiple copies of various documents (see, e.g.,

Docket Entries 127, 152-1, 199), which at times contained sealing

requests that Defendants had already withdrawn (compare, e.g.,

Docket Entry 150-1 at 8 (redacting deposition testimony), and

1 For its part, Plaintiff limited its sealing requests to

specific financial details. (See, e.g., Docket Entry 115-1, □□ 4

(discussing relevant “financial dollar figures”).) [Docket Entry

page citations utilize the CM/ECF footer’s pagination. Unless

otherwise specified, capitalized terms use the same terminology as

in the opinions resolving the Substantive Motions (see Docket

Entries 209, 233).]

Docket Entry 199 at 7 (signifying request to seal such testimony),

with Docket Entry 141 at 2 n.2 (withdrawing request to seal

pertinent testimony)).

DISCUSSION

I. Relevant Standards

“[T]he courts of this country recognize a general right to

inspect and copy . . . judicial records and documents.” Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The right of

public access to documents or materials filed in a district court

derives from two independent sources: the common law and the First

Amendment.” Virginia Dep’t of State Police v. Washington Post, 386

F.3d 567, 575 (4th Cir. 2004). “[T]he common law presumption in

favor of access attaches to all ‘judicial records and documents,’”

but “the First Amendment guarantee of access has been extended only

to particular judicial records and documents.” Stone v. University

of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988) (quoting

Nixon, 435 U.S. at 597).

“[The United States Court of Appeals for t]he Fourth Circuit

has never clarified which right of access attaches to documents

filed with non-dispositive pretrial motions, and thus it is unclear

whether the First Amendment right of access also applies to these

documents.” Syngenta Crop Prot., LLC v. Willowood, LLC, No.

1:15cv274, 2017 WL 11685097, at *2 (M.D.N.C. Sept. 11, 2017)

(internal quotation marks omitted). Moreover, courts diverge in

3

their treatment of the type of material at issue here. Compare,

e.g., Sempowich v. Tactile Sys. Tech., Inc., No. 5:18cv488, 2020 WL

2789792, at *2 (E.D.N.C. May 29, 2020) (applying first-amendment

standard to request to seal, inter alia, “documents filed in

support of . . . [a] motion to exclude an expert report and

testimony”), with Lord Corp. v. S & B Tech. Prods., Inc., No.

5:09cv205, 2012 WL 895947, at *1 (E.D.N.C. Mar. 15, 2012) (“Here,

the documents sought to be sealed have been filed in connection

with a motion in limine to exclude expert testimony, and not in

support of any motions that seek dispositive relief, and therefore

the right of access at issue arises under the common law.”); see

also Hispanic Nat’l L. Enf’t Ass’n NCR v. Prince George’s Cnty.,

Civ. Action No. 18-3821, 2021 WL 488641, at *3 (D. Md. Feb. 10,

2021) (“Although it is not entirely clear that all documents

discussed in motion in limine proceedings have historically been

docketed and made available to the public, the [c]ourt agrees that

proceedings on a motion in limine, in either a criminal or civil

case, are functionally a part of the trial itself in that they

resolve critical questions of whether particular pieces of evidence

will be admitted at trial.”). Nevertheless, “[b]ecause the result

would be the same under either test, the Court need not determine

which right applies.” Syngenta, 2017 WL 11685097, at *2.

Under the First Amendment, “access [to judicial records] may

be restricted only if closure is necessitated by a compelling

4

government interest and the denial of access is narrowly tailored

to serve that interest.” Doe v. Public Citizen, 749 F.3d 246, 266

(4th Cir. 2014) (internal quotation marks omitted). In turn, the

common-law “presumption [of access] can be rebutted only by showing

that countervailing interests heavily outweigh the public interests

in access.” Id. (internal quotation marks omitted). In analyzing

whether “the public’s right of access is outweighed by competing

interests” under the common law, relevant factors “include whether

the records are sought for improper purposes, such as promoting

public scandals or unfairly gaining a business advantage; whether

release would enhance the public’s understanding of an important

historical event; and whether the public has already had access to

the information contained in the records.” In re Knight Publ’g

Co., 743 F.2d 231, 235 (4th Cir. 1984). Further, in appropriate

circumstances, a company’s “interest in preserving the

confidentiality of its proprietary and trade secret information

[can] suffic[e] to overcome both the common law and First Amendment

rights of access.” Syngenta, 2017 WL 11685097, at *2 (internal

quotation marks omitted). Under either standard, however, “[t]he

burden of establishing that a particular document should be sealed

rests on the party promoting the denial of access.” United States

v. Moussaoui, 65 F. App’x 881, 889 (4th Cir. 2003).2 Moreover,

2 This legal framework also “applies to requests by a party

to file a redacted document, i.e., a document sealed in part.” Mr.

Dee’s Inc. v. Inmar, Inc., No. 1:19cv141, 2021 WL 3809256, at *2

5

“the right of public access, whether arising under the First

Amendment or the common law, may be abrogated only in unusual

circumstances.” Public Citizen, 749 F.3d at 266 (internal

quotation marks omitted).

