United States District Court, S.D. Georgia, Savannah Division
STAN BAKER UNITED STATES DISTRICT JUDGE.
matter comes before the Court regarding several Motions to
Seal documents related to Defendants' pending Motion for
Attorneys' Fees and Expenses, (doc. 360). (See
Docs. 368, 373, 379, 388, 393.) The Motions to Seal are
unopposed. Also before the Court is Plaintiff's Motion to
Defer Determination of Costs and Response in Opposition to
Defendants' Bill of Costs, (doc. 391), to which
Defendants filed a Reply, (doc. 401).
reasons set forth below, the Court DENIES without
prejudice: Plaintiff's Motion to Seal Opposition
to Defendants' Motion for Attorneys' Fees and
Expenses, (doc. 368); Defendants' Motion to Seal Reply in
Support of Defendants' Motion for Attorneys' Fees and
Expenses, (doc. 379); Plaintiff's Motion to Seal
BASF's Surreply in Opposition to Defendants' Motion
for Attorneys' Fees and Expenses, (doc. 393);
Defendants' Motion to Seal Declarations Supporting Local
Rule 54.2(c) Detailed Itemization and Specification of
Requested Award of Attorneys' Fees and Nontaxable Costs,
(doc. 373); and DENIES as moot
Plaintiff's Motion to Seal BASF Corp.'s Motion
Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C) for
Adversary Submissions Regarding Defendants' Local Rule
54.2(c) Detailed Itemization and Specification of Requested
Award of Attorneys' Fees and Nontaxable Costs, (doc.
388). The Court DIRECTS the Clerk of Court
to return the materials sought to be sealed, (see
docs. 370, 374, 384, 389, 395), to the submitting parties,
Local R. 79.7(c).
Court, however, GRANTS Plaintiff's
Motion to Defer Determination of Costs, (doc. 391), and
declines to adjudicate Defendants' Motion for
Attorney's Fees and Expenses and Bill of Costs, (docs.
360, 375), during the pendency of Plaintiff's appeal
before the Federal Circuit Court of Appeals. As such, the
Court DENIES without prejudice to refile:
Defendants' Motion for Attorneys' Fees and Expenses,
(doc. 360); Defendants' Bill of Costs, (doc. 375);
Defendants' Request for Hearing, (doc. 361); and
Plaintiff's Motion Pursuant to Federal Rule of Civil
Procedure 54(d)(2)(C) for Adversary Submissions Regarding
Defendants' Local Rule 54.2(c) Detailed Itemization and
Specification of Requested Award of Attorneys' Fees and
Nontaxable Costs, (doc. 390). The Court
DIRECTS the parties to, if appropriate,
refile these Motions and the Bill of Costs within
twenty-one (21) days of the date that the Federal
Circuit Court of Appeals issues its mandate on the pending
appeal. Responsive briefing will be due
within fourteen (14) days of service of the
respective motions and bill of costs, as set forth in Local
Rules 7.5 and 7.6. Pursuant to Local Rule 54.2(c), should
Defendants remain the prevailing parties post-appeal and
should they still seek attorney's fees, they shall file
and serve their detailed specification and itemization of the
requested attorney's fees award within twenty-one
(21) days of the date that the Federal Circuit
issues its mandate.
filing these documents, the parties are advised that any
request to seal or redact information contained therein must
account for the Court's findings in this Order and those
in the Order dated July 3, 2019, (doc. 414). Specifically,
the parties must not move to file under seal any information
or documents already found by the Court to not warrant
sealing, and they must narrowly tailor any information
relevant to attorneys' fees and costs that they still
seek to have sealed. If the parties seek to seal such
content, they must offer particularized reasons as to why the
specific information or documents require sealing. As is made
clear below, conclusory and blanket assertions of
confidentiality will not establish the requisite cause to
seal. If, upon reflection, the parties determine that these
filings no longer need to be sealed, they may submit them in
the normal course. Local R. 79.7(c).
