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BASF Corp. v. SNF Holding Co.

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

August 5, 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 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).

         For the 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).

         The 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.[1] 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.

         In so 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).

         BACKGROUND

         On 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.)

         As is 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.

         Following 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.

         In 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).[2] Defendants filed a Memorandum in Opposition to Plaintiff's request for adversary submissions, (doc. 400), and Plaintiff filed a Reply in Support, (doc. 403).

         While 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.)

         DISCUSSION

         I. Plaintiff's and Defendants' Motions to Seal (Docs. 368, 373, 379, 388, 393)

         The 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 1313-14.

         “A 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).

         Though 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.

         A. Plaintiff's Motion to Seal Opposition to Defendants' Motion for Attorneys' Fees and Expenses (Doc. 368)

         Plaintiff 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.)

         The 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.[3] 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.)[4] 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.).

         What is 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. 411, 411-2).

         Given 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 ...


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