As the Fourth Circuit has explained, “public access promotes

not only the public’s interest in monitoring the functioning of the

courts but also the integrity of the judiciary,” as it “serves to

promote trustworthiness of the judicial process . . . and to

provide the public with a more complete understanding of the

judicial system, including a better perception of fairness.” Id.

(internal quotation marks omitted); see also id. (“The political

branches of government claim legitimacy by election, judges by

reason. Any step that withdraws an element of the judicial process

from public view makes the ensuing decision look more like a fiat

and requires rigorous justification.” (internal quotation marks

omitted)). Accordingly, as a “[g]leneral[ matter], courts have been

hesitant to seal or redact information that will ‘play a role in

the adjudicative process or adjudicate substantive rights.’” Russe

v. United States, No. 1:20cv92, 2022 WL 11965612, at *4 (W.D.N.C.

Oct. 20, 2022) (quoting In re U.S. for an Order Pursuant to 18

U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013)); see

(M.D.N.C. Aug. 26, 2021). “The interest of the public in the flow

of information is protected by [the Court’s] exercis[e of]

independent judgment concerning redactions.” Moussaoui, 65 F.

App’ at 888.

also, e.g., Scott v. City of Durham, No. 1:20cv558, 2022 WL 767557,

at *2 (M.D.N.C. Mar. 14, 2022) (explaining that, in evaluating

sealing request, “the court also considers whether the public needs

access to the materials to understand a judicial decision”).

“When presented with a request to seal judicial records,” the

Court “must give the public notice of the request to seal anda

reasonable opportunity to challenge the request.” Washington Post,

386 F.3d at 576. Then, “it must consider less drastic alternatives

to sealing.” Id. Finally, “if it decides to seal[,] it must state

the reasons (and specific supporting findings) for its decision and

the reasons for rejecting alternatives to sealing.” Id.

“Adherence to this procedure serves to ensure that the

decision to seal materials will not be made lightly and that it

will be subject to meaningful appellate review.” Id. This

approach also reflects the reality that “[t]he operations of the

courts and the judicial conduct of judges are matters of utmost

public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,

839 (1978), as well as that “the public’s business is best done in

public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,

727 (M.D.N.C. 2013).

II. Analysis

A. Preliminary Matters

The Motions have appeared on the public docket since December

2024, with no objections filed thereto. (See Docket Entries dated

Dec. 6, 2024, to present.) Thus, all interested persons have

received “notice of the request to seal and a reasonable

opportunity to challenge the request,” Washington Post, 386 F.3d at

576. Under this Court’s Local Rules, however,

[n]o motion to seal will be granted without a sufficient

showing by the party claiming confidentiality as to why

sealing is necessary and why less drastic alternatives

will not afford adequate protection, with evidentiary

support, including affidavits or declarations, and with

citation to any supporting statutes, case law, or other

authority.

M.D.N.C. LR 5.4(c). Defendants abandoned many of their

confidentiality requests after the Motions’ filings. (See, e.g.,

Docket Entry 141 at 2 n.2 (identifying material Defendants “no

longer seek[] to maintain as confidential”).)3 Accordingly, the

Court denies the Motions to the extent that they rest on

Defendants’ since-abandoned confidentiality claims. See Moussaoui,

65 F. App’x at 889 (“The burden of establishing that a particular

document should be sealed rests on the party promoting the denial

of access.”).

Plaintiff, in turn, seeks to maintain under seal specific

financial details, primarily its sales and revenue numbers and its

expert witness’s hourly rate for this matter. (See, e.g., Docket

3 More particularly, Defendants (i) narrowed the scope of

requested sealing within some documents, (ii) abandoned their

request to seal any material in other documents (Docket Entries

114-4, 148, 148-1), and (iii) withdrew their request to entirely

seal their expert witness’s reports, instead proposing to seal only

specific information therein. (See Docket Entry 141 at 2 n.2;

Docket Entry 170 at 2 n.2.)

8

Entry 113-6 at 3-20; Docket Entry 142-2 at 5-13.)* This

information qualifies as confidential business information, which

Plaintiff has consistently attempted to shield from public

disclosure and which competitors could use to gain an unfair

competitive advantage. (See Docket Entry 115-1, 4-8; see also

Docket Entries 115, 152.) As refined, the requests to seal (by

redaction) Plaintiff’s financial information remain narrowly

tailored to specific financial figures, which possessed little, if

any, relevance to the Court’s resolution of the Substantive Motions

(see Docket Entries 209, 233). These circumstances would

4 Although the highlighting that delineates Plaintiff's

sealing requests encompasses the entirety of footnotes 11 and 12 in

Saitz’s New Report (see, e.g., Docket Entry 142-2 at 7 nn.11-12),

Plaintiff does not appear to pursue sealing of the document

citations themselves (see, e.g., Docket Entries 115, 152).

Accordingly, the Court construes Plaintiff’s sealing requests for

those footnotes as limited to the financial calculations, mirroring

the approach of footnote 10 (see Docket Entry 142-2 at 6 n.10).

Similarly, the highlighting in the tables in the Rogers Report

encompasses the years and, in some instances, the word “Total”

(Docket Entry 113-6 at 12, 14, 20 (bold font omitted)), but (i) the

report elsewhere publicly identifies the years and the fact that

the tables aggregate the relevant calculations (see id. at 12; see

also id. at 14, 20) and (ii) Plaintiff does not appear to seek

sealing of this information (see, e.g., Docket Entries 115, 152).

