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BASF Corp. v. SNF Holding Company

United States District Court, S.D. Georgia, Savannah Division

July 3, 2019

BASF CORPORATION, Plaintiff,
v.
SNF HOLDING COMPANY; FLOPAM INC.; CHEMTALL INC.; SNF SAS; and SNF CHINA FLOCCULANT CO., LTD, Defendants.

          ORDER

          R. STAN BAKER, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court regarding Defendants' Motion for Leave to File Unredacted Version of Doc. No. 360-2 and to Unseal Doc. No. 355. (Doc. 367.) Additionally, before the Court are the following related motions: Plaintiff's Motion to Seal Response in Opposition, (doc. 380), Defendants' Motion to Seal Reply in Support, (doc. 394), and Plaintiff's Motion to Unseal ECF 355, (doc. 408). For the reasons explained below, the Court GRANTS Defendants' Motion for Leave to File Unredacted Version of Doc. No. 360-2 and to Unseal Doc. No. 355, (doc. 367), and DENIES as moot Plaintiff's Motion to Unseal ECF 355, (doc. 408). In addition, for the purposes of considering Defendants' Motion at bar, the Court GRANTS the parties' Motions to Seal their briefing, (docs. 380, 394). Accordingly, the Court DIRECTS the Clerk of Court to DOCKET the Second Declaration of James W. Dabney, (doc. 369), and all attachments thereto which include Defendants' Motion for Attorneys' Fees and Expenses, (doc. 369-2), to UNSEAL the partially redacted version of Defendants' Motion, (doc. 360), and to UNSEAL the Summary Judgment Order, (doc. 355). The Court also DIRECTS the Clerk of Court to DOCKET and SEAL Plaintiff's unredacted Response in Opposition, (doc. 381), and Defendants' unredacted Reply in Support, (doc. 396).

         BACKGROUND

         On October 4, 2018, in a sealed order, the Court entered summary judgment in favor of Defendants, invalidating Plaintiff's patent that was the subject of its infringement action.[1] (Doc. 355.) Following the entry of summary judgment, Plaintiff appealed to the Federal Circuit Court of Appeals, (doc. 362), while Defendants filed a Motion for Attorneys' Fees and Expenses, (doc. 360). In its appeal, Plaintiff sought to redact expanded portions of its appellate brief, including a summarized version of this Court's sealed Summary Judgment Order, (doc. 355), but was prohibited from doing so by the Federal Circuit.[2] (Doc. 406.) Underlying the Federal Circuit's denial were Plaintiff's redaction of publicly available information in its brief and Defendants' currently pending Motion to Unseal the Court's sealed Summary Judgment Order, (doc. 367). (Doc. 406, p. 2.) The Federal Circuit stayed Plaintiff's appeal pending this Court's decision on Defendants' unsealing request. (Id. at p. 3.)

         I. Defendants' Motion for Leave to File Unredacted Version of Doc. No. 360-2 and to Unseal Doc. No. 355 (Doc. 367)

         By this Motion, Defendants request the Court to unseal Document Number 355 (sealed Summary Judgment Order) and also seek leave to file an unredacted and unsealed version of Document Number 360-2 (redacted version of Defendants' Motion for Attorneys' Fees and Expenses).[3] (Doc. 367 (hereinafter Motion to File Doc. 360-2 Unredacted and to Unseal Doc. 355).) The sealed Summary Judgement Order contains proprietary information of non-party Sanyo Chemical Industries, Ltd. (“Sanyo”), deemed confidential pursuant to the Protective Order in place for this litigation. (Docs. 39, 355.) Plaintiff filed a redacted Response in Opposition, (doc. 383), and a Motion to Seal an unredacted version of the Response in Opposition, (doc. 380). Defendants then filed a redacted Reply in Support, (doc. 397), and a Motion to Seal an unredacted version of the Reply in Support, (doc. 394). Defendants also filed a Notice of Supplemental Authority in Support, (doc. 404), [4] and a Surreply, (doc. 407).

         A. The Court's Sealed Summary Judgment Order (Doc. 355)

         Although Plaintiff initially opposed unsealing the Summary Judgment Order, (docs. 380, 383), following the Federal Circuit's refusal to allow expanded redactions, it filed its own Motion to Unseal this document. (Doc. 408.) In its Motion, Plaintiff represents that it contacted Sanyo to determine whether it objected to unsealing the Summary Judgment Order but did not receive a response. (Id. at pp. 2-3.) As a result, Plaintiff states that it does not oppose unsealing this Order. (Id.) However, in subsequent briefing, Plaintiff now represents that Sanyo has since responded, requesting that two portions of the Summary Judgment Order remain confidential if it is unsealed. (Doc. 411.) As proof of Sanyo's objection, Plaintiff provides an apparent email exchange between its counsel and counsel for “Sanyo Chemical Texas Industries, LLC” and “SANAM Corporation, ” wherein two documents cited by the Summary Judgment Order are deemed highly confidential and subject to redaction. (Doc. 411-1.)