October 4, 2018, the Court entered summary judgment in favor
of Defendants, invalidating Plaintiff's patent that was
the subject of this infringement action. (Doc. 355.) The
Summary Judgment Order, containing quoted and excerpted
discovery material covered by the Protective Order, was
initially sealed but has since been unsealed based on the
Court's finding that Plaintiff failed to show “good
cause” to keep it shielded from the public's
presumed right of access to judicial records. (Doc. 414, pp.
18-26.) Additionally, the Court unsealed and docketed the
unredacted version of Defendants' Motion for
Attorneys' Fees and Expenses, because Plaintiff did not
show “good cause” to keep the limited discovery
material contained therein protected from public viewing.
(Id. at pp. 12-18.)
pertinent to the Motions to Seal at bar, in unsealing
Defendants' unredacted Motion for Attorneys' Fees and
Expenses, the Court found there was no cause to suppress
Plaintiff's statement that “prior to the invention
of the '329 patent, conical tapers and inert gas had
never been used to remove the claimed polymer gels from
reactors, ” (doc. 416-1, p. 8 (citing doc. 198-8, p.
59); and the Court found no cause to suppress a
non-party's statement that “polymerization reactors
do not require periodic cleaning. The polymer
batches discharge completely with no residual build-up on the
inside of the reactors, ” (id. at p. 20
(citing doc. 343-2, p. 2)). (See Doc. 414, pp.
12-18.) This information-contained within Defendants'
Motion for Attorneys' Fees and Expenses-is now publicly
available on the Court's CM/ECF docketing system.
the entry of summary judgment, Plaintiff appealed to the
Federal Circuit Court of Appeals, (doc. 362), while
Defendants filed the Motion for Attorneys' Fees and
Expenses that is the root of the motions presently under
consideration, (doc. 360). Plaintiff's appeal of summary
judgment in this case prompted the Court to stay proceedings
in a related case brought by Defendant Chemtall Inc. against
Plaintiff BASF Corporation. Order, Chemtall Incorporated
v. BASF SE, 4:17-cv-186 (S.D. Ga. Jan. 7, 2019), ECF No.
259. The Court stayed that case pending Plaintiff's
appeal in this case. Id. at 9-14. In that case,
Defendant Chemtall Inc. claims Plaintiff fraudulently
concealed its ownership of the Sanyo SANWET® Process (at
times, the “Process”) in order to make its patent
infringement action here cognizable. Id. at 3.
Pertinently, in this case, the Court invalidated
Plaintiff's '329 patent based on its determination
that the Process constituted prior art. (Doc. 355.) Given the
dependency of Defendant Chemtall Inc.'s related claims on
the Court's prior art finding, the Court found it prudent
to stay that case pending the outcome of Plaintiff's
appeal in this case. Order, pp. 9-14, Chemtall
Incorporated v. BASF SE, 4:17-cv-186 (S.D. Ga. Jan. 7,
2019), ECF No. 259.
responding to the substance of Defendants' Motion for
Attorneys' Fees and Expenses, Plaintiff filed a redacted
Opposition brief, (doc. 371), and a Motion to Seal an
unredacted version of the Opposition brief, (doc. 368).
Defendants filed a redacted Reply in Support, (doc. 382), and
a Motion to Seal an unredacted version of the Reply in
Support, (doc. 379). Plaintiff then filed a redacted Surreply
in Opposition, (doc. 398), and a Motion to Seal an unredacted
version of the Surreply in Opposition, (doc. 393). In
addition, Defendants filed a Motion to Seal Declarations
Supporting Local Rule 54.2(c) Detailed Itemization and
Specification of Requested Award of Attorneys' Fees and
Nontaxable Costs, (doc. 373), as well as a Bill of Costs,
(doc. 375). Plaintiff filed a Motion to Defer Determination
of Costs and Response in Opposition to Defendants' Bill
of Costs, (doc. 391), to which Defendants replied, (doc.