As such, the Court construes Plaintiff’s sealing requests as

limited to the actual financial figures within the tables.

Additionally, the parties seek to seal the word “approximately” in

Defendants’ memoranda recounting Saitz’s calculation of Plaintiff’s

sales. (See, e.g., Docket Entry 152-1 at 11; Docket Entry 199 at

10.) However, they do not request sealing of that qualifier in

Saitz’s underlying Initial Report. (See Docket Entry 142-1 at 7,

10.) Moreover, the qualifier itself does not appear confidential.

The Court thus construes the sealing requests regarding Plaintiff’s

financial information as limited to the actual financial figures,

absent any qualifiers.

ordinarily warrant granting the sealing requests without further

discussion. (See Docket Entry 204 at 7-8 (granting requests to

seal parties’ financial information).)

Here, however, Defendants filed an improperly redacted

document that mistakenly disclosed one piece of Plaintiff’s

confidential information. (See Docket Entry 150 at 2.) Per

Defendants’ subsequent “Additional Motion to Seal” (id. at 1 (all-

cap, bold, and underscored font omitted)), Plaintiff promptly

notified Defendants of this mistake and Defendants “contacted the

Court Clerk’s office about this issue to request guidance,

permission to swap out the corrected redacted document, and/or

provisional sealing of ECF No. 120 pending th[eir additional

sealing] motion.” (Id. at 2.)5 Defendants’ motion suggests that

Defendants understood the Clerk’s Office would provisionally seal

the improperly redacted document pending resolution of their

sealing motion and/or receipt of the properly redacted document.

(See id. (“As of the time of this filing, and understandably due to

schedules during this time of year, ECF No. 120 has not yet been

provisionally sealed. [Defendants] hereby file[] this additional

motion to seal ECF No. 120 and to keep under seal that additional

phrase. A fresh, redacted copy of the Brief is being filed

5 Promptly substituting the revised redacted document, as

Defendants did with their most recent improperly redacted filing

(see Docket Entry 224 and associated Docket Entry text), would have

better conserved judicial and litigant resources than Defendants’

approach of filing yet another motion to seal.

10

contemporaneously with this Motion as Exhibit A.” (bold and

underscored font omitted)).) For reasons unknown, no such

provisional sealing occurred, leaving the improperly redacted

document publicly accessible.

Ordinarily such public disclosure would undermine the parties’

sealing requests. See, e.g., Danzy v. Coloplast Corp., No.

1:19cv1017, 2022 WL 1591968, at *5 (M.D.N.C. May 19, 2022) (“When

a request to seal pertains to publicly available information, the

proponent of that request faces an uphill battle.”). However, the

improperly redacted information — Defendants’ expert’s calculation

of Plaintiff’s sales (see Docket Entry 150 at 2; Docket Entry 150-1

at 11) — patently qualifies as sensitive business information and

the actual amount possesses no relevance to the Substantive Motions

(see Docket Entries 209, 233), reducing the public interest in

access thereto. Moreover, the parties promptly sought to rectify

this improper redaction (see Docket Entry 150) and nothing in the

myriad filings regarding the Motions indicates that anyone who

should not have access to the relevant information has accessed the

document. The Court will therefore strike the improperly redacted

document and direct the Clerk’s Office to substitute the revised

redacted document. See, e.g., BBK Tobacco & Foods LLP v. Central

Coast Agric. Inc., No. CV-19-5216, 2021 WL 5578864, at *3 (D. Ariz.

Nov. 29, 2021) (striking improperly redacted documents that

disclosed the defendant’s confidential information, explaining

11

that, “because [the plaintiff] has since filed a correctly redacted

version of [each document], these earlier filed, improperly

redacted versions are needlessly duplicative and will be ordered

stricken from the record”); Medley v. Atlantic Exposition Servs.,

Inc., 550 F. Supp. 3d 170, 203-04 (D.N.J. 2021) (granting motion to

seal materials erroneously submitted as exhibit to complaint,

explaining that “the documents themselves are pages from an

unrelated settlement agreement, and leaving them unsealed on the

docket . . . would expose a private agreement between unrelated

parties to the general public through no fault or actions of their

own, with no corresponding benefit to the public”); James v.

ServiceSource, Inc., No. 3:07cv317, 2007 WL 4190794, at *4 (E.D.

Va. Nov. 21, 2007) (granting motion to seal materials that,

“[b]ecause of a clerical error, . . . were not sealed and are

publicly accessible”). The Court further grants the Motions

insofar as they seek to seal by redaction Plaintiff’s financial

information. (See Docket Entry 204 at 7-8.)

B. Defendants’ Sealing Requests

For their part, Defendants seek to seal information in various

memoranda and exhibits, mainly on the grounds that it constitutes

sensitive business information. In support of their sealing

requests, Defendants offer three declarations from Tara Tan, Chief

Executive Officer and co-founder of various Defendants. (See

12

Docket Entry 133, ¶ 1; Docket Entry 143, ¶ 1; Docket Entry 170-1,

¶ 1.) As relevant to the Motions, the declarations state:

[Tan’s] understanding is that the [s]ealing

[m]otions [(Docket Entries 112, 118)] concern, in part,

maintaining the confidentiality of certain documents

containing proprietary business information produced or

controlled by [Defendants] in the above-captioned

litigation and filed in connection with [Plaintiff’s]

motions to exclude, strike, and preclude (ECF Nos. 108,

110, 116) (collectively, the “Motions to Exclude”).