         Defendants oppose Plaintiff's Motion to Unseal, arguing that it is contrary to the Federal Circuit's mandate, unsupported by competent proof, and was filed “to obscure the strategic and insincere character” of Plaintiff's opposition. (Doc. 409, p. 4.) Defendants charge that Sanyo “has long known about the summary judgment decision [], but has made no claim that the decision discloses anything that could rightly be considered confidential or proprietary.” (Id. at p. 3.) As to Plaintiff's current position-that the Summary Judgment Order should be unsealed but partially redacted-Defendants take issue with Plaintiff's reliance upon an April 17, 2019 email purportedly sent by Sanyo's counsel. (Doc. 413, pp. 3-4.) They argue that the “Sanyo” entities named therein never produced any documents in this litigation or made any confidential designations and that the Sanyo entity which produced the at-issue documents (Sanyo Chemical Industries, Ltd.) did so voluntarily. (Id.) They also point out, correctly, that the author of the email neither indicated personal knowledge of relevant facts nor made any reference to the summary judgment decision. (Id.) Moreover, Defendants argue the documents mentioned in the email, and cited in the Order, do not actually contain anything confidential. (Id. at pp. 1-3.) As such, Defendants conclude that Plaintiff fails to meet its burden under Federal Rule of Civil Procedure 26(c) to keep the Summary Judgment Order sealed or to have it docketed partially redacted. (Id. at pp. 4-5.)

         B. Defendants' Redacted Motion for Attorneys' Fees and Expenses (Doc. 360-2)

         Defendants now seek to file their Motion for Attorneys' Fees and Expenses in an unredacted and unsealed form, but they originally sought to filed it sealed and redacted “because it contained information that BASF Corp. and Daniel International Corp. (‘Daniel') had designated as Highly Confidential Information pursuant to the blanket Protective Order.” (Doc. 367, p. 3.) Upon review, however, the four redacted portions are not confidential “to Defendants' understanding, ” (id.), and should be docketed unredacted and unsealed, (id. at p. 1). Three of the four redactions in the attorneys' fees motion, Defendants explain, were of an interrogatory answer by Plaintiff which parallels a public assertion Plaintiff made to the Patent and Trademark Office during inter partes review. (Id. at p. 3.) According to Defendants, the fourth redaction concerns two sentences of content produced by Daniel, and Daniel has stated, through its counsel, that it has no position on whether the content should remain confidential. (Id.) In light of the asserted non-confidentiality, and the common law right of access to judicial records, Defendants argue they should be permitted to file their Motion for Attorneys' Fees and Expenses unredacted and unsealed. (Id. at pp. 1, 3-4.)

         In response, Plaintiff contends that Defendants should be precluded from publicly filing their attorneys' fees motion without redactions because they cannot show sufficient grounds for the Court to revisit its prior order sealing the redacted version, (doc. 365), and because the currently redacted content is not subject to the public's right of access.[5] (Doc. 383, p. 14.) As to the content from Daniel, Plaintiff asserts it was only attached to a motion the Court dismissed as moot when entering summary judgment and was never substantively considered by the Court, thereby removing it from presumed public access. (Id. at pp. 14-15.) Additionally, Plaintiff avers that Daniel still considers the information to be highly confidential. (Id. at pp. 15-16.) Regarding the interrogatory answer, Plaintiff contends it also is not subject to the public's right of access because the Court did not rely upon it when deciding summary judgment. (Id. at pp. 16-17.) Plaintiff also argues the interrogatory answer should remain redacted due to Defendants' failure to timely challenge its confidential designation under the Protective Order. (Id. at p. 17.)

         In their Reply, Defendants assert that because their attorneys' fees motion is presented to the Court to invoke its judicial powers, it is subject to the public's presumed access right. (Doc. 397, p. 7.) As such, they argue that Plaintiff fails to meet its burden to show a privacy interest in the redacted attorneys' fees motion which outweighs this right of access. (Id. at pp. 6- 7, 13-15.) Defendants also dispute that Daniel and Sanyo have expressed objections to making the attorneys' fees motion publicly available in an unredacted form. (Id.) And, in any event, Defendants contend Plaintiff has no standing to raise these third parties' privacy interests. (Id. at pp. 7, 15-17.) Lastly, as to the alleged untimeliness of their confidentiality objection and the need to show sufficient grounds for the Court to reconsider its prior order sealing the attorneys' fees motion, Defendants assert the burden to establish good cause for sealing court documents remains with Plaintiff. (Id. at pp. 17-20.) The Court's prior ruling and the parties' earlier confidentiality designations, Defendants contend, are “irrelevant” to whether the attorneys' fees motion should be kept from public view. (Id. at p. 18.)