401). Relatedly, Plaintiff filed a redacted Motion Pursuant
to Federal Rule of Civil Procedure 54(d)(2)(C) for Adversary
Submissions Regarding Defendants' Local Rule 54.2(c)
Detailed Itemization and Specification of Requested Award of
Attorneys' Fees and Nontaxable Costs, (doc. 390), and a
Motion to Seal an unredacted version of the same, (doc.
388). Defendants filed a Memorandum in
Opposition to Plaintiff's request for adversary
submissions, (doc. 400), and Plaintiff filed a Reply in
Support, (doc. 403).
the parties have opposed the substance of and relief sought
by these various filings, they have not filed any opposition
to the sealing of their contents. With this background in
mind, the Court takes up, in turn, the parties' present
Motions to Seal as well as Plaintiff's Motion to Defer.
(Docs. 368, 373, 379, 388, 391, 393.)
Plaintiff's and Defendants' Motions to Seal (Docs.
368, 373, 379, 388, 393)
right of access to judicial records pursuant to common law is
well-established. See Nixon v. Warner Commc'ns,
Inc., 435 U.S. 589, 597 (1978); see also Brown v.
Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th
Cir. 1992). This right extends to the inspection and the
copying of court records and documents. See Nixon,
435 U.S. at 597. The right to access, however, is not
absolute. See Globe Newspaper Co. v. Superior Court for
Norfolk Cty., 457 U.S. 596, 598 (1982). When deciding
whether to grant a party's motion to seal, the court is
required to balance the historical presumption of access
against any significant interests raised by the party seeking
to file under seal. See Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th
Cir. 2001); Newman v. Graddick, 696 F.2d 796, 803
(11th Cir. 1983). In balancing the interests, courts
consider, among other things:
whether allowing access would impair court functions or harm
legitimate privacy interests, the degree of and likelihood of
injury if made public, the reliability of the information,
whether there will be an opportunity to respond to the
information, whether the information concerns public
officials or public concerns, and the availability of a less
onerous alternative to sealing the documents.
Romero v. Drummond Co., Inc., 480 F.3d 1234, 1246
(11th Cir. 2007). When the designated confidential
information concerns asserted trade secrets, courts must
examine whether: 1) the party seeking protection has
consistently treated the information as closely guarded
secrets; 2) the information represents substantial value to
that party; 3) the information would be valuable to the
party's competitors; and 4) the information derives its
value by virtue of the effort of its creation and lack of
dissemination. Chicago Tribune Co., 263 F.3d at
party's privacy or proprietary interest in information
sometimes overcomes the interest of the public in accessing
the information.” Romero, 480 F.3d at 1246
(citing Nixon, 435 U.S. at 598). Moreover, the
common-law right of access to judicial proceedings does not
extend to discovery documents or discovery disputes,
“as these materials are neither public documents nor
judicial records.” Chicago Tribune Co., 263
F.3d at 1311. However, discovery material submitted in
conjunction with substantive motions that are
“presented to the court to invoke its powers or affect
its decisions” is subject to the public right of
access, regardless of whether the motion is dispositive or
not. Romero, 480 F.3d at 1245-46 (citations
omitted); see also FTC v. AbbVie Prods.
LLC, 713 F.3d 54, 62-64 (11th Cir. 2013) (discussing
what legal document filings constitute judicial records).
a stipulated protective order may provide that documents
designated confidential are presumptively protected, a
party's calling a document confidential pursuant to a
protective order “does not make it so” when it
comes to filing the document with the Court. Estate of
Martin Luther King, Jr., Inc. v. CBS, Inc., 184
F.Supp.2d 1353, 1362 (N.D.Ga. 2002). “[C]onsensual
protective orders merely delay the inevitable moment when the
court will be called upon to determine whether Rule 26(c)
protection is deserved, a decision ultimately rooted in
whether the proponent demonstrates ‘good
cause.'” Id. Even when, as in this case,
the motion to seal is presented without any challenge from
the litigants, the judge remains “the primary
representative of the public interest in the judicial process
and is duty-bound therefore to review any request to seal the
record (or part of it). He may not rubber stamp a stipulation
to seal the record.'” Id. at 1363 (quoting
Citizens First Nat'l Bank of Princeton v. Cincinnati
Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999)).