Some of the documents and information contained in

[Plaintiff’s] Motions to Exclude, and accompanying

exhibits, concern [Defendants’] financial metrics, such

as costs, expenses, profits, and sales representation

from a third[-]party sales representative.

[Defendants] consider[] these documents and

information exceedingly sensitive and confidential in

nature as it [sic] discloses [Defendants’] confidential

financial details as well as [their] marketing and

expansion strategies, which remain undisclosed to [their]

competitors, clientele, and the general populace.

[Defendants] ha[ve] invested substantial time,

effort, and resources in developing [their] U.S.

business, [their] marketing plans, and [their]

relationships with sales representatives and brokers.

Moreover, [Defendants] ha[ve] extended great efforts to

safeguard [their] sensitive information from falling into

the hands of competitors.

Should this information be made public, it could be

exploited by [Defendants’] competitors to secure

advantages in the marketplace, during contract

negotiations, or otherwise inflict harm upon

[Defendants].

Further, the most likely reason others would seek

such information would be for the improper purpose of

gaining an unfair competitive advantage.

(Docket Entry 143, ¶¶ 4-9 (internal paragraph numbering omitted).)

13

Similarly, Tan declared:

[Defendants] seek[] to maintain the confidentiality

of specific portions of proprietary business information

in [their] Opposition to [Plaintiff’s] Motions to Exclude

Untimely Disclosed Evidence, to Strike Ms. Saitz’s

‘Supplemental’ Report, and [Plaintiff’s] Motion to

Preclude Adam Levit as an Expert Witness (“Grin’s

Opposition Briefs”).

The confidential information contained within []

Grin’s Opposition Briefs and accompanying exhibits

consists of financial metrics such as revenues, costs,

expenses, profits, market expansion collaboration, retail

placement strategy, and sales representation from a

third[-]party broker.

Disclosure of this type of information could harm

[Defendants] because it will allow competitors access to

financial data, proprietary data, and commercially

sensitive information that could be used to undercut

[Defendants] in competitive purchasing and sales

situations, as well as in preparing competitive sales,

market expansion, and distribution strategies. Further,

the most likely reason others would seek such information

would be for the improper purpose of gaining an unfair

competitive advantage.

[Defendants] ha[ve] invested substantial time,

effort, and resources in developing and refining [their]

business strategies, marketing plans, and relationships

with brokers. Moreover, [Defendants] ha[ve] extended

great efforts to safeguard this sensitive information

from falling into the hands of competitors.

On information and belief, [Tan is] not aware of any

attempts by others to seek [Defendants’] confidential

information.

(Docket Entry 133, ¶¶ 4-8 (internal paragraph numbering omitted).)

Finally, according to Tan:

[Her] understanding is that the [s]ealing [m]otion

[(Docket Entry 147)] concerns, in part, maintaining the

confidentiality of certain documents containing

proprietary business information produced or controlled

by [Defendants] in the above-captioned litigation and

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filed in connection with [Plaintiff’s] reply in support

of its motion to preclude Adam Levit from testifying as

an expert witness (ECF No. 149) (hereinafter, the “Motion

to Preclude”).

Some of the information contained in [Plaintiff’s]

Motion to Preclude concerns [Defendants’] sales

representation from a third[-]party sales representative.

[Defendants] consider[] this information exceedingly

sensitive and confidential in nature as it discloses

[Defendants’] sales representation and business expansion

strategy, which remain undisclosed to [their]

competitors, clientele, and the general populace.

[Defendants] ha[ve] invested substantial time,

effort, and resources in developing [their] U.S. business

and [their] relationships with sales representatives and

brokers. Moreover, [Defendants] ha[ve] extended great

efforts to safeguard [their] sensitive information from

falling into the hands of competitors.

Should this information be made public, it could be

exploited by [Defendants’] competitors to secure

advantages in the marketplace, during contract

negotiations, or otherwise inflict harm upon

[Defendants].

Further, the most likely reason others would seek

such information would be for the improper purpose of

gaining an unfair competitive advantage.

(Docket Entry 170-1, ¶¶ 4-9 (internal paragraph numbering

omitted).)

In connection with Defendants’ request to seal their expert

witness retention agreement, Defendants also submitted a

declaration from defense counsel. (See Docket Entry 140, ¶ 1.) As

relevant here, that declaration states:

In August 2024, [Defendants] retained Juli Saitz at

FTI Consulting, Inc. (“FTI”) as a damages expert in the

above-referenced litigation.

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Attached as Exhibit 4 to the Declaration of L.

Danielle Toaltoan, dated December 20, 2024 (ECF Nos.

124-08 [sic], 131-08 [sic]) is a true and correct copy of

the FTI retention agreement signed in connection with the

above-captioned litigation, the terms of which are not

publicly disclosed.