         II. Confidentiality and the Protective Order

         A. The Protective Order

         Significant to the present dispute, at the beginning stages of this lit igation, the United States District Court for the Southern District of Texas, where this case originated, issued a Protective Order, which sets forth the procedures to be followed for designating and keeping confidential materials produced during the course of discovery.[6] (Doc. 39.)

         The Protective Order limits disclosure of information and applies to any document or information designated as “Confidential” or “Highly Confidential” by parties or non-parties. (Id. at pp. 1, 8.) Its protections extend to other documents that discuss designated information. (Id. at p. 1.) The “Confidential Information” designation applies to documents that “contain[] trade secrets or commercial information not publicly known, which . . . is of technical or commercial advantage to its possessor, . . . or other information required by law or agreement to be kept confidential.” (Id. at p. 2.) The “Highly Confidential Information” designation applies to documents that “contain[] information that the producing party deems especially sensitive, which may include, but is not limited to, confidential research and development, financial, technical, marketing, any other sensitive trade secret information, or information capable of being utilized for the preparation or prosecution of a patent application dealing with such subject matter.” (Id.) These designations, however, do not properly apply to “information that has been disclosed to the public or third persons in a manner making such information no longer confidential.” (Id.)

         If one party disputes the confidentiality designation of a particular document, it “may seek an order to alter the confidential status of the designated information.” (Id. at p. 5.) Under the terms of this Order, parties were authorized by the Southern District of Texas to electronically file documents containing designated confidential information under seal. (Id. at p. 8.) Nonetheless, as this Court recently explained, (doc. 365), parties are not permitted by the Southern District of Georgia's Local Rules to automatically file documents under seal. See Local R. 79. 7 (“Any person desiring to have any matter placed under seal shall present a motion setting forth the grounds why the matter presented should not be available for public inspection.”).

         B. The Information Sought to be Disclosed by Defendants

         It appears from the Court's review of this case's docket that many of the sealed documents were automatically filed under seal, pursuant to the Protective Order, without motion and specific consideration by the Southern District of Texas. (E.g., Docs. 107, 127, 207, 238-241, 343-2.) In these documents resides the information that Defendants seek to make publicly available by their present Motion to File Doc. 360-2 Unredacted and to Unseal Doc. 355. (See Doc. 367.)

         (1) Information in Defendants' Motion for Attorneys' Fees and Expenses Sought to be Kept Confidential by Plaintiff

         Plaintiff seeks to maintain the confidentiality of the currently redacted, but unsealed, portions of Defendants' Motion for Attorneys' Fees and Expenses, (doc. 360-2). (Doc. 383, p. 4.) There are two redactions at issue. The first redaction concerns a portion of Plaintiff's contention interrogatory response that Defendants quote four times in their attorneys' fees motion. (Id. at pp. 4-5; see doc. 360-2, pp. 7, 8, 10, 13 (citing doc. 207-31, p. 29).) Plaintiff argues its interrogatory responses should remain confidential “because of pervasive reference and discussion of documents designated as highly confidential pursuant to the Protective Order, including documents that [Defendants] designated . . . that show commercial success of [their] infringing methods.” (Doc. 383, p. 5.) Plaintiff, however, does not offer particularized argument as to why the singular, cited portion should remain confidential; instead, it discusses the propriety of disclosing the interrogatory response in its entirety. (See id. at pp. 5, 16-17.)

         The second redaction concerns information produced by third party Daniel and designated highly confidential. (Id. at pp. 4-6.) The portion of information quoted by Defendants in their attorneys' fees motion relates to technical information regarding Daniel's work with Celanese in 1985.[7] (Id.) Defendants quote and redact two sentences of this information once in their Motion for Attorneys' Fees. (Doc. 360-2, p. 19 (citing doc. 343-2, p. 2).) Plaintiff argues generally that this quotation is not subject to presumed public access and that it should remain confidential pursuant to Daniel's designation under the Protective Order. (Doc. 383, pp. 5-6, 15-16.) Plaintiff does not, however, make any particularized argument as to why the specific quoted material itself deserves continued confidentiality. (See id.)

         (2) Information in the Court's Sealed Summary Judgment Order Sought to be Kept Confidential by Plaintiff

         As noted above, following developments in its appeal at the Federal Circuit and after receiving communications from Sanyo's counsel, Plaintiff seeks to keep certain portions of the Court's sealed Summary Judgment Order confidential by partially redacting its contents. (Docs. 408, 411.) Specifically, pursuant to the Protective Order and Sanyo's representations made through its counsel, Plaintiff requests the Court to unseal, but redact, particular portions of the Summary Judgment Order which relate to the manufacturing process and raw materials used by Sanyo to create super absorbent polymers. (Docs. 411, 411-1.) These portions cite to discovery materials identified by Sanyo ...


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