Simpson

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

RESEARCH AMERICA, INC.,

Plaintiff,

23-CV-320-LJV

v. DECISION & ORDER

PETER SIMPSON et al.,

Defendants.

On August 5, 2024, the plaintiff, Research America, Inc. (“RAI”), moved to extend

the preliminary injunction issued against the defendants, Peter Simpson, Donna

Simpson, and Segmedica, Inc., that was set to expire on August 31, 2024. See Docket

Item 59. In connection with that motion, RAI sought to seal two supporting exhibits that

consist of documents produced by two non-parties, Fresenius and Myovant. See

Docket Item 60. After that motion to seal was granted, Docket Item 61, RAI asked to

seal two other exhibits filed in connection with its reply in further support of its motion to

extend the preliminary injunction, Docket Item 66. Like the exhibits submitted with the

first motion to seal, those exhibits consist of documents that were produced during

discovery by two non-parties, this time Fresenius and Purdie Pascoe. See id.

After more carefully reviewing both sealing motions, the Court concluded that

RAI had not given the Court information sufficient to satisfy Local Rule of Civil

Procedure 5.3(a), which provides that “documents are [presumptively] publicly

accessible” and that “[a] party seeking to have a . . . document[ ] or portion of a

document filed under seal bears the burden of demonstrating that such material should

be sealed under applicable law.” See Docket Item 74 (quoting Loc. R. Civ. P. 5.3(a)).

The Court therefore ordered RAI to show cause why the documents covered by the two

motions to seal “should not be unsealed.” Id.

In response to that order, RAI narrowed the scope of its sealing requests.

Compare Docket Items 60 and 66 (first and second sealing motions), with Docket Item

79 (RAI’s response to Court’s order to show cause). Instead of seeking to seal all the

documents to which its two sealing motions refer, RAI now seeks to keep under seal

only parts of two documents filed in support of its motion to extend the preliminary

injunction, Docket Items 59-7 and 59-8; parts of another document filed with its reply,

Docket Item 65-2; and one other document filed with its reply in its entirety, Docket Item

65-3. See Docket Item 79 at 5.1 More specifically, RAI’s sealing request is now limited

to 1) specific pages of a document that contains the defendants’ formal work proposal to

perform market research known as the “ATU Wave 4” project for non-party Fresenius,

Docket Item 59-7 at FMC000000036-46; 2) specific pages of a document that contains

RAI’s “PersonaSmart questions,” Docket Item 59-8 at SMPA0000346.1-346.3; and 3)

two presentations (one in draft form) of a report prepared in connection with that project

(the “ATU Wave 4 Report”), Docket Items 65-2 at pages 4-121 (presentation) and 65-3

(draft presentation). See Docket Item 79 at 5, 14.2

1 The Court ultimately denied RAI’s motion to extend the preliminary injunction.

Docket Item 80.

2 Page numbers in docket citations refer to ECF pagination.

For the reasons that follow, the Court concludes that RAI has shown good cause

under the applicable standard, and the sealing of the documents and excerpts identified

in its response to this Court’s order is justified.

DISCUSSION

Under Local Rule of Civil Procedure 5.3(a), “parties, complaints, and documents

are [presumptively] publicly accessible,” and “[a] party seeking to have a case, party,

complaint, document, or portion of a document filed under seal bears the burden of

demonstrating that such material should be sealed under applicable law.” That rule is

consistent with the longstanding “‘presumption of access’ to judicial records,” which is

rooted in the Constitution as well as the common law. Bernstein v. Bernstein Litowitz

Berger & Grossmann LLP, 814 F.3d 132, 141 (2d Cir. 2016) (quoting Lugosch v.

Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006)); see also United States v.

Erie County, 763 F.3d 235, 238-39 (2d Cir. 2014) (“The notion that the public should

have access to the proceedings and documents of courts is integral to our system of

government.”).

To determine whether a right of access attaches to a filing, the court must first

decide whether the record at issue constitutes a “judicial document.” Bernstein, 814

F.3d at 140-41. The Second Circuit has explained that “the mere filing of a paper or

document with the court is insufficient to render that paper a judicial document subject

to the right of public access”; instead, “the item filed must be relevant to the

performance of the judicial function and useful in the judicial process.” United States v.

Amodeo, 44 F.3d 141, 145 (2d Cir. 1995).

If a court determines that a filing is a “judicial document[ ],” that document may

be sealed only “if a sufficiently compelling countervailing interest is demonstrated,” see

United States v. King, 2012 WL 2196674, at *1-2 (S.D.N.Y. June 15, 2012) (citing

Lugosch, 435 F.3d at 120) (common law standard), and if the court makes “specific, on

the record findings . . . demonstrating that closure is essential to preserve higher values

and is narrowly tailored to serve that interest,” id. at *2 (quoting Press-Enter. Co. v.

Super. Ct., 478 U.S. 1, 13-14 (1986)) (First Amendment standard).