“Once a matter is brought before a court for
resolution, it is no longer solely the parties' case, but
also the public's case.” Brown, 960 F.2d
at 1016. Whether to seal such a matter is a decision
“left to the sound discretion of the trial
court.” Nixon, 435 U.S. at 599.
Plaintiff's Motion to Seal Opposition to Defendants'
Motion for Attorneys' Fees and Expenses (Doc.
contends its unredacted Opposition brief should be sealed
“because it contains proprietary, confidential business
information and/or trade secrets designated
confidential” pursuant to the Protective Order. (Doc.
368, p. 1.) Plaintiff also notes that certain, unspecified
exhibits contain information that should also be sealed.
(Id.) Plaintiff shows that other motions have been
filed under seal and asserts that permanently sealing its
unredacted Opposition brief “is essential to protect
confidential and proprietary business information designated
as such by BASF, Defendants, and other third parties.”
(Id. at p. 2.)
Court has compared, in camera, the redacted content
in Plaintiff's publicly-filed Opposition brief, (doc.
371), to the unredacted, manually filed version, (doc. 370),
and finds that many of the redactions are overbroad and lack
a discernable connection to proprietary business
information. For example, Plaintiff redacts legal and
factual positions that it and Defendants advanced before the
Patent and Trademark Officer during inter partes
review, a public proceeding. (See Doc. 371, pp. 7-8,
20.) It also seeks to redact the amount Defendants paid its
expert, Mr. Fowler, (see id. at pp. 8-9), and common
information about his background, (see id. at p.
23). Along these same lines, Plaintiff seeks to redact
generic factual contentions that have little, if any,
observable connection to technical, proprietary business
information, (see id. at pp. 1, 14-17, 20- 21, 25
n.14.) Plaintiff also seeks to redact the titles
and record citations of certain documents, (see id.
at pp. 11-12). In fact, Plaintiff proposes that the Court
redact every record citation of the information it argues
should be confidential, (see id.).
more, some of the redacted content that actually pertains to
proprietary business information, (see id. at pp.
6-8), is now publicly available via the Court's Summary
Judgment Order, (see doc. 355, pp. 18-20 (discussing
whether leaving a polymer gel heel in the reactor places the
Sanyo SANWET® Process outside the meaning of the '329
patent claim language)). When seeking partial redaction of
this Order, Plaintiff did not argue that information
regarding polymerized gel “heels” left in the
bottom of reactors warranted sealing, (see docs.
the pervasive disconnect between Plaintiff's purported
reason for sealing its Opposition brief-that it contains
proprietary, technical trade secrets-and much of what is
sought to be shielded from public view-content that does not
concern this avowed business rationale- Plaintiff has not
shown “good cause” to seal this judicial record.
Critically, what Plaintiff seeks to seal is not only the
underlying discovery but the Opposition brief itself. This
document, unlike the discovery it discusses, is presumptively
a judicial record subject to the public's presumed right
of access. See Comm'r, Ala. Dep't of Corr. v.
Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th Cir.
2019) (“[M]aterials submitted by litigants . . . that
are ‘integral to the judicial resolution of the
merits' in any action taken by that court are subject to
the common law right of access and the necessary balancing of
interests that the right entails.” (citation omitted)).
Plaintiff's Opposition brief, like Defendants' Motion
for Attorneys' Fees and Expenses, is a document that is
central to the substance of this case and “invoke[s]
judicial resolution of ...