[Defendants] ha[ve] consistently maintained this

sort of information — the terms by which [they] retain[

their] experts — as confidential.

Disclosure of this type of information could be

harmful to [Defendants] because it will allow competitors

access to sensitive information concerning [Defendants’]

costs related to its retained experts as well as

[Defendants’] litigation strategy. Further, the most

likely reason other [sic] would seek such information

would be for an improper purpose of exploiting

[Defendants’] financial information and litigation

strategy.

(Docket Entry 140, ¶¶ 3-6 (internal paragraph numbering omitted).)

Defendants’ memoranda in support of their sealing requests

largely present the same generalized contentions as Tan’s

declarations. (See Docket Entries 134, 139, 141, 170.)

Nevertheless, the Court has reviewed the materials that Defendants

seek to seal and concludes that Defendants’ financial information,

including the costs they pay for various services, warrants

sealing.6 The particulars of this information bear limited

6 In an apparent oversight, Defendants omitted the Rogers

Report (Docket Entry 113-6) from the list of materials for which

they seek sealing (see Docket Entry 134 at 2; Docket Entry 141 at

2). However, Defendants seek to seal references to certain

information from that report in memoranda and also seek to seal the

original source of certain information quoted in that report. (See

Docket Entry 141 at 2 n.2 (requesting sealing for “the portion of

the second [sic] full sentence on page 10 already marked for

redaction by [Plaintiff]” in its “memorandum of law in support of

its [Evidence Motion],” as well as “the portion of the fifth full

16

relevance to resolution of the Substantive Motions (see Docket

Entries 209, 233), but qualify as sensitive, confidential business

information that, per Tan, Defendants protect from disclosure,

which would harm them (see, e.g., Docket Entry 143, ¶¶ 4-8).

Moreover, as with Plaintiff’s financial figures, the Court can

generally narrowly tailor the restriction on public access by

sealing by redaction the specific financial figures found in the

memoranda and exhibits.

However, three exhibits consist entirely of financial

statements and spreadsheets, which detail, inter alia, Defendants’

sales, expenses, and profit and loss calculations for multiple

years. (See Docket Entries 113-1, 131-2, 131-3.) Contending that

these exhibits contain only confidential information, Defendants

ask to maintain the exhibits “entirely under seal” (Docket Entry

141 at 7; accord Docket Entry 139 at 7). The first exhibit, the

New Evidence (Docket Entry 113-1), consists entirely of sensitive

sentence on page 9 already marked for redaction by [Plaintiff]” in

its “memorandum of law in support of its [Expert Report Motion],”

and “propos[ing] redactions . . . to the initial expert report of

Ms. Saitz”); see also Docket Entry 113 at 10 (proposing, in

Evidence Motion memorandum, redaction of portion of page ten’s

third full sentence, not counting citation sentences, which

recounts information from the Rogers Report); Docket Entry 114 at

9 (proposing, in Expert Report Motion memorandum, redaction of same

information in fifth full sentence, not counting citation

sentences, on page nine); Docket Entry 113-6 at 10 (quoting from

Saitz’s Initial Report); Docket Entry 142-1 at 7 (proposing to

redact only quoted financial figures in Saitz’s Initial Report).)

The Court accordingly authorizes sealing by redaction of both

Plaintiff’s and Defendants’ financial figures in the Rogers Report

(Docket Entry 113-6).

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financial information, the specifics of which do not affect the

public’s understanding of the Substantive Motions; accordingly, it

warrants such sealing.

By contrast, the first two pages of Defendants’ Sales

Spreadsheet (Docket Entry 131-2) and Expense Spreadsheet (Docket

Entry 131-3) merely denote the exhibit number, the relevant file

name, and the Bates Number associated with the file’s production

during discovery. (See Docket Entry 131-2 at 1-2; Docket Entry

131-3 at 1-2.) The latter two pieces of information mattered for

resolution of the Evidence Motion and appear in the Court’s opinion

thereon. (See, e.g., Docket Entry 209 at 6, 9-10.) The Court will

therefore deny the request to seal the Sales Spreadsheet and

Expense Spreadsheet in their entirety; instead, Defendants may seal

the portions of those exhibits that contain confidential

information: pages 3 through 208 of the Sales Spreadsheet (Docket

Entry 131-2) and pages 3 through 42 of the Expense Spreadsheet

(Docket Entry 131-3). Defendants additionally submitted a

declaration that lists certain categories of costs found in the

Expense Spreadsheet. (See Docket Entry 130, ¶ 5.) Defendants may

seal by redaction only the quotations from the Expense Spreadsheet

— i.e., the specific expense categories — as the remainder of that

sentence does not contain confidential information. (See id. (“On

June 28, 2024, Grin produced GRIN_00007924, which reflects Grin’s

expenses and costs related to its U.S. sales, including costs

18

related to [redacted] and [redacted] in addition to costs

concerning [redacted,] among other categories.”); see also Docket

Entry 123, ¶ 5 (redacting all information after “U.S. sales,”).)7

Defendants also seek to seal specific portions of Tan’s

deposition transcript that discuss the contents of the Sales

Spreadsheet and Expense Spreadsheet, including information

regarding a certain collaboration between Defendants and another

entity. (See Docket Entry 113-3 at 20, 25-27 (seeking sealing by

redaction of specific questions and answers); see also Docket Entry

141 at 2 n.2 (limiting sealing request).) Defendants further seek

to seal discussion of that collaboration in Saitz’s deposition

transcript and New Report. (See Docket Entry 113-9 at 47; Docket

Entry 142-2 at 11-12; see also Docket Entry 141 at 2 n.2.) Tan

avers that this material constitutes confidential, sensitive

business information, the disclosure of which would harm

Defendants. (See Docket Entry 143, ¶¶ 4-8.) The identified

information generally appears confidential, except that only the

specified name qualifies as confidential in the first marked

question on page twenty-five and the first and last marked

questions on page twenty-seven of Tan’s deposition transcript.

(See Docket Entry 113-3 at 25, 27.) Defendants otherwise narrowly

tailored their sealing requests, seeking to seal by redaction

7 The same conclusion applies to the reproduction of this

paragraph in Defendants’ opposition to the Evidence Motion. (See

Docket Entry 127 at 5-6.)

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limited portions of the transcripts and New Report (see Docket

Entry 113-3 at 20, 25-27; Docket Entry 113-9 at 47; Docket Entry

142-2 at 5-6, 10-13), which bear limited relevance to the

Substantive Motions (see Docket Entries 209, 233). Subject to the

foregoing limitation, the Court accordingly grants the request to

seal by redaction the specified material in Tan’s and Saitz’s

deposition transcripts and the corresponding discussion in Saitz’s

New Report.

Separately, Defendants seek to seal certain sentence fragments

that accompany their financial figures. (See Docket Entry 141 at

2 & n.2; see also Docket Entry 113 at 10; Docket Entry 114 at 9;

Docket Entry 119 at 5.) Specifically, Defendants seek to seal the

final six words of the following sentence in Plaintiff’s memorandum

in support of its Evidence Motion, and the final nine words of the

same sentence in Plaintiff’s memorandum in support of its Expert

Report Motion: “However, Mr. Rogers noted that Ms. Saitz had

likely overstated Defendants’ sales by [redacted].” (Docket Entry

113 at 10; Docket Entry 114 at 9; see also Docket Entry 141 at 2

n.2.) Given its context, the amount of the miscalculation

qualifies as confidential. (See Docket Entry 113-6 at 17 (“Ms.

Saitz excluded international sales from Australia but inexplicably

failed to exclude sales from New Zealand. Should it be determined

that those sales do not relate to U.S. sales, it is [Plaintiff’s

expert’s] opinion that the magnitude of sales as reported by Ms.

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Saitz is potentially overstated by [redacted] . . . .”).)

Defendants have not established, however, that the existence of the

miscalculation in Saitz’s Initial Report qualifies as confidential.

(See Docket Entries 133, 143, 170-1.) Defendants also request

sealing of the final clause of the following sentence in

Plaintiff’s Hybrid Witness Motion memorandum: “Mr. Levit noted

that his company, Velocity Sales Management (‘Velocity’), began

representing [Defendants] in March of 2024, and that [Defendants]

ha[ve] a retainer with Velocity for [redacted].” (Docket Entry 119

at 5; see also Docket Entry 141 at 2 & n.2.)? Defendants have

likewise not established the confidentiality of the existence of

this monthly retainer (see Docket Entries 133, 143, 170-1), which

8 Plaintiff’s memorandum also indicates that Defendants seek

to seal the middle clause of the following sentence: “According to

[Levit’s] deposition, he ‘has the offer’ to be compensated for his

testimony, which is consistent with experts retained to provide

testimony.” (Docket Entry 119 at 2-3; see also Docket Entry 141 at

2 & n.2 (endorsing sealing of all marked portions of said

memorandum).) However, a later section of Plaintiff’s memorandum

publicly discloses the existence of this offer and specifically

quotes Levit’s deposition testimony about this offer (see Docket

Entry 119 at 5), testimony that Defendants do not request the Court

seal (see Docket Entry 119-2 at 10-11). Moreover, this offer of

compensation affected resolution of the Hybrid Witness Motion and

appears in the Hybrid Witness Opinion. (See, e.g., Docket Entry

233 at 1n.2, 3, 13, 19.) Thus, to the extent that Defendants seek

sealing of this portion of Plaintiff’s memorandum, the Court denies

the request. See Washington Post, 386 F.3d at 579 (“[O]nce

announced to the world, the information lost its secret

characteristic.” (internal quotation marks omitted)); Russe, 2022

WL 11965612, at *4 (“Generally, courts have been hesitant to seal

or redact information that will play a role in the adjudicative

process or adjudicate substantive rights.” (internal quotation

marks omitted)) (collecting cases).

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in any event affected resolution of the Hybrid Witness Motion and

appears in the Hybrid Witness Opinion (see Docket Entry 233 at 1

n.2, 4, 19). The Court accordingly denies the requests to seal the

information — beyond the financial figures involved — regarding

Saitz’s miscalculation and Defendants’ monthly retainer with

Velocity. See, e.g., Washington Post, 386 F.3d at 579; Russe, 2022

WL 11965612, at *4.

Defendants similarly seek to seal Levit’s deposition

transcript’s reference to this monthly retainer. (See Docket Entry

119-2 at 16.) For the reasons just discussed, only the specific

monetary figure warrants sealing, such that the sentence would

read: “Q. Has Grin Natural been paying the [redacted]-a-month

retainer?” (id.). Defendants also seek to seal a question and

response on the succeeding page of the transcript excerpt. (See

id. at 17.) The pertinent exchange lacks relevance to the

Substantive Motions. As such, this Court’s Local Rules mandate its

redaction from the document, rather than maintaining it under seal.

See M.D.N.C. LR 5.4(a)(3) (“Sealed documents should not be filed

unless necessary for determination of the matter before the Court.

If only non-confidential portions of a document are necessary, only

those portions should be filed, immaterial portions should be

redacted, and no motion to seal should be filed.”). The Court thus

denies the request to seal this information and directs Defendants

to file a properly redacted version of this exhibit. See, e.g.,

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Nixon, 435 U.S. at 598 (observing that “[e]very court has

supervisory power over its own records and files”); M.D.N.C. LR

83.4(a)(3) (explaining that, if “a party fails to comply with a

[L]ocal [R]ule of this Court, the Court may impose sanctions,”

including issuing “such orders as are just under the

circumstances,” such as “an order striking out [court filings] or

parts thereof”).

Defendants additionally seek to seal portions of Levit’s

deposition transcript memorializing testimony about, inter alia,

his conversations with three brokers regarding potential

distribution of Defendants’ products, as well as references thereto

in one of Plaintiff’s memoranda. (See Docket Entry 131-8 at 15-17;

Docket Entry 149 at 4; see also Docket Entry 138 at 2; Docket Entry

170 at 2.) Defendants maintain that this material “includes

[their] commercially sensitive business details concerning [their]

retail placement strategy, facilitated through a third-party sales

representative” and “is exceedingly sensitive as it delineates

[their] confidential business expansion strategy, which remain

undisclosed to [their] competitors, clientele, and the general

populace” (Docket Entry 170 at 4). (See also, e.g., Docket Entry

139 at 4-8; Docket Entry 133, ¶¶ 4-7; Docket Entry 170-1, ¶¶ 4-7.)

Yet, Defendants continue to publicly disclose (i) the names of the

relevant brokers (see Docket Entry 124-8 at 14-15 (identifying

relevant brokers as “JOH, or Johnson O’Hare[,] . . . a company in

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the northeast[, t]he Barcode Group[,] . . . a company that

represents . . . brands to Walmart, . . . [a]nd SellEthics,” a

company “in the southeast”)); (ii) Defendants’ retail placement

strategy (see id. at 14 (explaining that Velocity’s “standard

procedure is to hire third-party brokers, have [its] client hire

third-party brokers which [Velocity] assist[s] them in hiring,

engaging, and managing” and that Velocity “ha[s] a list of standard

people that [it] work[s] with that [it] ha[s] long-standing

relationships with”)); and (iii) the fact that these brokers “have

declined to represent [Defendants] because of the potential

confusion with [Plaintiff]” (id.).

The material that Defendants seek to seal also includes

patently nonconfidential testimony. (See, e.g., Docket Entry 131-8

at 16 (“Are Johnson O’Hare, The Barcode Group, and SellEthics, what

term would you use for those entities? Brokers? Sales reps? A.

Brokers.”); 17 (“Have you obtained any facts directly from

[Defendants] that you have relied upon in order to form your

opinions in this case? A. No. No. My — my opinions are formed

on my conversations with these brokers . . . .”).) Moreover, the

Hybrid Witness Opinion relied upon and disclosed much of the

information at issue. (See Docket Entry 233 at 1 n.2, 7, 14.) The

Court thus denies Defendants’ request to seal this information,

except that Defendants can seal by redaction the name of the

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individual at Johnson O’Hare with whom Levit spoke (see Docket

Entry 131-8 at 17).

Finally, Defendants seek to seal in its entirety their

retention agreement with FTI. (See Docket Entry 139 at 7

(asserting necessity of sealing such exhibit in its entirety on

(mistaken) premise that it “[is a] financial spreadsheet[] that

report[s] sensitive sales, costs, and expense information”); see

also Docket Entry 124-4 (filing document entirely under seal).) As

justification for this request, Defendants maintain that the

document reveals their “compensation rates with [their] retained

expert, Juli Saitz” (Docket Entry 139 at 2) “and terms relating to

[their] retention of experts [for this] action” (id. at 4). Per

Defendants, “[d]isclosure of this type of information could be

harmful to [Defendants] because it will allow competitors access to

sensitive information concerning [Defendants’] costs related to

[their] retained experts as well as [their] litigation strategy.”

(Docket Entry 140, ¶ 6.) However, Saitz’s publicly disclosed

deposition testimony reveals the nature of her retention in this

matter, including the standard terms of her firm’s engagement

letters (see, e.g., Docket Entry 109-9 at 16-23). Moreover, the

relevant exhibit consists of the engagement letter, which appears

routine, and fifteen pages of “FTI Standard Terms and Conditions”

(Docket Entry 131-4 at 5 (all-cap, bold, and underscored font

omitted)). (See id. at 2-19.) Although FTI’s standard agreement

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terms comprise most of the agreement, Defendants have not shown how

such information qualifies as confidential. (See Docket Entry 140,

¶¶ 4-6.) Accordingly, the Court denies the request to seal the FTI

retention agreement in its entirety; instead, Defendants may seal

by redaction the specific compensation rates and retainer amount

listed in the engagement letter.

C. Final Matters

Under this Court’s Local Rules, “[t]he Court may impose

sanctions, including attorney’s fees, for filing unsupported or

overly broad motions to seal, or for making unsupported or overly

broad confidentiality designations that are not appropriately

narrowed following a request and that necessitate the filing of a

motion to seal by another party.” M.D.N.C. LR 5.4(a)(4).

Defendants’ conduct, including their overly broad and unsupported

confidentiality assertions, needlessly wasted judicial and litigant

resources, cluttered and complicated the docket — creating

difficulty for the Court, parties, and public — and contravened

this Court’s Local Rules. See, e.g., M.D.N.C. LR 5.4(c)(3)

(requiring “a sufficient showing by the party claiming

confidentiality as to why sealing is necessary and why less drastic

alternatives will not afford adequate protection”); M.D.N.C. LR 5.4

commentary (“As a general rule, parties should keep to a minimum

the filing of sealed documents. . . . Motions to seal should be

narrow and specific.”); see also M.D.N.C. LR 5.4(a)(5) (“[The

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Court’s Local Rules regarding filing documents under seal] are

intended to minimize the filing of sealed documents, to protect the

public right of access, to ensure the docket is clear so that

documents can be found easily, and to allow for review of motions

to seal in a way appropriate for the case and that reduces cost,

time, and confusion.”). Defendants shall therefore bear the burden

of filing all necessary conforming documents. See M.D.N.cC. LR

83.4(a) (authorizing issuance of “such orders as are just under the

circumstances” as sanction for violating Local Rules). In so

doing, Defendants shall clearly identify and link each corrected

document to all iterations of that document that appear on the

docket.

To facilitate that endeavor, the Court summarizes its rulings

regarding the various documents that the Motions sought to seal:

113-3 Seal by redaction:

Page 20: lines 1-6, 20-25

Page 25: lines 11-25

Page 26: line 1

Page 27: lines 8-16

Page 27: entity’s name in lines 6, 17

Docket Entry 142-1)

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marked, collaboration discussion (see Docket

Entry 142-2)

Redact lines 15-20 on page 17

12 and named expense categories on page 6

paragraph 5

retainer amount on pages 2-3

24 on page 17

Finally, the parties originally sought permanent sealing of

all affected materials. (See, e.g., Docket Entry 115 at 2, 5, 7

(asking Court to “keep” and “maintain” Plaintiff’s confidential

information under seal, without specifying end date for such

sealing); Docket Entry 139 at 8-9 (requesting permanent sealing of

Defendants’ information) .) However, as this Court (per Chief

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United States District Judge Catherine C. Eagles) explained when

ruling on yet more sealing motions in this matter:

Because confidential business information is

typically dated after a few years, permanent sealing is

not appropriate. As the parties agreed at a recent

hearing, sealing this information for 10 years will more

than adequately protect their interests.

Should the matter go to trial, the public interest

in this information will be higher. Granting these

[M]otions does not necessarily mean that trial exhibits

or testimony will be sealed. And if this information

becomes public at trial, the Court will lift the seal on

this information earlier.

(Docket Entry 204 at 9-10.)

CONCLUSION

The parties have justified sealing only certain information

filed in support of the Substantive Motions.

IT IS THEREFORE ORDERED that the Motions (Docket Entries 112,

118, 138, 147, 150) are GRANTED IN PART AND DENIED IN PART as

specified herein.

IT IS FURTHER ORDERED that, on or before July 15, 2025,

Defendants shall file public versions of Docket Entries 113, 113-3,

113-5, 113-6, 113-9, 114, 114-4, 119, 119-2, 127, 128, 130, 131-2,

131-3, 131-4, and 131-8 that conform with this Opinion.9

9 The public version of the New Evidence (Docket Entry 113-1)

that appears on the docket comports with the rulings herein (see

Docket Entry 109-1), obviating the need for further filings related

thereto. However, this Court’s CM/ECF system applies the same

sealing classification to all material filed at a Docket Entry and

thus cannot maintain Docket Entry 114 under seal while unsealing

Docket Entry 114-4. Accordingly, Defendants must file an unsealed

version of Docket Entry 114-4.

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IT IS FURTHER ORDERED that the Clerk shall unseal (i) Docket

Entries 148, 148-1, and 149 upon entry of this Opinion and

(ii), subject to further order of the Court, Docket Entries 113,

113-1, 113-3, 113-5, 113-6, 113-9, 114, 114-4, 119, 119-2, 127,

128, 130, 131-2, 131-3, 131-4, 131-8, 152-1, 152-2, 199, 199-1,

199-2, 199-3, and 199-4 on January 2, 2035.

IT IS FURTHER ORDERED that the Clerk shall promptly replace

the improperly redacted document at Docket Entry 120 with the

revised redacted document currently filed as Docket Entry 150-1.

This 8th day of July, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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