As an initial matter, the Court agrees with RAI’s concession, Docket Item 79 at 7,

that the documents in question are judicial in nature and therefore enjoy some

presumption of public access. See Sylvania v. Ledvance, 2021 WL 412241, at *1

(S.D.N.Y. Feb. 5, 2021) (concluding that a brief, supporting declarations, and exhibits

filed in connection with preliminary injunction motion were “plainly judicial documents”).

But it is also true that unlike “[m]aterials submitted in connection with a motion for

summary judgment,” which enjoy “a strong presumption of public access[,]” “materials

submitted in connection with . . . non-dispositive motions are subject to a lesser—but

still substantial—presumption of public access.” Brown v. Maxwell, 929 F.3d 41, 53 (2d

Cir. 2019). Accordingly, the documents RAI asks the Court to keep under seal,

materials submitted in connection with a non-dispositive motion to extend a preliminary

injunction, enjoy “a lesser—but still substantial—presumption of public access.” See id.

RAI argues that countervailing interests overcome that “lesser—but still

substantial—presumption of public access[,]” as the relevant documents include

information “that could cause competitive harm to [RAI] or the producer if released

publicly,” Docket Item 79 at 5. More specifically, as discussed in greater detail below,

RAI says that its PersonaSmart questions and analysis are proprietary and,

furthermore, that those questions derive their value from not being known publicly. See

generally id. at 7-10. Moreover, according to RAI, the disclosure of the two

presentations and work proposal would harm non-party Fresenius by eliminating the

competitive advantage it gained from commissioning the relevant market research

project.3 See generally id.; Docket Item 79-5.

The Court turns first to the “PersonaSmart questions” and the presentation

“contain[ing] the results of a PersonaSmart analysis,” Docket Item 59-8 at

SMPA0000346.1-346.3 and Docket Item 65-2 at pages 4-121. As RAI notes in its

amended complaint, it is a “market research firm” offering a range of services that

include “data acquisition and analysis.” Docket Item 71 at ¶ 19. Its services revolve

around PersonaSmart, which is “a personality-based segmentation model of consumers

that . . . employs a series of proprietary confidential questions and interpretive tools to

group potential customers into accessible segments.” Id. at ¶ 31. According to RAI,

those “segments allow[] . . . customers to make better informed decisions about their

product and service offerings to the end consumers.” See id. at ¶¶ 31-32.4 “The value

of the PersonaSmart questions derives from [their] not being known to the public.” See

3 RAI also notes that certain slides from the final presentation contain “the results

of a PersonaSmart analysis.” See Docket Item 79 at 9. As discussed below, the

“PersonaSmart analysis” is intertwined with the “PersonaSmart questions.” RAI does

not seem to argue that the potential competitive harm it could suffer justifies sealing “the

results of a PersonaSmart analysis.” See id. But because much of the same reasoning

RAI offers for sealing the “PersonaSmart questions” applies to “the results of a

PersonaSmart analysis,” the Court will address whether the latter should remain under

seal due to the potential competitive harm their unsealing would have on RAI.

4 RAI acquired PersonaSmart from the defendants. See Docket Item 71 at ¶¶

24-30.

Docket Item 79 at 9. RAI further notes that questions included in surveys help form the

basis of a subsequent proprietary analysis. Id.

“The demonstration of a valid need to protect the confidentiality of sensitive

business information . . . may be a legitimate basis to rebut the public’s presumption of

access to judicial documents.” Valassis Cmmc’ns, Inc. v. News Corp., 2020 WL

2190708, at *1 (S.D.N.Y. May 5, 2020). “Courts will seal ‘business information that

might harm a litigant’s competitive standing in the market’” and “will commonly grant a

company’s request for sealing of ‘proprietary business information, such as internal

analyses, business strategies, or customer negotiations’ when disclosure of that

information could ‘provide competitors with an unearned advantage.’” W.J. Deutsch &

Sons Ltd. v. Diego Zamora, S.A., 2022 WL 890184, at *2 (S.D.N.Y. Mar. 25, 2022) (first

quoting New York v. Actavis, PLC, 2014 WL 5353774, at *3 (S.D.N.Y. Oct. 21, 2014),

then quoting SEC v. Telegram Grp., Inc., 2020 WL 3264264, at *3 (S.D.N.Y. June 17,

2020)).

Although the PersonaSmart questions and analysis are not “internal analyses,

business strategies, or customer negotiations,” the Court can understand how, given the

specific nature of RAI’s business, their disclosure could harm RAI’s business and

market competitiveness. As a market research firm, RAI provides value for its clients by

researching customer preferences using proprietary questions and analysis. See

Docket Item 79 at 9 (“The value of the PersonaSmart questions derives from not being

known to the public such that only [RAI] and [the d]efendants, who originally created the

PersonaSmart questions, could include the PersonaSmart questions in a client survey

and subsequently perform the PersonaSmart analysis.”). Revealing the specific

questions RAI asks and the results of the subsequent analysis would certainly seem

likely to provide its competitors with an unearned advantage. See United States v.

Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (“Commercial competitors seeking an

advantage over rivals need not be indulged in the name of monitoring the courts.”); cf.

Playtex Prods., LLC v. Munchkin, Inc., 2016 WL 1276450, at *11 (S.D.N.Y. Mar. 29,

2016) (sealing “highly proprietary material” that included “market research” (quoting

GoSMiLE, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 769 F. Supp. 2d 630, 649-50

(S.D.N.Y. 2011)).

Given the “lesser” presumption of public access enjoyed by these documents,

the Court concludes that RAI has sufficiently demonstrated that the sealing of the

“PersonaSmart questions,” Docket Item 59-8 at SMPA0000346.1-346.3, and the

presentation containing “the results of a PersonaSmart analysis,” Docket Item 65-2 at

pages 4-121,5 is justified.

The portions of the documents containing the relevant work proposal, Docket

Item 59-7 at FMC000000036-46, and presentation, Docket Items 65-2 at pages 4-121,

along with the draft presentation, Docket Item 65-3, likewise implicate the market

standing and competitive standing of non-party Fresenius. As a representative from

Fresenius declared in support of the request to keep those documents sealed, the work

proposal contains the sums of money that Fresenius is willing to pay for such services.

See Docket Item 79-5 at ¶ 20. And according to that representative, if such information

5 The Court notes that “the results of a PersonaSmart analysis” only appear in

certain pages of the presentation. See Docket Item 79 at 9. But because, as discussed

below, other countervailing interests—the competitive standing and privacy interests of

non-party Fresenius—also justify the sealing of the entire presentation, this fact does

not change the Court’s conclusion that the sealing of the entire presentation is justified.

were disclosed to the public, outside vendors “will have a strategic advantage in future

bids, proposals, and offers for similar work.” See id.

Moreover, the two presentations were also part of a research project Fresenius

conducted “to better understand the medical market in which [it] operate[s] and learn

information that can help [it] improve as a company.” See id. at ¶¶ 10, 18. Along the

same lines, the presentations themselves include the results of that project which,

according to the Fresenius representative, the company uses “internally to improve [its]

business and respond to the participants in the market.” See id. at ¶¶ 12, 18.

The two presentations thus contain the results of an extensive research project

that Fresenius undertook to determine how to position itself to customers. Unsealing

those documents could allow competitors to gain access to that information—

information that Fresenius paid to obtain—free of charge. See W.J. Deutsch & Sons

Ltd., 2022 WL 890184, at *2. In light of those interests and the privacy concerns of third

parties that can outweigh the public’s presumptive right of access, see King Pharms.,

Inc. v. Eon Labs, Inc., 2010 WL 3924689, at *9 (E.D.N.Y. Sept. 28, 2010) (“Privacy

interests of non-parties resisting disclosure may weigh heavily against public access to

the information at issue.”),6 the Court concludes that RAI has also established sufficient

countervailing interests to overcome the “lesser” presumption of public access the two

presentations and work proposal enjoy.

6 The draft presentation that RAI seeks to seal, Docket Item 65-3, was actually

produced not by Fresenius, but by Purdie Pascoe, another non-party to this action. See

Docket Item 79 at 10. Purdie Pascoe, which produced the draft presentation only after

it had been “assured that certain confidentiality provisions were in place,” id., also likely

has a privacy interest in the draft presentation’s remaining under seal.

In sum, RAI has identified “sufficient[] . . . countervailing interest[s]” to justify

sealing the four specific excerpts and documents that it identified in response to this

Court’s order. See King, 2012 WL 2196674, at *2. Moreover, RAI’s current sealing

proposal, which is narrower than its initial proposal, is “narrowly tailored” to serve those

interests. See id. For those reasons, the sealing of those four excerpts and documents

is justified.7

CONCLUSION

For the reasons stated above, RAI has shown good cause as to why sealing the

following documents is justified: Docket Item 59-7 at FMC000000036-46, Docket Item

59-8 at SMPA0000346.1-346.3, Docket Item 65-2 at FMC000000548,8 and Docket Item

65-3. The Court will file Docket Item 65-3 and an unredacted version of Docket Item 65-

2 under seal. The Court previously filed under seal unredacted versions of Docket

Items 59-7 and 59-8, see Docket Item 64, and those documents will remain sealed. RAI

shall file redacted versions of Docket Items 59-7, 59-8, and 65-2 on the docket within 14

days of the date of this decision and order. RAI’s second motion to seal, Docket Item

66, is therefore GRANTED IN PART.

7 Because the Court concludes that sealing the four documents is justified under

the applicable standard, it need not address RAI’s separate argument that unsealing the

documents would unfairly modify the protective order. See Docket Item 79 at 10-16.

8 “FMC000000548 consists of Docket [Item] 65-2 from pages 4-121.” Docket

Item 79 at 5 n.2.

SO ORDERED.

Dated: December 5, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE